HomeMy WebLinkAboutDeclaration of Covenants, Restrictions, and Easements DECLARATION OF COVENANTS AMP RESTRICTIONS OmV eskl/ML4EZ
ROSEMEAD COMMONS
This Declaration, made this day of , 1991, by Rosemead
Commons Development, Inc., its successors and assigns (hereinafter called Declarant),
WITNESS ETH:
WHEREAS, the following facts are true:
A. Declarant is the legal or equitable owner of the Real Estate located in Hamilton
County, Indiana, described in Exhibit A, upon which Declarant intends, but is not obligated, to
develop a residential subdivision to be known as Rosemead Commons.
B. Declarant has or will construct certain improvements and amenities which shall
constitute Common Areas.
C. Declarant desires to provide for the preservation and enhancement of the property
values, amenities and opportunities in Rosemead Commons and for the maintenance of the Real
Estate and the improvements thereon, and to this end desire to subject the Real Estate together
with such additions as may hereafter be made thereto to the covenants, restrictions, easements,
charges and liens hereinafter set forth, each of which is for the benefit of the Lots in Rosemead
Commons and the future Owners thereof.
D. Declarant deems it desirable, for the efficient preservation of the values and
amenities in Rosemead Commons, to create an agency to which may be delegated and assigned
the power of owning, maintaining and administering the Common Areas, administering the
Assessments and charges hereinafter created, and promoting the recreation, health, safety and
welfare of the Owners of Lots in Rosemead Commons.
E. Declarant has incorporated under the laws of the State of Indiana a not-for-profit
corporation known as the Rosemead Commons Homeowner's Association, Inc. for the purpose
of exercising such functions.
NOW, THEREFORE, Declarant hereby declares that all of the Lots and lands in the
Rosemead Commons, and such additions thereto, may hereafter be made pursuant as they are
held and shall be held,conveyed,hypothecated or encumbered,leased,rented, used, occupied and
improved, are subject to the following Restrictions, all of which are declared to be in furtherance
of a plan for the improvement and sale of Lots in Rosemead Commons, and are established and
agreed upon for the purpose of enhancing and protecting the value,desirability and attractiveness
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of Rosemead Commons as a whole for each of the Residences, Lots and lands situated therein.
The Restrictions shall run with the land and shall be binding upon Declarant, its successors and
assigns, and upon the parties having or acquiring any interest in Rosemead Commons or any part
or parts thereof subject to such Restrictions, and shall inure to the benefit of Declarant and its
successors in title to the Real Estate or any part of parts thereof.
ARTICLE I
Definitions
The following terms, as used in this Declaration, unless the context clearly requires
otherwise, shall mean the following:
1. "Architectural Development Control Committee" means that entity established
pursuant to Article.V-of this Declaration for the purposes therein stated, herein referred to as
"COMMITTEE". 'YZ
2. "Articles" means the Articles of Incorporation of the Corporation, as amended from
time to time.
3. "Assessments" means all sums lawfully assessed against the Member of the
Corporation or as declared by this Declaration, any Supplemental Declaration, or the Articles or
the By-Laws.
4. "Board of Directors" means the governing body of the Corporation elected by its
Members in accordance with the By-Laws.
5. "By-Laws" means the Code of By-Laws of the Corporation, as amended from time
to time.
6. "Rosemead Commons" means the name by which the Real Estate shall be known.
7. "Common Areas" means (i) the Drainage System, (ii) the Entry Ways, (iii) blocks
A, B or C, (iv) any utility service lines or facilities not maintained by a public utility company
or governmental agency that are located on, over, below or through any lot, and (v) any areas
of land (1) shown on any Plat, (2) described in any recorded instrument prepared by Declarant
or its agents, or (3) conveyed to or acquired by the Corporation, together with all improvements
thereto, that are intended to be devoted to the use or enjoyment of all of the Owners of Lots.
It is intended that all streets within the development be and remain a part of the Hamilton County
Highway system.
8. "Corporation" means the Rosemead Commons Homeowner's Association, Inc., an
Indiana not-for-profit corporation, its successors and assigns.
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9. "Declarant" means Rosemead Development, Inc., its successors and assigns to its
interest in the Real Estate other than Owners purchasing Lots or Residences by deed from
Declarant (unless the conveyance indicated an intent that the grantee assume the rights and
obligations of Declarant).
10. "Development Area" means the land described in Exhibit A.
11. "Drainage Board" means the Hamilton County Drainage Board, its successors or
assigns.
12. "Drainage System" means the open drainage ditches and swales, any subsurface
drainage tiles, pipes and structures, the dry and/or wet retention d/or detention ponds, and the
other structures, fixtures, properties, equipment and facilities (� the Lake) located in the
Real Estate and designed for the purpose of controlling, retaining or expediting the drainage of
surface and subsurface waters from, over and across the Real Estate, including but not limited
to, those shown or referred to on a Plat, all or part of which may be established as legal drains
subject to the jurisdiction of the Drainage Board.
13. "Landscape Easement" means a portion of a development area denoted on a Plat as
Block A, B, or C to be landscaped and maintained by the Corporation.
14. "Lake" means detention or retention pond.
15. "Lot" means a platted lot as shown on a Plat.
16. "Lot Development Plan"means(i)a site plan including drainage provisions prepared
by a licensed land surveyor,engineer or architect, (ii) foundation plan and proposed finished floor
elevations, (iii) building plans, including elevation and floor plans, (iv) material plans and
specifications, with exterior samples, (v) landscaping plan and (vi) all other data or information
that the Committee requests with respect to the improvement or alteration of a Lot(including but
not limited to the landscaping thereof) or the construction or alteration of a Residence or other
structure or improvement thereon.
17. "Maintenance Costs" means all of the costs necessary to keep the facilities to which
the term applies operational and in good condition, including, but not limited to, the cost of all
upkeep, maintenance, repair, replacement of all or any part of any such facility, payment of all
insurance with respect thereto, all taxes imposed on the facility and on the underlying land,
leasehold, easement or right-of-way, and any other expense related to the continuous
maintenance, operation or improvement of the facility.
1 18. "Mortgagee" means the holder of a first mortgage on a Residence or Lot.
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19. "Owner" eans a Eersoir, including D t, who, at , as or is a• ' =
any interest '-a Lot e a Person wh or is acq • • c an interes e y as security---
for the rforman of an obliga n.
20. "Person" means an individual, firm, corporation, partnership, association, trust or
other legal entity, or any combination thereof.
21. "Plat" means a final secondary plat 9,4 of the Development Area recorded
in the Office of the Recorder of Hamilton County, Indiana.
22. "Reserve for Replacements" means a fund established and maintained by the
Corporation to meet the cost of periodic maintenance, repairs, renewal and replacement of the
Common Areas. These funds for capital expenditures shall be maintained in a separate interest
bearing account with a bank or savings and loan association.
23. "Residence" means any structure intended exclusively for occupancy by a single
family together with all appurtenances thereto, including private garage usual and incidental to
the use of a single family residential lot.
24. "Restrictions" means the covenants, conditions, easements, charges, liens,
restrictions, rules and regulations and all other provisions set forth in this Declaration, all
applicable Supplemental Declarations and the Register of Regulations,as the same may from time
to time be amended.
25. "Rules and Regulations"means the document containing rules,regulations,policies,
and procedures adopted by the board of Directors or the Architectural Development Control
Committee.
ARTICLE II
General
1. Declaration. The Owner of any Lot shall be subject to these Restrictions, by (i)
acceptance of a deed conveying title thereto, or the execution of a contract for the purchase
thereof, whether from Declarant or a subsequent Owner of such Lot, or (ii) by the act of
occupancy of any Lot, shall accept such deed and execute such contract subject to each
Restriction and Agreement herein contained. By acceptance of such deed or execution of such
contract, each Owner acknowledges the rights and powers of the Declarant and of the
Corporation with respect to these Restrictions, and also for itself, its heirs, personal
representatives, successors and assigns,covenants,agrees and consents to and with Declarant,the
Corporation, and the Owners and subsequent Owners of each of the lots affected by these
restrictions to keep, observe, comply with and perform such Restrictions and Agreement.
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2. Whenever two or more contiguous Lots shall be owned by the same person, and
such owner shall desire to use two or more of said Lots as a site for a single dwelling unit, he
shall apply in writing to the committee for permission to so use said Lots. If permission for such
use shall be granted, the Lots constituting the site for such single dwelling unit shall be treated
as a single Lot for the purpose of applying these restrictions to said Lots, so long as, and only
so long as, the Lots remain improved with only one single dwelling unit and does not restrict any
drainage easements.
3. The Common Areas. Declarant shall convey title to the Common Areas to the
Corporation, subject to the right of Declarant to use the common areas. The Maintenance Co1,Ceprs
thereof shall be assessed as a general Assessment against all Lots subject to assessment. The
Corporation may adopt such rules and regulations with respect to the use of
the Common Areas as it deems appropriate, but no rule or regulations shall be inconsistent with
the provisions of this Declarant or any Supplemental Declaration.
4. Maintenance of Common Areas, Entry Ways, Landscape Easements. The
Corporation shall maintain the Entry Ways, the Landscape Block A, B, C, and pond, and all
improvements and plantings thereon, and the Maintenance Costs thereof shall be assessed as a
General Assessment against all Lots subject to assessment. Grass, trees, shrubs and other
plantings, located on an Entry Way or a Landscape Easement, shall be kept neatly cut, cultivated
or trimmed as reasonably required to maintain an attractive entrance to the Rosemead Commons,
or a part thereof, or a planting 01ithin Rosemead Commons. All entrance sign�n
an Entry Way shall be maintained at all times in good and sightly condition appropriate to a high
quality residential subdivision.
5. 100 Year Flood Elevation. A line depicted as a "100 Year Flood Elevation" on any
Lot in this addition denotes an area between such line and the creek in which no building or
permanent structure may be erected without the prior written approval of the Indiana Department
of Natural Resources (IDNR) and/or the Corp of Engineers.
6. Common Property Deeded. Blocks A, B, C, and the Lake, as shown on the Plat,
shall be deeded to Rosemead Commons Owners Association,Inc. as common property to all Lots
in Rosemead Commons.
ARTICLE III
Architecture and Use Restrictions
1. Land Use. Lots may be used only for residential purposes except that home
occupations permitted under applicable zoning laws will be allowed. Only one Residence
not to exceed two and one-half stories or 3d4 feet in height measured from finished first floor to
the underside of the eve line may be constructed thereon. No portion of any Lot may be sold
or subdivided such that there will be a greater number of Residences in Rosemead Commons
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than the number of original Lots depicted on the Plat. No signs of any nature, kind or
description shall be erected, placed, or permitted to remain on any Lot advertising a permitted
home occupation.
2. Size of Residence. Except as otherwise provided herein, no residence may be
constructed on any Lot unless such Residence, exclusive of open porches, attached garages and
basements, shall have a ground floor area of 1800 square feet if a one-story structure, or 2000
square feet if a story and a half structure with a ground floor minimum 1200 square feet, or 2200
square feet of a two-story structure with a ground floor minimum of 1000 square feet.
3. The finished exterior of every building constructed or placed on any Lot shall be
regulated by the Architectural Development Committee Design Guidelines as provided under
Article thereinafter.
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4. All structures constructed or placed on any Lot shall be constructed with
substantially all new materials and no used structures shall be relocated or placed on any such
Lot.
5. Every house in the Real Estate shall have at least a two-car garage, attached and
of the same architectural design and materials as the house. In addition a side load or angled
garage design is required. Committee reserves the right to approve conventional front load
garage concept on Lots with irregular frontage or topography whereas it is determined that such
Lots will not easily provide for the side load design.
6. All fireplaces must have brick exterior unless otherwise approved by Committee.
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7. All pitches on the main structure must be a minimum of 10/12 pitch, except
for porches, porticos or eyebrow roofs which may be of a lesser pitch.
8. No above ground pools will be allowed.
9. Temporary Structures. No trailer shack, tent at, basement, garage or other
outbuilding may be used at any time as a dii g mpo 104444 nor may any
structure of a temporary character be used as a dwellinglitiiw ,gqr. iduszolea uN4mo 9494,44C 5MC6 adaprE.c
10. Building Location and Finished Floor Elevation. No building may be erected
between the building line shown on a Plat and the front Lot line, and no structure or part thereof
may be built or erected nearer than ten (10) feet to any side Lot line or nearer than twenty (20)
feet to any rear Lot line; provided that the aggregate of side yard shall not be less than 20 feet.
A minimum finished floor elevation, sho` r o e development plan, has been established for
each Lot and no finished floor elevation q'rliehexception of flood protected basements shall
be constructed lower than said minimum without the written consent of the Architectural
Development Control Committee. Demonstration of adequate storm water drainage in conformity
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with both on-Lot and overall project drainage plans shall be a prime requisite for alternative
finished floor evaluations.
11. Driveways. All driveways shall be paved from the point of connection with the
abutting street to a point of connection with the garage apron.
12. Yard Lights. Each Owner shall install and maintain a dusk to dawn light in
operable condition on his Lot at a location, having a height and of a type, style and manufacture,
approved by the Committee prior to the installation thereof. The Committee will establish a
maximum wattage and intensity to insure uniform illumination on each Lot and said light shall
be equipped with a photo electric cell or similar device to insure automatic illumination from
dusk to dawn each day. Such yard lights may be installed by Declarant and charged to each Lot
Owner.
13. Storage Tanks. Any storage tanks used in connection with a Lot shall be either
buried or located inside a residence such that they are completely concealed from public view.
14. Construction and Landscaping. All construction upon, landscaping of, and other
improvement to a Lot, shall be completed strictly in accordance with the Lot Development Plan
approved by the Committee. All landscaping, specified on the landscaping plan approved by the
Committee, shall be installed on the Lot strictly in accordance with such approved plan within
sixty (60) days following substantial completion of the Residence unless the Board agrees to a
later landscaping completion date. Unless a delay is caused by strikes, war, court injunction or
acts of God, every building whose construction or placement on any Lot is begun shall be
completed within one (1) year after the beginning of such construction or replacement. No
improvement, which has been partially or totally destroyed by fire or otherwise, shall be allowed
to remain in such state for more than three (3) months from the time of such destruction or
damage. If any improvement has been destroyed by fire or otherwise, a written intent of repair
and/or demolition shall be submitted to the Committee within thirty (30) days. If the Owner fails
to commence or complete construction of a residence within the time periods specified herein,
or if the Owner should, without Declarant's written approval, sell, contract to sell, convey, or
otherwise dispose of the Lot before completion of construction of a Residence on the Lot, then,
in any of such events, Declarant may:
(a) re-enter the lot and divest the Owner of title thereto by tendering to
the Owner or to the Clerk of the Circuit Court of Hamilton County
the lesser of (i) the same net dollar amount as was received by
Declarant from such Owner as consideration for the conveyance by
Declarant of the Lot, together with such actual costs, if any, as the
Owner may prove to have been incurred in connection with the
commencement of construction of a Residence on the Lot and (ii) the
then fair market value of the Lot, as determined by averaging two (2)
appraisals made by qualified appraisers appointed by the Judge of the
Hamilton County Circuit or Superior Court;
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(b) obtain injunctive relief to force the Owner to proceed with
construction of any Residence in accordance with a Lot Development
Plan for which has been approved by the Committee upon application
by such Owner,
(c) pursue other remedies at law or in equity as may be available to
Declarant.
The failure of the Owner of a Lot to apply for approval of, or receive approval
from, the Committee of a Lot Development Plan shall not relieve such Owner from his obligation
to commence and complete construction of a Residence upon the Lot within the time periods
specified herein. For the purposes of this subparagraph, construction of a Residence will be
deemed "completed" when an occupancy permit has been granted by a governmental building
inspection authorized to issue an occupancy permit.
15. Each Lot Owner and/or builder shall be responsible to prevent erosion and protect
the natural environment. This shall be accomplished by designating areas on the landscape plan
which are to remain undisturbed and to provide an erosion control plan for any areas which will
be disturbed during construction. The intent is to maintain the natural environment by leaving
leaves on non-grassed areas, allowing twigs and small limbs to decay naturally, providing areas
for wild flowers, plants, moss, and in general, allowing the natural environment to exist.
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16. Treesn ( ) feet outside building,driveway,parking area or other approved areas,
shall not be removed unless the diameter of the tree is less than four (4) inches, the tree is dead,
or approval is granted by the Committee.
17. Mailboxes. All mailboxes installed upon Lots shall be uniform and shall be of a
type, color and manufacture approved by the Committee. Such mailboxes may be installed by
the Declarant and charged to each Lot Owner.
18. Septic Systems. No septic tank, absorption field or any other on-site sewage
disposal system (other than a lateral main connected to a sanitary sewerage collection system
operated by a successor public agency or public utility) shall be installed or maintained on any
Lot.
19. No private or semi-private water supply system may be located upon any Lot which
is not in compliance with regulations or procedures adopted or established by the Indiana State
Board of Health or other civil authority having jurisdiction. To the extent that domestic water
service is available from water line located within 200 feet of the Lot line maintained by a public
or private utility company, each Owner shall connect to such water line to provide water for
domestic use on the Lot and shall pay all connection, availability or other charges lawfully
established with respect to connections thereto.
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20. Utility services shall, to the greatest extent possible, be installed underground and
in or adjacent to public rights-of-way.
21. Drainage. The drainage plan required to be submitted to the Committee shall show
the topography of the Lot and the proposed method of drainage. In the event storm water
drainage from any Lot or Lots flows across another Lot, provision shall be made by the Owner
of such Lot to permit such drainage to continue, without restriction or reduction, across the
downstream Lot and into the natural drainage channel or course, although no specific drainage
easement for such flow of water is provided on the Plat. To the extent not maintained by the
Drainage Board, "Drainage Easements", reserved as drainage swales, shall be maintained by the
Owner of the Lot upon which such easements are located such that water from any adjacent Lot
shall have adequate drainage along such swale. Lots within Rosemead Commons may be
included in a legal drain established by the Drainage Board. In such event, each Lot in
Rosemead Commons will be subject to assessment by the Drainage Board for the costs of
maintenance of the portion of the Drainage System included in such legal drain, which
assessment will be a lien against the Lot. The elevation of a Lot shall not be changed so as to
affect materially the surface elevation or grade of surrounding Lots. Perimeter foundation drains,
sump pump drains and down spouts shall not be outletted into streets or street right-of-ways.
These drains shall be connected, whenever feasible, into a subsurface drainage tile. Each Owner
shall maintain the subsurface drains and tiles located on his Lot and shall be liable for the cost
of all repairs thereto or replacements thereof.
22. Responsibilities During Construction.
(a) Prior to beginning construction and during the time of construction, a fenced
or roped off area shall be placed around the ground area to be disturbed.
Said fence location shall be shown on the plot plan.
(b) The area unprotected by a fence shall not be disturbed in any way, except
when implementing the landscaping plan.
(c) When basement and/or foundation of Residence is constructed, stone shall
be installed over the path of driveway and shall be level with the curb at the
Lot line to avoid curb break-up.
(d) No track vehicles or heavy equipment vehicles shall be operated or unloaded
on any street.
(e) No construction vehicles, shacks or outhouses shall be erected or situated n
any Lot herein, except for use by a Builder during the construction a
proper structure, which Builder's temporary construction structure shall be
promptly removed upon completion of the proper structure.
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(f) During the construction period, the Lot shall be maintained in a clean and
orderly manner at all times. All loose shingles, lumber, bricks, block,
drywall, insulation, or other building materials which can blow onto adjacent
lots, shall not be left lying around. Construction trash shall be contained in
a trash fence and shall be removed from the Lot once per week or contained
in a dump site on-site provided by a trash disposal service which will empty
the container as needed.
(g) The Lot owner shall be responsible for removal of dirt, mud, or debris, or
other foreign material of any kind which may be deposited upon the road or
easements from construction on the Lot. If such deposits occur, then the Lot
owner shall make provisions to remove such deposits within one (1) day or
the Committee may remove such deposits and charge the Lot Owner or
Builder.
(h) No outside toilets shall be permitted on any Lot during construction without
prior approval of the Committee.
(i) All utility services, including but not limited to, Water, Power, Sanitary
Sewers, telephone or cable, to the Lot shall be shown on the plot plan and
said services shall not undermine the curbs or alter the subsurface or surface
drainage system.
23. Vehicle P in . No c syer, motor home, truck, trailer, boat or disabled vehicle
may be parked or stored ig r on any Lot except enclosed in an attached garage.
This shall not apply to construction vehicles, trailers or equipment of Declarant or any other
Builder in Rosemead Commons during the development thereof.
24. Signs. Except for such signs as Declarant may in its absolute discretion display in
connection with the development of Rosemead Commons and the sale of Lots therein, and such
signs as may be located in the Common Areas, 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 for the purpose of advertising the property for sale or for rent, or may be
displayed by a Builder to advertise the property during construction and sale.
25. Fencing and Walls. In no event may any fence be erected or maintained on any Lot
without the prior approval of the Committee, except for fencing that Declarant may install. No
fence or wall on any Lot shall be constructed closer to any street than the front wall of the house
constructed on said Lot, unless such fence or wall shall be decorative in nature and shall not
exceed three feet six inches (3'6") in height. No fence, wall, hedge, or shrub planting which
obstructs sight lines at elevations between two feet (2') and six (6') feet above the street shall
be placed or permitted to remain on any corner lot within the triangular area formed by the street
property lines and a line connecting points 25 feet from the intersection of said street lines, or
in the case of a street line with the edge of a driveway pavement. No tree shall be permitted to
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remain within such distances of such intersections unless the foliage line is maintained at
sufficient height to prevent such sight lines.
26. Vegetation. An Owner shall not permit the growth of weeds and volunteer trees
and bushes on his Lot, and shall keep his Lot reasonably clear from such unsightly growth at all
times, as well as cut down and remove unsightly dead trees. If an Owner fails to comply with
this Restriction, the Committee shall cause the weeds to be cut and the Lot cleared of such
growth at the expense of the Owner thereof and the Architectural Development Control
Committee shall have a lien against the cleared Lot for the expense thereof. The purpose of this
Restriction is not to eliminate natural areas, but to insure maintenance of the Lot in accordance
with the landscape plan approved by the Committee.
27. Nuisances. No noxious or offensive activity shall be carried on upon any Lot nor
shall anything be done thereon which may be, or may become, an annoyance or nuisance to the
neighborhood. Barking dogs will constitute a nuisance.
28. Garbage and Refuse Disposal. No Lot shall be used or maintained as a dumping
ground for trash. Rubbish, garbage or other waste shall be kept in sanitary containers out of
public view. All equipment for storage or disposal of such materials shall be kept clean and
sanitary and out of public view except when refuse collections are being made.
29. Livestock and Poultry. No animals, livestock or poultry of any kind shall be raised,
bred or kept on any Lot, except that of dogs, cats, or other household pets which may be kept
(maximum of four (4) pets) provided that they are not kept, bred or maintained for any
commercial purpose. The Owners of such permitted pets shall confine them to their respective
Lots such that they will not be a nuisance. Owners of dogs shall so control or confine them so
as to avoid barking which will annoy or disturb adjoining Owners.
30. No outside toilets shall be permitted on any Lot and no sanitary waste or other
wastes shall be permitted to be exposed.
31. Pole structures of any kind, such as flag poles, basketball goals (a standardized
design will be established), etc., require prior approval by the Architectural Development Control
Committee before installation.
32. Firewood piles shall be kept neat and unobtrusive. The Architectural Development
Control Committee has the authority to determine the location of any firewood piles.
33. Clothes lines are prohibited.
34. All playground equipment must be approved by the Committee prior to installation.
The Committee might request screening. The color, size, and location of playground equipment
will be a factor in determining if the playground equipment is approved.
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35. No outbuildings shall be permitted on any Lot. Any garage or accessory building
erected or used shall be of a permanent type of construction and shall conform to the general
architecture and appearance of said residence and must be attached to said residence.
36. Outside Burning. No trash, leaves, or other materials shall be burned upon a Lot.
37. Antennas and Receivers. No exterior antenna or receiver of any kind shall be
permitted on any Lot without the prior written consent of the Architectural Development Control
Committee.
38. Exterior Lights. No exterior lights shall be erected or maintained between the
building line and rear lot line or side lot line so as to shine or reflect directly upon another Lot.
39. Electric Bug Killers. Electric bug killers, "zappers", and other similar devices, shall
not be installed at a location or locations which will result in the operation thereof becoming a
nuisance or annoyance to other Owners and shall only be operated when outside activities require
the use thereof and not continuously.
ARTICLE IV
The Rosemead Commons Homeowner's Association, Inc.
1. Organization of Association. The Association shall be organized as a not-for-profit
corporation under the laws of the State of Indiana, to be operated in accordance with the Articles
of Incorporation and By-Laws thereof. The membership of the Association shall consist of one
class of voting members, with each member having equal voting rights. The members of the
Association shall consist of the Owners of Lots in Rosemead Commons, as the same may be
platted from time to time. In the event that any one Lot shall be owned by more than one
person, partnership, trust, corporation, or other entity, they shall be treated collectively as one
member for voting purposes, so that as to any matter being considered by the Association, only
one vote pertains to each Lot.
2. General Duties of the Association. The Association is hereby authorized to act and
shall act on behalf of, and in the name, place, and stead of, the individual Owners in all matters
pertaining to the maintenance,repair, and replacement, of the Common Property the o• intenance
of the Common Property landscaping, and of all maintenance on and around �rPond, the "
determination of Common Expenses, the collection of annual and special Assessments, and the
granting of any approvals whenever and to the extent called for by this Declaration for the
common benefit of all such Owners. The Association shall also have the right, but not the
obligation, to act on behalf of any Owner or Owners in seeking enforcement of the terms,
covenants, conditions and restrictions contained in this Declaration. Neither the Association nor
its officers or authorized agents shall have any liability whatsoever to any Owner for any action
taken under color of authority of this Declaration, or for any failure to take any action called for
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by this Declaration, unless such act or failure to act is in the nature of a willful or reckless
disregard of the rights of the Owners or in the nature of willful, intentional, fraudulent, or
reckless'misconduct.
3. Amendment of Declaration. The Association shall have the right to amend this
Declaration at any time, and from time to time, upon recommendation of an amendment to the
Association by its Board of Directors, and the subsequent approval of such amendment by both
the Owners of at least seventy-five percent (75%) of the Lots and seventy-five percent (75%) of
the Mortgagees; provided, however, that any such amendment of this Declaration shall require
prior written approval of the Declarant so long as Declarant owns any Lots within Rosemead
Commons. Each such amendment must be evidenced by a written instrument, signed and
acknowledged by duly authorized officers of the Association, and by Declarant when their
approval is required, setting forth facts sufficient to indicate compliance with this paragraph,
including as an exhibit or addendum thereto a certified copy of the minutes of the Association
meeting at which the necessary actions were taken, and such amendment shall not be effective
until recorded in the Office of the Recorder of Marion County.
4. Insurance.
(a) The Association shall maintain, in force, adequate public liability insurance
protecting the Association against liability for property damage and personal
injury occurring on or in connection with any and all Common Property,
including but not limited to, adequate extended coverage insuring against
windstorm, vandalism and such other hazards for the benefit of all owners
and mortgagees in Rosemead Commons and such other liability insurance as
the Board of Directors deems appropriate.
(b) Each Owner shall have the right to purchase any additional insurance as he
may deem necessary, and each Owner shall be solely responsible for loss of
or damage to his personal property located on his Lot and each Owner shall
be solely responsible for obtaining his own insurance to cover any such loss
and risk.
5. Condemnation, Destruction. In the event that any of the Common Property shall
be condemned or taken by any competent public authority, or in the event the same shall be
damaged or destroyed by any cause whatsoever, the Association shall represent the interests of
the Owners in any proceedings, negotiations, insurance adjustments, settlements, or agreements
in connection with such condemnation, damage, or destruction. Any sums recovered by the
Association shall be applied, first, to damaged, or destroyed, to the extent such restoration or
repair is practicable, and the balance of such sums shall either be held as a reserve for future
maintenance of the Common Property or turned over to the Owners in proportion to their Pro-
Rata Shares, whichever may be determined by a majority vote of the members of the Association.
Each Owner shall be responsible for pursuing his own action for damages to his Lot, either by
reason of direct damage thereto or by reason of any impairment of value due to damage to the
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ARTICLE V
Covenants For Maintenance Assessments
1. Purpose of the Assessments. The Assessments levied by the Association shall be
used exclusively for the purpose of preserving the values of the Lots within Rosemead Commons
promoting the health, safety, and welfare of the Owners, users, and occupants of the same and,
in particular, for the improvement, repairing, operating, and maintenance of the Common
Property, including, but not limited to, the payment of taxes and insurance thereon, for the cost
of labor, equipment, material, and management furnished with respect to the Common Property,
and any and all other Common Expenses. Each Owner hereby covenants and agrees to pay to
the Association:
(a) A Pro-Rata Share (as hereinafter defined) of the annual Assessments fixed,
established, and determined from time to time as hereinafter provided.
(b) A Pro-Rata Share (as hereinafter defined) of any special Assessments fixed,
established, and determined from time to time, as hereinafter provided.
2. Pro-Rata Share. The Pro-Rata Share of each Owner for purposes of this Article V
shall be the percentage obtained by dividing one by the total number of Lots shown on the plat
of Rosemead Commons, as the same may be recorded.
3. Liability for Assessments. Each Assessment, together with any interest thereon and
any costs of collection thereof, including attorney's fees, shall be a charge on each Lot and shall
constitute a lien upon each Lot from and after the due date thereof in favor of the Association.
Each such Assessment, together with any interest thereon and any costs of collection thereof,
including attorney's fees, shall also be the personal obligation of the Owner of each Lot at the
time when the Assessment is due. However, the sale or transfer of any Lot pursuant to mortgage
foreclosure or any proceeding in lieu thereof shall extinguish the lien of such Assessments as to
payments which become due prior to such sale or transfer. The lien for any Assessment shall,
for all purposes, be subordinate to the lien of any Mortgagee whose mortgage was recorded prior
to the date such Assessment first became due and payable. No sale or trans errsl}all relieve such
Lot from liability for any Assessments thereafter becoming due or from the a.eereof, nor shall
any sale or transfer relieve any Owner of the personal liability hereby imposed. The personal
obligation for delinquent Assessments shall not pass to any successor in title unless such
obligation is expressly assumed by such successor.
4. Basis of Annual Assessments. The Board of Directors of the Association shall
establish an annual budget prior to the beginning of each fiscal year, setting forth all anticipated
Common Expenses for the coming fiscal year, together with a reasonable allowance for
contingencies and reserves for periodic repair and replacement of the Common Property. A copy
of this budget shall be delivered to each Owner within thirty (30) days prior to the beginning of
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each fiscal year of the Association. Such budget, when approved, shall constitute the basis of
which the "Annual Assessments" are determined for purposes of this Declaration.
5. Basis of Special Assessments. Should the Board of Directors of the Association at
any time during the fiscal year determine that the Assessments levied for such year may be
insufficient to pay the Common Expenses for such year, the Board of Directors shall call a
special meeting of the Association to consider imposing such special Assessment as may be
necessary for meeting the Common Expenses for such year. A special Assessment shall be
imposed only with the approval of two-thirds (2/3) of the Owners, and shall be due and payable
on the date(s) determined by such Owners, or if not so determined, then as may be determined
by the Board of Directors.
6. Fiscal Year; Date of Commencement of Assessments; Due Dates. The fiscal year
of the Association shall be established by the Association and may be changed from time to time
by action of the Association. The Annual Assessments on each Lot of Rosemead Commons shall
commence on the first day of the first month following the month in which Declarant first
conveys ownership of any Lot ' to any Owner and shall be due and payable in
monthly installments on the first day of each and every month thereafter, except as may
otherwise be established by the Board of Directors by notice to the Owners; provided, that if any
Lot is first occupied for residential purposes prior to being conveyed by Declarant, full
Assessments shall be payable with respect to such Lot commencing on the first day of the first
month following the date of such occupancy. The Declarant shall not be liable for or make up
any deficit in the budget for the Common Expenses for any year in which �n D,; 1 .Cg the
Association, and notwithstanding the preceding sentence, the Declarant mays;buds not 'gated
to, pay an Assessment on each platted Lot owned by it equal to twenty-five percent (25%) of the
full annual Assessment against any Lot, until such time as full Assessment becomes applicable
to the Lot under the terms of the preceding sentence. The first annual Assessment shall be made
for the balance of the fiscal year of the Association in which such Assessment is made, and the
Board of Directors may, from time to time, by resolution, authorize the payment of such
Assessment in quarterly, semi-annual or annual installments on such date or dates as it deems
appropriate.
7. Duties of the Association.
(a) The Board of Directors of the Association shall cause proper books and
records of the levy and collection of each annual and special Assessment to
be kept and maintained, including a roster setting forth the identification of
each and every Lot and each Assessment applicable thereto,which books and
records shall be kept in the office of the Association and shall be available
for the inspection and copying by each Owner (or duly authorized
representative of any Owner) at all reasonable times during regular business
hours of the Association. The Association shall cause financial statements
to be prepared at least annually for each fiscal year of the Association, and
shall furnish copies of the same to any Owner or Mortgagee upon request.
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The Board of Directors of the Association shall cause written notice of all
Assessments levied by the Association upon the Lots and upon the Owners
to be mailed to the Owners or their designated representatives. Notices of
the amounts of the Annual Assessments and the amounts of the installments
thereof, shall be sent annually within thirty (30) days following the
determination thereof. In the absence of any notice regarding the amount of
the Annual Assessment, each Owner shall continue to pay the monthly
amount for Annual Assessments previously paid by such Owner. Notices of
the amounts of Special Assessments shall be sent as promptly as practicable
and in any event not less than ten (10) days prior to the due date of such
Assessment or any installment thereof. In the event notice of any Special
Assessment is mailed less than ten (10) days prior to the due date of the
Assessment to which such notice pertains,payment of such Assessment shall
not be deemed past due for any purpose if paid by the Owner within ten (10)
days after the date of actual mailing of such notice.
(b) The Association shall promptly furnish upon request to any Owner,
prospective purchaser, title insurance company, or Mortgagee, a certificate
in writing signed by an Officer of the Association setting forth the extent to
which Assessments have been levied and paid with respect to any Lot in
which the requesting party has a legitimate interest. As to any Person
relying thereon, such certificate shall be conclusive evidence of payment of
any Assessment therein stated to have been paid.
(c) The Association shall notify any Mortgagee from which it has received a
request for notice, of any default in the performance of any obligation under
this Declaration by any Owner which is not cured within sixty (60) days.
8. Non-Payment of Assessment; Remedies of Association.
(a) If any Assessment is not paid on the date when due, then such Assessment
shall be deemed delinquent and shall, together with any interest thereon and
any cost of collection thereof, including attorney's fees, become a continuing
lien on the Lot against which such Assessment was made, and such lien shall
be binding upon and enforceable as a personal liability of the Owner of such
Lot as of the date of levy of such Assessment, and shall be enforceable
against the interest of such Owner and all future successors and assignees of
such Owner in such Lot; provided, however, that such lien shall be
subordinate to any mortgage on such Lot recorded prior to the date on which
such Assessment becomes due.
(b) If any Assessment upon any Lot is not paid within thirty (30) days after the
due date, such Assessment and all costs of collection thereof, including
attorney's fees, shall bear interest from the date of delinquency until paid at
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a rate of eighteen percent (18%) per annum and the Association may bring
an action in any Court having jurisdiction against the delinquent Owner to
enforce payment of the same and/or to foreclose the lien against said
Owner's Lot, and there shall be added to the amount of such Assessment all
costs of such action, including the Association's attorneys fees, and in the
event a judgment is obtained, such judgment shall include such interest,
costs, and attorney's fees. Default in any monthly installment of
Assessments shall automatically make monthly installments for the remainder
of the calendar year following default immediately due and payable.
9. Adjustments. In the event that the amounts actually expended by the Association
for Common Expenses in any fiscal year exceed the amounts budgeted and assessed for Common
Expenses for that fiscal year, the amount of such deficit shall be carried over and become an
additional basis for Assessments for the following fiscal year, except that so long as the Declarant
controls the Association, Declarant shall be responsible for such deficit. Thereafter, such deficit
may be recouped either by inclusion in the budget for Annual Assessments or by the making of
one or more Special Assessments for such purpose, at the option of the Association. In the event
that the amounts budgeted and assessed for Common Expenses in any fiscal year exceed the
amount actually expended by the Association for Common Expenses for that fiscal year, a Pro-
Rata Share of such excess shall be a credit against the Assessment(s) due from each Owner for
the next fiscal year(s), in such amounts as the Board of Directors shall deem appropriate.
10. Initial Assessments. During the first year following the date of recordation of the
Declaration of the total Assessments per lot annually shall not exceed One Hundred Dollars
($100.00). In each year thereafter, the total Assessment per Lot shall not be increased by more
than twelve percent (12%) over the prior year, until such time as the Declarant relinquishes
control of the Association. In no event shall the annual Assessments exceed Two Hundred Fifty
Dollars ($250.00) per Lot without the approval of a majority of the Owners; provided, however,
that said maximum amount may be increased by no more than five percent (5%) per year by the
Board of Directors without such consent.
ARTICLE VI
Architectural Control
1. The Architectural Development Control Committee. An Architectural Control
Committee consists of the Declarant so long as any Lots remain unsold by Declarant and so long
as Rosemead Commons is still subject to expansion and thereafter shall mean the Board of
Directors of the Corporation or any group of not less than three (3) Persons designated as the
Architectural Development Control Committee by resolution of the Board of Directors,when and
to the extent of exercising any rights of consent pursuant to this Declaration.
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2. Purpose. The Committee shall regulate the external design, appearance, use,
location and maintenance of the Real Estate and of improvements thereon in such manner as to
preserve and enhance values and to maintain a harmonious relationship among structure,
improvements and the natural vegetation and topography.
3. Conditions. Except as otherwise expressly provided in this Declaration, no
improvements, alterations, repairs, change of colors, excavations, changes in grade, planting or
other work that in any way alters any Lot or the exterior of the improvements located thereon
from its natural or improved state existing on the date such Lot was first conveyed in fee by
Declarant to an Owner shall be made or done without prior submission and approval by the
Committee of a Lot Development Plan therefore. A Lot Development Plan shall include building
plans, specifications,plot plan,drainage plans and landscape plan, showing the location of all the
construction, structures, drives, walks, landscaping, natural preservation areas and drainage. No
construction, erection or alteration of any residence, building, fence, wall, basketball goals,
swimming pool, tenths court, patio, or other structure on a Lot or any plantings on a Lot, shall
commence until appropriate approvals are received. Such approval shall be in addition to, and
not in lieu of, all approvals, consents, permits and/or variances required by law from
governmental authorities having jurisdiction over Rosemead Commons, and no Owner shall
undertake any construction activity within the Rosemead Commons unless all legal requirements
have been satisfied. Each Owner shall complete all improvements to a Lot strictly in accordance
with the Lot Development Plan approved by the Committee.
4. Procedures. In the event the Committee fails to approve, modify or disapprove in
writing a Lot Development Plan within thirty (30) days after notice of such plan has been duly
filed with the Committee established by the Declarant, approval will be deemed approved. A
decision of the Committee may be appealed to the Board of Directors which may reverse or
modify such decision by a two-thirds (2/3) vote of the Directors then serving.
5. Guidelines and Standards. The Committee shall have the power to establish and
modify from time to time such written architectural and landscaping design guidelines and
standards as it may deem appropriate to achieve the purpose set forth in Subparagraph 2 to the
extent that such design guidelines and standards are not in conflict with the specific provisions
of this Declaration. Any such guideline or standard may be appealed to the Board of Directors
which may terminate or modify such guideline or standard by a two-thirds (2/3) vote of the
Directors then serving.
6. Application of Guidelines and Standards. The Committee shall apply the guidelines
and standards established pursuant to Subparagraph 5 in a fair, uniform and reasonable manner
consistent with the discretion inherent in the design review process. All decisions must be in
writing and in disapproving any Lot Development Plan, the Committee shall furnish the applicant
with specific reasons for such disapproval and may suggest modifications in such plan which
would render the plan acceptable to the Committee if resubmitted.
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7. Design Consultants. The Committee may utilize the services of architectural,
engineering and other Persons possessing design expertise and experience in evaluating Lot
Development Plans. No presumption of any conflict of interest or impropriety shall be drawn
or assumed by virtue of the fact that any of such consultants may, from time to time, represent
Persons filing Lot Development Plans with the Architectural Development Control Committee.
8. Exercises of Discretion. Whenever any approval or exercise of discretion by the
Committee is called for by this Declaration, the Committee shall exercise its discretion
reasonably in view of the general purposes of this Declaration as set forth in Article I, and in
view of any specific purposes a standards which govern the specific approval or exercise of
discretion in question, as may be specified in the section or sections of the Declaration relating
thereto. The Committee shall have no power to approve any plans that do not comply with the
conditions, use, restrictions or standards set forth in the Declaration, nor shall it have any power
to vary or alter any other term, condition, covenant or restriction in this Declaration unless
expressed authority therefore is granted by this Declaration.
9. Liability. Neither the Committee, nor any member thereof, nor any agent thereof,
shall be responsible in any way for any defects in any plans, specifications or other materials
submitted to it, nor for any defects in any work done according thereto. The Committee does
not make, and shall not be deemed by virtue of any action of approval or disapproval taken by
it to have made any representation or warranty as to the suitability or advisability of the design,
the engineering, the method of construction involved, or the materials to be used.
10. Compensation. Neither the Committee nor any of its members shall be entitled to
any compensation for services performed pursuant to this covenant or in performing any of its
duties or obligations set forth in the Declaration. The Committee may inspect work being
performed to assure compliance with these restrictions upon written notification to the Owner.
ARTICLE VII
Common Areas
1. Ownership. The Common Areas shall remain private, and neither the Declarant's
execution or recording of an instrument portraying the Common Areas, nor the doing of any
other act by Declarant is, or is intended to be, or shall be construed as, a dedication to the public
of such Common Areas.
2. Obligations of the Corporation. The Corporation, subject to the rights of Declarant
and the Owners as set forth in this Declaration, shall be responsible for the exclusive
management and control of the Common Areas and all improvements thereon (including
plantings and maintenance related thereto), and shall keep the Common Areas in good, clean,
attractive and sanitary condition, order and repair.
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3. Easements of Enjoyment. No Person shall have any right or easement of enjoyment
in or to the Common Areas except to the extent granted by, and subject to the terms and
provisions of, this Declaration or any Supplemental Declaration executed by Declarant. Such
rights and easements, as are thus granted, shall be appurtenant to and shall pass with the title to
every Lot for whose benefit they are granted.
4. Conveyance of Title. Declarant may retain the legal title to the Common Areas or
any portion thereof until such time as it has completed improvements thereon, but
notwithstanding any provision herein, the Declarant hereby covenants that it shall convey the
Common Areas to the Corporation free and clear of all liens and financial encumbrances except
as otherwise provided herein, not later than three (3) years from the date of such Common Areas
or portion thereof is subjected to this Declaration. Owners shall have all the rights and
obligations imposed by this declaration with respect to such Common Areas prior to conveyance,
except that the Corporation shall not be liable for payment of taxes and insurance for such
Common Areas until title is conveyed.
ARTICLE VIII
Easements
1. Plat Easements. In addition to such easements, as are created elsewhere in this
Declaration and as may be created by Declarant pursuant to written instruments recorded in the
Office of the Recorder of Hamilton County, Indiana, Lots are subject to drainage easements,
sewer easements, utility easements,landscape easements, either separately or in any combination
thereof, as shown on the Plats, which are reserved for the use of Declarant, Owners, the
Corporation, the Architectural Development Control Committee, public utility companies and
governmental agencies as follows:
(a) Drainage Easements (DE) are created to provide paths and courses for area
and local storm drainage, either over land or in adjacent underground
conduit, to serve the needs of Rosemead Commons and adjoining ground
and/or public drainage systems; and it shall be the individual responsibility
of each Owner to maintain the drainage across his own Lot. Under no
circumstances shall said easement be blocked in any manner by the
construction or reconstruction of any improvement, nor shall any grading
restrict, in any manner, the water flow. Said areas are subject to
construction or reconstruction to any extent necessary to obtain adequate
drainage at any time by any governmental authority having jurisdiction over
drainage, by Declarant, and by the Architectural Development Control
Committee, but neither Declarant nor the Architectural Development Control
Committee shall have any duty to undertake any such construction or
reconstruction. Said easements are for the mutual use and benefit of the
Owners.
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(b) Sewer Easements (SE) are created for the use of a private utility or the local
governmental agency having jurisdiction over any storm and sanitary waste
disposal system which may be designed to serve the Rosemead Commons
for the purpose of installation and maintenance of sewers that are a part of
said system.
(c) Utility Easements (UE) are created for the use of Declarant, the Corporation
and all pubic utility companies, not including transportation companies, for
the installation and maintenance of mains, ducts, poles, lines and wires, as
well as for all uses specified in the case of sewer easements.
(d) Landscape Easements (Blocks A, B, C) are created for the use by Declarant,
the Architectural Development Control Committee and the Corporation for
the planting and maintenance of trees, shrubs and other plantings.
(e) All easements mentioned herein include the right of reasonable ingress and
egress for the exercise of other rights reserved. No structure, including
fences, shall be built on any drainage, sewer, or utility easement if such
structure would interfere with the utilization of such easement for the
purpose intended or violate any applicable legal requirement or the terms and
conditions of any easement specifically granted to a Person who is not an
Owner by an instrument recorded in the Office of the Recorder for Hamilton
County, but a paved driveway necessary to provide access to a Lot from a
public street and a sidewalk installed by or at the direction of Declarant (and
replacements thereof) shall not be deemed a "structure" for the purpose of
the Restriction.
(f) General Easements. There is hereby created a blanket easement over, across,
through and under the Real Estate for ingress, egress, installation,
replacement, repair and maintenance of underground utility and service lines
and systems, including but not limited to water, sewers, gas, telephone,
electricity, television, cable or communication lines and systems. By virtue
of this easement it shall be expressly permissible for Declarant or the
providing utility or service company to install and maintain facilities and
equipment on the Real Estate and to excavate for such purposes if Declarant
or such company restores the disturbed area as nearly as is practical to the
condition in which it was found. No sewers, electrical lines, water lines,or
other utility service lines or facilities for such utilities may be installed or
relocated in a section except as proposed and approved by Declarant prior
to the conveyance of the first Lot in a Section to an Owner or by the
Architectural Development Control Committee thereafter. Should any utility
furnishing a service covered by the general easement herein provide a
request for a specific easement by separate recordable document, Declarant
or the Corporation shall have the right to grant such easement on the Real
22
,
Estate without conflicting with the terms hereof. This blanket easement shall
in no way affect any other recorded easements on the Real Estate, shall be
limited to improvements as originally constructed, and shall not cover any
portion of a Lot upon which a Residence has been constructed.
(g) Public Health and Safety Easements. An easement is hereby created for the
benefit of, and granted to, all police, fire protection, ambulance, delivery
vehicles, and all similar Persons to enter upon the Common Areas in the
performance of their duties.
(h) Drainage Board Easement. An easement is hereby created for the benefit of,
and granted to, the Drainage Board to enter the Real Estate and all Lots
therein to the extent necessary to exercise its rights with respect to any legal
drain constituting a part of the Drainage System.
ARTICLE IX
Term
This Declaration shall be effective for an initial term of twenty (20) years and shall
automatically renew for additional terms of ten (10) years each, in perpetuity, unless as of the
end of any term both the Owners of ninety percent (90%) of the Lots and the Mortgagees of at
least ninety percent (90%) of the Lots vote to terminate this Declaration, in which case this
Declaration shall terminate as of the end of the term during which such vote was taken.
Notwithstanding the preceding sentence, all easements created or reserved by this Declaration
shall be perpetual unless otherwise expressly indicated herein.
ARTICLE X
General Provisions
1. Covenants Run With the Land. The covenants created by this Declaration shall
attach to and run with the Real Estate and shall be binding upon every person who may hereafter
come onto ownership, occupancy, or possession of any portion of the Real Estate.
2. Scope of Covenants. The Declarant and each Owner of any Lot in Rosemead
Commons, by acceptance of a deed therefore, whether or not it shall be so expressed in such
deed, are deemed to have agreed to each and every one of the various terms, covenants,
conditions, and restrictions contained in this Declaration, and the same shall be of mutual and
reciprocal benefit to Declarant and each Owner of each Lot. Declarant and each Owner shall be
entitled to enforce this Declaration against any Owner to the full extent permitted herein and
under applicable law, and shall have all rights and remedies for such enforcement at law or in
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equity. Each Owner shall be liable for any failure to fully comply with all of the terms,
covenants, conditions, and restrictions contained in this Declaration only so long as each such
Owner shall have any interest in any Lot; provided, however, that the relinquishing of all of such
interest shall not operate to release any Owner from liability for a failure to comply with this
Declaration which occurred while said Owner had such interest.
3. Attorney's Fees. As to any legal or equitable proceedings for the enforcement of,
or to restrain the violation of, this Declaration or any provision thereof, if the party bringing such
action is successful in obtaining any remedy against any defaulting Owner, such defaulting
Owner shall pay the reasonable attorney's fees, or such successful party, in such amount as may
be fixed by the Court in such proceedings.
4. Failure to Enforce a Waiver of Rights. The failure of the Declarant, the
Association, or any Owner to enforce any term, covenant, condition, or restriction herein
contained, shall in no event be deemed to be a waiver of the right to do so thereafter, nor of the
right to enforce any other such term, covenant, condition, or restriction.
5. Rights of Mortgagees. Except to the extent otherwise provided herein, no breach
of this Declaration shall defeat or render invalid the lien of any mortgage now or hereafter
executed upon any portion of the Real Estate; provided, however, that if all or any portion of said
Real Estate is sold under a foreclosure of any mortgage, any purchaser at such sale, and his
successors and assigns, shall hold any and all land so purchased subject to this Declaration.
Notwithstanding any other provision of this Declaration, neither the Owners nor the Association
shall have any right to make any amendment to this Declaration which materially impairs the
rights of any Mortgagee holding, insuring, or guaranteeing any mortgage on all or any portion
of the Real Estate at the time of such amendment.
6. Effect on Invalidation. If any provision of this Declaration is held to be invalid by
any Court or by operation of law, the invalidity of such provision shall not affect the validity of
the remaining provisions hereof.
7. Section Headings. Section headings used herein are used for convenience only and
are not intended to be a part of this Declaration or in any way to define, limit, or describe the
scope and intent of the particular sections to which they refer.
8. Notices. All notices in connection with this Declaration shall be made in writing
and shall be deemed delivered (a) upon personal delivery to the individual person, if any,
designated in writing by the Owner, as listed in the roster of Owner's names and addresses
maintained by the Association; or (b) seventy-two (72) hours after the deposit thereof in any
United States main or branch Post Office, first class postage prepaid, properly addressed to the
addressee thereof at the address listed in the said roster.
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9. Deed Clause to Implement Declaration. Each Owner covenants and agrees that it
will not execute or deliver any deed or conveyance of a fee title interest in any Lot, or any
portion thereof, unless such deed or conveyance contains a clause substantially as follows:
"By acceptance and recording of this conveyance, the Grantee herein covenants and
agrees to be bound by the Declaration of Covenants, Easements and Restrictions of
Rosemead Commons pertaining to the Real Estate hereby granted, which is
recorded as Instrument No. , in the Office of the Recorder of
Hamilton County, Indiana,�'
10. Provision Against Merger. The Declarant hereby intends that the Real Estate shall
be subject to this Declaration, that the covenants contained herein shall not be merged into the
title of the Declarant, regardless of whether the Declarant is the fee title owner of all or any part
of the Real Estate at the time this Declaration is executed and recorded.
11. Reservations of Declarant. Declarant hereby reserves the right to make such
amendments to this Declaration as may be deemed necessary or appropriate by Declarant without
the approval of any other Person or entity, in order to bring the Declaration or Rosemead
Commons into compliance with the requirement of any public agency having jurisdiction thereof
or of any agency guaranteeing, insuring, or approving mortgages, so long as Declarant owns any
Lots within Rosemead Commons; provided that Declarant shall not be entitled to make any
amendment which has materially adverse effect on the rights of any Mortgagee, nor which
substantially impairs the benefits of this Declaration to any Owner or substantially increases the
obligations imposed by this Declaration on any Owner.
12. Availability of Documents. The Association shall keep and make available for
inspection during normal business hours, copies of this Declaration, the Articles of Incorporation
and By-Laws of the Association, and current financial statements of the Association, for the
benefit of all Persons who may have an interest therein.
13. Non-Liability of Declarant. Declarant shall not have any liability to an Owner or
to any other Person with respect to drainage on, over or under a Lot. Such drainage shall be the
responsibility of the Owner of the Lot upon which a Residence is constructed and of the Builder
of such Residence and an Owner, by an acceptance of a deed to a Lot, shall be deemed to agree
to indemnify and hold Declarant free and harmless from, in connection with drainage on, over
and under the Lot described in such deed. Declarant shall have no duties, obligations or
liabilities hereunder except such as are expressly assumed by Declarant, and no duty of, or
warranty by, Declarant shall be implied by or inferred from any term or provisions of this
Declaration.
14. Severability. Every one of the covenants and restrictions herein contained is hereby
declared to be independent of, and severable from, the rest of the covenants and restrictions, each
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and every one thereof and from every combination thereof. Therefore, if any of the covenants
and restrictions herein contained shall be held to be invalid or to be unenforceable, or shall lack
the quality of running with the land, that holding shall be without effect upon the validity and
enforceability or "running"quality of any other of the covenants and restrictions herein contained.
IN WITNESS WHEREOF, Declarant has executed this Declaration of Covenants,
Easements and Restrictions of Rosemead Commons this of , 1991.
ROSEMEAD COMMONS DEVELOPMENT, INC.
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