HomeMy WebLinkAboutCovenants & Restrictions
V\
~~- j
u
u
DECLARATION OF COVENANTS AND RESTRICTIONS
OF
HAYDEN RUN
PROPERTY OWNERSHIP
I)I~J\FT
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
u
Q
.~
TABLE OF CONTENTS
Page
1. Definitions 2
2. Declaration 6
3 . Description of Section 1 6
4. Description of Hayden Run 6
5 . Lot Boundaries 6
6. Common Area 6
7. Landscape Maintenance Access Easement
8 . Ownership of Common Area 7
9. Delegation of Use of the Common Area
7
8
10. Easements in Common Area 8
11. Corporation; Membership; Voting; Functions 8
(a) Membership in Corporation 8
(b) Voting Rights 8
(c) Functions 9
12. Board of Directors 9
(a) Management 9
(b) Initial Board of Directors 10
(c) Additional Qualifications 10
(d) Term of Office and Vacancy 10
(e) Removal of Directors 11
(f) Duties of the Board of Directors 11
(g) Powers of the Board of Directors 13
(h) Limitation on Board Action 14
(i) Compensation 15
(j) Non-Liability of Directors 15
(k) Additional Indemnity of Directors 15
(1) Bond 16
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
ii
I.
Q
o
.-
13. Initial Management 16
14. Real Estate Taxes 16
15. Utilities 17
16. Maintenance, Repairs and Replacements 17
17. Architectural Control 18
(a) The Architectural Review Board 18
(b) Purposes 18
(c) Conditions 18
(d) Procedures 19
18. Assessments 19
(a) Annual Accounting 19
(b) Proposed Annual Budget 19
(c) Regular Assessments 20
(d) Special Assessments 22
(e) Additional Assessments 23
(f) Regular Assessments Prior to the Applicable Date 24
(g) Failure of Owner to Pay Assessments 25
(h) Subordination of Assessment Lien to Mortgage 26
19. Mortgages and Unpaid Assessments 26
(a) Notice to Corporation 27
(b) Notice of Unpaid Assessments 27
(c) Right of Mortgagee to Pay Real Estate Taxes or
Insurance Premiums 27
20. Insurance 28
(a) Casualty Insurance 28
(b) Public Liability Insurance 28
(c) Other Insurance 29
(d) General Provisions 29
21. Casualty and Restoration of Common Area and Limited
Common Area 29
22. Covenants and Restrictions 30
23. Expanding the Real Estate That is Subject to
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
iii
o
o
.::=--..;;:~
the Declaration 35
24. Amendment of Declaration 36
(a) Generally 36
(b) Amendments by Declarant Only 36
25. Acceptance and Ratification 38
26. Negligence 39
27. Costs and Attorneys' Fees 39
28. Waiver 39
29. Severability Clause 39
30. Pronouns 39
31. Interpretation 39
32. The Plat
39
33. Annexation
41
Exhibit "A"
Exhibit "B"
Exhibit "c"
Real Estate
Section 1
Fence
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
iv
u
o
~--'--~
DECLARATION OF COVENANTS AND RESTRICTIONS OF
HAYDEN RUN PROPERTY OWNERSHIP
THIS DECLARATION made this day of , 2001, by
CENTEX HOMES, a Nevada general partnership ("Declarant").
WITNESSETH:
WHEREAS, the following facts are true:
A. Declarant is the sole owner in fee simple title to
certain real estate located in Hamilton County, Indiana, more
particularly described in the attached Exhibit A, which is
incorporated herein by reference (hereinafter referred to as the
"Real Estate").
B. Declarant is the sole owner of the fee simple title to
that portion of the Real Estate more particularly described in
Exhibit B attached hereto and made a part hereof (hereinafter
referred to as the "Tract" or "Section 1") .
C. Declarant may from time to time subject part of the
Expansion Real Estate and other additionals real estate located
adjacent to the Real Estate to the provisions of this
Declaration. As used herein, Real Estate, shall include subject
to the provisions of this Declaration.
D. Declarant by execution of this Declaration assures that
all properties which are conveyed which are a part of the Tract
shall be conveyed subject to the terms and conditions of this
Declaration, which shall run with the Tract and be binding upon
all parties having any right, title or interest in the Tract, or
any part thereof, their heirs, successors and assigns, and shall
inure to the benefit of each Owner.
NOW, THEREFORE, Declarant hereby makes this Declaration as
follows:
1. Definitions. The following terms as used in this
Declaration, unless the context clearly requires otherwise,
shall mean the following:
(a) "Applicable Date" means the date determined
pursuant to Paragraph 11 of this Declaration.
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
2
u
Q
~-
(b) "Articles" or "Articles of Incorporation"
means the Articles of Incorporation of the Corporation,
as hereinafter defined. The Articles of Incorporation
are incorporated herein by reference.
(c) "Board of Directors" means the governing body
of the Corporation elected by the Members in accordance
with the Bylaws of the Corporation.
(d) "Bylaws" shall mean the Bylaws of the
Corporation and shall provide for the election of
directors and officers and other governing officials of
the Corporation.
(e) "Common Area" means the ground designated as
such upon the recorded Plat of Hayden Run.
(f) "Common Expense" means expenses for
administration of the Corporation, expenses for the
upkeep, maintenance, repair and replacement of the
Common Area and Landscape Improvements and all sums
lawfully assessed against the Members of the
Corporation.
(g) "Corporation" means Hayden Run Homeowners
Association, Inc., its successors and assigns, a
not-for-profit corporation, whose Members shall be the
Owners of Lots, or appointees as provided in Paragraph
11 of this Declaration; such Corporation being more
particularly described in Paragraph 11 of this
Declaration.
(h) "Declarant" shall mean and refer to Cent ex
Homes, a Nevada general partnership, and any successors
and assigns of it whom it designates in one or more
written recorded instruments, to have the rights of
Declarant hereunder including, but not limited to, any
mortgagee acquiring title to any portion of the Tract
pursuant to the exercise of rights under, or
foreclosure of, a mortgage executed by Declarant.
(i) "Dwelling Unit" means one of the living units
located upon a Lot.
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
o
.'
(j) "Hayden Run" means the name by which the Real
Estate, which is the subject of this Declaration, shall
be known.
(k) "Landscape Maintenance Access Easement" shall
mean and refer to those areas identified in any
recorded Plat to be burdened by such easement. The
landscaping located within the Landscape Maintenance
Access Easement shall be maintained by the Corporation
and the Corporation shall have an easement of ingress
and egress on and over the areas adjacent thereto for
the purpose of this maintenance obligation. The
landscaping and other improvements planted or installed
by the Declarant and/or the Corporation within the
Landscape Maintenance Access Easement may not be
removed by any Owner, nor may any Owner add any
landscaping or improvements to such easement area
without the prior approval of the Architectural Review
Board.
(1) "Lot" means any plot
such upon the recorded Plat of
which one (1) Dwelling Unit is
constructed or exists thereon.
shall be deemed to include the
located thereon.
of ground designated as
Hayden Run and upon
constructed, may be
When Lot is used it
Dwelling Unit, if any,
(m) "Member" means a member of the Corporation.
(n) "Mortgagee" means the holder of a first
mortgage lien on a Lot.
(0) "Owner" means a person, firm, corporation,
partnership, association, trust or other legal entity,
or any combination thereof, who owns the fee simple
title to a Lot.
(p) "Plat" means the survey of Section 1 and the
Lots, Common Areas, and easements located thereon,
prepared by Stoeppelwerth & Associates Engineering,
Inc., certified by Dennis D. Olmstead, a registered
land surveyor, under date of , 2001,
recorded as Instrument No. in the Office
of the Recorder of Hamilton County, Indiana, and
incorporated herein by reference and any additional
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
o
plat that may be filed, upon subjecting additional
property to this Declaration.
(q) "Sign Landscape Easement" means those areas
identified in any recorded Plat to be burdened by such
easement. Each such area shall contain signage for the
Hayden Run together with any landscaping associated
with such signage in such area and any entrance walls
or improvements constructed in such easement. The
signage, entrance walls and improvements and
landscaping located within the easement shall be
maintained by the Corporation and the Corporation shall
have an easement of ingress and egress on and over the
areas adjacent thereto for the purpose of this
maintenance obligation. The signage, entrance walls
and improvements and landscaping installed by the
Declarant and/or the Corporation within the Sign
Landscape Easement may not be removed by any Owner, nor
may any Owner add any improvements to such area without
the prior written approval of the Architectural Review
Board.
(r) "Tract" means the real estate described in
Paragraph B of the recitals above and such other
portions of the Real Estate,and other property which
have, as of any given time, been subjected to this
Declaration, either by this Declaration or a
Supplemental Declaration as herein provided.
(s) "Utility, Drainage and Sewer Easements" means
the areas of ground on the Plat marked Drainage,
Utility and Sanitary Sewer Easement; Drainage, Utility
and Sewer Easement; and Drainage and Utility Easement.
The Utility, Drainage and Sewer Easements are hereby
created and reserved for the use of all public utility
companies (not including transportation companies),
governmental agencies and the Corporation for access to
and installation, maintenance, repair or removal of
poles, mains, ducts, drains, lines, wires, cables and
other equipment and facilities for the furnishing of
utility services, including cable television services.
The Utility, Drainage and Sewer Easements are hereby
created and reserved for (i) the use of Declarant for
access to and construction, maintenance, operation,
repair and control of any retention and detention ponds
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
Q
~
and improvements comprising and/or related to the storm
water drainage system, either by surface drainage or
appropriate underground installations, for the Real
Estate and adjoining property and (ii) the use of the
Corporation and the Hamilton County Drainage Board for
access to and maintenance, repair and replacement of
such drainage system. The Owner of any Lot subject to
a Utility, Drainage and Sewer Easement shall be
required to keep the Easement area on his Lot free from
obstructions so that the storm water drainage will be
unimpeded and will not be changed or altered without
all necessary permits (whether local, state or federal)
and prior written approval of the Declarant. The
Utility, Drainage & Sewer Easements are hereby created
and reserved for Declarant, the Hamilton County Highway
Department, the Hamilton County Drainage Board, the
Clay Township Regional Waste District and such other
municipal bodies, agencies and entities as necessary.
The delineation of the Utility, Drainage and Sewer
Easement areas on the Plat shall not be deemed a
limitation on the rights of any entity for whose use
any such easement is created and reserved to go on any
portion of any Lot subject to such easement temporarily
to the extent reasonably necessary for the exercise of
the rights granted to it by this Paragraph. Except as
installed by Declarant or by third parties as provided
above, no structures or improvements, including without
limitation decks, patios, fences, walkways or
landscaping, shall be erected or maintained upon said
Utility, Drainage and Sewer Easements.
2. Declaration. Declarant hereby expressly declares that
the Tract shall be" held, conveyed and transferred in accordance
with the provisions of this Declaration.
3. Description of Section 1. Section 1 consists of 22 Lots
numbered 1-22, inclusive, together with the Common Area and all
Easements as designated on the Plat. The Common Area, Easements
and the size of the Lots are as designated on the Plat.
4 .
seventy
together
Description of Hayden Run. Hayden Run consists of
(70) Lots numbered 1 through seventy (70) inclusive,
with the Common Area and Easements as designated on
the
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
o
~
Plat. The Common Area, Easements and the size of the Lots are
as designated on the Plat. The legal description for each Lot
in Hayden Run shall be as follows:
Lot in Hayden Run , a subdivision in Hamilton
County, Indiana as per plat thereof recorded
as Instrument Number , in the Office of the
Recorder of Hamilton County, Indiana.
5. Lot Boundaries and Access. The boundaries of each Lot in
Hayden Run shall be as shown on the Plat. All Lots shall be
accessed only from the interior streets of the Tract.
6. Common Area. Common Area includes all the area
designated as such on any recorded Plat of Hayden Run ,
including, but not limited to, the lakes, ponds, drainage areas
and recreational areas (including walking paths or trails), if
any, but excluding all Lots and Easements. Declarant has the
right, but not the obligation, to construct recreational
facilities in any of the Common Area, and if such facilities are
constructed, such facilities shall be part of the Common Area.
7. Landscape Maintenance Access Easement. Declarant
hereby declares, creates, grants and reserves the Landscape
Maintenance Access Easement as shown on the Plat as a non-
exclusive easement for the use of the Declarant and the
Corporation for installation, maintenance and removal of trees,
shrubbery, flowers and other plantings, entryway signage, walls
and other improvements and additional similar landscape
improvements (all of which items, as existing from time to time,
shall constitute "Landscape Improvements"). Except as installed
by the Declarant or the Corporation, and except for any utility
facilities or drainage facilities which may be installed in any
easement that may now or hereafter be declared, granted or
reserved in or upon any portion of the Real Estate and
designated on the Plat as a Landscape Maintenance Access
Easement, no structures or other improvements shall be installed
or maintained in or upon any Landscape Maintenance Access
Easements. Notwithstanding the foregoing provisions of this
Paragraph and the provisions of any Plat or other recorded
instrument executed by Declarant designating a Landscape
Maintenance Access Easement, a Landscape Maintenance Access
Easement shall automatically terminate as to that portion of
such easement area that is located within or upon any public
right-of-way hereafter dedicated to the public upon the
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
o
recording of a Plat or other instrument creating such public
right-of-way.
8. Ownership of Common Area. The Common Area shall be
conveyed to or owned by the Corporation, and shall be held for
the use and enjoyment of the Members, all of whom shall have the
right and easement of enjoyment in and to the Common Area which
right shall pass with title to every Lot, subject to the
provisions of this Declaration, including but not limited to,
the following:
(a) The right of the Corporation, upon approval
by a written instrument signed by two-thirds of all
Class A Members, two-thirds of all Class B Members and
by two-thirds of all first mortgagees, to dedicate or
transfer all or any part of the Common Area to any
public agency, authority or utility for such Common
Area purposes and subject to such conditions as may be
agreed by the Corporation.
(b) The right of the Corporation to adopt such
rules and regulations regarding the Common Area as it
deems necessary as provided in Paragraph 12.
(c) The Common Area in Hayden Run shall be
conveyed to or owned by the Corporation on the
Applicable Date or earlier; provided, however, that the
conveyance of the Common Area to the Corporation shall
not prevent Declarant from improving the Common Area as
Declarant deems appropriate (including, but not limited
to construction of lakes and recreational facilities,
including any recreational or similar facilities which
are solely for the benefit of a particular section of
Hayden Run) at any time prior to the Applicable Date.
9. Delegation of Use of the Common Area. Any Member may
delegate, in accordance with provisions of this Declaration and
the rules or regulations promulgated by the Corporation, his
right of enjoyment and use of the Common Area and facilities to
members of his family, his tenants or contract purchasers who
reside on any Lot.
10. Easements in Common Area. Each Owner shall have an
easement in common with each other Owner to use all pipes,
wires, ducts, cables, conduits, utility lines and other common
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
o
facilities, if any, located in the Common Area and Easements.
Such easement and right to use shall pass with title to the Lot
even though not expressly mentioned in the document passing
title.
An easement is also granted to the Corporation, its
officers, agents and employees and to any management company
selected by the Corporation to enter in or to cross over the
Common Area, Easements and Lots to perform its duties; provided,
however, except in the case of an emergency, reasonable notice
shall be given the Lot Owner.
11. Corporation; Membership; Voting; Functions
(a) Membership in Corporation. Declarant and
each Owner of a Lot which is subject to assessment
shall, automatically upon becoming an Owner, be and
become a Member of the Corporation and shall remain a
Member until such time as his ownership of a Lot ceases
at which time his membership shall terminate and will
be transferred to the new Owner of his Lot; provided,
however, that any person who holds the interest of an
Owner in a Lot merely as security for the performance
of an obligation shall not be a Member until and unless
he realizes upon his security, at which time he shall
automatically be and become an Owner and a Member of
the Corporation.
(b) Voting Rights. The Corporation shall have
two (2) classes of membership with the following voting
rights:
(i) Class A. Class A Members shall be all
Owners except Class B Members. Each
Class A Member shall be entitled to one
(1) vote for each Lot of which such
Member is the Owner with respect to each
matter submitted to a vote of Members
upon which the Class A Members are
entitled to vote. When more than one
(1) person constitutes the Owner of a
particular Lot, all such persons shall
be Members of the Corporation, but all
of such persons shall have only one (1)
vote for such Lot, which vote shall be
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
o
exercised as they
determine, but in
than one (1) vote
to any such Lot.
among themselves
no event shall more
be cast with respect
(ii) Class B. Class B Members shall be
Declarant and all successors and
assigns of Declarant designated by
Declarant as Class B Members in a
written notice mailed or delivered to
the resident agent of the Corporation.
Each Class B Member shall be entitled
to four (4) votes for each Lot of which
it is the Owner on all matters
requiring a vote of the Members of the
Corporation. The Class B membership
shall cease and terminate upon the
Applicable Date, which shall be the
first to occur of (i) the date upon
which the written resignation of the
Class B Members as such is delivered to
the resident agent of the Corporation,
(ii) the date when 75% of all Lots in
all platted and/or planned sections of
Hayden Run have been conveyed by
Declarant, or (iii) , 2008.
(c) Functions. The Corporation has been formed
for the purpose of providing for the maintenance,
repair, upkeep, replacement, administration, operation
and ownership of the Common Area, to pay taxes assessed
against and payable with respect to the Common Area and
to pay any other necessary expenses and costs in
connection with the Common Area and to perform such
other functions as may be designated for it to perform
under this Declaration.
12. Board of Directors
(a) Management. The business and affairs of the
Corporation shall be governed and managed by the Board
of Directors. No person shall be eligible to serve as
a member of the Board of Directors unless he is, or is
deemed in accordance with this Declaration to be, an
#38581v4 -Covenants at Stony Creek ver 3ma Hayden
Run.doc
o
o
Owner, or is a person appointed by Declarant as
provided in subparagraph (b) of this Paragraph 12.
(b) Initial Board of Directors. The Initial Board
of Directors shall be composed of the persons designated
in the Articles, to-wit: Tom Kutz, Tom Fernandez and
Chris White (herein referred to as the "Initial Board"),
all of whom have been or shall be appointed by
Declarant. Notwithstanding anything to the contrary
contained in this Declaration, the Articles or the
Bylaws (a) the Initial Board shall hold office until the
Applicable Date, and (b) in the event of any vacancy or
vacancies occurring in the Initial Board for any reason
or cause whatsoever prior to the Applicable Date,
determined as provided above, every such vacancy shall
be filled by a person appointed by Declarant, who shall
thereafter be deemed a member of the Initial Board.
Each Owner, by acceptance of a deed to a Lot, or by
acquisition of any interest in a Dwelling Unit by any
method shall be deemed to have appointed Declarant as
such Owner's agent, attorney-in-fact and proxy, which
shall be deemed coupled with an interest and irrevocable
until the Applicable Date determined as provided above,
to exercise all of said Owner's right to vote, and to
vote as Declarant determines, on all matters as to which
Members of the Corporation are entitled to vote under
the Declaration, the Articles, the Bylaws or otherwise.
This appointment of Declarant as such Owner's agent,
attorney-in-fact and proxy shall not be affected by
incompetence of the Owner granting the same. Each
person serving on the Initial Board, whether as an
original member thereof or as a member thereof appointed
by Declarant to fill a vacancy, shall be deemed a Member
of the Corporation and an Owner solely for the purpose
of qualifying to act as a member of the Board of
Directors and for no other purpose. No such person
serving on the Initial Board shall be deemed or
considered a Member of the Corporation nor an Owner of a
Lot for any other purpose (unless he is actually the
Owner of a Lot and thereby a Member of the Corporation)
(c) Additional Qualifications. Where an Owner
consists of more than one person or is a partnership,
corporation, trust or other legal entity, then one of
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
o
the persons constituting the multiple Owner, or a
partner or an officer or trustee shall be eligible to
serve on the Board of Directors, except that no single
Lot or Dwelling Unit may be represented on the Board of
Directors by more than one person at a time.
(d) Term of Office and Vacancy. Subject to the
provisions of subparagraph (b) of this Paragraph 12, at
least one (1) member of the Board of Directors shall be
elected at each annual meeting of the Corporation. The
Initial Board shall be deemed to be elected and
re-elected as the Board of Directors at each annual
meeting until the Applicable Date provided herein.
After the Applicable Date, the Board of Directors will
consist of three (3) members, elected by the Owners.
Each member of the Board of Directors shall be elected
for a term of three (3) years, except that at the first
election after the Applicable Date (which, if
appropriate, may be a special meeting) one (1) member of
the Board of Directors shall be elected for a three (3)
year term, one (1) member for a two (2) year term, and
one (1) member for a one (1) year term so that the terms
of at least one-third (1/3) of the members of the Board
shall expire annually. If such election is at a special
meeting, the Directors elected shall serve for the
applicable period plus the time from the special meeting
to the first annual meeting. There shall be separate
nominations for the office of each member of the Board
to be elected at such first election after the
Applicable Date. Each Director shall hold office
throughout the term of his election and until his
successor is elected and qualified. Subject to the
provisions of subparagraph (b) of this Paragraph 12 as
to the Initial Board, any vacancy or vacancies occurring
in the Board shall be filled by a vote of a majority of
the remaining members of the Board or by vote of the
Owners if a Director is removed in accordance with
subparagraph (e) of this Paragraph 12. The Director so
filling a vacancy shall serve until the next annual
meeting of the members and until his successor is
elected and qualified. At the first annual meeting
following any such vacancy, a Director shall be elected
for the balance of the term of the Director so removed
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
Q
.
DRAFT
6/26/01
or in respect to whom there has otherwise been a
vacancy.
(e) Removal of Directors. A Director or
Directors, except the members of the Initial Board, may
be removed with or without cause by vote of a majority
of the votes entitled to be cast at a special meeting of
the Owners duly called and constituted for such purpose.
In such case, his successor shall be elected at the same
meeting from eligible Owners nominated at the meeting.
A Director so elected shall serve until the next annual
meeting of the Owners and until his successor is duly
elected and qualified.
(f) Duties of the Board of Directors. The Board
of Directors shall be the governing body of the
Corporation representing all of the Owners and being
responsible for the functions and duties of the
Corporation, including, but not limited to, providing
for the administration of the Corporation, the
management, maintenance, repair, upkeep and replacement
of the Common Area and Landscape Improvements (unless
the same are otherwise the responsibility or duty of
Owners) and the collection and disbursement of the
Common Expenses. The Board may, on behalf of the
Corporation, employ a reputable and recognized
professional property management agent (herein called
the "Managing Agent") upon such terms as the Board shall
find, in its discretion, reasonable and customary. The
Managing Agent, if one is employed, shall assist the
Board in carrying out its duties, which include, but are
not limited to:
(i) Protection, surveillance and replacement of
the Common Area; provided, however, that this
duty shall not include or be deemed or
interpreted as a requirement that the
Corporation, the Board or any Managing Agent
must provide anyon-site or roving guards,
security service or security system for
protection or surveillance, and the same need
not be furnished;
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
o
DRAFT
6/26/01
(ii) Landscaping, maintenance and upkeep of the
Common Area and Landscape Improvements(except
as is otherwise the obligation of an
Owner);such maintenance obligation
specifically includes, but is not limited to,
walking paths or trails (including that
portion of the path or trail which is included
in any right of way) signage, drainage areas
and facilities, ponds and lakes, and any
private streets or access easements (including
but not limited to those access easements
adjacent to Lots ) .
(iii) Assessment and collection from the Owners of
each Owner's respective share of the Common
Expenses;
(iv) Preparation of the proposed annual budget, a
copy of which will be mailed or delivered to
each Owner at the same time as the notice of
annual meeting is mailed or delivered;
(v) Preparing and delivering annually to the
Owners a full accounting of all receipts and
expenses incurred in the prior year; such
accounting shall be delivered to each Owner
simultaneously with delivery of the proposed
annual budget for the current year;
(vi) Procuring and maintaining for the benefit of
the Corporation and the Board the insurance
coverages required under this Declaration and
such other insurance coverages as the Board,
in its sole discretion, may deem necessary or
advisable;
(vii)
Paying taxes assessed against and payable with
respect to the Common Area and paying any
other necessary expenses and costs in
connection with the Common Area;
(g) Powers of the Board of Directors. The Board
of Directors shall have such powers as are reasonable
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
Q
DRAFT
6/26/01
and necessary to accomplish the performance of their
duties. These powers include, but are not limited to,
the power:
(i) To employ a Managing Agent to assist the
Board in performing its duties;
(ii) To purchase, lease or otherwise obtain
for the Corporation, to enable it to
perform its functions and duties, such
equipment, materials, labor and services
as may be necessary in the judgment of
the Board of Directors;
(iii) To employ legal counsel, architects,
contractors, accountants and others as
in the judgment of the Board of
Directors may be necessary or desirable
in connection with the business and
affairs of the Corporation;
(iv) To employ, designate, discharge and
remove such personnel as in the judgment
of the Board of Directors may be
necessary for the Board of Directors to
perform its duties;
(v) To include the costs of all of the above
and foregoing as Common Expenses and to
pay all of such costs therefrom;
(vi) To open and maintain a bank account or
accounts in the name of the Corporation;
(vii) To promulgate, adopt, revise, amend and
alter from time to time such additional
rules and regulations with respect to
use, occupancy, operation and enjoyment
of the Tract and the Common Area (in
addition to those set forth in this
Declaration) as the Board, in its
discretion, deems necessary or
advisable; provided, however, that
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
o
DRAFT
6/26/01
copies of any such additional rules and
regulations so adopted by the Board
shall be promptly delivered or mailed to
all Owners. Such rules and regulations
may provide that an Owner's failure to
comply with such rules and regulations
may result in (i) the imposition of
fines by the Corporation against such
Owner; and/or (ii) such Owner losing the
right to use the Cornmon Area and related
facilities.
(h) Limitation on Board Action. After the
Applicable Date, the authority of the Board of
Directors to enter into contracts shall be limited to
contracts involving a total expenditure of less than
$5,000.00 without obtaining the prior approval of a
majority of the Owners, except that in the following
cases such approval shall not be necessary:
(i) Contracts for replacing or
restoring portions of the Cornmon
Area damaged or destroyed by fire
or other casualty where the cost
thereof is payable out of insurance
proceeds actually received;
(ii) Proposed contracts and proposed
expenditures expressly set forth in
the proposed annual budget; and
(iii) Expenditures necessary to deal with
emergency conditions in which the
Board of Directors reasonably
believes there is insufficient time
to call a meeting of the Owners.
(i) Compensation. No Director shall receive any
compensation for his services as such except to such
extent as may be expressly authorized by a majority
vote of the Owners. The Managing Agent, if any is
employed, shall be entitled to reasonable compensation
#38581v4 -Covenants at Stony Creek ver 3ma Hayden
Run.doc
o
o
DRAFT
6/26/01
for its services, the cost of which shall be a Common
Expense.
(j) Non-Liability of Directors. The Directors
shall not be liable to the Owners or any other persons
for any error or mistake of judgment exercised in
carrying out their duties and responsibilities as
Directors, except for their own individual willful
misconduct, bad faith or gross negligence. The
Corporation shall indemnify and hold harmless and
defend each of the Directors against any and all
liability to any person, firm or corporation arising
out of contracts made by the Board on behalf of the
Corporation, unless any such contract shall have been
made in bad faith. It is intended that the Directors
shall have no personal liability with respect to any
contract made by them on behalf of the Corporation.
(k) Additional Indemnity of Directors. The
Corporation shall indemnify, hold harmless and defend
any person, his heirs, assigns and legal
representatives, made a party to any action, suit or
proceeding by reason of the fact that he is or was a
Director of the Corporation, against the reasonable
expenses, including attorneys' fees, actually and
necessarily incurred by him in connection with the
defense of such action, suit or proceeding, or in
connection with any appeal therein, except as otherwise
specifically provided herein in actions, suits or
proceedings where such Director is adjudged liable for
bad faith, gross negligence or wilful misconduct in the
performance of his duties. The Corporation shall also
reimburse any such Director the reasonable costs of
settlement of or judgment rendered in any action, suit
or proceeding, if it shall be found by a majority vote
of the Owners that such Director was not guilty of
gross negligence or misconduct. In making such
findings and notwithstanding the adjudication in any
action, suit or proceeding against a Director, no
Director shall be considered or deemed to be guilty of
or liable for negligence or misconduct in the
performance of his duties where, acting in good faith,
such Director relied on the books and records of the
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
Q
DRAFT
6/26/01
Corporation or statements or advice made by or prepared
by the Managing Agent (if any) or any officer or
employee thereof, or any accountant, attorney or other
person, firm or corporation employed by the Corporation
to render advice or service unless such Director had
actual knowledge of the falsity or incorrectness
thereof; nor shall a Director be deemed guilty of or
liable for negligence or misconduct by virtue of the
fact that he failed or neglected to attend a meeting or
meetings of the Board of Directors.
(1) Bond. The Board of Directors may provide
surety bonds and may require the Managing Agent (if
any), the treasurer of the Corporation, and such other
officers as the Board deems necessary, to provide
surety bonds, indemnifying the Corporation against
larceny, theft, embezzlement, forgery,
misappropriation, willful misapplication, and other
acts of fraud or dishonesty, in such sums and with such
sureties as may be approved by the Board of Directors
and any such bond shall specifically include protection
for any insurance proceeds received for any reason by
the Board. The expense of any such bonds shall be a
Common Expense.
13. Initial Management. The Initial Board of Directors has
entered or will hereafter enter into a management agreement with
Declarant or a corporation or other entity affiliated with
Declarant or a third party management company for a term not to
exceed three (3) years with either party having the right to
terminate upon ninety (90) days' notice under which Declarant,
such affiliate of Declarant or such third party management
company will provide supervision, management and maintenance of
the Common Area (except as such is the obligation of the
individual Owners) and in general, perform all of the duties and
obligations of the Corporation. Such management agreement may
be renewed by the parties for additional terms of three (3) or
less years. Such management agreement is or will be subject to
termination by Declarant (or its affiliate as appropriate) at
any time prior to expiration of its term, in which event the
Corporation shall thereupon and thereafter resume performance of
all of its duties and obligations. Notwithstanding anything to
the contrary contained herein, so long as a management agreement
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
Q
DRAFT
6/26/01
is in effect, Declarant shall have and Declarant hereby reserves
to itself the exclusive right to manage the Tract and perform
all the functions of the Corporation.
14. Real Estate Taxes. Real estate taxes are to be
separately assessed and taxed to each Lot. In the event that
for any year the real estate taxes are not separately assessed
and taxed to each Lot but are assessed and taxed on the Real
Estate or part thereof as a whole, without a breakdown for each
Lot, then each Owner shall pay his proportionate share of the
real estate taxes assessed to the land comprising the Real
Estate or that part thereof that is assessed as a whole, which
shall be the ratio that the square footage in his Lot bears to
the total square footage of all the land comprising the Real
Estate or part thereof assessed as a whole. Real estate taxes
assessed on the improvements on the Real Estate shall be paid by
the Owner of such improvements. Any real estate taxes or other
assessments which are chargeable against the Common Area shall
be paid by the Corporation and treated as a Common Expense.
15. Utilities. Each Owner shall pay for his own utilities
which are separately metered. Utilities which are not
separately metered, if any, shall be treated as and paid as part
of the Common Expense unless otherwise determined by the
Corporation.
16. Maintenance, Repairs and Replacements. Maintenance,
repairs, replacements and upkeep of the Common Area and
Landscape Improvements (except as such is the obligation of the
individual Owners) shall be furnished by the Corporation, as a
part of its duties, and the cost thereof shall constitute a part
of the Common Expenses. After the Applicable Date and for so
long as the Declarant owns any Lot(s), Declarant may, upon five
(5) days notice to the Corporation, undertake any maintenance,
repair or upkeep which the Corporation is obligated, but has
failed, to undertake. Declarant may then bill the Corporation
for the cost of such maintenance, repair or upkeep. Such bill,
if not paid by the Corporation within thirty (30) days of
receipt, shall bear interest at the rate of (12%) per annum.
Each Owner shall be responsible for maintaining and keeping
his Lot, Dwelling Unit, and all other structural improvements
located on his Lot in a good, clean, neat, sanitary and well
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
u
o
DRAFT
6/26/01
maintained condition and shall do such work thereon as is
required to cause such Lot and structural improvements to be so
maintained. The obligation to maintain a Lot shall exist,
whether or not a Dwelling Unit exists on such Lot, and the Owner
of such Lot shall keep such Lot maintained in the same manner as
such Lot would be maintained if a Dwelling Unit existed thereon.
Each Owner shall also maintain (i) the dusk-to-dawn lights
installed on his Lot in good working condition, including but
not limited to, replacement of photo cells; (ii) the mailbox and
post installed on his Lot in good working condition; and (iii)
any trees originally planted on his Lot in the area adjacent to
the sidewalk ("Street Trees"). Any repair or replacement of
mailboxes and/or posts shall be of the same design and quality
as originally installed by Declarant. In the event any Street
Tree dies, the Owner of such Lot shall be responsible for
replacing, at Owner's expense, the Street Tree with a
substantially similar tree, meaning a tree of the same species
as the original Street Trees and with a minimum caliper of 2 ~
inches. Each Owner shall be responsible for the maintenance of
the Street Trees located on his Lot.
Notwithstanding any obligation or duty of the Corporation to
repair or maintain the Cornmon Area or Landscape Improvements,
if, due to the willful, intentional or negligent acts or
omissions of an Owner or of a member of his family or of a
guest, tenant, invitee or other occupant or visitor of such
Owner, damage shall be caused, or if maintenance, repairs or
replacements shall be required thereby, which would otherwise be
a Cornmon Expense, then such Owner shall pay for such damage and
such maintenance, repairs and replacements, as may be determined
by the Corporation, unless such loss is covered by the
Corporation's insurance with such policy having a waiver of
subrogation clause. If not paid by such Owner upon demand by
the Corporation, the cost of repairing such damage shall be
added to and become a part of the assessment to which such
Owner's Lot is subject.
If any Owner shall fail (i) maintain and keep his Lot,
Dwelling Unit and other structural improvements located on his
Lot in a good, clean and sanitary condition as determined by the
Board of Directors or (ii) comply with the terms of this
Paragraph 16, the Corporation may perform any work necessary to
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
o
DRAFT
6/26/01
do so and charge the Owner thereof for such cost, which cost
shall be added to and become a part of the Owner's assessment,
and such cost shall be immediately due, and shall be secured by
the Corporation's lien on the Owner's Lot.
So long as the Tract is subject to this Declaration each
Owner, by his acceptance of a deed to any Lot, irrevocably
grants to the Corporation, its agents and employees, the right,
in the form of a permanent easement, to enter upon, across and
over the Lot owned by such Owner under such conditions as are
reasonably necessary to effect the maintenance, cleaning,
repair, landscaping or other work contemplated herein.
17. Architectural Control
(a) The Architectural Review Board. As a
standing committee of the Corporation, there shall be,
and hereby is, established an Architectural Review
Board consisting of five (5) or more persons. Until
the Applicable Date, the Architectural Review Board
shall be the Initial Board of Directors. After the
Applicable Date, the Architectural Review Board shall
be appointed by the Board of Directors and may be
different than or the same as the Board of Directors.
(b) Purposes. The Architectural Review Board
shall regulate the external design, appearance, use,
location and maintenance of the Tract (including the
Common Area, Easements, Landscape Improvements and
Lots) and of improvements thereon in such manner as to
preserve and enhance values and to maintain a
harmonious relationship among structures and
improvements.
(c) Conditions. No improvements, alterations,
excavation or changes in grade or other work which in
any way alters any Lot or the exterior of any Dwelling
Unit or other improvement thereon shall be made or done
without the prior written approval of the Architectural
Review Board, except as otherwise expressly provided in
this Declaration. There shall be no requirement that
the Architectural Review Board approve the initial
construction of a Dwelling Unit on a Lot. No building,
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
Q
DRAFT
6/26/01
fence, wall, Dwelling Unit, or other structure shall be
commenced, erected, maintained, improved, altered, made
or done on any Lot without the prior written approval
of the plans by the Architectural Review Board other
than the initial construction of a Dwelling Unit and
other improvements provided the plans for such
construction are approved by Declarant.
(d) Procedures. In the event the Architectural
Review Board fails to approve, modify or disapprove in
writing an application within thirty (30) days after
such application (and all plans, drawings,
specifications and other items required to be submitted
to it in accordance with such rules as it may adopt)
have been given to it, approval will be deemed granted
by the Architectural Review Board. A decision of the
Architectural Review Board may be appealed to the Board
of Directors which may reverse or modify such decision
by a majority vote.
18. Assessments
(a) Annual Accounting. Annually, after the close
of each fiscal year of the Corporation, the Board shall
cause to be prepared and furnished to each Owner a
financial statement prepared by an accounting group
approved by the Board, which statement shall show all
receipts and expenses received, incurred and paid
during the preceding fiscal year.
(b) Proposed Annual Budget. Annually, before the
date of the annual meeting of the Corporation, the
Board of Directors shall cause to be prepared a
proposed annual budget for the next fiscal year
estimating the total amount of the Common Expenses for
the next fiscal year and shall furnish a copy of such
proposed budget to each Owner at or prior to the time
the notice of such annual meeting is mailed or
delivered to such Owners. The annual budget shall be
submitted to the Owners at the annual meeting of the
Corporation for adoption and, if so adopted, shall be
the basis for the Regular Assessments (hereinafter
defined) for the next fiscal year. At the annual
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
o
DRAFT
6/26/01
meeting of the Owners, notwithstanding any other
provision in this Declaration, the Articles or the
Bylaws, the budget may be approved in whole or in part
or may be amended in whole or in part by a majority
vote of those Owners present either in person or by
proxy; provided, however, that in no event shall the
annual meeting of the Owners be adjourned until an
annual budget is approved and adopted at such meeting,
either the proposed annual budget or the proposed
annual budget as amended. The annual budget, the
Regular Assessments and all sums assessed by the
Corporation shall be established by using generally
accepted accounting principles applied on a consistent
basis.
The annual budget and the Regular Assessments
shall, in addition, be established to include the
establishment and maintenance of a replacement reserve
fund for capital expenditures and replacement and
repair of the Cornmon Area and Landscape Improvements
that must be repaired and replaced on a periodic basis,
which replacement reserve fund shall be used for those
purposes and not for usual and ordinary maintenance
expenses. By way of example only, the replacement
reserve fund will be used for repairing and replacing
items such as pumps, filters, landscaping (other than
annual plantings and mulch), equipment, playground
facilities and clubhouse furnishings and equipment.
Usual and ordinary expenses which will not be paid out
of the replacement reserve fund include but are not
limited to, snow removal, fertilization, annual
plantings, mulch, and preventive maintenance contracts.
Such replacement reserve fund shall be maintained by
the Corporation in a separate interest bearing account
or accounts with one or more banks or savings and loan
associations authorized to conduct business in Hamilton
County, Indiana selected from time to time by the
Board.
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
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
u
o
.
DRAFT
6/26/01
to pay the Common Expenses as herein provided, whenever
determined. Whenever, whether before or after the
annual meeting of the Corporation, there is no annual
budget approved by the Owners as herein provided for
such current fiscal year, the Owners shall continue to
pay Regular Assessments and Additional Assessments for
Duplex Units based upon the last approved budget or, at
the option of the Board, based upon one hundred and ten
percent (110%) of such last approved budget, as a
temporary budget.
(c) Regular Assessments. The annual budget, as
adopted by the Owners, shall, based on the estimated
cash requirement for the Common Expenses in the current
fiscal year as set forth in said budget, contain a
proposed assessment, against each Lot equal to the
Common Expenses multiplied by a percentage equal to one
divided by the total number of Lots in the Tract.
Immediately following the adoption of the annual
budget, each Owner shall be given written notice of
such assessment against his respective Lot (herein
called the "Regular Assessment"); provided however,
that any Regular Assessments, Special Assessments or
Additional Assessments may be applied to Lots owned by
Declarant only with the written consent of Developer
which written consent shall not be inferred or implied
by Declarant's execution and recordation of this
Declaration. In the event the Regular Assessment for a
particular fiscal year is initially based upon a
temporary budget, such Regular Assessment shall be
revised, within fifteen (15) days following adoption of
the final annual budget by the Owners, to reflect the
assessment against each Lot based upon such annual
budget as finally adopted by the Owners. The aggregate
amount of the Regular Assessments shall be equal to the
total amount of expenses provided and included in the
final annual budget, including reserve funds as herein
provided. The Regular Assessment against each Lot
shall be paid in advance in two equal semi-annual
installments with the first payment due on the first
day of the first month of each fiscal year. Payment of
the semi-annual installments of the Regular Assessment
shall be made to the Board of Directors or the
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
o
DRAFT
6/26/01
Managing Agent, as directed by the Board of Directors;
provided, however, the Owners may elect to pay
assessments annually, in advance. In the event the
Regular Assessment for a particular fiscal year of the
Corporation was initially based upon a temporary
budget:
(i) If the Regular Assessment based
upon the final annual budget
adopted by the Owners exceeds the
amount of the Regular Assessment
based upon the temporary budget,
that portion of such excess
applicable to the period from the
first day of the current fiscal
year to the date of the next
payment of the Regular Assessment
which is due shall be paid with
such next payment, and all payments
thereafter during such fiscal year,
shall be increased so that the
Regular Assessment as finally
determined shall be paid in full by
the remaining payments due in such
fiscal year, or
(ii) If the Regular Assessment based
upon the temporary budget exceeds
the Regular Assessment based upon
the final annual budget adopted by
the Owners, such excess shall be
credited against the next payment
or payments of the Regular
Assessment coming due, until the
entire amount of such excess has
been so credited;
provided, however, that if an Owner had paid his
Regular Assessment annually in advance, then the
adjustments set forth under (i) or (ii) above shall be
made by a cash payment by, or refund to, the Owner on
the first day of the second month following the
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
o
DRAFT
6/26/01
determination of the Regular Assessment based upon the
annual budget finally adopted by the Owners.
The Regular Assessment for the current fiscal
year of the Corporation shall become a lien on each
separate Lot as of the first day of each fiscal year of
the Corporation, even though the final determination of
the amount of such Regular Assessment may not have been
made by that date. The fact that an Owner has paid his
Regular Assessment for the current fiscal year in whole
or in part based upon a temporary budget and
thereafter, before the annual budget and Regular
Assessment are finally determined, approved and
adjusted as herein provided, sells, conveys or
transfers his Lot or any interest therein, shall not
relieve or release such Owner or his successor as Owner
of such Lot from payment of the Regular Assessment for
such Lot as finally determined, and such Owner and his
successor as Owner of such Lot shall be jointly and
severally liable for the Regular Assessment as finally
determined. Any statement of unpaid assessments
furnished by the Corporation pursuant to Paragraph 19
hereof prior to the final determination and adoption of
the annual budget and Regular Assessment for the year
in which such statement is made shall state that the
matters set forth therein are subject to adjustment
upon determination and adoption of the final budget and
Regular Assessment for such year, and all parties to
whom any such statement may be delivered or who may
rely thereon shall be bound by such final
determinations. Semi-annual installments of Regular
Assessments shall be due and payable automatically on
their respective due dates without any notice from the
Board or the Corporation, and neither the Board nor the
Corporation shall be responsible for providing any
notice or statements to Owners for the same.
(d) Special Assessments. From time to time
Common Expenses of an unusual or extraordinary nature
or not otherwise anticipated may arise. At such time
and without the approval of the Owners, unless
otherwise provided in this Declaration, the Board of
Directors shall have the full right, power and
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
o
DRAFT
6/26/01
authority to make special assessments which, upon
resolution of the Board, shall become a lien on each
Lot, prorated in equal shares (herein called "Special
Assessment"). 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.
(e) Additional Assessments. In the event that
Declarant constructs any recreational or similar
facilities which recreational or similar facilities are
for the sole benefit and use of the Owners of Lots in a
particular section of Hayden Run, the expenses
associated therewith shall be an Additional Assessment.
Any Additional Assessment will be assessed against each
Lot in that section in an amount equal to the expenses
multiplied by a percentage equal to one (1) divided by
the total number of Lots in the affected section. Such
Additional Assessment shall be included in the annual
budget and shall be due at the same time as the Regular
Assessment. In the event the Additional Assessment for
a particular fiscal year of the Corporation was based
upon a temporary budget, any adjustment shall be done
in the manner provided for Regular Assessments under
Paragraph 18 (c).
(f) Regular Assessments Prior to the Applicable
Date. During the period that Declarant is selling Lots
and Dwelling Units are being constructed within the
Tract, it is difficult to accurately allocate the
Common Expenses to the individual Lots. The purpose of
this section is to provide the method for the payment
of the Common Expenses during the period prior to the
Applicable Date to enable the Corporation to perform
its duties and functions. Accordingly and
notwithstanding any other provision contained in the
Declaration, the Articles or the Bylaws or otherwise,
prior to the Applicable Date, the annual budget and all
Regular Assessments, Additional Assessments and Special
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
o
DRAFT
6/26/01
Assessments shall be established by the Initial Board
without any meeting or concurrence of the Owners;
provided, however, the Regular Assessments shall be
determined in accordance with the provisions contained
in this Paragraph 18.
Prior to the Applicable Date, the Corporation
will enter into a management agreement with Declarant
or a corporation or other entity affiliated with
Declarant or a third party management company
(hereinafter referred to as "Management Agent" or
"Managing Agent") in, accordance with the provisions of
Paragraph 13 of this Declaration. So long as such
management agreement remains in effect, the Common
Expenses or Regular Assessments shall be paid by Owners
to Management Agent. Management Agent shall guarantee
that until the earlier of (1) the termination of said
management agreement, or (2) December 31, 2001, the
yearly Regular Assessment shall not exceed $
After December 31, 2001, assuming that said management
agreement has not been terminated) and so long
thereafter as said management agreement remains in
effect and Management Agent continues to perform such
functions, Management Agent guarantees that the yearly
Regular Assessment shall not exceed the amount of the
Guaranteed Charge, plus (1) the greater of an amount
representing an increase thereof to reflect any
increase in the Consumer Price Index (all items - all
cities) published by the United States government over
such index as existed in the month of December, 2001,
or (2) ten percent (10%). The amount to be added to
the Guaranteed Charge shall be in an amount equal to
the same percentage of the Guaranteed Charge as the
percentage increase in said Consumer Price Index or ten
percent (10%), whichever is greater, or if Declarant so
determines a lesser amount. Such adjustments to the
Guaranteed Charge shall be made annually on the first
day of each fiscal year so long as said management
agreement remains in effect and Management Agent
continues to perform such functions. Such yearly
charge shall, during such guaranteed period, entirely
defray the Owner's obligation for his share of Common
Expenses or shall be the Owner's entire Regular
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
Q
(;)
DRAFT
6/26/01
Assessment. Declarant shall be responsible for any
deficit during such guarantee period; provided,
however, that this guarantee is not intended to
include, and does not include, major physical
alterations or other unusual expenditures not
ordinarily anticipated in normal maintenance
operations. Such expenditures would be covered through
Special Assessments, or, if sufficient, the replacement
reserve fund.
Prior to the Applicable Date, ten percent (10%)
of the Regular Assessment shall be deposited into the
replacement reserve fund (as established by Paragraph
18 (b)) until the balance of such replacement reserve
fund is $25,000.00. Thereafter, deposits into the
replacement reserve fund will cease unless and until
expenditures are made from such fund, at which time ten
percent (10%) of the Regular Assessments will again be
deposited into such fund until the balance of such fund
again reaches $25,000.00. After the Applicable Date,
ten percent (10%) of the Regular Assessment will be
deposited into the replacement reserve fund regardless
of the balance of such fund.
That portion of the Regular Assessment collected
by Declarant prior to the Applicable Date applicable to
the replacement reserve fund shall be held by the
Initial Board and if required, applied to the repair
and replacement of the Common Area and Landscape
Improvements as also described in Paragraph 18(b). To
the extent that such replacement reserve fund is not so
applied, the balance thereof shall be retained by the
Corporation at the Applicable Date.
Payment of the Regular Assessment prior to the
Applicable Date with respect to each Lot shall commence
on the date of conveyance of such Lot by Declarant to
such new qwner ("Commencement Date"). The first
payment shall be payable on the Commencement Date
prorated to the first day of the month when the next
semi-annual payment is due. Thereafter, payment of the
Regular Assessment shall be paid semi-annually
beginning with the first day of the fiscal year or the
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
Q
o
DRAFT
6/26/01
first day of the seventh calendar month of the fiscal
year, as applicable.
Each Owner hereby authorizes the Corporation and
the Board of Directors and its officers to enter into
the aforesaid management agreement described in
Paragraph 13 of this Declaration and to adhere to and
abide by the same.
Neither the Declarant, or any builder
constructing Dwelling Units within the Tract shall be
assessed any portion of any Regular, Special or
additional Assessment prior to the Applicable Date.
(g) Failure of Owner to Pay Assessments. No
Owner may exempt himself from paying Regular
Assessments, Additional Assessments and Special
Assessments or from contributing toward the Common
Expenses or toward any other expense lawfully agreed
upon by waiver of the use or enjoyment of the Common
Area or by abandonment of the Lot belonging to him.
Each Owner shall be personally liable for the payment
of all Regular, Additional and Special Assessments.
Where the Owner constitutes more than one person, the
liability of such persons shall be joint and several.
If any Owner shall fail, refuse or neglect to make any
payment of any Regular Assessment, Additional
Assessment or Special Assessment when due, the lien for
such assessment on the Owner's Lot and Dwelling Unit
may be filed and foreclosed by the Board of Directors
for and on behalf of the Corporation as a mortgage on
real property or as otherwise provided by law. Upon
the failure of the Owner to make timely payments of any
Regular Assessment, Additional Assessment or Special
Assessment when due the Board may, in its discretion,
accelerate the entire balance of unpaid assessments and
declare the same immediately due and payable,
notwithstanding any other provisions hereof to the
contrary. The Board may, at its option, bring suit to
recover a money judgment for any unpaid Regular
Assessment, Additional Assessment or Special Assessment
without foreclosing or waiving the lien securing the
same. In any action to recover a Regular Assessment or
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
Q
Q
DRAFT
6/26/01
Special Assessment, whether by foreclosure or
otherwise, the Board for and on behalf of the
Corporation shall be entitled to recover from the Owner
of the respective Lot and Dwelling Unit costs and
expenses of such action incurred (including but not
limited to reasonable attorneys' fees) and interest
from the date such assessments were due until paid at
the rate equal to the prime interest rate as announced
by Bank One, Indianapolis, NA, from time to time by (or
if said bank is no longer in existence then such rate
charged by a national bank in Hamilton County, Indiana,
selected by the Board of Directors) during the unpaid
period plus three percent (3%).
(h) Subordination of Assessment Lien to
Mortgage. Notwithstanding anything contained in this
Declaration, the Articles or the Bylaws, any sale or
transfer of a Lot to a Mortgagee pursuant to a
foreclosure on its mortgage or conveyance in lieu
thereof, or a conveyance to any person at a public sale
in a manner provided by law with respect to mortgage
foreclosures shall extinguish the lien of any unpaid
installment of any Regular Assessment, Additional
Assessment or Special Assessment as to such installment
which became due prior to such sale, transfer or
conveyance; provided, however, that the extinguishment
of such lien cannot relieve the prior owner from
personal liability therefor. No such sale, transfer or
conveyance shall relieve the Lot and Dwelling Unit or
the purchaser at such foreclosure sale or grantee in
the event of conveyance in lieu thereof, from liability
for any installments of Regular Assessments, Additional
Assessments or Special Assessments thereafter becoming
due or from the lien therefor. Such unpaid share of
any Regular Assessments, Additional Assessments or
Special Assessments, the lien for which has been
divested as aforesaid shall be deemed to be a Common
Expense collectible from all Owners (including the
party acquiring the subject Lot from which it arose) .
19. Mortgages and Unpaid Assessments.
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
u
o
DRAFT
6/26/01
(a) Notice to Corporation. Any Owner who places
a first mortgage lien upon his Lot, or the Mortgagee,
shall notify the Secretary of the Corporation thereof
and provide the name and address of the Mortgagee. A
record of such Mortgagee and name and address shall be
maintained by the Secretary and any notice required to
be given to the Mortgagee pursuant to the terms of this
Declaration, the Bylaws or otherwise shall be deemed
effectively given if mailed to such Mortgagee at the
address shown in such record at the time provided.
Unless notification of any such mortgage and the name
and address of Mortgagee are furnished to the
Secretary, either by the Owner or the Mortgagee, no
notice to any Mortgagee, as may be otherwise required
by this Declaration, the Bylaws or otherwise, shall be
required and no Mortgagee shall be entitled to vote on
any matter to which it otherwise may be entitled by
virtue of this Declaration, the Bylaws, a proxy granted
to such Mortgagee in connection with the mortgage, or
otherwise.
The Corporation shall, upon request of a
Mortgagee who has furnished the Corporation with its
name and address as hereinabove provided, furnish such
Mortgagee with written notice of any default in the
performance by its borrower of any obligations of such
borrower under this Declaration or the Bylaws which is
not cured within sixty (60) days.
(b) Notice of Unpaid Assessments. The
Corporation shall, upon request of a Mortgagee, a
proposed mortgagee, or a proposed purchaser who has a
contractual right to purchase a Lot, furnish to such
Mortgagee or purchaser a statement setting forth the
amount of the unpaid Regular Assessments, Additional
Assessments or Special Assessments or other charges
against the Lot, which statement shall be binding upon
the Corporation and the Owners, and any Mortgagee or
grantee of the Lot shall not be liable for nor shall
the Lot conveyed be subject to a lien for any unpaid
assessments or charges in excess of the amounts set
forth in such statement or as such assessments may be
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
Q
Q
DRAFT
6/26/01
adjusted upon adoption of the final annual budget, as
referred to in Paragraph 18 hereof.
(c) Right of Mortgagee to Pay Real Estate Taxes
or Insurance Premiums. Mortgagees shall have the
right, but not the obligation, (1) to pay any taxes or
other charges against the Common Area which are in
default and (2) to pay any overdue premiums on hazard
insurance for the Common Area or to secure new hazard
insurance for the Common Area on the lapse of a policy.
Any mortgagee making such payment shall be owed
immediate reimbursement by the Corporation.
20. Insurance.
(a) Casualty Insurance. The Corporation shall
purchase a master casualty insurance policy affording
fire and extended coverage insurance insuring all of
the Common Area and Landscape Improvements in an amount
equal to the full replacement value of the improvements
which in whole or in part, comprise the Common Area and
Landscape Improvements, unless the Board determines
that a lesser amount of insurance is appropriate. If
the Board of Directors can obtain such coverage for
reasonable amounts they shall also obtain "all risk"
coverage. The Board of Directors shall be responsible
for reviewing at least annually the amount and type of
such insurance and shall purchase such additional
insurance as is necessary to provide the insurance
required above.
All proceeds payable as a result of casualty
losses sustained which are covered by insurance
purchased by the Corporation as hereinabove set forth
shall be paid to it or to the Board of Directors. The
proceeds shall be used or disbursed by the Corporation
or Board of Directors, as appropriate.
Such master casualty insurance policy, and "all
risk" coverage, if obtained, shall (to the extent the
same are obtainable) contain provisions that the
insurer (a) waives its right to subrogation as to any
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
u
Q
DRAFT
6/26/01
claim against the Corporation, the Board of Directors,
its agents and employees, Owners, their respective
agents and guests, and (b) contains an endorsement that
such policy shall not be terminated for nonpayment of
premiums without at least thirty (30) days prior
written notice to Mortgagees.
Each Owner shall be solely responsible for loss
or damage to his Dwelling Unit and the contents
thereof, however caused, and his personal property
stored elsewhere on the Tract and the Corporation shall
have no liability to the Owner for such loss or damage.
Each Owner shall be solely responsible for obtaining
his own insurance to cover any such loss and risk.
(b) Public Liability Insurance. The Corporation
shall also purchase a master comprehensive public
liability insurance policy in such amount or amounts as
the Board of Directors shall deem appropriate from time
to time. Such comprehensive public liability insurance
policy shall cover the Corporation, the Board of
Directors, any committee or organ of the Corporation or
Board, any Managing Agent appointed or employed by the
Corporation, all persons acting or who may come to act
as agents or employees of any of the foregoing with
respect to the Tract. Such public liability 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 Corporation or other Owners.
(c) Other Insurance. The Corporation shall also
obtain any other insurance required by law to be
maintained, including but not limited to workmen's
compensation and occupational disease insurance, and
such other insurance as the Board of Directors shall
from time to time deem necessary, advisable or
appropriate, including, but not limited to, liability
insurance on vehicles owned or leased by the
Corporation and officers' and directors' liability
policies. Such insurance shall inure to the benefit of
each Owner, the Corporation, the Board of Directors and
any Managing Agent acting on behalf of the Corporation.
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
o
~
DRAFT
6/26/01
Each Owner shall be deemed to have delegated to the
Board of Directors his right to adjust with the
insurance companies all losses under the policies
purchased by the Board of Directors the proceeds of
which are payable to the Board or the Corporation.
(d) General Provisions. The premiums for all
insurance hereinabove described shall be paid by the
Corporation as part of the Common Expenses.
(e) Owners to Maintain Insurance. Each Owner of
a Dwelling Unit shall at all times maintain fire and
extended coverage insurance in an amount equal to the
full insurable replacement cost of such Dwelling Unit.
21. Casualty and Restoration of Common Dwelling Area.
In the event of damage to or destruction of any of the
Common Area or Landscape Improvements due to fire or any other
casualty or disaster, the Corporation shall promptly cause the
same to be repaired and reconstructed. The proceeds of
insurance carried by the Corporation, if any, shall be applied
to the cost of such repair and reconstruction.
In the event the insurance proceeds, if any, received by the
Corporation as a result of any such fire or any other casualty
or disaster are not adequate to cover the cost of repair and
reconstruction of the Common Area or Landscape Improvements, or
in the event there are no insurance proceeds, the cost for
restoring the damage and repairing and reconstructing the Common
Area so damaged or destroyed (or the costs thereof in excess of
insurance proceeds received, if any) shall be assessed by the
Corporation against all of the Owners in equal shares. Any such
amounts assessed against the Owners shall be assessed as part of
the Common Expenses and shall constitute a lien from the time of
assessment as provided herein.
For purposes of this Article, repair, reconstruction and
restoration shall mean construction or rebuilding the Common
Area or Landscape Improvement to as near as possible the same
condition as it existed immediately prior to the damage or
destruction.
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
Q
u
DRAFT
6/26/01
22. Covenants and Restrictions. The following covenants
and restrictions on the use and enjoyment of the Lots, Dwelling
Units, Common Area shall be in addition to any other covenants
or restrictions contained herein and in the Plat, and all such
covenants and restrictions are for the mutual benefit and
protection of the present and future Owners and shall run with
the land and inure to the benefit of and be enforceable by any
Owner, or by the Corporation. Present or future Owners or the
Corporation shall be entitled to injunctive relief against any
violation or attempted violation of any such covenants and
restrictions, and shall, in addition, be entitled to damages for
any injuries or losses resulting from any violations thereof,
but there shall be no right of reversion or forfeiture
resulting from such violation. These covenants and restrictions
are as follows:
(a) All Lots and Dwelling Units shall be used
exclusively for residential purposes and for occupancy
by a single family. No Lot shall be subdivided to form
lots of less area.
(b) All Dwelling Units shall have the minimum
square footage of finished living area (exclusive of
garages, carports, basements and porches) required by
the Planned Unit Development Approval for the Hayden
Run and/or applicable zoning and subdivision laws.
(c) Nothing shall be done or kept in any Dwelling
Unit, or on any Lot, or on the Common Area which will
cause an increase in the rate of insurance on any
Common Area. No Owner shall permit anything to be done
or kept in his Dwelling Unit or on his Lot or on any of
the Common Area which will result in a cancellation of
insurance on any Dwelling Unit or any part of the
Common Area, or which would be in violation of any law
or ordinance or the requirements of any insurance
underwriting or rating bureau.
(d) No nuisance shall be permitted on any Lot.
(e) No Owner shall cause or permit anything to be
hung or displayed on the outside of the windows of his
Dwelling Unit or placed on the outside walls of any
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
u
Q
DRAFT
6/26/01
Dwelling Unit or building. No sign, awning, canopy,
shutter or radio or television antenna or other
attachment or thing shall be affixed to or placed upon
the exterior walls or roofs or any other parts of any
Dwelling Unit without the prior written consent of the
Architectural Review Board. No sign of any kind shall
be displayed to the public view on any Lot, except that
one sign of not more than six (6) square feet may be
displayed at any time solely for the purpose of
advertising a property for sale, and except that
Declarant may use larger signs during the sale and
development of the Tract.
(f) No animals, livestock or poultry of any kind
shall be raised, bred or kept in any Dwelling Unit or
on any Lot or any of the Common Area or any of the
Easements, except that pet dogs, cats or customary
household pets may be kept in a Dwelling Unit, provided
that such pet is not kept, bred or maintained for any
commercial purpose, and does not create a nuisance.
(g) All rubbish, trash or garbage shall be stored
in closed sanitary containers, shall be regularly
removed from the premises, and shall not be allowed to
accumulate.
(h) No industry, trade, or other commercial or
religious activity, educational or otherwise, designed
for profit, altruism or otherwise, shall be conducted,
practiced or permitted on the Tract; provided, however,
that notwithstanding the foregoing, lawful home offices
and home business activities conducted by the Owner of
such Dwelling Unit are permissible provided all of the
following conditions are met:
(i) there is not significant increased
traffic in and around the Tract as
a result of such use or activity;
(ii) no signs, billboards, or other
advertising materials are
displayed or posted on the
exterior of any Dwelling Unit or
anywhere else on the Tract;
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
(iii)
(iv)
(v)
(vi)
u
u
DRAFT
6/26/01
the use or activity does not
violate existing zoning laws;
the use or activity does not
violate any of the other
provisions of this Declaration,
including, but not limited to,
this paragraph 22;
the Owner of the Dwelling Unit
shall maintain all necessary
casualty and public liability
insurance; and
such use or activity is conducted
during reasonable hours.
(i) No structure of a temporary character,
trailer, boat, camper, bus or tent shall be maintained
on any Lot, nor shall any garage or other building,
except a permanent residence, be used on any Lot at any
time as a residence or sleeping quarters either
temporarily or permanently.
(j) All Owners and members of their families,
their guests, or invitees, and all occupants of any
Dwelling Unit or other persons entitled to use the same
and to use and enjoy the Common Area or any part
thereof, shall observe and be governed by such rules
and regulations as may from time to time be promulgated
and issued by the Board governing the operation, use
and enjoyment of the Common Area.
(k) No boat docks, decks, rafts or similar
structures or improvements shall be permitted on or
near the lakes. No Owner of any Lot shall do or permit
to be done any action or activity which could result in
the pollution of the lakes, diversion of water, change
in elevation of the water level, earth disturbance
resulting in silting or any other conduct which could
result in an adverse effect upon water quality,
drainage or proper lake management or otherwise impair
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
Q
DRAFT
6/26/01
or interfere with the use of the lake for drainage and
related purposes for the benefit of Hayden Run. No
Owner, members of their families, guests or invitees or
occupants of any Dwelling Unit or other persons
entitled to use the same, may swim, boat, ice skate or
engage in similar activities on the lake.
(1) No boats, campers, trailers of any kind,
busses, mobile homes, recreational vehicles, trucks
(larger than 3/4 ton), motorcycles, minibikes or mopeds
shall be permitted, parked or stored anywhere within
the Tract, unless stored completely enclosed within a
garage. No repair work shall be done on the Tract on
any vehicles, including passenger automobiles unless
completely enclosed within a garage.
(m) No Owner shall be allowed to plant trees,
landscape or do any gardening in any of the Common Area
or Easements, except with express prior permission from
the Board.
(n) The Common Area shall be used and enjoyed
only for the purposes for which it is designed and
intended, and shall be used subject to the rules and
regulations from time to time adopted by the Board.
(0) No Owner may rent or lease his Dwelling Unit
for transient or hotel purposes.
(p) Any Owner who leases a Dwelling Unit shall
lease the entire Dwelling Unit and shall have a written
lease which shall provide that the lease is subject to
the provisions of the Declaration and any failure of
the lessee to comply with the terms of the Declaration,
shall be a default under the lease.
(q) There are designated on the Plat building
lines. Except as required for utilities to serve the
Tract or a Lot, no building or structure will be
permitted within this no-build area.
(r) Each Owner by acceptance of a deed to a Lot
shall be deemed to have waived such Owner's right to
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
u
o
DRAFT
6/26/01
remonstrate against annexation of all or any portion of
the Tract.
(s) No detached structure shall be maintained on
any Lot except with the express prior permission from
the Architectural Review Board.
(t) Any fences to be constructed on a Lot must be
constructed in accordance with the provisions hereof
and must be approved by the Architectural Review Board
prior to the installation of any fence. The
Architectural Review Board will not approve any fence
unless it complies with the following requirements:
(i) the fence is located in the rear
yard of the Lot (the fence shall
adjoin the rear side of the Dwelling
Unit); there shall be no fences
whatsoever constructed in the front
yard of any Lot;
(ii) the fence shall be either a four (4)
foot black vinyl fence; six (6) foot
wood, shadowbox or dog-eared fence;
or a wood fence constructed with
cedar treated gothic top spaced
picket panels (42"x8" panels with 3-
3/8" pickets and no more than 2-1/2"
between pickets), as more
particularly shown on Exhibit C
attached hereto and incorporated
herein (the "Picket Fence").
(iii) there shall be no fences or any other
permanent improvements constructed in any
part of any Lot which is part of the
Common Area.
(iv) only Picket Fences (as described in
(ii) above) and shown on Exhibit C
will be allowed on any Lot adjoining
a lake, a trail or any part of the
Common Area.
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
u
Q
DRAFT
6/26/01
(v) All fences must be located on the
property line and must adjoin any
existing fence(s) on adjacent
Lot(s) .
(u) No antenna, satellite dishes or
other device for the transmission or
reception of radio, television or
satellite signals or any other form
of electromagnetic radiation shall
be erected, used or maintained
outdoors and above ground whether
attached to a Dwelling Unit or
otherwise on any Lot without the
written approval of the
Architectural Review Board.
Notwithstanding the foregoing, any
such device may be installed and
maintained on any Lot without the
written approval of the
Architectural Review Board if (i) it
is not ~isible from neighboring
Lots, streets or Common Area; or
(ii) the Owner prior to installation
has received the written consent of
the Owners of all Lots who would
have views of the device from their
Lots and presented such consents to
the Architectural Review Board; or
(iii) the device is virtually
indistinguishable from structures,
devices or improvements such as heat
pumps, air conditioning units,
barbeque grills, patio furniture and
garden equipment which are allowed
by this Declaration; or (iv) it is a
satellite dish two (2) feet or less
in diameter.
Notwithstanding anything to the contrary contained herein
or in the Articles or Bylaws, including, but not limited to,
any covenants and restrictions set forth herein or otherwise,
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
o
i
DRAFT
6/26/01
Declarant shall have, until the Applicable Date, the right to
use and maintain any Lots and Dwelling Units owned by Declarant
and other portions of the Tract (other than individual Dwelling
Units and Lots owned by persons other than Declarant), all of
such number and size and at such locations as Declarant in its
sole discretion may determine, as Declarant may deem advisable
or necessary in its sole discretion to aid in the construction
of Dwelling Units and the sale of Lots and Dwelling Units or
for the conducting of any business or activity attendant
thereto, including, but not limited to, model Dwelling Units,
storage areas, construction yards, signs, construction offices,
sales offices, management offices and business offices.
Declarant 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 be or become
part of the Common Area, unless so designated by Declarant, and
Declarant shall have the right to remove the same from the
Tract at any time.
23. Expanding the Real Estate That is Subject to the
Declaration. The Real Estate that is described herein as
Section 1 (in paragraph B of the recitals of this Declaration)
is the Real Estate being subjected to this Declaration and
constitutes Section 1 of the general plan of development of the
Real Estate. The balance of the Real Estate is the additional
real estate that Declarant has the right to subject to the
terms and provisions of this Declaration. The maximum number
of Lots which may be developed on the Real Estate is seventy
(70), including the Lots in Section 1. Subject to said limit
as to the maximum number of Lots to be developed on the Real
Estate, and the obligations and restrictions contained in this
Declaration, Hayden Run may be expanded by Declarant to include
additional portions of the Real Estate in one or more
additional Sections by the execution and recording of one or
more amendments or supplements to this Declaration and one or
more final plats; provided, however, that no single exercise of
such right and option of expansion as to any part or parts of
the Real Estate shall preclude Declarant from time to time
further expanding Hayden Run to include other portions of the
Real Estate and such right and option of expansion may be
exercised by Declarant from time to time as to all or any
portions of the Real Estate so long as such expansion is done
on or before , 2008. Such expansion is entirely at
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
u
o
DRAFT
6/26/01
the discretion of Declarant and nothing contained in this
original Declaration or otherwise shall require Declarant to
expand. Hayden Run beyond Section 1 or any other portion of the
Real Estate which Declarant may voluntarily in its sole
discretion, from time to time, subject to this Declaration by
amendments or supplements to this Declaration as provided
above. Simultaneously with the recording of the amendments or
supplements to this Declaration expanding Hayden Run, Declarant
shall record an additional plat encompassing the portion of the
Real Estate to be subjected to this Declaration. To the extent
allowed under applicable law, Declarant reserves the right to
add additional contiguous real estate to the Real Estate, which
additional real estate may, in Declarant's discretion, have the
use and benefit of the Cornmon Areas provided herein. On the
filing of a supplement to this Declaration, the portion of the
Real Estate or other real estate described in such amendment or
supplement to this Declaration shall be governed in all
respects by the provisions of this Declaration. To the extent
that there are any inconsistencies or discrepancies between any
Plat and this Declaration or any amendment or supplements
thereto, the terms of this Declaration shall control.
24. Amendment of Declaration.
(a) Generally. Except as otherwise provided in
this Declaration, amendments to this Declaration shall
be proposed and adopted in the following manner:
(i) Notice. Notice of the subject
matter of any proposed amendment
shall be included in the notice of
the meeting at which the proposed
amendment is to be considered.
(ii) Resolution. A resolution to adopt
a proposed amendment may be
proposed by the Board of Directors
or Owners having in the aggregate
at least a majority of the votes of
all Owners.
(iii) Meeting. The resolution concerning
a proposed amendment must be
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
u
Q
i
DRAFT
6/26/01
adopted by the designated vote at a
meeting duly called and held in
accordance with the provisions of
the Bylaws.
(iv) Adoption. Any proposed amendment
to this Declaration must be
approved by a vote of not less than
seventy-five percent (75%) in the
aggregate of the votes of all
Owners; provided however, that
prior to the Applicable Date all
proposed amendments shall require
the written consent of the
Declarant. In the event any Lot or
Dwelling Unit is subject to a first
mortgage, the Mortgagee shall be
notified of the meeting and the
proposed amendment in the same
manner as an Owner if the Mortgagee
has given prior notice of its
mortgage interest to the Board of
Directors in accordance with the
provisions hereof.
(v) Special Amendments. No amendment
to this Declaration shall be
adopted which changes (1) the
applicable share of an Owner's
liability for the Common Expenses,
or the method of determining the
same, or (2) the provisions of this
Declaration of Paragraph 19 with
respect to casualty insurance to be
maintained by the Corporation, or
(3) the provisions of Paragraph 21
of this Declaration with respect to
reconstruction or repair of the
Common Area in the event of fire or
any other casualty or disaster, or
(4) the provisions of Paragraph 17
of this Declaration establishing
#38581v4 -Covenants at Stony Creek ver 3ma Hayden
Run.doc
o
o
~
DRAFT
6/26/01
the Architectural Review Board and
providing for its functions, or (5)
the provisions of Paragraph 18 of
this Declaration with respect to
the commencement of assessments on
any Lot, or (6) the provisions of
Paragraph 24b of this Declaration
with respect to amendments solely
by Declarant without, in each and
any of such circumstances, the
unanimous approval of all Owners,
including Declarant so long as
Declarant owns any Lot, and of all
Mortgagees whose mortgage interests
have been made known to the Board
of Directors in accordance with the
provisions of this Declaration.
(vi) Recording. Each amendment to the
Declaration shall be executed by
the President and Secretary of the
Corporation and shall be recorded
in the Office of the Recorder of
Hamilton County, Indiana, and such
amendment shall not become
effective until so recorded.
(b) Amendments by Declarant Only. Notwithstanding
the foregoing or anything elsewhere contained herein or
in any other documents, the Declarant shall have and
hereby reserves the right and power acting alone and
without the consent or approval of the Owners, the
Corporation, the Board of Directors, any Mortgagees or
any other person to amend or supplement this
Declaration at any time and from time to time if such
amendment or supplement is made (a) to comply with
requirements of the Federal National Mortgage
Association, the Government National Mortgage
Association, the Federal Home Loan Mortgage
Corporation, the Department of Housing & Urban
Development, the Federal Housing Association, the
Veteran's Administration or any other governmental
#38581v4 -Covenants at Stony Creek ver 3ma Hayden
Run.doc
u
o
r
DRAFT
6/26/01
agency or any other public, quasi-public or private
entity which performs (or may in the future perform)
functions similar to those currently performed by such
entities, (b) to induce any of such agencies or
entities to make, purchase, sell, insure or guarantee
first mortgages covering Lots and Dwelling Units, (c)
to bring this Declaration into compliance with any
statutory requirements or (d) to correct clerical,
typographical or other errors in this Declaration or
any Exhibit hereto or any supplement or amendment
thereto. In furtherance of the foregoing, a power
coupled with an interest is hereby reserved and granted
to the Declarant to vote in favor of, make, or consent
to any amendments described in this Paragraph 24 on
behalf of each Owner as proxy or attorney-in-fact, as
the case may be. Each deed, mortgage, trust deed,
other evidence of obligation, or other instrument
affecting a Lot or Dwelling Unit and the acceptance
thereof shall be deemed to be a grant and
acknowledgment of, and a consent to the reservation of,
the power to the Declarant to vote in favor of, make,
execute and record any such amendments. The right of
the Declarant to act pursuant to rights reserved or
granted under this Paragraph 24 shall terminate at such
time as the Declarant no longer holds or controls title
to any part or portion of the Tract.
25. Acceptance and Ratification. All present and future
Owners, Mortgagees, tenants and occupants of the Lots shall be
subject to and shall comply with the provisions of this
Declaration, the Articles, and the Bylaws incorporated herein by
reference, and the rules and regulations as adopted by the Board
of Directors as each may be amended from time to time. The
acceptance of a deed of conveyance or the act of occupancy of
any Lot shall constitute an agreement that the provisions of
this Declaration, the Articles, the Bylaws, and rules and
regulations, 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 be binding on any person having at any
time any interest or estate in a Lot or the Tract as though such
provisions were recited and stipulated at length in each and
every deed, conveyance, mortgage or lease thereof. All persons,
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
Q
o
i
DRAFT
6/26/01
corporations, partnerships, trusts, associations, or other legal
entities who may occupy, use, enjoy or control a Lot or Lots or
any part of the Tract in any manner shall be subject to the
Declaration, the Articles of Incorporation, the Bylaws, and the
rules and regulations applicable thereto as each may be amended
or supplemented from time to time.
26. 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 or lessees to the extent that
such expense is not covered by the proceeds of insurance carried
by the Corporation.
27. Costs and Attorneys' Fees. In any proceeding arising
because of failure of an Owner to make any payments required or
to comply with any provision of this Declaration, the Articles
of Incorporation, the Bylaws, or the rules and regulations
adopted pursuant thereto as each may be amended from time to
time, the Corporation shall be entitled to recover its
reasonable attorneys' fees incurred in connection with such
default or failure.
28. Waiver. No Owner may exempt himself from liability for
his contribution toward the Common Expenses by waiver of the use
or enjoyment of any of the Common Area or Limited Common Area or
by abandonment of his Lot.
29. Severability Clause. The invalidity of any covenant,
restriction, condition, limitation or other provision of this
Declaration, the Articles or the Bylaws, shall not impair or
affect in any manner the validity, enforceability or effect of
the rest of this Declaration, the Articles, or the Bylaws, and
each shall be enforced to the greatest extent permitted by law.
30. Pronouns. Any reference to the masculine, feminine or
neuter gender herein shall, unless the context clearly requires
to the contrary, be deemed to refer to and include all genders.
And the singular shall include and refer to the plural and vice
versa as appropriate.
31. Interpretation. The captions and titles of the various
articles, sections, subsections, paragraphs and sub-paragraphs
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
Q
Q
...' ..
DRAFT
6/26/01
of this Declaration are inserted herein for ease and
convenience of reference only and shall not be used as an aid in
interpreting or construing this Declaration or any provision
hereof.
32. The Plat. The Plat of Hayden Run Section 1 is
incorporated into this Declaration by reference and has been
filed in the office of the Recorder of Hamilton County, Indiana,
of even date herewith.
IN WITNESS WHEREOF, the undersigned has caused this Declaration
to be executed the day and year first above written.
CENT EX HOMES, a Nevada general
partnership
By: Cent ex Real Estate Corporation,
Its managing general partner
By:
Printed:
Title:
Timothy K. McMahon
Division President
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public in and for said County and
State, personally appeared Timothy K. McMahon, by me known and
by me known to be the division president of Cent ex Real Estate
Corporation, the managing general partner of Cent ex Homes, a
Nevada general partnership, who acknowledged the execution of
the foregoing "Declaration of Covenants and Restrictions of
Hayden Run Property Ownership" on behalf of said Corporation and
general partnership.
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
o
.I II.
DRAFT
6/26/01
Witness my hand and Notarial Seal this
, 2001.
day of
Notary Public
(Printed Signature)
My Commission Expires:
My County of Residence:
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
o
j; I ...
DRAFT
6/26/01
This instrument prepared by Tammy K. Haney, Attorney-at-Law,
Bose McKinney & Evans LLP, 600 East 96th Street, Suite 500,
Indianapolis, Indiana 46240.
EXHIBIT "A"
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
o
Q
~, ..
DRAFT
6/26/01
EXHIBIT "B"
#38581v4 -Covenants at Stony Creek ver 3ma Hayden Run.doc
9.6 THE SUBDIVIDER
The follow1ng a~ement
final plot application.
U
shall. be included as a submittal with the
AGREEMENT
The developer sh~ll be responsible for any drainage problems includ-
ing standing water, flooding and erosion control, which arise or
become evident at any time during the 3 year maintenance period atter
release of subdivision bonds, and which is attributable to a
deficiency in subd~vision drainage qesign or construction of drain-
age improvements. This shall include all pipes,'-structures, swales,
ditches and ponds which ~re pertinent features to the proper drain-
age of the subdivision.
'1'his rosponsibiUty of the developer shall not, however, include
problems which a~e create~, subsequent to the completion of the
subdivision imprpvements by the improper grading by. individual
builders, or structures and improper grading installed or accom-
plished by individual homeowners.
It is the intent of this requirements, that the.developer shall,
J
specifically, provide such sub-surface drains, or storm sewers or
ditches as are required to properly rectify any drainage problem
or sub-surfac.e water problem which was not con~emplated in the
original approved subdivision design, including, but not restricted
to, disposal of sub-surface water from footing drains of individual
lots.
ROAD IMPROVEMENTS: The ,typical agreement for existing contiguous
Hamilton County Roads which are ~ubstandard, with Hamilton County
is:
The developer will put in 12 inch stone base to the required width
of the road, and grade the shoulders to ~ minimum of 6 feet width
and construct proper aide-ditches, or, provide storm sewers and
curbs. Thia will be the black top grade during construction of
subdivision. Then the county will come in and cut out 3 inches
and put in 3 inch binder asphalt after which the d~veloper will be
r~sponsible for 1 inch of asphalt topping. This is being done as
joint projects between county and developer. Anagreeme!lt shall be
executed, in writing, between the developer and ~amilton 'County
specifically detailing the exact work to be accomplished by the
developer and that to be accomplished by the County, and shall also
state the road or roads or portions thereof which are included. .
If the subdivision is co~templated to be annexed to the City of
Carmel, then the agreement shall include the City of C~rmel Board
of Public Works"aa a signatory, which ahall be for the purpose of
the City of Carmel agreeing to accept for maintenance and operation,
the improved roadfacillty upon completion of said .j.mprovements
and completion ot annexation. .
a' '.
'. ~~~~
DEVELOPER
R ~~7-'
"i~Z~ ,J{Jo--
WITNE..l:)S .
. '. ,
~_:Loo I
,
DATE . .'
REV: 5-79