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APPLICATION FOR SECONDARY PLAT OR REPLAT
Fee: $500.00
Date: . 7/24/01'
DOCKET#
The undersigned agrees that any construction, reconstruction, enlargement, relocation or alteration of structure,
or any change in the sue of land or structures requested by this application will comply with, and conform to, all
applicable laws of the State of Indiana, and the Zoning Ordinance of Carmel, Indiana - 1980, adopted under the
authority of Acts of 1979, Public Law 179, Section et. seq. General Assembly of the State oflndiana, and all Acts
amendatory thereof.
Name of Applicant: Tim Walter for Ditch Road Properties, LLC
Address of Applicant: 9551 ~leqates' Row Indianapolis IN 46240
Phone # 317-818-2900
Name of Owner: SanE as aoolicant
Name of Subdivision: Saddle creek, Section 11
Legal Description (To be typewritten on separate sheet and attached).
Acre (in acres):
0.51 miles
36.46
Number of Lots: 54
Length in miles of new streets to be dedicated to public use:
Surveyor certifying plat:
~nis Singer, RLS for Paul I. Cripe, Inc.
IN 46250 317-842-6m
TITLE:
(Print~TH".::r. tJ4L~
Surveyor's address and phone #
Signature of Applicant:
.................................................................................
STATE OF INDIANA
COUNTY OF
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Before me, the und~igned, a Notary Public for J..'JkoJ',o,J County, State of Indiana, personally appeared
Iltr'Ieflu{ 1", I\.)M- Hi.l7... and acknowledge the execution of the foregoing instrument this
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Notary Public ,.
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CHAo A TERHUNE
O~I-oh"'r I<:>/20r:..77 NOTARYPUBUC STATE OFlNOlANA
. MYrnr.L~COUNTy
-vmNJISSION EXP. ocr. 10.2007
5.1.10 Application for Secondary Plat. Two (2) copies, or more ifnecessary, of the secondary plat and the
construction plans, together with supporting documents, shall be submitted to the Building Commissioner with this
application and the application fee as indicated in Section 29.5 ofthe Zoning Ordinance.
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My Commission Expires:
Additional plans to be distributed to necessary authorities by applicant.
FEE:
Received By:
N:\1996\960000\KASREB\PLA T APP. WPD
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9.6 THE SUBDIVIDER ~PR 2 2uG2 hi
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The following agreement shall be included as a submittal with the final pl~~~pplication. ,-<Ii;
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AGREEMENT
The developer shall be responsible for any drainage problems including standing water,
flooding and erosion control, which arise or become evident at any time during the 3 year
maintenance period after release of subdivision bonds, and which is attributable to a
deficiency in subdivision drainage design or construction of drainage improvements.
This shall include all pipes, structures, swales, ditches and ponds which are pertinent
features to the proper drainage of the subdivision.
This responsibility of the developer shall not, however, include problems which are
created, subsequent to the completion of the subdivision improvements by the improper
grading by individual builders, or structures and improper grading installed or
accomplished by individual homeowners.
It is the intent of this requirements, that the developer shall, specifically, provide such
sub-surface drains, or storm sewers or ditches as are required to properly rectify any
drainage problem or sub-surface water problem which was not contemplated 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 substandard, with Hamilton County is:
The developer will put in 12 inch stone base to the required width of the road, and grade
the sp.oulders to a minimum of 6 feet width and construct proper side-ditches, or, provide
storm sewers and curbs. This 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 developer will be responsible for 1 inch of asphalt topping. This
is being done as joint projects between county and developer. An agreement shall be
executed, in writing, between the developer and Hamilton 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 contemplated to be annexed to the City of Carmel, then the agreement
shall include the City of Carmel Board of Public Works as a signatory, which shall be for
the purpose of the City of Carmel agreeing to accept for maintenance and operation, the
improved road facility upon completion of said improvements and completion of
annexation.
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March 29, 2002
DATE
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9609&44059
Filed for Record in
HAMILTON COUNTY, INDIANA
MARY L CLARK
On 10-17-1996 At 11:49 am.
DECL 113. 00
DECLARATION OF COVENANTS AND RESTRICTIONS
SADDLE CREEK
CARMEL, INDIANA
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Recorded October [1, 1996
Instrument Number16tJtf6WO#1
Office of the Recorder of
Hamilton County, Indiana
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DECLARATION OF COVENANTS AND RESTRICTIONS
SADDLE CREEK
INDEX
Article Page
I. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2
II. Real Estate Subject to Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5
1. Declaration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5
2. Declarant's Right To Expand. ............................. 5
ffi. Common Areas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7
1. The Common Area. ..................................... 7
2. Agreement to Const & Convey Common Area. .................. 7
IV. Corporation Membership; Voting; Functions. . . . . . . . . . . . .. . . . . . . . . .. 8
1. Membership In Corporation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8
2. Voting Rights. ...................................... 8
3. Functions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9
V. Board of Directors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9
1. Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9
2. Initial Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9
3. Additional Qualifications. . . . . . . . . . . . . . . . . . . . . . . . . . ~ . . . .. to
4. Term Of Office and Vacancy ............................ 10
5. Removal of Directors ................................. 11
6. Duties of the Board of Directors. . . . . . . . . . . . . . . . . . . . . .' . . . .. 11
7. Powers of the Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . .. 12
8. Limitation on Board Action ............................. 13
9. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14
to.Non-Liability of Directors and Officers ...................... 14
l1.Additional Indemnity of Directors and Officers ................. 14
12.Bond . . . . . . . . . . . . . . . .. . ... . . . . . . . . . . . . . . . . . . . . . . .. 15
13.Initial Management .................. . . . . . . . . . . . . . . . .. 15
VI. Real Estate Taxes; Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 16
\ 1. Real Estate Taxes ................................... 16
2. Utilities ......................................... 16
VII. Maintenance, Repairs and Replacements ........ . . . . . . . . . . . . . . . .. 16
1. By Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 16
2. By the Corporation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 16
Vill. Saddle Creek Building Control Committee. . . . . . . . . . . . . . . . . . . . . . .. 18
1. Creation ......................................... 18
2. Character of the Real Estate ............................. 19
A. In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 19
B. Residential Use of Accessory Structures .......... . . . . . . . . .. 20
C. Occupancy & Residential Use of Partially Completed Dwelling . . . . .. 20
3. Restrictions and Obligations Concerning Size . . . . . . . . . . . . . . . . . .. 20
A. Minimum Living Space Areas. . . . . . . . . . . . . . . . . . . . . . . . . .. 20
B. Set-Back Requirements .............................. 20
C. Mailboxes ............. . . . . . . . . . . . . . . . . . . . . . . . .. 20
D. Exterior Construction ............................ . .. 21
E. Heating Plants and Garages . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21
IF. Diligence in Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21
G. Prohibition of Used Structures . . . . . . . . . . . . . . . . . . . . . . . . .. 21
H. Maintenance of Lots and Improvements ... . . . . . . . . . . . . . . . .. 21
J. Fences, Walls and Screening Structures . . . . . . . . . . . . . . . . . . . .. 22
I. Declarant's and Corporation's Right to Perform Maintenance. . . . . . .. 23
4. Provisions Respecting Disposal of Sanitary Waste ..............;. 23
A. Nuisances ...................................... 23
B. Construction of Sanitary Sewage Lines . . . . . . . . . . . . . . . . . . . .. 24
5. General Prohibitions ................................. 24
A. In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24
B. Signs ...................................... . .. 24
C. Animals ....................................... 24
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XI.
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XIV.
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XVI.
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Exhibit A
Exhibit B
Exhibit C
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D. Vehicle Parking .................................. 24
E. Garbage, Trash and Other Refuse . . . . . . . . . . . . . . . . . . . . . . .. 24
F. Fuel Storage Tanks and Trash Receptacles . . . . . . . . . . . . . . . . . .. 25
G. Model Homes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 25
H. Temporary Structures ............................. .. 25
I. Ditches and Swales ....... . . . . . . . . . . . . . . . . . . . . . . . . .. 25
J. Utility Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 25
K. Wells and Septic Tanks . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 25
6. Committee's Functions ................................ 25
A. Statement of Purposes and Powers ....................... 25
B. Duties of Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 27
C. Liability of Committee .............................. 27
D. Inspection ......... . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 28
7. Rules Governing Building on several Contiguous Lots.. . . . . . . . . . . .. 28
Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 28
1. Annual Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 28
2. Proposed Annual Budget ............................... 29
3. Regular Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 30
4. Special Assessments .................................. 32
5. Failure of Owner to Pay Assessments ....................... 32
6. Initial Budgets and Assessments . . . . . . . . . . . . . . . . . . . . . . . . . .. 34
7. Initial Working Capital and Start-up Fund . . . . . . . . . . . . . . . . . . . .. 35
Mortgages ........................................... 35
1. Notice to Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 35
2. Notice of Unpaid Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . .. 36
Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .. 36
1. Casualty Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 36
2. Public Liability Insurance . . . . . . . . . . . . . . . .'. . . . . . . . . . . . . .. 38
3. Other Insurance . . . '. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 38
4. General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 39
5. Insurance by Others .................................. 39
Casualty and Restoration .................................. 39
Restrictions, Covenants and Regulations ......................... 40
1. Restrictions On Use .................................. 40
2. Non-Applicability to Corporation .......................... 43
Amendment to Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 43
1. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 43
2. Amendments by Declarant Only . . . . . . . . . . . . . . . . . . . . . . . . . .. 44
\Acceptance and Ratification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 45
Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 46
Benefit and Enforcement .................................. 46
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 46
1. Costs and Attorneys' Fees .............................. 46
2. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 46
3. Severability Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 47
4. Pronouns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 47
5. Interpretation ...................................... 47
Legal Description of Original Tract . . . . . . . . . . . . . . . . . . . . .. attached
Legal Description of Additional Tract .................... attached
Site Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. attached
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DECLARATION OF COVENANTS AND RESTRICTIONS
OF SADDLE CREEK
CARMEL. INDIANA
,This Declaration (hereinafter referred as "the
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Declaration" or "this Declaration", made as of the / I~ay of
~7t:J~~, 1996, by Saddle Creek Development Company, Inc.,
an
Indiana corporation (hereinafter referred to as the "Declarant"),
WIT N E SSE T H:
WHEREAS, the Developer is the owner of the parcels of real
estate located in Hamilton County, Indiana, which are more
particularly described in Exhibit "A", attached hereto and hereby
incorporated herein by reference (hereinafter referred to,
collectively, as the "Original Tract"); and
WHEREAS, Declarant,has the right and the option to acquire the
parcels of real estate in Hamilton County, Indiana which are more
particularly described in Exhibit "B" attached and hereby
incorporated herein by reference (hereinafter referred to as the
"Additional Tract"); and
Whereas, Declarant reserve the right, but not the obligation,
from time to time, to acquire Additional Tract or tracts of land
contiguous or proximal to the Original and/or the Additional Tract
prior to the applicable date, whereupon such after acquired
tract(s) shall be made subject to the terms of this Declaration as
hereinafter provided;
WHEREAS, Declarant intends to create on the Original Tract
[and Imay in the future desire to create on such portions (or all)
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of the Additional Tract as may be made subject to the terms of this
Declaration, as hereinafter' provided] a residential community with
public streets , private open spaces and landscaped areas, including
lakes and ponds, and which community may include certain
recreational facilities and amenities, for the benefit of such
residential community,to be known as, SADDLE CREEK; and
WHEREAS, Declarant desires to provide for the preservation and
enhancement of the values and amenities in such community and the
common areas therein contained, and, to this end, Declarant desires
to subj1ect the original Tract together with such portions (or all)
of the Additional Tract as may hereafter be, made subject to the
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terms of this Declaration, as hereinafter provided] .to certain
rights, privileges, covenants, restrictions, easements, charges,
assessments, liens, each and all to the extent herein provided, for
the benefit of the original Tract [together with such portions (or
all) of the Additional Tract as may hereafter be made subject to
the terms of this Declaration as hereinafter provided] and each
owner of all or part thereof; and
WHEREAS, Declarant deems it desirable, for the efficient
preservation of the values and amenities in said community, to
create an agency to which shall be delegated and assigned the
powers of owning, maintaining and administering any common areas
located on the Real Estate (hereinafter defined), administering and
enforcing the covenants and restrictions contained in this
Declaration, collecting and disbursing the assessments and charges
imposed and created hereby and hereunder and promoting the health,
safety and welfare of the owners of the Real estate, and parts
thereof; and
WHEREAS, Declarant has caused, or will cause, to be
incorporated under the laws of the State of Indiana a not-for
profit corporation under 'the name "Saddle Creek Homeowners
Association, Inc.", or similar name, as such agency for the purpose
of exercising such functions;
NOW, THEREFORE, Declarant hereby declares that the Real Estate
is and shall be held, transferred, sold, conveyed, hypothecated,
encumbered, leased, rented, used, improved and occupied subject to
the provisions, agreements, conditions, covenants, restrictions,
eaSlements, assessments, charges and liens hereinafter set forth,
all of which are declared to be in furtherance of a plan for
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preservation and enhancement of the Real Estate, and are
established and agreed upon for the purpose of enhancing and
protecting the value, desirability and attractiveness of the Real
Estate as a whole and of each the Lots situated therein.
Article I
DEFINITIONS
section 1. The following words and terms, when used herein or
in any supplement or amendment hereto, unless the context clearly
DECLARATION - SADDLE CREEK
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requires otherwise, shall have the following meanings:
(a) "Act" shall mean and refer to the Indiana Not-for-profit
corporation Act of 1971, as amended;
(b) "Applicable Date" shall mean and refer to the date
determined pursuant to Article IV, Section 2 (b) of this
Declaration; .
(C) "Approvals" shall. mean and refer to approvals,
determinations, permissions, or consents required herein
and shall be deemed given if they are given in writing,
signed with respect to the Declarant or the Corporation,
by the President or Vice-President thereof, and wi th
respect to the Committee, by two members thereof;
(d) "Articles" shall mean and refer to the Articles of
Incorporation of the Corporation, as the same may be
\ amended from time to time;
~(e) "Board" or "Board of Directors" shall. mean and refer to
the governing body of the corporation elected, selected
or appointed as provided for in the Articles, By-Laws and
this Declaration;
(f) "By-Laws" shall mean and refer to the Code of By-Laws of
the Corporation, as the same may amended from time to
time;
(g) "Committee" shall mean and refer to the "Saddle Creek
Building Control Committee", the same being the
committee or entity established pursuant to Article VIII,
Section 1 of this Declaration for the purposes herein
stated;
(h) "Common Areas" shall mean and refer to (i) all portions
of the Real Estate shown on any recorded subdivision plat
of the Real Estate, or any part thereof, which are not
dedicated to the public; and which are not identified as
lots on any such plat (such as public streets), whether
such plat is heretofore or hereafter recorded, (ii) to
the extent hereinafter established, such portions of the
Real Estate as are herein declared to be Common Areas
even though located on or constituting part of one or
more such lots shown on any such plat, and (iii) to the
extent hereinafter established , such improvements
located, installed or established in, to, under, across
or through the Real Estate as are herein declared to be
Common Areas whether located, installed or established
entirely or partially on Lots (as. herein defined) or
portions of the Real Estate which are not Lots, or both;
(i) "Common Expenses" shall mean and refer to expenses of
administration of the Corporation, and expenses for the
upkeep, liability insurance, maintenance, repair and
replacement of the Common Areas, and all sums, costs and
expenses declared by this Declaration to be Common
Expenses;
(J) "Corporation" shall mean and refer to Saddle Creek
Homeowners Association, Inc., an Indiana not-for-profit
corporation which Declarant has caused, or will cause, to
be incorporated under said name or similar name, its
successors and assigns;
(k) "Declarant" shall mean and refer to Saddle Creek
Development Company, an Indiana corporation, 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
mortgages acquiring title to any portion of the Real
Estate pursuant to the exercise of rights under, or
foreclosure of, a mortgage executed by Declarant:
(1) "Drainage System" shall mean and refer to the open
drainage ditches, the subsurface drainage tiles, pipes
and structures, the dry and wet retention and/or
detention areas, and the other structures, fixtures,
properties, equipment and facilities located on the Real
Estate and designed for the purpose of controlling,
retaining or expediting the drainage of surface and
subsurface waters from, over and acr9ss the Development,
DECLARATION - SADDLE CREEK
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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 Hamilton
County Drainage Board, its successors or assigns;
(m) "Dwelling units" shall mean and refer to any building,
structure or portion thereof situated an the Real Estate
designed and intended for use and occupancy as a
residence by one (1) single family;
(n) "Lot" shall mean and refer to any and each portion of the
Real Estate (excluding any part of the Common Areas)
designed and intended for use as a building site for, or
developed and improved for use as, a Dwelling Unit (which
shall be deemed to include any other buildings or
improvements appurtenant to such Dwelling Unit), as
designated by Declarant by its deed of the same to
another Person. A Lot will not necessarily be the same as
any individually numbered parcel of land shown upon, and
identified as a lot on, any recorded subdivision plat of
the Real Estate or any part thereof~ For purposes ,of
this Declaration, a "Lot" may be (i) any individually
numbered parcel of land identif ied as a lot on such
subdivision plat, (ii) part of such a numbered parcel of
land, (iii)such a numbered parcel of land combined with
part or all of another such numbered parcel of land, or
(iv) parts or all of two (2) or more of such numbered
parcels of land combined. The determination of what
portion of the Real Estate constitutes a "Lot" for
purposes of this Declaration shall be made by reference
to, and shall mean, each tract of land conveyed by
Declarant to another Person for use as a building $ite
for, or developed and improved for use as, a Dwelling
Unit (which shall be deemed to include any other
buildings or improvements appurtenant to such Dwelling
Unit) . Notwithstanding the foregoing, if after the
initial conveyance of a portion of the Real Estate by
Declarant to another Person it is agreed between the
Declarant and such Person to enlarge or reduce or
otherwise change the portion of the Real Estate so
originally conveyed to such Person as a "Lot",then the
determination of what portion of the Real Estate
constitutes such a "lot" for purposes of this Declaration
shall be made by reference to, and shall mean, such "Lot"
initially so conveyed by Declarant, as the same has been
adjusted or changed at any time by conveyances by and
between Declarant and such Person. Any deed or other
instrument of conveyance so adjusting or changing the
description of a "Lot" shall state on its face that it is
made for such purposes. Any part of a "Lot" reconveyed
to Declarant shall, upon such reconveyance, lose its
character as part of a "Lot" and thereafter by conveyed
by Declarant as part of another "Lot". The foregoing
procedures may be used to correct errors in descriptions,
to adjust boundary lines of "Lots" or for any other
reason as determined by Declarant;
(0) "Mortgagee" shall mean and refer to the holder of a
recorded first mortgage lien ona Lot or Dwelling
Unit;
(p) "Owner" shall mean and refer to (i) the Declarant, as to
each Lot owned by it and as to each individually numbered
parcel of land shown upon , and identified as a lot an
any recorded subdivision plat of the Real Estate (or any
part thereof) of which it is the owner (either as to the
entire numbered parcel or any part thereof) which is not
a Lot, and (ii) the recorded owner, whether one or more
Persons, of the fee simple title to any Lot, provided,
however, that Owner shall not include or mean or refer to
a mortgagee or tenant unless and until such mortgagee or
tenant has acquired ti tIe to any Lot, but upon so,
acquiring title to any Lot a mortgagee or tenant shall be
an Owner;
(q) "Person" shall mean and refer to an individual, firm,
DECLARATION - SADDLE CREEK
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corporation, partnership, Association, trust, or other
legal entity, or any combination thereof;
(r) "Real Estate" shall mean and refer to the Original Tract,
additional tract and after acquired tract as have, from
time to time, been subjected to, and are, at anytime
subject to this declaration;
(s) "Restrictions" shall mean and refer to the agreements,
conditions, covenants, restr ictions , easements,
assessments, charges, liens and all other provisions set
forth in this Declaration, as the same may be amended
from time to time; and
(t) "Site Plan" shall mean and refer to the preliminary
plan reflecting Declarant's proposed development of the
Original Tract and the Additional Tract (if the entire
Additional Tract is subjected to this Declaration), a
copy of which is attached hereto as Exhibit "c" and
hereby incorporated herein by reference.
section 2. Other terms and words defined elsewhere in this
Declaration shall have the meanings herein attributed to them.
ARTICLE II
REAL ESTATE SUBJECT TO THIS DECLARATION:
DECLARANT'S RIGHT TO SUBJECT ADDITIONAL
TRACT TO THIS DECLARATION
Section 1.
Declaration.
Declarant
hereby
expressly
declares that the Real Estate shall be held, transferred, sold,
conveyed and occupied subject to all the Restrictions. As of the
date of execution of this Declaration, the Real Estate consists
solely of the Original Tract. The Owner of any Lot at any time
shall be subject to the Restrictions and this DeClaration, (i) by
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 Loti, shall conclusively be deemed to have accepted such deed,
executed such contract and undertaken such occupancy subject to all
Restrictions contained in this Declaration. By acceptance of such
deed, execution of such contract or undertaking such occupancy,
each Owner and all other Persons acknowledge the rights and powers
of Declarant, the Committee and the Corporation with respect to or
under this Declaration, and, for himself, his heirs, personal
representatives, successors and assigns, covenant, agree and
consent to and with Declarant, the Committee and the corporation,
and the Owners and subsequent Owners of each of the Lots affected
by this DeClaration, to keep, observe, perform and comply with the
terms and provisions of this Declaration.
section 2.
Declarant's Riqht of EXDansion.
Declarant
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shall have, and hereby expressly reserves, the right, but not the
obligation, at any time and from time to time, on or before the
applicable date to add to the real estate and subject to this
Declaration all or any part of the Addi tional Tract or after
acquired tract. Any portion of the'Additional Tract or after
acquired tract shall be added to the Real Estate, and therefore and
thereby becomes a part of the Real Estate and subj ect in all
respects to this Declaration, when Declarant places of record in
Hamilton County, Indiana an instrument so declaring the same to be
a part of the Real Estate, which declaration may be made a part of
the subdivision plat of any portion of the Additional Tract or
after acquired tract, or by an amendment or supplement, to this
Declaration, or by the deed conveying any portion of the Additional
Tract to a Person other than Declarant, or otherwise. Upon the
recording of any such instrument on or before the Applicable Date,
the real estate described therein shall, for all purposes
,
Real Estate, as described in this section 2, as to any part or
parts of the Additional Tract or after acquired tract shall
preclude Declarant from thereafter from time to time further
expanding and adding to the Real Estate, to include other portions
of the Additional Tract, and such right and option of expansion may
be exercised by Declarant from time to time as to all or any
portion of the Additional Tract or after acquired tract so long as
such expansion is accomplished on or before the Applicable Date.
Such expansion of the Real Estate is entirely at the discretion of
Declarant and nothing contained in this Declaration or otherwise
shall require Declarant to expand the Real Estate beyond the
Original Tract, or any other portions of the Additional Tract or
after acquired tract which Declarant may voluntarily and in its
sole discretion from time to time subject to this Declaration.
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ARTICLE III
Common Areas: Obliqations of Declarant as to Common Areas
section 1.
The Common Areas.
The Common Areas shall
consist of the portions of the Real Estate, and improvements
thereon or thereto, as defined in Article I, section l(h) of this
Declaration. Without limiting the generality of the foregoing, the
I
Common Areas shall include the following portions of the Original
Tract and the Additional Tract, and improvements thereon or
thereto, to the extent the same have been subj ected to this
Declaration and are part of the Real Estate:
(a) The ten (10) storm water detention ponds or lakes shown
on the Site Plan, including all land areas surrounding
the same which are shown upon the site Plan as, and may
be shown on subdivision plats of the Real Estate as
"Common Areas" or "Lake Maintenance Easement";
(b) Landscaping to be installed in any islands, esplanades,
cul-de-sac or cul-de-Ioop areas within the right-of-way
of any streets within the Real Estate, or in any greenway
or elsewhere within the real estate; and .
(c) Entry way walls, fountains, works of art, sculptures,
fences or other structures, sidewalks and pederstrian
underpasses installed in pedestrian walkway easements or
under a county right-of-way, subdivision identification
signs, street signs or directories, landscape irrigation
systems, decent lighting systems and other similar items
to be installed in "Landscaping Easements", "Internal
Sidewalk System Easements", "Lake Maintenance Easements"
or "Pedestrian Parkway Easements" noted or to be noted on
subdi vision plats of the Real Estate, or at or in
proximity to the street entrances to the Real Estate from
136th and 141st streets; and
(c) The following improvements (hereinafter referred to,
collectively, as the "Recreational Facilities") to be
installed in the "Common' Area" located as shown on the
site Plan:
(i) One (1) or more tennis courts,
(ii) A swimming pool, and
(iii) An off-street vehicle parking area.
Section 2.
Aqreement to Construct and Convey Common Areas.
Declarant will, prior to the Applicable Date, construct or provide,
for the Common Areas described herein to the extent the same are
due to I be located on portions of the Original Tract or the
Additional Tract which are sUbjected to this Declaration and are
part of the Real Estate. Upon final construction or provision of
such Common Areas, Declarant covenants to convey all of its right,
title and interest in and to said Common Areas to the Corporation
and all such right, title and interest in and to said items
(whether owned in fee, by leasehold, by contract or in the nature
of an easement or license) shall then be the property of the
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Corporation, whether or not the same may be located entirely or
partially on anyone or more of the lots.
The corporation
covenants to accept such common area subj ect to the terms and
conditions of this Declaration.
ARTICLE IV
CorDoration: MembershiD: votina: Functions
section 1. Membership in Corporation ~ Declarant and each
Owner of a Lot shall, automatically upon becoming an Owner, be and
become a member of the Corporation and shall remain a member until
such ti~e as his ownership of a Lot ceases, but membership shall
terminate when such Owner ceases to be an Owner, and will be
transferred to the new Owner of his Lot; pro~ided, 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 forecloses upon his security, at which time he
shall automatically be and become an Owner and a member of the
Corporation.
section 2.
Votina Riahts. The Corporation shall have the
following classes of membership, with the following voting rights:
(a) Class A. Class A members shall all be 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
wi th respect to each matter submi ~ted to a vote of
members upon which the Class A members are entitled to
vote. When more than (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
(1) vote for such Lot, which vote shall be exercised as
they among themselves determine, but in no event shall
more than one (1) vote be cast with respect to any such
Lot.
(b) 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 Cla$s B member shall be entitled to five (5) votes
for each Lot of which it is the Owner and five (5) votes
for each individually numbered parcel of land shown upon,
and identified as a lot on, any recorded subdivision plat
of the Real Estate, or any part thereof, of which it is
the Owner (either as to the entire numbered parcel or any
part thereof) which is not a "Lot" as defined in this
Declaration, on all matters requiring a vote of the
members of the Corporation. The Class B membership shall
cease and terminate upon 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 Declarant no longer owns any
Lots nor any portion of any individually numbered parcel
of land shown upon ,and identif fed as a lot on, any
recorded subdivision plat of the Real Estate, or any part
thereof, or (iii) December 31, 2005 (the "Applicable
Date"). After the Applicable Date, Class B memberships
. shall be converted to Class A memberships, and each
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(c)
former Class B member shall be entitled to one (1) Class
A membership for each Lot owned and for each individually
numbered parcel of land shown upon, and identified as
a lot on, any recorded subdivision plat of the Real
Estate, or any part thereof, of which it is then the
owner (either as to the entire numbered parcel or any
part thereof) which is not a "Lot" as defined herein.
Special. until the Applicable Date, there shall be
three (3) additional Special members of the Corporation,
being the persons from time to time appointed by
Declarant to serve on the "Initial Board" pursuant to
section 2 of Article V hereof. Persons who are special
members shall not be deemed or considered members of the
corporation nor Owners of Lots for any purpose other
than to qualify to act as members of the Initial Board.
Special members shall have no voting rights on any
matters submitted to a vote of the members [unless such
special member is also a Class A member, in which event
his voting rights shall be governed by subsection (a) of
this section 2].
Sebtion 3.
Functions. The Corporation has been (or will
be) formed for the purpose of providing for the maintenance,
repair, replacement, administration, operation and ownership of the
Common Areas as and to the extent provided herein, to pay taxes
assessed against and payable with respect to the Common Areas, to
pay any other necessary expenses and costs in connection with the
Common Areas, and to perform such other functions as may be
designated for it to perform under this Declaration or under any
recorded subdivision plat of the Real Estate, whether heretofore or
hereafter recorded.
section 1.
ARTICLE V
Board of Directors
Manaaement. 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 Owner, including a person appointed by
Declarant as provided in section 2 of this Article V.
section 2.
Ini tial Board of Directors. The initial Board
of Directors shall be composed of the persons designated or to be
designated in the Articles, to-wit: John J. Kennelly, Kathleen M.
Kennelly, Kris K. Bigelow (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, or any other
provisions of, this Declaration, the Articles, the By-Laws or the
Act (a) the Initial Board shall hold office until the first meeting
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of the members of the Corporation occurring on or after the
Applicable Date, and (b) in the event of any vacancy or vacancies
occurring in the Initial Board for any reason or cause whatsoever
priorI to such first meeting occurring on or after 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 type of Juridic acts inter vivos or causa mortis, or
otherwise, 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 votel, 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 By-Laws, the Act 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 Ini tial Board,
whether as an original member thereof or as a member thereof
appointed by Declarant to fill a vacancy, shall be deemed a Special
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 purposes. No such Person serving on the Initial Board shall
be deemed or considered a member of the Corporatipn nor an Owner of
a Lot\for any purpose (unless he is actually the Owner of a Lot and
thereby a member of the Corporation).
Section 3. Additional Oualifications. Where an Owner
consists of more than one Person or is a partnership, corporation,
trust or other legal entity, then one of 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.
Section 4. Term of Off ice and Vacancv. Subj ect to the
provis~ons of Section 2 of this Article V, the entire membership of
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the Board of Directors shall be elected at each annual meeting of
the corporation. The Initial Board shall be deemed to be elected
and reelected as the Board of Directors at each annual meeting
until the first meeting of the members occurring on or after the
Applicable Date provided herein. After the Applicable Date, each
member of the Board of Directors shall be elected for a term of
\
one(1) year. Each Director shall hold office throughout the term
of his election and until his successor is elected and qualified.
Subject to the provisions of section 2 of this Article V 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 section 5 of this Article V.
The Director so
filling a vacancy shall serve until the next annual meeting of the
members and until his successor is elected and qualified.
section 5.
I
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.
section 6.
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 Real Estate, the
managkment, maintenance, repair, upkeep and replacement of the
Common Areas (unless the same are otherwise and responsibility or
duty of Owners), and the collection and disbursement of the Common
Expenses. Before or after the Applicable Date, 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,
DECLARATION - SADDLE CREEK 11
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(a)
(b)
(c)
(d)
(e)
(f)
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(h)
protection, surveillance and replacement of the
Common Areas, unless the same are otherwise the
responsibility or duty of Owners of Lots; 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;
procuring of utilities used in connection with the Lots,
Dwelling units and Common Areas (to the extent the same
are not provided and billed directly to Owners of Lots
and Dwelling units by utility companies) and snow removal
from the street; streets within the Real Estate (if the
appropriate governmental authority exercising
Jurisdiction over such streets is unable or unwilling to
provide such snow removal);
landscaping, painting, decorating, furnishing, and
maintenance and upkeep of, the Common Areas;
assessment and collection from the Owners of the Owners'
respective shares in the Common Expenses;
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 the annual or special meeting
at which the same is to be acted upon is mailed or
delivered;
preparing and delivering annually to the Owners a full
accounting of all receipts and expenses incurred in the
prior year; if possible, such accounting shall be
delivered to each Owner simultaneously with delivery of
the proposed annual budget for the current year;
keeping a current, accurate and detailed record of
receipts and expenditures affecting the Common Areas and
the business and affairs of the Corporation, specifying
and itemizing the Common. Expenses; all records and
vouchers shall be available for examination by an Owner
at any time during normal business hours;
procuring and maintaining for the benefit of the
Corporation, the Owners, any Managing Agent and the Board
of insurance coverages required under this Declaration
and such other insurance coverages as the Board, in its
sole discretion, may deem necessary or advisable;
paying taxes and assessments levied and assessed
against, and. payable with respect to,the Common Areas
and paying any other necessary expenses and costs in
connection with the Common Areas; and
procuring weekly trash removal services for the benefit
of the Owners for which services the Owners may b~ billed
directly; and .
all duties and obligations imposed upon the Corporation
or the Board under this Declaration, the Articles, the By
Laws, the Act, or any recorded subdivision plat of the
Real Estate whether heretofore or hereafter
recorded.
(i)
(J)
(k)
section 7.
Powers of the Board-of Directors. The Board of
Directors shall have such powers as are reasonable and necessary to
accomplish the performance of their duties. These powers include,
but are not limited to, the power:
(a) to employ a Managing Agent to assist the Board in
performing its duties;
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(b) 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;
(c) 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;
(d) to employ, designate, discharge and remove such personnel
as in the judgment of the Board of Directors may be
necessary for the maintenance, upkeep, repair and
replacement of the Common Areas and to perform all other
maintenance, upkeep, repair and replacement duties of the
corporation and the Board; .
(e) to include the costs of performing all of its functions,
duties and obligations as Common Expenses and to pay all
of such costs therefrom;
\
(f) to open and maintain a bank account or accounts in the
name of the corporation;
(g) 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
Real Estate and the Common Areas (in addition to those
setforth in this Declaration) as the Board, in its
discretion, deems necessary or advisable; provided,
however, that copies of any such additional rules and
regulations so adopted by the Board shall be promptly
delivered to all Owners; and
(h) to grant to such public or private companies, entities or
bodies as the Board shall approve, such easements as
maybe necessary to provide the Lots, Dwelling Units and
Common Areas with facilities for utility and similar
services, including but not limited to cable television
facilities and service; provided that such easements are
located within or are co-extensive with anyone or more
easements or Common Areas shown upon, and identif ied
as such on, or provided for in, any subdivision plat of
the Real Estate, whether such plat is heretofore or
hereafter recorded.
Section 8.
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 $2,500.00 without obtaining the prior
approval of a majority of the cumulative votes of the Owners,
except that in the following cases such approval shall not be
necessary:
(a) contracts for replacing or restoring portions of the
Common Areas damaged or destroyed by fire or other
casualty where the cost thereof is payable out of
insurance proceeds actually received or for which the
\ insurance carrier has acknowledged coverage;
\(b) proposed contracts and proposed expenditures expressly
setforth in the proposed annual budget as approved by the
Owners at the annual meeting; and
(c) expenditures necessary to deal with emergency conditions
in which the Board of Directors reasonably believes there
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is insufficient time to call a meeting of the Owners.
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Sectl.on 9.
ComDensation. No Director shall receive any
compensation for his services as such, except to such extent as
maybe expressly authorized by a majority vote of the Owners. The
Managing Agent, if any is employed, shall be entitled to reasonable
compensation for its services, the cost of which shall be a Common
Expense.
section 10.
Non-Liabilitv of Directors and Officers. The
Directors and officers of the Corporation 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 and officers, 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 and officers 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 and
officers shall have no personal liability with respect to any
contract made by them on behalf of the Corporation.
Section 11.
Additional Indemnity of Directors and Off icers .
The Corporation ~ shall indemnify, hold harmless and defend any
Person, his heirs, assigns and legal representatives, made a party
to any ~ction, suit or proceeding by reason of the fact that he is
or was a Director or officer of the Corporation, against the
reasonable expenses, including attorneys' fees, actually and
necessarily incurred by him in connection with the defense of such
action, sui t or proceeding, or in connection with any appeal
therein, except as otherwise specifically provided herein in
relation to matters as to which it shall be adjudged in such
action, suit or proceeding that such Director or officer is liable
for gross negligence or misconduct in the performance of his
duties. The Corporation shall also reimburse to any such Director
or officer the reasonable costs of settlement of or judgment
rendered in any action, suit or proceeding, if it shall be found by
a majQrity vote of the Owners that such Director or officer was not
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guilty of gross negligence or misconduct. In making such findings
and notwithstanding the adjudication in any action, suit or
proceeding against a Director or officer, no Director or officer
shall lj>e 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 or officer relied on the books
and records of the Corporation or statements or advice made by or
prepared by the Managing Agent (if any) or any other 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 or officer had actual knowledge of the
falsity or incorrectness thereof; nor shall a Director or officer
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.
section 12. Bond. The Board of Directors may provide
\
surety bonds and may require the Managing Agent (if any), the
. .
treasurer of the corporation, and any other officers as the Board
deems necessary, to provide surety bonds, indemnifying the
corporation against larceny, theft,
embezzlement,
forgery,
misappropriation, wrongful abstraction, 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.
I
Section 13. Initial Manaaement. Notwithstanding anything
to the contrary contained in this Declaration, Declarant shall
have, and Declarant hereby reserves to itself, the exclusive right
to manage or designate a Managing Agent for the Real Estate and
Common Areas, and to perform all the functions of the corporation,
until the Applicable Date. Declarant may, at its option, engage
the services of the Managing Ag~nt affiliated with it to perform
such functions and, in either case, Declarant or such Managing
Agent shall be entitled to reasonable compensation for its
services.
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section 1.
ARTICLE VI
Real Estate Taxes: utilities
Real Estate Taxes. Real estate taxes on each
Lot, and on any Dwelling unit or other improvements on each Lot,
are to be separately assessed and taxed to each Lot and shall be
paid by the Owner of such Lot.
Any real estate taxes or other
assessments against the Common Areas shall be paid by the
Corporation and treated as a Common Expense.
section 2.
utilities.
Each Owner shall pay for his own
utilities which, to the extent possible shall be separately metered
to each Lot and Dwelling Unit. utilities which are not separately
metered to an Owner's Lot or Dwelling Unit shall be treated as and
paid as part of the Common Expense, unless otherwise determined by
the corporation.
ARTICLE VII
Maintenance. Repairs and Reolacements
Section 1. BY Owners. Each Owner shall, at his own
expense, be responsible for, and shall promptly perform as the need
therefore arises, all maintenance, repairs, decoration and
replacement of his own Dwelling Unit, both interior and exterior.
In ad~ition, each Owner shall furnish and be responsible for the
maintenance of all portions 'of his Lot, except for such portions
thereof as may, in accordance with the terms of this Declaration,
be designated as apart of the Common Areas for purposes of
maintenance only. All fixtures and equipment installed within or
as part of a Dwelling Unit, commencing at the points where the
ut.ility lines, pipes, wires , conduits or systems enter the Lot upon
which said Dwelling Unit is located, shall be maintained and kept
in repair by the Owner thereof. Each Owner shall promptly perform
all maintenance and repair of his Lot and Dwelling Unit which, if
neglect~d, might adversely affect any other Lot or Dwelling Unit or
any part of the Common Areas. Such maintenance and repairs include
but are not limited to internal water 'lines, plumbing, electric
lines, gas lines, appliances, and all other fixtures, equipment and
accessories belonging to the Owner and a part of or appurtenant to
his Dwelling Unit or Lot.
Section 2.
BY the Corooration.
Maintenance, repairs,
replacements and upkeep of the Common Areas [including, but not
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limited to, the storm drainage system for the Real Estate (other
than portions thereof established as legal drains subject to the
jurisdiction of the Hamilton County Drainage Board and maintained
by it)] shall (except to the extent provided herein as the
obligation of Owners) be furnished by the Corporation, as a part of
its duties, and the cost thereof shall constitute a part of the
Common Expenses.
In addition to the maintenance of the Common
Areas as herein otherwise defined, the Corporation, as part of its
duties ,I and as a part of the Common Expenses, . shall provide for
maintenance for the following items, which shall be considered part
of the Common Areas for purposes of maintenance only:
(a)
(b)
I{C)
(d)
(e)
those portions of the Real Estate, whether or not said
portions are part of any of the Lots, which are located
outside any perimeter fencing (including walls) originally
installed by Declarant as part of the perimeter treatment
of the Real Estate, but only to the extent that the same
are not maintained by or the responsibility of a public
authority; provided, however, that the Corporation shall
have no obligation to maintain any public street, road or
highway located within any public right-of-way or
abutting the Real Estate. For purposes of this
subparagraph (a), "outside any perimeter fencing" means
the areas between such fencing and the nearest property
line of the Real Estate;
any perimeter fencing (including walls) originally
installed by Declarant as part of the perimeter treatment
of the Real Estate;
landscaping and other items installed by Declarant as
part of its initial development of the Real Estate or by
the Corporation in theright-of-way-of any streets within
the Real Estate; and
the ten (lO) lakes or ponds shown on the site Plan,
including any equipment (such as water wells, fountains
or other aeration equipment) installed by Declarant as
an appurtenance to or to aid in the functioning of such
lakes or ponds, whether or not located on Lots and other
fountains, sculptures or works of art located in common
areas.
pedestrian walkways or pedestrian underpasses, including
and equipment installed by Declarant as an appurtenance
to or to aid in the functioning of such pedestrian
walkways or pedestrian underpasses including installation
under a Hamilton County pUblic right-of-way (street).
T~e Board of Directors may adopt such other rules and
regulations concerning maintenance, repair, use and enjoYment of
the Common Areas as it deems necessary, provided that the same are
not inconsistent with the express provisions of this Declaration.
Notwithstanding any obligation or duty of the Corporation to repair
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or maintain any of the Common Areas (or items deemed Common Areas
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for purposes of maintenance), 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 to the Common Areas (or items
deemed as such for purposes of maintenance), or if maintenance,
repairs or replacements shall be required thereby which would
otherwise be at the Common 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
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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. The authorized representatives of the Corporation, the
Board and the Managing Agent for the Corporation (if any) shall be
enti tIed to reasonable access to any Lot as may be reqUired in
connection with maintenance, repairs or replacements of or to the
Common Areas and items deemed as Common Areas for purposes of
maintenance, including, but not limited to, access to any easements
reserved, granted or created by any subdivision plat of any portion
of the Real Estate for such purposes.
ARTICLE VIII
Saddle Creek Building Control Committee.
Section 1.
Creation.
There shall be, and hereby is,
created and established the '.'Saddle Creek Building Control
Committee (the "Committee") to perform the functions provided to be
performed by it hereunder or under any subdivision plat of the Real
Estate. until the Applicable Date, the Declarant, or not more than
three (3) persons designated by it, shall constitute the Committee.
After the Applicable Date, the Committee shall be a standing
commi ttee of the Corporation consisting of three (3) or more
person~ as may, from time to time, be provided in the By-Laws. If
the By-Laws do not, at any time, provide for the Committee, then
the Board shall be and constitute. the Committee.
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section 2.
Character of the Real Estate.
A. In General. Every Lot in the Real Estate, unless it is
otherwise designated by the Declarant, is a residential lot and
shall\ be used exclusively for single family residential purposes.
No structure shall be erected, placed or permitted to remain upon
any of said residential lots except a single family dwelling house
and such other improvements, appurtenances and facilities as are
usual and customary accessory uses to a single family. dwelling
house.
Prior to the commencement of any construction or demolition
activity on a Lot, a delineation of the building area for each Lot
shall be submitted to the Committee for approval by the committee,
and all trees outside the building, driving and parking areas shall
be destgnated by type and size and shall not be removed unless
approved by the Committee upon proof of unusual hardship in the
practical utilization of the Lot and such removal shall not cause
a material adverse effect upon the aesthetic values of adjoining
lands and rights-of-way. Trees inside the building area shall not
be destroyed, but shall be moved to other areas of the Lot, unless
they exceed 12" in diameter'and cannot be moved.
unpermitted removal or destruction of trees by an Owner or his
successors in title, other than by acts of God or circumstances
beyond the Owner's control, shall, within ninety (90) days after
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notice in writing from the Committee, be replaced by a tree of a
type and size established by the Committee, and upon failure to do
so, the committee shall cause such tree to be replaced and the cost
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of such replacement shall be a lien upon the Lot collectable in any
court of law or equity together with reasonable attorney's fees for
the enforcement of such lien. For purposes of executing this
covenant, an easement for ingress and egress shall be and hereby is
reserved on each Lot for the performance thereof.
Adequate physical barriers, such as straw bales or snow fence,
shall be provided by builders to protect trees to be preserved from
damage by construction equipment or otherwise in the erection of
building improvements. P~uning of trees outside the building line
shall be permi tted subj ect to the review and approval of the
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Committee and shall be undertaken only by qualified persons having
adequate equipment to properly protect and preserve such trees.
In addition to individual site plan restrictions and tree
preservation administered by the Committee, platted building lines,
and minimum front, side and rear, building lines shall be a,s
established on any subdivision plats of the Real Estate or portions
therJof. All construction upon the Real Estate shall be done
incompliance with the requirements of all applicable zoning,
building and other governmental laws, ordinances, codes and
other:regulations.
B. Residential Use of Accessorv structures Prohibited. No
accessory uses or improvements shall be erected on any of .the Lots
prior to the erection thereon of a single family Dwelling Unit, and
in no event shall any stich accessory or any temporary structure
which may be constructed upon a Lot subject to these Restrictions
ever be used as a residence or dwelling house or place for human
occupa~cy or habitation.
C. OccuDancv and Residential Use of PartiallY completed
Dwellinq House Prohibited. No Dwelling unit constructed on any of
the Lots shall be occupied or used for residential purposes or
human habitation until it shall have been substantially completed
and has received a certificate of Occupancy from the proper
building permit authority.
section 3.
Restrictions and Obligations concerning size.
Placement and Maintenance of Dwelling units and Other structures.
A. Minimum Living SDace Areas. The minimum square footage
of living space of Dwe~ling units constructed on the Lots shall be
as specified in any recorded sUbdivision plats of the Real Estate.
B.
Set-Back Requirements.
Set-back and yard size
requirements for Lots shall be as set forth on any recorded
sUbdivision plats of the Real Estate.
C.
Mailboxes.
In order to aid in the preservation of
aesthetic appearances within the Real Estate, any mailbox installed
on the Real Estate must be approved by the Committee as to size,
location, height and composition before it is installed. A
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standard mailbox design will be prepared by the committee, and such
design shall be the standard for all mailboxes installed on the
Real.
D. Exterior Construction. The finished exterior of every
Dwelling unit and other building, constructed or placed on any Lot
shall be of material other than aluminum siding, vinyl siding,
rollbrick siding or any other similar artificial material. All
materials used on the exterior of any Dwelling unit and any other
building improvements on a Lot shall be subject to the approval of
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the Committee. All driveways must be concrete surface from their
point of connection with the abutting street or road to their point
of connection with the garage apron.
E. Heating Plants and Garaqes. Every Dwelling Unit located
on the Real Estate must contain a heating plant installed in
compliance with the required codes and capable of providing
adequate heat for year-around human habitation of the Dwelling
unit. Every Dwelling unit located on the Real Estate must have at
least a two-car attached garage, and the same architectural design
and ma~erials as the Dwelling Unit.
F. Diliqence in Construction. 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 nine (9) months after the beginning of such constru?tion or
placement.
No improvement which has partially or totally been
destroyed by fire or otherwise shall be allowed to remain in such
state for more than two (2) months from the time of such
destruction or damage.
G.
Prohibition of Used' structures.
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.
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H. Maintenance of Lots and Imnrovements. The owner of any
Lot shall at all times maintain the Lot and any improvements
situated thereon in such a manner as to prevent the Lot or
improvements from becoming unsightly and, specifically, such Owner
shall:
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(i) Mow the Lot at such times as may be reasonably
required in order to. -prevent the unsightly growth of
vegetation and noxious:weeds and, in any event, not less
frequently than once each three weeks, during the months
of April through October, inclusive, of each year;
(ii) Remove all debris or rubbish on a weekly basis;
(iii) Prevent the existence of any other condition that
reasonably tends to detract from or diminish the
aesthetic appearance of the Real Estate;
(iv) Cut down and remove dead trees;
(v) Where applicable, prevent debris and foreign material
from entering drainage areas, this includes but is not
limited to soil erosion;
(vi) Keep the exterior or all improvements in such a state of
repair or maintenance as to avoid their becoming
unsightly; and
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I. Fences Walls and Screening Structures. In order to aid
in the preservation of the aesthetic appearance within the real
estate and to help maintain an open view of the natural
surroundings, the following restrictions and limitations will apply
to rear yard or side yard fences, walls or screening structures:
(i) No rear yard or side yard fence, wall or screening
structure may exceed 48" in height on any Lot. An exception will be
made if required by statute or ordinance in conjunction with a
specified use of the property.
(ii) The material and style used for rear yard or sideyard
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fences or screening structures on Lots abutting or adjoining the
common greenway areas and the ten (10) ponds [including but not
limited to Lots numbered: 14, 15, 16, 17, 18, 19, 20, 27, 28, 29,
30, 31, 32, 88, 87, 89, 70, 102, 103, 104, 105, 106, 107, 108, 109,
123, 124, 125, 126, 127 as
platted in Saddle Creek subdivision shall be limited to ornamental
iron or ornamental aluminum (black, white, beige or brown color).
The material and style used for rear yard or side yard fences or
screening structures on all other Lots, shall be limited to:
ornamental iron or aluminum (black, white, beige or brown color),
"Cape Cod" or vertical spaced wood picket (natural or white color) .
Hidden electronic fencing will be allowed on any Lot. Stockade,
split rail wood, vertical wood shadow box, unspaced vertical wood
pickJt, ox-bOW, basket weave, horizontal wood, vinyl-coated chain
link, galvanized chain link, wire, solid aluminum, or PVC fences or
screening structures will not be allowed on any Lot and portable or
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modular kennel or kennel systems will not be allowed on any Lot.
(~ii) In addition to the above, on all Lots adjacent to 136th
street, Ditch Road and 141st street, the Owner may not install a
fence parallel to these streets if a fence is installed by
Declarant along any of these streets or parallel to a fence
installed by Declarant along these streets. The Owner of the Lots
may connect a side yard fence to a fence installed by Declarant
along these streets. The Owner of these Lots may not install any
fence in a Landscape Easement adjoining the' above referenced
streets. No Owner may install ~ fence in any Drainage Easement,
Pedestrian Parkway Easement, Internal Sidewalk Sy~tem Easement,
County Landscape & utility Easement, Landscape Easement .or Lake
Maintenance Easement or Common Area.
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certain Maintenance.
Declarant's
and the Corporation's Right to Perform
In the event that any Owner of a Lot shall
fail to maintain his Lot and any improvements situated thereon in
accordance with the provisions of these Restrictions and the
provisions of any recorded subdivision plats of the Real Estate,
the Declarant, until the Applicable Date, and, thereafter, the
Corporation, shall have the right, but not the obligation, by and
through its agents and employees or contractors, to enter upon said
Lot and repair, mow, clean or perform such other acts as may be
reasonably necessary to make such Lot and improvements situated
thereo~, if any, conform to the requirements of these Restrictions
and the provisions contained in any such subdivision plats. The
cost thereof to the Declarant or the Corporation shall be collected
as a special assessment against such Owner and his Lot in the
manner provided for herein for the collection of Common Expenses.
Neither the Declarant nor the Corporation, nor any of its agents,
employees, or contractors, shall be liable for any damage which may
result from any maintenance work performed hereunder.
section 4. provisions ResDectina DisDosal of Sanitary Waste.
A.
Nuisances.
No outside toilets shall be permitted on any
Lot (except during a period of construction with the placement of
said toilets at the discretion of the Committee), and no sanitary
waste or other wastes shall be permitted to be exposed.
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B. Construction of Sanitary Sewaqe Lines and Disposal
Facilities. All sanitary sewage lines and disposal facilities on
the Lots shall be designed, constructed, installed and maintained
in accordance with the provisions and requirements of Hamilton
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County, Indiana, any other governmental or quasi-governmental
agencies having jurisdiction over public sanitary sewers and these
Restrictions.
section 5.
General Prohibitions.
In addition to any
restrictions or limitations contained elsewhere in this Declaration
or in any recorded subdi vision plats of the Real Estate, the
following limitations, restrictions and prohibitions shall govern
the development, use and occupancy of the Real Estate:
A. In General. No noxious or offensive activities shall be
carried on any Lot, nor shall anything be done on any of said Lots
that shall become or be an unreasonable annoyance or nuisance to
any Owner of another Lot.
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B. Signs. Except as otherwise permitted by any subdivision
plats of the Real Estate or the Committee, no signs or
advertisements shall be displayed or placed on any Lot or
structures without the prior written approval of the Committee.
C. Animals. No animals shall be kept or maintained on any
Lot except usual household pets,and, in such cases, such household
pets shall be kept reasonably confined so as not to become a
nuisance to adjoining Lot Owners.
D.
Vehicle Parkinq.
No trucks, campers, trailers,
recreational vehicles (whether for business use or pleasure use),
boats, Iboat trailers or similar vehicles shall be parked or stored
on any street or Lot, unless the same are' parked in a garage
overnight.
E.
Garbaqe. Trash and Other Refuse.
No Owner of a Lot
shall burn or permit the burning out-of-doors of garbage or other
refuse, nor shall any such Owner accumulate or permit the
accumulation out of doors of such refuse on his Lot except as may
be permitted in subparagraph F below. All houses shall be equipped
with a garbage disposal unit.
F. Fuel Storaqe Tanks and Trash Rece'Dtacles. Every tank for
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the storage of fuel that is installed outside any building shall be
buried below the surface of the ground. Every outdoor receptacle
for ashes, trash, rubbish or garbage shall be installed underground
or shall be so placed and kept as riot to be visible from any street
within the Real Estate at any time, except at the time when refuse
collections are being made.
G.I Model Homes. No Owner of any Lot shall build or permit
the building upon his Lot of any dwelling house that is to be used
as a model home or exhibit house without permission to do so from
the Declarant.
H. Temporarv Structures. No temporary house, trailer, tent,
garage or other outbuilding shall be placed or erected on any Lot,
nor shall any overnight camping be permitted on any Lot.
I. Ditches and Swales. It shall be the duty of every Owner
of every Lot on which any part of an open storm drainage ditch or
swale is situated to keep such portion thereof as may be situated
upon his Lot continuously unobstructed (both by improvements and
plant material) and in good repair, and to provide for the
installation of such culverts upon said Lot as may be reasonably
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necessary to accomplish the purposes of this subparagraph I.
J.
utility Services.
utility services shall, to the
greatest extent possible, be installed underground and in or
adjacent to public rights-of-way to minimize removal of or damage
to trees.
K. Wells and seDtic Tanks. No water wells shall be drilled
on any of the Lots, nor shall any septic tanks or other sewage
_ disposal systems be installed on any of the Lots, wi thout the
approval of the Committee and of the governing public health agency
or oth~r civil authority.
Section 6.
Committee's Functions.
A. Statement of PurDoses and Powers.
The Committee shall
regulate the exterior design, appearance, use, location and
maintenance of lands subject to these Restrictions, and
improvements thereon, in such a manner as to preserve and enhance
values, to maintain a harmonious relationship among structures and
the natural vegetation and topography, and to provide for the
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proper functioning of the storm drainage system f,or the Real
Estate. For these purposes, the Committee may, from time to time
and at any time, make, amend and modify such rules, regulations and
guidelines as it may deem necessary or desirable to guide Owners as
to the terms, condi tions , procedures and requirements of the
Committee for the submission and approval of items to it. Such
rules, regulations and guidelines may, in addition, set forth
addi tional specif ications to those set forth herein or in any
subdivision plats of the Real Estate, so long as the same are not
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inconsistent with this Declaration or any such subdivision plat.
(1) Generall v . No dwelling, building, structure or other
improvement of any type or kind shall be constructed, placed,
repaired, remodeled, reconstructed or altered on any Lot, nor shall
any work be done on any Lot which alters or changes the grade or
elevation thereof, without the prior approval of the Committee.
Such approval shall be obtained only after written application has
been made to the Committee by the Owner of the Lot requesting
authorization from the ,Committee. Such written application shall
be made in the manner and form prescribed from time to time by the
Committee, and shall be accompanied by two (2) complete sets of
plans and specifications for any such proposed construction,
improvement and other work. Such plans shall include plot (site)
plans showing the location of all improvements existing upon the
Lot and the location of the improvement proposed to be constructed,
placed, repaired, remodeled, reconstructed or altered upon the Lot,
each properly and clearly designated. Such plans and
specifications shall set forth the color and composition of all
exterior materials proposed to be used and any proposed (and
existing) landscaping, together with any other material or
information which the Committee may require. All building plans
and drawings required to be submitted to the Committee shall be
draw~ to a scale of 1/4"--1' and all plot plans shall be drawn to
a scale of 1"=30', or to such other scale as the Committee shall
require. There shall also be submitted, where applicable, such
other permits or reports as may be required under this Declaration.
The following drawings shall be considered minimum for approval
consideration:
(a) Site plan which includes complete topographic
study, . location of all trees, existing and proposed
structures, drives, proposed (or 'existing) sanitary
sewage disposal system location, utility service, storm
drainage and grading details, terraces and all landscape
details (including size of all planting sand type);
and
(b) Foundation plan, floor plans, cross-sections, exterior
elevations, and complete specifications for all materials
to be used on the exterior of the house, building,
structure or other improvement.
(Iii) Power of Disaooroval. The Committee may refuse to grant
permission to construct, place or make the requested
improvement, or to perform other work, when:
(a) the plans, specifications, drawings or other
material submitted are, themselves, inadequate or
incomplete, or show the proposed improvements or
work to be in violation of these Restrictions, the
requirements or restrictions of any subdivision
plats of the Real Estate, the requirements or
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restrictions of any applicable zoning ordinances, or
any rules, regulations or guidelines adopted by
the Committee:
(b) the design or color scheme of a proposed improvement
is not in harmony with the general surroundings of
the Lot or with adjacent buildings or structures in
the sole opinion of the Committee; or
(c) the proposed improvement, or work, or any part
thereof, would, in the sole opinion of the
Committee, be contrary to the interest, welfare or
rights of all or any other Owners.
(iii) Chanae Modification or Amendment of rules. Reaulations and
Guidelines. Any rules, regulations and guidelines at anytime made
by the Committee may be changed, modified arid amended by the
Committee at any time, and from time to time, on a prospective
basis; provided, however, that no such change, modification or
amendment shall be applied by the Committee retroactively as to any
construction theretofore completed nor as to the construction of
any improvement which has previously been formally approved by the
Commit~ee if such construction has been commenced or is commenced
within ninety (90) days after such change, modification or
amendment is effecti ve. Any rules, regulations or guidelines
adopted and made by the Committee, and any changes, modifications
or amendments of any such rules, guidelines adopted and made by the
Committee, and any changes, modifications or amendments of any such
rules, regulations and guidelines at any time made by the
Committee, shall be set forth in a written instrument and recorded
in the office of the Recorder of Hamilton county, Indiana, and
shall be effective upon such recording; provided, however, that the
making, adoption, change, modification and amendment of any such
rules, regulations or guidelines by the Committee shall not be
considered or deemed to be amendments of this Declaration requiring
the consent or approval of any Owners, Mortgages or other Persons.
B.
Duties of Committee.
The Committee shall approve or.
disapprove proposed improvements or other work within fifteen
(15)days after all required information shall have been submitted
to it. One copy of submitted material shall be retained by the
Committee for its permanent files. All notifications to applicants
shal~ be in writing, and in the event that such notification is one
of disapproval, it shall specify the reason or reasons therefor. If
the Committee fails to act upon any plans or requests for approval
submitted to it for its approval within such fifteen (15) day
period, it shall be deemed that the Committee has disapproved such
plans or request.
C. Liabilitv of Committee. Neither the Committee, nor any
member thereof, nor any agent thereof, nor the Declarant 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
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done according thereto, nor for any action or failure to act with
respect to the exercise or non-exercise of its rights, duties and
DECLARATION - SADDLE CREEK
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authori ty hereunder. Further, 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 nor
Warranty as to the suitability or advisability of the design, the
enginlering, the method of construction involved, or the materials
to be used.
D. InsDection. The Committee and the Declarant may inspect
work being performed to a~sure compliance with these Restrictions,
the restrictions contained in any subdivision plats of the Real
Estate and applicable regulations. However, neither the Committee,
nor any member thereof, nor the Declarant, nor any agent or
contractor employed or engaged by the Committee or the deficiencies
in any work inspected or approved by it or them, or on its or their
behalf. Further, no such inspection or approval given by or on
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behalf of the Committee or the Declarant shall be taken or deemed
to be or constitute a warranty or guaranty of the work so inspected
or approved.
section 7.
Rules Governina Buildina on Several contiauous
Lots Having One Owner. 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 a 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
RestrictiQns to said Lots, so long as, and only so long as, the
Lots ~emain improved with one single Dwelling Unit.
section 1.
ARTICLE IX
Assessments
Annual Accountina. Annually, after the close
of each fiscal year of the corporation and prior to the date of the
annual meeting of the corporation next following the end of such
fiscal year, the Board shall cause to be prepared and furnished to
each Owner a financial statement prepared by a public accountant or
firm of certified public accountants then serving the Corporation,
which statement shall show all receipts and expenses received,
incurred and paid during the preceding fiscal year.
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(;)
section 2.
Proposed Annual Budaet. Annually, on or before
the date of the annual or special meeting of the corporation at
which the budget is to be acted upon, the Board of Directors shall
cause to be prepared a proposed annual budget for the next ensuing
fiscal year estimating the total amount of the Common Expenses for
such next ensuing fiscal year and shall furnish a copy of such
proposed budget to each Owner at or prior to the time the notice of
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such meeting is mailed or delivered to such Owners.
The annual
budget shall be submitted to the Owners at the designated meeting
of the Corporation for adoption and, if so adopted, shall be the
basis for the Regular Assessments (hereinafter defined) for the
next ensuing fiscal year. At such annual or special meeting of the
Owners, the budget may be approved in whole or in part or may be
amended in whole or in part by a majority vote of the Owners;
provided, however, that in no event shall such meeting of the
Owners be adjourned until an annual budget is approved and adopted
at such1meeting, 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
capi tal expendi tures and replacement and repair of the Common
Areas, which replacement reserve fund shall be used for those
purposes and not for usual and ordinary repair expenses of the
Common Areas.
Such replacement reserve fund for capital
expenditures and replacement and repair of the Common Areas 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 or
Marion 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 to pay the Common Expenses as here in
DECLARATION - SADDLE CREEK
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provided, whenever determined. Whenever, whether before or after
the meeting of the Corporation at which the budget is to be acted
upon, there is no annual budget approved by the Owners as herein
provided for the current fiscal year, the Owners shall continue to
pay Regular Assessments 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.
section 3.
Reaular Assessments.
The annual budget as
adopted by the Owners shall, based on the estimated cash
requi~ement for the Common Expenses in the fiscal year covered
thereby as set forth in said budget, contain a proposed assessment
against each Lot, which shall be the same amount for each Lot.
Immediately following the adoption of the annual budget, each Owner
shall be given written notice of the assessment against his
respective Lot (herein called the "RegularAssessment"). 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 the adoption
of the final annual budget by the Owners, to reflect the assessment
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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 the reserve funds as
hereinabove provided. The Regular Assessment against each Lot shall
be paid in full in advance by a date specified by the Board which
date shall not be earlier than fifteen (15) days after the written
notice of such Regular Assessment is given to the Owners. However,
at the option of the Board, the Regular Assessment against each Lot
may be paid in advance in equal quarterly installments commencing
on the first day of the first month of each fiscal year and'
quarterly thereafter through and including tbe first day of the
last \ quarter of such fiscal year. PaYment of the Regular
Assessment, whether in one paYment or in quarterly installments,
shall be made to the Board of Directors or the Managing Agent, as
directed by the Board of Directors.
In the event the Regular
Assessment for a particular fiscal year of the Corporation was
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initially based upon a temporary budget,
(a) 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 such next
paYment, and all paYments thereafter during such fiscal
year, whether annual or quarterly, 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
(b) 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
credi ted against the next paYment or payments of the
Regular Assessment coming due, whether annual or
quarterly, until the entire amount o.f such excess has
been so credited;
provibed, however, that if an Owner had paid his Regular Assessment
in full in advance, then the adjustments set forth under (a) or
(b) above shall be made by a cash paYment by, or refund to, the
Owner on the first day of the second month following the
determination of the Regular Assessment based upon the annual
budget finally adopted by the Owners. The Regular Assessment for
each 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
I
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 Section 2 of Article X hereof prior
to the final determination and adoption of the annual budget and
Regutar Assessment for the year with respect to which such
statement is made shall state that the matters set forth therein
DECLARATION - SADDLE CREEK
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are subject to adjustment upon determination and adoption of the
final budget and Regular Assessment for such year, and all parties
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to whom any such statement may be delivered or who may rely thereon
shall be bound by such final determinations. Annual or quarterly
(if so determined by the Board) 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.
Section 4.
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
Articles, the By-Laws or the Act, the Board of Directors shall have
the iUll right, power and 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 f ire or other
casualty or disaster to the extent insurance proceeds are
insufficient therefor under the circumstances described in this
Declaration.
I
Section 5.
Failure of Owner to Pay Assessments.
(a) No Owner may exempt himself from paying Regular
Assessments and special Assessments, or from contributing toward
the expense of administration and of maintenance and repair of the
Common Areas and items deemed Common Areas for purposes of
maintenance, and toward any other expense lawfully agreed upon, by
waiver of the use or enjoYment of the Common Areas or by
abandonment of the Lot belonging to him.
Each Owner shall be
personally liable for the paYment of all Regular and Special
. Assessments against his Lot.
Where the Owner consti tutes or
consists of more than one Person, the liability of such Persons
shall be joint and several.
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If any Owner shall fail, refuse or
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neglect to make any paYment of any Regular Assessments or Special
Assessments against his Lot when due, the lien for such Assessment
on the Owner's Lot and Dwelling unit may be filed and foreclosed by
the Board for and on behalf of the corporation as a mortgage on
real prbperty or as otherwise provided or permitted by law. Upon
the failure of an Owner to make timely paYments of any such Regular
Assessments or Special Assessments, when due, the Board may, in its
discretion, accelerate the entire balance of the unpaid Assessments
and declare the same immediately due and payable, notwithstanding
any other provisions hereof to the contrary.
In any action to
foreclose the lien for any Assessments, the Owner and any occupant
of the Lot and Dwelling unit which are the subject of such action
shall be jointly and severally liable for the paYment to the
Corporation of reasonable rental for such Lot and Dwelling Unit,
and the Board shall be entitled to the appointment of a receiver
for the purpose of preserving the Lot and Dwelling Unit and to
collept the rentals and other profits therefrom for the benefit of
the corporation to be applied to the unpaid Regular Assessments or
Special Assessments. The Board may, at its option, bring a suit to
recover a money judgment for any unpaid Regular Assessment or
Special Assessment without foreclosing (and without thereby being
deemed to have waived) the lien securing the same. In any action
to recover a Regular Assessment or Special Assessment, or any other
debts, dues or charges owed the Corporation, 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 all of the costs and expenses of such action incurred
(including but not limited to reasonable attorneys' fees).. and
interest from the date such Assessments or charges were due, until
paid, at a rate equal to the "legal interest rate" then in effect
was publicly quoted or published by Bank One, Indianapolis, N.A.,
of Indianapolis, Indiana (or if said Bank is no longer in
existence, then such rate charged by another national bank in
Marion county, Indiana selected by the Board).
(b) Notwithstanding anything contained in this section or
elsewhere in this DeClaration, the Articles or the By-Laws, any
DECLARATION - SADDLE CREEK
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sale or transfer of a Lot and Dwelling Unit 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 the manner provided
by law with respect to mortgage foreclosures, shall extinguish the
lien of any unpaid installment of any Regular Assessment or Special
Assessment or other charges as to such installments which became
due prior to such sale, transfer or conveyance; provided, however,
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that the extinguishment of such lien shall not 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 o~ conveyance in
lieu thereof, from liability for any installments of. Regular
Assessments or Special Assessments or other charges thereafter
becoming due or from the lien therefor. Such unpaid share of any
Regular Assessments or Special Assessments or other charges, the
lien for which has been divested as aforesaid, shall, if not
collected from the party personally liable therefor, be deemed to
be a Common Expense, collectible from all Owners (including the
party acquiring the subject Lot and Dwelling Unit from which it
arose~.
section 6.
Initial Budaets and Assessments.
Notwithstanding anything to the 'contrary contained herein, in the
Articles, in the By-Laws, in the Act or otherwise, until the
Applicable Date the annual budget and all Regular Assessments and
Special Assessments shall be established by the Initial Board
wi thout meeting of or concurrence of the Owners. The agency, power
of attorney and proxy granted to the Declarant by each Owner
pursuant to Section 2 of Article V hereof shall be deemed to cover
and include each Owner's right to vote on and approve the ,annual
I
budget and any Regular Assessments and special Assessments until
the Applicable Date.
Further, until the Applicable Date and notwithstanding the
foregoing or anything else contained herein,
no Regular
Assessments, Special Assessments or other charges shall be owed or
payable by Declarant with respect to any Lot or other portion of
the Real Estate owned by Declarant while the same is owned by
DECLARATION - SADDLE CREEK
34
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Declarant, nor shall any such Assessments or charges become a lien
on any such Lot or other portion of the Real Estate owned by
Declarant. Assessments against a Lot shall commence to accrue from
the date each Lot is conveyed by Declarant to an Owner other than
Declarant (either by deed or by installment sale, conditional sale
or land contract sale), and a prorated portion of the Regular
Assessment for the balance of the fiscal year of the Corporation
against each Lot so conveyed by Declarant shall be paid by each )
purchaser upon such conveyance. ,,*P{/~7€ tNlL..L. AIoJB~ A~D,
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Sebtion 7. Initial Workinq Capital and start-up Fund. Upon
the closing of the initial conveyance of each Lot by Declarant to
another Person (either"by deed or by installment sale, conditional
sale or-land-contract sale), the purchaser of such Lot shall pay to
the Corporation, in addition to any other amounts then owed or due
to the corporation, as a contribution to itSWo~~~~ital and
start-up fund, an amount of ~wo hund~ed dollars ($200.00) against
such Lot, which paYment shall be non-refundable and shall not be
considered as an advance paYment of any Assessment or other charge
owed the Corporation with respect to such Lot.
Such working
capital and start-up fund shall be held and used by the Corporation
for paYment of, or reimbursement to Declarant for advances made to
pay, expenses of the Corporation for its early period of operation
\
of the Real Estate, to enable the corporation to have cash
available to meet unforeseen expenditures, or to acquire additional
equipment or services deemed necessary by the Board.
Section 1.
ARTICLE X
Mortgages
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 each such first mortgage, and
name and address of the Mortgagee, shall be maintained by the
Secretary and any notice required to be given to the Mortgagee
pursuant to the terms of this Declaration, the By-Laws or otherwise
shall be deemed effectively given if mailed to such Mortgagee at
the address shown in such record in the time provided.
Unless
notification of any such mortgage and the name and address of
DECLARATION - SADDLE CREEK
35
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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 By-Laws or otherwise shall be
required and no Mortgagee shall be' entitled to vote on any matter
to which he otherwise may be entitled by virtue of this
Declaration, the By-Laws, 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
Declara~ion or the By-Laws which is not cured within sixty
(60)days.
Section 2.
Notice of UnDaid 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 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 adjusted upon adoption of the final annual budget, as
\ .. .
referred to 1n Sect10n 3 of Art1cle IX hereof.
Section 1.
ARTICLE XI
Insurance
Casual tv Insurance.
The Corporation shall
purchase a master casualty insurance policy affording fire and
extended coverage insurance insuring the Common, Areas in an amount
consistent with the full replacement value of the improvements, if
any, which, in whole or in part, comprise the Common Areas. If the
Board of Directors can obtain such coverage for a reasonable amount
it may also obtain "all risk" coverage. The Board of Directors
shall be responsible for reviewing at least annually the amount and
I
type of such insurance and shall purchase such additional insurance
as is necessary to provide the insurance required above. If deemed
DECLARATION - SADDLE CREEK
36
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advisable by the Board, the Board may cause such full replacement
value to be determined by a qualified appraiser. The cost of any
such appraisal shall be a Common Expense. Such insurance coverage
shall name the Corporation as the insured, for the benefit of each
Owner \ (to the extent, if any, that individual Owners have an
independent interest in the property covered thereby) . 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. In the event
that the Board of Directors has not posted surety bonds for the
faithful performance of their duties as such Direc~ors or if such
bonds do not exceed the funds which will come into its hands, and
there is damage to a part or all of the Common Areas resulting in
a loss, the Board of Directors shall obtain and post a bond for the
faithful performance of its duties in an amount to be determined by
Board, but not less than 150% of the loss, before the Board shall
be entitled to receive the proceeds of the insurance payable as a
result of such loss. The sole duty of the Board in connection with
any such insurance proceeds shall be to receive such proceeds as
are paid and to hold the same for the purposes elsewhere stated
herein, and for the benefit of the Owners. The proceeds shall be
used or disbursed by the Corporation or the Board, as appropriate,
only in accordance with the provisions of this Declaration. S u c h
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 claim against the corporation, the Board of Directors, its
agents and employees, Owners, their respective agents and guests,
and (b) waives any defense based on the invalidity arising from the
acts of the insured, and providing further, if the Board of
Directors is able to obtain such insurance upon reasonable terms
(i) that the insurer shall not be entitled to contribution against
casualty insurance which may be purchased by individual Owners, and
(ii) that notwithstanding any provision thereof giving the insurer
an election to restore damage in lieu of a cash settlement, such
option shall not be exercisable in the event the Corporation does
DECLARATION - SADDLE CREEK
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not elect to restore.
section 2.
Public Liabilitv 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, but in any
event with a minimum combined limit of $1,000,000.00 per
occurrence.
\
shall cover all of the Common Areas; including but not limited to
Such comprehensive public liability insurance policy
any pedestrian underpasses installed by Declarant under a Hamilton
county public right-of-way and shall insure 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 Real Estate, all Owners of
Lots and all other persons entitled to occupy any Lot or Dwelling
Unit and shall list Hamilton County or its successors as additional
insured on the policy if required by Hamilton County Commissioners.
I .
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.
section 3.
Other Insurance. The Corporation shall also
obtain any other insurance required by law to be maintained,
including but not limited to worker's compensation and occupational
disease insurance, and such other insurance as the Board of
Directors may 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 coverage shall also
provi~e for and cover cross liability claims of one insured party
against another insured party. 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. 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
DECLARATION - SADDLE CREEK
38
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are payable to the Board or the corporation.
section 4.
General Provisions.
The premiums for all
insurance hereinabove described shall be paid by the Corporation as
part of the Common Expenses.
In "no event shall any distribution
of insurance proceeds be made by the Board of Directors directly to
an Owner where there is a mortgagee endorsement on the certificate
of. insurance or insurance policy as it applies to such Owner's
share of such proceeds. In such event any remittances shall be the
Owner and his Mortgagee jointly. The same method of distribution
shalllalso apply to the distribution of any condemnation awards in
connection with any taking of any of the Common Areas.
Notwithstanding the foregoing, under no circumstances shall any
distribution of insurance proceeds or condemnation awards be made
by the corporation to any Owners or Mortgagees if to do so would be
in violation of the Act or if the same would constitute a
distribution of earnings, profits or pecuniary gain to the members
of the corporation; in any such event, any such insurance proceeds
or condemnation awards shall be retained by the corporation for use
in the payment of its expenses of operation.
sebtion 5. Insurance bv Owners. Each Owner shall be solely
responsible for and shall obtain such additional insurance as he
deems necessary or desirable, at his own expepse, affording
coverage upon his personal property, his Lot, his Dwelling Unit,the
contents of his Dwelling Unit, his personal property stored
anywhere on the Real Estate, and for his personal liability, but
all such insurance shall contain the same provisions for waiver of
subrogation as referred to in the foregoing provisions for the
master casualty insurance policy to be obtained by the Corporation.
ARTICLE XII
Casualty and Restoration
In the event of damage to or destruction of any of the Common
Areas due to fire or any other casualty or disaster, the
corpo~ation 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. If the insurance proceed~, if any , received by
the Corporations a result of any such fire or any other casualty or
DECLARATION - SADDLE CREEK
39
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disaster are not adequate to cover the cost of repair and
reconstruction of the Common Areas, or in the event there are no
insurance proceeds, the cost for restoring the damage and repairing
and reconstructing the Common Areas 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 Areas to as near as possible
the same condition as they existed immediately prior to the damage
\
or destruction. Immediately after a fire or other casualty or
disaster causing damage to any property for which the Board of
Directors or Corporation has the responsibility of maintenance and
repair hereunder, the Board shall obtain reliable and. detailed
estimates of the cost to place the damaged property in a condition
as good as, that before the casualty.
Such costs may include
professional fees and premiums for such bonds as the Board of
Directors desires or deems necessary.. Encroachments upon any Lot
which may be created as a result of such reconstruction or repair
of any pf the Common Areas shall not constitute a claim or basis of
a proceeding or action by the Owner upon whose Lot such
encroachments exists, provided that such reconstruction was either
substantially in accordance with the plans and specifications or as
the Common Areas were originally constructed.
ARTICLE XIII
Restrictions. Covenants and Regulations
section 1. Restrictions on Use. The following covenants
and restrictions on the use and enjoYment of the Lots, Dwelling
units and Common Areas shall be in addition to any other covenants
or restrictions contained herein and in any subdivision plats or
any part of the Real Estate heretofore or hereafter recorded, and
all such covenants and restrictions are for the mutual benefit and
protection of the present and future Owners and shall run with the
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land and inure to the benefit of and be enforceable by any Owner,or
by the Corporation. Present or future Owners or the Corporation
DECLARATION - SADDLE CREEK 40
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shall be entitled to injunctive relief against any violation or
attempted violation of any such covenants and restrictions, and
I
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)
(b)
(c)
\
(d)
(e)
(f)
All Lots and Dwelling units shall be used exclusively for
residential purposes and for occupancy by a single
family.
Nothing shall be done or kept by an Owner in any Dwelling
unit, or on any Lot, or on any of the Common Areas, which
will cause an increase in the rate of insurance on any
Common Areas. No Owner shall permit anything to be done
or kept in his Dwelling Unit or on his Lot which will
result in a cancellation of insurance on any part of the
Common Areas, or which would be in ~iolation of any law
or ordinance or the requirements of any insurance
underwriting or rating bureau.
No nuisance shall be permitted and no waste shall be
committed in any Dwelling Unit or on 'any Lot.
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 building, and
no sign, awning, canopy, shutter or radio or television
antenna or other attachment or thing sQall be affixed to
or placed upon the exterior walls or roofs or any other
parts of any building without the prior consent of the
Committee unless otherwise expressly authorized herein,
or in any recorded subdivision plat, or by the rules,
regulations and guidelines of the committee.
No Dwelling Unit or Lot shall be used in any unlawful
manner or in any manner which might cause injury to the
reputation of the subdivision developed or to be
developed on the Real Estate I or which might be a
nuisance, annoyance I inconvenience or damage to other
Owners and occupants of Dwelling Units or neighboring
property, including without limiting the generality of
the foregoing, noise by the use of any musical
instruments, radio, television, loud speakers, electrical
equipment, amplifiers or other equipment or machines or
loud speakers.
No clothes, sheets, blankets, rugs, laundry or other
things shall be hung out or exposed on, or so as to be
visible from, any part of the Common Areas. The Common
Areas shall be kept free and clear of rubbish, debris and
other unsightly materials.
(g)
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 Real Estate unless and except as
otherwise authorized or permi tted by any subdi vision
plats of the Real Estate.
All Owners and members of their family, their guests, or
invites, and all occupants of any Dwelling Unit or other
persons entitled to use the same and to use and enjoy the
Common Areas 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 gove~ning
(h)
DECLARATION - SADDLE CREEK
41
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the operation, use and enjoyment of the Common Areas.
(i) No Owner shall be allowed to plant trees, landscape or do
any gardening in any of the Common Areas, except with
express permission from the Board.
(J) Common Areas shall be used and enjoyed only for the
purposes for which they are designed and intended, and
shall be used subject to the rules and regulations from
time to time adopted by the Board. Without limiting the
generality of the foregoing, the lakes or ponds to be
installed on the Real Estate, as shown on the site plan,
are and will be an integral part of the storm water
drainage system serving the Real Estate and are intended
to be used for such purpose and primarily as visual and
aesthetic amenities and not as recreational amenities.
Accordingly, no use shall be made of such lakes or ponds
which in any way interferes with their proper functioning
as part of such storm water drainage system. No
boating, swimming, diving, skiing or ice skating shall be
permi tted in or on said lakes or ponds. No sewage,
garbage, refuse, or other solid, liquid, gaseous or other
materials or items (other than storm and surface water
drainage) shall be put into said lakes or ponds except
the corporation may take steps to clear and purify the
waters thereof by the addition of chemicals or other
substances commonly used for such purposes or by
providing therein structures and equipment to aerate the
same. Fishing from the shores of such lake or ponds
shall be permitted subject to obeyance and compliance
with all applicable fishing and game laws, ordinances,
rules and regulations. The corporation shall be
responsible for the maintenance of the ponds and the
banks of the ponds above the water level to the Lot lines
(except for the cutting of grass, which will be the
responsibility of each Lot,owner adjoining a pond). The
maintenance costs of the ponds and such banks shall be
assessed as an assessment against all Lots subject to
assessment as part of the Common Expenses. No dock, pier,
wall or other structure may be extended into the lakes or
ponds without the written permission of the Building
Committee. Except for such loss or damage as may result
from the act or omission of the corporation or its agents
in the course of maintaining the lakes or ponds and the
adjoining banks, each Owner of a Lot abutting the lakes
or ponds shall indemnify and hold harmless the
Corporation and each other Owner against all loss or
damage incurred as a result of injury to any person or
damage to any property, or as a result of any other
cause, arising from or related to use of, or access to,
the lakes or ponds by any person who gains access thereto
from, over or across such Owner's Lot. Declarant shall
have no liability to any person with respect to any
damage to any Lot resulting from the lakes or ponds or
the proximity of a Lot thereto , including loss or damage
to any Lot resulting from erosion.
Notwithstanding anything to the contrary contained herein or
in the Articles or BY,~Laws, including but not limited to any
covenants and restrictions set forth herein or otherwise, 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 Real Estate (other than individual Dwelling Units
and Lots owned by Persons other than Declarant), all of such number
DECLARATION - SADDLE CREEK
42
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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 sale of Lots and the construction of
Dwelling Units, or for the conducting of any business or activity
attendant thereto, or for the construction and maintenance of
Common Areas, including, but not limited to, model Dwelling Units,
storage areas, construction yards, signs, construction offices,
I
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
Areas, unless so designated by Declarant, and Declarant shall have
the right to remove the same from the Real Estate at any time.
Section 2.
Non-acclicabilitv
to
Corcoration.
Notwithstanding anything to the contrary contained herein, the
covenants and restrictions set forth in Section 1 of this Article
XIII shall not apply to or be binding upon the corporation in its
ownership, management, administration, operation, maintenance,
repair, replacement and upkeep of the Common Areas to the extent
the ~pplication thereof could or might hinder, delay or otherwise
adversely affect the Corporation in the performance of its duties
obligations and responsibilities as to the Common Areas.
Section 1.
ARTICLE XIV
Amendment of Declaration
Generall v. Except as otherwise provided in
this Declaration, amendments to this Declaration shall be proposed
and adopted in the following manner:
(a) 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.
(b) Resolution. A resolution to adopt a proposed amendment
may be I proposed by the Board of Directors or Owners having in the
aggregate at least a majority of the votes of all Owners.
(c) Meeting. The resolution concerning a proposed amendment
must be adopted by a designated vote at a meeting duly called and
held in accordance with the provisions of the By-Laws.
(d) 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. I n 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
DECLARATION - SADDLE CREEK
43
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accordance with the provisions hereof.
(e) 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 Article XI of this
Declaration with respect to casualty insurance to be maintained by
the corporation, or (3) the provisions of Article XII of this
Declaration with respect to reconstruction or repair of the Common
Areas in the event-of fire or any other casualty or disaster,or (4)
the provisions of this Declaration establishing the Committee and
providing for its functions, wi thout, in each and any of such
circumstances, the unanimous approval of all Owners and of all
Mortgagees whose mortgage interests have been made known to the
Board of Directors in accordance wi th the provisions of this
Declaration. (f) 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,
Indianq., and such amendment shall not become effective until so
recorded.
section 2.
Amendments bv Declarant Onl v . Notwithstanding
the foregoing or anything elsewhere contained herein, 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 and Urban
Development, the Veterans Administration or any other governmental
agendy 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, (d) to
comply with or satisfy the requirements of any insurance
underwriters, insurance rating bureaus or organizations which
perform (or may in the future perform) functions similar to those
performed by such agencies or entities, (e) to correct clerical or
typogr~phical errors in this Declaration or any Exhibit hereto or
any supplement or amendment thereto, or (f) to implement the rights
and options of Declarant (or its nominee) as set forth in section
2 of Article II hereof and in section 3 of Article III hereof. In
DECLARATION - SADDLE CREEK
44
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furtherance of the foregoing, a power coupled with an interest is
hereby reserved by (and granted by each Owner to) the Declarant to
vote ~n favor of, make, or consent to any amendments described in
this section 2 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 section 2 shall
terminate at such time as the Declarant no longer holds or controls
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title to any part or portion of the Original Tract or the
Additional Tract or any additional acquired property.
ARTICLE XV
AcceDtance and Ratification
All present and future Owners, Mortgagees, tenants and
occupants of the Lots and Dwelling Units, and other Persons
claiming by, through or under them, shall be subject to and shall
comply with the provisions of this Declaration, the Articles, the
By-Laws and the rules, regulations and guidelines as adopted by the
Board of Directors and (to the extent of its jurisdiction) the
committee, as each may be amended or supplemented from time to
time.
The acceptance of a deed of conveyance or the act of
occupancy of any Lot or Dwelling Unit shall constitute an agreement
that ~he provisions of ~his Declaration, the Articles, the By-Laws
and rules, regulations and guidelines, as each may be amended or
supplemented from time to time, are accepted and ratified by such
Owner, tenant or occupant, and all such provisions shall be
covenants running with the land and shall bind any Person having at
any time any interest or estate in a Lot or Dwelling Unit or the
Real Estate, all as though such provisions were recited and
stipulated at length in each and every deed, conveyance, mortgagor
lease thereof.
All Persons who may own, occupy, use, enjoy or
control a Lot or Dwelling unit or any part of the Real Estate in
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any manner shall be subject to this Declaration, the Articles, the
By-Laws, and the rules, regulations and guidelines applicable
DECLARATION - SADDLE CREEK
45
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thereto as each may be amended or supplemented from time to time.
ARTICLE XVI
Nealiaence
Each Owner shall be liable for the expense of any maintenance,
repair or replacement rendered necessary by his negligence or by
that ff any member of his family or his or their guests, employees,
agents, invites or lessees, to the extent that such expense is not
covered by the proceeds of insurance carried by the Corporation. An
Owner shall pay the amount of any increase in insurance premiums
occasioned by his violation of any of the Restrictions or any
violation thereof by any member of his family or his or their
guests, employees, agents, invites or tenants.
ARTICLE XVII
Benefit and Enforcement
This Declaration and the Restrictions shall run with and bind
the Real Estate for a term commencing on the date this Declaration
is rec()rded in the office of the Recorder of Hamilton County,
Indiana and expiring January 1, 2025, after which time they shall
be automatically extended for successive periods of ten (10) years
each, unless by vote of a super majority (seventy-five percent 75%
or more) of the then Owners of the Lots it is agreed to change this
Declaration or the Restrictions in whole or in part, or to
terminate the same. The failure or delay at any time of Declarant,
the Corporation, the Owners, the committee, or any other Person
entitled to enforce this Declaration and the Restrictions, to
enforce any of the same shall in no event be deemed a waiver of the
same, or of the right to enforce the same at any time or from time
to time thereafter, or an estoppel against the enforcement thereof.
\
section 1.
ARTICLE XVIII
Miscellaneous
Costs and Attornevs' Fees.
In any proceeding
arising because of failure of an Owner to make any paYments
required by this Declaration, the Articles or the By-Laws, or to
comply with any provision of this Declaration, the Articles, the
By-Laws, or the rules, regulations and guidelines adopted pursuant
thereto, as each may be amended from time to time, the Corporation
shall be entitled to recover its costs and reasonable attorneys'
fees incurred in connection with such default or failure.
section 2.
Waiver.
No Owner may exempt himself from
DECLARATION - SADDLE CREEK
46
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liability for his contribution toward the Common Expenses by waiver
of the use or enjoyment of any of the Common Areas or by
abandonment of his Lot or Dwelling unit.
section 3
Severability Clause.
The invalidity of any
covenant, restriction, condition, limitation or other provision of,
this Declaration, the Articles or the By-Laws shall not impair or
affect in any manner the validity, enforceability or effect of the
rest IOf this Declaration, the Articles or the By-Laws and each
shall be enforceable to the greatest extent permitted by law.
Section 4.
Pronouns.
Any reference to the masculine,
feminine or neuter gender herein shall, unless the context clearly
requires the contrary, be deemed to refer to and include all
genders.
Words in the singular shall include and refer to the
plural, and vice versa, as appropriate.
Section 5.
InterDretation. The captions and titles of the
various
articles,
sections,
SUb-sections,
paragraphs
and
subparagraphs of this Declaration are inserted herein for ease and
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convenience of reference only and shall not be used as an aid in
interpreting or construing this Declaration or any provision
hereof.
IN WITNESS WHEREOF, SADDLE CREEK DEVELOPMENT COMPANY,
Declarant therein, has executed this Declaration on the day and
year first hereinabove set forth.
SADDLE
DEVELOPMENT COMPANY
By:
STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
My Commission Expires:
C:;--ll-'11
My County of Residence
/IIl~IIlN
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NOTARY.P B IC
(]f/I.N ~,.." c.j::( /'-'0
Printed
DECLARATION - SADDLE CREEK
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SADDLE CREEK SUBDIVISION
LEGAL DESCRIPTION
Original Tract - Exhibit "A"
Parcell
A part of the East Half of the Southeast Quarter of Section 21, Township 18 North, Range 3 East in
Oay Township, Hamilton County, Indiana, more particularly described as follows:
BJginning at the Southeast corner of said East Half; thence South 89 degrees 16 minutes 11 seconds
West along the South line of said East Half 550.80 feet; thence North 00 degrees 43 minutes 49 seconds
West 240.00 feet; thence North 89 degrees 16 minutes 11 seconds East 23.95 feet; thence North 00
degrees 43 minutes 49 seconds West 228.56 feet; thence South 45 degrees 31 minutes 49 seconds West
142.56 feet; thence South 89 degrees 16 minutes 11 seconds West 309.00 feet; thence North 48 degrees
58 minutes 24 seconds West 70.41 feet; thenCe North 00 degrees 08 minutes 43 seconds West 764.92
feet; thence North 88 degrees 58 minutes 07 seconds West 19.07 feet; thence North 52 degrees 14
minutes 27 seconds West 165.35 feet to a curve having radius of 225.00 feet, the radius point of which
bears South 52 degrees 14 minutes 27 seconds East; thence along said curve SO.61 feet to a point which
bears North 39 degrees 21 minutes 12 seconds West from said radius point; thence South 89 degrees
51 minutes 17 seconds West 127.77 feet to the West line of said East Half; thence North 00 degrees 08
minutes 43 seconds West along said West line of the East Half 359.19 feet; thence North 89 degrees 51
minutes 17 seconds East 80.92 feet; thence North 77 degrees 08 minutes 27 seconds East 111.08 feet;
thence South 70 degrees 41 minutes 28 seconds East 98.17 feet; thence South 29 degrees SO minutes 51
seconds East 141.44 feet; thence South 46 degrees 49 minutes 57 seconds East 55.56 feet; thence South
89 degrees 10 minutes 10 seconds East 73.12 feet; thence South 58 degrees 55 minutes 57 seconds East
188.53 feet; thence South 31 degrees 04 minutes 03 seconds West 9.40 feet; thence South 58 degrees 55
minutes 57 seconds East 140.08 feet; thence North SO degrees 45 minutes 21 seconds East 117.94 feet;
thence South 38 degrees 52 minutes 45 seconds East 96.51 feet; thence South 35 degrees 30 minutes 2S
seconds East 96.51 feet; thence South 32 degrees 08 minutes 04 seconds East 96.51 feet; thence South
28 degrees 51 minutes 08 seconds East 91.37 feet; thence South 2S degrees 40 minutes 19 seconds East
90.66 feet; thence South 21 degrees 16 minutes 23 seconds East 161.09 feet; thence South 89 degrees
58 minutes 42 seconds East 198.50 feet to the East line of said East Half; thence South 00 degrees 01
minutes 18 seconds West along the East line of said East Half 845.89 feet to the point of .beg;nning.
containing 27.346 Acres, more or less.
Parcel 2
A part of the East Half of the Southeast Quarter of Section 21, Township 18 North, Range 3 East in
Clay Township, Hamilton County, Indiana, more particularly described as foUows:
Commencing at the Southeast corner of said East Half; thence South 89 degrees 16 minutes 11 seconds
West along the South line of said East Half 550.80 feet to the point ofbeginniTlg; thence North 00
degrees 43 minutes 49 seconds West 240.00 feet; thence North 89 degrees 16 minutes 17 seconds East
23.95 feet; thence North 00 degrees 43 minutes 49 seconds West 228.56 feet; thence South 45 degrees
31 minutes 49 seconds West 142.56 feet; thence South 89 degrees 16 minutes 11 seconds West 309.00
feet; thence North 48 degrees 58 minutes 24 seconds West 70.41 feet; thence North 00 degrees 08
minutes 43 seconds West 764.92 feet; thence North 88 degrees 58 minutes 07 seconds West 19.07 feet;
thence North 52 degrees 14 minutes 27 scc::ondsWest 165.35 feet to a curve having radius of 225.00 feet,
the radius point of which bears South 52 degrees 14 minutes 27 seconds East; thence along said curve
50.61 feet to a point which bears North 39 degrees 21 minutes 12 seconds West from said radius point;
thence South 89 degrees 51 minutes 17 seconds West 127.77 feet to the West line of said East Half;
thence South 00 degrees 08 minutes 43 seconds East along said West line of the East Half 1323.41 feet
to the Southwest corner of said East Half; thence North 89 degrees 16 minutes 11 seconds East along
the South line of said East Half 798.85 feet to the point of beginning containing 14.049 acres, more or
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Jess.
DECLARATION. SADDLE CREEK
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V LEGAL DESCRIPTION Q
Additional Tract - Exhibit "B"
A parcel of land lying within the North Half of Section 21, Township 18 North, Range 3 East of the Second
Principal Meridian,Clay Township, Hamilton County, Indiana,
more particularly described as follows:
Commencing at.the Southeast comer of the Northeast Quarter of Section 21, Township 18 North, Range 3 East of
the Second Principal Meridian, Clay Township, Hamilton County, Indiana, said comer being the POINT OF
BEGINNING; thence South 89 degrees 17 minutes 43 seconds West (basis of bearing is South 89 degrees 33
minutes 42 seconds West on the North line of said Northeast Quarter) a distance of 2690.64 feet on the South line
or said Northeast Quarter to the Southeast comer of the Northwest Quarter of said Section 21; thence South 89
degrees 171i1inutes 24 seconds West, 1344.70 feet on the South line of said Northwest Quarter to the Southwest
comer of the East Half of said Northwest Quarter; thence North 00 degrees 29 minutes 34 seconds West, 658.82
feet on the West line of the East Half of said Northwest Quarter to the Northwest comer of the South Half of the
Southeast Quarter of said Northwest Quarter; thence North 89 degrees 15 minutes 29 seconds East, 1346.84 feet
on the North line of the South Half of the Southeast Quarter of said Northwest Quarter to the Northeast comer of
the South Half of the Southeast Quarter of said Northwest Quarter, being on the West line of said Northeast
Quarter; thence North 00 degrees 18 minutes 15 seconds West, 1076.71 feet on the West line of said Northeast
Quarter to a 5/8 inch diameter rebar at the intersection with an existing East-West fence line, said rebar being at
the Southwest comer of the real estate described in Deed Book 170. page 293 in the Office of the Recorder of
lIamilton County, Indiana; thence North 89 degrees 35 minutes 50 seconds East. 2261.15 feet on said fence line,
heing on the South line of the real estate described in said' Deed Book 170, page 293 and the South line of the real
estate described in Deed Book 251. page 201 to a 5/8 inch diameter rebar with cap marked Weihe Engr LS 0012"
at a comer of the real estate described in said Deed Book 15 1. page 201; the following two (2) courses are on the
perimeter of the real estate described in said Deed Book 151, page 201; 1) thence South 00 degrees 18 minutes 23
seconds East, 799.70 feet to a 5/8 inch diameter rebar with cap marked Weihe Engr LSOOI2"; 2) thence North
89 degrees 49 minutes 54 seconds East, 434.46 feet to a PK nail on the East line of said Northeast Quarter; thence
South 00 degrees 00 minutes 10 seconds West, 920.35 feet on the East line of said Northea.~t Quarter to the POINT
OF BEGINNING; Containing 119.32 acres of land, more or less.
TOl!ether with the following:
Beginning at the Northeast comer of the East Half of said Southeast Quarter Section: thence South
00 degrees 01 minutes 18 seconds West 40.00 feet; thence parallel with the North line of said East
Half, South 89 degrees 17 minu1es 43 seconds West 328.15 feet: thence South 49 degrees 54
minutes 05 seconds West 46.37 feet; thence Sou1h 10 degrees 30 minutes 27 seconds West 19.09
feet to a curve having radius of 110.00 feet, the radius point of which bears North 79 degrees 29
minutes 33 seconds West; thence Southerly along said curve, 20.09 feet to a point which bears
South 69 degrees 01 minutes 37 seconds East from said radius point; thence South 20 degrees 58
minutes 23 seconds West 50.12 feet to a curve having radius of 20.01 feet, the radius point of which
bears South 69 degrees 01 minutes 37 seconds East; thence Southerly and Southeasterly along said
curve. 30.37 feet to a point which bears South 23 degrees 57 minutes 24 seconds West from said
radius point; thence South 66 degrees 02 minutes 36 seconds East 51.11 feet to a curve having
radius of 250.00 feet, the radius point of which bears South 23 degrees 57 minutes 24 seconds West;
thence Southeasterly along said curve, 60.16 feet to a point which bears North 37 degrees 44
minutes 41 seconds East from said radius point; thence South 37 degrees 44 minutes 41 seconds
West 50.00 feet; thence South 23 degrees 57 minutes 24 seconds West 118.63 feet; thence South
05 degrees 57 minutes 41 seconds West 245.64 feet; thence South 03 degrees 15 minutes 50
seconds East 229.12 feet: thence South 08 degrees 37 minutes 47 seconds East 54.56 feet; thence
South 45 degrees 04 minutes 23 seconds West 142.71 feet: to a nontangent curve having radius of
1825.00 feet, the radius point of which bears South 44 degrees 55 minutes 37 seconds West; thence
Southeasterly along said curve, 36.52 feet to a point which bears North 46 degrees 04 minutes 24
seconds East from said radius point; thence South 46 degrees 03 minutes 45 seconds West 185.00
feet; thence South 42 degrees 15 minutes 05 seconds East 96.51 feet to a point on the Northerly
boundary of Saddle Creek Section One (the next 10 courses are along the Northerly boundary of said
Saddle Creek Section One); (1) thence South 50 degrees 45 minutes 21 seconds West 117.94 feet;
(2) thence North 58 degrees 55 minu1es 57 seconds West 140.08 feet: (3) thence North 31 degrees
04 minutes 03 seconds East 9.40 feet; (4) thence North 58 degrees 55 minutes 57 seconds West
188.53 feet: (5) thence North 89 degrees10 minu1es 10 seconds West 73.12 feet; (6) thence North 46
degrees 49 minutes 57 seconds West 55.56 feet; (7) thence North 29 degrees 50 minutes 51
seconds West 141.44 feet; (8) thence North 70 degrees 41 minutes 28 seconds West 98.17 feet: (9)
thence South 77 degrees 08 minutes 27 seconds West 111.08 feet; (10) thence South 89 degrees 51
minutes 17 seconds West 80.92 feet to the West line of the East Half of said Southeast Quarter
Section; thence along said West line, North 00 degrees 08 minutes 43 seconds West 948.29 feet to
the North line of said East Half; thence along said North line, North 89 degrees 17 minutes 43
seconds East 1345.31 feet to the Point of Beginning, containing 24.595 acres, more or less.
Commencing at the Northeast comer of the East Half of said Southeast Quarter Section; thence
along the East line of said Southeast Quarter Section, South 00 degrees 01 minutes 18 seconds
West 40.00 feet to the Point of Beginning; thence continua along said East line, South 00 degrees 01
minutes 18 seconds West'1744.48 feet to the Northeasterly comer of Saddle Creek Section One (the
next seven courses are along the Northerly boundary of said Saddle Creek Section One); (1) thence
North 89 degrees 58 minutes 42 seconds West 198.50 feet; (2) thence North 21 degrees 16 minutes
23 seconds West 161.09 feet; (3) thence North 25 degrees 40 minutes 19 seconds West 90.66 feet;
(4) thence North 28 degrees 51 minutes 08 seconds West 91.37 feet; (5) thence North 32 degrees 08
minutes 04 seconds West 96.51 feet; (6) thence North 35 degrees 30 minutes 25 seconds West
96.51 feet(7) thence North 38 degrees 52 minutes 45 seconds West 96.51 feet to a point on the
Easteriy boundary of Saddle Creek Section Three (the next 17 courses are along the Easterly
boundary of said Saddle Creek Section Three; (1) thence North 42 degrees 15 minutes 05 seconds
West 96.51 feet; (2) thence North 46 degrees 03 minutes 45 seconds East 185.00 feet to a
nontangent curve having a radius of 1825.00 feet, the radius point of which bears South 46 degrees
04 minutes 24 seconds West; (3) thence Northwesterly alon9 said curve, 36.52 feet to a point which
bears North 44 degrees 55 minutes 37 seconds East from said radius point; (4) thence North 45
degrees 04 minu1es 23 seconds East 142.71 feet; (5) thence North 08 degrees 37 minutes 47
seconds West 54.56 feet: (6) thence North 03 degrees 15 minutes 50 seconds West 229.12 feet; (7)
thence North 05 degrees 57 minutes 41 seconds East 245.64 feet; (8) thence North 23 degrees 57
minutes 24 seconds East 118.63 feet; (9) thence North 37 degrees 44 minutes 41 seconds East
50.00 feet; 10 a nontangent curve having a radius of 250.00 feet, the radius point of which bears
South 37 degrees 44 minutes 41 seconds West; (10) thence Northwesterly along said curve, 60.16
feet to a point which bears North 23 degrees 57 minutes 24 seconds East from said radius point; (11)
thence North 66 degrees 02 minutes 36 seconds West 51.11 feet to a curve having a radius of 20.00
feet, the radius point of which bears North 23.degrees 57 minutes 24 seconds East; (12) thence
Northwesterly and Northerly along said curve, 30.37 feel to a point which bears North 69 degrees 01
minutes 37 seconds West from said radius point: (13) thence North 20 degrees 58 minu1es 23
seconds East 50.12 feet to a curve having a radius of 110.00 feet. the radius point of which bears
North 69 degrees 01 minutes 37 seconds West; (14) thence along said curve, 20.09 feet to a point
which bears South 79 degrees 29 minutes 33 seconds East from said radius point; (15) thence North
10 degrees 30 minutes 27 seconds East 19.09 feet; (16) thence North 49 degrees 54 minutes 05
seconds East 46.37 feet to a point located 40.00 feel Southerly, measured at right angles, from the
North line of the East Half of said Southeast Quarter Section; (17) thence parallel with said North line,
North 89 degtees 17 minutes 43 seconds East 328.15 leet to the Point of Beginning, containing
15.018 acres, more or less. .
DEC~TI0N - SADDLE CREEK
49