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HomeMy WebLinkAboutTownhome Declaration Cross References: DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR FLORA ON SPRING MILL This DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR FLORA ON SPRING MILL(the “Declaration”) is made this _____ day of _______________, 2023, by OE FLORA, LLC, an Indiana limited liability company (the “Declarant”). RECITALS: A. Declarant, whose principal office and place of business is located at 1828 Central Avenue, Suite 100, Indianapolis, Indiana 46202, is the sole owner of the fee simple title to certain real estate located in Hamilton County, Indiana and more particularly described in Exhibit A attached hereto and by reference made a part hereof (the “Real Estate”), by virtue of General Warranty Deeds dated May 24, 2023, and recorded on __________ ____, 2023, as Instrument No.______________, , and a Quitclaim Deed dated April 21, 2022, and recorded on April 28, 2022, as Instrument No. 2022021432, recorded in the Office of the Recorder of Hamilton County, Indiana. B. A general site plan depicting the Development (as hereinafter defined) is set forth in Exhibit B attached hereto and by reference made a part hereof (the “Site Plan”). C. The buildings, improvements and appurtenances on the Real Estate as shown and depicted on the Site Plan shall be known as Flora on Spring Mill (the “Development”). D. The buildings to be constructed in the Development shall each contain one (1) or more living units with attached garages, as depicted on the Site Plan (each a “Unit”). The area upon which each Unit is located, including all sidewalks, stoops, yards (if any), decks, gardens, and garages located thereon, shall be known as a “Lot”, and each Lot is established by that certain plat of [Flora on Spring Mill Secondary Plat] recorded in the Office of the Recorder of Hamilton County, Indiana as Instrument No. __________________ (the “Plat”). E. Declarant, by execution of this Declaration, does hereby create, submit, declare, and subject the Real Estate, the Development and the Lots to certain easements, restrictions, covenants, conditions and charges as hereinafter set forth. NOW THEREFORE, in consideration of the foregoing and of the covenants herein contained, Declarant declares that the Real Estate and the Lots in the Development shall be held, transferred, sold, conveyed, leased and occupied subject to the covenants, conditions, restrictions, easements, charges and liens set forth in this Declaration, as follows: 1. Definitions. The following terms, as used in this Declaration, unless the context clearly requires otherwise, shall mean the following: 2 (a) “Act” means the Homeowners’ Association Law of the State of Indiana, Indiana Code §32-25.5-1 et. seq., as such Act may be amended. The Act is incorporated herein by reference. (b) “Applicable Date” means the date determined pursuant to Section 4.02 of the Bylaws. (c) “Articles” or “Articles of Incorporation” means the Articles of Incorporation of the Association, as hereinafter defined. The Articles of Incorporation are incorporated herein by reference. (d) “Association” means the “Flora on Spring Mill Homeowners Association, Inc.,” an Indiana not-for-profit corporation more particularly described in Paragraph 5 of this Declaration. (e) “Board” or “Board of Directors” means the governing body of the Association, being the Initial Board of Directors referred to in the Bylaws or subsequent Board of Directors elected by the Owners in accordance with the Bylaws. The terms “Board” and “Board of Directors”, as used in this Declaration and in the Bylaws, shall be synonymous with the term “board of directors” as used in the Act. (f) “Building” or “Buildings” means the structure(s) which the Declarant may construct upon the Real Estate which contain two (2) or more connected Units or two or more connected garages. The Buildings which may be constructed are more particularly identified on the Site Plan attached at Exhibit B of this Declaration. (g) “Bylaws” means the Bylaws of the Association providing for the administration and management of the Property as required by and in conformity with the provisions of the Act. A true and accurate copy of the Bylaws is attached to this Declaration as Exhibit C and incorporated herein by this reference. (h) “Common Areas” shall have the meaning set forth in Paragraph 3 of this Declaration. (i) “Common Expenses” means all sums and expenses of administration of the Association and expenses for the upkeep, operation, maintenance, repair and replacement of the Common Areas and all sums lawfully assessed against the Owners by the Association or as declared by the Act, this Declaration, or the Bylaws. Unless otherwise provided herein or otherwise determined by Declarant or the Association (as applicable) in accordance with this Declaration, Common Expenses shall be paid by Owners as a part of the General Maintenance Assessment. (j) “Declarant” shall mean and refer to OE Flora, LLC, an Indiana limited liability company, and any successors and assigns whom such limited liability company designates in one or more written recorded instruments to have the rights of Declarant under this Declaration, including, but not limited to, any mortgagee acquiring title to all or any portion of the Property pursuant to the exercise of rights under, or foreclosure of, a 3 mortgage executed by Declarant. A mortgagee acquiring title by virtue of foreclosure against the Declarant does not assume the prior obligations or liabilities of the Declarant. (k) “Declaration” shall mean this Townhome Declaration of Covenants, Conditions and Restrictions for Flora on Spring Mill. (l) “Development” shall have the meaning set forth in the Recitals. (m) “Exterior Maintenance Obligations” shall mean those obligations of the Association specified in Paragraph 6(c). (n) “General Maintenance Assessment” shall have the meaning set forth in the Bylaws. (o) “Insurance Trustee” means any bank, with trust powers, authorized to do business in Hamilton County, Indiana which may be designated by the Board of Directors for the custody and disposition, as herein or in the Bylaws provided, of insurance proceeds and condemnation awards. (p) “Lot Maintenance Obligations” shall mean those obligations of the Association specified in Paragraph 6(b). (q) “Lot” shall have the meaning set forth in the Recitals. (r) “Majority of Mortgagees” means those Mortgagees with first mortgages on at least fifty-one percent (51%) of the total Lots. (s) “Majority of Owners” means the Owners entitled to cast as least fifty-one percent (51%) of the total votes of all Owners, with each Owner entitled to cast one vote per Lot. (t) “Managing Agent” means a property management agent employed by the Association or Declarant pursuant to Section 3.06 of the Bylaws. (u) “Member” means a member of the Association. (v) “Mortgaged Lot” means a Lot that is subject to the lien of a mortgage held, insured or guaranteed by a Mortgagee. (w) “Mortgagee” means the holder of a first mortgage lien on a Lot. (x) “Owner” means a person, firm, corporation, partnership, association, trust, or other legal entity or any combination thereof who owns the fee simple title to a Lot. (y) “Owners” means the owners of all the Lots. (z) “Party Wall” shall have the meaning set forth in Section 9(a). 4 (aa) “Person” means an individual, firm, corporation, partnership, associate, trust, limited liability company, or other legal entity, or any combination thereof. (bb) “Plans” shall have the meaning set forth in Section 9(d). (cc) “Plat” shall have the meaning set forth in the Recitals. (dd) “Property” means the Real Estate and the appurtenant easements, along with the Units, the Buildings, garages, improvements, appurtenances, and property of every kind and nature whatsoever, real, personal, and mixed, located upon the Real Estate and used in connection with the operation, use, and enjoyment of Flora on Spring Mill, but expressly does not include the personal property of the Owners or their tenants. (ee) “Real Estate” shall have the meaning set forth in the Recitals. (ff) “Single Family Home(s)” means any unattached structure for single family occupancy, consisting of a single Unit, constructed on the Real Estate, together with the individual Lot conveyed therewith and upon which the Unit is located. (gg) “Single Family Lot” means any Lot upon which a Unit that is a Single Family Home is located. (hh) “Site Plan” shall have the meaning set forth in the Recitals. (ii) “Special Maintenance Assessment” shall have the meaning set forth in the Bylaws. (jj) “Supplemental Declaration” means any supplement or amendment to this Declaration that may be recorded by Declarant and that extends the provisions of this Declaration to any part of the Real Estate and contains such complementary or supplementary provisions for such part of the Property as are required or permitted by the Act or this Declaration, as amended or supplemented. (kk) “Townhome” means any structure of two or more stories for single family occupancy, connected to one or more similar structures, all constructed on the Real Estate, together with the individual Lot conveyed therewith and upon which located. (ll) “Unit” shall have the meaning set forth in the Recitals and shall include each Townhome and Single Family Home. 2. Townhomes (a) Description of Buildings and Lots. There will be _________ (___) Buildings of _______ (___) stories in height, and _________ (___) Single Family Homes, containing a total of ____________ (____) Units on the Real Estate, and as shown on Exhibit B. Declarant shall be permitted to construct and sell Lots on a continuing basis without any requirement to construct any future Building or Buildings except as 5 determined in Declarant’s sole and absolute discretion. Each Unit is identified by an individual address. (b) Real Estate Taxes. Real estate taxes are to be separately assessed and taxed to each Unit. In the event that for any year real estate taxes are not separately assessed and taxed to each Unit, but are assessed and taxed on the Property as a whole, then each Owner shall pay the Owner’s proportionate share of such taxes to the extent attributable to the Property as a part of the General Maintenance Assessment. (c) Utilities. Each Owner shall pay for the Owner’s own utilities which are separately metered. Utilities which are not separately metered shall be treated as and paid as part of the Common Expenses, unless otherwise agreed by a Majority of Owners. 3. Common Areas and Facilities. “Common Areas” shall include but are not to be limited to the following areas of that are subject to this Declaration from time to time: (a) The Property (excluding the Lots and any land where current Buildings exist or future Buildings may be constructed); (b) All landscaping islands, sidewalks and parking areas, except to the extent the same are otherwise classified and defined herein as part of the Lots; (c) All facilities providing central electricity, gas, water supply systems, and sanitary sewer or septic systems and mains serving the Buildings; (d) Pipes, ducts, electrical wiring and conduits and public utilities lines which serve more than one Unit; (e) All streets, interior access drives and other areas designated as Common Area on the Plat; (f) All facilities and appurtenances located outside of the boundary lines of the Lots, except those areas and facilities expressly classified and defined herein as part of the Lot; (g) All real and personal property now or hereafter owned or leased by the Association pursuant to its authority under this Declaration and the Bylaws; and (h) Any other portions of the Property necessary or convenient to its existence, maintenance and safety or normally in common use, except to the extent specifically included within the boundaries of the Lots. Each Owner of a Lot may use the Common Areas in accordance with the Bylaws, Rules and Regulations and for the purpose for which they were intended without hindering or encroaching upon the lawful rights of the other Lot Owners. In the event the Common Areas are damaged or destroyed by an Owner or any Owner’s guests, tenants, licensees, agents, or family members, such Owner authorizes the Association to repair said damaged area and the Association shall repair said damaged area in a good workmanlike manner in conformance with the original 6 plans and specifications of the area involved, or as the area may have been modified or altered subsequently by the Association in the discretion of the Association. An amount equal to the costs incurred to effect such repairs shall be assessed against such Owner and shall constitute a lien upon the Lot of said Owner. 4. Ownership of Common Areas; Inspection of Common Areas. (a) Declarant may, but is not obligated to, retain the legal title to the Common Areas until the Applicable Date; provided, however, that the Declarant hereby covenants that it shall convey the Common Areas to the Association prior to or on the Applicable Date by quitclaim deed. Unless expressly stated in a recorded instrument, the Common Areas shall remain private. Neither Declarant’s execution or recording of an instrument portraying the Common Areas, nor the doing of any other act by Declarant is, or is intended to be, or shall be construed as, a dedication to the public of the Common Area. Declarant or the Association may, however, dedicate or transfer all or any part of the Common Areas to the City of Indianapolis for use as public rights - of-way or to a public utility for public utility purposes. (b) Prior to the Applicable Date, Declarant shall arrange for an inspection (the “Common Improvement Inspection”) of all Common Areas and improvements not located on an individual Lot and subject to maintenance by the Declarant and/or Association pursuant to Section 6 hereof, including but not limited to street trees. The Common Improvement Inspection shall be conducted and a report delivered to the Carmel Department of Community Services (or such other department as the City of Carmel may designate), in accordance with Section 7.20D of the City of Carmel Unified Development Ordinance. 5. Townhome Owners’ Association. Subject to the rights of the Declarant reserved in the Declaration and Bylaws and the obligations of the Owners, the Association shall be established for the purpose of: (i) assessing, collecting and expending General Maintenance Assessments and Special Maintenance Assessments; (ii) fulfilling the Lot Maintenance Obligations and the Exterior Maintenance Obligation; and (iii) performing such other management and administrative tasks as may be required in connection with the Common Areas and the Development. Each Owner of a Lot shall, automatically upon becoming an Owner of a Lot, be and become a Member of the Association and shall remain a Member until such time as his ownership ceases, but membership shall terminate when such person ceases to be an Owner and will automatically be transferred to the new Owner. The Association shall elect a Board of Directors annually (except for the Initial Board of Directors described in the Bylaws) in accordance with and as prescribed by the Bylaws. Each Owner shall be entitled to cast one (1) vote for the election of the Board of Directors, except for such Initial Board of Directors who shall serve for the period provided in the Bylaws. Each person serving on the Initial Board of Directors, whether as an original member thereof or as a member thereof appointed by Declarant to fill a vacancy, shall be deemed a Member of the Association and an Owner solely for the purpose of qualifying to act as a member of the Board of Directors and for no other purpose. No such person serving on the Initial Board of Directors shall be deemed or considered a Member of the Association nor an Owner of a Lot for any other purpose (unless he is actually an Owner of a Lot and thereby a Member of the Association). 7 Notwithstanding anything herein or in the Bylaws to the contrary, prior to the Applicable Date, the Declarant shall not enter into any contractual obligation on behalf of the Association that extends more than one (1) year after the Applicable Date. 6. Maintenance, Repairs and Replacement. (a) Maintenance by Owners. Subject to the Association’s Lot Maintenance Obligations and Exterior Maintenance Obligations under Paragraphs 6(b) and 6(c), respectively, each Owner shall at its own expense, be responsible for the maintenance, repair, landscaping, decoration and replacement of its own Lot and all equipment serving the same, except as may otherwise be provided herein. Each Owner shall promptly perform such maintenance, repair and replacement within the Lot which, if neglected, might adversely affect the Property. In the event that the maintenance, repair or replacement of any Lot or Unit is reasonably necessary, in the discretion of the Association, to protect the Common Areas, or to preserve the appearance or value of the Property, or is otherwise in the interest of the general welfare of the Owners, the Board shall have the power to undertake such maintenance, repair or replacement, but no such maintenance, repair or replacement shall be undertaken without a resolution by the Board and reasonable written notice to the Owner of the affected Lot. The cost of any such maintenance, repair or replacement shall be assessed against the Lot on which such maintenance, repair or replacement is made and when so assessed a statement for the amount thereof shall be rendered promptly to the then Owner of the Lot at which time the assessment shall become due and payable and a continuing lien and obligation of said Owner in all respects as provided in Article VIII of the Bylaws. (b) Lot Maintenance Obligations. Subject to the receipt of General Maintenance Assessments, the Association shall provide, subject to reasonableness, and shall pay for, the following landscape maintenance and other services with respect to a Lot, but only after a Unit has been substantially completed thereon and the Lot has been fully landscaped: (1) Periodically, mow and trim grass (if any) located on the Lot; (2) Generally remove (in the fall, at its reasonable discretion after most, if not all, have fallen) leaves from the Lot; (3) Generally remove, within a reasonable period of time taking into account weather conditions, snow which accumulates in excess of two inches (2”) from the public sidewalk adjacent to a Lot, from the driveway, and from the walkways that extend from the public sidewalk or alley to the front or rear porch or deck of each Unit on a Lot (including each Single Family Lot); (4) Once each year: (i) mulch and edge the planting beds located on the Lot; and, (ii) trim and edge along streets, sidewalks, and driveways; and 8 (5) For all Townhome Units, but specifically excluding all Single Family Homes, provide for: (i) simple startup and shutdown of any irrigation system located on each Lot in the spring and fall of the year, the repair and replacement of which shall otherwise be the responsibility of the Unit Owners of connected Units in the same Building; provided, however, any irrigation system located on a Single Family Lot shall be maintained by Owner and the Association shall have no responsibilities or obligations related thereto; (ii) pruning of shrubs as needed, but no more than two (2) times each year; (iii) weeding of plant mulch beds as reasonably required; and, (iv) lawn fertilization three (3) times each year and lawn weed control as reasonably required. For avoidance of doubt, any irrigation system located on a Single Family Lot shall be the sole responsibility, cost, and expense of each Single Family Home and Single Family Lot Owner. The limited Lot Maintenance Obligations of the Association applicable to Single Family Homes as provided in this Section 6(b) are hereinafter sometimes referred to as “Limited Lot Maintenance Obligations”. (c) Exterior Maintenance Obligations. Subject to the receipt of General Maintenance Assessments, the Association shall provide, subject to reasonableness, and shall pay for, the following exterior maintenance with respect to, and only with respect to, a Townhome constructed on a Lot, and only following substantial completion of construction and of related improvements thereon: (1) Periodic painting and power washing of exterior doors and siding, exterior trim, decks, railings, gates and fences comprising original improvements constructed upon a Lot (or approved replacements); (2) Minor, non-structural repairs to exterior trim boards, exterior siding, facades, railings, gates, decks and fences comprising a part of original improvements constructed upon a Lot (or approved replacements); (3) Maintenance of (including bulb replacement) exterior free-standing lighting fixtures and exterior lighting fixtures (including flood lights) which are building mounted as a part of original construction (or approved replacements); and (4) Any roof repairs or replacement for a Building Exterior Maintenance Obligations shall in no event include: (i) touch-up of painted surfaces between periodic repainting; (ii) door or window locks; (iii) windows or window sashes (including glass cleaning or replacement); (iv) replacement or cleaning of glass in doors; (v) any structural repairs or replacements not expressly set forth as an obligation of the Association herein, which shall be the collective responsibility of the Unit Owners of connected Units in the same Building; or (vi) any repairs or replacements covered by insurance, or by Paragraph 9 of this Declaration. Repairs or maintenance necessitated by a Lot Owner's own negligence, misuse or neglect may be assessed by the Association against the offending Lot Owner. When so assessed, a statement for the amount thereof shall be rendered promptly to the then Owner of the Lot at which time the Assessment shall become due and payable and a continuing lien and obligation of said Owner in all respects 9 as provided in Article VIII of the Bylaws. For avoidance of doubt, in no event shall the Association be responsible for any exterior maintenance of any Single Family Home. All exterior and structural repair and maintenance for Single Family Homes shall be managed by the Owner at such Owner’s sole cost and expense. (d) Common Areas. Except as otherwise provided herein, all maintenance, repairs and replacements to the Common Areas (except as otherwise provided in this Declaration, a Supplemental Declaration, or the Bylaws) shall be furnished by the Association as part of the Common Expenses. Each Owner shall at its own expense, be responsible for the maintenance, repair and replacement of the Common Areas where such repair is the result of willful or negligent misuse by the Owner of its Lot or the Common Areas; at the option of the Board, the Association shall be entitled to control and coordinate such maintenance, repairs and replacement or to undertake the same on the Owner’s behalf. In the discretion of the Board, to protect the Common Areas, or to preserve the appearance or value of the Property, or as otherwise may be in the interest of the general welfare of the Owners, the Board shall have the power to undertake such maintenance or repair and the cost of any such maintenance or repair together with a reasonable service charge shall be assessed against the Lot which is the cause of the need for repairs and, when so assessed, a statement for the amount thereof shall be rendered promptly to the then Owner of the Lot at which time the Assessment shall become due and payable and a continuing lien and obligation of said Owner in all respects as provided in Article VIII of the Bylaws in the event: (i) the Board elects to undertake such maintenance, repairs or replacements on behalf of such Owner; (ii) such maintenance, repairs or replacements are carried out by Owner as the result of willful or negligent misuse by the Owner but such repairs are not carried out to a good and workmanlike standard to the reasonable satisfaction of the Association, or (iii) Owner fails in such circumstances to carry out repairs for which Owner is responsible. The Board of Directors may adopt rules and regulations concerning maintenance, repairs, use and enjoyment of the Common Areas. (e) Owner Cooperation Required. Each Lot Owner shall cooperate with the Association as and when needed so that the Lot Maintenance Obligations and Exterior Maintenance Obligations can be discharged safely and without any obstructions or interference which causes delays and/or increased costs. As a part of the foregoing (and without limiting the generality thereof) a Lot Owner shall not permit pets, children or activities of any kind in areas where Lot Maintenance Obligations and/or Exterior Maintenance Obligations are scheduled and/or underway, and shall not place lawn furniture, statuary ornaments or other obstructions which inhibit lawn mowing or leaf collection through the use of mechanized equipment. If obstructions or interference exist, the Association shall have the right, at its sole option, to either: (i) suspend performance of any further Lot Maintenance Obligations or Exterior Maintenance Obligations until removed and without relieving a Lot Owner from the continuing obligation to pay General Maintenance and other assessments as and when due; or (ii) proceed and assess the increase in cost for payment, and when so assessed a statement for the amount thereof shall be rendered promptly to the then Owner of the Lot at which time the Assessment shall become due and payable and a continuing lien and obligation of said Owner in all respects as provided in Article VIII of the Bylaws. 10 (f) Right of Access and Entry. Declarant hereby reserves in favor of the Association and the Managing Agent a permanent, non-exclusive easement over, across, upon, along, in and through the Property (inclusive of all Lots) for purposes of performing the maintenance, repair and replacement contemplated by this Paragraph 6. Such maintenance and repair shall be performed at reasonable times and upon reasonable prior notice to the affected Owners (except in cases of emergency in which event no notice shall be required). 7. Alterations, Additions and Improvements. Except as may be otherwise provided in this Declaration or the Bylaws, no Owner shall without the prior written approval of the Board of Directors make any material alterations or additions (a) to any Common Areas; (b) to the exterior of Owner’s respective Unit or garage; or (c) to the interior of the Owner’s Unit, if such interior alteration would affect the safety or structural integrity of the Building in which the Unit is located. In addition to the foregoing, each Owner of a Single Family Home and Single Family Lot shall be required to obtain written approval from the Board of Directors in connection with the installation of any fence located on a Single Family Lot (except a fence installed by Declarant or Decla rant’s contractors in connection with initial construction of the Single Family Home). If approved, all fences shall be constructed of black wrought iron and shall have a gate for mower access to permit the Association to maintain the Lot as described in Section 6 above. 8. Assessments (a) General Maintenance Assessment. In order to provide money to fund the Lot Maintenance Obligations and Exterior Maintenance Obligations, establish a reserve fund, and provide for the operation of the Association, each Owner of a Unit shall also be assessed and shall pay General Maintenance Assessments in accordance with Article VIII of the Bylaws. Notwithstanding the foregoing, the General Maintenance Assessment allocable to each Single Family Home shall include only the portion of costs and expenses related to the Limited Lot Maintenance Obligations (rather than all Lot Maintenance Obligations) and shall exclude costs and expenses related to Exterior Maintenance Obligations. (b) Special Assessments. In addition to the General Maintenance Assessment authorized above, the Board may levy a Special Assessment against Lots in any calendar year 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 any capital improvement which the Association is required to maintain, or to recover any operating deficits which the Association may from time to time incur, provided that any such assessment shall comply with and have the approval of Owners as provided in Article VIII of the Bylaws. (c) Creation of the Lien. Declarant for each Lot and each Unit located thereon, hereby covenants, and each owner of any Lot by acceptance of a deed thereto, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association: (i) General Maintenance Assessments; (ii) Special Assessments; and (iii) other amounts assessable as provided for herein and in the Bylaws; such assessments to be established and collected as provided in the Bylaws. All such assessments, together with interest, costs, and reasonable attorney’s fees, shall be a charge on the Lot and shall be a 11 continuing lien upon each Lot. Each such assessment, together with interest, costs, and reasonable attorney’s fees, shall also be the personal obligation of the person who was the Owner of a Townhome at the time when the assessment fell due. The personal obligation for delinquent assessments shall not pass to his successors in title unless expressly assumed by them. 9. Party Walls (a) Generally. Each wall which is built as a part of the original construction of a grouping of connected Units in a Building and placed on the dividing line between individual Lots into which subdivided shall constitute a party wall (“Party Wall”), and, to the extent not inconsistent with the provisions of this Paragraph, the general rules of Indiana law regarding party walls and liability for property damage due to negligence or willful acts or omissions shall apply thereto. (b) Sharing of Repair and Maintenance. The cost of routine repair and maintenance of a Party Wall shall be shared equally by the Owners who make use of the Party Wall. If any such Party Wall is damaged or destroyed by fire or other casualty or by some cause other than the act of one of the adjoining Owners, its agents, family, household or guests (including ordinary wear and tear and deterioration from lapse of time), then in such event both such adjoining Owners shall proceed to rebuild or repair the structu ral components of such Party Wall, sharing equally the cost thereof, and each individual Owner shall proceed to rebuild or repair the non-structural components of such Party Wall in proportion of their respective uses of the Party Wall. Any and all such reconstruction and/or repairs shall be completed immediately to the extent that the failure to commence and/or complete such reconstruction and/or repairs would result in an immediate risk to human health and/or safety. All other reconstruction and/or repairs shall commence and proceed to completion as soon as practical, and in any event within ninety (90) days following the casualty or other event that damaged or destroyed such Party Wall, unless a longer period of time is approved by the Board. If the damage is of such a nature that it has resulted, or will (if left uncorrected) result in damage or destruction of a Party Wall, the reconstruction and/or repairs shall commence and proceed to completion as soon as practical, and in any event within one hundred eighty (180) days following initial discovery. Any and all such reconstruction and/or repair shall be made in compliance with all requirements of local governing authorities and otherwise in compliance with all applicable laws to the same or better condition as existed prior to such damage or destruction. (c) Damage Caused by One Owner. If a Party Wall is damaged or destroyed through the act of one or more adjoining Owners, or their respective agents, families, household members or guests (collectively the “Offending Parties”), whether or not such act is intentional, inadvertent, negligent or otherwise, so as to deprive another adjoining Owner of the full use and enjoyment of a Party Wall, then the Owner(s) of the Townhome(s) associated with the Offending Parties, shall forthwith proceed to rebuild and restore the same in the manner and within the time otherwise required under Paragraph 9(c) above, without cost to any adjoining Owner who is not an Offending Party . 12 (d) Other Changes. In addition to meeting the other requirements imposed by this Paragraph 9 and of any building code or similar regulation or ordinance, any Owner proposing to modify, make additions to or rebuild a Unit in any manner which requires the extension of or any other alteration to a Party Wall shall, before proceeding with any work in connection therewith: (i) submit detailed plans of the modifications or additions proposed (the “Plans”) to, and obtain the written approval of, the Association pursuant to the process set forth in the Bylaws; and, (ii) upon receipt of approval from the Association, also obtain the written approval of all adjoining Owners, whose approval shall not be unreasonably withheld. If an adjoining Owner has not responded in writing to a request for approval within thirty (30) days following receipt of a written request (together with the required Plans as approved by the Association), given by registered or certified mail, return receipt requested, the approval thereof shall be deemed given as otherwise required herein. (e) Right to Contribution Runs with Land. The right of any Owner to contribution from any other Owner under this Paragraph 9 shall be appurtenant to the real estate comprising each Lot and shall pass to such Owner's successors in title. (f) Disputes. In the event of a dispute between Owners with respect to the repair or rebuilding of a Party Wall or with respect to the sharing of the cost thereof, then, upon the written request of one or more of such Owners addressed to the Association, the matter shall be submitted to the Board, who shall decide the dispute after notice to all affected Owners, and the opportunity to be heard pursuant to rules adopted and published by the Board. 10. Insurance. The Owners, through the Association, shall purchase a master casualty insurance policy affording fire and extended coverage insurance insuring the Property in an amount consonant with the full replacement value of the improvements which, in whole or in part, comprise the Common Areas. If the Board of Directors can obtain such coverage for reasonable amounts, they shall also obtain “all risk” coverage. The Board of Directors shall be responsible for reviewing at least annually the amount and type of such insurance and shall purchase such additional insurance as is necessary to provide the type of insurance required above. If deemed advisable by the Board of Directors, the Board of Directors 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 be for the benefit of each Owner and, if applicable, the Mortgagee of each Owner upon such terms and conditions as may be established by th e Board of Directors. The proceeds of such policies shall be used or disbursed by the Association or Board of Directors, as appropriate, only in accordance with the provisions of this Declaration. The premiums for all such insurance described above shall be paid by the Association as part of the Common Expenses. Notwithstanding anything to the contrary contained in this Declaration, each and every Owner shall maintain a casualty insurance policy affording fire and extended coverage insurance insuring the Unit and Lot in an amount equal to the full replacement value of the improvements which, in whole or in part, comprise the Unit and Lot, including, without limitation, any Party Wall. Such insurance shall provide for payment of the losses thereunder by the insured to the Association or its nominees, insurance trustee for the benefit of each owner, the holder of each 13 first mortgage of record thereon, and the Association as their interests appear. Proceeds received by the insurance trustee shall be used to repair, reconstruct or rebuild the Units damaged or destroyed by fire or other casualty unless the Unit Owners agr ee not to repair, reconstruct, or rebuild pursuant to Section 11 below. Each Owner of each Lot and/or Unit will furnish to the Association, at or prior to the closing of said Owner’s acquisition of such Lot or Unit, a certificate of insurance, in form and content acceptable to the Association, evidencing the insurance coverage described herein. Each such Owner shall, prior to the expiration of the term of any such insurance policy, procure and deliver to the Association a renewal or replacement policy in form and content acceptable to the Association. If any Owner fails to provide evidence of such coverage satisfactory to the Association, the Association will have the right, but not the obligation, to procure such coverage at the expense of the applicable Owner, and the cost of procuring such insurance will be assessed to that Owner as a Special Assessment and shall be immediately due and payable upon demand. 11. Casualty and Restoration. (a) Obligation to Restore. Except as hereinafter provided, damage to or destruction of any Building due to fire or other casualty or disaster shall be promptly repaired and reconstructed by the Association and the proceeds of insurance, including those received for Unit policies as insurance trustee, if any, shall be applied for that purpose; provided, however, that repair and reconstruction shall not be compulsory in the event of “complete destruction of all of the Buildings” (hereinafter defined) and shall only be done in accordance with the provisions hereinafter set forth. Notwithstanding the foregoing, Owners of Single Family Homes, not the Association, shall be responsible for any repair or reconstruction of a Single Family Home. (b) Complete Destruction. The term “complete destruction of all of the Buildings” means a determination made by a vote of two-thirds (2/3) of all Owners at a special meeting of the Association called for the purpose of making such determination, that complete destruction of all of the Buildings has occurred. A special meeting of the Association shall be called and held within ninety (90) days after any fire or any other casualty or disaster damaging or destroying any of the Buildings for the purpose of making the determination of whether or not there has been a complete destruction of the Building. If such a special meeting is not called and held within such ninety (90) day period, or if such determination by the Owners has not been made within such ninety (90) day period, then it shall be conclusively presumed that the Owners determined that there was not a complete destruction of all of the Buildings, and the Association shall proceed with repair and construction as herein provided. (c) Substantial Damage or Destruction. In the event of substantial damage or destruction of any Unit or any part of the Common Areas, the affected Mortgagee or Mortgagees shall be given timely written notice of such damage or destruction. (d) Insufficient Insurance Proceeds. If the insurance proceeds, if any, received by the Association (whether directly or as insurance trustee) as a result of any such fire or any other casualty or disaster are not adequate to cover the cost of repair and reconstruction, or in the event there are no insurance proceeds, and if the Property is not removed from the 14 Act, the cost for restoring the damage and repairing and reconstructing the Building (or the costs in excess of insurance proceeds received, if any) shall be paid by all of the Owners of the affected Units equally. Any such amounts payable by the Owners shall be assessed as part of the Common Expenses, and shall constitute a lien from time of assessment as provided herein and in the Act. (e) Repair and Reconstruction. For purposes of subparagraphs (a), (b), and (d) above, repair, reconstruction and restoration shall mean construction or rebuilding of the Units to as near as possible the same condition as they existed immediately prior to the damage or destruction and with the same type of architecture. (f) Determination to Repair. If, under subparagraph (b) above, it is determined by the Owners at the special meeting of the Association that there has been a complete destruction of the Building, the Owners shall, at the same special meeting, vote to determine whether or not such complete destruction of the Building shall be repaired and reconstructed. The Building shall not be reconstructed or repaired unless the Owners at said special meeting by a vote of two-thirds (2/3) of all of the Owners determine to repair and reconstruct the Building. If two-thirds (2/3) of all of the Owners decide that the Building is to be rebuilt, reconstructed, and repaired, the insurance proceeds, if any, received by the Association shall be applied and any excess of constructio n costs over insurance proceeds, if any, received by the Association shall be contributed and paid as provided in subparagraphs (a) and (b) above. The action of the Owners or the Board of Directors in proceeding to repair or reconstruct damage shall not constitute a waiver of any rights against any Owner for committing willful or malicious damage. (g) Cost Estimates for Repair. Immediately after a fire or other casualty causing damage to any property for which the Board of Directors or the Association has the responsibility of maintenance and repair, the Board of Directors shall obtain reliable and detailed estimates of the cost to place the damaged property in condition as good as that before the casualty. Such costs may include professional fees and premiums for such bonds as the Board of Directors desire. (h) Construction Fund. The proceeds of insurance collected on account of any such casualty, and the sums received by the Board of Directors from collections of assessments against Owners on account of such casualty, shall constitute a construction fund which shall be disbursed, if the Building is to be reconstructed and repaired, in payment of the costs of reconstruction and repair in the following manner: (i) If the amount of the estimated cost of reconstruction and repair is less than Fifty Thousand Dollars ($50,000.00), then the construction fund shall be disbursed in payment of such costs upon order of the Board of Directors; provided, however, that upon request of a Mortgagee which is a beneficiary of an insurance policy, the proceeds of which are included in the construction fund, such fund shall be disbursed in the manner provided in the following paragraph (ii). (ii) If the estimated cost of reconstruction and repair of any Building, or other improvements, is more than Fifty Thousand Dollars ($50,000.00), then the 15 construction fund shall be disbursed in progress payments of such costs upon approval of an architect qualified to practice in Indiana and employed by the Board of Directors to supervise such work, as the work progresses. The architect shall be required to furnish a certificate giving a brief description of the services and materials furnished by various contractors, sub-contractors, materialmen, the architect, or other persons who have rendered services or furnished materials in connection with the work, (1) that the sums requested by them in payment are justly due and owing and that said sums do not exceed the value of the services and materials furnished; (2) that there is no other outstanding indebtedness known for the services and materials described; and (3) that the costs as estimated by said architect for the work remaining to be done subsequent to the date of such certificate, does not exceed the amount of construction fund remaining after payment of the sum requested. (iii) In the event that there is any surplus of monies in the construction fund after the reconstruction or repair of the damage has been fully completed and all costs paid, such sums may be retained by the Board of Directors as a reserve or may be used in the maintenance and operation of the Common Areas, or, in the discretion of the Board of Directors, it may be distributed to the Owners in the buildings affected and their Mortgagees who are the beneficial owners of the fund. 12. Covenants and Restrictions. The covenants and restrictions applicable to the use and enjoyment of the Lots are set forth in the Bylaws. These covenants and restrictions are for the mutual benefit and protection of the present and future Owners and shall run with the Real Estate and inure to the benefit of and be enforceable by any Owner, the Owners or by the Association. Present or future Owners shall be Members of the Association and shall be entitled to injunctive relief against any violation of these provisions and shall be entitled to damages for any injuries resulting from any violations of the Bylaws, but there shall be no right of reservation or forfeiture of title resulting from such violation. 13. Amendment. Except as otherwise provided in this Declaration, amendments to the Declaration shall be proposed and adopted in the following manner: (a) Notice. Notice of the subject matter of the proposed amendment shall be included in the notice of any meeting at which the proposed amendment is considered. (b) Resolution. A resolution to adopt a proposed amendment may be proposed by the Board of Directors or by a Majority of Owners. (c) Meeting. The resolution concerning a proposed amendment must be adopted by the designated vote at a meeting duly called and held in accordance with, the provisions of the Bylaws. (d) Adoption. Subject to the provisions of the Bylaws and the rights of Declarant described therein, 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 vote 16 of the Owners, with each Owner entitled to one (1) vote. In the event any Lot is subject to a first mortgage, the Mortgagee shall be notified of the meeting and the proposed amendment in the same manner as an Owner if the Mortgagee has given prior notice of its mortgage interest to the Board of Directors in accordance with the provision of the Bylaws. (e) Special Amendments. Subject to the rights reserved to Declarant in this Declaration, no amendment to this Declaration shall be adopted which changes (i) the voting interest of any Owner or the applicable share of any Owner’s liability for Common Expenses without the approval of one hundred percent (100%) of the Owners and all Mortgagees whose mortgage interests have been made known to the Board of Directors in accordance with the provisions of the Bylaws; or (ii) the provisions of Paragraph 11 of this Declaration with respect to reconstruction or repair in the event of fire or any other casualty or disaster, without the approval of all Mortgagees whose mortgage interest have been made known to the Board of Directors in accordance with the provisions of the Bylaws. (f) Recording. Each amendment to the Declaration shall be executed by either the duly authorized representative of the Declarant or (if applicable) the President and Secretary of the Association, and recorded in the Office of the Recorder of Hamilton County, Indiana, and such amendment shall not become effective until so recorded. (g) Amendments by Declarant Only. Notwithstanding the foregoing or anything elsewhere contained herein, the Declarant shall have the right acting alone and without the consent or approval of the Owners, the Association, the Board of Directors, any Mortgagees or any other person at any time prior to the Applicable Date to unilaterally amend and revise (i) the standards, covenants and restrictions contained in this Declaration and (ii) any and all exhibits attached to this Declaration, unless the amendment of a particular provision of this Declaration is explicitly prohibited by this Declaration. Such amendments shall be in writing, executed by Declarant, and recorded with the Recorder of Hamilton County, Indiana. If Declarant, acting in good faith and in the exercise of its reasonable judgment, determines that the basis for the General Maintenance Assessment set forth in this Declaration does not equitably, and reasonably, distribute the costs of improving, maintaining, repairing, replacing or operating the Common Area, Declarant in its discretion may unilaterally modify such basis for the General Maintenance Assessment to provide for an equitable and reasonable distribution of such costs. (h) Approvals by Declarant. Notwithstanding any other provisions hereof, prior to the Applicable Date, the following actions shall require the prior approval of Declarant: the addition of real estate to the Property; dedication or transfer of General Common Area; mortgaging of the Common Area; amendment of this Declaration; and changes in the basis for assessment pursuant to this Declaration or the amount, use and time of payment of assessments. 14. Acceptance and Ratification. All present and future Owners, Mortgagees, tenants, and occupants of the Lots shall be subject to and shall comply with the provisions of this Declaration, the Act, the Bylaws, and the Rules and Regulations as adopted by the Board of Directors as each may be amended or supplemented from time to time. The acceptance of a contract to purchase, deed of conveyance or act of occupancy of any Lot shall constitute an 17 agreement that the provisions of this Declaration, the Act, the Bylaws, and Rules and Regulations and as each may be amended or supplemented from time to time are accepted and ratified by such purchaser, 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 the Property as though such provisions were recited and stipulated at length in each and every deed, conveyance, mortgage, or lease. All persons, corporations, partnerships, trust, associations, or other legal entitles who may occupy, use, enjoy, or control a Lot or Lots or any part of the Property in any manner shall be subject to the applicable Declaration, the Act, the Bylaws, and the Rules and Regulations as each may be amended or supplemented from time to time. If any Owner, tenant, occupant or partnership or entity who may occupy, use, enjoy or control a Lot or Lots or any part of the Property in any manner, are comprised of more than one individual, the liability and obligations of each such Owner, tenant, occupant, partnership or entity shall be joint and several. 15. Granting of Easements. Declarant is granted the authority to grant easements to utility companies upon such terms and conditions and for such consideration as it deems appropriate. 16. Reservation of Rights to the Use of the Common Areas. Declarant shall have, and hereby reserves, an easement over, across, upon, along, in through an under the Common Areas for the purposes of installing, maintaining, repairing, replacing, relocating and otherwise servicing utility equipment facilities and installations to serve the Property, to provide access to and ingress and egress to and from the Property, to make improvements to and within the Property, and to provide for the rendering of public and quasi-public services to the Property. 17. Easements for Utilities and Public and Quasi-Public Vehicles. All public and quasi- public vehicles, including but not limited to police, fire and other emergency vehicles, trash and garbage collection, post office vehicles, and privately owned delivery and maintenance vehicles, shall have the right to enter upon the streets, Lots, and Common Areas in the performance of their duties and services. An easement is also granted to all utilities and their agents for ingress, egress, installation, replacement, repairing, maintaining of such utilities, including but not limited to water, sewer, gas telephones, cable television and communications, and electricity on the Property; provided, however, nothing in this Declaration shall permit the installation of sewers, electric lines, water lines, telephone lines, cable television lines, or other utilities, except as subsequently may be approved by Declarant (prior to the Applicable Date) or by the Board of Directors (following the Applicable Date). By virtue of this easement, the electric and telephone utilities are expressly permitted to erect and maintain the necessary equipment on the property and to affix and maintain electric and telephone wires, circuits, and conduits on, above, across, and under the roofs and exterior walls of the Buildings. 18. Initial Management. As set forth in the Bylaws, the Initial Board of Directors consists and will consist of persons selected by the Declarant. Such Board of Directors may enter into a management agreement with Declarant (or a corporation or other entity affiliated with Declarant) or a third party under which the management company will provide supervision, fiscal and general management and maintenance of the Common Areas, and in general, perform all of the duties and obligations of the Association. Notwithstanding anything to the contrary contained herein, prior to the Applicable Date, Declarant shall have, and Declarant hereby reserves to itself 18 (either through a management company or otherwise), the exclusive right to manage the Property and to perform all the functions of the Corporation. 19. Costs and Attorneys’ Fees. In any proceeding arising because of failure of an Owner to make any payments, take any action, or refrain from taking any action required by this Declaration, the Bylaws, or the Rules and Regulations adopted pursuant to the Bylaws, as each may be amended from time to time, the Association shall be entitled to recover its costs and reasonable attorneys’ fees incurred in connection with such default or failure. 20. Severability. The invalidity of any covenant, restriction, condition, limitation or other provisions of this Declaration or the Bylaws shall not impair or affect in any manner the validity, enforceability, or effect of the rest of this Declaration or the Bylaws. 21. Enforcement. The provisions of this Declaration, the Bylaws, the Articles of Incorporation, or the Act may be enforced by the Association or by any aggrieved Owner through court proceedings for injunctive relief, for damages or for both. 22. Construction. Any reference to the masculine, feminine, or neuter gender shall, unless the context clearly requires the contrary, be deemed to refer to and include the masculine, feminine, and neuter genders. Words in the singular shall include and refer to the plural, and vice versa, as appropriate. IN WITNESS WHEREOF, the undersigned Declarant has caused this Declaration to be executed as of the day and year first above written. DECLARANT OE FLORA, LLC, an Indiana limited liability company By: ____________________________ Printed: ____________________________ Title: _____________________________ STATE OF INDIANA ) ) SS: COUNTY OF HAMILTON ) Before me, a Notary Public in and for such County and State, personally appeared _______________________, _____________________ of OE Flora, LLC, who, after having been duly sworn, acknowledged the execution of the foregoing Declaration for and on behalf of such limited liability company. WITNESS, my hand and Notarial Seal this ______ day of _____________, 2023. __________________________________________ ( ) Notary Public Commission Expires:_________________ County of Residence: _________________ This instrument prepared by Samantha R. Hargitt, Dinsmore & Shohl LLP, One Indiana Square, Suite 1800, Indianapolis, Indiana 46204. I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security Number in this document, unless required by law. [Samantha R. Hargitt] EXHIBIT A Real Estate EXHIBIT B Depiction of Property EXHIBIT C Code of Bylaws [See attached.]