HomeMy WebLinkAboutWaterstone & Bayhill_Covenants and RestrictionsDECLARATION OF COVENANTS AND RESTRICTIONS
Waterstone 1/ 5~ \-\, \\
Carmel, Indiana
Recorded _________ , 1993
Instrument No.
Office of the Recorder of Hamilton
County
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DECLARATION OF COVENANTS AND RESTRICTIONS
WATERS TONE
INDEX
Definitions . . . . . . .
Declaration ...... .
Additions to the Tract ... .
The Lakes ....... .
(a) Development.
(b) Title and Maintenance
(c) Use .... .
(d) Lake Liner .. .
The Commons ..... .
Dock Areas .... .
(a) Designation ...
(b) Common Docks
2
7
7
• • • • 7
• • • 8
• • • • • • 8
8
. . • • • • 9
9
. • • • • . 9
• • • 9
Community Center ....... .
9
. . 10
. 10
. . 10
. 11
Drainage System ........... .
Paths and Path Lights . . . . . . . . . . .
Berm . . . . . . . . . . .
Maintenance of Entry Ways, Planting Easements
and Roadway Pavers . . . . . . . . .. 11
Waterstone Homeowners Association, Inc. . .. 11
(a) Membership . . . . . . ...... 11
(b) Powers . . . . . . . . . . . . . 11
(c) Classes of Members ..•... 12
(d) Voting and Other Rights of Members . 12
(e) Reserve for Replacement ....... 12
(f) Limitations on Action
by the Corporation. . 12
(g) Mergers . . . . . . . ..... 13
Assessments . . . . . . . . . . . . . . 13
(a) Creation of the Lien and Personal
Obligation of Assessments ..... 13
(b) General Assessment . . . . . . . . . . . 13
(i) Purpose of Assessment ....... 13
(ii) Basis for Assessment ....... 14
(iii) Method of Assessment ....... 14
(iv) Allocation of Assessment . 14
(c) Community Center Assessment ....... 15
( d) Parcel Assessments . . . • . . . . . • . 15
(i) Purpose of Assessments .. 15
(ii) Method of Assessment . 15
(iii) Special Assessments. . . . . 15
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14.
15.
16.
17.
(e)
(f)
(g)
(h)
Page
Architectural Control Assessment
Special Assessment ..... .
. • 16
. 16
. 16 Date of Commencement of Assessments •.
Effect of Nonpayment of Assessments;
Remedies of the Corporation ...... 17
(i) Subordination of the Lien to Mortgages . 17
(j) Certificates . . . . . . 17
(k) Annual Budget ............ 17
Architectural Control. . ........•.. 18
(a) The Architectural Review Board ..••. 18
(b) Purpose . . . . . . . • . . . 18
(c) Conditions ............... 18
(d) Procedures . . . . . . . . 18
(e) Guidelines and Standards ...... 19
(f) Application of Guidelines and Standards . 19
(g) Design Consultants . 19
(h) Existing Violations of Declaration . 19
(i) Exercise of Discretion .. 20
Community Area . . . . . . 2 0
(a) Ownership . . . . . . . . . . . . . 2 0
(b) Density of Use . . . . . ..... 21
(c) Obligations of the Corporation ..... 21
(d) Easements of Enjoyment ......... 21
(e) Extent of Easements. . . . . . . 22
(f) Additional Rights of Use . . . . . 23
(g) Damage or Destruction by Owner ..... 23
(h) Conveyance of Title. . ..... 23
Use of Tract . . . . . . . . . . ..... 24
(a) Protective Covenants ...... 24
(b)
Easements
(a)
(b)
( c)
(d)
(e)
(i) Land Use ...... 24
(ii) Nuisances. . . . . ..... 24
(iii) Other Restrictions ...•.. 24
(iv) Exceptions ....•. 25
Maintenance of Tract .......... 25
• • • • • • • • • • • • • • • • • • 2 6
Plat Easements ....... 26
(i) Drainage Easements ........ 26
(ii) Sewer Easements .....•. 26
(iii) Utility Easements ....... 27
(iv) Entry Way Easements ....... 27
(v) Landscape Easements ....... 27
(vi) Lake Access Easements ...... 27
(vii) Community Area Access Easements . 27
(viii) Pathway Easements •.••.• 27
( ix) Berm Easements . . . . . . . . 27
(x) Non-Access Easements . . • . . 27
General Easement ............ 28
Public Health and Safety Easements .•. 28
Drainage Board Easement ......... 28
Crossing Underground Easements . 29
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Page
(f) Declarant's Easement to Correct Drainage 29
(g) Water Retention . . . . . . . . . . . 29
18. Use of Lots During Development ...... 29
(a) By Declarant . 29
(b) By Builders . . . . . . ....... 30
19. Enforcement . . . . . . . . . . . . . ..... 30
20. Limitations on Rights of the Corporation .. 30
21. Approvals by Declarant . . . . . . . . . • 31
22. Mortgages . . . . . . . . . . . . ..•.. 31
( a) Notice to Corporation . . . . • . • • 31
(b) Notices to Mortgagees . . . . . . 31
(c) Notice of Unpaid Assessments . 32
(d) Financial Statements . 32
(e) Payments by Mortgagees . . . . . . . 32
2 3 . Amendments . . . . . . . . . . . . . . . . . . 3 2
(a) Generally. . . . . . . . . . . . . . 32
(b) By Declarant . . . . . 33
(c) Effective Date . . . . . . ..... 33
24. Interpretation . . . . . . . 3 3
25. Duration ...... 33
26. Severability ............. 33
27. Non-Liability of Declarant ............ 34
Execution by Declarant
Exhibit A Description of Development Area
Exhibit B General Plan of Development
Exhibit C Description of the Tract
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DECLARATION OF COVENANTS AND RESTRICTIONS
WATERS TONE
This Declaration, made as of
WATERSTONE LAND COMPANY, L. P., an
( "Declarant") ,
day of _____ , 1993, by
Indiana limited partnership
W I T N E S S E T H
WHEREAS, the following facts are true:
A. Declarant is the owner of the real estate located in
Hamilton County, Indiana, described in Exhibit A and depicted on
Exhibit B, upon which Declarant intends, but is not obligated, to
develop a residential community to be known as Waterstone.
B. Declarant intends, but is not obligated, to develop
within Waterstone three (3) residential subdivisions to be known as
Bayhill, Windpointe and Stonewick.
C. Declarant intends, but is not obligated,
certain improvements and amenities in Waterstone
constitute Community Area.
to construct
which shall
D. Declarant desires to provide for the preservation and
enhancement of the property values, amenities and opportunities in
Waterstone and for the maintenance of the Tract and the
improvements thereon, and to this end desires to subject the Tract
together with such additions as may hereafter be made thereto (as
provided in Paragraph 3) to the covenants, restrictions, easements,
charges and liens hereinafter set forth, each of which is for the
benefit of the Lots and lands in the Tract and the future owners
thereof.
E. Declarant deems it desirable, for the efficient
preservation of the values and amenities in Waterstone, to create
~n agency to which may be delegated and assigned the powers of
owning, maintaining and administering the Community Area,
administering and enforcing the Restrictions, collecting and
disbursing the Assessments and charges hereinafter created, and
promoting the recreation, health, safety and welfare of the Owners
of Lots in Waterstone.
F. Declarant has incorporated under the laws of the State of
Indiana a not-for-profit corporation known as Waterstone Homeowners
Association, Inc. for the purpose of exercising such functions.
NOW, THEREFORE, Declarant hereby declares that all of the Lots
and lands in the Tract and such additions thereto as may hereafter
be made pursuant to Paragraph 3 hereof, as they are held and shall
be held, conveyed, hypothecated or encumbered, leased, rented,
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used, occupied and improved, are subject to the following
Restrictions, all of which are declared to be in furtherance of a
plan for the improvement and sale of Lots in the Tract, and are
established and agreed upon for the purpose of enhancing and
protecting the value, desirability and attractiveness of the Tract
as a whole and of each of Residences, Lots and lands situated
therein. The Restrictions shall run with the land and shall be
binding upon Declarant, its successors and assigns, and upon the
parties having or acquiring any interest in the Tract or any part
or parts thereof subject to such Restrictions, and shall inure to
the benefit of Declarant and its successors in title to the Tract
or any part or parts thereof.
1. Definitions. The following terms, as used in this
Declaration, unless the context clearly requires otherwise, shall
mean the following:
"Applicable Date" means the earlier of (i)
when all Lots in the Development Area have been
by the construction thereon of Residences
December 31, 2003.
the date
improved
or ( ii)
"Architectural
assessment levied
Paragraph 13(e).
Control
by the
Assessment"
Corporation
means
pursuant
the
to
"Architectural Review Board" means that entity
established pursuant to Paragraph 14 of this Declaration
for the purposes therein stated.
"Articles" means the Artic l es of Incorporation of
the Corporation, as amended from time to time.
"Assessments" means all sums lawfully assessed
against the Members of the Corporation or as declared by
this Declaration, any Supplemental Declaration, the
Articles or the By-Laws.
"Bayhill" means that part of Waterstone so
designated on the General Plan of Development.
"Berm" means the dirt mound along Gray Road and
126th Street as depicted on a Plat.
"Board of Directors" means the governing body of the
Corporation elected by the Members in accordance with the
By-Laws.
"By-Laws" means the Code of By-Laws of the
Corporation, as amended from time to time.
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"Common Docks" means any boat docks extending into
a Lake from a Dock Area which are intended for use by
some, but not necessarily all, of the Owners.
"Community Area" means (i) the Dock Areas, (ii) the
Common Docks, (iii) the Lakes, (i v) the Entry Ways, (v)
the Community Center, (vi) the Berm, (vii) the Commons,
(viii) the Drainage System, ( ix) the Paths, (x) any
utility service lines or facilit i es not maintained by a
public utility company or governmental agency that are
located on, over or below or through more than one
Section, and (xi) any areas of land (1) shown on any
Plat, (2) described in any recorded instrument prepared
by Declarant or its agents, or ( 3) conveyed to or
acquired by the Corporation, together with all
improvements thereto, that are intended to be devoted to
the use or enjoyment of some, but not necessarily all, of
the Owners of Lots.
"Community Area Access Easement" means the area
designated on a Plat as a means of access to a Community
Area.
"Community Area Initial Assessment" means the
initial assessment for the Reserve for Replacements
required by Paragraph 13(c).
"Commons" means the land depicted as Block"-" on
the Plat of Section 1 of ______ and such other land
as may be denoted on any other Plat as "Commons" or
designated as "Commons" in any recorded instrument
executed by Declarant.
"Community Center" means the land depicted on the
General Plan of Development as the intended site for
development of certain recreational and other community
facilities together with all improvements thereto and
structures and facilities thereon.
"Corporation" means Waterstone Homeowners
Association, Inc., an Indiana nonprofit corporation, its
successors and assigns.
"Declarant" means Waterstone Land Company, L.P., its
successors and assigns to its interest in the Tract other
than Owners purchasing Lots or Residences by deed from
Declarant (unless the conveyance indicated an intent that
the grantee assume the rights and obligations of
Declarant) .
"Development Area" means the land described in
Exhibit A.
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"Dock Area" means an area adjacent to Lake 1
designated on a Plat as a site which may be used for the
storage of boats, as a means of access to the Lake and
for such other purposes as may be specified in the
Declaration or any Supplemental Declaration.
"Drainage Board" means the Hamilton County, Indiana
Drainage Board, its successors or assigns.
"Drainage System" means the open drainage ditches
and swales, the subsurface drainage tiles, pipes and
structures, the dry and wet retention and/or detention
ponds, and the other structures, fixtures, properties,
equipment and facilities (excluding the Lakes) located in
the Tract and designed for the purpose of controlling,
retaining or expediting the drainage of surface and
subsurface waters from, over and across the Tract,
including but not limited to those shown or referred to
on a Plat, all or part of which may be established as
legal drains subject to the jurisdiction of the Drainage
Board.
"Entry Ways" means the structures constructed as an
entrance to Waterstone or a part thereof (exclusive of
the street pavement, curbs and drainage structures and
tiles), the traffic islands depicted as a designated
Block on a Plat and any other traffic islands dividing a
roadway providing access to Waterstone or a part thereof,
and the grassy area surrounding such structures.
"General Plan of Development" means that plan
prepared by Declarant and approved, if necessary, by
appropriate public agencies that outlines the total
scheme of development and general uses of land in the
Development Area, as such may be amended from time to
time.
"Landscape Easement" means a
denoted on a Plat as an area to
maintained by the Corporation.
portion of a Lot
be landscaped and
"Lake" means any lake located in the Development
Area and depicted on the General Plan of Development and
"Lakes" means all of such Lakes. A numerically
designated Lake means the Lake so designated by such
number on the General Plan of Development or a Plat.
"Lake Access Easement" means the area designated on
a Plat as a means of access to a Lake.
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"Lake Liner" means the ________ installed by
Declarant to control the water level of Lake 1 as the
same may be replaced from time to time.
"Lot" means a platted lot as shown on a Plat.
"Lot Development Plan" means (i) a site plan
prepared by a licensed engineer or architect, (ii)
foundation plan and proposed finished floor elevations,
(iii) building plans, including elevation and floor
plans, (iv) material plans and specifications, (v)
landscaping plan, and (vi) all other data or information
that the Architectural Review Board may request with
respect to the improvement or alteration of a Lot
(including but not limited to the landscaping thereof) or
the construction or alteration of a Residence or other
structure or improvement thereon.
"Maintenance Costs" means all of the costs necessary
to keep the facilities to which the term applies
operational and in good condition, including but not
limited to the cost of all upkeep, maintenance, repair,
replacement of all or any part of any such facility,
payment of all insurance with respect thereto, all taxes
imposed on the facility and on the underlying land,
leasehold, easement or right-of-way, and any other
expense related to the continuous maintenance, operation
or improvement of the facility.
"Member" means a member of the Corporation and
"Members" means all members of the Corporation.
"Mortgagee" means the holder of a first mortgage on
a Residence.
"Owner" means a Person, including Declarant, who at
the time has or is acquiring any interest in a Lot except
a Person who has or is acquiring such an interest merely
as security for the performance of an obligation.
"Part of the Development Area" means any part of the
Development Area not included in the Tract.
"Parcel II means each of Bayhill, Windpointe and
Stonewick and any other platted subdivision within the
Development Area that is subject to the same Supplemental
Declaration or is declared by Declarant to constitute a
"Parcel".
"Paths" means those walkways installed pursuant to
Paragraph 9 and such other real estate or interest
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therein as is conveyed or granted to the Corporation for
the purpose of being used for walkways.
"Path Lights" means the light standards, conduits,
wiring, bulbs and other appurtenances installed to
illuminate the Paths.
"Person" means an individual, firm, corporation,
partnership, association, trust or other legal entity, or
any combination thereof.
"Plat" means a final secondary plat of a portion of
the Development Area recorded in the Off ice of the
Recorder of Hamilton County, Indiana.
"Reserve for Replacements" means a fund established
and maintained by the Corporation to meet the cost of
periodic maintenance, repairs, renewal and replacement of
the Community Area.
"Residence" means a structure intended exclusively
for occupancy by a sing l e family together with all
appurtenances thereto, including private garage and
outbuildings and recreational facilities usual and
incidental to the use of a single family residential lot.
"Restrictions" means the covenants, conditions,
easements, charges, liens, restrictions, rules and
regulations and all other provisions set forth in this
Declaration, all applicable Supplemental Declarations and
the Register of Regulations, as the same may from time to
time be .amended.
"Register of Regulations" means the document
containing rules, regulations, policies, and procedures
adopted by the Board of Directors or the Architectural
Review Board, as the same may from time to time be
amended.
"Roadway Pavers" means brick, stone or other
decorative pavers installed within any right-of-way as
part of the improved surface thereof.
"Section" means that portion of the Development Area
that is depicted on a Plat.
"Supplemental Declaration" means the Supplemental
Declarations of Covenants and Restrictions for each of
Bayhill, Windpointe and Stonewick and any Plat or other
supplementary declaration of covenants, conditions or
restrictions which may be recorded and which extends the
provisions of this Declaration or any previously recorded
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Supplemental Declaration to a Section and contains such
complementary or supplementary provisions for such
Section as are required or permitted by this Declaration.
"Tract" means the land described in Exhibit C and
such other real estate as may from time to time be
annexed thereto under the provisions of Paragraph 3
hereof.
"Zoning Authority" with respect to any action means
the Director of the Department of Community Development
of the City of Carmel or, where he lacks the capacity to
take action, or fails to take such action, the
governmental body or bodies, administrative or judicial,
in which authority is vested under applicable law to hear
appeals from, or review the action, or the failure to
act, of the Director.
2. Declaration. Declarant hereby expressly declares that
the Tract and any additions thereto pursuant to Paragraph 3
hereof shall be held, transferred, and occupied subject to the
Restrictions. The owner of any Lot subject to these Restrictions,
by ( i) acceptance of a deed conveying title thereto, or the
execution of a contract for the purchase thereof, whether from
Declarant or a subsequent Owner of such Lot, or (ii) by the act of
occupancy of any Lot, shall accept such deed and execute such
contract subject to each Restriction and agreement herein
contained. By acceptance of such deed or execution of such
contract, each Owner acknowledges the rights and powers of
Declarant and of the Corporation with respect to these
Restrictions, and also for itself, its heirs, personal
representatives, successors and assigns, covenants, agrees and
consents to and with Declarant, the Corporation, and the Owners and
subsequent owners of each of the Lots affected by these
Restrictions to keep, observe, comply with and perform such
Restrictions and agreement.
3. Additions to the Tract. Declarant shall have the right
to bring within the scheme of this Declaration and add to the Tract
.real estate that is a Part of the Development Area or that is
contiguous to the Development Area. In determining contiguity,
public rights of way shall not be considered.
The additions authorized under this Paragraph 3 shall be made
by the filing of record of one or more Supplemental Declarations
with respect to the additional real estate and by filing with the
Corporation any revisions to the General Plan of Development
necessary to reflect the scheme of development of the additional
real estate. Unless otherwise stated therein, such revisions to
the General Plan of Development shall not bind Declarant to make
the proposed additions. For purposes of this Paragraph 3, a Plat
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depicting a portion of the Development Area shall be deemed a
Supplementary Declaration.
4. The Lakes.
(a) Development. Declarant intends, but is not
obligated, to develop Lake 1. Development of such Lake,
to the extent it is initiated by Declarant, shall be in
phases, and Declarant reserves the right, subsequent to
commencement of development of Lake 1, to determine the
size and configuration thereof (which may vary from that
depicted on the General Plan of Development attached as
Exhibit B hereto) . Lake 2 has been developed by
Declarant substantially as depicted on the General Plan
of Development attached hereto as Exhibit B.
(b) Title and Maintenance. Declarant shall convey
title to the Lakes to the Corporation. The Corporation
shall be responsible for maintaining the Lakes. The
Maintenance Costs of the Lakes shall be assessed as a
General Assessment against all Lots subject to
assessment. Each owner of a Lot that abuts a Lake shall
be responsible at all times for maintaining so much of
the bank of the Lake above the pool level as constitutes
a part of, or abuts, his Lot (exclusive of the Lake Liner
and the Pathways) and shall keep that portion of the Lake
abutting his Lot free of debris and otherwise in
reasonably clean condition.
(c) Use. No boats shall be permitted upon any part
of a Lake except if and to the extent authorized by the
Board of Directors and then subject to such rules and
regulations as may be adopted by the Board of Directors.
Except for Common Docks installed by Declarant or the
Corporation, no dock, pier, wall or other structure may
be extended into a Lake without the prior written consent
of the Board of Directors, the Architectural Review Board
and such governmental authority as may have jurisdiction
thereover. No swimming will be permitted in any Lake
except if and to the extent authorized by the Board of
Directors. Each owner of a Lot abutting a Lake shall
indemnify and hold harmless Dec l arant, the Corporation
and each other Owner against all loss or damage incurred
as a result of injury to any Person or damage to any
property, or as a result of any other cause or thing,
arising from or related to use of, or access to, a Lake
by any Person who gains access thereto from, over or
across such Owner's Lot. Declarant shall have no
liability to any Person with respect to a Lake, the use
thereof or access thereto, or with respect to any damage
to any Lot resulting from a Lake or the proximity of a
Lot thereto, including loss or damage from erosion.
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(d) Lake Liner. The stability of the water level
in Lake 1 is dependent upon maintenance of the integrity
of the Lake Liner. The Corporation shall be responsible
for maintenance of the Lake Liner and the Maintenance
costs thereof shall be assessed as a General Assessment
against all Lots subject to assessment except that an
owner who causes or permits any damage to the Lake Liner
shall be solely responsible for the cost of repairing
such damage and shall indemnify and hold harmless
Declarant, the Corporation and each other Owner against
all loss or damage incurred as a result of injury to any
Person or damage to any property, or as a result of any
other cause or thing, arising from or related to damage
to the Lake Liner caused by such Owner or any Person
having or gaining access to such Owner's Lot with the
knowledge of consent of such Owner.
5. The Commons. Declarant shall convey title to the Commons
to the Corporation. The Corporation shall be responsible for
maintaining the Commons and the Maintenance Costs thereof shall be
assessed as a General Assessment against all Lots subject to
assessment. Except for underground utility facilities, no
permanent improvements shall be made to or installed on the Commons
other than lighting, seating, walkways, planting structures and
fountains or other non-recreational water features unless such
Commons is designated as a Dock Area, in which event such Commons
may be improved as the Board of Directors deems appropriate for its
use as a Dock Area. The use of the Commons shall be subject to
rules and regulations adopted by the Board of Directors which are
not inconsistent with the provisions of this Declaration or any
Supplemental Declaration.
6. Dock Areas.
(a) Designation. Declarant may, but is not
obligated to, designate certain of the Commons adjacent
to Lake 1 as Dock Areas if the Board of Directors
determines to permit boating on Lake 1. Designation of
any such Commons as a Dock Area shall be made on a Plat,
but such designation shall not, unless otherwise noted on
such Plat or in a Supplemental Declaration, restrict the
use of such Commons to a means of access to Common Docks,
but such Commons may be used for such additional purposes
as Declarant may specify on the Plat or in any Supple-
mental Declaration.
(b) Common Docks. To the extent it is lawful for
Declarant to do so and if the Board of Directors
determines to permit boating on Lake 1, Declarant may,
but shall not be obligated to, install Common Docks,
title to which shall vest in the Corporation upon
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completion of such installation. The Corporation shall
be responsible for maintenance of the Common Docks and
the Maintenance Costs thereof shall be assessed as a
General Assessment against all Lots owned by owners who
are authorized by this Declaration or any supplemental
Declaration to make use thereof. The Board of Directors
may adopt such rules and regulations with respect to the
use of the Common Docks as it deems appropriate and may
charge reasonable fees for the use thereof, but no rule,
regulation or charge shall be inconsistent with the
provisions of this Declaration or any Supplemental
Declaration.
7. Community Center. Declarant intends, but is not
obligated, to construct in the area designated on the General Plan
of Development as the Community Center a club house, bath house,
swimming pool, tennis courts and other recreational and community
facilities if development of the Development Area should, in the
sole judgment of Declarant, justify such construction. If
Declarant undertakes the development of the Community Center or any
part thereof, Declarant intends upon completion of construction to
convey the same to the Corporation free and clear of all financial
encumbrances and other liens securing indebtedness of Declarant but
subject to the right of Declarant to use the Community Center as
provided in Paragraph 18. The Corporation shall be responsible for
maintenance of the Community Center and the Maintenance Costs
thereof shall be assessed as a General Assessment against all Lots
subject to assessment. The Board of Directors may adopt such rules
and regulations with respect to the use of the Community Center as
it deems appropriate and may charge reasonable fees for the use
thereof, but no rule, regulation or charge shall be inconsistent
with the provisions of this Declaration or any Supplemental
Declaration.
8. Drainage System. The Drainage System has or will be
constructed for the purpose of controlling drainage within and
adjacent to the Development Area and maintaining the water level in
the Lakes. The Corporation shall maintain the Drainage System to
the extent not maintained by the Drainage Board and the Maintenance
,Costs thereof shall be assessed against all Lots subject to
assessment serviced by that part of the Drainage System with
respect to which Maintenance Costs are incurred. Each Owner shall
be individually liable for the cost of maintenance of any drainage
system located entirely upon his Lot which is devoted exclusively
to drainage of his Lot and is not maintained by the Drainage Board.
9. Paths and Path Lights. Declarant may, but is not
obligated to, install the Paths and Path Lights at the approximate
locations depicted on the General Plan of Development and may
reserve easements for such purpose over and across Lots. If
installed, the Corporation shall operate and maintain the Paths and
Path Lights and the Maintenance Costs thereof shall be assessed as
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a General Assessment against all Lots subject to assessment except
where the use of a Path is restricted to less than all of the
owners in which event the Maintenance Costs for such restricted
Paths shall be assessed only against those Lots whose owners are
authorized to use such Paths. The Board of Directors may adopt
such rules and regulations with respect to the use thereof as it
may deem appropriate including but not limited to the prohibition
of the use of the Paths by bicycles, skateboards and motorized or
non-motorized vehicles.
10. Berm. The Corporation shall maintain the portion of the
Berm facing Gray Road or 126th Street, and the Maintenance Costs
thereof shall be assessed as a General Assessment against all Lots
subject to assessment. The Owner of each Lot which abuts the Berm
shall maintain the portion of the Berm fronting on the Owner's Lot
unless the Corporation assumes responsibility for such maintenance
pursuant to action by the Board of Directors. In the event the
Board of Directors determines to cause the Corporation to maintain
the entire Berm, then all Maintenance Costs associated therewith
shall be assessed as a General Assessment against all Lots subject
to assessment. The Person or Persons responsible for maintenance
of all or any part of the Berm shall maintain the Berm in a clean,
orderly and sightly condition.
11. Maintenance of Entry Ways, Landscape Easements and
Roadway Pavers. The Corporation shall maintain the Entry Ways and
the Landscape Easements and all improvements and plantings thereon,
and the Maintenance Costs thereof shall be assessed as a General
Assessment against all Lots subject to assessment. Grass, trees,
shrubs and other plantings located on an Entry Way or a Landscape
Easement shall be kept neatly cut, cultivated or trimmed as
reasonably required to maintain an attractive entrance to
Waterstone or a part thereof or a planting area within Waterstone.
All entrance signs located on an Entry Way shall be maintained at
all times in good and sightly condition appropriate to a
first-class residential subdivision. To the extent not maintained
by public authority, the Corporation shall maintain the Roadway
Pavers, and the Maintenance Costs thereof shall be assessed as a
General Assessment against all Lots subject to assessment.
12. Waterstone Homeowners Association, Inc.
(a) Membership. Each Owner shall automatically be
a Member and shall enjoy the privileges and be bound by
the obligations contained in the Articles and By-Laws.
If a Person would realize upon his security and become an
Owner, he shall then be subject to all the requirements
and limitations imposed by this Declaration on other
Owners, including those provisions with respect to the
payment of Assessments.
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(b) Powers. The Corporation shall have such powers
as are set forth in this Declaration and in the Articles,
together with all other powers that belong to it by law.
( c) Classes of Members. The Corporation shall have
a single class of members.
(d) Voting and Other Rights of Members. The voting
and other rights of Members shall be as specified in the
Articles and By-Laws.
(e) Reserve for Replacements. The Board of
Directors shall establish and maintain the Reserve for
Replacements by the allocation and payment to such
reserve fund of an amount determined annually by the
Board to be sufficient to meet the cost of periodic
maintenance, repair, renewal and replacement of the
Community Area. In determining the amount, the Board
shall take into consideration the expected useful life of
the Community Area, projected increases in the cost of
materials and labor, interest to be earned by such fund
and the advice of Declarant or such consultants as the
Board may employ. The Reserve for Replacements shall be
deposited in a special account with a lending institution
the accounts of which are insured by an agency of the
United States of America or may, in the discretion of the
Board, be invested in obligations of, or fully guaranteed
as to principal by, the United States of America.
(f) Limitations on Action by the Corporation.
Unless at least two-thirds of the Mortgagees (based on
one vote for each first mortgage owned) or two-thirds
(2/3) of the Members (other than Declarant) have given
their prior written approval, the Corporation, the Board
of Directors and the Owners may not: ( i) except as
authorized by Paragraph 15(a), by act or omission seek to
abandon, partition, subdivide, encumber, sell or transfer
the Community Area (but the granting of easements for
public utilities or other public purposes consistent with
the intended use of the Community Area shall not be
deemed a transfer for the purposes of this clause); (ii)
fail to maintain fire and extended coverage on insurable
Community Area on a current replacement cost basis in an
amount at least one hundred percent (100%) of the
insurable value (based on current replacement cost) ;
(iii) use hazard insurance proceeds for losses to any
Community Area for other than the repair, replacement or
reconstruction of the Community Area; (iv) change the
method of determining the obligations, assessments, dues
or other charges that may be levied against the Owner of
a Residence; (v) by act or omission change, waive or
abandon any scheme of regulations or their enforcement
-12-
pertaining to the architectural design or the exterior
appearance of Residences, or the maintenance and up-keep
of the Community Area; or (vi) fail to maintain the
Reserve for Replacements in the amount required by this
Declaration or any Supplemental Declaration.
(g) Mergers. Upon a merger or consolidation of
another corporation with the Corporation, its properties,
rights and obligations may, as provided in its articles
of incorporation, by operation of law be transferred to
another surviving or consolidated 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 Corporation
as a surviving corporation pursuant to a merger. The
surviving or consolidated corporation may administer the
covenants and restrictions established by this
Declaration within the Tract together with the covenants
and restrictions established upon any other properties as
one scheme. No other merger or consolidation, however,
shall effect any revocation, change or addition to the
covenants established by this Declaration within the
Tract except as hereinafter provided.
13. Assessments.
(a) Creation of the Lien and Personal Obligation
of Assessments. Declarant 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 Corporation the
following: (1) General Assessments, (2) the Community
Area Initial Assessment, ( 3) annual and special Parcel
Assessments, (4) Architectural Control Assessments (to
the extent levied) and ( 5) Special Assessments, such
Assessments to be established and collected as
hereinafter provided.
All Assessments, together with interest thereon and
costs of collection thereof, shall be a charge on the
land and shall be a continuing lien upon the Lot against
which each Assessment is made until paid in full. Each
Assessment, together with interest thereon and costs of
collection thereof, shall also be the personal obligation
of the Person who was the owner of the Lot at the time
when the Assessment became due.
(b) General Assessment.
(i) Purpose of Assessment. The General
Assessment levied by the Corporation shall be
used exclusively to promote the recreation,
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health, safety, and welfare of the Owners of
Lots and for the improvement, maintenance . ' repair, replacement and operation of the
Community Area.
(ii) Basis for Assessment.
(1) Lots Generally. Each Lot
owned by a Person other than
Declarant shall be assessed at a
uniform rate without regard to
whether a Residence has been
constructed upon the Lot.
(2) Lots Owned by Declarant.
No Lot owned by Declarant shall be
assessed by the Corporation except
such Lots as have been improved by
the construction thereon of
Residences which shall be subject to
assessment as provided in Clause (1)
above.
(3) Change in Basis. The basis
for assessment may be changed upon
recommendation of the Board of
Directors if such change is approved
by (i) two-thirds (2/3) of the
members (excluding Declarant) or
two-thirds (2/3) of the Mortgagees
(based on one vote for each first
mortgage owned) who are voting in
person or by proxy at a meeting of
such members duly called for this
purpose.
(iii) Method of Assessment. By a vote of
a majority of the Directors, the Board of
Directors shall, on the basis specified in
subparagraph (ii), fix the General Assessment
for each assessment year of the Corporation at
an amount sufficient to meet the obligations
imposed by this Declaration and all Supple-
mental Declarations upon the Corporation. The
Board of Directors shall establish the date(s)
the General Assessment shall become due, and
the manner in which it shall be paid.
(iv) Allocation of Assessment. Certain
of the costs of maintaining, operating,
restoring or replacing the Community Area have
been allocated in this Declaration among
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•
Owners of Lots on the basis of the location of
the lands and improvements constituting the
Community Area and the intended use thereof.
In determining the General Assessment, costs
and expenses which in accordance with the
provisions of this Declaration are to be borne
by all owners shall first be allocated to all
owners. Costs and expenses which in
accordance with the provisions of this
Declaration are to be borne by the Owners of
certain Lots shall then be allocated to the
Owners of such Lots. The provisions of
subparagraph (ii) for uniform assessment shall
not be deemed to require that all assessments
against vacant Lots or Lots improved with
comparable types of Residences be equal, but
only that each Lot be assessed uniformly with
respect to comparable Lots subject to
assessment for similar costs and expenses.
(c) Community Area Initial Assessment. On the
earlier of (i) the date a Lot is conveyed by Declarant to
an Owner (other than the holder of a first mortgage on
such Lot in a conveyance which constitutes a deed in lieu
of foreclosure), (ii) the date a Residence constructed on
the Lot has been certified for occupancy by the Zoning
Authority or (iii) the date a Residence on the Lot is
first occupied by an Owner upon completion of
construction thereof, there shall be due and payable to
the Corporation by the owner of such Lot the sum of Five
Hundred Dollars ($500.00) which shall be deposited in the
Reserve for Replacements maintained by the Corporation.
(d) Parcel Assessments.
(i) Purpose of Assessments. Parcel
Assessments shall be used for such purposes as
are authorized by the Supplemental Declaration
for such Parcel.
(ii) Method of Assessment. An annual
Parcel Assessment shall be levied by the
Corporation against Lots in a Parcel using the
basis set forth in the Supplemental
Declaration for such Parcel, and collected and
disbursed by the Corporation. The Board shall
fix in accordance with the By-Laws and the
provisions of any Supplemental Declaration the
annual parcel assessment for each Parcel, the
date(s) such Assessment shall become due, and
the manner in which it shall be paid.
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(iii) Special Assessments. In addition to
the annual Parcel Assessment, the Corporation
may levy in any fiscal year a special Parcel
Assessment against one or more of the Lots in
a Parcel for the purpose of (A) defraying, in
whole or in part, the cost of any
construction, reconstruction, repair or
replacement of a capital improvement upon the
Parcel, including fixtures and personal
property related thereto, provided that any
such Assessment shall have the assent of a
majority of the Owners of Lots in the Parcel
who are voting in person or by proxy at a
meeting of such Owners duly called for this
purpose or (B) defraying any Maintenance Costs
incurred in satisfying any requirements
imposed on the Corporation by a Supplemental
Declaration relating to a Parcel.
( e) Architectural Control Assessment. If any owner
fails to comply with the requirements of the first two
sentences of Paragraph 4 (h) of a Supplemental Declaration
relating to the Parcel in which such Owner's Lot is
located and/or the provisions of Paragraph 14(c) of this
Declaration, then the Corporation may levy against the
Lot owned by such Owner an Assessment in an amount
determined by the Board of Directors which does not
exceed the greater of (i) One Hundred Dollars ($100.00)
for each day that such failure continues after written
notice thereof is given by Declarant or the Corporation
to such Owner or (ii) Five Thousand Dollars ($5,000.00).
Such Assessment shall constitute a lien upon the Lot of
such Owner and may be enforced in the manner provided in
subparagraph (h) below. The levy of an Architectural
Control Assessment shall be in addition to, and not in
lieu of, any other remedies available to Declarant and/or
the Corporation provided in this Declaration, at law or
in equity in the case of the failure of an owner to
comply with the provisions of this Declaration and all
applicable Supplemental Declarations.
(f) Special Assessment. In addition to such other
Special Assessments as may be authorized herein, the
Corporation may levy in any fiscal year a Special
Assessment applicable to that year and not more than the
next four (4) succeeding fiscal years for the purpose of
defraying, in whole or in part, the cost of any
construction, repair, or replacement of a capital
improvement upon the Community Area, including fixtures
and personal property relating thereto, provided that any
such Assessment shall have the assent of a majority of
the votes of the Members whose Lots are subject to
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assessment with respect to the capital improvement who
are voting in person or by proxy at a meeting of such
members duly called for this purpose.
(g) Date of Commencement of Assessments. The
General Assessment and Parcel Assessments shall commence
with respect to assessable Lots within a Parcel on the
first day of the month following conveyance of the first
Lot in the Parcel to an Owner who is not Declarant. The
initial Assessment on any assessable Lot shall be
adjusted according to the days remaining in the month in
which the Lot became subject to assessment.
(h) Effect of Nonpayment of Assessments; Remedies
of the Corporation. Any Assessment not paid within
thirty {30) days after the due date may upon resolution
of the Board of Directors bear interest from the due date
at a percentage rate no greater than the current
statutory maximum annual interest rate, to be set by the
Board of Directors for each assessment year. The
Corporation shall be entitled to institute in any court
of competent jurisdiction any lawful action to collect a
delinquent Assessment plus any expenses or costs,
including attorneys' fees, incurred by the Corporation in
collecting such Assessment. If the Corporation has
provided for collection of any Assessment in
installments, upon default in the payment of any one or
more installments, the Corporation may accelerate payment
and declare the entire balance of said Assessment due and
payable in full. No Owner may waive or otherwise escape
liability for the Assessments provided for herein by
non-use of the Community Area or abandonment of his Lot.
(i) Subordination of the Lien to Mortgages. The
lien of the Assessments provided for herein against a Lot
shall be subordinate to the lien of any recorded first
mortgage covering such Lot and to any valid tax or
special assessment lien on such Lot in favor of any
governmental taxing or assessing aut h ority. Sale or
transfer of any Lot shall not affect the assessment lien.
The sale or transfer of any Lot pursuant to mortgage
foreclosure or any proceeding in lieu thereof shall,
however, extinguish the lien of such Assessments as to
payments which became due more than six (6) months prior
to such sale or transfer. No sale or transfer shall
relieve such Lot from liability for any Assessments
thereafter becoming due or from the lien thereof.
( j) Certificates. The Corporation shall, upon
demand by an owner, at any time, furnish a certificate in
writing signed by an officer of the Corporation that the
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Assessments on a Lot have been paid or that certain
Assessments remain unpaid, as the case may be.
(k) Annual Budget. By a majority vote of the
Directors, the Board of Directors shall adopt an annual
budget for the subsequent fiscal year, which shall
provide for allocation of expenses in such a manner that
the obligations imposed by the Declaration and all
Supplemental Declarations will be met.
14. Architectural Control.
(a) The Architectural Review Board. An
Architectural Review Board consisting of three (3) or
more Persons as provided in the By-Laws shall be
appointed by the Board of Directors.
(b) Purpose. The Architectural Review Board shall
regulate the external design, appearance, use, location
and maintenance of the Tract and of improvements thereon
in such manner as to preserve and enhance values and to
maintain a harmonious relationship among structures,
improvements and the natural vegetation and topography.
(c) Conditions. Except as otherwise expressly
provided in this Declaration, no improvements,
alterations, repairs, change of colors, excavations,
changes in grade, planting or other work that in any way
alters any Lot or the exterior of the improvements
located thereon from its natural or improved state
existing on the date such Lot was first conveyed in fee
by Decl.arant to another owner shall be made or done
without the prior approval by the Architectural Review
Board of a Lot Development Plan therefor. Prior to the
commencement by any owner other than Declarant of (i)
construction, erection or alteration of any Residence,
other building, fence, wall, swimming pool, tennis court,
patio, or other structure on a Lot or (ii) any plantings
on a Lot, a Lot Development Plan with respect thereto
shall be submitted to the Architectural Review Board, and
no Residence, other building, fence, wall, swimming pool,
tennis court, patio or other structure shall be
commenced, erected, maintained, improved, altered, made
or done, or any plantings made, by any Person other than
Declarant without the prior written approval of the
Architectural Review Board of a Lot Development Plan
relating to such construction, erection, alteration or
plantings. Such approval shall be in addition to, and
not in lieu of, all approvals, consents, permits and/or
variances required by law from governmental authorities
having jurisdiction over Waterstone, and no Owner shall
undertake any construction activity within Waterstone
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unless all legal requirements have been satisfied. Each
Owner shall complete all improvements to a Lot strictly
in accordance with the Lot Development Plan approved by
the Architectural Review Board. As used in this
subparagraph (c), "plantings" does not include flowers,
bushes, shrubs or other plants having a height of less
than eighteen (18) inches.
(d) Procedures. In the event the Architectural
Review Board fails to approve, modify or disapprove in
writing a Lot Development Plan within sixty (60) days
after notice of such plan has been duly filed with the
Architectural Review Board in accordance with procedures
established by Declarant or, subsequent to the Applicable
Date, the Board of Directors, approval will be deemed
denied. A decision of the Architectural Review Board
(including a denial resulting from the failure of such
Board to act on the plan within the specified period) may
be appealed to the Board of Directors which may reverse
or modify such decision (including approve a Lot
Development Plan deemed denied by the failure of the
Architectural Review Board to act on such plan within the
specified period) by a two-thirds (2/3) vote of the
Directors then serving.
(e) Guidelines and Standards. The Architectural
Review Board shall have the power to establish and modify
from time to time such written architectural and
landscaping design guidelines and standards as it may
deem appropriate to achieve the purpose set forth in
subparagraph (b) to the extent that such design
guidelines and standards are not in conflict with the
specific provisions of this Declaration. Any such
guideline or standard may be appealed to the Board of
Directors which may terminate or modify such guideline or
standard by a two-thirds (2/3) vote of the Directors then
serving.
(f) Application of Guidelines and Standards. The
Architectural Review Board shall apply the guidelines and
standards established pursuant to subparagraph (e) in a
fair, uniform and reasonable manner consistent with the
discretion inherent in the design review process. In
disapproving any Lot Development Plan, the Architectural
Review Board shall furnish the applicant with specific
reasons for such disapproval and may suggest
modifications in such plan which would render the plan
acceptable to the Board if resubmitted.
(g) Design Consultants. The Architectural Review
Board may utilize the services of architects, engineers
and other Persons possessing design expertise and
-19-
experience in evaluating Lot Development Plans. No
presumption of any conflict of interest or impropriety
shall be drawn or assumed by virtue of the fact that any
of such consultants may, from time to time, represent
Persons filing Lot Development Plans with the
Architectural Review Board.
(h) Existing Violations of Declaration. The
Architectural Review Board shall not be required to
consider any Lot Development Plan submitted by an owner
who is, at the time of submission of such Lot Development
Plan, in violation of the requirements of the first two
sentences of Paragraph 4 (h) of a Supplemental Declaration
relating to the Parcel in which such Owner's Lot is
located and/or the provisions of subparagraph (c) of this
Paragraph 14, unless such owner submits to the
Architectural Review Board with such Lot Development Plan
an irrevocable agreement and undertaking (with such
surety as the Board may reasonably require) to remove
from the owner's Lot any improvements or landscaping
constructed and/or installed prior to the submission of
a Lot Development Plan (or constructed and/or installed
in violation of a previously approved Lot Development
Plan) to the extent any such previously constructed
and/or installed improvement or landscaping is not
subsequently approved by the Architectural Review Board.
The Architectural Review Board shall have the power to
recommend to the Board of Directors that the Corporation
assess an Architectural Control Assessment against any
Owner who fails to comply with the requirements of
Paragraph 4 of a Supplemental Declaration or Paragraph 14
of this Declaration. Under no circumstances shall any
action or inaction of the Architectural Review Board be
deemed to be unreasonable, arbitrary or capricious if, at
the time of such decision, the Person having submitted a
Lot Development Plan for approval by the Architectural
Review Board has violated Paragraph 4 of a Supplemental
Declaration or Paragraph 14 of this Declaration and such
violation remains uncured.
( i) Exercise of Discretion. Declarant intends that
the members of the Architectural Review Board exercise
discretion in the performance of their duties consistent
with the provisions of subparagraph (f), and every Owner
by the purchase of a Lot shall be conclusively presumed
to have consented to the exercise of discretion by such
members. In any judicial proceeding challenging a
determination by the Architectural Review Board and in
any action initiated to enforce this Declaration in which
an abuse of discretion by the Architectural Review Board
is raised as a defense, abuse of discretion may be
established only if a reasonable Person, weighing the
-20-
evidence and drawing all inferences in
Board, could only conclude that such
constituted an abuse of discretion.
15. Community Area.
favor of the
determination
(a) Ownership. The Community Area shall remain
private, and neither Declarant's execution or recording
of_an instrument portraying the Community Area, nor the
doing of any other act by Declarant is, or is intended to
be, or shall be construed as, a dedication to the public
of such Community Area. Declarant or the Corporation may,
however, dedicate or transfer all or any part of the
Community Area to any public agency, authority or utility
for use as roads, utilities, parks or other public
purposes.
(b) Density of Use. Declarant expressly disclaims
any warranties or representations regarding the density
of use of the Community Area or any facilities located
thereon.
(c) Obligations of the Corporation. The
Corporation, subject to the rights of Declarant and the
owners set forth in this Declaration, shall be
responsible for the exclusive management and control of
the Community Area and all improvements thereon
(including furnishings and equipment related thereto),
and, except as otherwise provided herein or in a
Supplemental Declaration, shall keep the Community Area
in good, clean, attractive and sanitary condition, order
and repair.
(d) Easements of Enjoyment. No Person shall have
any right or easement of enjoyment in or to the Community
Area except to the extent granted by, and subject to the
terms and provisions of, this Declaration or any
Supplemental Declaration. Such rights and easements as
are thus granted shall be appurtenant to and shall pass
with the title to every Lot for whose benefit they are
granted. Unless otherwise provided in a Supplemental
Declaration or a Plat, all Owners may use the Paths, the
Community Center and the Commons subject to the reserved
rights of Declarant and the Corporation. The owners of
Lots abutting a Lake may use such Lakes, but such use
shall be limited to fishing and such other uses as may be
authorized by resolution adopted by the Board of
Directors. Subject to restrictions on points of access,
Lake 1 may be used by all owners, but only for fishing
and such other purposes as may be authorized by the Board
of Directors. No owner whose Lot does not abut a Lake
shall have any right of access to a Lake over any Lot,
-21-
Mortgagees (based on one vote for each first
mortgage owned), voting in person or by proxy
at a regular meeting of the Corporation or a
meeting duly called for this purpose;
(v) the right of the Corporation to
dedicate or transfer all or any part of the
Community Area to any public agency, authority
or utility, but no such dedication or transfer
shall be effective unless an instrument signed
by the appropriate officers of the Corporation
acting pursuant to authority granted by
two-thirds (2/3) of the votes of the Members
(excluding Declarant) or two-thirds (2/3) of
the Mortgagees (based on one vote for each
first mortgage owned), agreeing to such
dedication or transfer, has been recorded; and
(vi) the right of Declarant in any
Supplemental Declaration or Plat to restrict
the use of Community Area located in a Section
to (a) Owners of Residences located in such
Section or (b) to other Owners of less than
all of the Lots in the Tract.
(f) Additional Rights of Use. The members of the
family and the guests of every Person who has a right of
enjoyment to the Community Area and facilities may use
the Community Area and facilities subject to such general
regulations consistent with the provisions of this
Declaration and all Supplemental Declarations as may be
established from time to time by the Corporation and
included within the Register of Regulations.
(g) Damage or Destruction by owner. In the event
the Community Area is damaged or destroyed by an Owner or
any of his guests, tenants, licensees, agents, or member
of his family, such Owner authorizes the Corporation to
repair said damaged area; the Corporation shall repair
said damaged area in a good workmanlike manner in
conformance with the original plans and specifications of
the area involved, or as the area may have been modified
or altered subsequently by the Corporation in the
discretion of the Corporation. An amount equal to the
costs incurred to effect such repairs shall be assessed
against such Owner as a Special Assessment and shall
constitute a lien upon the Lot of said Owner.
(h) Conveyance of Title. Declarant may retain the
legal title to the Community Area or any portion thereof
until such time as it has completed improvements thereon,
but notwithstanding any provision herein, the Declarant
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hereby. covenants that it shall convey the Lakes, the
Community Center and the Commons to the Corporation, free
and clear of all liens and financial encumbrances except
as otherwise provided herein, not later than two ( 2)
years from the date such Community Area or portion
thereof is subjected to this Declaration. Owners shall
have all the rights and obligations imposed by this
Declaration with respect to such Community Area prior to
conveyance, except that the Corporation shall not be
liable for payment of taxes and insurance for such
Community Area until title is conveyed.
16. Use of Tract.
(a) Protective Covenants.
(i) Land Use. Lots may be used only for
residential purposes and only one Residence
not to exceed two and one-half stories or 25
feet in height measured from finish grade to
the underside of the eve line may be
constructed thereon. No portion of any Lo~
may be sold or subdivided such that there will
be thereby a greater number of Residences in
Waterstone than the number of original Lots
depicted on the Plats. Notwithstanding any
provision in the applicable zoning ordinance
to the contrary, no Lot may be used for any
"Special Use" that is not clearly incidental
and necessary to single family dwellings. No
home occupation shall be conducted or
maintained on any Lot other than one which
does not constitute a "special use" and is
incidental to a business, profession or
occupation of the Owner or occupant of such
Lot and which is generally or regularly
conducted at another location which is away
from such Lot. No signs of any nature, kind
or description shall be erected, placed, or
permitted to remain on any Lot advertising a
permitted home occupation.
( ii) Nuisances. No nuisance shall be
permitted to exist or operate upon any Lot so
as to be detrimental to any other Lot in the
vicinity thereof or to its occupants.
(iii) Other Restrictions. The Architec-
tural Review Board may adopt general rules and
regulations to implement the purposes set
forth in Paragraph 14(b) and to supplement any
covenants or restrictions set forth in a
-24-
Supplemental Declaration, including but not
limited to rules to regulate animals,
antennas, signs, fences, walls and screens
mailboxes, storage tanks, awnings, storage and
use of recreational vehicles, storage and use
of machinery, use of outdoor drying lines
trash containers, and planting, maintenanc~
and removal of vegetation on the Tract. The
Architectural Review Board may adopt general
rules and regulations appropriate to each
Parcel, which rules and regulations may vary
among Parcels. Such general rules may be
amended by a two-thirds ( 2 / 3) vote of the
Architectural Review Board. Subsequent to the
Applicable Date, any such amendment may be
made only after a public hearing for which due
notice to all affected owners has been
provided, and if such amendments are approved
by a two-thirds ( 2 / 3) vote of the Board of
Directors. All general rules and any
subsequent amendments thereto shall be placed
in the Register of Regulations and shall
constitute Restrictions.
(iv) Exceptions. The Architectural
Review Board may authorize exceptions to or
variances from the general rules and
regulations adopted pursuant to clause (iii)
if the Architectural Review Board can show
good cause and acts in accordance with adopted
guidelines and procedures.
(b) Maintenance of Tract. To the extent that
exterior maintenance is not provided for in a
Supplemental Declaration, each owner shall keep all Lots
owned by him, and all improvements therein or thereon, in
good order and repair and free of debris including, but
not limited to, the seeding, watering, and mowing of all
lawns, the pruning and cutting of all trees and shrubbery
and the painting (or other appropriate external care) of
all buildings and other improvements, all in a manner and
with such frequency as is consistent with good property
management as determined by the Architectural Review
Board. In the event an Owner of any Lot in the Tract
shall fail to maintain the premises and the improvements
situated thereon, as provided herein, the Corporation,
after notice to the owner as provided by the By-Laws and
approval by two-thirds (2/3) vote of the Board of
Directors, shall have the right to enter upon said Lot to
correct drainage and to repair, maintain and restore the
Lot and the exterior of the buildings and any other
improvements erected thereon. All costs related to such
-25-
correction, repair or restoration shall become a Special
Assessment upon such Lot.
17. Easements.
(a) Plat Easements. In addition to such easements
as are created elsewhere in this Declaration or in a
Supplemental Declaration and as may be created by
Declarant pursuant to written instruments recorded in the
office of the Recorder of Hamilton county, Indiana, Lots
are subject to drainage easements, sewer easements,
utility easements, entry way easements, landscape
easements, lake access easements, community area access
easements, pathway easements, berm easements and
non-access easements, either separately or in any
combination thereof, as shown on the Plats, which are
reserved for the use of Declarant, Owners; the
Corporation, the Architectural Review Board, public
utility companies and governmental agencies as follows:
(i) Drainage Easements (DE) are created
to provide paths and courses for area and
local storm drainage, either overland or in
adequate underground conduit, to serve the
needs of Waterstone and adjoining ground
and/or public drainage systems; and it shall
be the individual responsibility of each Owner
to maintain the drainage across his own Lot.
Under no circumstance shall said easement be
blocked in any manner by the construction or
reconstruction of any improvement, nor shall
any grading restrict, in any manner, the
waterflow. Said areas are subject to
construction or reconstruction to any extent
necessary to obtain adequate drainage at any
time by any governmental authority having
jurisdiction over drainage, by Declarant, and
by the Architectural Review Board, but neither
Declarant nor the Architectural Review Board
shall have any duty to undertake any such
construction or reconstruction. Said
easements are for the mutual use and benefit
of the Owners.
(ii) Sewer Easements (SE) are created for
the use of the local governmental agency
having jurisdiction over any storm and
sanitary waste disposal system which may be
designed to serve Waterstone for the purpose
of installation and maintenance of sewers that
are a part of said system.
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(iii) Utility Easements (UE) are created
for the use of Declarant, the Corporation and
all public or municipal utility companies, not
including transportation companies, for the
installation and maintenance of mains, ducts,
poles, lines and wires, as well as for all
uses specified in the case of sewer easements.
(iv) Entry Way Easements (EWE) are
created for the use by Declarant, the
Architectural Review Board and the Corporation
for the installation, operation and
maintenance of the Entry Ways.
(v) Landscape Easements (LE) are created
for the use by Declarant, the Architectural
Review Board and the Corporation for the
planting and maintenance of trees, shrubs and
other plantings.
(vi) Lake Access Easements (LAE) are
created for the use of Declarant, the
Corporation, the Drainage Board and the City
of Carmel for the purpose of gaining access to
the Lakes in the course of maintenance, repair
or replacement of any thereof.
(vii) Community Area Access Easements
(CAE) are created for the use of Declarant and
the Corporation for the purpose of gaining
access to the Commons in the course of
maintenance, repair or replacement thereof and
for the use of owners for the purpose of
gaining access to the Commons to enjoy the use
thereof to the extent authorized herein.
(viii) Pathway Easements (PE) are created
for the installation by Declarant, the
maintenance by the Corporation and the use by
the owners of the Paths and Path Lights.
(ix) Berm Easements (BE) are created for
use by Declarant, the Architectural Review
Board and the Corporation for the maintenance
of the Berm.
(x) Non-Access Easements (NAE) are
created to preclude access from certain Lots
to abutting rights-of-way across the land
subject to such easements.
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All easements mentioned herein include the right of reasonable
ingress and egress for the exercise of other rights reserved.
No structure, including fences, shall be built on any
drainage, sewer or utility easement if such structure would
interfere with the utilization of such easement for the
purpose intended or violate any applicable legal requirement
or the terms and conditions of any easement specifically
granted to a Person who is not an Owner by an instrument
recorded i~ the Office of the Recorder of Hamilton county, but
a paved driveway necessary to provide access to a Lot from a
public street and a sidewalk installed by or at the direction
of Declarant (and replacements thereof) shall not be deemed a
"structure" for the purpose of this Restriction.
(b) General Easement. There is hereby created a
blanket easement over, across, through and under the
Tract for ingress, egress, installation, replacement,
repair and maintenance of underground utility and service
lines and systems, including but not limited to water,
sewers, gas, telephones, electricity, television, cable
or communication lines and systems. By virtue of this
easement it shall be expressly permissible for Declarant
or the providing utility or service company to install
and maintain facilities and equipment on the Tract and to
excavate for such purposes if Declarant or such company
restores the disturbed area as nearly as is practicable
to the condition in which it was found. No sewers,
electrical lines, water lines, or other utility service
lines or facilities for such utilities may be installed
or relocated in a Section except as proposed and approved
by Declarant prior to the conveyance of the first Lot in
a Section to an Owner or by the Architectural Review
Board thereafter. Should any utility furnishing a
service covered by the general easement herein provided
request a specific easement by separate recordable
document, Declarant or the Corporation shall have the
right to grant such easement on the Tract without
conflicting with the terms hereof. This blanket easement
shall in no way affect any other recorded easements on
the Tract, shall be limited to improvements as originally
constructed, and shall not cover any portion of a Lot
upon which a Residence has been constructed.
(c) Public Health and Safety Easements. An
easement is hereby created for the benefit of, and
granted to, all police, fire protection, ambulance,
delivery vehicles, and all similar Persons to enter upon
the Community Area in the performance of their duties.
(d) Drainage Board Easement. An easement is hereby
created for the benefit of, and granted to, the Drainage
Board to enter the Tract and all Lots therein to the
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extent necessary to exercise its rights with respect to
any legal drain constituting a part of the Drainage
System.
( e) Crossing Underground Easements. Easements
utilized for underground service may be crossed by
driveways, walkways, Paths, Lake Access Easements and
Community Area Access Easements provided prior
arrar:igements are made with the utility company furnishing
service. Such easements as are actually utilized for
underground service shall be kept clear of all other
improvements, including buildings, patios, or other
pavings, other than crossings, driveways, walkways,
Paths, Lake Access Easements or Community Area Access
Easements, and neither Declarant nor any utility company
using the easements shall be liable for any damage done
by either of them or their assigns, agents, employees, or
servants to shrubbery, trees, flowers or other
improvements of the Owner located on the land covered by
said easements.
(f) Declarant's Easement to Correct Drainage. For
a period of ten (10) years from the date of conveyance of
the first Lot in a Section, Declarant reserves a blanket
easement and right on, over and under the ground within
that Section to maintain and to correct drainage of
surface water in order to maintain reasonable standards
of health, safety and appearance. Such right expressly
includes the right to cut any trees, bushes or shrubbery,
make any gradings of the soil, or to take any other
similar action reasonably necessary, following which
Declarant shall restore the affected property to its
original condition as nearly as practicable. Declarant
shall give reasonable notice of its intention to take
such action to all affected Owners, unless in the opinion
of Declarant an emergency exists which precludes such
notice.
(g) Water Retention. The Owner of each Lot, by
acceptance of a deed thereto, consents to the temporary
storage (detention) of storm water within the drainage
easements (DE) on such Owner's Lot.
18. Use of Lots During Development.
( a) By Declarant. Notwithstanding any
provisions to the contrary contained herein or
in any other instrument or agreement,
Declarant or its sales agents or contractors
may maintain during the period of construction
and sale of Lots and Residences in the Tract
or the Development Area, upon such portion
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..
thereof as is owned or leased by Declarant
such facilities as in the sole opinion of
Declar~nt ma~ _be reasonably required,
convenient or incidental to the construction
and s_ale of ~o~s. and Residences, including,
but without limiting the generality thereof a
business _off ice, storage area, construction
yards, signs, model Residences and sales
offices. Declarant specifically reserves the
right to maintain a sales office in the
Community Center during the period that it is
engaged in the sale of Lots in Waterstone.
(b) By Builders. Notwithstanding any
provisions to the contrary contained herein, a
builder who has constructed a Residence in
Waterstone may, with the prior consent of the
Board of Directors, use such Residence as a
"model" home and may hold such home open to
the public, either individually or as part of
a "home show" approved by the Board of
Directors for such reasonable period as the
Board of Directors may specify. With the
approval of Declarant, Lots adjacent to or in
proximity to such model home may be used for
parking by visitors to such model home.
19. Enforcement. The Corporation, any Owner or Declarant
shall have the right to enforce, by proceeding at law or in equity,
all restrictions, conditions, covenants, reservations, liens and
charges now or hereafter imposed by the provisions of this
Declaration and of any Supplemental Declarations, but neither
Declarant nor the Corporation shall be liable for damage of any
kind to any Person for failure either to abide by, enforce or carry
out any of the Restrictions. No delay or failure by any Person to
enforce any of the Restrictions or to invoke any available remedy
with respect to a violation or violations thereof shall under any
circumstances be deemed or held to be a waiver by that Person of
the right to do so thereafter, or an estoppel of that Person to
assert any right available to him upon the occurrence, recurrence
or continuation of any violation or violations of the Restrictions.
In any action to enforce this Declaration, the Person seeking
enforcement shall be entitled to recover all costs of enforcement,
including attorneys' fees, if it substantially prevails in such
action.
20. Limitations on Rights of the Corporation. Prior to the
Applicable Date, the Corporation may not use its resources nor take
a public position in opposition to the General Plan of Development
or to changes thereto proposed by Declarant. Nothing in this
paragraph shall be construed to limit the rights of the Members
acting as individuals or in affiliation with other Members or
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•
. .
groups as long as they do not employ the resources of the
Corporation or identify themselves as acting in the name, or on the
behalf, of the Corporation.
21. Approvals by Declarant. Notwithstanding any other
pro:7isions hereof, prior to the Applicable Date, the following
actions shall require the prior approval of Declarant: the
addition of real estate to the Tract; dedication or transfer of the
Community Area; mergers and consolidations of Sections within the
Tract or of the Tract with other real estate; mortgaging of the
Community Area; amendment of this Declaration and any Supplemental
Declaration; and changes in the basis for assessment or the amount,
use and time of payment of the Community Area Initial Assessment.
22. Mortgages
(a) Notice to Corporation . Any Owner who places a
first mortgage lien upon his Res i dence or the Mortgagee
shall notify the Secretary of the Board of Directors of
such mortgage and provide the name and address of the
Mortgagee. A record of such Mortgagee's name and address
shall be maintained by the Secretary and any notice
required to be given to the Mortgagee pursuant to the
terms of the Declaration any Supplemental Declaration,
the Articles or the By-Laws (the "Organizational
Documents") shall be deemed effectively given if mailed
to such Mortgagee at the address shown in such record in
the time provided. Unless notification of any such
mortgage and the name a n d address of Mortgagee are
furnished to the Secretary, either by the Owner or the
Mortgagee, no notice to any Mortgagee as may be otherwise
required by the Organizational Documents shall be
required and no Mortgagee shall be entitled to vote by
virtue of the Organizational Documents or a proxy granted
to such Mortgagee in connection with the mortgage.
(b) Notices to Mortgagees . The Corporation shall
promptly provide to any Mortgagee of whom the Corporation
has been provided notice under s ubparagraph (a) above
notice of any of the following:
( i) Any condemnation or casualty
that affects a material portion of
Community Area;
loss
the
( ii) Any delinquency in the payment of
any Assessment owed by the owner of any
Residence on which said Mortgagee holds a
mortgage or any default by an Owner under the
organizational Documents, if said delinquency
or default continues for more than sixty (60)
days;
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..
(iii) Any lapse, cancellation or material
modification of any insurance policy or
fidelity bond maintained by the Corporation;
(iv) Any proposed action that requires
the consent of a specified percentage of
Mortgagees; and,
(v) Any proposed amendment of the
Organizational Documents effecting a change in
(A) the interests in the Community Area
appertaining to any Residence or the liability
for Maintenance Costs appertaining thereto,
(B) the vote appertaining to a Residence or
(C) the purposes for which any Residence or
the Community Area are restricted.
(c) Notice of Unpaid Assessments. The Corporation
shall, upon request of a Mortgagee, a proposed mortgagee,
or a proposed purchaser who has a contractual right to
purchase a Residence, furnish to such mortgagee or
purchaser a statement setting forth the amount of the
unpaid Assessments against the Residence and the owners,
and any Mortgagee or grantee of the Residence shall not
be liable for, nor shall the Residence conveyed be
subject to a lien for, any unpaid Assessments in excess
of the amount set forth in such statement.
(d) Financial Statements. Upon the request of any
Mortgagee, the Corporation shall provide to said
Mortgagee the most recent financial statement prepared on
behalf of the Corporation.
(e) Payments by Mortgagees. Any Mortgagee may (i}
pay taxes or other charges that are in default and that
may or have become a lien upon the Community Area or any
part thereof and ( ii) pay overdue premiums on hazard
insurance policies or secure new hazard insurance
coverage for the Community Area in case of a lapse of a
policy. A Mortgagee making such payments shall be
entitled to immediate reimbursement from the Corporation.
23. Amendments.
(a} Generally. This Declaration may be amended at
any time by an instrument signed by (i) the appropriate
officers of the Corporation acting pursuant to the
authority granted by not less than two-thirds (2/3) of
the votes of the Members cast at a meeting duly called
for the purpose of amending this Declaration and, to the
extent required by Paragraph 21, (ii) Declarant.
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,,
(b) By Declarant. Declarant hereby reserves the
right prfor to the Applicable Date unilaterally to amend
and revise the standards, covenants and restrictions
contained in this Declaration. Such amendments shall be
in writing, executed by Declarant, and recorded with the
Recorder of Hamil ton County, Indiana. No such amendment,
however, shall restrict or diminish the rights or
increase or expand the obligations of Owners with respect
to Lots conveyed to such Owners prior to the amendment or
adversely affect the rights and interests of Mortgagees
holding first mortgages on Residences at the time of such
amendment. Declarant shall give notice in writing to such
Owners and Mortgagees of any amendments. Except to the
extent authorized in Paragraph 17 (b) , Declarant shall not
have the right at any time by amendment of this
Declaration to grant or establish any easement through,
across or over any Lot which Declarant has previously
conveyed without the consent of the Owner of such Lot.
( c) Effective Date. Any amendment sha 11 become
effective upon its recordation in the Office of the
Recorder of Hamilton County, Indiana.
24. Interpretation. The underlined titles preceding the
various paragraphs and subparagraphs of this Declaration are for
convenience of reference only, and none of them shall be used as -an
aid to the construction of any provision of this Declaration.
Wherever and whenever applicable, the singular form of any word
shall be taken to mean or apply to the plural, and the masculine
form shall be taken to mean or apply to the feminine or to the
neuter.
25. Duration. The foregoing covenants and restrictions are
for the mutual benefit and protection of the present and future
Owners, the Corporation, and Declarant, and shall run with the land
and shall be binding on all parties and all Persons claiming under
them until January 1, 2 02 3, at which time said covenants and
restrictions shall be automatically extended for successive periods
of ten (10) years, unless changed in whole or in part by vote of
those Persons who are then the owners of a majority of the Lots in
the Tract.
26. Severability. Every one of the Restrictions is hereby
declared to be independent of, and severable from, the rest of the
Restrictions and of and from every other one of the Restrictions,
and of and from every combination of the Restrictions. Therefore,
if any of the Restrictions shall be held to be invalid or to be
unenforceable, or to lack the quality of running with the land,
that holding shall be without effect upon the validity,
enforceability or "running" quality of any other one of the
Restrictions.
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,.
.. 2?· Non-Liability of Declarant. Declarant shall not have any
l1ab1l1ty to an Owner or to any other Person with respect to
drainage on, over or under a Lot. Such drainage shall be the
responsibility of the Owner of the Lot upon which a Residence is
constructed and of the builder of such Residence and an Owner, by
an acceptance of a deed to a Lot, shall be deemed to agree to
indemnify and hold Declarant free and harmless from and against any
and all liability arising from, related to, or in connection with
drainage on, over and under the Lot described in such deed.
Declarant shall have no duties, obligations or liabilities
hereunder except such as are expressly assumed by Declarant, and no
duty of, or warranty by, Declarant shall be implied by or inferred
from any term or provision of this Declaration.
IN TESTIMONY WHEREOF, Declarant has executed this Declaration
as of the date set forth above.
STATE OF INDIANA
COUNTY OF MARION
)
) SS:
)
WATERSTONE LAND COMPANY, L.P.
By
George P. Sweet,
General Manager
Before me, the undersigned, a Notary Public in and for said
County and State, personally appeared George P. Sweet, the General
Manager of Waters tone Land Company, L. P. , an Indiana limited
partnership, who acknowledged the execution of the above and
foregoing Declaration of Covenants and Restrictions for and on
behalf of said partnership.
WITNESS my hand and Notarial Seal this
1993.
day of
Notary Public Residing in
county
(printed signature)
My Commission Expires:
This instrument prepared by Tom Charles Huston, Attorney at Law,
B~6 Merchants Bank Building, 11 South Meridian Street,
Indianapolis, Indiana 46204.
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ARTICLES OF INCORPORATION
OF
WATERSTONE HOMEOWNERS ASSOCIATION, INC.
The undersigned incorporator, desiring to form a corporation
pursuant to the provisions of the Indiana Nonprofit Corporation Act
of 1991, executes the following Articles of Incorporation:
ARTICLE 1
Name
Section 1.01. Name. The name of this Corporation is WATER-
STONE HOMEOWNERS ASSOCIATION, INC.
ARTICLE 2
Purposes and Powers
Section 2.01. Type of Corporation.
mutual benefit corporation.
This Corporation is a
Section 2.02. Primary Purposes. The purposes for which this
Corporation is formed are to own, manage, maintain, reserve, repair
and reconstruct the Community Area, provide architectural control
of the Lots at Waterstone and exercise all of the power and
privileges, and perform all of the duties and obligations, of the
Corporation as set forth in the Declaration.
Section· 2.03. Additional Purposes. In addition, the
Corporation is formed for the promotion of the health, safety and
welfare of the residents of Waterstone and other nonprofitable
purposes that are authorized by the Act and permitted to be carried
on by an organization exempt from Federal income taxation under the
provisions of Section 528 of the Code.
Section 2. 04. Specific Powers. Subject to any specific
'written limitations or restrictions imposed by the Act, by the
Code, by other law, or by the Declaration or the Articles, and
solely in furtherance of but not in addition to the purposes set
forth in Section 2.02 and 2.03 of these Articles, the Corporation
shall have the following specific powers:
Clause {a). To Manage. etc. To manage, maintain,
repair and replace the Property for the benefit and use
of the members of the Corporation subject to such
restraints or suspensions of use and voting rights of
members as are provided herein, in the By-Laws, and in
the Declaration.
Clause (b). To Make Assessments. To fix, levy, and
collect Assessments and to enforce payment thereof by all
lawful means.
Clause (c). To Promulgate Rules. To promulgate
such rules and regulations and perform such deeds as are
deemed necessary to achieve the aforesaid purposes.
Clause (d). To Insure. To secure from insurers
licensed and approved in the State of Indiana appropriate
fire-property damage coverage, comprehensive general
liability coverage and such other forms of insurance as
may be deemed necessary or appropriate.
Clause (e). To Secure Services. To secure profes-
sional managerial services by employing a professional
manager, contracting with a professional management
service or entity, or otherwise, which services may
include administrative, managerial, bookkeeping, legal,
architectural, engineering, maintenance, repair,
construction and other services.
Clause (f). To Acquire and Dispose of Property.
To acquire by gift, purchase or other means, to own,
hold, enjoy, lease, operate, maintain, convey, sell,
transfer, mortgage or otherwise encumber or dedicate for
public use, real or personal property in connection with
the business of the Corporation subject to the provisions
of the Declaration.
Clause (g). To Borrow. To borrow money and,
subject to the provisions of the Declaration, to give, as
security therefor, a mortgage or other security interest
in any or all real or personal property owned by the
Corporation, or a pledge of monies to be received
pursuant to the provisions of the Declaration, and to
assign and pledge its right to make Assessments and its
rights to claim a lien therefor.
Clause (h). To Appoint a Fiscal Agent. To appoint
any Person as its fiscal agent to collect all Assessments
and charges levied by the Corporation and to enforce the
Corporation's liens for unpaid Assessments and charges or
any other lien held by the Corporation.
Clause ( i) . To Make Contracts.
perform, cancel and rescind all kinds
obligations, including the guarantee of
and performance of others.
To enter into,
of contractual
the obligations
Clause (j). To Act With Others. To perform any act
which the Corporation acting alone has the power and
-2-
capacity to perform by acting as a partner or otherwise
in association with any Person or Persons, whether
legally constituted or informally organized.
Clause (k) . To Pay. To pay all Operating Expenses
• • • I including all licenses, taxes or governmental charges
levied or imposed against the Property to the extent the
same is separately assessed against the Property.
Clause (1). To Merge. To participate in mergers
and consolidations with other not-for-profit corporations
organized for the same purpose.
Clause (m) . To Otherwise Act. To have and to
exercise any and all powers, rights and privileges which
a corporation organized under the Act may now or
hereafter have or exercise.
Section 2.05. Limitations Upon Powers. No part of the net
earnings of the Corporation shall inure to the benefit of any
Director or Officer of the Corporation or to any private
individual, except that the Corporation shall be authorized and
empowered to pay reasonable compensation for services rendered by
a Director, Officer or employee and to pay principal and interest
at a reasonable rate not exceeding current market rates on funds
loaned or advanced by a Director or Officer to the Corporation. No
substantial part of the activities of the Corporation shall consist
of attempting to propose, support, oppose, advocate the adoption or
rejection of, or otherwise influence legislation by propaganda or
otherwise, and the Corporation shall not participate in or
intervene ( including the publication or distribution of statements)
in any political campaign on behalf of, or in opposition to, any
candidate for public office. Notwithstanding any other provision
of these Articles, the Corporation shall not conduct or carry on
any activities not permitted to be conducted or carried on by an
organization exempt from federal taxation under Section 528 of the
Code and the Applicable Regulations or the corresponding provisions
of any subsequent federal tax laws if the effect thereof is to
subject the gross income of the Corporation to federal income
,taxation at rates established for corporations engaged in business
for profit unless the purposes of the Corporation set forth in
Section 2.02 of these Articles cannot otherwise be achieved.
ARTICLE 3
Registered Office and Registered Agent
Section 3.01. Registered Office. The street address of the
registered office of the Corporation is suite 2, 9502 Angola Court,
Indianapolis, Indiana 46268.
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Section 3.02. Registered Agent. The name of the registered
agent of the Corporation at the registered off ice is George P.
Sweet.
ARTICLE 4
Membership
Section 4.01. Classes of Membership. The Corporation shall
have a single class of members. Every Person who is an Owner shall
be a member of the Corporation. Membership shall be appurtenant to
and may not be separated from the ownership of a Lot.
Section 4.02. Voting Rights. Each Lot shall have appurtenant
thereto one (1) vote which may be cast by the Owners thereof who
are present in person or proxy pursuant to the voting procedures
established in the By-Laws.
Section 4.03. Termination of Membership. Membership in the
Corporation shall lapse and terminate when a Member ceases to be an
Owner.
Section 4.04. Suspension of Membership Rights. No Member may
be expelled from membership in the Corporation for any reason. The
Board of Directors shall have the right to suspend the voting
rights of a Member for a period during which any Assessment or
charge owed by the Member remains unpaid in excess of thirty (30)
days.
Section 4. 05. Meetings of Members. All meetings of the
Members shall be held at such place within the State of Indiana as
may be designated by the Board of Directors pursuant to the
provisions of the By-Laws.
Section 4.06. No Other Preferences. etc. There shall be no
other preferences, limitations, or restrictions with respect to the
relative rights of the Members.
ARTICLE 5
Directors
Section 5. 01. Number of Directors. The initial Board of
Directors of the Corporation shall consist of three (3) members.
The n·umber of Directors of the Corporation shall be specified from
time to time in the By-Laws, but the minimum number shall be three
(3) and the maximum number shall be fifteen (15) and, if the
By-Laws fails to specify the number, then the number shall be three
( 3) •
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Section 5.02. Initial Directors. The initial members of the
Board of Directors are George P. Sweet, Glenda s. Garrison and Ann
C. Parker.
Section 5. 03. Appointment of Directors. Prior to the
Applicable Date, members of the Board of Directors shall be
appointed by Developer. Therafter they shall be elected by the
Members in accordance with the provisions of the Code of By-Laws.
ARTICLE 6
Incorporator
Section 6. 01. Name and Address of Incorporator. The name and
post office address of the incorporator is as follows:
Tom Charles Huston
Post Office Address
1313 Merchants Bank Building
Indianapolis, Indiana 46204
ARTICLE 7
Provision for Regulation and Conduct
of the Affairs of Corporation
Section 7.01. Management of Corporation. The affairs of the
Corporation shall be managed by the Board of Directors.
Section 7.02. Code of By-Laws. Subject to the provisions of
Section 7.04, the Board of Directors of the Corporation shall have
the power, without the assent of the Members, to make, alter,
amend, or repeal the By-Laws.
Section 7.03. Amendment of Articles of Incorporation. The
Corporation reserves, subject to the provisions of Section 7.04,
the right to amend, alter, change or repeal any provisions
;contained in the Articles or in any amendment hereto, in any manner
now or hereafter prescribed or permitted by the Act or any
amendment thereto; but such power of amendment does not authorize
any amendment that would permit any part of the net earnings of the
Corporation to inure to the benefit of any private individual, that
would modify the provisions of Section 2.05 if such modification
would have the effect of disqualifying this Corporation as an
organization exempt from Federal income taxation under the
provisions of Section 528 of the Code, as amended, or such
equivalent provision as may hereafter exist from time to time, or
that would be in conflict with the provisions of the Declaration.
-5-
Section 7. 04. Approval by Developer. Prior to the Applicable
Date, each amendment to these Articles and to the Code of By-Laws
must be approved in writing by Developer.
ARTICLE 8
Dissolution
Section 8.01. Dissolution. In the event of dissolution of
the Corporation, assets remaining after payment of all debts of the
Corporation shall be transferred by the Board of Directors to the
City of Carmel, Indiana to be used for purposes similar to those
for which this Corporation was organized. If such transfer is
refused, then such assets shall be transferred by the Board of
Directors to the State of Indiana, or any instrumentality or
subdivision thereof, exclusively for public purposes, or to any
nonprofit corporation, trust, foundation or other organization
whose purposes are substantially the same as one or more of the
purposes of the Corporation set forth in Section 2.02 hereof and
which, at the time of transfer, is exempt from Federal income
taxation under Sections 501(c) (3), 501(c) (4) or 528 of the Code or
the corresponding provisions of any subsequent federal tax laws.
Any such assets not so transferred by the Board of Directors shall
be disposed of by the Circuit Court of Hamilton County, Indiana
exclusively for such charitable purposes or to such charitable
organization as the Court shall determine. No Director or Officer
of the Corporation, or any private individual, shall be entitled to
share in the distribution of any of the assets of the Corporation
on dissolution of the Corporation.
ARTICLE 9
Definitions
Section 9.01. Terms. The following terms, as used in these
Articles, and in the By-Laws, unless the context clearly requires
otherwise, shall mean the following:
"Act" means The Indiana Nonprofit Corporation Act of
1991, as amended from time to time.
"Applicable Date" means the earlier of (i) the date when
all Lots in the Development Area have been improved by
the construction thereon of Residences or (ii) Decem-
ber 31, 2003.
"Applicable Regulations" means the regulations issued
with respect to referenced provisions of the Code by the
Internal Revenue Service as the same may be amended from
time to time.
-6-
"Articles" means the Articles of Incorporation of the
Corporation, as amended from time to time.
"Assessment" means all sums lawfully assessed against the
Members by the Corporation or as declared by the
Declaration, the Articles or the By-Laws.
"Board of Directors" means the governing body of the
Corporation.
"By-Laws" means the Code of By-Laws of the Corporation,
as amended from time to time.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Community Area" has the meaning specified in the
Declaration.
"Corporation" means Waterstone Homeowners Association,
Inc., an Indiana not-for-profit corporation.
"Declaration" means the Declaration of Covenants,
Conditions and Restrictions for Waterstone which has been
or will be recorded in the office of the Recorder of
Hamilton County, Indiana, as the same may be amended from
time to time.
"Development Area" means the real estate described in
Exhibit A to the Declaration.
"Developer" means Waters tone Land Company, L. P. , its
successors and assigns to its interest in the Tract other
than Owners purchasing Lots by deed from Developer
(unless the conveyance indicates an intent that the
grantee assume the rights and obligations of Developer).
"Lot" means a platted lot as shown on a final secondary
plat of any part of the Tract.
"Member" means a Member of the Corporation.
"Operating Expenses" means expenses of administration of
the Corporation and expenses for the upkeep, maintenance,
repair and replacement of the Community Area and other
Property.
"Owner" means a Person, including Developer, who at the
time has or is acquiring any interest in a Lot except a
Person who has or is acquiring such an interest merely as
security for the performance of an obligation.
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"Person" means an individual, firm, corporation,
partnership, association, joint venture, trust or other
legal entity, or any combination thereof.
"Property" means the Community Area and appurtenant
easements, improvements and other property of every kind
and nature whatsoever, real, personal or mixed, located
upon the Community Area or used or held for use in con-
nection with the business or operation of the
Corporation.
"Regulations" means the regulations issued pursuant to
the Code as the same may be amended from time to time.
"Tract" means that part of the Development Area, the use
and development of which is subject to the terms and
provisions of the Declaration.
Section 8.02. Other Terms. Any undefined term used herein or
in the By-Laws shall, unless the context requires otherwise, have
the meaning set forth in Paragraph 1 of the Declaration.
IN WITNESS WHEREOF, the undersigned, being the Incorporator
designated in Article 6, executes these Articles of Incorporation
this __ day of ______ , 1993.
Tom Charles Huston
TCH00695
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CODE OF BY-LAWS
OF
WATERSTONE HOMEOWNERS ASSOCIATION, INC.
ARTICLE 1
Definitions
The definitions and terms as defined and used in the Articles
of Incorporation shall have the same meaning in these By-Laws and
reference is specifically made to Article 9 thereof containing
definition of terms.
ARTICLE 2
Meetings of Members
Section 2.01. Place of Meetings. All meetings of the Members
shall be held at such place in Hamilton or Marion Counties, Indiana
as may be designated by the Board of Directors and specified in the
respective notices or waivers of notice thereof.
Section 2. 02. Annual Meeting. An annual meeting of the
Members shall be held between April 1 and June 30 of each year.
Section 2. 03. Special Meetings.
Members may be called by the President,
of Directors, or by written petition
one-tenth (1/10} of all of the Members.
Special meetings of the
by a majority of the Board
signed by not less than
Upon a request in writing delivered to the President or the
Secretary by a Person or Persons entitled to call a special
meeting, it shall be the duty of the President or the Secretary to
give notice to the Members of such meeting, and, if such request is
refused, the Person or Persons making such request may call a
~eeting by giving notice in the manner hereinafter provided.
Business transacted at all special meetings shall be limited
to the subjects stated in the call or waiver of notice, and matters
germane thereto.
Section 2. 04. Notice of Meetings. A written or printed
notice stating the place, day and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which such
meeting is called, shall be delivered or mailed by the Secretary or
by the officer or Person calling the meeting to each Member at such
address as appears on the records of the Corporation at least ten
(10) days before the date of the meeting or, if notice is mailed by
other than first class or registered mail, sixty (60) days before
the date of the meeting. Notice of any meeting may be waived in
writing filed with the Secretary by any Member if the waiver sets
forth in reasonable detail the purpose or purposes for which the
meeting is called and the time and place of the meeting. Atten-
dance at any meeting shall constitute a waiver of notice of that
meeting.
Section 2.05. Voting Lists. After fixing a record date for
a notice of a meeting, the Secretary shall prepare a complete list
of Members entitled to notice of a meeting of Members, containing
the address and number of votes each Member is entitled to cast at
the meeting. The Secretary shall prepare on a current basis
through the time of the membership meeting a list of Members, if
any, who are entitled to vote at the meeting, but are not entitled
to notice of the meeting. Such lists may be inspected by any
Member, for any proper purpose, at any reasonable time.
Section 2.06. Quorum. At any meeting of the Members fifty
percent (50%) of the Members entitled to vote at such meeting,
present in person or by proxy executed in writing, shall constitute
a quorum for the transaction of business, except as otherwise
provided by law. In the absence of a quorum, the Members present
in person or by proxy, by a majority vote and without notice, may
adjourn the meeting from time to time until a quorum is present.
At any such adjourned meeting at which a quorum is present, any
business may be transacted for which notice was originally given.
The Members present at a duly organized meeting may continue to do
business until adjournment notwithstanding the withdrawal of enough
Members to leave less than a quorum.
Section 2. 07. Voting Rights. The voting rights of the
Members shall be as prescribed in the Articles. In any election of
Directors, no Member shall have the right to multiply the number of
votes to which such Member may be entitled by the number of
Directors to be elected. A majority of the votes cast at a meeting
of the Members, duly called and at which a quorum is present, shall
be sufficient to take or authorize action upon any matter that may
properly come before the meeting unless more than a majority of
votes cast is required by law, the Declaration, any Supplemental
Declaration, the Articles or these By-Laws.
Section 2. 08. Multiple Owner. Where the Owner of a Lot
constitutes more than one person, or is a partnership, there shall
be only one voting representative entitled to cast the vote
allocated to that Lot. Those persons constituting such Owner or
the partners shall determine among themselves who shall ~e the
voting representative for such Lot. In the event agreement is not
reached the vote attributable to such Lot shall not be cast.
section 2. 09. Voting by Corporation or Trust. Where a
corporation or trust is an owner or is otherwise entitled to vote,
the trustee may cast the vote on behalf of the trust and the agent
or other representative of the corporation duly empowered by the
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board of directors of such corporation shall cast the vote to which
the corporation is entitled.
~ection 2.10. ~roxies. A Me~ber may vote either in person or
by _his. duly authorized and designated attorney-in-fact. Where
~otin~ ~s by pr~xy, the Member ~hall designate his attorney-in-fact
in writing, delivered to an officer of the Corporation prior to the
commencement of the meeting. No proxy shall be valid after eleven
(11) months from the date of its execution unless a longer time is
expressly provided in the proxy.
Section 2.11. Action Without a Meeting. Any action required
by the Act to be taken at a meeting of the Members, or any action
which may be taken at a meeting of the Members, may be taken
without a meeting if, prior to the action, a consent in writing
setting forth the action so taken is signed by all of the Members
entitled to vote with respect to the subject matter thereof, and
such written consent is filed with the minutes of the proceedings
of the Members. Such consent shall have the same effect as a
unanimous vote of the Members.
Section 2.12. Meeting by Telephone, etc. Any or all of the
Members may participate in a meeting by or through the use of any
means of communication by which all Members participating may
simultaneously hear each other during the meeting. Participation
in a meeting using these means constitutes presence in person at
the meeting.
ARTICLE 3
Board of Directors
Section 3.01. Functions. The business, property and affairs
of the Corporation shall be managed and controlled by a Board of
Directors as from time to time constituted (herein collectively
called "Board" or "Directors" and individually called "Director").
Section 3.02. Eligibility. No person shall be a Director who
is not a Member or a designee of Developer, nor shall any person be
a Director representing a Parcel who is not the owner of a Lot in
such Parcel.
Section 3. 03. Number. Prior to the Applicable Date, the
number of Directors comprising the Board shall be three (3), which
number may from time to time be increased by resolution adopted by
not less than a majority of the Board of Directors. In no event
shall the number of Directors prior to the Applicable Date be less
than three (3) nor more than seven (7) and no reduction in the
number of Directors shall have the effect of removing a Director
from office prior to the expiration of his term. In the event the
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num~e~ of Di:ectors is i~creased prior to the Applicable Date, the
addi~iona~ Direc~or or Directors shall be appointed by Developer as
provided in Section 5.03 of the Articles.
~u~sequent to the Applicable Date, the number of Directors
comprising the Board shall be that number which is equal to twice
~he number of Parcels within the Tract plus, if required to result
in a~ odd n~mber of Directors, one (1), which number may from time
to time be increased or decreased by resolution adopted by not less
than a majority of the Board of Directors, provided that all times
the number shall not be less than the number of Parcels within the
Tract. In no event shall the number of Directors subsequent to the
Applicable Date be less than three (3) nor more than fifteen (15)
and no reduction in the number of Directors shall have the effect
of removing a Director from office prior to the expiration of his
term. In the event the number of Directors is increased subsequent
to the Applicable Date as provided herein, the election of the
additional Director or Directors shall be by a vote of the Members
entitled to elect such additional Director or Directors according
to a procedure established by the Board by resolution.
Section 3.04. Classes. Subsequent to the Applicable Date,
the membership of the Board shall be divided into classes consist-
ing of (i) Directors each of whom shall represent a Parcel and (ii)
Directors not representing Parcels. The class of Directors
representing Parcels shall consist of that number of Directors
which is equal to the number of Parcels within the Tract.
Section 3.05. Appointment. Prior to the Applicable Date,
Directors shall be appointed by Developer as provided in Section
5.03 of the Articles.
Section 3.06. Nomination. Subsequent to the Applicable Date,
candidates for election to the Board of Directors as Directors not
representing Parcels shall file a petition for candidacy, signed by
not less than five (5) Members, with the Elections Committee at
least three (3) weeks prior to the annual meeting. The Elections
Committee shall provide all Members with a ballot containing the
names of all bona fide candidates not less than ten (10) days
pefore the annual meeting. Subsequent to the Applicable Date, the
Board of Directors shall by resolution establish such procedure as
it deems appropriate governing the nomination of Members for
election to the Board of Directors as Directors representing
Parcels.
Section 3.07. Election. Subsequent to the Applicable Date,
Directors shall be elected at the annual meeting provided in
Article 2. If the Board of Directors is divided into classes
pursuant to section 3.04, the Directors representing a Parcel shall
be elected by those Members who are Owners of Lots in the Parcel to
be represented by such Director. A Member who owns a Lot in more
than one Parcel shall be entitled to vote for all Directors
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representing Parcels in which he owns a Lot. Anything to the
c~ntrary in this Section 3.07 notwithstanding, the Board of
Directors shall have the power to authorize that Directors
representing Par:ce~s be elected at the annual meeting of the
homeowners associ~tion of each such Parcel, if any, rather than at
the an~ual meetin9: of the Corporation. The Board may, by
resolut~on, establish such election procedures as it deems
appropriate.
Voting for the Board of Directors shall be by secret written
ballot. The ballot shall be prepared by the Elections Committee
and shall contain the name of each person nominated for election.
Those persons receiving the highest number of votes shall be
elected.
Section 3.08. Term. Each Director, other than a Director
appointed by Developer, shall serve for a term of one (1) year or
until his successor is elected and qualified or until he has
resigned or been removed. Incumbent Directors shall be eligible
for re-election and the number of years a person may serve as a
Director is not limited. A Director appointed by Developer,
including the initial Directors identified in Section 5.02 of the
Articles, shall serve until such Director dies, resigns or is
removed by Developer.
Section 3.09. Resignation. Any Director may resign at any
time by giving written notice of such resignation to the President
or the Secretary of the Corporation. Such resignation shall take
effect when the notice is effective unless the notice specifies a
later effective date. The acceptance of a resignation shall not be
necessary to make it effective.
Section 3.10. Removal. Subsequent to the Applicable Date,
any Director may be removed, with or without cause, in accordance
with the provisions of the Act. Prior to the Applicable Date, any
Director may be removed by Developer for any reason.
Section 3.11. Vacancies. Any vacancy occurring on the Board
of Directors caused by death, resignation, removal or otherwise,
shall (a) prior to the Applicable Date be filled by Developer and
(b) subsequent to the Applicable Date be filled until the next
annual meeting through a vote of a majority of the remaining
members of the Board. If, subsequent to the Applicable Date, a
majority of the remaining members of the Board cannot agree on a
Person to fill any such vacancy, a special meeting of the Members
shall be called to elect a Person to fill such vacancy. A Director
elected to fill a vacancy shall hold office until the expiration of
the term of the Director causing the vacancy or until his successor
has been elected and qualified.
Section 3.12. Meetings. The Board of Directors shall meet
each year immediately after the annual meeting of the Members, at
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the place where such meeting of the Members has been held, for the
purpose of organization, election of officers, and consideration of
any other business which may properly be brought before the
meeting. No notice shall be necessary for the holding of this
annua~ meeting .. If such meeting is not held as above provided, the
election of officers may be held at any subsequent meeting of the
Board specifically called in the manner provided in Section 3.13.
The Board of Directors may provide by resolution the time and the
place, either within or without the State of Indiana, for the
holding of additional regular meetings of the Board without other
notice than such resolution. Special meetings of the Board may be
called by the President and shall be called by order thereof upon
the written request of not less than two ( 2) Directors, which
request shall set forth the business to be conducted at such
meeting.
Section 3.13. Notice of Meetings. Notice of all meetings of
the Board of Directors, except as herein otherwise provided, shall
be given by mailing, telephoning, telegraphing or delivering
personally the same at least two (2) days before the meeting to the
usual business or residence address of the Director as shown upon
the records of the Corporation. Notice of any meeting of the Board
may be waived in a document filed with the Secretary by any
Director if the waiver sets forth in reasonable detail the purpose
or purposes for which the meeting is called and the time and place
of the meeting. Attendance at any meeting of the Board shall
constitute a waiver of notice of that meeting, except where a
Director attends a meeting for the express purpose of objecting to
the transaction of any business because the meeting is not lawfully
called or convened. Any meeting of the Board may adjourn from time
to time to reconvene at the same place or some other place. No
notice need be given of any such adjourned meeting.
Section 3.14. Quorum. A quorum of the Board of Directors at
any annual or special meeting of the Board shall be a majority of
the duly qualified members of the Board then occupying office, but
in no event less than two (2) Directors, except that, subsequent to
the Applicable Date, in filling vacancies a majority of the
remaining Directors (but not less than two (2) Directors) shall
.constitute a quorum. The act of a majority of the Directors
present at a meeting, who constitute a quorum, shall be the act of
the Board unless otherwise provided by the Act, the Declaration,
any Supplemental Declaration, the Articles, or these By-Laws. In
the absence of a quorum, the Directors present may, by majority
vote, adjourn the meeting from time to time until a quorum is
present. At any such adjourned meeting at which a quorum is
present, any business may be transacted which might have been
transacted at the meeting for which notice was originally given.
Section 3.15. Action Without a Meeting. Any action required
or permitted to be taken at any meeting of the Board of Directors
or any cornmi ttee thereof may be taken without a meeting if the
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action is taken by all members of the Board of Directors or such
COJ:llllittee. The acti?n. must be ~videnced by at least one (1)
written consent describing the action taken signed by each member
of the Board of Directors or of such committee, and included in the
minutes or filed with the corporate records reflecting the action
taken.
Section 3.16. Meeting by Telephone, etc. Any or all of the
members of the Board or of any committee designated by the Board
may participate in a meeting by or through the use of any means of
communication by which all persons participating may simultaneously
hear each other during the meeting. Participation in a meeting
using these means constitutes presence in person at the meeting.
Section 3. 1 7. Cammi ttees. The Board of Directors, by
resolution adopted by a majority of the Board, may designate one or
more committees, each of which shall consist of two (2) or more
Directors, which committees, to the extent provided in said
resolution, shall have and exercise the authority of the Board in
the management of the Corporation. Other committees not having and
exercising the authority of the Board in the management of the
Corporation may be designated by a resolution adopted by a majority
of the Directors present at a meeting at which a quorum is present.
The designation of any such committee and the delegation thereto of
authority shall not operate to relieve the Board, or any individual
Director, of any responsibility imposed upon it or him by law.
Subsequent to the Applicable Date, the Board shall annually
establish an Elections Committee which shall be responsible for the
conduct of the election of the Board of Directors pursuant to
Sections 3.06 and 3.07.
Section 3.18. Powers. All of the corporate powers, except as
otherwise provided herein or by law, shall be vested in and shall
be exercised by the Board of Directors. Said powers shall include,
but not be limited to:
(a) The power to adopt, publish, and enforce rules
and regulations governing the use of the Community Areas;
(b) The power to lease or purchase for the benefit
of the Members such property, equipment, materials, labor
and services as may be necessary in the judgment of the
Board;
(c) The power to exercise the powers and perform
the duties of the Corporation granted, imposed, autho-
rized or permitted by the Declaration or any Supplemental
Declaration, the exercise of which is not reserved or
committed to the membership by the Articles or By-Laws;
(d) The power to make and collect Assessments and
charges, establish and collect membership dues, and levy
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and collect fines for the violation of rules and regula-
tions governing the use of the Community Areas;
(e) The power to employ legal counsel, architects,
~ontractors, accountants, consultants, managers,
independent contractors and others as in the judgment of
the Board of Directors may be necessary or desirable in
connection with the maintenance, repair, replacement,
restoration, and operation of the Community Area and the
business and affairs of the Corporation.
Section 3.19. Duties. It shall be the duty of the Board of
Directors to:
(a) cause the Community Area to be maintained in
good, clean, attractive and sanitary condition, order and
repair;
(b) adopt and publish rules and regulations,
including fees, if any, governing the use of the
Community Area, and the personal conduct of the Members,
their tenants and guests;
(c) cause to be kept a complete record of all its
corporate affairs, making such records available for
inspection by any Member or his authorized agent, and
present an annual report thereof to the Members;
(d) supervise all officers, agents and employees of
the Corporation and see that their duties are properly
performed;
(e) issue upon demand by any Member a certificate
setting forth whether or not any Assessment has been paid
and giving evidence thereof for which a reasonable charge
may be made;
(f) designate depositories for the funds of the
Corporation, designate those officers, agents and/ or
employees who shall have authority to withdraw funds from
such accounts on behalf of the Corporation, and cause
such persons to be bonded, as it may deem appropriate;
(g) approve the annual budget;
(h) fix annual General and Parcel Assessments at
amounts sufficient to meet the obligations imposed by the
Declaration and all Supplemental Declarations;
(i) annually set the date(s) Assessments are due
and decide what, if any, interest rate is to be applied
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to Assessments which remain unpaid thirty (30) days after
they become due;
(j) send written notice of each Assessment to every
Owner subject thereto at least thirty ( 3 o) days in
advance of the due date of the Assessment or first
installment thereof;
(k) cause the lien against any property for which
Assessments are not paid within thirty (30) days after
due date to be foreclosed or cause an action at law to be
brought against the Owner personally obligated to pay the
same;
( 1) suspend the right of an Owner to use the
recreational facilities constituting a part of the
Community Area during any period during which such Owner
shall be in default for more than thirty (30) days after
notice in the payment of any Assessment. Such right of
Members may also be suspended, after notice and hearing,
for a period not to exceed sixty (60) days for violation
of any provision of the Declaration, any Supplemental
Declaration or the Register of Regulations;
(m) procure and maintain adequate insurance to
protect the Corporation, its employees and its personal
and real properties;
(n) enter into mortgage agreements and obtain
capital debt financing subject to the provisions of the
Declaration;
(o) appoint such committees as are prescribed in
Section 3.17;
(p) faithfully observe and perform each duty
imposed on the Corporation by the terms of the
Declaration and the Supplemental Declarations and
exercise such discretion granted to the Board thereunder
in the best interests of the Members; and
(q) exercise their powers and duties in good faith,
with a view to the interests of the Corporation.
Section 3.20. Non-Liability of Directors. No Director shall
be liable to any Person for any error or mistake of judgment
exercised in carrying out his duties and responsibilities as a
Director, unless (a) the Director has breached or failed to perform
the duties of his office in compliance with the Act and (b) the
breach or failure to perform constitutes willful misconduct or
recklessness. The Members shall indemnify and hold harmless each
of the Directors against any and all liability to any Person
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arising out of contracts made by the Board on behalf of the
Corporation, unless any such contract shall have been made in bad
faith or is contrary to the provisions of the Act, the Articles or
these By-Laws. It is intended that the Directors shall have no
personal liability with respect to any contract made by them on
behalf of the Members and as their agent. The liability of any
Member arising out of any contract made by the Board or out of the
aforesaid indemnity in favor of the Directors shall be limited to
such percentage of the total liability or obligation thereunder as
is equal to a fraction, the numerator of which is the number of
Lots owned by him and the denominator of which is the total number
of Lots in the Tract.
Section 3.21. Indemnity of Officers and Directors. To the
extent not inconsistent with the laws of the State of Indiana,
every Person (and the heirs, assigns and legal representatives of
such Person) who is or was a Director or an officer of the
Corporation shall be indemnified by the Corporation as provided in
the Act. To the extent the assets of the Corporation are
insufficient to satisfy its indemnification obligations hereunder,
the Board of Directors may levy a Special Assessment in the manner
specified in the Declaration to obtain such funds as may be
required to satisfy such obligation.
Section 3. 22. Transactions Involving Affiliates. No contract
or other transaction between the Corporation and one or more of its
Directors, or between the Corporation and any Person (including the
Developer) in which one or more of the Directors are directors,
officers, partners, or employees or are pecuniarily or otherwise
interested, shall be void or voidable because such Director or
Directors are present at the meeting of the Board or any committee
thereof which authorizes, approves or ratifies the contract or
transaction, or because his or their votes are counted for such
purpose if:
(a) the fact of the relationship or interest is
disclosed or known to the Board or committee, and the
Board or committee authorizes, approves, or ratifies such
contract or transaction by a vote or consent sufficient
for the purpose without counting the vote or consents of
the interested Director(s); or
(b) the fact of the relationship or interest is
disclosed or known to the Members, and they authorize,
approve or ratify the contract or transaction by a vote
or written consent; or
(c) the contract or transaction is fair and
reasonable to the Corporation.
Affiliated or interested Directors may be counted in determining
the presence of a quorum of any meeting of the Board or committee
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thereof which authorizes, approves or ratifies any contract or
transaction.
s 7ction 3.23. Insurance. The Board of Directors, or its duly
authorized agent, shall have the authority to and shall obtain
insurance for all of the structures located in the Community Area,
wheth.er owned or leased by the Corporation, against loss or damage
by fire or other hazards commonly insured against in similar
properties in an amount sufficient to cover the full replacement
cost of any repair or reconstruction work in the event of damage or
destruction from any insured hazard, and shall also obtain a broad
form public liability policy covering all damage or injury caused
by the negligence of the Corporation or any of its agents. All
such insurance policies shall contain a provision that all Members
shall, in appropriate circumstances, be able to recover damages as
claimants under such insurance. Premiums for all such insurance
shall be included in the General Assessment.
Section 3.24. Insured Loss, Damage or Destruction. In the
event of loss, damage or destruction by fire or other peril, the
Board of Directors shall (unless otherwise agreed by two-thirds
(2/3) of the Directors then serving), upon receipt of the insurance
proceeds, contract to rebuild or repair damaged or destroyed
portions of the insured property to its condition before such
damage. All such insurance proceeds ( if the amount of such
proceeds exceeds $5,000.00) shall be deposited in a bank or other
financial institution, the accounts of which are insured by a
federal governmental agency, with the provision agreed to by said
bank or institution that such funds may be withdrawn only by
signatures of at least one-third (l/3) of the members of the Board
of Directors, or by their duly authorized agent. In such event,
the Board of Directors shall advertise for sealed bids with any
licensed contractors, and then may negotiate with any contractor,
who may be required to provide a full performance and payment bond
for the repair, reconstruction or rebuilding of such destroyed
structure or structures. In the event that the insurance proceeds
are insufficient to pay all the costs of repairing and/or rebuild-
ing to the same condition as previously existed, the Board of
Directors may levy a Special Assessment in the manner specified in
the Declaration to make up any deficiency. Excess insurance
proceeds, if any, shall become a part of the Corporation's reserve
for replacements.
Section 3.25. Uninsured Loss, Damage or Destruction. In the
event of loss, damage or destruction to the Property caused by
perils not covered by standard insurance described in Section
2.04(d) of the Articles, the Board of Directors may levy a Special
Assessment in the manner specified in the Declaration to make up
any deficiency created by such uninsured loss.
Section 3.25. Comoensation. No Director shall receive any
compensation for any service he may render to the Corporation. He
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Section 4. 06. Secretary. The Secretary shall have the
custody and care of the corporate records and the minute book of
the Corporation. He shall attend all of the meetings of the Board
of Directors and the Members, and shall keep, or cause to be kept
in a book provided for the purpose, a true and complete record of
the proceedings of such meetings, and shall perform a like duty for
all standing committees of the Board of Directors when required.
He shall attend to the giving and serving of all notices of the
Corporation, shall file and take care of all papers and documents
belonging to the Corporation, shall authenticate records of the
Corporation, as necessary, and shall perform such other duties as
may be required by these By-Laws or as may be prescribed by the
Board of Directors or the President.
Section 4.07. Treasurer. The Treasurer shall keep correct
and complete records of account, showing accurately at all times
the financial condition of the Corporation. He shall be the legal
custodian of all monies, notes, securities and other valuables
which may from time to time come into the possession of the
Corporation. He shall immediately deposit all funds of the
Corporation coming into his hands in some reliable bank or other
depository to be designated by the Board of Directors, and shall
keep such bank account in the name of the Corporation. He shall
furnish at meetings of the Board of Directors, or whenever
requested, a statement of the financial condition of the
Corporation and shall perform such other duties as may be required
by these By-Laws or as may be prescribed by the Board of Directors
or the President.
Section 4.08. Assistant Officers. The Board of Directors may
from time to time designate assistant officers who shall exercise
and perform such powers and duties as the officers whom they are
elected to assist shall specify and delegate to them, and such
other powers and duties as may be prescribed by the Code of By-
Laws, the Board of Directors or the President.
Section 4.09. Removal. Any officer of the Corporation may be
removed from office, with or without cause, by the affirmative vote
of two-thirds (2/3) of all the Directors at any regular or special
meeting of the Board of Directors called for the purpose. Any
officer whose removal is proposed shall be entitled to at least ten
(10) days' notice in writing by mail of the meeting of the Board of
Directors at which such removal is to be voted upon and shall be
entitled to appear before and be heard by the Board of Directors at
such meeting.
Section 4 .10. Resignation. Any officer or member of a
committee may resign at any time. Such resignation shall be made
in writing and shall take effect at the time specified therein,
and, if no time be specified, at the time of its receipt by the
President or Secretary of the Corporation. The acceptance of a
resignation shall not be necessary to make it effective.
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ARTICLE 5
Architectural Review Board
Section 5.01. Composition. The Architectural Review Board
shall be comprised of three (3) members elected by the Board of
Directors by a vote of a majority of the Directors then serving.
Subsequent to the Applicable Date, no member of the Architectural
Review Board shall simultaneously serve as a member of the Board of
Directors.
Section 5. 02. Term. Prior to the Applicable Date, the
members of the Architectural Review Board shall serve until the
earlier of (a) the date such member dies, resigns or is removed or
(b) the Applicable Date. Subsequent to the Applicable Date, the
members of the Architectural Review Board shall serve for a term of
one (1) year. Members shall be eligible for re-election.
Section 5.03. Removal; Vacancies. The Board of Directors may
remove a member of the Architectural Review Board at any time, with
or without cause, by a vote of two-thirds of the Directors then
serving. In the event of a vacancy on the Architectural Review
Board, the Board of Directors shall, by a vote of a majority of the
Directors then serving, elect a successor to serve the unexpired
term.
Section 5.04 Organization. The Architectural Review Board
shall elect from among its membership a chairman, secretary and
such other officers as it deems appropriate.
Section 5.05. Quorum. A quorum for action by the Architec-
tural Review Board shall be a majority of its members, but in no
event less than two (2) members.
Section 5.06. Duties. It shall be the duty of the Architec-
tural Review Board to regulate the external design, appearance,
location and maintenance of the Tract and of improvements thereon
and to regulate such uses of property, all as provided in the
peclaration and the Supplemental Declarations.
Section 5.07. Procedures. The Architectural Review Board
shall formulate general guidelines, procedures and regulations and
submit them for approval to the Board of Directors. Such guide-
lines, procedures and regulations shall be considered adopted
policy of the Board of Directors unless rejected by a two-thirds
(2/3) vote of the Board of Directors within thirty (30) days after
the date of submission. The adopted guidelines, procedures and
regulations shall be incorporated in the Register of Regulations
and the Architectural Review Board shall act in accordance
therewith.
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ARTICLE 6
Loans to Officers and Directors
The Corporation shall not lend money to or guarantee the
obligations of any officer or Director of the Corporation.
ARTICLE 7
Corporate Books
The Corporation shall maintain all records required by the Act
and shall permit the Members to inspect and copy such records to
the extent and on the conditions specified in the Act.
ARTICLE 8
Financial Affairs
Section 8.01. Contracts. The Board of Directors may
authorize any officer or agent to enter into any contract or
execute and deliver any instrument in the name of and on behalf of
the Corporation, and such authority may be general or confined to
a specific instance; and unless so authorized by the Board of
Directors, no officer, agent or employee shall have any power or
authority to bind the Corporation by any contract or engagement, or
to pledge its credit or render it liable pecuniarily for any
purpose or to any amount.
Section 8.02. Checks, Etc. All checks, drafts, notes, bonds,
bills of exchange, and orders for the payment of money and other
evidence of indebtedness in excess of One Thousand Dollars
($1,000.00) , shall, unless otherwise directed by the Board of
Directors or required by law, be signed by any two of the following
officers, who are different persons: President, a Vice President,
Secretary or Treasurer. Any such obligation equal to or less than
One Thousand Dollars ($1,000.00} may be signed by any one {l} of
such preceding officers. The Board of Directors may, however,
designate officers or employees of the Corporation, other than
those named above, who may, in the name of the Corporation, execute
drafts, checks and orders for the payment of money on its behalf.
Section 8.03. Investments. The Corporation shall have the
right to retain all or any part of any securities or property
acquired by it in whatever manner, and to invest and reinvest any
funds held by it, according to the judgment of the Board of
Directors.
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Section 8. 04. Reserve for Replacements. The Board of
Directors shall establish and maintain a reserve fund for replace-
ments by the allocation and payment to such reserve fund of an
amount determined annually by the Board to be sufficient to meet
the cost of periodic maintenance, repairs, renewal and replacement
of the Property. In determining the amount, the Board shall take
into consideration the expected useful life of the Property,
projected increases in the cost of materials and labor, interest to
be earned by such fund and the advice of the Developer, managing
agent or any consultants the Board may employ. Such fund shall be
deposited in a special account with a lending institution the
accounts of which are insured by an agency of the United States of
America or may, in the discretion of the Board, be invested in
obligations of, or fully guaranteed as to principal by, the United
States of America.
Section 8.05. Fiscal Year. The fiscal year of the
Corporation shall be commence on January 1 in each year.
Section 8.06. Assessment Year. The assessment year of the
Corporation shall be the same as the fiscal year established in
Section 7.05.
Section 8.07. Auditing. If requested by any Member or the
holder of a first mortgage on any Lot, the books and accounts of
the Corporation shall at the close of each fiscal year be audited
by an independent Certified Public Accountant whose report shall be
prepared and certified in accordance with generally accepted
auditing standards. A copy of such report shall be distributed to
each Member or mortgagee who requests a copy thereof.
ARTICLE 8
Amendments
Subject to the provisions of Section 7.03 of the Articles, the
power to make, alter, amend or repeal the By-Laws is vested in the
~oard of Directors, which power shall be exercised by affirmative
vote of a two-thirds (2/3) majority of the Directors present at any
meeting of the Board. Any proposed amendment shall be included in
the notice of such meeting. If notice of a proposed amendment to
the By-Laws is included in the notice of any meeting of the Board,
it shall be in order to consider and adopt at that meeting any
amendment to the By-Laws dealing with the subject matter with which
the proposed amendment is concerned.
TCH00693
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WRITTEN CONSENT TO RESOLUTIONS OF TIIE
BOARD OF DIRECTORS OF
WATERSTONE HOMEOWNERS ASSOCIATION, INC.
IN LIEU OF THE FIRST MEETING OF THE
BOARD OF DIRECTORS
The undersigned, being all the Directors of Waterstone
Homeowners Association, Inc., an Indiana corporation (the
"Corporation''), under the provisions of Indiana Code§ 23-17-15-2,
hereby consent to the following action to be taken by the
Corporation in lieu of the first meeting of the Board of Directors:
I
BE IT RESOLVED, that the Articles of Incorporation
of the Corporation which were executed and filed with the
Secretary of State of the State of Indiana and the
Certificate of Incorporation issued by the Secretary of
State ( copies of which were reviewed by all of the
undersigned Directors prior to signing these written
consent resolutions) are hereby ratified and approved and
that copies of such shall be made a part of the official
corporate Minutes Book of the Corporation.
BE IT FURTHER RESOLVED, that all action heretofore
taken by the Incorporator in executing and filing the
Articles of Incorporation of the Corporation are hereby
approved, ratified and confirmed.
II
BE IT RESOLVED, that the Code of By-Laws of the
corporation (copies of which were reviewed by all of the
undersigned Directors prior to signing these written
consent resolutions) is hereby approved and adopted and
declared to be the Code of By-Laws of the Corporation.
BE IT FURTHER RESOLVED, that a copy thereof be made
a part of the official corporate Minutes Book and be
placed in the corporate Minutes Book immediately
following the Articles of Incorporation.
m
BE IT RESOLVED, that the following officers are
unanimously elected to the office indicated after the
name of each for the term provided in the Code of By-
Laws:
George P. sweet
Ann C. Parker
Glenda s. Garrison
IV
President
Vice President
Secretary/Treasurer
BE IT RESOLVED, that the Secretary/Treasurer of the
Corporation is hereby authorized and instructed to pay
from the Corporation's funds, all expenses properly
incurred in the incorporation of the Corporation
including filing, recording and attorneys' fees.
V
BE IT RESOLVED, that the officers of the Corporation
be and they hereby are authorized to apply, at such time
as the officers deem appropriate, for a determination of
the Corporation's exempt status for purposes of Federal,
state and local taxation.
VI
BE IT RESOLVED, that George P. Sweet, Will Wright
and __________ are elected to membership on the
Architectural Review Board.
Executed by the Directors on the respective dates indicated.
DATE SIGNED
George P. Sweet
Ann C. Parker
Glenda S. Garrison
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