HomeMy WebLinkAboutCCRs HOA Townhomes (DRAFT) 12-01-21DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS FOR AMBLESIDE TOWNS
Hamilton County, Indiana
1
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
AMBLESIDE TOWNS
This Declaration of Covenants, Conditions and Restrictions for Ambleside Towns (the
“Declaration”) is made as of _________________, 20___ by _________________________,
LLC, an Indiana limited liability company, (the ''Declarant'').
RECITALS:
A. Declarant is the owner of a certain parcel of real estate located in Hamilton County,
Indiana, which is more particularly described on Exhibit A attached hereto and
incorporated herein by this reference (the “Property”); and
B. Declarant desires to create on the Property a residential community called Ambleside
Towns (“Ambleside Towns”) which shall have permanent open spaces and other common
facilities for the benefit of the residents of Ambleside Towns; and
C. Declarant desires to provide for the preservation of the values of Ambleside Towns and
such other areas as may be subjected to this Declaration, and to provide for the maintenance
of the open spaces and other facilities, and, to this end, declare and publish its intent to
subject the Property to the covenants, conditions, restrictions, easements, charges and liens
hereinafter set forth, it being intended that they shall run with title to the Property and shall
be binding on all persons or entities having or acquiring any right, title or interest in the
Property or any part thereof and shall inure to the benefit of each owner thereof; and
D. Declarant has deemed it desirable for the efficient preservation of the values of Ambleside
Towns to create an association to be known as the Ambleside Towns Homeowners
Association, Inc., an Indiana not-for-profit corporation (the “Association”), to which shall
be delegated and assigned the powers of owning, maintaining and administering the
common areas and facilities located within the Property, administering and enforcing the
covenants and restrictions made in and pursuant to this Declaration with respect to the
Property, collecting and disbursing the assessments and charges hereafter created with
respect to the Property, and promoting the recreation, health, safety and welfare of the
owners of the Property and all parts thereof; and
NOW, THEREFORE, Declarant, for and in consideration of the premises and the
covenants contained herein, grants, establishes and conveys to each owner of each Lot (as herein
defined), mutual, non-exclusive rights, privileges and easements of enjoyment on equal terms and
in common with all other owners of Lots in and to the use of any common areas and facilities; and
further, Declarant declares that the Property shall be held, transferred, sold, conveyed,
hypothecated, encumbered, leased, rented, used, improved, and occupied subject to the
provisions, agreements, covenants, conditions, restrictions, reservations, easements, assessments,
charges and liens hereinafter set forth, all of which are for the purpose of protecting the value and
desirability of, and shall run with, the Property and be binding on all parties having any right, title
or interest in the Property or any part thereof, their respective successors and assigns, and shall
inure to the benefit of Declarant and the successors in title to the Property or any part or parts
thereof.
2
ARTICLE I
DEFINITIONS
Section 1.1 “Association” shall mean and refer to the Ambleside Towns Homeowners
Association, Inc., an Indiana not-for-profit corporation, and its successors and assigns.
Section 1.2 “Articles” shall mean and refer to the Articles of Incorporation of the
Association, as the same may be amended from time to time.
Section 1.3 “Authority Transfer Date” shall have the meaning ascribed thereto in Section
3.1 of this Declaration.
Section 1.4 “Board of Directors” shall mean the elected body having its normal meaning
under Indiana corporate law.
Section 1.5 “Budget Meeting” shall mean the annual or special meeting of the Association,
subsequent to the Authority Transfer Date, at which the Owners shall be asked to approve the
Association’s budget for a particular fiscal year.
Section 1.6 “Builder” shall mean and refer to ______________________, an Indiana
limited liability company, or its successors and assigns.
Section 1.7 “Bylaws” shall mean and refer to the Bylaws of the Association, as the same
may be amended from time to time.
Section 1.8 “Town” shall mean the City of Carmel, Indiana.
Section 1.9 “Common Area” or “Common Areas” shall mean and refer to all real property
(including the improvements thereto) owned by the Association for the common use and
enjoyment of the Members. All of the Property which is not included in any particular Lot or which
is not dedicated to and accepted by a local public authority, as shown on current or future approved
plats of the Property and/or as described herein, shall be considered to be a part of the Common
Area. “Common Area” shall also mean to include any improvements or areas within public rights-
of-way or easements (public and private), portions of Lots, private streets (if any), landscaping
easements, entry features or other areas that are to be repaired and maintained by the Association
as a common expense of the Association as determined by the Board to be necessary or appropriate
for the common benefit of the Owners.
Section 1.10 “Common Expenses” shall mean and refer to (i) expenses of administration
of the Association, (ii) expenses for the upkeep, maintenance, repair and replacement of Common
Areas, (iii) expenses for the Exterior Maintenance and reasonable reserves for the Dwelling Units,
as provided in this Declaration, (iv) all sums lawfully assessed against the Owners by the
Association, and (v) all other sums, costs and expenses declared by this Declaration to be Common
Expenses.
3
Section 1.11 “County” shall mean the County of Hamilton, Indiana.
Section 1.12 “Declarant” shall mean and refer to ________________________, LLC, or
its successors or assigns. Any assignment of all or any of the rights of Declarant shall be included
in a deed, assignment or other instrument recorded in the Recorder's Office.
Section 1.13 “Declaration” shall mean this Declaration of Covenants, Conditions and
Restrictions for Ambleside Towns, which is to be recorded in the Recorder's Office.
Section 1.14 “Development Period” shall mean the period of time commencing with
Declarant’s acquisition of the Property and ending on the termination of the Class B Membership
in the manner set forth in Section 3.1 below. During the Development Period, the Declarant
reserves the right to facilitate the development, construction, and marketing of the Property, and
the right to direct the size, shape and composition of the Property.
Section 1.15 “Dwelling Unit” shall mean any improvement to the Property intended for
any type of independent ownership for use and occupancy as a residence by a single household
and shall, unless otherwise specified, include within its meaning (by way of illustration but not
limitation) a townhome.
Section 1.16 “Dwelling Unit Insurance” shall mean an insurance policy in the form H0-6,
with Coverage A and Special Perils with the following coverage and minimum levels of insurance:
liability coverage in a minimum amount of $500,000; sewer and drainage backup coverage in a
minimum amount of $5,000; and loss assessment coverage in a minimum amount of $5,000. The
Board of Directors shall have the right, from time to time to both (i) increase the required levels
of coverage, and (ii) to change the description of the types and forms of insurance to be included
within the definition of Dwelling Unit Insurance in the event that the forms of such an insurance
policy are modified, including coverages and endorsements. Any such increase or change shall be
effective upon written notice to the Owners.
Section 1.17 “Exterior Maintenance” shall mean (i) the maintenance, repair, and
replacement of Dwelling Unit roofs and all exterior walls and improvements of a Dwelling Unit
including exterior shutters, exterior windows, exterior doors, siding, and exterior architectural
elements; (ii) replacement of exterior light fixtures; (iii) the painting of the exterior faces of the
walls of the Dwelling Units, including associated trim and the exterior of garage doors; (iv) the
Association Yard Maintenance; (v) the removal of snow on driveways, entry stoops, and all
sidewalks once snow has accumulated to two inches (2”) or more; (vi) the repair and replacement
of driveways, sidewalks located between driveways and entry stoops, and entry stoops; (vii) the
maintenance, repair and replacement of mailboxes and supporting posts that serve each Dwelling
Unit; (viii) the maintenance, cleaning, repair, and replacement of gutters and downspouts attached
to each Dwelling Unit; (ix) the maintenance, repair, and replacement of all decks, patios, and
surrounding fencing to the extent such items were installed by Declarant or Builder as a part of the
original construction of a particular Dwelling Unit (with the responsibility for any later additions
or improvements made to such decks, patios, and surrounding fencing to be included within Owner
Yard Maintenance, below); (x) the replacement of garage doors; (xi) caulking, painting and
replacement of all entry doors to Dwelling Units; (xii) caulking, repairs to frames, painting and
4
replacement of all exterior windows on Dwelling Units; (xiii) opening, closing and maintenance
of irrigation systems, if any, installed by Declarant or Builder on a Lot; and (xiv) maintenance,
repair, and replacement of underground storm water, water, and sanitary sewer lines serving the
Dwelling Units to the extent such lines are located between (A) the street or streets fronting the
corresponding Dwelling Unit and (B) the service meter for the corresponding utility service,
provided such maintenance, repair, or replacement is not otherwise the responsibility of the
provider of such utility service. The Association shall have the authority to adopt such standards
regarding Exterior Maintenance as it may from time to time consider necessary or appropriate,
which shall be effective immediately following adoption. Notwithstanding anything in the
foregoing definition to the contrary, Exterior Maintenance shall not include any Owner
Maintenance, any Owner Yard Maintenance, any Owner Damage Repairs or any maintenance of
the slab floors of the Dwelling Units. The costs of performing Exterior Maintenance shall be
included within Common Expenses and recovered by the Association through both Regular
Assessments and Special Assessments as more particularly described in Article V of the
Declaration.
Section 1.18 “Federal Agencies” shall mean (by way of illustration but not limitation) the
Federal Housing Authority, the Federal National Mortgage Association, the Government National
Mortgage Association, the Federal Home Loan Mortgage Corporation, the Department of Housing
and Urban Development, the Veterans Administration or any other governmental agency.
Section 1.19 “Flowerbeds” shall mean those flowerbeds, if any, installed on a Lot by an
Owner with the prior approval of the Architectural Review Board as referenced in Section 6.6 of
the Declaration.
Section 1.20 “Governing Documents” means this Declaration, the Articles of Incorporation
filed with the Indiana Secretary of State, Bylaws, Rules and Regulations and all other rules and
regulations promulgated by the Association pursuant to this Declaration, and resolutions of the
Board, as each may be adopted and amended from time to time.
Section 1.21 “HOA Act” shall mean Article 32.25.5 of the Indiana Code, as the same may
be modified from time to time.
Section 1.22 “Local Governing Authority” shall mean the City and/or the County,
individually or collectively.
Section 1.23 “Lot” shall mean and refer to any discrete plot of land created by and shown
on a lawfully recorded subdivision plat of the Property upon which a Dwelling Unit could be
constructed in accordance with applicable zoning ordinances; provided, however, that where a
Dwelling Unit (i) is separated from an adjacent Dwelling Unit by a Party Wall, or (ii) shares a
Party Wall with an adjacent Dwelling Unit, the center line of such Party Wall and its vertical
extensions shall constitute the common boundary line (lot line) between adjacent Lots, and the
closure of the boundary lines of such adjacent Lots shall be accomplished by extending
perpendicular lines from the horizontal extremities of such Party Wall to the closest boundary line
or lines for such Lots as shown on any Plat or any part thereof, provided, however, further that
where any exterior wall of a Dwelling Unit is not a Party Wall, but extends outside the boundary
5
lines (lot lines) of any Lot (as shown on any such Plat or part thereof) upon which such Dwelling
Unit is primarily located, the boundary lines of such Lot shall be deemed to include all of the
ground area occupied by such Dwelling Unit. It is the intent hereof that, in any and all events in
which a boundary line as shown on any Plat or part thereof does not coincide with the actual
location of the respective wall of the Dwelling Unit because of inexactness of construction, settling
after construction, or for any other reason, this Declaration and any Plat or any part thereof shall
be interpreted and construed so that all ground area underlying beneath a Dwelling Unit shall be
and constitute part of the Lot upon which such Dwelling Unit is primarily located to the end that
all of such ground area shall be subject to fee simple ownership by the Owner of such Dwelling
Unit; to the extent necessary to accomplish and implement such intention, interpretation and
construction, the boundary lines of the Lots shall be determined in accordance with the foregoing
definitional provisions and boundary lines as so determined shall supersede the boundary lines for
Lots shown on any Plat or part thereof.
Section 1.24 “Maintenance Costs” means all of the costs necessary to keep the facilities to
which the term applies operational and in good condition, including but not limited to the cost of
all upkeep, maintenance, repair, replacement, of all or any part of any such facility, payment of all
insurance with respect thereto, all taxes imposed on the facility and on the underlying land,
leasehold, easement or right-of-way, and any other expense related to continuous maintenance,
operation or improvement of the facility.
Section 1.25 “Mechanicals Maintenance” shall mean the maintenance, repair, and
replacement of all mechanical equipment serving a Dwelling Unit, including HVAC (including
ducts, pipes, wires, meters and conduits), condensing units (both interior and exterior),
compressors, housings, water heaters, and water softeners.
Section 1.26 “Member” shall mean and refer to every person or entity who holds a
membership in the Association, as more particularly set forth in Article II below.
Section 1.27 “Mortgagee” shall mean and refer to any person or entity holding a first
mortgage on any Lot or the Common Area who has notified the Association of this fact in writing.
An “Eligible Mortgagee” shall be a Mortgagee who has given notice to the Association of its
interest and requested all rights afforded Eligible Mortgagees under Article XII.
Section 1.28 "Official Zoning Ordinance" shall mean “Ordinance Number _______, an
Ordinance of the City of Carmel, Hamilton County, Indiana Concerning Amendment to the
Unified Development Ordinance” recorded ________________, 20___ as Instrument Number
___________________ in the Office of the Recorder of Hamilton County, Indiana, as amended
from time to time.
Section 1.29 “Owner” shall mean and refer to the record owner, whether one (1) or more
persons or entities, of the fee simple title to any Lot, including a contract seller but excluding those
holding such interest in a Lot solely by virtue of a contract to purchase a Lot or as security for the
performance of an obligation. If more than one (1) person or entity is the record owner of a Lot,
the term Owner as used herein shall mean and refer to such owners collectively, so that there shall
be only one (1) Owner of each Lot.
6
Section 1.30 “Owner Damage Repairs” shall mean the maintenance, repair, or replacement
of any item or element of a Dwelling Unit or Lot that is damaged or destroyed by the gross
negligence or willful misconduct of either (i) the Owner or other occupant of the Dwelling Unit or
Lot so damaged or destroyed, or (ii) the residents, guests or other invitees of the Owner or other
occupant of the Dwelling Unit or Lot so damaged or destroyed.
Section 1.31 “Owner Maintenance” shall mean (i) Utility Line Maintenance; (ii)
Mechanicals Maintenance; (iii) the maintenance, repair, and replacement of garage door hardware
and garage door openers; (iv) the maintenance, repair, and replacement of hardware, glass, seals
and screens on all entry doors to a Dwelling Unit, including any work covered by applicable
warranties provided to the corresponding Owner; (v) the maintenance, repair, and replacement of
hardware, glass, seals and screens on all exterior windows to a Dwelling Unit, including any work
covered by applicable warranties provided to the corresponding Owner; (vi) the cleaning of the
interior and exterior surfaces of all exterior windows to a Dwelling Unit; (vii) the maintenance,
and repair of exterior light fixtures and the replacement of light bulbs in such fixtures; (viii) the
maintenance, repair, and replacement of the interior elements of a Dwelling Unit, including, but
not limited to, all wall and floor coverings, cabinets, fixtures and lighting; (ix) the maintenance,
repair, and replacement of fences and patio screens installed by Declarant or Builder; and (x) the
maintenance of the slab floor.
Section 1.32 “Owner Yard Maintenance” shall mean (i) the maintenance of any
Flowerbeds; (ii) the maintenance, repair, and replacement of any personal property, whether or not
attached to the Dwelling Unit, including, without limitation, flags, flagpoles, flower boxes, garden
hoses, and any outdoor furniture or decorative items; and (iii) the maintenance, repair, and
replacement of all improvements or additions made to decks, patios, and surrounding fencing after
their initial installation by Declarant or Builder as part of the original construction of a particular
Dwelling Unit.
Section 1.33 “Party Wall” shall mean each wall that is built as a part of the original
construction of a Dwelling Unit and placed on the dividing line between Lots.
Section 1.34 “Permitted Signs” shall mean (i) customary real estate sale or lease signs
which have received the prior written approval of the Architectural Review Board (as defined in
Article VII); and (ii) temporary construction and home signage.
Section 1.35 “Person” shall mean an individual, firm, corporation, partnership, association,
trust, or other legal entity, or any combination thereof.
Section 1.36 “Property” shall mean that certain real property located in Hamilton County,
Indiana, which is more specifically described on Exhibit A attached hereto and incorporated herein
by reference, as the same has been subdivided and platted, and any additions thereto which, from
time to time, may be subjected to the covenants, conditions, restrictions, reservations, easements,
charges and liens of this Declaration.
7
Section 1.37 “Recorder's Office” shall mean the Office of the Recorder of Hamilton
County, Indiana.
Section 1.38 “Regular Assessments” shall mean and refer to assessments levied against all
Lots to fund Common Expenses.
Section 1.39 “Restrictions” shall mean and refer to the agreements, conditions, covenants,
restrictions, easements, assessments, charges, liens, and other provisions set forth in this
Declaration with respect to the Property, as the same may be amended from time to time.
Section 1.40 “Shared Party Wall Maintenance” shall mean (i) any Utility Line Maintenance
or Mechanicals Maintenance to the extent that the line or component in the need of maintenance,
repair or replacement is located within a Party Wall; and (ii) the maintenance, repair, and
replacement of a Party Wall.
Section 1.41 “Special Assessments” shall mean and refer to assessments levied in
accordance with Section 5.7 of this Declaration.
Section 1.42 “Structure” shall mean any temporary or permanent improvement or building
or portion thereof, including, without limitation, walls, decks, patios, stairs, windows, window
boxes, doors, address markers, flag poles, trees, hedges, shrubbery, satellite dishes, antennae,
shutters, awnings, hot tubs, pavement, walkways, driveways, garages and/or garage doors, or
appurtenances to any of the aforementioned.
Section 1.43 “Structure Insurance” shall mean the casualty insurance that the Association
shall carry on the Dwelling Units, which shall cover risks not otherwise insured by the Dwelling
Unit Insurance.
Section 1.44 “Utility Line Maintenance” shall mean (i) the maintenance, repair, and
replacement of storm water, water, and sanitary sewer lines serving the Dwelling Units to the
extent located between (A) the service meter for the corresponding utility service and (B) the
interior fixtures within the corresponding Dwelling Unit connected to such utility service, provided
such maintenance, repair, or replacement is not otherwise the responsibility of the provider of such
utility service; and (ii) the maintenance, repair, and replacement of all water, sanitary sewer,
natural gas, electric, television, cable, telephone, HVAC, satellite, and antennae utility lines
serving a Dwelling Unit.
Section 1.45 “Yard” shall mean the portion of each Lot that is located outside the
foundation line of the Dwelling Unit constructed on that Lot. When used herein, “Yards” shall
refer to every Yard on every Lot in the Property unless the context requires otherwise.
Notwithstanding anything in the foregoing definition to the contrary, no area on a particular Lot
shall be considered to be a Yard under this Declaration until a certificate of occupancy has been
issued for the Dwelling Unit on that Lot.
Section 1.46 “Yard Maintenance” or “Association Yard Maintenance” shall mean (i)
mowing, trimming, re-sowing, re-sodding, and fertilizing Yards; (ii) the raking and removal of
8
leaves located on Yards; (iii) annual mulching of landscaping beds installed by Declarant or
Builder on Yards (but not Flowerbeds); (iv) trimming of shrubbery planted by Declarant or Builder
along the foundations of the Dwelling Units; (v) the fertilization of trees and shrubs installed by
Declarant or Builder; and (vi) the removal and replacement of dead trees, shrubs, and other
decorative plants installed by Declarant or Builder. Notwithstanding anything in the foregoing
definition to the contrary, Association Yard Maintenance shall not include any Owner Yard
Maintenance. Except for the mulching of landscaping beds installed by Declarant or Builder on
Yards, which shall occur annually, the Board of Directors shall determine the frequency with
which Association Yard Maintenance shall be performed by the Association, which may be
changed by the Board of Directors from time to time. The costs of performing Association Yard
Maintenance shall be included within Common Expenses and recovered by the Association
through both Regular Assessments and Special Assessments as more particularly described in
Article V of the Declaration.
Section 1.47 “Zoning Commitments” shall mean that certain Commitments Concerning
Use And Development Of Real Estate, a copy of which is attached hereto and incorporated herein
by reference as Exhibit “B”.
ARTICLE II
MEMBERSHIP
Every Owner of a Lot which is subject to this Declaration shall be a Member of the
Association. Membership shall be appurtenant to and may not be separated from ownership of any
Lot which is subject to assessment by the Association. Ownership of such Lot shall be the sole
qualification for membership. No Owner shall have more than one (1) membership in the
Association for each Lot it owns.
ARTICLE III
VOTING RIGHTS
Section 3.1 Classes. The Association shall have two (2) classes of voting membership
as follows:
Class A: Class A Members shall be all Members with the exception of the Class B
Member. A Class A Member shall be entitled to one (1) vote for each Lot
in which it holds the interest required for membership pursuant to Article
II herein with respect to each matter submitted to a vote of Members upon
which the Class A Members are entitled to vote.
Class B: The Class B Member shall be Declarant. At all times prior to expiration of
the Class B Membership, as provided below in this Section, the Class B
Member shall have the same number of votes at any meeting in which votes
are to be taken as is held collectively by all Class A members, plus one
hundred (100) additional votes. Declarant's Class B membership interest
9
shall be converted to and shall become a Class A membership interest with
one (1) vote for each Lot in which it holds an interest, and the Development
Period shall terminate, upon the happening of any of the following events,
whichever occurs first (the “Authority Transfer Date”):
(a)When the Class B member no longer owns any portion of the
Property; or
(b)December 31, 2050; or
(c)When, in its sole discretion, the Declarant expressly and specifically
terminates and waives in writing its right to Class B Membership.
The Declarant reserves the right to assign some of its rights and
obligations under this Declaration without terminating the
Development Period and without terminating or waiving its right to
Class B Membership.
Section 3.2 Multiple Ownership Interests. When more than one (l) Person
constitutes the Owner of a particular Lot, all of such Persons shall be Members of the Association,
but all of such Persons, collectively, shall have only one (l) vote for such Lot. The vote for such
Lot shall be exercised as such Persons constituting the Owner of the Lot determine among
themselves, and may be exercised by any one (1) of the Persons holding such ownership interest,
unless any objection or protest by any other holder of such ownership interest is made prior to the
completion of a vote, in which case the vote cast for such Lot shall not be counted, but the Member
whose vote is in dispute shall be counted as present at the meeting for quorum purposes if the
protest is lodged at such meeting. In no event shall more than one (1) vote be cast with respect to
any Lot.
ARTICLE IV
DECLARATION OF RESTRICTIONS AND STATEMENT OF PROPERTY RIGHTS
Section 4.1 Declaration. Declarant hereby expressly declares that the Property and any
additions thereto pursuant to this Declaration, shall be held, transferred and occupied subject to
these Restrictions. The Owners of each Lot are subject to these Restrictions, and all other Persons,
whether (i) by acceptance of a deed from Declarant conveying title thereto, or the execution of a
contract for the purchase thereof, whether from Declarant or a subsequent Owner of such Lot, or
(ii) by the act of occupancy of any Lot, shall conclusively be deemed to have accepted such deed,
executed such contract and undertaken such occupancy subject to each Restriction and agreement
herein contained. By acceptance of such deed, or execution of such contract, or undertaking such
occupancy, each Owner and each other Person for itself, its heirs, personal representatives,
successors and assigns, acknowledges the rights and powers of Declarant, the Architectural
Review Board and of the Association with respect to these Restrictions, and also, covenants, agrees
and consents to and with Declarant, the Architectural Review Board, the Association, and the
Owners and subsequent Owners of each of the Lots affected by these Restrictions, to keep, observe,
comply with and perform such Restrictions and agreements.
10
Section 4.2 Property Rights. Every Owner shall have a right and easement of use, access,
and enjoyment in and to the Common Areas, and such easement shall be appurtenant to and shall
pass with the title to every Lot, subject to:
(a)this Declaration, as it may be amended from time to time, and to any restrictions,
limitations or other matters contained in any deed conveying any part of the
Property to the Association;
(b)the right of the Association to limit the number of guests of Members on the
Common Area;
(c)the right of the Association to adopt and enforce rules and regulations governing
the use of the Common Area and the personal conduct of Owners, occupants and
guests thereon, including, without limitation, the imposition of fines for the
violation thereof to the extent permitted by law;
(d)the right of the Association to suspend (i) the Members' voting rights, (ii) the
Members' right to run for office within the Association, and (iii) rights of a Member
to the use of any nonessential services offered by the Association, provided that
access and the provision of utilities to the Lot through the Common Area shall not
be precluded, for (x) any period during which any assessment against such
Member's Lot remains unpaid for a period of more than six (6) months (or such
lesser period as may be permitted under the HOA Act), or (y) for a period not to
exceed sixty (60) days for any infraction of its published rules and regulations;
(e)the right of the Association at any time, or upon dissolution of the Association, and
consistent with the then-existing zoning and subdivision ordinances of the City
and/or the County and consistent with its designation of the Common Area as “open
space”, to transfer all or any part of the Common Area to an organization conceived
and organized to own and maintain common open space, or, if such organization
will not accept such a transfer, then to a Local Governing Authority or other
appropriate governmental agency, or, if such a transfer is declined, then to another
entity in accordance with the laws governing the same, for such purposes and
subject to conditions as may be agreed to by the Members. Except in the case of
dissolution, any such transfer shall have the assent of at least two-thirds (2/3) of
each class of Members entitled to vote and who are voting in person or by proxy at
a meeting duly called for this purpose at which a quorum is present, written notice
of which must have been sent to all Members not less than twenty-five (25) days
nor more than fifty (50) days in advance of the meeting setting forth the purpose
of the meeting. Upon such assent and in accordance therewith, the officers of the
Association shall execute the necessary documents to effectuate the transfer under
this subparagraph (e). The re-subdivision or adjustment of the boundary lines of
the Common Area and the granting of easements by the Association shall not be
deemed a transfer within the meaning of this Article;
11
(f)the right of the Association to grant, with or without payment to the Association,
licenses, rights-of-way and easements under, across, through or over any portion of
the Common Area;
(g)the right of Declarant or the Association to re-subdivide and/or adjust the boundary
lines of the Common Area consistent with applicable zoning and subdivision
ordinances as either deems necessary for the orderly development of Ambleside
Towns;
(h)all rights reserved by Declarant in Article VIII hereof; and
(i)the rights of Declarant and/or Builder to erect, maintain and operate real estate sales
and construction offices, displays, signs and other facilities for sales, marketing and
construction purposes.
The Association, acting through the Board of Directors, may exercise these rights without
the need for any approval from any Member, Mortgagee or any of the Federal Agencies, unless
provided otherwise in this Declaration.
Section 4.3 Common Area.
(a)Ownership. Declarant may retain legal title to the Common Area during the
Development Period, but shall convey title to the Common Area to the Association,
free and clear of all liens and other financial encumbrances, exclusive of the lien
for taxes not yet due and payable, no later than the end of the Development Period.
The Common Areas shall remain private, and neither Declarant's execution, or
recording of an instrument portraying the Common Areas, nor the doing of any
other act by Declarant is, or is intended to be, or shall be construed as, a dedication
to the public of the Common Areas. Declarant or the Association may, however,
dedicate or transfer all or any part of the Common Areas to any Local Government
Authority or utility for roadways or utility purposes, or for other public purposes.
(b)Maintenance. The Association shall be responsible for maintaining the Common
Area and the Maintenance Costs thereof shall be included within Common
Expenses and assessed as a Regular Assessment against all Lots subject to
assessment. Notwithstanding anything to the contrary set forth in this Declaration,
beginning upon the date upon which the first Lot is conveyed to an Owner other
than Declarant or Builder, the Association shall be solely responsible for all costs
incurred with respect to the maintenance and repair of the Common Area, whether
or not such Common Area has then been conveyed to the Association pursuant to
this Declaration, and regardless of whether such costs are incurred by Declarant or
Builder. All Maintenance Costs incurred by Declarant or Builder shall be
reimbursed by the Association within ten (10) days of the Association's receipt of
an invoice from the party incurring such costs.
12
(c)Control. The Association, subject to the rights of Declarant and the Owners set
forth in this Declaration, shall be responsible for the exclusive management and
control of the Common Areas and all improvements thereon and, shall keep the
Common Areas in good, clean, attractive and sanitary condition, order, and repair.
(d)No Permanent Structures. Except for underground utility facilities, and except as
provided in this Declaration, no permanent improvements shall be made to or
installed on the Common Area other than lighting, seating, entry walls, walkways,
paved paths, planting structures, gazebo structures, and fountains or other
non-recreational water features. The use of the Common Area shall be subject to
rules and regulations adopted by the Board of Directors which are not inconsistent
with the provisions of this Declaration.
(e)Delegation of Use. Any Member may delegate its right of enjoyment to the
Common Area and facilities to the members of its immediate household, its tenants
and/or its contract purchasers who reside on the Member's Lot. However, by
accepting a deed to such Lot, each Owner, for itself, individually, covenants that (i)
every rental agreement with respect to the Lot shall contain specific conditions
which require the tenant thereunder to abide by all Association covenants, rules
and regulations, without exception, (ii) each such tenant will be provided, prior to
the execution of such lease, a complete set of all Association covenants, rules and
regulations, and (iii) the Owner shall comply with the requirements of Section 6.20,
below.
(f)Damage or Destruction by Owner. In the event any Common Area is damaged or
destroyed by an Owner or any of his guests, tenants, licensees, agents, members of
his family, or any other Person having or gaining access to the Owner's Lot, such
Owner authorizes the Association to repair said damaged area, and an amount equal
to the costs incurred to effect such repairs shall be assessed against such Owner as
a Special Assessment and shall constitute a lien upon the Lot of said Owner until
paid in full. The Association shall repair said damaged area in a good and
workmanlike manner in conformance with the original plans and specifications of
the area involved, or as the area may have been modified or altered subsequently
by the Association in the discretion of the Association.
(g)Density of Use. Declarant expressly disclaims any warranties or representations
regarding the density of use of the Common Areas or any facilities located thereon.
ARTICLE V
ASSESSMENTS
Section 5.1 Creation of the Lien and Personal Obligation for Assessments. Each Owner
of a Lot covenants and agrees that, by acceptance of a deed therefor, whether or not it shall be so
expressed in any such deed or other instrument of conveyance, to pay to the Association: (a)
Regular Assessments, (b) Special Assessments, (c) Working Capital Assessments, (d) Resale
13
Assessments, and any other amounts as may be provided for hereunder to be due from any Owner
in connection with his ownership of a Lot. Such assessments are to be established and collected as
hereinafter provided. The Association's Regular Assessments, Special Assessments, Working
Capital Assessments and Resale Assessments, together with interest thereon, late fees (as
contemplated in Section 5.6(c) below) and costs of collection thereof, as hereinafter provided, shall
be assessed against each applicable Owner's Lot and shall be a continuing lien upon the Lot against
which each assessment is made. Each such assessment, together with interest, late fees, collection
costs, and reasonable attorneys' fees, shall also be the personal obligation of the person who was
the Owner of such Lot at the time the assessment became first due. The Regular Assessments,
Special Assessments, Working Capital Assessments and Resale Assessments, when assessed upon
resolution of the Board of Directors for each year, shall become a lien on each Lot in the amount
of the entire Regular Assessment, Special Assessment, Working Capital Assessments or Resale
Assessment, eventhough the Regular Assessments and Special Assessments shall be payable in
equal installments collected on a monthly or quarterly basis as determined by the Board of
Directors.
Section 5.2 Purpose of Assessment. The assessments levied by the Association shall be
used to promote the recreation, health, safety and welfare of the residents and Owners of the
Property, and for the improvement, maintenance and landscaping of the Common Area, including
but not limited to the payment of taxes, construction of improvements and maintenance of services,
facilities, irrigation/sprinkler systems, trees, lawns, shrubbery and other plantings, and devoted to
these purposes or related to the use and enjoyment of the Common Area or other property which
the Association has the obligation to maintain as the Board of Directors may determine to be
appropriate. In addition, the assessments levied by the Association shall be used to (i) pay the
premiums and other costs related to the Structure Insurance (but not any deductibles), and (ii)
perform the Exterior Maintenance.
Section 5.3 Annual Accounting. Annually, after the close of each fiscal year of the
Association and prior to the date of the annual meeting of the Association next following the end
of such fiscal year, the Board of Directors shall cause to be prepared and furnished to each Owner
a financial statement, which statement shall show all receipts and expenses received, incurred and
paid during the preceding fiscal year. Any costs charged to the Association for the preparation of
said statements shall be a Common Expense.
Section 5.4 Proposed Annual Budget. Subsequent to the Authority Transfer Date, and
on or before the date of the annual Budget Meeting, the Board of Directors shall cause to be
prepared a proposed annual budget for the next ensuing fiscal year that: (i) estimates the total
amount of the Common Expenses for such next ensuing fiscal year; (ii) estimates the total amount
of the revenue the Association expects to receive during such next ensuing fiscal year, including
Regular Assessments; and (iii) estimates the amount of surplus or deficit at the end of the then
current fiscal year. Following the completion of such a budget for a particular fiscal year and prior
to its corresponding Budget Meeting, the Association shall either (i) furnish a copy of such
proposed budget to each Owner, or (ii) notify each Owner that the proposed budget is available
upon request at no additional charge to that Owner. At the same time, the Association shall provide
each Owner with a written notice of the amount of any increase or decrease in the Regular
Assessment payable by the Owners that would occur if the proposed annual budget is approved.
14
The annual budget shall be submitted to the Owners at the Budget Meeting for adoption and, if so
adopted, shall be the basis for the Regular Assessments for the next ensuing fiscal year. At such
Budget Meeting, the budget may be approved in whole or in part or may be amended in whole or
in part by a majority vote of the Owners. For purposes of this Budget Meeting, a member is
considered to be in attendance at the meeting if the member attends: (1) in person; (2) by proxy;
or (3) by any other means allowed under Indiana law or under the Declaration or these By-Laws.
However, in no event shall such meeting of the Owners be adjourned until an annual budget is
approved and adopted at such meeting, whether it be the proposed annual budget or the proposed
annual budget as amended. The annual budget, the Regular Assessments and all sums assessed by
the Association shall be established by using generally accepted accounting principles applied on
a consistent basis. The failure or delay of the Board of Directors to prepare a proposed annual
budget and to furnish a copy thereof to the Owners shall not constitute a waiver or release in any
manner of the obligations of the Owners to pay the Common Expenses as herein provided,
whenever determined. In the event there is no annual budget approved by the Owners as herein
provided for the current fiscal year, whether before or after the Budget Meeting, the Owners shall
continue to pay Regular Assessments based upon the last approved budget or, at the option of the
Board of Directors, Regular Assessments based upon one hundred and ten percent (110%) of such
last approved budget.
Section 5.5 Establishment of Regular Assessment. The Association must levy in each of
its fiscal years a Regular Assessment against each Lot. The amount of such Regular Assessment
shall be established by the Board of Directors, and written notice of the same shall be sent to every
Owner at least thirty (30) days in advance of the commencement of each Regular Assessment
period. Regular Assessments against each Lot shall be paid in advance, payable in monthly or
quarterly installments as directed by the Board. The initial Regular Assessment levied by the
Association for each Lot shall be adjusted according to the number of months remaining in the
period for which such initial assessment was levied. All payments of Regular Assessments and
Special Assessments shall be non-refundable, and all collections and funds held by the Association
on account thereof shall be appurtenant to and be applied for the benefit of the respective Lot. In
no event shall any Owner be due any rebate or credit from the Association upon resale or other
transfer or conveyance for prepaid Regular Assessments or Special Assessments.
Section 5.6 Regular Assessments.
Regular Assessments shall be against each Lot in accordance with the following terms and
provisions:
(a)Prior to January 1 of the year immediately following conveyance by Declarant of
the first Lot to an Owner other than Builder, the Regular Assessment shall not
exceed ___________________________________ Dollars ($_____.00) on a
monthly basis.
(b)After the initial year described in Section 5.6(a), above, the amount of the Regular
Assessment shall be determined as provided in Section 5.5, above.
15
(c)The Regular Assessment against each Lot shall be paid in monthly quarterly
installments as directed by the Board of Directors, each of which is paid in full in
advance by the due dates specified by the Board of Directors, the first of which due
date shall not be earlier than fifteen (15) days after the written notice of such
Regular Assessment is given to the Owners. Monthly or quarterly installments of
Regular Assessments shall be due and payable automatically on their respective
due dates without any notice from the Board of Directors or the Association, and
neither the Board of Directors nor the Association shall be responsible for providing
any notice or statements to Owners for the same. If an Owner fails to pay any
monthly or quarterly installment of any such Regular Assessment on or before the
due date established by the Board of Directors, a late fee as established by the Board
of Director, which in no event will be less than $25.00, will be added to the amount
due, and any such installment, together with such late fee, will be and remain,
immediately due and payable.
(d)Payment of the Regular Assessment shall be made to the Board of Directors or a
managing agent, as directed by the Board of Directors.
(e)The Regular Assessment for each fiscal year of the Association shall become a lien
on each separate Lot as of the first day of each fiscal year of the Association, even
though the final determination of the amount of such Regular Assessment may not
have been made by that date.
Section 5.7 Special Assessments. In addition to the Regular Assessment authorized
above, the Association may levy, in any assessment year, a Special Assessment applicable to that
year for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction,
repair or replacement of capital improvements upon the Common Area, including the fixtures and
personal property related thereto, or for any other specified purpose. Without limiting the
generality of the foregoing provisions, Special Assessments may be made by the Board of
Directors from time to time to pay for capital expenditures and to pay for the cost of any repair or
reconstruction of damage caused by fire or other casualty or disaster to the extent insurance
proceeds are insufficient therefor under the circumstances described in this Declaration. Except in
the case of damage or destruction caused by an Owner or any of his guests, tenants, licensees,
agents, members of his family, or any other Person having or gaining access to the Owner's Lot as
contemplated by Section 4.3(f), any such Special Assessment shall be levied against all of the Lots
which benefit from the construction, reconstruction, repair or replacement of capital improvements
giving rise to the Special Assessment, pro rata according to each Lot's benefit, as reasonably
determined by the Board of Directors, which determination shall be final. In the case of damage
or destruction caused by an Owner or any of his guests, tenants, licensees, agents, members of his
family, or any other Person having or gaining access to the Owner's Lot as contemplated by Section
4.3(f), the Special Assessment may be levied solely against that Owner. Notwithstanding the fact
that in some instances, this Declaration may provide that certain items of routine and ordinary
repair and maintenance should be performed by the Association, the Association shall nevertheless
retain the right to assess the costs thereof to any Owner or group of Owners as a Special
Assessment. To be effective, any such Special Assessment shall have the assent of at least two-
16
thirds (2/3) of the votes of the Board of Directors at a meeting of the Board of Directors duly called
for this purpose.
Notwithstanding the above, the Board may not enter into any contract that would result in
a Special Assessment or the increase in the existing Regular Assessment payable by the affected
Owners in the amount of more than Five Hundred Dollars ($500.00) per year for each affected
Owner unless: (1) the Board holds at least two (2) Association meetings of the Owners concerning
the contract; and (2) the contract is approved by the affirmative vote of at least two-thirds (2/3) of
the affected Owners. The Board shall give notice of the first such Association meeting to each
member of the Association at least ten (10) calendar days before the date the meeting occurs. The
provisions in this Section do not apply to a contract entered into by a Board that would resolve,
settle, or otherwise satisfy an act of enforcement against the Association for violating a state or
local law.
Section 5.8 Quorum for any Action Authorized Under Sections 5.6 or 5.7. Subsequent to
the Authority Transfer Date, and at the first calling of a meeting under Section 5.6 or Section 5.7
of this Article, the presence at the meeting of Members or proxies entitled to cast sixty percent
(60%) of all the votes with respect to each class of Members shall constitute a quorum. If the
required quorum does not exist at any such meeting, another meeting may be called subject to the
notice requirements set forth in Section 5.4 and Section 5.7 and subject further to applicable law,
and the required quorum at any such subsequent meeting shall be one-half (l/2) of the required
quorum at the preceding meeting. No such subsequent meeting shall be held more than sixty (60)
days following the preceding meeting.
Section 5.9 Working Capital Assessment. In addition to the Regular and Special
Assessments authorized above, the Association shall establish and maintain a working capital
fund. At the closing of the initial sale or other transfer of a Lot after the Dwelling Unit is
constructed thereon, to an Owner other than Declarant or Builder, the purchaser of such Lot shall
pay to the Association a working capital assessment in an amount equal to one-fourth (1/4th) of
the then current annual Regular Assessment for said Lot (a “Working Capital Assessment”), which
payment shall be non-refundable and shall not be considered as an advance payment of an
assessment or other charge owed to the Association with respect to such Lot. The Working Capital
Assessment shall be used as determined by Declarant in its sole and reasonable discretion, if prior
to the Authority Transfer Date, or the Association, after the Authority Transfer Date.
Section 5.10 Resale Assessment. In addition to the Regular, Special and Working Capital
Assessments authorized above, upon the sale of a Lot, including the Dwelling Unit thereon, by an
Owner other than Declarant or Builder, the transferor / seller shall pay to the Association a resale
assessment in the amount equal to one-half of one percent (0.5%) times the gross sales price of the
Lot, including the Dwelling Unit thereon (the “Resale Assessment”), which payment shall be non-
refundable and shall not be considered as an advance payment of an assessment or other charge
owed to the Association with respect to such Lot. The Resale Assessment shall be deposited into
the Replacement Reserve Fund, as hereinafter defined.
Section 5.11 Rate of Assessment. The Regular Assessment shall be fixed at a uniform rate
for all Lots, except for Lots owned by either Declarant or Builder. Except in the case of damage
17
or destruction caused by an Owner as contemplated by Section 4.3(f), and except for Lots owned
by either Declarant or Builder, the Special Assessments shall be fixed at a uniform rate for all Lots
which benefit from the construction, reconstruction, repair or replacement of capital improvements
giving rise to the Special Assessment, pro rata according to each Lot's benefit, as reasonably
determined by the Board of Directors, which determination shall be final. Notwithstanding the
foregoing or anything else contained herein, no Regular Assessments or Special Assessments or
other charges shall be owed or payable by Declarant or Builder with respect to any Lot or other
portion of the Property owned by Declarant or Builder while the same is owned by Declarant or
Builder, nor shall any such assessments or charges become a lien on any such Lot or other portion
of the Property owned by Declarant or Builder.
Section 5.12 Notice of Assessment and Certificate. Written notice of the Regular
Assessments and any Special Assessments shall be sent to every Member. The due dates for
payment of the Regular Assessments and any Special Assessments shall be established by the
Board of Directors. The Association shall, upon written demand by a Member at any time, furnish
a certificate in writing signed by an officer or authorized agent of the Association setting forth
whether the assessments on their respective Lot have been paid and the amounts of any outstanding
assessments. A reasonable charge may be made by the Board of Directors for the issuance of these
certificates, which charge shall be paid to the Board of Directors in advance by the requesting
Member. Such certificates shall be conclusive evidence of payment of any assessment therein
stated to have been paid.
Section 5.13 Remedies of the Association in the Event of Default. Each Owner shall be
personally liable for the payment of all Regular Assessments and Special Assessments against his
Lot. Where the Owner constitutes or consists of more than one Person, the liability of such Persons
shall be joint and several. If any assessment pursuant to this Declaration is not paid within thirty
(30) days after its initial due date, the assessment shall bear interest from the date of delinquency
at the rate charged by the Internal Revenue Service on delinquent taxes. In addition, in its
discretion, the Board of Directors may:
(a)impose the late fee set forth in Section 5.6(c), above;
(b)file a lien against the Lot of the defaulting Owner pursuant to Article 32.28.14 of
the Indiana Code, as the same may be modified from time to time;
(c)bring an action at law against the Owner personally obligated to pay the same
and/or foreclose the lien against the Lot, and interest, costs and reasonable
attorneys' fees of any such action shall be added to the amount of such assessment.
A suit to recover a money judgment for nonpayment of any assessment levied
pursuant to this Declaration, or any installment thereof, may be maintained without
perfecting, foreclosing or waiving the lien provided for herein to secure the same;
(d)suspend a Member's right to hold an office within the Association, and right to use
nonessential services offered by the Association, provided that access and the
provision of utilities to the Lot through the Common Area shall not be precluded.
A Member whose rights have been suspended in this manner, shall have no right to
18
any refund or suspension of his obligations to pay such assessments or any other
assessments becoming due for the duration of such suspension or otherwise;
(e)accelerate the due date of the unpaid assessment so that the entire balance shall
become immediately due, payable and collectible; and
(f)suspend a Member's voting rights if the Owner is more than six (6) months
delinquent in the payment of any assessment.
No Owner may waive or otherwise escape liability for the assessments provided for herein
by non-use of the Common Area or facilities, abandonment of its Lot, or the failure of the
Association or the Board of Directors to perform their respective duties.
In any action to foreclose the lien against a Lot pursuant to Section 5.12(c) above, the Owner
and any occupant of the Lot and Dwelling Unit which are the subject of such action shall be jointly
and severally liable for the payment to the Association of reasonable rental for such Lot and
Dwelling Unit, and the Board of Directors shall be entitled to the appointment of a receiver for the
purpose of preserving the Lot and Dwelling Unit and to collect the rentals and other profits
therefrom for the benefit of the Association to be applied to the unpaid Regular Assessments or
Special Assessments. The Board of Directors may, at its option, bring a suit to recover a money
judgment for any unpaid Regular Assessment or Special Assessment without foreclosing (and
without thereby being deemed to have waived) the lien securing the same. In any action to recover
any Regular Assessment or Special Assessment, or any other debts, dues or charges owed the
Association, whether by foreclosure or otherwise, the Board of Directors, for and on behalf of the
Association, shall be entitled to recover from the Owner of the respective Lot and Dwelling Unit
all of the costs and expenses incurred as a result of such action (including, but not limited to,
reasonable attorneys' fees) and interest upon all amounts due at the rate of twelve percent (12%)
per annum, which shall accrue from the date such assessments or other amounts become first due,
until the same are paid in full.
Section 5.14 Subordination of the Lien to Mortgages. The lien for the assessments provided
for herein shall be subordinate to the lien of any properly recorded first mortgage encumbering a
Lot. Notwithstanding anything contained in this Section 5.13 or elsewhere in this Declaration, any
sale or transfer of a Lot to a Mortgagee pursuant to a foreclosure of its mortgage or conveyance in
lieu thereof, or a conveyance to any person at a public sale in the manner provided by law with
respect to mortgage foreclosures, shall not extinguish the lien of any unpaid assessments (or
periodic installments, if applicable) which became due prior to such sale, transfer or conveyance,
and that the extinguishment of such lien shall not relieve the prior Owner from personal liability
therefor; and further provided, that any Person taking title to such Lot in the foregoing manner
shall have no right to use the non-essential services or amenities of the Property until such time as
all assessments due with respect to such Lot have been paid in full. No such sale, transfer or
conveyance shall relieve the Lot, or the purchaser thereof at such foreclosure sale, or the grantee
in the event of conveyance in lieu thereof, from liability for any assessments (or periodic
installments of such assessments, if applicable) thereafter becoming due or from the lien for such
assessments.
19
Section 5.15 Exempt Property. The following portions of the Property shall be exempt
from the assessments created by this Declaration: (a) those portions of the Property that are
dedicated to and accepted by a local public authority; and (b) the Common Area. Except as
otherwise provided in Section 5.10 and Section 5.17 hereof, no developed Lot devoted to dwelling
use shall be exempt from said assessments.
Section 5.16 Replacement Reserve Fund. The Association shall establish and maintain a
reserve fund (“Replacement Reserve Fund”) for the maintenance, repair and replacement of both
the Common Area and improvements located thereon and the Dwelling Units, as provided in this
Declaration, by the allocation and payment to such reserve fund of an amount to be designated
from time to time by the Board of Directors, which reserve fund shall be sufficient, in the sole
opinion of the Board of Directors, to accommodate such future maintenance, repair and
replacement and which shall be a component of the Regular Assessment. The Replacement
Reserve Fund (i) shall be conclusively deemed to be a Common Expense of the Association, (ii)
shall be maintained by the Association in a separate, interest bearing account or accounts with any
banking institution, the accounts of which are insured by any state or by any agency of the United
States of America as selected by the Board of Directors, and (iii) may be expended only for the
purpose of effecting (A) the replacement of the Common Area, major repairs to, replacement and
maintenance of any improvements within the Common Area, including but not limited to,
sidewalks, landscape improvements, street or common area lighting, equipment replacement, and
for start-up expenses and operating contingencies of a nonrecurring nature relating to the Common
Area, and (B) maintenance and repairs to Dwelling Units as set forth in this Declaration. The
Association may establish such other reserves for such other purposes as the Board of Directors
may from time to time consider necessary or appropriate. The proportional interest of any Member
in any such reserves shall be considered an appurtenance of the Member's Lot and shall not be
separately withdrawn, assigned or transferred or otherwise separated from the Lot to which it
appertains and shall be deemed to be transferred with such Lot.
Section 5.17 Books and Records. The Association shall provide Owners with financial
information regarding the operation of the Association as and to the extent required under the HOA
Act.
Section 5.18 Declarant and Builder Exemption. Notwithstanding anything in this
Declaration to the contrary, under no circumstances shall Declarant or Builder be required or
obligated to pay any Assessments, whether Regular Assessments, Special Assessments, or
Working Capital Assessments, or otherwise.
ARTICLE VI
USE RESTRICTIONS AND ARCHITECTURAL CONTROLS
Section 6.1 Residential Use. The Property shall be used exclusively for residential
purposes except as permitted under Section 6.28 hereof. Declarant reserves the right, pursuant to
a recorded subdivision or re-subdivision plat, to alter, amend, and change any Lot line or
subdivision plan or plat. No structure shall be erected, altered, placed or permitted to remain on
any Lot other than one (1) Dwelling Unit and appurtenant structures, approved by the Association
20
and appropriate Local Governing Authorities, for use solely by the occupant(s) of the Dwelling
Unit.
Section 6.2 Architectural Review Board Approval. No Structure shall be erected, placed,
painted, altered or externally modified or improved on any Lot unless and until (i) the plans and
specifications, including design, elevation, material, shape, height, color and texture, and a site
plan showing the location of all improvements with grading modifications, shall have been filed
with and approved in writing in all respects by the Architectural Review Board (as defined in
Article VII below) and, if required, by appropriate Local Governing Authorities; and (ii) all
construction permits have been obtained, if applicable or required. In addition, no item of personal
property, without regard to whether such item is fixed or attached or moveable, shall be erected or
placed forward of the front foundation line of any Dwelling Unit unless approved in writing by the
Architectural Review Board (as defined in Article VII). Further, notwithstanding any approval
given herein, the Architectural Review Board may revoke its approval as to any item of personal
property which is not fixed or attached at any time and for any or no reason, and an Owner shall
immediately remove any item of personal property which is not fixed or attached, which is placed
forward of the front foundation line of any Dwelling Unit upon request of the Architectural Review
Board, without regard to whether the Architectural Review Board may have previously given its
approval for such item of personal property. Section 6.35 of this Declaration sets forth certain
restrictions regarding alterations to Dwelling Units, and nothing in this Section 6.2 or any other
provision of this Declaration may be construed so as to give the Architectural Review Board the
power to grant variances or otherwise waive the restrictions set forth in Section 6.35, below.
Section 6.3 Laundry. No clotheslines may be erected on any Lot, and no clothing, sheets,
blankets, rugs, laundry or wash shall be hung out, exposed, aired or dried on any portion of the
Property within public view.
Section 6.4 Sight Lines. No fence, wall, tree, hedge or shrub shall be maintained in such
a manner as to obstruct sight lines for vehicular traffic.
Section 6.5 Lot Maintenance. Each Owner shall, at all times, maintain its Lot and
Dwelling Unit and all appurtenances thereto free of debris or rubbish and in a state of neat
appearance from all exterior vantage points.
Section 6.6 Additions to Landscape Improvements. No tree, shrub, or other vegetation or
landscape improvement originally installed by Declarant or Builder shall be removed or altered
unless such item is dead or decayed and dangerous to human health, safety, or welfare, and the
removal has been approved in writing in advance by the Architectural Review Board, or removal
is ordered by a Local Governing Authority or by the Architectural Review Board to maintain
proper sightlines. No approval for removal of any trees or shrubs shall be granted by the
Architectural Review Board unless appropriate provisions are made for replacing the removed
trees or shrubs. Each Owner is permitted to add to the landscape of his Lot certain landscaping
features within approved flowerbeds; however, prior to adding any such landscape, the Owner of
such Lot must submit a written landscape plan to the Architectural Review Board for its review
and obtain the written approval of such Architectural Review Board.
21
Section 6.7 Nuisance. No noxious or offensive activity shall be carried on or permitted to
be carried on upon the Property, nor shall anything be done or placed thereon which is or may
become an annoyance or nuisance to Ambleside Towns. Nothing shall be done or kept or permitted
to be done or kept by an Owner in any Dwelling Unit, or on any Lot, or on any of the Common
Areas, which will cause an increase in the rate of insurance paid by the Association or any other
Owner. No Owner shall permit anything to be done or kept in his Dwelling Unit or on his Lot
which will result in a cancellation of insurance on any part of the Common Area or any other
Owner, or which would be a violation of any law or ordinance or the requirements of any insurance
underwriting or rating bureau. No Dwelling Unit or Lot shall be used in any unlawful manner or
in any manner which might cause injury to the reputation of Ambleside Towns or which might be
a nuisance, annoyance, or inconvenience, or which might cause damage, to other Owners and
occupants of Dwelling Units or neighboring property, including, without limiting the generality of
the foregoing, noise by the use of any musical instrument, radio, television, loud speakers,
electrical equipment, amplifiers or other equipment or machinery. No exterior lighting on a Lot
shall be directed outside the boundaries of the Lot. No outside toilets shall be permitted on any Lot
(except during a period of construction and then only upon obtaining prior written consent of the
Architectural Review Board), and no sanitary waste or other wastes shall be permitted to be
exposed.
Section 6.8 Signs. Permitted signs shall include only those professionally
constructed signs which advertise a home on a Lot for sale by a licensed and registered real estate
broker/company, and which are non-illuminated and less than or equal to six (6) square feet in size
(“Permitted Signs”). With the exception of Permitted Signs, all signs including, but not limited to
those advertising a garage sale or a Lot “For Lease”, must be approved by the Architectural Review
Board before being placed upon any Lot or Common Area, or displayed from a Dwelling Unit.
No more than one sign (including a Permitted Sign) may be displayed on a Lot or from a Dwelling
Unit at any one time. In addition, no more than one sign (including a Permitted Sign) may be
displayed in Ambleside Towns by an entity owning multiple Lots. All Permitted Signs advertising
a Lot for sale shall be removed within three (3) business days from the date of the conveyance of
the Lot or the execution of the lease agreement, as applicable. Signs advertising a Lot for “Rent to
Own”, or something similar, are expressly prohibited and may not be placed on any Lot or
displayed from a Dwelling Unit constructed thereon. The Declarant and Builder are expressly
exempt from the requirements of this Section 6.8 and may post any signs in Common Areas and
Lots owned by either Declarant or Builder, as it deems necessary or appropriate.
Section 6.9 Animals. No domesticated or wild animal shall be kept or maintained on
any Lot, except that no more than three (3) common household pets such as dogs and cats may be
kept or maintained, provided that they are not kept, bred or maintained for commercial purposes
and do not create a nuisance or annoyance to surrounding Lots or Ambleside Towns and are kept
in compliance with applicable laws and ordinances of the Local Governing Authority. Any vicious
animals and dogs that bark excessively shall constitute a nuisance for purposes of these
Restrictions. Pets will not be permitted outside of a Dwelling Unit unless on a leash or contained
within an underground electric fence, as provided in Section 6.14, and any Owner walking a pet
within Ambleside Towns or on any Common Area will immediately clean up any solid animal
waste and properly dispose of the same. Failure to remove any solid animal waste shall subject the
Owner to a fine the minimum of which shall be $50.00 per occurrence as determined by the Board
22
of Directors but in no event less than the cost of removal and any remediation. Law enforcement
and animal control personnel shall have the right to enter the Property to enforce local animal
control ordinances. No dog houses shall be permitted on any Lot. Household pets permitted by
this Section 6.9 may not be placed in a dog run or other comparable facility on a Lot and no dog
may be permitted outside without supervision by an adult for any consecutive period of time in
excess of an hour.
Section 6.10 Trash Storage. Trash shall be collected and stored in sealed trash receptacles
only and not solely in plastic garbage bags. Trash and garbage receptacles shall not be permitted
to remain in public view and shall remain inside of each Owner's garage except on days of trash
collection, and except for those receptacles designed for trash accumulation located in the
Common Area. No accumulation or storage of litter, new or used building materials, or trash of
any kind shall be permitted on the exterior of any Dwelling Unit. No rubbish, garbage or other
waste shall be allowed to accumulate on any Lot or Common Area. No homeowner or occupant
of a Lot shall burn or bury any garbage or refuse on any Lot or Common Area.
Section 6.11 Antennae Systems. To the extent not inconsistent with federal and state law,
exterior television and other antennae, including satellite dishes, are prohibited, unless approved
in writing by the Architectural Review Board, and any submission for such approval shall
otherwise comply with the requirements of the procedures for approval by the Architectural
Review Board. The Architectural Review Board shall adopt rules for the installation of such
antennae and/or satellite systems, which rules shall require that antennae and satellite dishes be
placed as inconspicuously as possible and only when fully screened from public view on the rear
and above the eave line of any Dwelling Unit. To the extent not inconsistent with federal law,
satellite dishes will not exceed eighteen (18) inches in diameter. It is the intent of this provision
that the Architectural Review Board shall be able to strictly regulate exterior antennae and satellite
dishes to the fullest extent of the law and should any regulations adopted herein or by the
Architectural Review Board conflict with federal law, such rules as do not conflict with federal
law shall remain in full force and effect.
Section 6.12 Painting and Exterior Design. No Owner shall cause or permit any
alterations or changes of the exterior design and/or color scheme of any Dwelling Unit, Structure
or building including, but not limited to, the exterior paint color scheme and roof shingle color
scheme and materials. No person shall paint the exterior of any building, or portion thereof, except
contractors and agents employed by Declarant or the Association.
Section 6.13 Finished Exteriors. No Structure shall be permitted to stand with its exterior
in an unfinished condition for longer than six (6) months after the commencement of construction.
In the event of fire, windstorm or other damage, the exterior of a Structure shall not be permitted
to remain in a damaged condition for longer than three (3) months, unless expressly excepted by
the Board of Directors in writing. If the Board of Directors determines that any Structure or
Dwelling Unit is not in compliance with the provisions of this Section 6.13, the Association shall
send written notice to the Owner of that Structure or Dwelling Unit identifying, with reasonable
specificity, the items in need of repair or maintenance (a “Repair Notice”). If an Owner fails to
comply with the provisions of this Section 6.13 after its receipt of such a Repair Notice, the
Association shall be entitled to enforce the provisions of this Section 6.13 in the manner
23
contemplated under Section 11.1(1), below, and in any other manner permitted hereunder or by
applicable law.
Section 6.14 Fences. No fence or similar enclosure shall be erected or built on the Property
except for (a) any fencing constructed by Declarant or Builder, and (b) underground electric fences
which are designed to restrict the movement of pets, which are expressly approved.
Section 6.15 Vehicles. No inoperable, junk, unregistered or unlicensed vehicle shall be
kept on the Property. No portion of the Property, including any garage, shall be used for the repair
of a vehicle. Section 1.B. of the Zoning Commitments attached as Exhibit B to this Declaration
with the heading Overnight On-Street Parking describes certain restrictions related to the parking
of motor vehicles within the public right-of-way of all public streets. Each Owner must comply
with the Zoning Commitments.
Section 6.16 Commercial Vehicles. Except upon the prior written approval of the
Architectural Review Board, no commercial or industrial vehicle, including, but not limited to,
moving vans, trucks, tractors, trailers, vans, wreckers, tow trucks, hearses and buses, shall be
parked overnight or regularly or habitually parked on the Property, nor shall any such vehicle be
located on the Property for longer than twenty-four (24) hours except to the extent in use for
ongoing work to a Dwelling Unit.
Section 6.17 Recreational Vehicles. No recreational vehicles or equipment, including, but
not limited to, boats, boating equipment, jet-skis, wave runners, travel trailers, fuel tanks, camping
vehicles or camping equipment, shall be parked on the Property without the prior, written approval
of the Architectural Review Board, as to location, size, screening and other criteria deemed to be
relevant by the Architectural Review Board. The Association shall not be required to provide a
storage area for these vehicles.
Section 6.18 Towing. The Board of Directors shall have the right, but not the obligation,
to tow any vehicle parked or kept in violation of the covenants contained within this Article VI,
upon twelve (12) hours' written, telephonic or verbal notice and at the vehicle owner's sole expense,
subject to compliance with all applicable laws.
Section 6.19 Garage Usage. In addition to the restriction set forth in Section 6.15, above,
any conversion of any garage that will preclude the parking of vehicles within that garage is
prohibited. Owners shall keep and maintain their garages at all times in a manner that will permit
the usage of such garage for parking of passenger automobiles, vans and/or trucks.
Section 6.20 Renting and Leasing. Section 1.A. of the Zoning Commitments attached as
Exhibit B to this Declaration with the heading Renting and Leasing describes restrictions related
to the renting and leasing of residential units, which includes all Dwelling Units. Each Owner
must comply with the Zoning Commitments.
Section 6.21 Initial Construction and Marketing. Declarant and Builder may, during its
construction and/or sales period, erect, maintain and operate real estate sales and construction
offices, model homes, displays, signs and special lighting on any part of the Property and on or in
24
any building or Structure now or hereafter erected thereon and shall not be bound by the provisions
of this Article to the extent application thereof would delay, hinder or increase the cost of
construction and/or marketing of Dwelling Units for sale in Ambleside Towns by Declarant.
Section 6.22 Garages. Garage doors shall remain closed except when entering and exiting
or otherwise accessing the garage.
Section 6.23 Storage Facilities. No permanent, temporary or portable storage facilities shall
be permitted on any Lot, except for portable storage facilities that are located wholly within the
Owner's garage area and are removed within twenty-four (24) hours. No portable storage facility
is permitted in any driveway, Common Area, or public right-of-way.
Section 6.24 Awnings. Except with respect to Lots upon which Declarant or Builder
maintain a sales office or model home, or as otherwise approved by the Architectural Review
Board, no metal, wood, fabric, fiberglass or similar type material awnings (including retractable
awnings) or patio covers will be permitted anywhere on the Property.
Section 6.25 Pools and Hot Tubs. No pools shall be permitted on any Lot. Hot tubs will
only be permitted upon the approval of the Architectural Review Board, and in all instances shall
include screening.
Section 6.26 Play Equipment. No children’s play equipment such as playhouses,
sandboxes, swing and slide sets, jungle gyms, and trampolines, shall be permitted on any Lot.
Section 6.27 Basketball Goals. No basketball goals, hoops, or backboards shall be
permitted on any Lot.
Section 6.28 Business Use. No garage sale, moving sale, rummage sale or similar activity
and no trade or business may be conducted in or from any Lot, except that an Owner or occupant
resident on a Lot may conduct business activities within a Dwelling Unit so long as: (a) the
existence or operation of the business activity is not apparent or detectable by sight, sound or smell
from outside the Dwelling Unit; (b) no sign or display is erected that would indicate from the
exterior that the Dwelling Unit is being utilized in part for any purpose other than that of a
residence; (c) no commodity is sold upon the premises; (d) no person is employed other than a
member of the immediate family residing in the Dwelling Unit; (e) no manufacture or
assembly operations are conducted; (f) the business activity conforms to all zoning requirements
for the Property; (g) the business activity does not involve persons coming onto the Property who
do not reside in the Property or door-to-door solicitation of residents of the Property; and (h) the
business activity is consistent with the residential character of the Property and does not constitute
a nuisance, or a hazardous or offensive use, or threaten the security or safety of other residents of
the Property, as may be determined in the sole discretion of the Board of Directors. The terms
“business” and “trade”, as used in this provision, shall be construed to have their ordinary,
generally accepted meanings, and shall include, without limitation, any occupation, work or
activity undertaken on an ongoing basis which involves the provision of goods or services to
persons other than the provider's family and for which the provider receives a fee, compensation,
or other form of consideration, regardless of whether: (i) such activity is engaged in full or part-
25
time; (ii) such activity is intended to or does generate a profit; or (iii) a license is required therefor.
Notwithstanding the above, (i) the leasing of a Lot or Dwelling Unit shall not be considered a trade
or business within the meaning of this Section 6.28, and (ii) no Dwelling Unit may be used for the
operation of the following businesses or trades, regardless of whether licensed or otherwise: (A) a
daycare or childcare business, (B) a beauty, hair, or nail salon, (C) a spa of any kind, or (D) a retail
business. This Section 6.28 shall not apply to any activity conducted by Declarant or Builder with
respect to the sale of the Property or the use of any Dwelling Units which Declarant or Builder
own within the Property for such activities.
Section 6.29 Landscaping of Common Areas. No Owner shall be allowed to plant trees,
landscape or do any gardening in any of the Common Areas, except with prior, express written
permission from the Board of Directors.
Section 6.30 Declarant’s and Builder’s Use. Notwithstanding anything to the contrary
contained herein or in the Articles or Bylaws, Declarant and Builder shall have, until the Authority
Transfer Date, the right to use and maintain any Lots and Dwelling Units owned by Declarant or
Builder and other portions of the Property (other than individual Dwelling Units and Lots owned
by Persons other than Declarant or Builder), as Declarant or Builder may deem advisable or
necessary in its sole discretion to aid in the sale of Lots and the construction of Dwelling Units, or
for the conducting of any business or activity attendant thereto, or for the construction and
maintenance of Common Areas, including, but not limited to, model Dwelling Units, storage areas,
construction yards, signs, construction offices, sales offices, management offices and business
offices. Declarant and Builder shall have the right to relocate any or all of the same from time to
time as it desires. At no time shall any of such facilities so used or maintained by Declarant or
Builder be or become part of the Common Areas, unless so designated by Declarant, and Declarant
shall have the right to remove the same from the Property at any time.
Section 6.31 Non-applicability to Association. Notwithstanding anything to the
contrary contained herein, the covenants and restrictions set forth in this Article VI shall not apply
to or be binding upon the Association in its ownership, management, administration, operation,
maintenance, repair, replacement and upkeep of the Common Areas to the extent the application
thereof could or might hinder, delay or otherwise adversely affect the Association in the
performance of its duties, obligations and responsibilities as to the Common Areas.
Section 6.32 Additional Rules and Regulations. The Association shall have the
authority to adopt such rules and regulations regarding this Article VI as it may from time to time
consider necessary or appropriate.
Section 6.33 Personal Property Forward of the Front Foundation Line of a Dwelling Unit.
No items of personal property may be permitted forward of the front foundation line of a Dwelling
Unit. Notwithstanding the foregoing, exterior pots for flowers and plants not exceeding 24 inches
in height shall be permitted provided that they are (1) weather resistant, (2) properly maintained,
and (3) harmonious with the exterior colors and architecture of the Dwelling Unit.
Section 6.34 Owner Maintenance, Owner Yard Maintenance, and Owner Damage
Repairs. Each Owner shall be responsible for performing the Owner Maintenance to its Dwelling
26
Unit at such Owner’s sole cost and expense. Notwithstanding the foregoing, to the extent that any
Utility Line Maintenance or Mechanicals Maintenance would also qualify as Shared Party Wall
Maintenance, the provisions of Section 10.3 of this Declaration shall control. Each Owner shall
be responsible for performing the Owner Yard Maintenance to its Lot at such Owner’s sole cost
and expense (The Association shall perform the “Association Yard Maintenance” as defined in
Article I above.). Each Owner shall perform all Owner Maintenance and Owner Yard Maintenance
so as to keep its Dwelling Unit and Yard in good condition and repair. Each Owner shall be
responsible for performing Owner Damage Repairs at such Owner’s sole cost and expense. The
Association shall have the authority to adopt such standards, rules and regulations regarding
Owner Maintenance, Owner Yard Maintenance, and Owner Damage Repairs as it may from time
to time consider necessary or appropriate, and each Owner shall comply with any standards, rules
and regulations so adopted. If the Board of Directors determines that any Yard or Dwelling Unit
is not in compliance with the provisions of this Article VI, the Association shall send written notice
to the Owner of that Dwelling Unit or Yard identifying, with reasonable specificity, the items in
need of repair or maintenance (a “Repair Notice”). If an Owner fails to comply with the provisions
of this Section 6.34 after its receipt of such a Repair Notice, the Association shall be entitled to
enforce the provisions of this Section 6.34 in the manner contemplated under Section 11.1(k),
below, and in any other manner permitted hereunder or by applicable law
Section 6.35 No Additions or Enclosures. After a Dwelling Unit has been constructed
pursuant to the plans and specifications approved by the Architectural Review Board pursuant to
Section 6.2, above, and otherwise in compliance with the requirements of this Declaration, that
Dwelling Unit may not be altered so as to add any additional enclosed space to that Dwelling Unit
by constructing an addition to that Dwelling Unit. An Owner may, however, enclose a covered
patio area upon obtaining the prior approval of the Architectural Review Board as provided in
Section 6.2 hereof.
ARTICLE VII
ARCHITECTURAL REVIEW BOARD
Section 7.1 The Architectural Review Board. As used herein, the term “Architectural
Review Board” will mean and refer to a group of individuals who will administer the duties
described in Section 7.4 below. During the Development Period, the Architectural Review Board
shall consist solely of Declarant. Upon the expiration of the Development Period, the number of
members of the Architectural Review Board shall automatically be increased to equal the number
of members on the Board of Directors, and the individuals who are members of the Board of
Directors shall automatically be deemed to be the members of the Architectural Review Board,
without the necessity for further action. The term of membership for each member of the
Architectural Review Board will be coterminous with the term of such individual's membership
on the Board of Directors.
Section 7.2 Removal and Vacancies. After the expiration of the Development Period, a
member of the Architectural Review Board may only be removed in the event such member is
removed from or otherwise ceases to be a member of the Board of Directors. Appointments to fill
27
vacancies in unexpired terms on the Architectural Review Board shall be made in the same manner
as members are appointed or elected to the Board of Directors.
Section 7.3 Officers. At the first meeting of the Architectural Review Board (after the
expiration of the Development Period) following each annual meeting of Members, the
Architectural Review Board shall elect from among themselves a chairperson, a vice-chairperson
and a secretary who shall perform the usual duties of their respective offices.
Section 7.4 Duties. The Architectural Review Board shall regulate the external design and
appearance of the Property and the external design, appearance and location of the improvements
thereon in such a manner so as to preserve and enhance property values and to maintain
harmonious relationships among Structures and the natural vegetation and topography in
Ambleside Towns. During the Development Period, the Architectural Review Board shall regulate
all initial construction, development and improvements on the Property and all modifications and
changes to existing improvements on the Property. In furtherance thereof, the Architectural
Review Board shall:
(a)review and approve or disapprove written applications of Owners for proposed
alterations or additions to Lots;
(b)periodically inspect the Property for compliance with adopted, written architectural
standards and approved plans for alteration;
(c)adopt and publish architectural standards subject to the confirmation of the Board
of Directors;
(d)adopt procedures for the exercise of its duties; and
(e)maintain complete and accurate records of all actions taken by the
Architectural Review Board.
No request for approval by the Architectural Review Board or any committee thereof will
be reviewed or otherwise considered unless submitted in writing by the Owner requesting such
approval. In addition, prior to making a submission to the Architectural Review Board, an Owner
shall attempt to obtain a written consent or approval of the proposed submission from the Owners
of the Dwelling Units located adjacent the Dwelling Unit that is the subject of such submission
(for purposes of this paragraph, adjacent Dwelling Units shall be those on either side of the subject
Dwelling Unit when viewing it from the street). The Owner shall then include with its submission
to the Architectural Review Board either (i) originals of such consents or approvals, as signed by
the Owners of the adjacent Dwelling Units, (ii) a written statement signed by the applicant stating
the efforts made to obtain such a consent or approval from the Owners of the adjacent Dwelling
Units, or (iii) a combination of items (i) and (ii), if applicable. Any submission that lacks the
foregoing shall be considered incomplete and the Architectural Review Board shall have no
obligation to review such submission. Approval by the Architectural Review Board of a correctly
filed application shall not be deemed to be an approval by Local Governing Authorities nor a
waiver of the Association's right to require an applicant to obtain any required approvals from any
28
such Local Governing Authorities or to otherwise comply with applicable laws, rules, regulations
and local ordinances. No approval by the Architectural Review Board or any committee thereof
shall be effective unless in writing and signed by all of the members of the Architectural Review
Board or the applicable committee whose approval is required hereunder.
Section 7.5 Failure to Act. Failure of the Architectural Review Board, any
committee thereof or the Board of Directors to respond to any request for approval, enforce the
architectural standards contained in this Declaration or to notify an Owner of noncompliance with
architectural standards or approved plans for any period of time shall not constitute a waiver by
the Architectural Review Board, any committee thereof or the Board of Directors of any provision
of this Declaration requiring such approval hereunder or otherwise prevent the Architectural
Review Board, any committee thereof or the Board of Directors from enforcing this Declaration
at any later date. If approval has not been issued in writing within thirty (30) days after submission
of an application to the Board of Directors, any committee thereof or the Architectural Review
Board, then any such request shall be deemed to be denied.
Section 7.6 Discretion. Declarant intends that the members of the Architectural
Review Board, and all committees thereof, exercise discretion in the performance of their duties,
and every Owner by the purchase of a Lot shall be conclusively presumed to have consented to
the exercise of discretion by the members of the Architectural Review Board and such committees.
Section 7.7 Enforcement. Any exterior addition, change or alteration made without a
written application to, and prior written approval of, the Architectural Review Board, shall be
deemed to be in violation of this Declaration and the Board of Directors shall have the right to
require such exterior to be immediately restored to its original condition at the offending Owner's
sole cost and expense.
Section 7.8 Appeal. Any aggrieved party may appeal a decision of the Architectural
Review Board to the Board of Directors by giving written notice of such appeal to the Association
or any member of the Board of Directors within twenty (20) days of the adverse ruling.
Section 7.9 Liability of the Architectural Review Board, Declarant and Association.
Neither the Architectural Review Board, nor any committee nor any agent thereof, nor Declarant,
nor the Association, shall be liable in any way for any costs, fees, damages, delays, or any charges
or liability whatsoever relating to the approval or disapproval of any plans submitted to it, nor shall
the Architectural Review Board nor any committee thereof, nor any agent thereof, nor Declarant,
nor the Association, be responsible in any way for any defects in any plans, specifications or other
materials submitted to any of them, or for any defects in any work done according thereto. Further,
the Architectural Review Board, its committees, Declarant, and the Association make no
representations or warranties as to the suitability or advisability of the design, engineering, method
of construction involved, or materials to be used. Each Owner should seek professional
construction advice, engineering, and inspections with respect to such Owner's Lot, at such
Owner's sole cost and expense, prior to proposing plans for approval by the Architectural Review
Board, its committees or the Board of Directors.
29
Section 7.10 Inspection. The Architectural Review Board and Declarant may, but shall not
be obligated to, inspect work being performed on a Lot or Dwelling Unit to assure compliance
with the Restrictions, the restrictions contained in any plat of the Property and applicable
regulations. However, neither the Architectural Review Board, nor any committee nor member
thereof, nor Declarant, nor any agent or contractor employed or engaged by any of the foregoing,
shall be liable or responsible for defects or deficiencies in any work inspected or approved by any
of them, or on behalf of any of them. Further, no such inspection performed or approval given by
or on behalf of the Architectural Review Board, any committee thereof or Declarant shall
constitute a warranty or guaranty of the work so inspected or approved.
Section 7.11 Declarant Exemption. Notwithstanding anything in this Declaration to the
contrary, under no circumstances shall the Declarant be required or obligated to obtain the consent
of the Architectural Review Board, whether required under Article VI or this Article VII.
ARTICLE VIII
EASEMENTS
Section 8.1 General Easement Rights. Declarant hereby grants a non-exclusive
blanket easement over, across, through and under the Property to the Association, its directors,
officers, agents and employees, to any manager employed by or on behalf of the Association, and
to all police, fire, ambulance and all other emergency personnel and government, to enter upon the
Property, in the exercise of the functions provided for by this Declaration, Articles, Bylaws and
rules and regulations of the Association, and in the event of emergencies or in the performance of
governmental functions. Declarant further grants a non-exclusive blanket easement over, across,
through and under the Property to utility service providers for ingress, egress, installation,
replacement, repair and maintenance of underground utility and service lines and systems,
including, but not limited to, water, sewer, gas, telephones, electricity, television, cable or
communication lines and systems. By virtue of this easement it shall be expressly permissible for
Declarant or the utility service provider to install, maintain and repair facilities and equipment on
the Property if such utility service provider promptly restores the disturbed area, if any, as nearly
as is practicable to the condition in which it was found, provided, however, that no sewers,
electrical lines, water lines, or other utility service lines or facilities for such utilities may be
installed or relocated except as proposed and approved in advance and in writing by Declarant or,
after the Authority Transfer Date, the Association. Should any utility providing a service to the
Property request a specific easement by separate recordable document, Declarant or the
Association shall have the right to grant such easement with respect to the Property without
conflicting with the terms hereof. This blanket easement shall in no way affect any other recorded
easements on the Property, shall be limited to improvements as originally constructed, and shall
not cover any portion of a Lot upon which a Dwelling Unit has been constructed.
Section 8.2 Limitation on General Easement Rights. The rights accompanying the
easements provided for in Section 8.1 of this Article VIII shall, except in the event of an
emergency, be exercised only during reasonable daylight hours and then, whenever practicable,
only after advance notice to any Owner or tenant directly affected.
30
Section 8.3 Plat Easements. In addition to such easements as are or may hereafter be
created elsewhere in this Declaration and as may have been or may hereafter be created by
Declarant pursuant to written instruments recorded in the Recorder's Office, all Lots are or shall
be subject to drainage easements, sewer easements, other utility easements and Common Area
access easements, which easements may be granted by Declarant (prior to the Authority Transfer
Date) or the Association (from and after the Authority Transfer Date), as applicable, which grants
may be made separately or in any combination thereof and which grants shall benefit Declarant,
Builder, Owners, the Association, the Architectural Review Board and any committee thereof, and
public utility companies or governmental agencies, as follows:
(a)Drainage Easements (designated as “D.E.” on the Plat) (each, a “Drainage
Easement”) are hereby granted for the mutual use and benefit of Declarant, Builder
and the Owners and are intended to provide paths and courses for area and local
storm drainage, either overland or in adequate underground conduit, to serve the
needs of Ambleside Towns and adjoining ground and/or public drainage systems.
Under no circumstance shall said easements be blocked in any manner by the
construction or reconstruction of any improvement, nor shall any grading restrict,
in any manner, the water flow. The drainage easements and facilities are subject to
construction or reconstruction to any extent necessary to obtain adequate drainage
at any time by any governmental authority having jurisdiction over drainage, or by
Declarant, the Association or the Architectural Review Board; provided, however,
that Declarant, the Association and the Architectural Review Board shall have no
duty to undertake any such construction or reconstruction. The Owner of each Lot,
by acceptance of a deed thereto, consents to the temporary storage (detention) of
storm water within the Drainage Easement on such Owner's Lot.
(b)Sewer Easements (designated as “S.E.” on the Plat) may be granted for the use and
benefit of the local governmental agency or public utility company having
jurisdiction over any storm and sanitary waste disposal system designed to serve
Ambleside Towns, for the purpose of installation and maintenance of sewers that
are a part of said system.
(c)Utility Easements (designated as “U.E.” on the Plat) may be granted for the benefit
of Declarant, Builder, the Association and all public or municipal utility companies,
not including transportation companies, for the installation, maintenance and repair
of mains, ducts, poles, lines and wires, and other facilities related to the specific
utility.
(d)Landscape Maintenance Access Easements – There may be strips of ground, as may
be designated on a Plat of all or any part of the Property, marked Landscape
Maintenance Access Easement ( “L.M.A.E.”), which are hereby created over and
across Lots as areas for installation and maintenance of landscaping, earth mounds,
screening material, fencing, walls, neighborhood and community identification
signs, directories, lighting, irrigation systems, walking paths and other
improvements, and for ingress and egress thereby by the Declarant and the
Association, and/or their assigns. The Owner of any Lot which is subject to the
31
L.M.A.E. shall be required to keep the portion of his Lot which is subject to such
easement free from obstructions so that access will not be unimpeded.
All easements described in this Section 8.3 shall include the right of ingress and egress for
the exercise of the respective rights granted. No structure, including fences, or any trees or shrubs
shall be installed within any drainage, sewer or utility easement if such structure would (i)
materially interfere with the utilization of such easement for the purpose intended, (ii) violate any
applicable legal requirement, or (iii) violate the terms and conditions of any easement specifically
granted to a Person who is not an Owner by an instrument recorded in the Recorder's Office.
Notwithstanding the foregoing, Declarant may install structures, trees or shrubs in violation of the
foregoing restrictions and paved drives necessary to provide access to a Lot from a public street
and sidewalks installed by or at the direction of Declarant (and replacements thereof) shall not be
deemed to be a “structure” for the purpose of the foregoing restriction.
Section 8.4 Encroachments. If any improvement on a Lot or the Common Area now or
hereafter encroaches on any other Lot or Common Area, by reason of (a) the original construction
thereof by Declarant or Builder, which shall include, but not be limited to, any Party Wall or drive
which encroaches over a Lot's boundary line and any drainage of stormwater from roofs and
gutters, (b) deviations within normal construction tolerances in the maintenance, repair,
replacement or reconstruction of any improvement, or (c) the settling or shifting of any land or
improvement, an easement is hereby granted over the encroached-upon portion of such Lot or
Common Area in favor of the Owner of the encroaching improvements, solely to the extent of
such encroachment and solely for the period of time the encroachment exists (including
replacements thereof), for the limited purposes of use, repair, replacement and maintenance of the
encroaching improvement
Section 8.5 Ingress/Egress Easement. Declarant, its agents and employees, shall have a
right of ingress and egress over the Common Area, and any roadways and drives within Ambleside
Towns as required for construction of improvements and development of the Property, and
otherwise as Declarant deems to be necessary or for access to or ingress and egress to and from
any Dwelling Unit.
Section 8.6 Reservation of Right to Grant Future Easement. Declarant reserves the right
to (a) grant non-exclusive easements over any Lot or Common Area for the purposes of installing,
repairing and/or maintaining utility lines of any sort, including, but not limited to, storm drains
and drainage swales, sanitary sewers, gas lines, electric lines and cables, water lines, telephone
lines, telecommunication lines and cables, and the like, and (ii) obtaining the release of any bonds
posted with a municipality, governmental agency or regulatory agency, (b) grant non-exclusive
easements over the Common Area to any municipal agency or private entity for any other purpose
consistent with the “open space” designation thereof, and (c) in its sole discretion, grant licenses
and non-exclusive easements over, under, across or through the Property in favor of owners of
adjoining real property, and their tenants, successors and assigns, for purposes of providing access
and utilities benefiting such adjoining real property.
Section 8.7 Bonds and/or Dedication Requirements. Declarant reserves the right to
grant and reserve easements or to vacate or terminate easements across all Lots or Common Area
32
as may be required by any governmental agency or authority or utility in connection with the
release of improvement bonds or the dedication of public streets for maintenance by governmental
agencies.
Section 8.8 Easements for Corrective Work. Declarant reserves a non-exclusive
easement over, across, under, through and above all Lots and the Common Area for the purposes
of correcting drainage, maintenance, landscaping, mowing and erecting street intersection signs,
directional signs, temporary promotional signs, entrance features, lights and wall features, if any,
and for the purpose of executing any of the powers, rights, or duties granted to or imposed upon
the Association in this Declaration.
Section 8.9 Easement for Exterior Maintenance. The Association, its agents and
employees, are hereby granted a right of ingress and egress over the Lots to the extent necessary
or desirable to perform any Exterior Maintenance. Any Owner who has a dog present at its Lot
shall provide the Association with current information regarding telephone numbers of one or more
individuals who can control that dog so that the Association may conveniently schedule Exterior
Maintenance without interference from any dog at the Lot. In addition, each Owner shall
reasonably cooperate with the Association so as to allow the Association, its agents and employees,
to complete any Exterior Maintenance, including, without limitation, providing access to the
interior of any Dwelling Unit to the extent reasonably necessary for the completion of the Exterior
Maintenance.
ARTICLE IX
PARKING
No Owner, tenant, or any other Person shall park any type of vehicle in any Common Area.
Temporary parking on or within any public right-of-way within the Property is prohibited except
to the extent expressly permitted by Local Governing Authorities, and shall be subject to any
restrictions or limitations relating thereto. The Board of Directors may promulgate such additional
rules and regulations as it deems appropriate to regulate the use of any Common Areas for parking
purposes, which rules and regulations may include the towing of any vehicles parked in violation
of this Declaration, with no notice of towing required and at the vehicle owner's sole expense.
ARTICLE X
PARTY WALLS
Section 10.1 General Rules of Law Apply. Each wall built as part of the original
construction of a Dwelling Unit and situated upon the dividing line between two Lots shall
constitute a Party Wall, and, to the extent not inconsistent with the provisions of this Article X, the
general rules of law regarding Party Walls and liability of Owners for property damage due to
negligence or willful acts or omissions in connection with Party Walls shall apply thereto.
Section 10.2 Use; Other Changes. Either Owner shall have the right to use the side of the
Party Wall facing the Owner's Dwelling Unit in any lawful manner, including attaching structural
33
or finishing materials to it; however, in addition to meeting the other requirements of these
Restrictions and of any building code or similar regulations or ordinances, any Owner proposing
to modify the interior of its Dwelling Unit, make additions to or rebuild its Dwelling Unit in any
manner which involves the alteration of any Party Wall shall first obtain the written consent of the
adjoining Owner, whose consent shall not be unreasonably withheld, conditioned or delayed. If
the adjoining Owner has not responded in writing to the requesting Owner within twenty-one (21)
days of its receipt of any such written request, given by registered or certified mail, return receipt
requested, such consent of the adjoining Owner shall be deemed to have been given.
Section 10.3 Shared Party Wall Maintenance. Each Dwelling Unit is connected to
another Dwelling Unit by way of a Party Wall. The Owners of each Dwelling Unit shall pay an
equal share of all Shared Party Wall Maintenance attributable to the Party Wall that connects
their individual Dwelling Unit. The decision to perform specific work included within Shared
Party Wall Maintenance shall be made by the individual Owners of the Dwelling Units so
affected, including the selection of the contractors or other vendors and the method for the
payment of the resulting costs.
ARTICLE XI
POWERS AND DUTIES OF THE ASSOCIATION
Section 11.1 Discretionary Powers and Duties. The Association shall have the
following powers and duties which may be exercised in its discretion:
(a)to enforce any covenants or restrictions which are imposed by the terms of this
Declaration or which may be imposed on any part of the Property. Nothing
contained herein shall be deemed to prevent the Owner of any Lot from enforcing
any building restriction in its own name. The foregoing rights of enforcement shall
not prevent (i) changes, releases or modifications of the restrictions or reservations
placed upon any part of the Property by any party having the right to make such
changes, releases or modifications in the deeds, contracts, declarations or plats in
which such restrictions and reservations are set forth; or (ii) the assignment of the
foregoing rights by the proper parties wherever and whenever such rights of
assignment exist. Neither the Association nor the Board of Directors shall have a
duty to enforce the covenants by an action at law or in equity if either party believes
such enforcement is not in the Association's best interest. The expenses and costs
of any enforcement proceedings shall be paid out of the general fund of the
Association; provided, however, that the foregoing authorization to use the general
fund for such enforcement proceedings shall not preclude the Association from
collecting such costs from the offending Owner;
(b)to build facilities upon the Common Area;
(c)to use the Common Area and any improvements, Structures or facilities erected
thereon, subject to the general rules and regulations established and prescribed by
the Association and subject to the establishment of charges for their use;
34
(d)to exercise all rights, responsibilities and control over all easements which the
Association may from time to time acquire, including, but not limited to, those
easements specifically reserved to the Association in Article VIII above;
(e)to create, grant and convey easements and licenses upon, across, over and under all
Common Areas, including but not limited to easements for the installation,
replacement, repair and maintenance of utility lines serving the Property;
(f)subject to the limitations set forth in Section 11.3 hereof, to employ counsel and
institute and prosecute such suits as the Association may deem necessary or
advisable, and to defend suits brought against the Association;
(g)to retain, as an independent contractor or employee, a manager of the Association
and such other employees or independent contractors as the Board of Directors
deems necessary, and to prescribe the duties of employees and scope of services of
independent contractors;
(h)to enter upon any Lot to perform emergency repairs or to do other work reasonably
necessary for the proper maintenance or protection of the Property;
(i)to enter (or have the Association's agents or employees or contractors enter) upon
any Lot to repair, maintain or restore the Lot or perform such other acts as may be
reasonably necessary to make such Lot and improvements situated thereon, if any,
conform to the requirements of these Restrictions, if such is not performed by the
Owner of the Lot, and to assess the Owner of the Lot the costs thereof, such
assessment to be a lien upon the Lot equal in priority to the lien provided for in
Article V herein; provided, however, that the Board of Directors shall only exercise
this right after giving the Owner written notice of its intent at least fourteen (14)
days prior to such entry. Neither the Association nor any of its agents, employees,
or contractors shall be liable for any damage, which may result from any
maintenance work performed hereunder;
(j)to re-subdivide and/or adjust the boundary lines of the Common Area, to the extent
such re-subdivision or adjustment does not contravene the requirements of zoning
and other ordinances applicable to the Property;
(k)to adopt, publish and enforce rules and regulations governing the use of the
Common Area and facilities and with respect to such other areas of responsibility
assigned to it by this Declaration, except where expressly reserved herein to the
Members. Such rules and regulations may grant to the Board of Directors the power
to suspend a Member's right to use non-essential services for non-payment of
assessments and to assess charges against Members for violations of the provisions
of the Declaration or rules and regulations;
35
(l)to remove a member of the Board of Directors and declare such member's office to
be vacant in the event such member shall be absent from three (3) consecutive
regular meetings of the Board of Directors;
(m)to exercise all rights granted to the Association as set forth in other provisions of
this Declaration; and
(n)to enter into contracts on behalf of the Association, subject to the limitations and
requirements contained within the HOA Act.
Section 11.2 Mandatory Powers and Duties. The Association shall exercise the
following powers, rights and duties:
(a)to unconditionally accept title to the Common Area upon the transfer thereof by
Declarant to the Association as provided hereunder, and to hold and administer the
Common Area for the benefit and enjoyment of the Owners and occupants of Lots,
and to cause the Common Area and facilities to be maintained in accordance with
the standards adopted by the Board of Directors;
(b)to transfer part of the Common Area to or at the direction of Declarant, for the
purpose of adjusting boundary lines or otherwise in connection with the orderly
subdivision or development of the Property, but only to the extent such re-
subdivision or adjustment does not contravene the requirements of zoning and other
ordinances applicable to the Property;
(c)after the termination of the Class B membership, to obtain and maintain without
interruption liability coverage for any claim against a director or officer for the
exercise of its duties and fidelity coverage against dishonest acts on the part of
directors, officers, trustees, managers, employees or agents responsible for
handling funds collected and held for the benefit of the Association. The fidelity
bond shall cover the maximum funds that will be in the custody of the Association
or its management agent at any time while the bond is in place. The fidelity bond
coverage shall be in an amount as may be determined to be reasonably prudent by
the Board of Directors;
(d)to obtain and maintain without interruption a comprehensive coverage of public
liability and hazard insurance covering the Common Area and easements of which
the Association is a beneficiary, if available at reasonable cost. Such insurance
policy shall contain a severability of interest clause or endorsement which shall
preclude the insurer from denying the claim of an Owner because of negligent acts
of the Association or other Owners. The scope of coverage shall include all
coverage in kinds and amounts commonly obtained with regard to projects similar
in construction, location and use as determined by the Board of Directors. Further,
the public liability insurance must provide coverage of at least $1,000,000.00 for
bodily injury, including death, and property damage for any single occurrence;
36
(e)to provide for the maintenance of any and all (A) improvements, Structures or
facilities which may exist or be erected from time to time on the Common Area;
(B) easement areas of which the Association is the beneficiary and for which it has
the maintenance responsibility; and (C) facilities, including, but not limited to,
fences and signs, authorized by the Association and erected on any easements
granted to the Association, and (ii) to perform the Exterior Maintenance;
(f)to set and collect Assessments as provided in Article V, above;
(g)to pay all proper bills, taxes, charges and fees on a timely basis;
(h)to maintain its corporate status;
(i)to maintain all open space and landscaping within the Common Area; and
(j)to be solely responsible for all costs incurred in connection with the maintenance
and repair of the Common Area in accordance with Section 4.3(b) hereof.
Section 11.3 Limitation on Association Action. The Association shall hold a duly
authorized, duly noticed special meeting of the Members of the Association prior to commencing
or prosecuting any judicial or administrative proceeding, and no judicial or administrative
proceeding shall be commenced or prosecuted by the Association except upon the affirmative vote
of at least seventy-five percent (75%) of the votes cast at said special meeting by Members entitled
to vote authorizing the commencement and prosecution of the proposed action. This Section 11.3
shall not apply to (a) actions brought by the Association to enforce the provisions of this
Declaration, the Bylaws, or rules and regulations adopted by the Board of Directors (including,
without limitation, any action to recover Regular Assessments or Special Assessments or other
charges or fees or to foreclose a lien for such items) or (b) counterclaims brought by the
Association in connection with proceedings instituted against it. The rights and powers of the
Association shall at all times be subject to the requirements of the HOA Act.
Section 11.4 Board of Directors Authority to Act. Unless otherwise specifically provided
in the Association's documents, all rights, powers, easements, obligations and duties of the
Association may be performed by the Board of Directors. Notwithstanding anything to the contrary
contained herein, any rules or regulations which are promulgated by the Board of Directors may
be repealed or amended by a majority vote of the Members cast, in person or by proxy, at a meeting
convened for such purpose in accordance with the Bylaws.
Section 11.5 Compensation. No director or officer of the Association shall receive
compensation for services as such director or officer except to the extent expressly authorized by
a majority vote of the Class A Members.
Section 11.6 Non-liability of Directors, Officers and Board Members. The directors and
officers of the Association and members of the Architectural Review Board, and all committees
thereof, shall not be liable to the Owners or any other persons for any error or mistake of judgment
in carrying out their duties and responsibilities as directors or officers of the Association or
37
members of the Architectural Review Board, or any committee thereof, except for their own
individual willful misconduct or gross negligence. It is intended that the directors and officers of
the Association and members of the Architectural Review Board, and all committees thereof, shall
have no personal liability with respect to any contract made by them in good faith on behalf of the
Association, and the Association shall indemnify and hold harmless each of the directors, officers,
Architectural Review Board members, or committee members against any and all liability to any
person, firm or corporation arising out of contracts made in good faith on behalf of the
Association.
Section 11.7 Indemnity of Directors and Officers and Members of the Architectural
Review Board. Except with respect to matters (i) as to which it is adjudged in any civil action,
suit, or proceeding that such person is liable for gross negligence or willful misconduct in the
performance of his or her duties, or (ii) to which it is adjudged in any criminal action, suit or
proceeding that such person had reasonable cause to believe that such person's conduct was
unlawful or that person had no reasonable cause to believe that such person's conduct was lawful,
the Association shall indemnify, hold harmless and defend any person, his or her heirs, assigns
and legal representatives (collectively, the “Indemnitee”) made or threatened to be made a party
to any action, suit or proceeding, or subject to any claim, by reason of the fact that he or she is or
was a director or officer of the Association or member of the Board of Directors, of the
Architectural Review Board, or any committee thereof, from and against (1) all liability,
including, without limitation, the reasonable cost of settlement of, or the amount of any judgment,
fine, or penalty rendered or assessed in any such claim, action, suit, or proceeding; and (2) all
costs and expenses, including attorneys' fees, actually and reasonably incurred by the Indemnitee
in connection with the defense of such claim, action, suit or proceeding, or in connection with
any appeal thereof. In making such findings and notwithstanding the adjudication in any action,
suit or proceeding against an Indemnitee, no director or officer of the Association, or member of
the Board of Directors or the Architectural Review Board, or any committee thereof, shall be
considered or deemed to be guilty of or liable for gross negligence or willful misconduct in the
performance of his or her duties where, acting in good faith, such director or officer of the
Association, or member of the Architectural Review Board, or any committee thereof, relied on
the books and records of the Association or statements or advice made by or prepared by any
managing agent of the Association or any director, officer or member of the Association, of any
accountant, attorney or other person, firm or corporation employed by the Association to render
advice or service, unless such director, officer or member had actual knowledge of the falsity or
incorrectness thereof; nor shall a director, officer or member be deemed guilty of gross negligence
or willful misconduct by virtue of the fact that he or she failed or neglected to attend a meeting or
meetings of the Association, the Board of Directors or the Architectural Review Board, or any
committee thereof. The costs and expenses incurred by an Indemnitee in defending any action,
suit or proceeding may be paid by the Association in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of the Indemnitee to repay the
amount paid by the Association if it shall ultimately be determined that the Indemnitee is not
entitled to indemnification or reimbursement as provided in this Article XI.
38
ARTICLE XII
RIGHTS OF MORTGAGEES
Unless a right is waived by the appropriate Federal Agency, all Mortgagees shall have the
following rights:
Section 12.1 Veterans Administration. To the extent required by the Veteran's
Administration (the “VA”), if any of the Lots are security for a loan guaranteed by the VA and if
there is a Class B Member:
(a)Declarant must provide to the VA a copy of all amendments to the Declaration. The
Association may not make any Material Amendment or take any Extraordinary
Action (as such terms are defined in Article XII) without the approval of the VA.
(b)Eligible Mortgagees shall have the following rights:
(i)the right to inspect Association documents and records on the same terms
as the Members;
(ii)notice of any Material Amendment of the Association documents;
(iii)notice of any Extraordinary Action of the Association;
(iv)notice of any property loss, condemnation or eminent domain proceeding
affecting the Common Area resulting in a loss greater than ten percent
(10%) of the annual budget or affecting any Lot insured by the Association
in which the Eligible Mortgagee has an interest;
(v)notice of any termination, lapse or material modification of an insurance
policy held by the Association;
(vi)notice of any default by an Owner of a Lot subject to a mortgage held by
the Eligible Mortgagee in paying assessments or charges to the Association
which default remains uncured for sixty (60) consecutive days;
(vii)notice of any proposal to terminate the Declaration or dissolve the
Association at least thirty (30) days before any action is taken;
(viii)the right of a majority of the Eligible Mortgagees to demand
professional management; and
(ix)the right of a majority of the Eligible Mortgagees to demand an audit of the
Association's financial records.
39
Section 12.2 Federal Housing Authority. To the extent required by the Federal Housing
Authority (the “FHA”), if any of the Lots are security for a loan insured by the FHA and if there
is a Class B Member, the following actions will require the prior approval of the FHA:
(a)annexation of additional properties;
(b)mergers, consolidations and dissolution of the Association;
(c)mortgaging or conveyance of the Common Area; and
(d)Material Amendment of this Declaration.
Section 12.3 Freddie Mac. Assuming that Mortgagees may securitize pools of
mortgages, including mortgages on Lots and/or Dwelling Units in Ambleside Towns, with the
Federal Home Loan Mortgage Corporation (a/k/a “Freddie Mac”), the following requirements
shall apply to all Lots and Dwelling Units in Ambleside Towns:
(a)Unless at least two-thirds (2/3) of the first Mortgagees (based on one vote for each
first mortgage owned) or two-thirds (2/3) of the Class A Members have given their
prior written approval, the Association shall not take any of the following actions:
(i)by act or omission, seek to abandon, partition, subdivide, encumber, sell or
transfer the Common Area. The re-subdivision and/or adjustment of
boundary lines of the Common Area and the granting of easements by the
Association shall not require the consent described in subsection (a) above;
(ii)change the method of determining the obligations, assessments, dues, or
other charges that may be levied against an Owner;
(iii)by act or omission, waive or abandon any scheme of regulations or their
enforcement pertaining to the architectural design or the exterior
appearance of Dwelling Units and their appurtenances, the exterior
maintenance of Dwelling Units and their appurtenances, the maintenance of
the Common Area, common fences and driveways, and the upkeep of lawns
and plantings in the Property;
(iv)fail to maintain fire and extended coverage insurance on insurable parts of
the Common Area or other property owned by the Association on a current
replacement cost basis in an amount not less than one hundred percent
(100%) of the insurable value, based on current replacement costs, not
including land value; or
(v)use hazard insurance proceeds for losses to the Common Area or other
property owned by the Association for other than the repair, replacement or
reconstruction of such property.
40
(b)A Mortgagee shall be given written notification from the Association of any default
in the performance of any obligation under this Declaration or related Association
documents by the Owner of a Lot that is the security for the indebtedness due the
Mortgagee, which default is not cured within sixty (60) days after the Owner's
receipt of notice of the default.
(c)A Mortgagee may, jointly or singly, pay taxes or other charges which are in default
and which may or have become a charge against the Common Area and may pay
overdue premiums on hazard insurance policies or secure new hazard insurance
coverage upon the lapse of a policy for such Common Area. The Mortgagee making
such payments shall be owed immediate reimbursement therefor from the
Association.
(d)The assessments imposed by the Association shall include an adequate reserve fund
for maintenance, repairs and replacements for those parts of the Common Area
which may be replaced or require maintenance on a periodic basis. Such reserves
shall be payable in regular installments rather than by Special Assessment.
Section 12.4 Fannie Mae. Assuming that Mortgagees may secure funding for mortgage
loans by selling mortgage loans, including mortgages on Lots and/or Dwelling Units in Ambleside
Towns, to the Federal National Mortgage Association (a/k/a “Fannie Mae”), the following
requirements shall apply to all Lots and Dwelling Units in Ambleside Towns:
(a)A Mortgagee shall be given written notification from the Association of the
following:
(i)any condemnation or casualty loss that affects either a material portion of
the Common Area or the Lot that is the security for the indebtedness due
the Mortgagee;
(ii)any default in the performance of any obligation under this Declaration or
related Association documents by the Owner of a Lot that is the security for
the indebtedness due the Mortgagee, which default is not cured within sixty
(60) days after the Owner's receipt of notice of the default;
(iii)any lapse, cancellation or material modification of any insurance policy or
fidelity bond maintained by the Association; or
(iv)any proposed action that would require the consent of a specified percentage
of Mortgagees.
(b)Provided that improvements have been constructed in the Common Area and
provided that a Mortgagee gives written notice to the Association that it has relied
on the value of the improvements in making a loan on a portion or all of the
Property, then unless at least sixty-seven percent (67%) of the Members, and
Mortgagees representing at least fifty-one percent (51%) of those Lots with
41
Mortgages have given their prior written approval, the Association shall not add or
amend any material provision of this Declaration or related Association documents
concerning the following:
(i)voting rights of any Member;
(ii)assessments, assessment liens, or subordination of such liens;
(iii)reserves for maintenance, repair and replacement of those parts of the
Common Area that may be replaced or require maintenance on a periodic
basis;
(iv)responsibility for maintenance and repair of the Property;
(v)reallocation of interests in the Common Area or rights to its use, except as
provided in Article III and Article IV herein;
(vi)converting Lots into Common Area or vice versa;
(vii)annexation or withdrawal of property to or from the Property;
(viii)insurance or fidelity bonds;
(ix)leasing of Dwelling Units;
(x)imposition of any right of first refusal or similar restriction on the right of
an Owner to sell, transfer or otherwise convey its property;
(xi)a decision by the Association to establish self-management when
professional management has been required previously by a Mortgagee;
(xii)restoration or repair of the Property after a hazard damage or partial
condemnation;
(xiii)any provisions that are for the express benefit of Mortgagees; and
(xiv)termination of the legal status of the Association after substantial
destruction or condemnation of the subdivision occurs.
An addition or amendment to this Declaration or related Association documents shall not
be considered material if it is for the purpose of clarification or correcting errors. A Mortgagee
who receives a written request to approve additions or amendments who does not deliver or post
to the requesting party a negative response within thirty (30) days of receipt of such request shall
be deemed to have approved such request.
42
Section12.5 General.
(a)Condemnation. In the event that there is a condemnation or destruction of the
Common Area or other property owned by the Association, to the extent
practicable, condemnation or insurance proceeds shall be used to repair or replace
the condemned or destroyed property.
(b)Books and Records. A Mortgagee shall have the right to examine and copy at its
expense the books and records of the Association during normal business hours and
upon reasonable notice to the Association.
(c)Notice. As set forth in this Article XII, Mortgagees shall have the right, upon
request, to receive notice of (a) the decision of the Owners to abandon or terminate
the Planned Unit Development (as defined by Fannie Mae); (b) any material
amendment to the Declaration, the Bylaws or the Articles; and (c) if professional
management has been required by a Mortgagee, the decision of the Association to
terminate such professional management and assume self-management.
(d)Excess Proceeds. Should there be excess insurance or condemnation proceeds after
the renovation, repair or reconstruction called for herein, such excess proceeds may
be distributed equally to the Owners, apportioned equally among the Lots; subject,
however, to the priority of a Mortgagee with regard to the proceeds applicable to
the Lot securing said Mortgagee and in accordance with Indiana law.
(e)Audited Financial Statement. The Association shall provide an audited financial
statement for the preceding fiscal year to a Mortgagee upon its written request.
(f)Termination. Eligible Mortgagees representing at least sixty-seven percent (67%)
of the votes of the mortgaged Lots must consent to the termination of the legal
status of the Association for reasons other than substantial destruction or
condemnation of the Property.
(g)Damage to Common Area. The Association shall cause the immediate repair,
reconstruction or renovation of any damage to the Common Area unless a decision
not to repair, reconstruct or renovate is approved by the Board of Directors and a
majority of the Mortgagees.
ARTICLE XIII
GENERAL PROVISIONS
Section 13.1 Enforcement. The Association or any Owner shall have the right to enforce,
by a proceeding at law or in equity, all restrictions, conditions, covenants, reservations, easements,
liens and charges now or hereafter imposed by the provisions of this Declaration or other
Association documents unless such right is specifically limited herein or therein. Failure by the
Association or by any Owner to enforce any right, provision, covenant or condition which may be
43
granted by this Declaration shall not constitute a waiver of the right of the Association or an Owner
to enforce such right, provision, covenant or condition in the future. All rights, remedies and
privileges granted to the Association or any Owner pursuant to any term, provision, covenant or
condition of the Declaration shall be deemed to be cumulative and the exercise of any one or more
thereof shall not be deemed to constitute an election of remedies nor shall it preclude the party
exercising the same from exercising such privileges as may be granted to such party by this
Declaration or at law or in equity.
Section 13.2 Severability; Headings; Conflicts. Invalidation of any one of the
provisions of this Declaration by judgment or court order shall in no way affect any other
provision, which shall remain in full force and effect. Titles of paragraphs are for convenience
only and are not intended to limit or expand the covenants, rights or obligations expressed therein.
In the case of any conflict between the Articles and this Declaration, this Declaration shall control;
in the case of any conflict between this Declaration and the Bylaws, this Declaration shall control.
Section 13.3 Duration. The covenants and restrictions of this Declaration shall run with
and bind the Property and shall inure to the benefit of and be enforceable by the Association or the
Owner of any Lot subject to this Declaration, their respective legal representatives, heirs,
successors and assigns, unless such right is specifically limited herein, for a term of twenty (20)
years from the date this Declaration is recorded, after which time the covenants and restrictions of
this Declaration shall be automatically extended for successive periods of twenty (20) years each,
unless terminated by a written and recorded instrument approved in advance by the affirmative
and unanimous vote of all Members of the Association and their respective Mortgagees.
Section 13.4 Material Amendment/Extraordinary Action.
(a)Approval Requirements. In accordance with Federal Agencies' requirements,
material amendments (“Material Amendments”) or extraordinary actions
(''Extraordinary Actions”), as each such term is defined below, must be approved
by Members entitled to cast at least sixty-seven percent (67%) of the votes of
Members present and voting, in person or by proxy, at a meeting held in accordance
with the notice and quorum requirements for Material Amendments and
Extraordinary Actions contained in the Bylaws, such vote including the vote of a
majority of the Class A Members present and voting, in person or by proxy, at such
meeting and the vote of the Class B Member, if any.
(b)Material Amendment. A Material Amendment includes adding, deleting or
modifying any provision regarding the following:
(i)assessment basis or assessment liens;
(ii)any method of imposing or determining any charges to be levied against
individual Owners;
(iii)reserves for maintenance, repair or replacement of Common Area
improvements;
44
(iv)maintenance obligations;
(v)allocation of rights to use Common Areas, except as provided in Article III
and Article IV herein;
(vi)any scheme of regulation or enforcement of standards for maintenance,
architectural design or exterior appearance of improvements on Lots;
(vii)reduction of insurance requirements;
(viii)restoration or repair of Common Area improvements in a manner
inconsistent with the provisions of this Declaration;
(ix)the annexation or withdrawal of land to or from the Property;
(x)voting rights;
(xi)restrictions affecting leasing or sale of a Lot; or
(xii)any provision which is for the express benefit of Mortgagees.
(c)Extraordinary Action. Alternatively, an Extraordinary Action includes:
(i)merging or consolidating the Association (other than with another non-
profit entity formed for purposes similar to this Association);
(ii)determining not to require professional management if that management has
been required by the Association documents, a majority of eligible
Mortgagees or a majority vote of the Members;
(iii)expanding the Association to include land not previously described as
annexable which increases the overall land area of the project or number of
Lots by more than ten percent (10%);
(iv)abandoning, partitioning, encumbering, mortgaging, conveying, selling or
otherwise transferring the Common Area except for (i) granting easements;
(ii) dedicating Common Area as required by a public authority; (iii) re-
subdividing or adjusting the boundary lines of the Common Area; or
transferring Common Area pursuant to a merger or consolidation with a
non-profit entity formed for purposes similar to the Association;
(v)using insurance proceeds for purposes other than reconstruction or repair of
the insured improvements; or making capital expenditures (other than for
repair or replacement of existing improvements) during any period of
45
twelve (12) consecutive months costing more than twenty percent (20%) of
the annual operating budget.
(d)Class Amendments. Any Material Amendment which changes the rights of any
specific class of Members must be approved by Members entitled to cast at least
fifty-one percent (51%) of the votes of all Members of such class present and
voting, in person or by proxy, at a meeting held in accordance with the requirements
contained in the Bylaws.
(e)Material Amendment and/or Extraordinary Actions Amendments. The following
Material Amendments and Extraordinary Actions must be approved by Members
entitled to cast at least sixty-seven percent (67%) of the total authorized votes of all
Members of the Association, including at least a majority of the total authorized
votes entitled to be cast by Class A Members and the vote of the Class B Member,
if any:
(i)termination of this Declaration;
(ii)dissolution of the Association, except pursuant to a consolidation or merger;
and
(iii)conveyance of all Common Areas.
(f)VA Amendments. If the VA has guaranteed any loans secured by a Lot, so long
as there is a Class B Member, all Material Amendments and Extraordinary Actions
must have the approval of the VA.
Section 13.5 Amendment. Amendments to this Declaration other than Material
Amendments or Extraordinary Actions shall be approved by at least sixty-seven percent (67%) of
the votes entitled to be cast by all Members present and voting, in person or by proxy, at any duly
called and conveyed meeting, or in writing by Members entitled to cast at least sixty-seven percent
(67%) of the total authorized votes of all Members and the vote of the Class B Member, if any.
Any amendment to this Declaration must be properly executed and acknowledged by the
Association (in the manner required by law for the execution and acknowledgment of deeds) and
recorded among the appropriate land records.
Section 13.6 Special Amendment. Declarant may make any amendment required by any of
the Federal Agencies or by the Local Governing Authorities, as a condition of the approval of this
Declaration, by the execution and recordation of such amendment following notice to all Members.
Notwithstanding anything herein to the contrary, Declarant hereby reserves the right prior
to the Authority Transfer Date to unilaterally amend and revise the standards, covenants and
restrictions contained in this Declaration for any reason. No such amendment, however, shall
restrict or diminish materially the rights or increase or expand materially the obligations of Owners
with respect to Lots conveyed to such Owners prior to the amendment or adversely affect the rights
46
and interests of Mortgagees holding first mortgages on Lots at the time of such amendment.
Declarant shall give notice in writing to such Owners and Mortgagees of any amendments.
Declarant shall not have the right at any time by amendment of this Declaration to grant or
establish any easement through, across or over any Lot which Declarant has previously
conveyed without the consent of the Owner of such Lot. All amendments to this Declaration shall
be in writing and recorded among the appropriate land records.
Section 13.7 Waiver. Declarant hereby expressly reserves unto itself (so long as these
Restrictions are in effect), the unqualified right to waive or alter from time to time such of the
herein contained restrictions as it may deem best, as to any one or more of the Lots, which waiver
or alteration shall be evidenced by the mutual written consent of Declarant and the then-Owner of
the Lot as to which some or all of said restrictions are to be waived or altered; such written consent
shall be duly acknowledged and recorded in the Recorder's Office.
Section 13.8 Withdrawable Real Estate.
(a)Prior to the Authority Transfer Date, Declarant shall have the unilateral right,
without the consent of the Class A Members or any Mortgagee, to execute and
record an amendment to this Declaration withdrawing any portion of the Property
upon which Dwelling Units have not been constructed.
(b)Upon the dedication or the conveyance to any public entity or authority of any
portion of the Property for public street purposes, this Declaration shall no longer
be applicable to the land so dedicated or conveyed.
Section 13.9 Management Contracts. The Board of Directors may enter into professional
management contract(s) for the management of the Property, in accordance with the Articles and
Bylaws.
Section 13.10 Dissolution. Subject to the restrictions and conditions contained in this
Article XIII, the Association may be dissolved with the assent given in writing and signed by at
least two-thirds (2/3) of each class of Members and in accordance with Article 13 of the Act. Upon
dissolution of the Association, other than incident to a merger or consolidation, the assets of the
Association, both real and personal, shall be offered to an appropriate public agency to be devoted
to purposes and uses that would most nearly reflect the purposes and uses to which they were
required to be devoted by the Association. In the event that such offer of dedication is refused,
such assets shall be then offered to be granted, conveyed or assigned to any non-profit corporation,
trust or other organization devoted to similar purposes and in accordance with Indiana law. Any
such dedication or transfer of the Common Area shall not be in conflict with then-governing zoning
ordinances or the designation of the Common Area as “open space”.
Section 13.11 Negligence. Each Owner shall be liable for the expense of any
maintenance, repair or replacement rendered necessary by his negligence or by that of any member
of his family or his or their guests, employees, agents, invitees or lessees, to the extent that such
expense is not covered by the proceeds of insurance carried by the Association. An Owner shall
pay the amount of any increase in insurance premiums occasioned by violation of any of the
47
Restrictions by such Owner, any member of his family or their respective guests, employees,
agents, invitees or tenants.
Section 13.12 Acceptance and Ratification. All present and future Owners, Mortgagees,
tenants and occupants of the Lots and Dwelling Units, and other Persons claiming by, through or
under them, shall be subject to and shall comply with the provisions of this Declaration, the
Articles, the By-Laws and the rules, regulations and guidelines as adopted by the Board of
Directors and (to the extent of its jurisdiction) the Architectural Review Board, or any committee
thereof, as each may be amended or supplemented from time to time. The acceptance of a deed of
conveyance or the act of occupancy of any Lot or Dwelling Unit shall constitute an agreement that
the provisions of this Declaration, the Articles, the Bylaws and rules, regulations and guidelines,
as each may be amended or supplemented from time to time, are accepted and ratified by such
Owner, tenant or occupant, and all such provisions shall be covenants running with the land and
shall bind any Person having at any time any interest or estate in a Lot or Dwelling Unit or the
Property, all as though such provisions were recited and stipulated at length in each and every
deed, conveyance, mortgage or lease thereof. All Persons who may own, occupy, use, enjoy or
control a Lot or Dwelling Unit or any part of the Property in any manner shall be subject to this
and guidelines applicable thereto as each may be amended or supplemented from time to time.
Section 13.13 Perpetuities. If any of the covenants, conditions, restrictions, or other
provisions of this Declaration would be unlawful, void, or voidable for violation of the common
law rule against perpetuities, then such provisions shall continue on for the maximum amount of
time as allowed by Indiana Code 32-17-8, et seq. as amended from time to time.
ARTICLE XIV
OWNER’S INSURANCE
Section 14.1 Owner’s Insurance Obligations. Notwithstanding anything to the contrary
contained in this Declaration, each and every Owner shall maintain Dwelling Unit Insurance on
its Dwelling Unit at all times and at its sole cost and expense. Each Owner shall provide evidence
of its Dwelling Unit Insurance promptly following any written request by the Association, which
request may be made from time to time. Said evidence of insurance shall show the Association as
the certificate holder. To the extent that any Owner does not have the types or amounts of
insurance required for Dwelling Unit Insurance, such an Owner shall immediately obtain the
required insurance and provide written evidence thereof to the Association. In addition, to the
extent that a Dwelling Unit is damaged and that damage is covered by the Structure Insurance, the
Owner of the Dwelling Unit so damaged shall be responsible for the payment of the deductible on
the Structure Insurance; provided, however, in the event such damage extends to two Dwelling
Units that are connected by a Party Wall, the deductible on the Structure Insurance shall be shared
equally by the Owners of the two Dwelling Units so damaged.
48
WITNESS the following signatures:
DECLARANT:
, LLC
By:
STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
Before me, a Notary Public in and for said County and State, personally appeared
, the of , LLC,
who acknowledged the execution of the foregoing Declaration of Covenants, Conditions and
Restrictions for Ambleside Towns, and who, having been duly sworn, stated that any
representations therein contained are true.
Witness my hand and Notarial Seal this _____ day of , 20___.
Printed:
Resident of:
My Commission Expires:
This instrument was prepared by and after recording return to:
.
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.
49
EXHIBIT A
Legal Description of Property
Ambleside Towns
50
EXHIBIT B
Zoning Commitments
See attached.