HomeMy WebLinkAboutCCRs_ Sept. 1992 f r t , 1
DECLARATION OF COVENANTS, CONDITIONS AND RESTRI '
FOR
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MILLBROOK :F4 tta AI��
THIS DECLARATION (hereinafter called "the Declaration" or "this Declaration") mase
this day of September, 1992, by C.P. Morgan Co., Inc. and Estridge Development
Co., Inc. (hereinafter jointly called "Declarant"),
WITNESSETH:
WHEREAS, Declarant is the owner of the real estate in Hamilton County, Indiana, more
particularly described in Exhibit "A" attached hereto and incorporated herein by reference
(hereinafter referred to as the "Real Estate"); and
WHEREAS, Declarant is in the process of creating on the Real Estate a residential
community with public streets, common facilities and landscaped areas, for the benefit of
such residential community, to be known as MILLBROOK; and
WHEREAS, Declarant desires to subdivide and develop the Real Estate as generally
shown on a Secondary Plat or Plats, hereafter intended to be recorded by Declarant, by
designating certain parts of the Property as Utility Easement (UE) (as hereinafter
defined); by designating certain parts of the Property as Utility and Drainage Easement (U
& DE) (as hereinafter defined); by designating certain parts of the Property as Landscape
Easement (LSE) (as hereinafter defined); by designating certain parts of the Property as
Drainage Easement (DE) (as hereinafter defined); by designating certain parts of the
Property as Common Area (CA) (as hereinafter defined); by designating certain part of the
Property as Restricted Common Area (RCA) (as hereinafter defined); by designating certain
parts of the Property as Public Streets (PS) (as hereinafter defined); and by designating
certain other parts of the Property as Lots; and
WHEREAS, Declarant desires to provide for the preservation and enhancement of the
values and amenities in such community and the common facilities (if any) therein con-
tained, and to this end, Declarant desires to subject the Real Estate and each owner of
all or part thereof to the terms of this Declaration, as hereinafter provided; 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 the common facilities (if
any) located on the Property (hereinafter defined), administering and enforcing the cove-
nants and restrictions contained in this Declaration, collecting and disbursing the assess-
ments and charges imposed and created hereby and hereunder, performing certain mainte-
nance, repairs and replacements of buildings as hereinafter provided, and promoting the
health, safety and welfare of the owners of the Property, and all parts thereof; and
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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 "Millbrook Homeowners
Association, Inc.", or a similar name, as such agency for the purpose of exercising such
functions;
NOW, THEREFORE, Declarant hereby declares that the Property is and shall be held,
transferred, sold, conveyed, hypothecated, encumbered, leased, rented, used, improved and
occupied subject to the provisions, agreements, conditions, covenants, restrictions, ease-
ments, assessments, charges and liens hereinafter set forth, all of which are declared to
be in furtherance of a plan for preservation and enhancement of the Property, and are
established and agreed upon for the purpose of enhancing and protecting the value, de-
sirability and attractiveness of the Property as a whole and of each of the Lots situated
therein, and which shall run with the Property and be binding upon all parties having any
right, title or interest in the Property, their heirs, successors and assigns.
ARTICLE I
DEFINITIONS
Section 1. The following words, when used in this Declaration or any supple-
mental declaration (unless the context shall prohibit), shall have the following meanings:
A. "Applicable Date" shall mean the "Applicable Date" as defined and determined in
accordance with Section 3.B. of Article III hereof.
B. "Association" shall mean Millbrook Homeowners Association, Inc., an Indiana
not-for-profit corporation which Declarant has caused, or will cause, to be incorporated
under said name or a similar name, its successors and assigns.
C. "Board" or "Board of Directors" shall mean the board of directors of the Asso-
ciation.
D. "Common Area" shall mean (i) those portions, if any, of the Property shown upon
any recorded subdivision plat of the Property, or any part thereof (including the Initial
Plat), which are not Lots [reserving, however, unto Declarant the right to re-plat any of
such areas as part of one (1) or more Lots], other than portions thereof (such as streets)
which are dedicated to the public, whether such plat is heretofore or hereafter recorded,
including all improvements and structures constructed or to be constructed thereon, and
(ii) such portions of the Property (if any) as are hereafter declared to be "Common Area"
by an instrument executed and recorded by Declarant, whether or not such areas comprise
part or all of a lot or lots shown upon any recorded subdivision plat of the Property.
E. "Declarant" shall mean C.P. Morgan Co., Inc. and Estridge Development Co., Inc.
and any successors and assigns of who it designates in one or more written recorded
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instruments to have the rights of Declarant hereunder, including, but not limited to, any
mortgagee acquiring title to any portion of the Property pursuant to the exercise of
rights under, or foreclosure of (or by acceptance of a deed in lieu of foreclosure of), a
mortgage executed by Declarant; provided, however, that any such mortgagee so acquiring
title by virtue of foreclosure against (or acceptance of a deed in lieu of foreclosure
from) the Declarant shall not be deemed to have assumed any prior obligations or
liabilities of the Declarant hereunder.
F. "Initial Plat" shall mean the subdivision plat(s) of the Real Estate.
G. "Restricted Common Area", if such term is used herein, in any supplement hereto
or in any subdivision plat, shall mean such portions of the Common Area as to which the
use thereof is limited or restricted in accordance with the terms hereof, or any supple-
ment hereto, or any subdivision plat of the Property to the Owner or Owners of one or more
but less than all of the Lots, and which are clearly designed and intended for use by the
Owner or Owners of one or more but less than all of the Lots, and which are appurtenant to
one or more but less than all of the Lots and which are not necessary for the beneficial
use and enjoyment of all of the Lots.
H. "Living Unit" shall mean a residential housing unit designed or intended for use
as living quarters for one family or housekeeping unit. For the purpose of determining
membership in the Association, each Living Unit as initially constructed on a Lot by De-
clarant or others shall be considered as a separate and individual unit.
I. "Lot" shall mean and refer to any and each plot of land included in the Property
(with the exception of Common Area) designed and intended for use as a building site for a
Living Unit, and identified as a lot on any recorded subdivision plat of the Property or
any part thereof (including the Initial Plat).
J. "Member" shall mean any person or entity holding membership in the Association as
provided in Article III hereof.
K. "Mortgage" shall mean any mortgage or other security instrument by which a Lot or
any part thereof or any structure thereon is encumbered.
L. "Mortgagee" shall mean any person or entity named as the Mortgagee under any such
Mortgage or any successors or assigns to the interest of such person or entity under such
Mortgage prior to acquisition of the fee simple title to the property encumbered by such
Mortgage.
M. "Real Estate" shall mean the parcel or parcels of real estate in Hamilton County,
Indiana, described in Exhibit "A" attached to and incorporated in this Declaration.
N. "Owner" shall mean the record owner, whether one or more persons or entities, of
the fee simple title to any Lot which is a part of the Property, including contract sel-
lers, but excluding those having such interest merely as security for the performance of
an obligation.
O. "Person", whether appearing in upper case or lower case form, shall mean an indi-
vidual, firm, corporation, partnership, association, trust, or other legal entity, or any
combination thereof.
P. "Property" shall mean and refer to the Real Estate.
Q. The parts of the Property designated on any Plat(s) as Utility Easement; Utility
and Drainage Easement; Landscape Easement; Drainage Easement; and Public Streets are re-
served for those purposes and those purposes described in the covenants and restrictions
recorded in conjunction with any Plat(s).
Section 2. Other terms and words defined elsewhere in this Declaration
shall have the meanings herein attributed to them.
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION
Section 1. Declaration. Declarant hereby expressly declares that the Prop-
erty shall be held, transferred, sold, conveyed and occupied subject to all the
terms, covenants, conditions, restrictions and provisions of this Declaration. As
of the date of execution of this Declaration, the Property consists solely of the
Real Estate. The owner of any Lot at any time subject to this Declaration, by (i)
acceptance of a deed conveying title thereto, or the execution of a contract for the
purchase thereof, whether from Declarant or a subsequent Owner of such Lot, or (ii)
by the act of occupancy of any Lot, shall accept such deed, execute such contract
and undertake such occupancy subject to all of the terms, covenants, conditions,
restrictions and provisions of this Declaration. By acceptance of such deed, exe-
cution of such contract or undertaking such occupancy, each Owner acknowledges the
rights and powers of Declarant and of the Association with respect to or under this
Declaration, and, for himself, his heirs, personal representatives, successors and
assigns, covenants, agrees and consents to and with Declarant, the Association, 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 Declara-
tion.
ARTICLE III
MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION
Section 1. Membership. Every Owner of a Lot, except as herein provided to
the contrary, shall be entitled and required to be a member of the Association. If
title to a Lot is held by more than one person, each of such persons shall be a mem-
ber. An Owner of more than one Lot shall be entitled to, and there shall be re-
quired, one membership for each such lot. Each such membership shall be appurtenant
to the Lot upon which it is based and shall transfer automatically be voluntary or
involuntary conveyance of the title of that Lot. Except as herein otherwise express-
ly provided, no person or entity other than an Owner or Declarant may be a member of
the Association, and a membership in the Association may not be transferred except
in connection with the transfer of title to a Lot.
Section 2. Transfer. A membership in the Association shall not be trans-
ferred, pledged or alienated in any way, except upon the transfer of the record ti-
tle of a Lot and then only to such transferee, by assignment, intestate succession,
testamentary disposition, foreclosure of mortgage of record or other legal process.
It shall be the responsibility of each Owner, upon becoming entitled to membership,
to so notify the Association in writing, and until so notified, the Association may
continue to carry the name of the former Owner as a member, in its sole discretion.
Any attempt to make a prohibited transfer is void and will not be reflected upon the
books and records of the Association. In the event the Owner of any Lot should fail
or refuse to transfer the membership registered in his name to the transferee of
title of such Lot, the Association may issue a new membership to the transferee, and
thereupon the old membership outstanding in the name of the transferor shall be null
and void as though the same had been surrendered .
Section 3. Voting. The Association shall have two (2) classes of voting
membership, as follows:
A. Class A. Class A members shall be all Owners of Lots, with the
exception of the Declarant prior to termination of Class B membership, and
shall be entitled to one (1) vote for each lot owned with respect to each
matter submitted to a vote of members upon which the Class A members are
entitled to vote. When more than one person holds title to any Lot, all
such persons shall be members. The vote for such Lot shall be exercised
as they among themselves determine, but in no event shall more than one
vote be cast with respect to any one Lot. There can be no split vote.
Prior to or at the time of any meeting at which a vote is to be taken,
each co-Owner or other person entitled to a vote at such meeting shall
file with the Secretary of the Association the name of the voting co-Owner
or other person entitled to a vote at such meeting, unless such co-Owner
or other persons have filed a general voting authority with the Secretary
applicable to all votes until rescinded.
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B. Class B. Class B. members shall be the Declarant and all successors
and assigns of the Declarant designated by the Declarant as Class B members in
a written notice mailed or delivered to the resident agent of the Association.
Each Class B member shall be entitled, on all matters requiring a vote of the
membership of the Association, to five (5) votes for each Lot owned by them or
it and five (5) votes for each single numbered parcel of land shown upon and
identified as a Lot on any recorded plat of the Real Estate. The Class B
membership shall cease and terminate upon the first to occur of (a) the date
upon which the written resignation of both of the Class B members as such is
delivered to the resident agent of the Association; (b) one hundred twenty
(120) days after ninety-five percent (95%) of the Lots in the Property have
been conveyed to Owners other than Declarant; (c) six (6) years after the date
of recording of the first conveyance of a Lot to an Owner other than Declarant
(the applicable date being herein referred to as the "Applicable Date").
Declarant shall each be entitled to one (1) Class A membership for each Lot of which
it is the Owner on or after the termination of the Class B membership.
Section 4. Suspension of Voting Rights. In the event any Owner shall be
in arrears in the payment of any amount due under any of the provisions of this
Declaration for a period of thirty (30) days, or shall be in default in the
performance of any of the terms of this Declaration for a period of thirty (30)
days, such Owner's right to vote as a member of the Association shall be suspended
and shall remain suspended until all payments are brought current and all defaults
remedied.
Section 5. Board of Directors. Following the Applicable Date, the Owners
shall elect a Board of Directors of the Association as prescribed by the
Association's Articles and By-Laws. The Board of Directors shall manage the affairs
of the Association. Until the Applicable Date, the Board shall consists of three
(3) persons designated by Declarant, as long as it shall own one or more lots.
ARTICLE IV
PROPERTY RIGHTS
Section 1. General Provisions.
A. All easements described in this Declaration are permanent easements
appurtenant, running with the land. They shall at all times inure to the benefit of
and be binding on the Owner and the Mortgagee from time to time of any Lots and the
owner and mortgagee, if any, from time to time of the Common Area, and their
respective heirs, successors, personal representatives or assigns.
B. The covenants and restrictions contained in this Declaration shall run with
and bind the land and shall inure to the benefit of and be enforceable by the
Declarant, the Association or the Owner of any Lot subject to this Declaration,
their respective personal representatives, heirs, successors and assigns, for an
initial term commencing on the date this Declaration is recorded and ending January
1, 2012, after which time the covenants and restrictions shall be automatically
renewed for successive periods of ten (10) years each, as the same may be amended or
modified as herein permitted and provided.
Section 2. Right of Enjoyment. Every Owner shall have a non-exclusive
right and easement of enjoyment in and to the Common Area (except for such portions
thereof, if any, as are Restricted Common Area), limited, however, to and for the
uses and purposes for which any portion of the Common Area is designed and intended,
which right and easement shall include, but not be limited to, use and enjoyment of
open spaces and all other parts of the Common Area (other than Restricted Common
Areas, if any). Such right and easement shall be appurtenant to and shall pass with
the title to every Lot, subject to the following provisions:
A. The right of the Association to pass reasonable rules, with
respect to the Common Area, for the health, comfort, safety and welfare of
persons using the same;
B. The right of the Association to suspend the voting rights and right to
the use of recreational facilities, if any, situated upon the Common Area (but
not rights of access to Lots) by an Owner for any period during which any
assessment against his Lot remains unpaid, and for a period not to exceed sixty
(60) days for an infraction of its published rules and regulations;
C. The right of the Association to levy assessments as provided in this
Declaration; and
D. The rights of the Association and Declarant reserved under this
Article IV or elsewhere in this Declaration.
Section 3. Delegation of Enjoyment. Any Owner may delegate, in accordance
with the By-Laws of the Association, his right of enjoyment to the Common Areas to
residents of his Lot, including the members of his family, his tenants, or contract
purchasers.
Section 4. Association's Rights and Obligations.
A. The Association shall have the obligation to manage, repair, maintain,
improve and operate the Common Area and the Landscape Easements.
B. The Association shall have the right to mortgage all or any portion of
the Common Area for the purpose of securing a loan of money to be used for any
of the purposes specified in subsection 4.A. next hereinabove, provided that
the rights of such mortgagee in the Common Area shall be subordinate to the
rights of the Owners under this Declaration, and provided, further, that the
mortgage shall have received the prior written approval specified hereinbelow.
C. The Association shall have the right to dedicate or transfer all or
any part of the Common Area to any governmental subdivision or public agency or
utility, and to grant permits, licenses, and easements over the Common Area for
utilities and other purposes necessary or useful for the proper maintenance or
operation of the project, subject to any prior written approval required
hereinbelow.
D. The Property shall be subject to easements of record on the date the
various portions thereof become subject to this Declaration, and to any
easements in the Common Area which may at any time be granted by Declarant or
the Association (subject to the approval referred to in the preceding
paragraph) to any public or private utilities or governmental bodies for the
installation and maintenance of electrical and telephone conduit and lines, gas
pipes, sewers or water pipes, coaxial cable, or any other utility services
serving any Lots or the Common Area.
E. Anything herein apparently to the contrary notwithstanding, except as
otherwise expressly herein provided for, no abandonment, partition,
subdivision, encumbrance, sale or transfer of the Common Area or other common
property or any part thereof shall be effective unless it shall have received
the prior written approval specified in hereinbelow.
Section 5. Declarant's Rights. Declarant shall have the same rights as
any other Owner as to Lots owned by it from time to time, except as otherwise
specified herein. In addition, until the last single numbered parcel of land shown
upon, and identified as a lot on any recorded plat(s) of the Real Estate (whether
heretofore or hereafter recorded, including the Initial plat) is conveyed to an
Owner other than Declarant, or until the Applicable Date (whichever event shall
first occur), Declarant shall have the right and easement over the Common Area for
the completion of improvements and making repairs to improvements (whether on the
Common Area, or upon unsold Lots, or upon other portions of the Real Estate and the
right to maintain and use facilities (including, but not limited to, model Living
Units) and signs upon the Common Area and any other portions of the Property (other
than Lots owned by an Owner other than Declarant) for the purpose of marketing
units, and to invite and escort the public thereon for such purpose.
Section 6. Non-Dedication to Public Uses. Nothing contained in this
Declaration or in any subdivision plat of any part of the Property shall be
construed or be deemed to constitute a dedication, express or implied, of any part
of the Common Area to the public or to or for any public use or purpose whatsoever,
all of such Common Areas being reserved to the Owners and the Association as
provided in this Declaration, but subject, however, to the rights of the Association
and the Declarant to thereafter dedicate portions of such Common Area to the public
or to or for public uses or purposes but only to the extent, and upon all of the
conditions, set forth in this Declaration. Section 7. Easement for
Unintentional Encroachment. Notwithstanding any other provisions contained
herein, in the event that any Living Unit or any improvements to any Living Unit
encroaches upon any part of the Common Area, as a result of construction,
reconstruction, repair, shifting, settlement or movement of any part of the
Property, then a perpetual easement appurtenant to such encroaching Living Unit
shall exist for the continuance of any such encroachment on the Common Area.
Section 8. Parking Rights. Each Lot contains or will contain parking
areas (including garages) for the use of its Owner.
Section 9. Title to Common Area. Declarant hereby covenants that it shall
convey and transfer the Common Area included in and constituting a part of the Real
Estate (if any) to the Association prior to the first conveyance of a Lot within the
Real Estate to an Owner other than Declarant. Each such portion of the Common Area
so conveyed by Declarant to the Association shall, at the time of such conveyance,
be subject to any dedicated or public street or road rights-of-way affecting the
same and all easements, covenants, conditions, limitations and restrictions then or
record, but shall be free and clear of all liens and financial encumbrances other
than the lien of the then current non-delinquent installment of real estate taxes
and assessments and subsequent installments thereof, which shall thereafter be paid
when due by the Association.
ARTICLE V
ASSESSMENTS
Section 1. Personal Obligations. Each Owner of a Lot by acceptance of a
deed or other conveyance therefor, whether or not it shall be so expressed therein,
shall be and is deemed to covenant and agree to pay to the Association: (a) annual
assessments or charges, which shall be payable in regular installments, for the
payment or provision of all expenses of administration of the Association, expenses
for the upkeep, maintenance, repair and replacement of the Common Areas and all
other expenses incurred or to be incurred by the Association for or in connection
with the performance by the Association of its duties, obligations and
responsibilities under this Declaration, which expenses may include, but shall not
be limited to, the expenses and costs of hazard and liability insurance for Common
Areas and any other common property; snow removal, trash removal, sewer charges and
water charges (if payable by the Association); street lighting (if provided by the
Association); and an adequate reserve fund for the periodic maintenance, repair and
replacement of those improvements and elements of the Common Area and any other
property that must be maintained, repaired or replaced on a periodic basis and which
the Association may be obligated to maintain, and (b) special assessments for
capital improvements, such assessments to be established and collected as
hereinafter provided. Any assessments authorized herein, together with interest,
costs and reasonable attorneys' fees, shall be a continuing lien from the first day
of January (for annual assessments) and from the date the first installment is
payable (for special assessments) against the Lot assessed. Such annual assessments
shall be due and payable in advance in twelve equal monthly installments on the
first day of each and every month or, if so determined by the Association, in such
other periodic installments as may be specified by the Association. Each
assessment, together with interest, costs and reasonable attorneys' fees, shall also
be the personal obligation of the person who was the Owner of such Lot on the date
said assessment became due and payable. Said personal obligation of an Owner shall
not pass to his successors in title or interest unless expressly assumed by them or
unless, prior to such transfer, a written notice of the lien for such assessments
shall have been recorded in the office of the Recorder of Hamilton County, Indiana.
No Owner shall escape liability for the assessments which fell due while he was the
Owner by reason of non-use of the Common Area or non-use, transfer or abandonment of
his Lot or Living Unit.
Section 2. Purpose of Assessments. The assessments levied by the
Association shall be used exclusively to promote the recreation, health, safety and
welfare of the Owners and residents of the Property, to construct, manage, improve,
maintain, repair and administer the Common Area, and for payment of any other costs
and expenses incurred by the Association in connection with the performance of its
duties, obligations and responsibilities hereunder. An adequate reserve fund shall
be maintained for working capital and for the periodic maintenance, repair and
replacement of those improvements and elements of the Common Areas and any other
property that must be replaced on a periodic basis. Such reserve fund shall be
maintained out of the regular annual assessments.
Section 3. Annual Assessments. Until December 31, 1993, the maximum
annual assessment shall be at the monthly rate of Dollars ($
per Lot.
A. From and after December 31, 1993, the maximum annual assessments may be
increased each year not more than 10% above the maximum assessments
permitted for the previous year, on a cumulative basis, without a vote of
membership.
B. From and after December 31, 1993, the maximum annual assessments may be
increased by more than 10% above the maximum assessments permitted for the
previous year by a vote of two-thirds (2/3) of the total votes of the
Members who are voting in person or by proxy, at a meeting called for this
purpose.
C. The Board of Directors may fix the annual assessments at any amount not
in excess of the maximum permitted hereby.
Section 4. Special Assessments. In addition to the annual assessments
authorized above, the Association may levy, in any assessment year, a special
assessment applicable to that year only for the purpose of defraying, in whole or in
part, the cost of any construction, reconstruction, repair or replacement of a
capital improvement upon the Common Area, including fixtures and personal property
related thereto, provided that any such assessment shall have the assent of not less
than two-thirds (2/3) of the total votes of the Members who are voting in person or
by proxy at a meeting duly called for this purpose.
Section 5. Notice and Quorum. Written notice of any meeting of Members
called for the purpose of taking any action authorized under Article V, Sections 3
or 4, shall be sent to all Members not less than ten (10) days nor more than sixty
(60) days in advance of the meeting. At the opening of such meeting, the presence
in person or by proxy of Members entitled to cast sixty percent (60%) of the total
votes of the membership shall constitute a quorum. If the required quorum is not
present, another meeting may be called subject to the same notice requirement, and
the required quorum at any subsequent meeting shall be one-half (1/2) of the required
quorum at the preceding meeting. No such subsequent meeting shall be held more than
sixty (60) days following the preceding meeting.
Section 6. Rate of Assessment. Both annual and special assessments must
be fixed at a uniform rate for all Lots. Annual assessments shall be collected on a
monthly basis (or other periodic basis, if and as determined by the Board) and
special assessments shall be collected as the Board determines. The provisions of
this Section 6 are subject to the provisions of Section 13 of this Article V as to
all Lots owned by Declarant.
Section 7. Commencement of Initial Annual Assessments. The annual
assessments provided for herein shall commence as to each Lot subjected to this
Declaration on the first day of the month following the month of recording of the
instrument by which such Lot is conveyed to an Owner. The first annual assessment
shall be adjusted according to the number of months remaining in the calendar year
for which such assessment is imposed.
Section 8. Commencement of Annual Assessments. By November 1 of each year
the Board shall fix the amount of annual assessments against each Lot for the
following calendar year and shall send written notice thereof to each Owner. The
due date for payment of annual assessments shall be as set by the Board. At the
time the Board fixes the amount of annual assessments it shall adopt a budget for
the following calendar year and cause a copy of such budget in reasonable detail to
be furnished to each Owner. The provisions of this Article V notwithstanding.
annual or special assessments shall not be due andpayable on each Lot owned by the
Declarant and on each Lot owned by The Estridge Group. Inc.. Paul E. Estridge Corp..
C.P. Morgan Co.. Inc. or Estridge Development Co.. Inc.
Section 9. Proof of Payment. Upon written demand of an Owner or
Mortgagee, at any time and for a reasonable charge, the Association shall furnish a
written certificate signed by an officer of the Association setting forth whether
there are any then unpaid annual or special assessments levied against such Owner's
or Mortgagee's Lot. Such certificate shall be conclusive evidence of payment of any
annual or special assessments not stated therein as unpaid.
Section 10. Nonpayment of Assessments. Any assessments which are not paid
when due shall be deemed delinquent. If an assessment is not paid within thirty
(30) days after the delinquency date, it shall bear interest from the delinquency
date at the rate of twelve percent (12%) per annum and shall become a continuing
lien in favor of the Association on the Lot against which assessed and the
improvements thereon and the Association may bring an action at law or in equity
against the person personally obligated to pay the same, including interest, costs
and reasonable attorneys' fees for any such action, which shall be added to the
amount of such assessment and included in any judgment rendered in such action, and
the Association may also enforce and foreclose any lien it has or which may exist
for its benefit.
Section 11. Recording and Enforcement of Liens. To evidence a lien for
sums assessed pursuant to this Article, the Association may prepare a written notice
of lien setting forth the amount of the assessment, the date due, the amount
remaining unpaid, the name of the Owner of the Lot, the name of the person
personally obligated to pay the same and a description of the Lot. Such a notice
shall be signed by an officer of the Association and it or a notice of lien or
adverse claim thereof may be recorded in the office of the Recorder of Hamilton
County, Indiana. No notice of lien shall be recorded until there is a delinquency
in payment of the assessment for thirty (30) days. Upon such a delinquency for
thirty (30) days, the Association shall proceed promptly to enforce the lien or, in
its discretion, to sue the person personally liable to pay the lien for the
delinquency. Such lien shall be enforced by action in the same manner in which
mortgages on real property may be foreclosed in Indiana. In any such foreclosure,
the person personally obligated to pay the lien shall be required to pay all costs
of foreclosure including reasonable attorneys' fees. All such costs and expenses
shall be secured by the lien being foreclosed. The person personally obligated to
pay the lien shall also be required to pay to the Association any assessments
against the Lot which shall become due during the period of foreclosure. The
Association shall have the right and power to bid at the foreclosure sale or other
legal sale and to acquire, hold, convey, lease, rent, encumber, use and otherwise
deal with the foreclosed interest in the Lot as the Owner thereof.
The Association shall, upon written request, report to any Mortgagee of a Lot
any assessments remaining unpaid for longer than thirty (30) days after the same
shall have become due, provided, however, that such Mortgagee first shall have
furnished to the Association written notice of the Mortgage under which it claims
and its notice address.
Section 12. Subordination of Lien. The lien of the assessments provided
for herein shall be subordinate to the lien of any first Mortgage ("First Mortgage")
and to tax liens and liens for special assessments in favor of any taxing and
assessing unit of government. The sale or transfer of any Lot shall not affect the
assessment lien. However, the sale or transfer of any Lot pursuant to mortgage
foreclosure or remedies provided in a First Mortgage, or any proceeding in lieu
thereof, shall extinguish the lien of such assessments as to charges which were
payable prior to such sale or transfer. No such sale or transfer shall relieve a
Lot from liability for any assessments thereafter becoming payable or from the lien
thereof or shall relieve the person personally obligated to pay the same from
personal liability for assessments payable prior to such sale or transfer or
acquisition. Any delinquent assessments the lien for which is extinguished by
reason of this provision may be reallocated and assessed to all Lots as a common
expense.
Section 13. Limitations on Assessments Owed by Declarant. Notwithstanding
anything to the contrary contained herein, Declarant shall not be obligated to pay,
as to any and all Lots owned by it from time to time, any assessments (whether
regular annual assessments or special assessments) payable hereunder by Owners.
ARTICLE VI
ARCHITECTURAL CONTROLS
Section 1. Architectural Control Committee Authority. No exterior
additions, removals or alterations (including changes in color or appearance) to any
building on the Property, additional fences, or changes in existing fences, hedges,
walls, walkways and other structures shall be commenced, erected or maintained
except such as are installed or approved by the Declarant in connection with the
initial construction of the Living Units and other buildings and improvements on the
Property, until the written plans and specifications showing in reasonable detail
the nature, kind, shape, height, materials (including color), location and
approximate cost of same shall have been submitted to and approved in writing as to
harmony of the external design and location in relation to surrounding buildings in
the Property by an Architectural Committee composed of the Board of Directors of the
Association or three (3) or more representatives appointed by the Board of Directors.
In the event said Board, or its designated Committee, fails to approve or disapprove
such design and location within thirty (30) days after said written plans and
specifications have been submitted to it, or if no suit to enjoin the making of such
additions, alterations or changes or to force the cessation thereof has been
commenced within sixty (60) days of such submission, such approval will be deemed to
have been given. If no such submission has been made to the Architectural
Committee, suit to enjoin or force the removal of such additions, alterations or
changes may be instituted at any time by the Association or any Owner. During the
time which the Association has a Class B member, the decisions of the Architectural
Committee must have the written approval of the Declarant. The approvals of the
Architectural Committee required hereunder shall be in addition to, and not in lieu
of, any approvals as to such matters required to be obtained from any other persons
or governmental agencies pursuant to the terms of the Initial Plat, or any other
plat or otherwise.
Section 2. Restoration in Accordance with Original Plans. Any restoration
or repair of the Common Area or exterior of Living Units, after a partial
condemnation or damage due to fire or other casualty, shall be performed
substantially in accordance with this Declaration and the original plans and
specifications for the same, unless other action is approved by the Architectural
Committee.
ARTICLE VIE
OTHER RIGHTS AND OBLIGATIONS OF THE ASSOCIATION
Section 1. The Common Area. The Association, subject to the rights and
obligations of the Owners as set forth in this Declaration, shall be responsible
for, and be vested with, the exclusive management and control of the Common Area and
all improvements (if any) thereon (including furnishings and equipment related
thereto), and shall keep the same in good, clean, attractive and sanitary condition,
order and repair. Such responsibility (to the extent the same is not otherwise
herein declared or stated to be the obligation or responsibility of Owners of Lots)
shall include, but not be limited to, the following: the maintenance and repair of
the Common Area improvements, if any; all other improvements or material located
within or used in connection with the Common Area; and the Landscape Easement.
Section 2. Services. The Association may obtain and pay for the services
of any persons or entities, to manage its affairs, or any part thereof, to the
extent it deems advisable, as well as such other personnel as the Association shall
determine to be necessary or desirable for the proper operation of the Property
whether such personnel are furnished or employed directly by the Association or by
any person or entity with whom or which it contracts. The Association may obtain
and pay for legal and accounting services necessary or desirable in connection with
the operation of the Property, the enforcement of this Declaration or any
proceedings or controversy in which the Board determines it is necessary or
advisable to have professional advice. The Association may arrange with others to
furnish trash collection and other common services to each Lot. Any agreement for
professional management of the Property, or any other contract providing for
services by Declarant or an entity owned or controlled by the same persons as
Declarant, must provide for termination by either party without cause and without
payment of a termination fee on ninety (90) days or less written notice and by
either party for cause upon thirty (30) days or less written notice and shall have a
maximum contract term of one (1) year, but may be renewable by agreement of the
parties for successive one-year terms.
section 3. Personal Property for Common Use. The Association may acquire
and hold for the use and benefit of all of the Owners tangible and intangible
personal property and may dispose of the same by sale or otherwise. Such beneficial
interest shall not be transferable except with the transfer of title to a Lot,
provided that an Owner may delegate his right of enjoyment of such personal property
(if any) to resident of his Lot. A transfer of title to a Lot shall transfer to the
transferee ownership of the transferor's beneficial interest in such property in
accordance with the purpose for which it is intended, without hindering or
encroaching upon the lawful rights of other Owners. The transfer of title to a Lot
under foreclosure shall entitle the purchaser to the beneficial interest in such
personal property associated with the foreclosed Lot.
Section 4. Utilities. The Association shall pay as a common expense all
charges for electricity, water, sewer and other utilities used upon the Common Area.
Section 5. Hazard and Liability Insurance for Common Property. The
Association shall procure fire and extended coverage insurance on insurable Common
Areas and other common property on a current replacement cost basis in an amount not
less than 100% of the insurable value (based on current replacement only); and shall
use the proceeds of such hazard insurance solely for the repair, replacement or
reconstruction of such insurable Common Areas and other common property, including
insured improvements. The cost of such insurance shall be assessed as provided in
Article V above. Holders of First Mortgages ("First Mortgagees') on Living Units,
jointly or singly, may pay overdue premiums on hazard insurance policies, or may
secure new hazard insurance coverage on the lapse of a policy, for the Common Areas
and other common property, and First Mortgagees making such payments shall be owed
immediate reimbursement therefore from the Association. The Association is
authorized to enter into an agreement in favor of all First Mortgagees of Living
Units establishing entitlement to such reimbursement.
ARTICLE VIII
OWNERS'MAINTENANCE
Section 1. Upkeep and Maintenance. Each Owner shall be responsible for
the upkeep and maintenance of his Living Unit, patios and all other areas, features
or parts of his Lot to the extent not otherwise maintained by the Association. An
Owner shall do no act nor any work that will impair the structural soundness or
integrity of any structure, or an adjoining Living Unit, or impair any easement or
hereditament, nor do any act nor allow any condition to exist which will adversely
affect the other Living Units, or their Owners.
ARTICLE IX
GENERAL RESTRICTIONS, OBLIGATIONS AND RIGHTS APPLICABLE TO PROPERTY
Section 1. Living Unit and Lot Restrictions. No more than one Living Unit
shall be erected or maintained on each Lot. No Living Unit shall be used for
purposes other than as a single family residence, nor shall any trade or business of
any kind be carried on within a Living Unit or upon a Lot, nor shall any Lot or any
part thereof be leased, sublet, assigned or suffered to be used for hotel or
transient occupancy, provided that none of the following activities shall be
considered a violation of this covenant:
A. The maintenance of model Living Units and business and sales offices by
Declarant during the construction and sale periods.
B. The maintenance of offices by the Association or its designated manager for
purposes of management of the Property.
C. Lease, rental or use of a Living Unit for purposes consistent with this
Section.
D. The use of a Living Unit by an Owner for incidental office purposes to the
extent permitted by applicable zoning ordinances.
Section 2. Common Area Restrictions. No industry, business, trade,
occupation or profession of any kind shall be conducted, maintained or permitted on
any part of the Common Area, nor shall any "for sale" or "for rent" signs or any
window display advertising be maintained or permitted on any part thereof, except
that Declarant reserves the right for itself or its agents to maintain model Living
Units, business and sales offices, storage areas and construction offices on the
Common Area during the construction and sales period until the last Lot existing as
part of the Property on the Applicable Date is conveyed to an Owner other than
Declarant, and to place "for sale", "for rent" or any other signs on any part of the
Common Area and to use any part of the Common Area for sale or display purposes
during such period.
Section 3. Obstruction. There shall be no obstruction of the Common Area,
nor shall anything be kept or stored on any part of the Common Area without the
prior written consent of the Association except construction materials and equipment
during the construction period or except as specifically provided herein. Nothing
shall be altered on, constructed in, or removed from the Common Area except upon the
prior written consent of the Association.
Section 4. Prohibition of Damage and Certain Activities. Nothing shall be
done or kept on any Lot or in any Living Unit or on or in any Common Area or any
part thereof which would increase the rate of insurance on the Property or any part
thereof over what the Association, but for such activity, would pay, without the
prior written consent of the Association. Nothing shall be done or kept on any Lot
or in any Living Unit or on or in any Common Area or any part thereof, which would
be in violation of any statute, rule, ordinance, regulation, permit or other validly
imposed requirement of any governmental body. No damage to, or waste of, the Common
Area or any part thereof or of the exterior of the Property and buildings thereon
shall be committed by any Owner or any invitee or tenant of any Owner and each Owner
shall indemnify and hold the Association and the other Owners harmless against all
loss resulting from any such damage or waste caused by him or his invitees or
tenants, to the Association and other Owners. No noxious, destructive or offensive
activity shall be allowed in any Living Units, on any Lots or in the Common Area or
any part thereof, nor shall anything be done thereon which may be or may become a
nuisance to any other Owner or to any other person at any time lawfully residing on
the Property.
Section 5. No Unsightly Uses. No clothes, sheets, blankets, laundry of
any kind or other articles shall be hung out on any portion of the Common Area, or
on a Lot or Limited Common Area so as to be visible from outside the Lot or the
Common Area. The Common Area shall be kept free and clear of all rubbish, debris
and other unsightly materials.
Section 6. Animals. No animals, rabbits, livestock, fowl or poultry of
any kind shall be raised, bred or kept in or on any Lot or on the Common Area or any
part thereof, except that household pets may be kept on Lots, subject to rules and
regulations adopted by the Board, provided that they are not kept, bred, or
maintained for any commercial purposes; provided, further, that any such pet causing
or creating a nuisance or unreasonable disturbance shall be permanently removed from
the Property subject to these restrictions upon three days' written notice from the
Board, and provided further, that upon written request of 25% of the voting power of
the Association, the Board of Directors shall have the authority to, and shall order
the removal of, any pet.
Section 7. Prohibited Structures. No structure of a temporary character,
trailer, boat, camper-bus, tent, or shack shall be maintained on any Lot outside of
a garage or other approved structure, nor shall any garage or other building except
a Living Unit be used on any Lot at any time as a residence or sleeping quarters,
either temporarily or permanently.
Section 8. Storage. Outside storage of any items, including but without
limiting the generality of the foregoing, sporting equipment, toys, outdoor cooking
equipment, yard and garden tools and equipment and trash and garbage containers,
shall not be allowed unless screened from view by enclosures so as to be effectively
screened from view outside the lot upon which the same are located. The design of
such screened enclosure must be approved by the Association in accordance with the
architectural control provisions hereof. The storage or collection of rubbish of
any character whatsoever, any material that emits foul or obnoxious odors, the
growing of any noxious or illegal weed or other natural substance, and the harboring
of the source of any noise or activity which disturbs the peace, comfort or serenity
of residents is prohibited. Usual household trash and garbage shall be regularly
collected and may be kept outside only if in sanitary containers which are so
screened. Notwithstanding the foregoing, no boats, snowmobiles, recreational
vehicles, trailers, camping vehicles, buses, mobile homes, tractor/trailers, trucks,
motorcycles, mini-bikes, mopeds, unlicensed or inoperable vehicles, or any other
vehicles of any description other than normal passenger automobiles (including
station wagons and small trucks such as pickups and vans) shall at any time be
stored or parked on any Lot outside of a garage, or on any street within the
Property, or on any part of the Common Area and Restricted Common Area, either
permanently or temporarily.
Section 9. Signs. No signs of any kind (other than designations, in such
styles and materials as the Association shall by rule or regulation approve, of
street addresses and names of occupants) shall be displayed to the public view on
any Lot or Common Area, except that a "For Sale" or "For Lease" sign may be
displayed on a Lot which is being offered for sale or lease provided that it is in
such form, style and location as the Board may require, and except that Declarant
shall be permitted to erect and maintain upon the Property such signs as it deems
appropriate to advertise the development during the construction and sale periods.
Section 10. Antennae. Except with the prior written approval and the
authorization of the Board, no exterior television or radio antennae of any sort
shall be placed, allowed or maintained upon any portion of the improvements or
structures to be located upon the Property, or on the Property itself.
Section 11. Rentals. Any lease between an Owner and a lessee shall
provide that the terms of the lease shall be subject in all respects to the
provisions of this Declaration and the Articles of Incorporation and By-Laws of the
Association, and that any failure by the lessee to comply with the terms of such
documents shall be a default under the lease. All leases shall be in writing. No
Living Unit or Lot may be leased for a period of less than 90 days. Other than the
foregoing, there shall be no restrictions on the right of any Owner to lease his
Living Unit.
Section 12. Rules and Regulations. The Board may adopt, and may amend,
modify, rescind and cancel, such other rules and regulations from time to time
governing the use and enjoyment of the Property, including the Common Area, as the
Board in its sole discretion deems appropriate or necessary.
Section 13. Accessory Outbuilding Prohibited. No accessory outbuildings
shall be erected on any Lot or Lots without the prior written approval of the
Committee.
Section 14. Occupancy or Residential Use of Partially Completed Living Unit
Prohibited. No Living Unit shall be occupied or used for residential purposes or
human habitation until it shall have been substantially completed for occupancy in
accordance with the approved building plan. The determination of whether the Living
Unit shall have been substantially completed in accordance with the approved
building plan shall be made by the Committee and such decision shall be binding on
all parties.
Section 15. Other Restrictions. The Property shall be subject to the
easements, restrictions and limitations of record, and to all governmental zoning
authority and regulations affecting the Property, all of which are incorporated
herein by reference.
Section 16. Right to Perform Certain Maintenance. In the event that the
Owner of any Lot in the Property shall fail to maintain his Lot and any improvements
situated thereon in accordance with the provisions of this Declaration, Declarant or
Developer shall have the right, but not the obligation, by and through its agents
and employees or contractors, to enter upon said Lot and repair, clean or perform
such other acts as may be reasonably necessary to make such Lot and improvements
thereon, if any, conform to the requirements of this Declaration. The cost
therefore to Declarant shall be collected in a reasonable manner from Owner.
Declarant or its agents, employees or contractors shall be liable for any damage
which may result from any maintenance work performed hereunder. Upon the Applicable
Date, the Association shall succeed to and be vested with the rights of the
Declarant and provided for in this Section 16.
Section 17. Development and Sale Period. Nothing contained in this
Article IX shall be construed or interpreted to restrict the activities of Declarant
in connection with the development of the Property and sale of Lots. Declarant
shall be entitled to engage in such activities and to construct, install, erect and
maintain such facilities, upon any portion of the Property at any time owned or
leased by Declarant, as in the sole opinion of Declarant may be reasonably required,
or convenient or incidental to, the development of the Property and sale of the
Lots; such facilities may include, without limitation, storage areas, signs, parking
areas, model residences, construction offices, sales offices and business offices.
ARTICLE X
RIGHTS FOR THE PROTECTION OF FIRST MORTGAGEES
Section 1. Precedence. The provisions of this Article take precedence
over any other conflicting provisions of this Declaration.
Section 2. Notice of Action. Upon written request to the Association,
identifying the name and address of the holder, insurer or guarantor of a First
Mortgage on a Lot or Living Unit and the address of such party (a holder of a First
Mortgage on a Lot or Living Unit who has so requested such notice shall be referred
to herein as an "eligible mortgage holder" and an insurer or governmental guarantor
of a First Mortgage on a Lot or Living Unit who has so requested such notice shall
be referred to herein as an "eligible insurer or guarantor'), any such eligible
mortgage holder or eligible insurer or guarantor will be entitled to timely written
notice of:
(A) Any condemnation loss or any casualty loss which affects a material
portion of the project or any lot or Living Unit on which there is a First
Mortgage held, insured, or guaranteed by such eligible mortgage holder or
eligible insurer or guarantor, as applicable;
(B) Any delinquency in the payment of assessments or charges owed, or any
other default in the performance of any obligation under the Declaration,
By-Laws or Articles of Incorporation by an Owner of a Lot or Living Unit
subject to a First Mortgage held, insured, or guaranteed by such holder or
insurer or guarantor, which remains uncured for a period of 60 days;
(C) Any lapse, cancellation or material modification of any insurance
policy or fidelity bond maintained by the Association;
(D) Any proposed action which would require the consent of a specified
percentage of mortgage holders as specified in this Article; and
(E) Any default in the performance by the Owner of any obligation under
the Declaration or By-Laws which is not cured within sixty (60) days.
Section 3. No Right of First Refusal. The right of an Owner to sell,
transfer, or otherwise convey his Lot or Living Unit will not be subject to any
right of first refusal or any similar restriction in favor of the Association or
other Owners.
Section 4. Liability for Unpaid Assessments. Any First Mortgagee who
obtains title to or comes into possession of a Lot pursuant to the remedies provided
in its First Mortgage or by foreclosure of the First Mortgage or by deed or
assignment in lieu of foreclosure, and any purchaser at a foreclosure sale in
connection with any such First Mortgage shall not be liable for the unpaid
assessments of the Lot which were payable prior to the acquisition of title to or
possession of such Lot by the First Mortgagee.
Section S.A. Certain Amendments. In addition to other requirements set
forth herein, unless at least seventy-five percent (75%) (or such higher percentage
as is required by law or this Declaration) of the First Mortgagees of the Lots or
their assigns (based upon one vote for each First Mortgage owned), and at least
seventy-five (75%) (or such higher percentage as is required by law or this
Declaration) of the Owners (other than any sponsor, developer, or builder including
the Declarant) or the Lots (based upon one vote for each Lot owned) have given their
prior written approval, neither the Association nor the Owner shall be entitled to:
(A) terminate the legal status of the project (Except in accordance with
procedures set forth in this Declaration and the By-Laws in the event of
amendment or termination made as a result of destruction, damage or
condemnation);
(B) by act or omission, seek to abandon, petition, subdivide, encumber,
sell or transfer the Common Area; provided, however, that the granting of
easements for public utilities or for other public purposes consistent
with the intended use of the Common Area shall not be deemed such a
transfer;
(C) use hazard insurance proceeds for losses to any Common Area or other
common property for other than the repair, replacement or reconstruction
of such common property;
(D) add or amend any material provisions of this Declaration which
establish, provide for, govern or regulate any of the following:
(1) Voting;
(2) Assessments, assessment liens or subordination of such liens;
(3) Reserves for maintenance, repair and replacement of the Common Area
(or exterior maintenance of Living Units if applicable);
(4) Insurance of Fidelity Bonds;
(5) Rights to use of the Common Area;
(6) Responsibility for maintenance and repair of the several portions of
the project;
(7) Expansion or contraction of the project or the addition, annexation
or withdrawal of property to or from the project;
(8) Boundaries of any Lot;
(9) The interests in the general Common Area;
(10) Convertibility of Lots into Common Area or of Common Area into Lots;
(11) Leasing of Lots or Living Units;
(12) Imposition of any right of first refusal or similar restriction on
the right of an Owner to sell, transfer, or otherwise convey his or
her Lot or Living Unit;
(13) Any provisions which are for the express benefit of First Mortgage
holders, eligible mortgage holders or eligible insurers or guarantors
of First Mortgages on Lots,
except in accordance with procedures set forth in this Declaration and the
By-Laws in the event of amendment or termination made as a result of
destruction, damage or condemnation or with respect to a reallocation of
interests in the Common Areas which might occur pursuant to any plan of
expansion or phased development contained in this Declaration;
(E) By act or omission change, waive or abandon any scheme of
regulations, or enforcement thereof, pertaining to the architectural
design or the exterior appearance of Living Units.
For purposes of this section, an addition or amendment to such documents shall
not be considered material if it is made (I) for the purpose of correcting clerical,
typographical or technical errors, (II) for clarification only, (III) 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, or any other governmental agency or any other public,
quasi-public or private entity which performs (or may in the future perform)
functions similar to those currently performed by such entities, (IV) to induce any
of the agencies or entities mentioned or referred to in subsection III hereinabove
to make, purchase, sell, insure or guarantee First Mortgages covering Lots and
Living Units, or (V) to bring such documents into compliance with any statutory
requirements, and any such addition or amendment to such documents which is so
considered not to be material may be made by Declarant acting alone and without the
consent, approval or joinder of the Owners, the Association, any First Mortgagees,
any other mortgagees or any other person.
An eligible mortgage holder who receives a written request to approve additions
or amendments who does not deliver or mail to the requesting party a negative
response within 30 days shall be deemed to have approved such request.
Section S.B. FHA/VA Approval. As long as there is a Class B Membership,
the following actions will require the prior approval of the Federal Housing
Administration or the Veterans Administration if, at the time such actions are
taken, the Federal Housing Administration or the Veterans Administration is then the
Owner of a Lot, an eligible mortgage holder or an eligible insurer or guarantor:
(A) dedication to the public or to or for any public use or purpose of
any part of the Common Area; provided, however, that such approval is not
and shall not be required for the granting of easements to utility
companies, public or private, for the installation, maintenance repair,
replacement and servicing of equipment and facilities necessary to provide
all utility services to the Property; and
(B) amendment of this Declaration; provided however, that such approval
is not and shall not be required for any amendment or supplement to this
Declaration made by Declarant or the owners of the Conveyed Lots for any
purposes set forth in Subparagraphs (I) through (V), inclusive, of Section
5.A. hereinabove.
Section 6. Examination of Books and Records. First Mortgagees and
holders, insurers and guarantors of First Mortgages shall have the right to examine
the books and records of the Association, as set forth more fully in the By-Laws.
Section 7. Payment of Taxes and Insurance. First Mortgagees may, jointly
or singly, pay taxes or other charges which are in default and which may or have
become a charge against any Common Area or other common property and may pay overdue
premiums on hazard insurance policies or secure new hazard insurance coverage on the
lapse of a policy for the Common Area or other common property, and First Mortgagees
making such payments shall be owed immediate reimbursement therefore from the
Association.
Section 8. Designation of Representative. Any holder of a First Mortgage
on a Lot or Living Unit may designate a representative to attend meetings of
members, but no such representative shall have any voting privileges unless such
• . .
voting privileges have been granted to the holder of such First Mortgage by the
Owner of the Lot involved.
Section 9. Distribution of Insurance Proceeds and Condemnation Awards. No
provision of this Declaration or the By-Laws shall be construed as giving to the
Owner or to any other party priority over any rights of First Mortgagees of Lots
pursuant to their First Mortgages in the case of a distribution to Owners of
insurance proceeds or condemnation awards for losses to or a taking of Common Area
or other common property.
ARTICLE XI
INSURANCE
Section 1. Maintenance of Insurance. Commencing not later than the time
of the first conveyance of a Lot to an Owner other than Declarant, the Association
shall maintain, to the extent reasonably available, the following insurance, all of
which shall be issued by insurance carriers meeting at least the minimum
requirements of, and shall otherwise comply with the requirements of, the agencies
and entities mentioned or referred to herein, to-wit:
(A) Master or blanket type of policy of fire insurance with extended
coverage endorsement (including vandalism, sprinkler leakage (if
appropriate), debris removal, cost of demolition, malicious mischief,
windstorm and water damage) insuring the Common Area (including all of the
fixtures installed therein). Said policy shall afford, as a minimum,
protection against the following:
(1) loss or damage by fire and other perils normally covered by the
standard extended coverage endorsement;
(2) all other perils which are customarily covered with respect to
projects similar in construction, location and use, including all
perils normally covered by the standard "all risk" endorsement, where
such is available. The name of the insured under such policies must
be set fort therein substantially as follows:
"The Villages at Pebblebrook Homeowners Association, Inc. for the use
and benefit of the individual Owners".
The policies may also be issued in the name of an authorized
representative of the Association, including any Insurance Trustee
with whom the Association has entered into an Insurance Trust
Agreement, or any successor to such trustee, for the use and benefit
of the individual Owners. Loss payable shall be in favor of the
Association (or Insurance Trustee), as a trustee for each Owner and
each such Owner's First Mortgagee. Each Owner and each such Owner's
First Mortgagee, if any, shall be beneficiaries of the policy with
respect to the Common Area equally with each other Lot. Policies
must provide for the recognition of any Insurance Trust Agreement.
If reasonably available, such policies shall include:
(1) Agreed Amount Endorsement (or like endorsement);
(2) Inflation Guard Endorsement;
(3) Construction Code Endorsements (such as a Demolition Cost
Endorsement, a Contingent Liability from Operation of Building Laws
Endorsement and an Increased Cost of Construction Endorsement) if the
project is subject to a construction code provision which would
become operative an require changes to undamaged portions of the
improvements, thereby imposing significant posts in the event of
partial destruction of the project by an insured peril;
(4) Steam Boiler Coverage (if applicable) for loss or damage resulting
from steam boiler equipment accidents in an amount not less than
$50,000 per accident per location; and
(5) All such policies must provide for the following: recognition of
any Insurance Trust Agreement; a waiver of the right of subrogation
against Owners individually; that the insurance is not prejudiced by
any act or neglect of individual Owners which is not in the control
of such Owners collectively; and that the policy is primary in the
event the Owner has other insurance covering the same loss.
(B) Workmen's compensation, occupational disease and like insurance (if
the Association has eligible employees);
(C) Comprehensive public liability insurance in such amounts and with
such coverage as the Board of Directors shall from time to time determine,
but at least:
(1) covering events occurring anywhere on the Common Area (and public
and private ways) or arising out of or in connection with the use,
ownership or maintenance of the Common Area;
(2) covering without limitation, legal liability of the insureds for
property damage, bodily injuries and deaths of persons in connection
with the operation, maintenance or use of the Common Area, and legal
liability arising out of lawsuits related to employment contracts of
the Association, and such other coverages as are customarily covered
with respect to projects similar in construction, location, and use;
(3) insuring each officer and member of the Board of Directors, the
managing agent and each Owner and with cross liability endorsement to
cover liabilities of the Owners as a group to an Owner and with a
"Severability of Interest Endorsement" which would preclude the
insurer from denying the claim of an Owner for the negligent act of
another Owner, occupant or the Association; and
(4) in amounts generally required by private institutional mortgage
investors for projects similar in construction, location and use.
(However, such coverage shall be for at least $1,000,000 for bodily
injury, including deaths of persons and property damage arising out
of a single occurrence.)
(D) Such other insurance as the Board of Directors may determine.
(E) All such policies must provide that they may not be cancelled or
substantially modified by any party without at least 10 days' prior
written notice to the Association and to each holder of a First Mortgage
which is listed as a scheduled holder of a First Mortgage in the insurance
policy.
Section 2. Owners'Individual Policies. Each Owner should carry, and
shall be responsible for carrying, insurance for his own benefit insuring his
personal liability, his Lot, his Living Unit, and other personal property, and
fixtures, furniture, furnishings, and other personal property, and fixtures and
other property supplied or installed by him or a previous Owner or tenant.
Section 3. Insurance Trustee. Notwithstanding any of the foregoing
provisions and requirements relating to property or liability insurance, there may
be names as an insured, on behalf of the Association, the Association's authorized
representative, including any trustee with whom the Association may enter into any
Insurance Trust Agreement or any successor to such trustee (each of whom shall be
referred to herein as the "Insurance Trustee"), who shall have exclusive authority
to negotiate losses under any policy providing such property or liability insurance.
Any Insurance Trustee must be a corporation or association organized or authorized
to do business under the laws of the State of Indiana, and authorized and permitted
by its charter documents and by state law to conduct a trust business.
Section 4. Insurance Premiums. Insurance premiums for any blanket
property insurance coverage, and the other insurance coverages purchased by the
Association, shall be common expenses to be paid by assessments levied by the
Association, and such assessments shall be held in a separate escrow account of the
Association and used solely for the payment of the blanket property insurance
premiums and other insurance premiums as such premiums become due.
ARTICLE XII
EMINENT DOMAIN
Section 1. The Association shall represent the Owners in any condemnation
proceedings and in any negotiations, settlements and agreements with the condemning
authority for acquisition of the Common Area, or part thereof, and by acceptance of
a deed for his, her or its Lot, each Owner appoints the Association as such Owner's
agent and attorney-in-fact for such purposes. In the event of a taking or
acquisition of part or all of the Common Area by a condemning authority, the award
or proceeds of settlement shall be payable to the Association, or other trustee
(such as a bank or title insurance company appointed as such by the Association),
for the use and benefit of the Owners and their Mortgagees as their interests may
appear.
Section 2. Reconstruction. In the event of a partial taking of the Common
Area (or conveyance in lieu thereof) the Association shall promptly cause the
remaining portions of the Common Area to be restored functionally and aesthetically
to reasonably the same condition as before the taking, using so much of the proceeds
of such taking for such purpose as shall be reasonably necessary. In the event of a
total taking of the Common Area (or conveyance in lieu thereof), and the project is
terminated by the election hereinabove required, the proceeds shall be allocated
equally among each Lot, payable jointly to the Owners and mortgage holders thereof.
ARTICLE XIII
GENERAL PROVISIONS
Section 1. Enforcement. Enforcement of these covenants and restrictions
and of the provisions contained in the Articles of Incorporation and By-Laws of the
Association may be by any proceeding at law or inequity instituted by the
Association or by any Owner against any person (including the Association) violating
or attempting to violate any covenant or restriction, either to restrain violation,
to compel compliance, or to recover damages, and against the land, to enforce any
lien created by these covenants; and failure by the Association or by any Owner to
enforce any covenant or restriction herein contained shall in no event be deemed a
waiver of the right to do so thereafter. Attorneys' fees and costs of any such
actions to restrain violation or to recover damages as determined by the court shall
be assessable against and payable by any persons violating the terms contained
herein.
Section 2. Mergers. Upon a merger or consolidation of the Association
with another corporation as provided in its Articles and By-Laws, its properties,
rights and obligations may, by operation of law, be transferred to another surviving
or consolidated association or corporation, or, alternatively, the properties,
rights and obligations of another corporation may, by operation of law, be added to
the properties, rights, and obligations of the Association as a surviving
corporation pursuant to a merger. The surviving or consolidated corporation may
administer the covenants and restrictions established upon any other properties as
one scheme. No such merger or consolidation, however, shall effect any revocation,
change or additions to the covenants established by this Declaration within the
Property, except as hereinabove provided.
Section 3. Severability. Invalidation of any one or more of these
covenants or restrictions by legislation, judgment or court order shall in no way
affect any other provisions which shall remain in full force and effect.
Section 4. Notices. Any notice required to be sent to any Member of the
Association under the provisions of this Declaration shall be deemed to have been
properly sent when mailed, postage prepaid, to the last known address of such Member
appearing on the records of the Association at the time of such mailing.
Section 5. Captions. The Article and Section headings herein are intended
for convenience of reference only and shall not be given any substantive effect.
Section 6. Construction. In the event of an apparent conflict between
this Declaration and the By-Laws, the provisions of this Declaration shall govern.
ARTICLE XIV
AMENDMENT
Except as hereinafter provided, this Declaration may be amended during the
initial term provided above by an instrument signed by not less than ninety percent
(90%) of the Owners and thereafter by an instrument signed by not less than
seventy-five (75%) of the Owners. Certain amendments also require additional
approval as specified in this Declaration.
The foregoing notwithstanding, none of the rights or duties of Declarant or
Developer reserved or set out hereunder may be amended or changed without
Declarant's prior written approval as the case may be so long as Declarant owns a
Lot or Lots. The foregoing not withstanding, this Declaration may also be amended
by Declarant at any time prior to the Applicable Date, if it has an ownership
interest in the Property.
IN WITNESS WHEREOF, C.P. Morgan Co., Inc. and Estridge Development Co., Inc.
have caused this document to be executed as of the day and year first above written.
DECLARANT:
C.P. MORGAN CO., INC.
BY:
ESTRIDGE DEVELOPMENT CO., INC.
BY:
STATE OF INDIANA )
)SS:
COUNTY OF HAMILTON )
Before me, a Notary Public in and for said County and State, personally
appeared , the of C.P. Morgan Co., Inc., and
acknowledged the execution of the foregoing.
WITNESS my hand and Notary Seal this day of September, 1992.
Notary Public
My Commission Expires:
Printed
Residing in County
•
STATE OF INDIANA )
)SS:
COUNTY OF HAMILTON )
Before me, a Notary Public in and for said County and State, personally
appeared , the of Estridge Development Co.,
Inc., and acknowledged the execution of the foregoing.
WITNESS my hand and Notary Seal this day of September, 1992.
Notary Public
My Commission Expires:
Printed
Residing in County
This Instrument Prepared By:
James J. Nelson
NELSON & FRANKENBERGER
3021 E. 98th St., Suite 220
Indianapolis, IN 46280
(317)844-0106