HomeMy WebLinkAboutCondo Declaration (3-22-2024) GLC v3
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Cross-Reference to Plans:
__________________________
DECLARATION
OF THE SIGNATURE AT CARMEL CONDOMINIUMS
This Declaration of the Signature at Carmel Condominiums (“Declaration”), made and
entered into as of the _____ day of _____________, 202____, (the “Effective Date”) by
_______________________________(the “Declarant”) for itself, and on behalf of its successors,
grantees, and assigns, WITNESSETH THAT:
WHEREAS, Declarant is the fee simple owner of certain real estate located at the northeast
corner of Old Meridian Street and Main Street, Carmel, Hamilton County, Indiana, and more
particularly described on Exhibit A attached to and made a part hereof by this reference (the “Real
Estate”); and
WHEREAS, Declarant, by execution of this Declaration, hereby creates a condominium
upon the Real Estate, subject to the provisions of the Act and in accordance with the terms and
conditions of this Declaration.
NOW, THEREFORE, Declarant hereby makes this Declaration as follows:
ARTICLE I
Definitions
The following terms, as used in this Declaration, unless the context clearly requires
otherwise, shall mean the following:
Section 1.1 “Access Area(s)” means (i) all areas of the Real Estate designated or
intended for access and/or movement to, from, across and between the Association Common
Areas, Dwelling Common Areas and the Units, and (ii) adjacent public rights of way as shown on
the Site Plan.
Section 1.2 “Act” means the Condominium Law of the State of Indiana, Ind. Code
§ 32-25-1-1 et seq., as amended. The Act is incorporated herein by this reference.
Section 1.3 “Apartment Unit” means the two hundred ninety-five (295) for-rent
residential apartment units, and the Garage and as more particularly depicted and/or described on
the Plans as the “Apartment Unit” which includes (a) systems and all related equipment and
improvements serving the Apartment Unit, including, without limitation, the plumbing system and
water connections and any other utilities exclusively serving the Apartment Unit, grease traps, fans
and exhausts access and security equipment in the Building which exist for the exclusive benefit
of the Apartment Unit, (b) storefronts, awnings, signs, lighting, balconies, and other improvements
located within the exterior areas immediately adjacent to the Apartment Unit designated for the
exclusive use of the Apartment Unit, and (c) the certain other areas appurtenant to the portions of
the Real Estate relating exclusively to and for the use of the Apartment Unit, if any.
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Section 1.4 “Applicable Date” means the date determined pursuant to Section 3.02 of
the Bylaws.
Section 1.5 “Articles” or “Articles of Incorporation” means the Articles of
Incorporation of the Corporation, as hereinafter defined, as the same may be amended from time
to time. The Articles of Incorporation are incorporated herein by this reference.
Section 1.6 “Assessments” mean, collectively, the Regular Assessments, Special
Assessments, and Dwelling Assessments contemplated by this Declaration and the By-Laws.
Section 1.7 “Association Common Areas” mean the common areas and facilities
appurtenant to the Real Estate which are depicted and/or described as such in the Plans or otherwise
defined as such in Section 6.1 of this Declaration, which benefit all of the Units and not otherwise
defined as a Unit or Dwelling Common Areas.
Section 1.8 “Association Common Expenses” mean expenses for the administration
of the Corporation and for the ownership, upkeep, operation, maintenance, repair and replacement
of the Real Estate, including but not limited to real estate taxes, common utilities, insurance
premiums, management fees, master association administrative costs, audit expenses, association
level banking, legal and professional fees, additional personnel or third party wage expenses
associated with the management and maintenance of the Corporation and its operations,
landscaping, and/or marketing, and all other sums lawfully assessed against the Members of the
Corporation, but excluding any Dwelling Common Expenses or expenses attributable to a single
Unit or Owner.
Section 1.9 “Board of Directors” or “Board” means the governing body of the
Corporation being the Initial Board or Interim Board referred to in the Bylaws or any subsequent
Board of Directors elected by the Members in accordance with the Bylaws.
Section 1.10 “Building” means the existing structures on the Real Estate in which the
initial Condominium Units are located. The Building is more particularly described and/or
identified on the Plans and in this Declaration.
Section 1.11 “Bylaws” mean the Bylaws of the Corporation providing for the
administration and management of the Real Estate and restrictions on its use, as required by and
in conformity with the Act, as the same may be amended from time to tim e. A true copy of the
existing Bylaws is attached to and made a part of this Declaration as Exhibit B.
Section 1.12 “Common Areas” mean the collective common areas and facilities
appurtenant to the Real Estate and made up of the Association Common Areas and Dwelling
Common Areas.
Section 1.13 “Condominium Unit” and “Unit” means each of the Retail Unit, the
Apartment Unit, and the Residential Units, which are depicted and/or described in the Plans and
described in Article V of this Declaration, and any additional Condominium Units which are
created as is permitted herein. “Condominium Unit” and “Unit” includes structural elements,
utility or service lines, and other equipment and facilities of the Building which exist or operate
solely for the benefit a single Unit and the undivided interest in the Association Common Areas
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and, if applicable, the Dwelling Common Areas appertaining to each Unit.
Section 1.14 “Co-owners” means the Owners of all the Condominium Units.
Section 1.15 “Corporation” and “Association” each means The Signature at Carmel
Owners Association, Inc., an Indiana not-for-profit corporation, and its successors and assigns,
whose members shall be the Members, such Corporation being more particularly described in
Article XII of this Declaration.
Section 1.16 “Declarant” means _______________________ and its successors and
assigns including, but not limited to, any mortgagee acquiring title to any portion of the Real Estate
pursuant to the exercise of rights under, or foreclosure of, a mortgage executed by Declarant.
Declarant expressly reserves the right to assign its interest as Declarant to the transferee of one of
the Condominium Units, if such assignment is in writing, is recorded and is cross-referenced to
this Declaration.
Section 1.17 “Dwelling Common Areas” means the common areas and facilities
appurtenant to the Real Estate relating exclusively to and for the use of the Apartment Unit and/or
the Residential Units, which are depicted and/or described as such in the Plans or otherwise defined
as such in Section 6.2 of this Declaration and not otherwise defined as a Unit or Dwelling Common
Areas.
Section 1.18 “Dwelling Common Expenses” mean all expenses for the operation,
administration, ownership, upkeep, maintenance, repair and replacement of the Dwelling Common
Areas (to the extent provided herein), including but not limited to real estate taxes, common
utilities, insurance premiums, management fees and administrative costs relating to the Dwelling
Common Areas, audit expenses related to the Dwelling Common Area, banking, legal and
professional fees, and all other sums related to the Dwelling Common Area lawfully assessed
against the Residential Unit Owners and the Apartment Unit Owner but excluding any Association
Common Expenses or expenses attributable to a single Unit or Owner.
Section 1.19 “Dwelling Percentage Interest” means the percentage of undivided
interest in the fee simple title to the Dwelling Common Areas appertaining to the Apartment Unit
and Residential Units as determined and/or expressed in Article VIII of this Declaration.
Section 1.20 “Garage” means that portion of the Apartment Unit as more particularly
depicted and/or described on the Plans as the “Garage” which includes (a) systems and all related
equipment and improvements serving the Garage, including, without limitation, the plumbing
system and water connections and any other utilities exclusively serving the Garage, fans and
exhausts, access, certain elevators servicing the Garage, and security equipment in the Building
which exist for the exclusive benefit of the Garage, and (b) certain other areas appurtenant to the
portions of the Real Estate relating exclusively to and for the use of or access to the Garage
including without limitation driveways, ramps, awnings, signs, doors, access controls, gates and
other improvements located within the exterior areas immediately adjacent to the Garage.
Section 1.21 “Majority of the Percentage Vote” means the Owners entitled to cast at
least fifty-one percent (51%) of the Percentage Votes in accordance with the applicable
percentages set forth in this Declaration.
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Section 1.22 “Member” means a member of the Corporation and “Members” means the
members of the Corporation. Each Owner of a Condominium Unit shall, automatically upon
becoming an owner of a Condominium Unit, be and become a Member of the Corporation and
shall remain a Member until his or its ownership of a Condominium Unit ceases, but membership
shall terminate when such person ceases to be an Owner, and will be transferred to the new Owner.
Section 1.23 “Mortgagee” means the holder of a first mortgage lien on a Condominium
Unit and “Mortgage” means a first mortgage lien on a Condominium Unit.
Section 1.24 “Owner” means a person, firm, corporation, partnership, association, trust
or other legal entity, or any combination thereof, owning fee simple title to a Condominium Unit;
provided that persons or entities owning a Condominium Unit as tenants in common, joint tenants,
tenants by the entireties or any form of joint or divided ownership shall be deemed one Owner for
purposes of this Declaration. The Owner of the Apartment Unit shall be referred to as the
“Apartment Unit Owner”; the Owner(s) of the Residential Units shall be referred to as the
“Residential Unit Owner(s)”; and the Owner of the Retail Unit shall be referred to as the “Retail
Unit Owner”.
Section 1.25 “Parking Lease” means any specific Parking Lease that may be entered
into between the Apartment Unit Owner and another Owner regarding rights for access to and
parking within the Garage.
Section 1.26 “Percentage Interest” means the percentage of undivided interest in the
fee simple title to the Association Common Areas appertaining to each Condominium Unit as
determined and/or expressed in Article VIII of this Declaration.
Section 1.27 “Percentage Vote” means that percentage of the total vote accruing to all
the Condominium Units which is appurtenant to each particular Condominium Unit and accrues
to the Owner thereof. The Percentage Vote to which each Owner shall be entitled on any matter
upon which the Owners are entitled to vote shall be the same percentage as the Percentage Interest
appurtenant to such Owner’s Condominium Unit.
Section 1.28 “Permittees” means each Owner and its tenants and their respective
employees, contractors, agents, licensees and invitees.
Section 1.29 “Plans” means all final floor, building and site plans and elevations of the
Building and Condominium Units prepared by _______________________________, certified
by _______________________, under date of ______________, 20___, and filed in the Office of
the Recorder of Hamilton County, Indiana [in Plat Book ____, Page _____] [as Instrument No.
__________], all of which are incorporated herein by this reference, and any supplemental plans
that are prepared and filed in connection therewith. The Plans are subject to modification and
amendment under this Declaration to reflect any subsequent changes to the Units as expressly
permitted herein. All measurements shall be measured on Building Owners and Managers
Association standards (ANSI/BOMA Z65.6 - 2021) and any changes shall automatically change
each Owner’s Percentage Interest.
Section 1.30 “Real Estate” means the Real Estate and appurtenant easements, the
Condominium Units, the Building, leasehold interests and other rights of the Declarant and/or the
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Corporation in any real estate located adjacent to the Real Estate, and the improvements and
property of every kind and nature whatsoever, real, personal and mixed, located upon the Real
Estate and used in connection with the operation, use and enjoyment thereof, but does not include
the personal property of any Owner.
Section 1.31 “Regular Assessment” means (a) the regular assessment applicable to all
Owners for Association Common Expenses; provided, however, if additional buildings are added
to the Real Estate after the Effective Date Retail Unit Owner shall not be responsible for any
Association Common Expenses to the extent such are attributable solely to a Building in which
the Retail Unit is not located, and (b) the regular assessment applicable to Residential Unit Owners
and the Apartment Unit Owner for Dwelling Common Expenses, as provided in Article XIII of
this Declaration and in the Bylaws.
Section 1.32 “Residential Units” means those eight (8) separate apartment Units which
will be available for sale to third-parties (and held by the Apartment Unit until their first sale), and
as more particularly depicted and/or described on the Plans as a “Residential Unit” or collectively
identified as the Residential Units, which includes systems and all related equipment and
improvements serving each Residential Unit, including, without limitation, the plumbing system
and water connections and any other utilities exclusively serving the Residential Units, grease
traps, fans and exhausts access and security equipment in the Building which exist for the exclusive
benefit of owners of the Residential Units, if any, as well as patios or balconies designated for the
exclusive use by an individual Residential Unit.
Section 1.33 “Retail Unit” means that Unit consisting of 16,513 square feet of ground
floor office and retail space and as more particularly depicted and/or described on the Plans as the
“Retail Unit.” Retail Unit consists of (a) systems and all related equipment and improvements
serving the Retail Unit, including, without limitation, the plumbing system and water connections
and any other utilities exclusively serving the Retail Unit, grease traps, fans and exhausts access
and security equipment in the Building which exist for the exclusive benefit of retail users of the
Retail Unit, (b) sidewalks, patios, storefronts, awnings, signs, lighting, and other improvements
located within exterior areas immediately adjacent to the Retail Unit and designated for the
exclusive use of the Retail Unit, (c) certain other areas appurtenant to the portions of the Real
Estate relating exclusively to and for the use of the Retail Unit, including but not be lobbies,
vestibules, corridors, hallways, trash chutes and/or trash room(s), and any other areas which are
located on the ground floor of the retail portion of the Building and used to access the Retail Unit,
and (d) mechanical and IT rooms, any other element of the Building designated for the exclusive
use by the Retail Unit, if any.
Section 1.34 “Signature at Carmel Condominiums” means the name by which the Real
Estate, and the condominium created hereby, shall be known.
Section 1.35 “Site Plan” means the site plan for the Building and surrounding areas,
attached hereto as Exhibit A-1 and made a part hereof.
Section 1.36 “Special Assessment” means the special assessment applicable to some or
all of the Owners as provided in Article XIII of this Declaration and in the Bylaws.
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Section 1.37 “Supplemental Declaration” means an amendment or supplement to this
Declaration that may be recorded by Declarant, or Apartment Unit owner, and that establishes the
enclosed space of one or more rooms that shall comprise the final or modified floor plan and
configuration of an Apartment Unit, the Apartment Units, a Residential Unit or the Residential
Units divesting or recombining any Apartment Unit or Residential Unit as may be required or
permitted by the Act and this Declaration.
Section 1.38 “Systems” means the utility systems as defined in Section 6.1 below.
ARTICLE II
Declaration
Declarant hereby expressly subjects the Real Estate to the Act and declares that the Real
Estate shall be a condominium in accordance therewith. The Real Estate, as a condominium
regime, shall consist of the Association Common Areas, Dwelling Common Areas, and the Units,
all as designated on the Plans.
ARTICLE III
Description of Building
The Real Estate consists of one Building that is five (5) stories in height (including the
ground level). As of the Effective Date, there are a total of ten (10) Condominium Units, each as
more particularly depicted and/or described on the Plans: the Retail Unit, the Apartment Unit, and
the eight (8) Residential Units. The Retail Unit, the Apartment Unit, and the eight (8) Residential
Units, each share in the use and cost of the Association Common Areas and Association Common
Expenses. The Apartment Unit and the eight (8) Residential Units, each share in the use and cost
of the Dwelling Common Areas and Dwelling Common Expenses.
ARTICLE IV
Legal Description
Each Condominium Unit is identified on the Plans by Unit identifying name and/or
number. The Units shall be designated as the “Retail Unit”, the “Apartment Unit,” and the
“Residential Units.” The legal description for each Condominium Unit shall consist of the Unit
identifying name as shown on the Plans, and shall be stated as “_________ Unit in the Signature
at Carmel Condominiums, as established by the Declaration of the Signature at Carmel
Condominiums recorded on __________, 20__ as Instrument No. _________ in the Office of the
Recorder of Hamilton County, Indiana.”
ARTICLE V
Description of Condominium Units
Section 5.1 Designation and Use. The Signature at Carmel Condominiums shall
include three (3) types of Condominium Units: (i) the Retail Unit, as more particularly depicted
and/or described on the Plans, which may be used for office and retail purposes, (ii) the Apartment
Unit, as more particularly depicted and/or described on the Plans which may be used for residential
and parking purposes as well as office and retail uses which are incidental to the residential and
parking purposes, and (iii) eight (8) Residential Units as more particularly depicted and/or
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described on the Plans, which may be used only for residential purposes as well as office and retail
uses which are incidental to the residential purposes. The Condominium Units shall be used solely
for the uses provided above and at all times consistent with similar first-class developments in the
Carmel, Indiana, market. For the avoidance of all doubt, the Apartment and Residential Units will
not be primarily used for office and retail purposes that directly compete with the Retail Unit’s
uses.
Section 5.2 Appurtenances. Each Condominium Unit shall consist of all space within
the boundaries thereof, as hereinafter defined, including but not limited to: (i) the wall, ceiling, or
floor coverings (other than those structural elements with makeup said wall, ceiling, or floor),
windows and window frames and glass, shutters, awnings, doorsteps, stoops, balconies and interior
doors and door frames; (ii) all improvements, fixtures and hardware within the boundaries of the
Condominium Unit, including all improvements contained within the unfinished perimeter walls,
ceilings, and floors; and (iii) any heating and refrigerating elements or related equipment, utility
lines and outlets, electrical (including solar systems, electrical meters and the utility lines running
from the meters) and plumbing fixtures, pipes, and all other related equipment required to provide
heating, air conditioning, hot and cold water, electrical, or other utility services to the
Condominium Unit and located therein, including those located within the unfinished walls,
ceilings, roof and floors; provided, however, that a Condominium Unit shall not include any
Association Common Areas or Dwelling Common Areas. For the avoidance of all doubt,
windows, doors, signage, as designated for the use of the Units in Article XXIV below or as
otherwise provided in this Declaration, entryways and, if subsequently installed for one or more
Units, balconies attached or adjacent to a particular Condominium Unit and which either (i) are,
by their nature and location, for the benefit of only one Condominium Unit, or (ii) are designated
by reference on the Plans, the deed to such Condominium Unit or any other recorded agreement
between the Owner of the Condominium Unit and the Declarant or the Corporation for use by the
Owner of a particular Condominium Unit shall constitute part of said Unit and be limited to the
exclusive use of the Condominium Unit to which they are attached or adjacent.
Section 5.3 Storage Areas. Any storage spaces or units located in the Building which
are specifically designated by reference on the Plans as used by a particular Condominium Unit,
or which are so designated in any other agreement between the Owner of the Condominium Unit
and the Declarant or the Corporation for use by the Owner of a particular Condominium Unit shall
constitute part of said Condominium Unit and be limited to the exclusive use of the Condominium
Unit to which such use is designated.
Section 5.4 Boundaries. The boundaries of each Condominium Unit shall be as shown
on the Plans and shall consist of the enclosed areas in the Building and be bounded by the
unfinished perimeter walls, ceilings, floors, doors, and windows thereof. An unfinished wall,
ceiling and floor means the concrete slabs, framing or other structural materials which constitute
the wall, ceiling or floor, as the case may be, of a Condominium Unit. In the event any horizontal
or vertical or other boundary line as shown on the Plans does not coincide with the actual location
of the respective wall, floor or ceiling surface of the Condominium Unit because of inexactness of
construction, settling after construction, or for any other reasons, the boundary lines of each
Condominium Unit shall be deemed to be and treated for purposes of ownership, occupancy,
possession, maintenance, decoration, use and enjoyment, as in accordance with the actual location.
To the extent any Condominium Unit consists of or includes open areas, the boundaries thereof
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shall extend to and be contiguous with the outermost boundary of the adjoining Condominium
Unit or Common Area, as the case may be.
ARTICLE VI
Common Areas
Section 6.1 Association Common Areas. “Association Common Areas” mean, other
than parts of a single Unit or parts of the Dwelling Common Areas, (i) those parts of the Real
Estate located outside of the Building; (ii) the foundations, columns, girders, beams, supports and
roof systems (including without limitation roof shingles, waterproof membranes, flashing, gutters,
downspouts and the structural roof deck) of the Building, and any other Building shell elements;
(iii) the fire exits and stairways identified in the Plans serving more than one Unit; (iv) fire safety,
fire suppression sprinkler system, including pump room(s) and associated equipment, central
electricity, gas, water, air conditioning, sanitary sewer and, stormwater drainage including roof
drains, underground retention and detention and any associated plumbing or systems to the
diversion of stormwater, and access and security systems (collectively, the “Systems”) to the point
where the same are separated into service lines for each of the Units, if any; (v) exterior monument
and building signage, all external lighting fixtures and electrical service lighting the exterior of the
Building unless separately metered to a particular Condominium Unit (such as exterior lighting
wired directly to the Retail Unit or lighting in the Garage wired directly to the Apartme nt Unit);
(vi) pipes, ducts, electrical wiring and conduits and public utilities lines, whether located inside or
outside of the Building, which serve more than one Condominium Unit; (vii) exterior perimeter
walls of the Building, except to the extent the same are otherwise classified; (viii) all
improvements, facilities and appurtenances designed for use by all Condominium Units and which
are, in fact, available for the use and benefit of all Condominium Units, which are located outside
of the boundary lines of the Condominium Units (e.g., Common Area); (ix) landscaped areas and
other common use areas as designated on the Plans unless explicitly identified as Dwelling
Common Area; (x) the mechanical rooms, as shown on the Plans (the “Mechanical Rooms”); (xi)
the Access Areas; and (xii) those other areas of the Building designated on the Plans as Association
Common Areas. For purposes of clarification (and not by way of limitation), items listed above in
subsection 6.1 are examples and any Condominium Units or Dwelling Common Areas, identified
on the Plans are not included in Association Common Areas. The Mechanical Rooms, constitute
Association Common Areas; provided, however, that certain equipment located in the Mechanical
Rooms may constitute Dwelling Common Areas (for the use or benefit of all the Residential Unit
and Apartment Unit), or be part of a Condominium Unit (for the use or benefit of a single Unit).
Section 6.2 Dwelling Common Areas. “Dwelling Common Areas” mean, other than
parts of a single Unit or parts of the Association Common Areas, (i) structural elements, utility or
service lines, and other equipment and facilities of the Building systems and all related equipment
and improvements exclusively serving both the Apartment Unit and Residential Units, including,
without limitation, the plumbing system and water connections, certain elevators, access and
security equipment in the Building which exist for the exclusive benefit of residential users of the
Apartment Unit and the Residential Units; (b) certain entrances, corridors, lobbies, vestibules,
elevators, and any other areas which are located in the Building and/or used to access the
Apartment Unit, and the Residential Unit, if any; (c) trash chutes, mechanical and IT rooms,
mailrooms, leasing and management offices, sports courts (including without limitation the sports
courts above the Garage), all other amenities spaces, pet areas, and courtyards designated for the
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exclusive use by the Apartment Unit and the Residential Units; and (d) those areas which are
designated as Dwelling Common Areas on the Plans or are otherwise defined as an Dwelling
Common Areas in this Declaration shall constitute common areas which are limited to the
exclusive use of the Apartment Unit and the Residential Units. For purposes of clarification (and
not by way of limitation), items listed above in subsection 6.2 are examples and any Condominium
Units or Association Common Areas, identified on the Plans are not included in Association
Common Areas. The Mechanical Rooms, constitute Association Common Areas; provided,
however, that certain equipment located in the Mechanical Rooms may constitute Dwelling
Common Areas (for the use or benefit of all the Residential Unit and Apartment Unit), or be part
of a Condominium Unit (for the use or benefit of a single Unit).
Section 6.3 Use. Subject to the provisions and limitations of Articles VI and VII of this
Declaration, the Owners of the Condominium Units and their Permittees shall be entitled to the
use and enjoyment of those Association Common Areas that are in or adjacent to the Building and
those areas to which access is reasonably required for the use and enjoyment of the Condominium
Units, except as expressly provided herein. The Residential Unit Owners and Apartment Unit
Owner shall have the exclusive right to use the Dwelling Common Areas.
Section 6.4 Roof. The roofs of the Building, excluding any pieces of equipment located
on the roof which are part of the Dwelling Common Areas or specifically owned and used by a
single Unit, are Association Common Areas. Without limiting the foregoing, the Declarant, and
after the Applicable Date, the Corporation, shall have the right to establish, maintain, repair and
replace equipment and facilities on the roofs necessary for the use, maintenance, and repair of the
Building, any elevators serving the Building, and other elements related to the Building structure.
Declarant, and after the Applicable Date, the Corporation, shall have, and hereby reserves, the
right to lease space and/or grant easements on the roofs of the Building to third parties, including
the Owners, for purposes of placing or affixing or maintaining any antenna, HVAC unit,
mechanical equipment and/or other improvement thereon. Any use of or access to the roofs by an
Owner shall be governed by the Rules and Regulations.
Section 6.5 Parking. The Garage may be leased from the Apartment Unit Owner to an
Owner for any lawful parking use, including self-serve parking or any other types of parking
pursuant to the Parking Lease. The Unit Owner leasing parking spaces within the Garage from
the Apartment Unit Owner shall have the right at all times to park a vehicle or vehicles in the
Garage, subject to the Parking Lease and any rules and regulations adopted from time to time
by the Apartment Unit Owner or the City of Carmel, Indiana. For the avoidance of all doubt,
other than the Apartment Unit Owner, no other Owner, including without limitation said other
Owner’s guests, customers, employees, agents, or other invites, shall have the right to utilize
the Garage unless it enters into a separate Parking Lease for the use of the Garage.
ARTICLE VII
[intentionally omitted]
ARTICLE VIII
Ownership of Common Areas
Section 8.1 Ownership of Association Common Areas and Percentage Interest. Each
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Owner shall have an undivided interest in the Association Common Areas, as tenants in common
with all other Owners, equal to such Owner’s Condominium Unit’s Percentage Interest. The
respective Percentage Interest of each Unit shall be a percentage equal to the interior gross square
footage of each Unit, as of the date of this Declaration, as compared with the total gross interior
square footage of all Units in the Signature at Carmel Condominiums. Based on this percent of
gross square footage determination, by reference to the Plans (subject to recalculation based on the
final Plans, as contemplated in Section 1.29 above), each Percentage Interest is as follows:
Each Residential Unit 1,466.5 square feet .43%
Apartment Unit 312,073 square feet 91.71%
Retail Unit 16,513 square feet 4.85%
comprising 340,318 total interior gross square feet for all Units in the Project. Except as otherwise
provided or permitted elsewhere herein, the Percentage Interest appertaining to each separate
Condominium Unit in the Association Common Areas shall be of a permanent nature and shall not
be altered without the majority consent of all the Owners and Mortgagees, and then only if in
compliance with all requirements of the Act.
The Percentage Interest appertaining to each Condominium Unit shall also be the
Percentage Vote allocable to the Owner thereof in all matters with respect to the Signature at
Carmel Condominiums.
Section 8.2 Ownership of Dwelling Common Areas and Dwelling Percentage Interest.
The Apartment Unit Owner and each Residential Unit Owner shall have an undivided interest in
the Dwelling Common Areas, as tenants in common with all other Residential Unit Owners and
the Apartment Unit Owner. The respective Dwelling Percentage Interest of the Apartment Unit
or Residential Units shall be a percentage equal to the interior gross square footage of each said
Unit, as of the date of this Declaration, as compared with the total gross interior square footage of
the Apartment Unit and all of the Residential Units in the Signature at Carmel Condominiums.
Based on this percent of gross square footage determination, by reference to the Plans (subject to
recalculation based on the final Plans, as contemplated in Section 1.29 above), each Dwelling
Percentage Interest is as follows:
Each Residential Unit 1,466.5 square feet .453%
Apartment Unit 312,073 square feet 96.38%
comprising 323,809 total interior gross square feet for the Apartment Unit and all of the Residential
Units in the Project. Except as otherwise provided or permitted elsewhere herein, the Dwelling
Percentage Interest appertaining to each separate Apartment Unit and all of the Residential Units
in the Dwelling Common Areas shall be of a permanent nature and shall not be altered without the
majority consent of the Apartment Unit Owner and Residential Unit Owners, and Mortgagees, and
then only if in compliance with all requirements of the Act.
ARTICLE IX
Encroachments and Easements for Common Areas
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If, because of the location, construction, settling or shifting of the Real Estate or any other
reason, any Association Common Area and or a Dwelling Common Area now encroaches or shall
hereafter encroach upon any Condominium Unit, then in such event, an easement shall be deemed
to exist and run to the Co-owners, the Corporation for the maintenance, use and enjoyment of such
Association Common Area and or a Dwelling Common Area. Each Owner shall have an easement
in common with each other Owner to use all pipes, wires, ducts, cables, conduits, utility lines and
other common facilities located in any of the other Condominium Units and serving such Owner’s
Condominium Unit. Each Owner shall have the right of ingress and egress to and from such
Owner’s Condominium Unit and the Access Areas, with such right being perpetual and
appurtenant to the ownership of the Condominium Unit.
ARTICLE X
Real Estate Taxes
Real estate taxes are to be separately assessed and taxed to each Condominium Unit as
provided in the Act. In the event that for any year real estate taxes are not separately assessed
and taxed to each Condominium Unit, but are assessed and taxed on the R eal Estate (or the
Real Estate and any other portions of the Real Estate) as a whole, then each Owner shall pay
his/her or its proportionate share of such taxes to the extent attributable to the Real Estate in
accordance with his/her or its respective Percentage Interest. Real estate taxes on the
Association Common Areas or Dwelling Common Areas (if separately assessed) shall be paid
by the Corporation and shall be an Association Common Expenses or Dwelling Common
Expense, as applicable. The Corporation shall be entitled to use reasonable methods to allocate
the cost equitably between the Units and Association Common Areas or Dwelling Common
Areas based on readily available information, such as, square foot sizes of Units and
Association Common Areas or Dwelling Common Areas.
ARTICLE XI
Utilities
Each Owner shall pay for his or its own utilities, to the extent separately metered. Utilities
which are not separately metered or are provided to the Association Common Areas and Dwelling
Common Areas shall be treated as and paid as part of the Association Common Expenses or
Dwelling Common Expenses, as applicable.
ARTICLE XII
Association of Owners and Units Management
Section 12.1 Establishment of Association. Subject to the provisions herein related to the
obligations of the Owners, the maintenance, repair, upkeep, replacement, administration,
management and operation of the Real Estate exclusive of the Condominium Units shall be the
obligation of the Corporation.
Section 12.2 Association Board of Directors. The Corporation shall elect a Board of
Directors annually (except for the Initial Board, as defined in the Bylaws, which shall consist of
five (5) members, three (3) selected by the Apartment Unit Owner, one selected by the Retail Unit
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Owner and one selected by a vote of the Residential Unit Owner(s), in accordance with and as
prescribed by the Bylaws). After the initial Board of Directors is established, a new Board will be
created after the Applicable Date, which Board, and all subsequent Boards, shall consist of five
(5) members, three (3) selected by the Apartment Unit Owner, one (1) selected by the Retail Unit
Owner, and one (1) selected by the majority vote of Residential Unit Owner(s), if any, or selected
by the Apartment Unit Owner if none, all in accordance with and as prescribed by the Bylaws.
Each person serving on the Initial Board, whether as an original member thereof or as a member
thereof appointed by Declarant to fill a vacancy, shall be deemed a member of the Corporation and
an Owner solely for the purpose of qualifying to act as a member of the Board of Directors and for
no other purpose. The Board of Directors shall be the governing body of the Corporation,
representing all the Owners in providing for the management, administration, operation,
maintenance, repair, replacement and upkeep of the Real Estate exclusive of the Condominium
Units. Subject to the provisions of Article XXVI of this Declaration and Section 3.2 of the Bylaws,
the Board of Directors may provide for professional management of the Real Estate, which may
be an affiliate of the Apartment Unit Owner.
Section 12.3 Residential Units Management. In the event the Apartment Unit Owner
separates Residential Units, the Apartment Unit Owner shall appoint a manager for the Residential
Units, which shall serve as a point-of-contact and administrator to handle and manage voting by
the Residential Units, allocation and collection of the Assessments, day-to-day communication
and any other administrative matters exclusively relating to the Residential Units.
ARTICLE XIII
Maintenance, Repairs and Replacements
Section 13.1 Condominium Unit Maintenance. Each Owner shall, at his or its sole
expense, be responsible for the maintenance, repair, decoration, and replacement of their own
Condominium Unit, keeping the same in good condition, consistent with similarly used space in
other first-class mixed-use developments in the Carmel, Indiana area. In the event that a Unit
Owner fails to adequately maintain their Condominium Unit, then the Association may, after
providing said Unit Owner with written notice and a reasonable opportunity to cure, proceed to
perform the necessary maintenance or make the necessary repairs as further provided in Section
13.7 or the Bylaws. The costs of said maintenance or repairs shall be at said Owner’s sole cost and
expense and paid in the same manner as Unit Assessments as contemplated in Section 13.4.
Section 13.2 Association Common Area Maintenance. The Association shall be
responsible for the daily operations, maintenance, repair, decoration and replacement of the
Association Common Area, keeping the same in good condition, consistent with similarly used
space in other first-class mixed-use developments in the Carmel, Indiana area. In the event an
Owner notifies the Association in writing of the need for maintenance or repairs to any Association
Common Areas, the Association shall respond in a reasonable time frame, specifying whether the
Association or an Owner is responsible for the maintenance or repair to the Association Common
Areas and proceed to perform the necessary maintenance or make the necessary repairs. In the
event that the Association determines that an Owner is responsible, the costs of said maintenance
or repairs shall be at said Owner’s sole cost and expense and paid in the same manner as Unit
Assessments as contemplated in Section 13.4. In all other cases, maintenance, repairs,
replacements and upkeep of the Association Common Areas shall be furnished by the Association
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as part of the Association Common Expenses, except as otherwise provided herein or in the
Bylaws. In the event that the Association fails to adequately maintain the Association Common
Areas, then any non-defaulting Owner may, after providing Association with a reasonable
opportunity to cure, proceed to perform the necessary maintenance or make the necessary repairs
and be reimbursed as further provided in Section 13.7. The Board of Directors may adopt
reasonable rules and regulations concerning maintenance, repairs, use and enjoyment of the
Association Common Areas as it deems appropriate, and may amend and modify the same from
time to time as may be reasonably necessary or appropriate. The Board of Directors or its
designated agent shall have the right at reasonable times and upon reasonable prior notice (except
in cases of emergency, in which case no notice shall be required) to enter each indivi dual
Condominium Unit for the purpose of inspection of the Association Common Areas appurtenant
thereto and replacement, repair and maintenance of such Association Common Areas.
Notwithstanding anything contained herein to the contrary, the Association shall have and
maintain access to any and all exterior entry door hardware, locking mechanisms, keys, key cards
and key fobs (but excluding all retail storefront exterior entry doors, and reserves the right to
change, modify, and replace any of the foregoing in its sole discretion as part of Association
Common Expenses.)
Section 13.3 Dwelling Common Area Maintenance. The Association shall be responsible
for the maintenance, repair, decoration and replacement of the Dwelling Common Area, keeping
the same in good condition, consistent with similarly used space in other first class mixed-use
developments in the Carmel, Indiana area. Unless otherwise provided in this Declaration or the
Bylaws, the Apartment Unit Owner and each Residential Unit Owner shall notify the Association
in writing of the need for maintenance or repairs to any Dwelling Common Areas. The Association
shall respond in a reasonable time frame, specifying whether an individual Owner is responsible
for the cost of the maintenance or repair to the Dwelling Common Areas and proceed to perform
the necessary maintenance or make the necessary repairs. In the event that the Association
determines that an Owner is responsible, the costs of said maintenance or repairs shall be at said
Owner’s sole cost and expense and paid in the same manner as Unit Assessments as contemplated
in Section 13.4. In all other cases, maintenance, repairs, replacements, and upkeep of the Dwelling
Common Areas shall be furnished by the Association as part of the Dwelling Common Expenses,
except as otherwise provided herein or in the Bylaws. In the event that the Association fails to
adequately maintain the Dwelling Common Areas, then any non -defaulting Owner may, after
providing Association with a reasonable opportunity to cure, proceed to perform the necessary
maintenance or make the necessary repairs and be reimbursed as further provided in Section 13.7.
The Board of Directors may adopt reasonable rules and regulations concerning maintenance,
repairs, use and enjoyment of the Dwelling Common Areas as it deems appropriate, and may
amend and modify the same from time to time as may be reasonably necessary or appropriate. The
Board of Directors or its designated agent shall have the right at reasonable times and upon
reasonable prior notice (except in cases of emergency, in which case no notice shall be required)
to enter each individual Condominium Unit for the purpose of inspection of the Association
Common Areas appurtenant thereto and replacement, repair and maintenance of such Association
Common Areas.
Section 13.4 Assessments. As of the first day of the first month following the
conveyance of the first Condominium Unit located in the Building and the Percentage Interest
appurtenant thereto, each Condominium Unit located in the Building and the Percentage Interest
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appurtenant thereto shall be subject to the Regular Assessments, Special Assessments and, to the
extent provided in Section 13.7, assessments associated with the obligations of the respective
Owner’s Condominium Unit benefitting less than all of the Units (the “Unit Assessments”), as
provided in this Article XIII and Article V of the Bylaws, and all such Assessments shall constitute
liens upon each applicable Condominium Unit and appurtenant Percentage Interest as provided
and described in this Declaration. Further, as of the first day of the first month following the
conveyance of the first Residential Unit and/or the Apartment Unit located in the Building and the
Dwelling Percentage Interest appurtenant thereto, the Apartment Unit and each Residential Unit
and the Dwelling Percentage Interest appurtenant thereto shall be subject to assessments related to
Dwelling Common Expenses (the “Dwelling Assessments”). Notwithstanding anything to the
contrary, Retail Unit Owner shall not be responsible for any Dwelling Assessments. The allocation
of the Dwelling Assessments shall be based upon the Unit Owners Dwelling Percentage Interest.
For the avoidance of all doubt, as used herein the term “Assessments” means, collectively, Regular
Assessments, Special Assessments, Unit Assessments and Dwelling Assessments. The date(s) on
which Assessments are due and payable shall be as specified in this Declaration or if not so
specified, then as determined by the Board of Directors. In addition, each Owner shall be
personally liable for the amounts of any and all Assessments which become due and payable during
the period in which such Owner holds title to a Condominium Unit. No Owner shall be personally
liable for any Assessments which first became due and payable prior to the time such Owner took
title to a Condominium Unit unless he expressly assumes such liability, except as may otherwise
be required by the Act. However, a conveyance by an Owner of his or its Condominium Unit shall
not operate to release or limit the liability of an Owner for Assessments becoming due and payable
while such Owner holds title to a Condominium Unit. The lien of any Assessment shall be
subordinate to the lien of any Mortgage on any Condominium Unit that was recorded before the
time when said Assessment first became delinquent, and any sale or transfer of a Condominium
Unit pursuant to a foreclosure of a Mortgage shall extinguish such subordinate liens.
Section 13.5 Delinquency. Each Regular Assessment, and Dwelling Assessment shall
be due and payable on the first day of each month and Special Assessments and/or Unit
Assessments shall be due on the due date(s) determined by the Board of Directors, and the date for
the payment of any such Assessment is hereby termed the “Delinquency Date.” Any Assessment
that is not paid in full by the Delinquency Date shall be deemed delinquent without further notice
or demand to the defaulting Owner, and such Owner shall be charged interest on the delinquent
amount at a daily compounding rate of .5% (the “Interest Rate”) on the unpaid amount from the
Delinquency Date until paid in full. If any costs or expenses, including attorneys’ fees, are incurred
by or on behalf of the Corporation with respect to the recovery or collection of any delinquent
Assessment, all such costs, expenses and fees shall be due and payable immediately by such
delinquent Owner and shall bear interest from the dates incurred until paid in full, at a rate of
interest equal to the Interest Rate. All interest, late fees, costs and expenses payable hereunder
with respect to a delinquent Assessment shall be added to and deemed a part of such delinquent
Assessment and shall constitute a lien on the delinquent Owner’s Condominium Unit and
Percentage Interest as of the date on which such delinquent Assessment first became a lien. If any
Assessment is not fully paid on or before the Delinquency Date, the Corporation shall be entitled
to accelerate and declare due and payable in full all installments of Assessments due for the year
in which such delinquency occurs, and to enforce payment of the same by foreclosure of said lien
and/or other appropriate legal proceedings in accordance with the laws of the State of Indiana.
Any such lien against a Condominium Unit and its Percentage Interest shall be subordinate to the
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lien of any first Mortgage encumbering such Condominium Unit and its Percentage Interest if and
to the extent the Mortgage creating such first mortgage lien was recorded prior to the due date of
the delinquent Assessments.
Section 13.6 Owner Self-Help. In the event the Association is in default under its
obligations to maintain and repair the Association Common Areas or Dwelling Common Areas,
which affects the operations in another Unit, a non-defaulting Owner may give written notice
specifying the nature of the breach and the reasonable requirements to cure the breach. The
Association will have thirty (30) days from receipt of this notice in which to either cure the breach
or, if the breach cannot reasonably be cured within such 30-day period, to commence the cure and,
thereafter, to diligently proceed the cure to completion which must be completed within ninety
(90) days from receipt of such notice. If the Association fails to cure the default, a non-defaulting
Owner will have the right to cure the default on behalf of the Association and be reimbursed by
the Association for the reasonable costs and expenses of completing or undertaking the cure,
including reasonable attorney’s fees and interest at the rate of 18% per annum (“Owner Self-Help
Costs”). All Owner Self-Help Costs due to the non-defaulting Owner under this Section will be
payable thirty (30) days after the non-defaulting Owner has notified the Association of the curative
work and provided written evidence (e.g. invoices) of the amount expended by the non-defaulting
Owner. In the event of (i) an emergency; or (ii) unreasonable and adverse interference or material
impairment of an easement or access right, a non -defaulting Owner may immediately, after such
notice as may be reasonable under the circumstances, cure the default and be reimbursed in the
manner set out above.
Section 13.7 Association Self-Help. In the event an Owner is in breach of its obligation
relating to the maintenance of its Unit, which affects the operations in another Unit, the Association
may give written notice to the defaulting Owner specifying the nature of the breach and the
reasonable requirements to cure the breach. The defaulting Owner will have thirty (30) days from
receipt of this notice in which to either cure the breach or, if the breach cannot reasonably be cured
within such 30-day period, to commence the cure and, thereafter, to diligently proceed with the
cure to completion which must be completed within ninety (90) days from receipt of such notice.
If the defaulting Owner fails to cure the default, the Association will have the right to cure the
default on behalf of the defaulting Owner and be reimbursed by the defaulting Owner for the
reasonable costs and expenses of completing or undertaking the cure, including reasonable
attorney’s fees and interest at the rate of 18% per annum (“Self-Help Costs”). Any Self-Help
Costs incurred by the Association on behalf of a Condominium Unit Owner shall pay a separate
assessment in an amount equal to Self-Help Costs (defined above as the Unit Assessments). In
the event of (i) an emergency; or (ii) unreasonable and adverse interference or material impairment
of an easement or access right, the Association may immediately, after such notice as may be
reasonable under the circumstances, cure the default and be reimbursed in the manner set out
above.
ARTICLE XIV
Alterations, Additions and Improvements
Section 14.1 Limits on Alterations. No Owner shall make any alterations or additions to
or which would affect the Association Common Areas, Dwelling Common Areas or any other Unit
without the prior written approval of the Board of Directors, nor shall any Owner make any
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alteration in or to his or its respective Condominium Unit which would affect the safety or
structural integrity of the Building, without the prior written approval of the Board of Directors,
which, in both cases, requires the approval of a majority of the Directors. Declarant reserves the
right to change the interior design and arrangement of the Apartment Unit and the Retail Unit so
long as Declarant owns the same. Prior to the Applicable Date, so long as Declarant is the Owner
of at least one Condominium Unit, Declarant may make, without the approval of the Board of
Directors, the Association or the Co-owners, any alterations or modifications it desires to the
Apartment Unit.
Section 14.2 Number of Apartment Units to be Created; Combination or Division of
Units. Declarant and/or any future Apartment Unit Owner may at any time, or from time to time,
divide and subsequently recombine the Apartment Unit and Residential Unit(s) to form a lesser or
greater number of Condominium Units (referred to herein collectively as the “Future Apartment
Units”) consisting of more or less Residential Units, in the manner determined in the Apartment
Unit Owner’s discretion, subject to the following requirements:
(a) The Declarant or the Apartment Unit Owner, as applicable, shall (i) prepare all
engineering and architectural plans required for the new Apartment Units; (ii) obtain all permits
and approvals required by applicable law, ordinance and public authority, and submit proof of such
action and approvals to the Board of Directors; (iii) prepare any necessary Supplemental
Declaration to establish such combined Apartment Unit or divided Apartment Units; (iv) complete
arrangements to pay such sums and submit such additional information and materials as may
reasonably be required by the Bylaws and the Board of Directors; and (v) provide for a reallocation
of assessments against and payment of applicable real estate taxes with respect to the Apartment
Units.
(b) Simultaneously with the recording of a Supplemental Declaration, the Owner or
Owners shall record Plans as required by the Act. Upon such combination or division of
Apartment Units, the reallocation of Percentage Interests of the affected Apartment Units,
calculated as provided here shall be shown in the Supplemental Declaration. Such reallocation of
Percentage Interests shall vest when each Supplemental Declaration incorporating those changes
has been recorded.
(c) The Apartment Unit Owner by acceptance of a deed thereto (for such Future
Apartment Units), further acknowledges, consents and agrees, to a recorded Supplemental
Declaration, as follows (i) the Percentage Interest in the Association Common Areas and Dwelling
Percentage Interest in the Dwelling Common Areas appurtenant to each Residential Unit and the
Apartment Unit shall automatically be shifted and reallocated to the extent set forth in each such
Supplemental Declaration and upon the recording thereof such Percentage Interest and Dwelling
Percentage Interest and shall thereby be and be deemed to be released and divested from such
Owner and re-conveyed and reallocated among the other Owners as set forth in each such recorded
Supplemental Declaration; (ii) each deed, mortgage or other instrument affecting an Apartment
Unit or Residential Unit shall be deemed given subject to the conditional limitation that the
Percentage Interest in the Association Common Areas and Dwelling Percentage Interest in the
Dwelling Common Areas appurtenant to each Apartment Unit and Residential Unit shall, upon the
recording of each such Supplemental Declaration, be divested by so much as the reduced
percentage set forth in such Supplemental Declaration and vested among the other Owners of
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Apartment Unit and Residential Units, mortgagees and others owning an interest in the other
Apartment Unit and Residential Units in accordance with the terms and percentages of each such
recorded Supplemental Declaration; (iii) a right of revocation is hereby reserved by the grantor in
each deed, mortgage or other instrument affecting the Apartment Unit or Residential Unit to so
amend and reallocate the Percentage Interest in the Association Common Areas and Dwelling
Percentage Interest in the Dwelling Common Areas appurtenant to each Apartment Unit and
Residential Unit; (iv) the Percentage Interest in the Association Common Areas and Dwelling
Percentage Interest in the Dwelling Common Areas appurtenant to each Apartment Unit and
Residential Unit shall include and be deemed to include any additional Association Common Areas
or Dwelling Common Areas created by a Supplemental Declaration and each deed, mortgage or
other instrument affecting the Apartment Unit or a Residential Unit shall be deemed to include
such additional Association Common Areas and Dwelling Common Areas and the ownership of
any such Apartment Unit or Residential Unit and lien of and such mortgage shall automatically
include and attach to such additional Association Common Area and Dwelling Common Area as
each such Supplemental Declaration is recorded; (v) the recording of any such Supplemental
Declaration shall not alter the amount of the lien for expenses assessed to or against the Apartment
Unit or a Residential Unit prior to such recording; (vi) each Apartment Unit Owner and Residential
Unit Owner, by acceptance of the deed conveying his Apartment Unit and/or Residential Unit,
agrees for himself and all those claiming under him, including Mortgagees, that this Declaration
and each such Supplemental Declaration are and shall be deemed to be in accordance with the Act
and, for the purposes of this Declaration and the Act, any change in the respective Percentage
Interests in the Association Common Areas and Dwelling Percentage Interest in the Dwelling
Common Areas as set forth in each such Supplemental Declaration shall be deemed to be made by
agreement of all Owners; and (vii) the voting rights of an Owner of such newly created Residential
Unit shall vest upon becoming a Member of the Association as prescribed by the Bylaws.
(d) The design and construction of Apartment Unit or Residential Units created by the
combination or division of Units shall be consistent with the Plans and the improvements so
constructed shall be consistent in quality, design and nature with the improvements then located
in the Building. No lien arising in connection with the ownership and construction of such
combined or divided Apartment Units or Residential Units shall adversely affect the rights of
existing Owners or the priority of first mortgages on the existing Apartment Unit. All taxes and
other assessments relating to the Apartment Unit or Units being modified under the combination
or division of Units covering any period prior to such combination or divisions shall be paid by or
otherwise satisfactorily provided for by the party initiating such combination or division.
ARTICLE XV
Insurance
Section 15.1 Required Insurance. The Corporation shall, for the benefit of the Signature
at Carmel Condominiums and of the Owners, purchase a master casualty insurance policy, using
generally acceptable insurance carriers, affording fire and extended coverage insurance on all
portions of the Building which are not part of a Condominium Unit and comprise the Association
Common Areas in an amount equal to the full replacement value of such improvements. If the
Board of Directors can obtain such coverage for reasonable amounts, the Board of Directors shall
also obtain “all risk” coverage. The Board of Directors shall be responsible for reviewing at least
annually the amount and type of such insurance and shall purchase such additional insurance as is
18
necessary to provide the insurance required above. If deemed advisable by the Board of Directors,
the Board of Directors may cause such full replacement value to be determined by a qualified
appraiser. The cost of any such appraisal shall be an Association Common Expense. Such
insurance coverage shall name each Owner and, if applicable, the Mortgagee of each Owner and
shall be for the benefit of each such Owner and Mortgagee in accordance with the terms and
conditions of this Article XV.
Section 15.2 Payment of Insurance Proceeds. All proceeds payable as a result of casualty
losses sustained, which are covered by insurance purchased by the Corporation as hereinabove set
forth, shall be paid to it or to the Board of Directors, which shall act as the insurance trustee and
hold such proceeds for the benefit of the individual Owners and Mortgagees. The proceeds shall
be used or disbursed by the Corporation or Board of Directors, only in accordance with Section
15.3 and any surety bond or bonds obtained by the Board of Directors concerning the officers of
the Corporation, as provided in the Bylaws, shall specifically include protection for any insurance
proceeds so received. Notwithstanding the foregoing, so long as all Condominium Units are
subject to a single mortgage, then insurance proceeds shall be held and applied in accordance with
the terms of such mortgage.
Section 15.3 Owner’s Interests. The interest of each damaged Owner in the trust fund of
insurance proceeds shall be the ratio of the direct damage of each damaged Owner to the damages
of all Owners directly damaged by any event insured under the said master casualty insurance
policy. The Corporation shall have exclusive authority to negotiate losses under any policy
providing property or liability insurance and to perform such other functions as are necessary to
accomplish this purpose. Each Owner appoints the Corporation to act for and on behalf of the
Owners for the purpose of purchasing and maintaining such insurance, including the collection
and appropriate disposition of the proceeds thereof, the negotiation of losses and execution of
releases of liability and the performance of all other acts necessary to accomplish such purposes.
Section 15.4 Mortgagees’ Interests. No Owner or any other party shall have priority over
any rights of a Mortgagee pursuant to its Mortgage in the case of distribution to such Owner of
insurance proceeds or condemnation awards for losses to or a taking of any Condominium Unit
Association Common Areas and/or Dwelling Common Areas.
Section 15.5 Casualty Insurance Provisions. Such master casualty insurance policy, and
“all-risk” coverage if obtained, shall (to the extent the same are obtainable) include (i) a provision
that the insurer waives its right to subrogation as to any claim against the Corporation, the Board
of Directors, its agents, contractors and employees, Owners, the tenants and their respective
employees, agents and guests; and (ii) a provision that the insurer waives any defense based on the
invalidity arising from the acts of the insured; and (iii) an endorsement that such policy shall not
be terminated for non-payment of premiums without at least ten (10) days’ prior written notice to
Mortgagees and to the Corporation. If the Board of Directors is able to obtain such insurance upon
reasonable terms, such master casualty insurance policy, and “all-risk” coverage if obtained, shall
further provide (A) that the insurer shall not be entitled to contribution against casualty insurance
which may be purchased by individual Owners as hereinafter permitted; (B) that notwithstanding
any provision thereof giving the insurer an election to restore damage in lieu of a cash settlement,
such option shall not be exercisable in the event the Owners do not elect to restore pursuant to
Article XVI of this Declaration; and (C) an agreed amount endorsement or an inflation guard
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endorsement to the extent such are commonly required by prudent institutional mortgage investors
in the Carmel, Indiana area.
Section 15.6 Liability Insurance. The Corporation shall also purchase a master
comprehensive public liability insurance policy in such amount or amounts as the Board of
Directors shall deem appropriate from time to time. Such comprehensive public liability insurance
policy shall cover the Corporation, the Board of Directors, any committee or organization of the
Corporation or Board of Directors, any managing agent appointed or employed by the Corporation,
all persons acting or who may come to act as agents or employees of any of the foregoing with
respect to the Signature at Carmel Condominiums, all Owners of Condominium Units and all other
persons entitled to occupy any Condominium Unit or other portions of Condominiums. For the
avoidance of all doubt, the Owners of Condominium Units shall be named as additional insured
on said insurance policy. Such policy shall provide that it may not be cancelled or substantially
modified without at least ten (10) days’ prior written notice to the Corporation and all Mortgagees.
Section 15.7 Other Insurance. The Corporation shall, on behalf of the Signature at
Carmel Condominiums and all the Owners, also obtain any other insurance required by law to be
maintained, including but not limited to workers’ compensation insurance, and such other
insurance as the Board of Directors shall from time to time deem necessary, advisable or
appropriate. Such insurance coverage shall also provide for and cover cross-liability claims of one
insured party against another insured party. Such insurance shall inure to the benefit of each
Owner, the Corporation, the Board of Directors and any managing agent acting on behalf of the
Corporation.
Section 15.8 Payment of Premiums. The premiums for all such insurance hereinabove
described shall be paid by the Corporation as part of the Association Common Expenses. When
any such policy of insurance hereinabove described has been obtained by or on behalf of the
Corporation, written notice of the obtainment thereof and of any subsequent changes therein or
termination thereof shall be promptly furnished to each Owner or Mortgagee whose interest may
be affected thereby, which notice shall be furnished by the officer of the Corporation who is
required to send notices of meetings of the Corporation.
Section 15.9 Mortgagee Endorsements. In no event shall any distribution of proceeds be
made by the Board of Directors directly to an Owner where there is a mortgagee endorsement on
the certificate of insurance. In such event any remittances shall be to the Owner and his or its
Mortgagee jointly.
Section 15.10 Owners’ Insurance. Each Owner shall be solely responsible for loss
(including, without limitation, loss of income) or damage to his Condominium Unit and the
contents thereof however caused (including, but not limited to, all floor, ceiling and wall coverings
and fixtures, light fixtures, appliances and betterments and improvements installed by such Owner)
and his or its personal property stored elsewhere on the Real Estate, and neither the Corporation
nor Declarant shall have any liability to the Owner for loss or damage to the contents of any
Condominium Unit. Each Owner shall be solely responsible for obtaining his or its own insurance
to cover any such loss and risk. Each Owner shall purchase insurance at his or its own expense
and provide proof of such insurance to the Corporation including but not limited to a policy or
policies of insurance with the following amounts: (i) comprehensive general public liability
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insurance against claims for bodily injury or death occurring upon, in, or about the Leased
Premises and on, in, or about the adjoining sidewalks, alleys, rights of way and passage ways, such
insurance to afford protection to the limit of not less than One Million Dollars ($1,000,000.00) per
occurrence and Two Million Dollars ($2,000,000.00) in the aggregate, and an umbrella coverage
of at least Five Million Dollars ($5,000,000.00), including liability for bodily injury and death
resulting therefrom; provided that all such insurance shall contain the same provisions for waiver
of subrogation as referred to in the foregoing provisions for the master casualty insurance policy
to be obtained by the Corporation; and (ii) casualty insurance upon his or its Condominium Unit
and any personal property in the Condominium Unit equal to at least the value of (1) the
Condominium Unit and any improvements made to said Condominium Unit, as well as (2) all
personal property in said Condominium Unit, but such insurance shall provide that it shall be
without contribution as against the casualty insurance purchased by the Corporation. If a casualty
loss is sustained and there is a reduction in the amount of the proceeds which would otherwise be
payable on the insurance purchased by the Corporation pursuant to this Section due to proration
of insurance purchased by an Owner under this Section, the Owner agrees to assign the proceeds
of this latter insurance, to the extent of the amount of such reduction, to the Corporation to be
distributed as herein provided. Each Owner shall be solely responsible for providing and paying
for casualty insurance for all areas associated with the Owner’s Condominium Unit.
Upon written request, the Corporation shall provide written notice to Owners or
Mortgagees (whose interests may be affected) of obtainment of any insurance policy provided for
herein or subsequent revision or termination of the same.
ARTICLE XVI
Casualty and Restoration
Section 16.1 Casualty Damage Determination. Except as provided in Section 16.5
below, damage to or destruction of any portions of the Building which are not part of a
Condominium Unit due to fire or any other casualty or disaster shall be promptly repaired and
reconstructed by the Corporation and the proceeds of insurance, if any, shall be applied for that
purpose.
Section 16.2 Notice to Mortgagees. In the event of substantial damage to or destruction
of any Condominium Unit or any part of the Association Common Areas and/or Dwelling
Common Areas, the affected Mortgagee or Mortgagees shall be given timely written notice of such
damage or destruction and, notwithstanding any other provision of this Declaration or Bylaws, the
Real Estate shall not be removed from the Act without the approval of fifty-one percent (51%) of
the Mortgagees.
Section 16.3 Insufficient Proceeds. If any insurance proceeds received by the
Corporation as a result of any fire or any other casualty or disaster are not adequate to cover the
cost of repair and reconstruction, or in the event there are no insurance proceeds, and if the Real
Estate is not to be removed from the Act, the cost for restoring the damage and repairing and
reconstructing the portion of the Building so damaged or destroyed (or the costs thereof in excess
of insurance proceeds received, if any) shall be a common expense and assessed as part of the
Association Common Expenses.
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Section 16.4 Reconstruction and Restoration. For purposes of Subsections 16.1 and 16.2
above, repair, reconstruction and restoration shall mean construction or rebuilding of those
portions of the Building which are not a Condominium Unit to as near as possible the same
condition as existed immediately prior to the damage or destruction and with the same type of
architecture.
Section 16.5 Complete Destruction of the Building. As used herein, the term “complete
destruction of the Building” means a determination, made by a Majority of the Percentage Vote,
that a total destruction of the Building has occurred. A special meeting of the Corporation shall
be called (the “Casualty Meeting”) and held within thirty (30) days after any fire or any other
casualty or disaster damaging or destroying the Building for the purpose of making the
determination of whether or not there has been a complete destruction of the Building. If a
Casualty Meeting is not called and held within such thirty (30) day period, or if the determination
that there has been a complete destruction of the Building has not been made within such thirty
(30) day period, then it shall be conclusively presumed that a Majority of the Percentage Vote has
determined that there was not a complete destruction of the Building, and the Corporation shall
proceed with repair and reconstruction of the Building (exclusive of Condominium Units) as herein
provided. If it has been determined that a complete destruction of the Building has occurred, and
if a Majority of the Percentage Vote has determined, at the Casualty Meeting, that it would not be
in the best interest of the Owners to repair those portions of the Building which are not a
Condominium Unit and that the Real Estate shall be removed from the Act, the Owners shall
proceed as provided in Section 16.6 below. If a Majority of the Percentage Vote does not vote to
remove the Real Estate from the Act, those portions of the Building which are not a Condominium
Unit shall be rebuilt, reconstructed and repaired, and the insurance proceeds, if any, rec eived by
the Corporation shall be applied and any excess of construction costs over insurance proceeds, if
any, shall be contributed and paid as hereinabove provided in Subsection 16.3 and the Corporation
shall commence same within ninety (90) days of the date of the casualty event and shall complete
all required repairs and reconstruction with due diligence.
Section 16.6 Removal of Real Estate from the Act. If, in any case of the complete
destruction of the Building, or a Majority of the Percentage Vote votes against the rebuilding,
reconstruction and repair of the Building, the Building shall not be rebuilt, reconstructed or
repaired and, in such event, the Real Estate shall be deemed and considered as to be removed from
the provisions of the Act under Section 32-25-8-16 of the Act and, in accordance with such Section
of the Act:
(a) the Real Estate shall be deemed to be owned in common by the Owners;
(b) the undivided interest in the Real Estate owned in common which shall appertain
to each Owner shall be the percentage of undivided interest previously owned by such Owner in
the Association Common Areas;
(c) any liens affecting any of the Condominium Units shall be deemed to be transferred
in accordance with the existing priorities to the percentage of the undivided interest of the Owner
in the Real Estate; and
(d) The Real Estate shall be subject to an action for partition at the suit of any Owner,
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in which event the net proceeds of sale, together with the net proceeds of the insurance on the Real
Estate, if any, shall be considered as one (1) fund and shall be divided among all the Owner s in a
percentage equal to the Percentage Interest owned by each Owner in the Real Estate, after first
paying out of the respective shares of the Owners, to the extent sufficient for the purpose, all liens
on the undivided interest in the Real Estate owned by each Owner, with any Owner having an
outstanding lien balance to pay amounts necessary to effect release of such liens
contemporaneously with disbursement of partition net proceeds.
Section 16.7 Repair Estimates. Immediately after a fire or other casualty or disaster
causing damage to any property for which the Board of Directors or Corporation has the
responsibility of maintenance and repair, the Board of Directors shall obtain reliable and detailed
estimates of the cost to place the damaged property in condition as good as that before the casualty.
Such costs may include professional fees and premiums for such bonds as the Board of Directors
desire.
Section 16.8 Construction Fund. The proceeds of insurance collected because of any
such casualty, and the sums received by the Board of Directors from collections of assessments
against Owners because of such casualty, shall constitute a construction fund which shall be
disbursed, if those portions of the Building which are not a Condominium Unit are to be
reconstructed and repaired, in payment of the costs of reconstruction and repair in the following
manner:
(a) If the amount of the estimated cost of reconstruction and repair is One Hundred
Thousand Dollars ($100,000.00) or less, then the construction fund shall be disbursed in payment
of such costs upon order of the Board of Directors; provided, however, that upon request of a
Mortgagee which is a beneficiary of an insurance policy, the proceeds of which are included in the
construction fund, such fund shall be disbursed in the manner hereinafter provided in the following
Subsection 16.8(b).
(b) If the estimated cost of reconstruction and repair of those portions of the Building
which are not a Condominium Unit is more than One Hundred Thousand Dollars ($100,000.00),
then the construction fund shall be disbursed in payment of such costs upon approval of an architect
licensed to practice in Indiana and employed by the Board of Directors to supervise such work,
payment to be made from time to time as the work progresses. The architect shall be required to
furnish a certificate giving a brief description of the services and materials furnished by various
contractors, subcontractors, materialmen, the architect, or other persons who have rendered
services or furnished materials in connection with the work, and certifying (A) that the sums
requested by them in payment are justly due and owing and that said sums do not exceed the value
of the services and materials furnished; (B) that there is no other outstanding indebtedness known
to the architect for the services and materials described; and (C) that the costs as estimated by said
architect for the work remaining to be done subsequent to the date of such certificate do not exceed
the amount of the construction fund remaining after payment of the sum so requested.
(c) Encroachments upon or in favor of Condominium Units which may be created as a
result of such reconstruction or repair shall not constitute a claim or basis of a proceeding or action
by the Owner upon whose property such encroachment exists, provided that such reconstruction
was either substantially in accordance with the plans and specifications or as the Building was
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originally constructed. Such encroachments shall be allowed to continue in existence for so long
as the Building stands.
(d) If there is any surplus of monies in the construction fund after the reconstruction or
repair of the damage has been fully completed and all costs paid, such sums may be retained by
the Board of Directors as a reserve or may be used in the maintenance and operation of the
Association Common Areas. The action of the Board of Directors in proceeding to repair or
reconstruct damage shall not constitute a waiver of any rights against another Owner for
committing willful or malicious damage.
Section 16.9 Condemnation. If any Condominium Unit or portion thereof or any of the
Association Common Areas is made the subject of a condemnation or eminent domain proceeding
or is otherwise sought to be acquired by a condemning authority, then the affected Mortgagee or
Mortgagees shall be given timely written notice of such proceeding or proposed acquisition. The
Corporation shall represent the Owners in any condemnation proceeding or any negotiation
settlements or agreements with the condemning authority for acquisition of the Association
Common Areas or any part thereof. In the event of a taking or acquisition of part or all of the
Association Common Areas by a condemning authority, the award or proceeds of settlement shall
be payable to the Corporation to be held in trust for the Owners and Mortgagees as their interests
may appear and the provisions of this Declaration relating to restoration and allocation of funds in
the event of a casualty shall be applicable in the event of a condemnation.
ARTICLE XVII
Covenants and Restrictions
Section 17.1 General. Each Condominium Unit shall be used for lawful purposes in
conformance with all restrictions imposed by all applicable governmental laws, ordinances, codes,
and regulations, and no use or operation shall be made, conducted or permitted on or with respect
to any Condominium Unit which is illegal. The covenants and restrictions in this Article XVII,
including those set forth in the Bylaws, are for the mutual benefit and protection of the present and
future Owners and shall run with the land and inure to the benefit of and be enforceable by any
Owner, or by the Corporation. Present or future Owners or the Corporation shall be entitled to
injunctive relief against any violation or attempted violation of these provisions and shall be
entitled to damages for any injuries resulting from any violations thereof, but there shall be no
right of reversion or forfeiture of title resulting from such violation.
Section 17.2 Prohibited Uses. In addition to the foregoing and to the limitations in the
Bylaws, it is expressly agreed that no Condominium Unit shall be used for those purposes set forth
in Exhibit C attached hereto and made a part hereof.
Section 17.4 Other Restrictions. No Owner shall have the right to alter the exterior
design, finishes, materials, surfaces or lighting of the Building if the same would affect the
structure of the Building in any fashion, unless prior approval is received from the Association. In
addition, no Owner shall use any of the Association Common Areas and/or Dwelling Common
Areas, including the Systems, in any manner that would unreasonably burden the Association
Common Areas, Dwelling Common Areas and/or Systems, or unreasonably interfere with the use
of the Garage or the Units for the purposes for which they are intended. No Owner shall use the
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Association Common Areas, Dwelling Common Areas and/or Systems in a manner other than the
uses for such Units as expressly permitted hereunder that would impair, render void, render
uninsurable or increase the premiums for any insurance required by this Declaration and
maintained by the Association. Each Owner and Condominium Unit shall be subject to the rules
and regulations set forth in Exhibit D attached hereto and made a part hereof, as the same may be
reasonably amended or added to from time to time by the Board of the Corporation but which shall
not be enforceable without reasonable prior written notice thereof.
ARTICLE XVIII
Amendment of Declaration
Except as otherwise provided in this Declaration, including the Apartment Unit Owner’s
unilateral right to further separate or recombine the Residential Units from or into the Apartment
Unit, amendments to this Declaration shall be proposed and adopted in the following manner:
Section 18.1 Notice. Notice of the subject matter of the proposed amendment shall be
included in the notice of any meeting at which the proposed amendment is considered.
Section 18.2 Resolution. A resolution to adopt a proposed amendment may be proposed
by the Board of Directors or Owners having in the aggregate at least a majority of the Percentage
Vote.
Section 18.3 Meeting. The resolution concerning a proposed amendment must be
adopted by the designated vote at a meeting duly called and held in accordance with the provisions
of the Bylaws.
Section 18.4 Adoption. Any proposed amendment to this Declaration must be approved
by two-thirds of the Percentage Vote. In the event any Condominium Unit is subject to a first
Mortgage, the Mortgagee shall be notified of the meeting and the proposed amendment in the same
manner as an Owner if the Mortgagee has given prior notice of its Mortgage interest to the Board
of Directors in accordance with the provisions of the Bylaws.
Section 18.5 Special Amendments. No amendment to this Declaration shall be adopted
which changes (i) the Percentage Interest with respect to the Retail Unit, or the allocation of the
Association Common Expenses between and among the Retail Unit and any other Unit, without
the approval of one hundred percent (100%) of the Co-owners and all Mortgagees whose mortgage
interests have been made known to the Board of Directors in accordance with the provisions of the
Bylaws except as otherwise provided or permitted herein, or (ii) the provisions of Article XVI of
this Declaration with respect to reconstruction or repair in the event of fire or any other casualty
or disaster, without the unanimous approval of all Mortgagees whose mortgage interests have been
made known to the Board of Directors in accordance with the provisions of the Bylaws, or (iii) the
provisions of Article XV of this Declaration providing for no priority of an Owner or other person
over a Mortgagee as to insurance or condemnation proceeds.
Section 18.6 Recording. Each amendment to this Declaration shall be executed by the
President and Secretary of the Corporation and shall include an affidavit stating that Owners
representing the percentage of Co-owners required by this Declaration have approved the
amendment and shall be recorded in the Office of the Recorder of Hamilton County, Indiana, and
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such amendment shall not become effective until so recorded.
Section 18.7 Amendments by Declarant Only. Notwithstanding the foregoing or
anything elsewhere contained herein to the contrary, the Declarant shall have the right acting alone
and without the consent or approval of the Co-owners, the Corporation, or the Board of Directors,
any Mortgagees or any other person or entity, at any time prior to the Applicable Date, to amend
or supplement this Declaration from time to time if: (i) such amendment or supplement is
necessary to conform this Declaration to the Act, as amended from time to time; or (ii) such
amendment or supplement is made or in connection with the subdivision or combining of
Apartment Units owned by Declarant as set forth in Article XIV hereof; or (iii) such amendment
is necessary to comply with requirements of the Federal National Mortgage Association, the
Government National Mortgage Association, the Federal Home Loan Mortgage Corporation, the
Department of Housing & Urban Development, the Federal Housing Association, the Veteran’s
Administration or any other governmental agency or any other public, quasi-public or private
entity which performs (or may in the future perform) functions similar to those currently performed
by such entities; or (iv) such amendment is necessary to correct clerical or typographical errors; or
(v) such amendment is necessary to implement any changes in the Signature at Carmel
Condominiums expressly permitted to be made exclusively by Declarant. Notwithstanding
anything to the contrary, and subject to Section 18.5(i), no such amendment or supplement made
by Declarant shall have a material adverse effect on the rights of the Retail Unit Owner, that is
disproportional to the Retail Unit Owner compared to the other Unit Owners, without the written
consent of Retail Unit Owner.
Section 18.8 Special Requirements. Notwithstanding anything to the contrary contained
herein, unless specifically controlled by a more restrictive provision under Indiana law or
contained herein, the Corporation shall not, without the prior written notice to all Mortgagees and
the prior written consent of all the Co-owners be entitled to:
(a) by act or omission, seek to abandon or terminate the Signature at Carmel
Condominiums; or
(b) except in connection with the subdivision or combining of Apartment Unit and
Residential Units as permitted herein, change the pro rata interest or obligations of any individual
Condominium Unit for the purpose of: (A) levying assessments or charges or allocating
distributions of hazard insurance proceeds or condemnation awards, or (B) determining the pro
rata share of ownership of each Condominium Unit in the Association Common Areas; or
(c) by act or omission, seek to abandon, partition, subdivide, encumber, sell or transfer
the Association Common Areas or Dwelling Common Areas (provided that the granting of
easements for public utilities or for other public purposes consistent with the intended use of the
Association Common Areas or Dwelling Areas shall not be deemed transfers within the meaning
of this clause); or
(d) use hazard insurance proceeds for losses to any part of the Real Estate (whether to
Condominium Units, to Association Common Areas and/or to the Dwelling Common Areas) for
other than the repair, replacement or reconstruction of such Real Estate, except as provided in
Article XVI of this Declaration in case of substantial damage to the Condominium Units.
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ARTICLE XIX
Acceptance and Ratification
All present and future Owners, Mortgagees, tenants and occupants of the Condominium
Units shall be subject to and shall comply with the provisions of this Declaration, the Act, the
Bylaws appended hereto, and the rules and regulations as adopted by the Board of Directors as
each may be amended or supplemented from time to time. The acceptance of a deed of conveyance
or the act of occupancy of any Condominium Unit shall constitute an agreement that the provisions
of this Declaration, the Act, the Bylaws and rules and regulations as each may be amended or
supplemented from time to time are accepted and ratified by such Owner, tenant or occupant, and
all such provisions shall be covenants running with the land and shall bind any person having any
interest or estate from time to time in a Condominium Unit or the Real Estate as though such
provisions were recited and stipulated at length in each and every deed, conveyance, mortgage or
lease thereof. All persons, corporations, partnerships, trusts, associations, or other legal entities
who may occupy, use, enjoy or control a Condominium Unit or Condominium Units or any part
of the Real Estate in any manner shall be subject to this Declaration, the Act, the Bylaws, and the
rules and regulations applicable thereto as each may be amended or supplemented from time to
time.
ARTICLE XX
Negligence
Each Owner shall be liable for the expense of any maintenance, repair or replacement
rendered necessary by his or its negligence or by that of any tenant or occupant of its Condominium
Unit and by that of their respective family members or invitees, licensees, guests, employees,
agents or lessees, (including but not limited to damage caused by any pet or any automobile) t o
the extent that such expense is not covered by the proceeds of insurance received by the
Corporation. An Owner shall pay the amount of any increase in insurance premiums occasioned
by his or its use, misuse, occupancy or abandonment of his or its Condominium Unit or its
appurtenances or of the Association Common Areas or Dwelling Common Areas.
ARTICLE XXI
Rights of Action and Enforcement
Notwithstanding any provision in this Declaration otherwise, before any Owner resorts to
litigation to enforce this Declaration against any purported Defaulting Owner, such Owner shall
seek a mediation of the claim and the purported Defaulting Owner shall be obligated to participate
in such mediation. The parties further agree that a breach or violation of the terms, covenants,
conditions and restrictions set forth in this Declaration which are committed by any tenant,
occupant, visitor or guest at the express or implied invitation of Owner or any agent, employee,
business invitee or contractor of any Owner shall be attributed to and be deemed a violation by
that Owner. The provisions of this Declaration, the Bylaws, the Articles of Incorporation or the
Act may be enforced by the Corporation or by any Aggrieved Owner (as defined below) through
court proceedings for injunctive relief, for damages or for both.
The Association or any Aggrieved Owner shall have a right of action against any Owner
or Owners for failure to comply with the provisions of this Declaration, Bylaws or any decision of
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the Association or its Board of Directors which are made pursuant to authority granted to the
Association or its Board of Directors in such documents. Owners shall have a similar right against
the Association.
For purposes of this Declaration, an “Aggrieved Owner” shall mean an Owner whose
rights are affected or infringed by any such alleged failure to comply with the provisions of this
Declaration, Bylaws or any decision of the Association or its Board of Directors. Any Owner who
alleges that he, she or it is an Aggrieved Owner s hall first notify the Board of Directors of such
Owner’s aggrieved status and request a special meeting of the Board of Directors to be held within
thirty (30) days of such request (or within five (5) days in an emergency situation) to establish to
the Board and the Association that such Owner is Aggrieved within the meaning hereof, prior to
the commencement of any right of action commenced hereunder.
ARTICLE XXII
Waiver of Implied Warranty of Habitability
Indiana courts have held that every contract for the construction of a new living
structure in Indiana carries with it a warranty that when completed, the living
structure will be free of defects and will be fit for its intended use as a home. The courts
have also held that this “Implied Warranty of Habitability” does not have to be in
writing to be a part of the contract and that it covers not only structural and mechanical
defects such as may be found in the foundation, roof, masonry, heating, electrical and
plumbing, but it also covers any defect in workmanship which may not easily be seen by
the buyer. However, the courts have also held that a seller-builder and buyer may agree
in writing that the Implied Warranty of Habitability is not included as a part of their
particular contract. Each buyer of a Residential Unit from the Declarant or the
Apartment Unit Owner agreed in the purchase contract that the Declarant or the
Apartment Unit Owner has excluded and disclaimed the Implied Warranty of
Habitability and all other implied warranties, whether creat ed judicially, statutorily or
by common law, including the implied warranty of fitness for a particular purpose.
Such exclusion and disclaimer shall apply to and bind any subsequent Residential Unit
Owner and, accordingly, no Residential Unit Owner shall be able to assert a claim
against Declarant for a breach of the Implied Warranty of Habitability or any other
implied warranty.
ARTICLE XXIII
Common Area Easements
The Corporation is granted the authority to grant easements in and to the Association
Common Areas and Dwelling Common Areas to utility companies and to provide for the rendering
of public and quasi-public services to the Real Estate upon such terms and conditions and for such
consideration as it deems appropriate. All public and quasi-public vehicles, including, but not
limited to police, fire and other emergency vehicles, trash and garbage collection, post office
vehicles and privately owned delivery vehicles, shall have the right to enter upon the Association
Common Areas and Dwelling Common Areas in the performance of their duties. An easement is
also granted to all utilities and their agents for ingress, egress, installation, replacement, repairing
and maintaining of such utilities, including, but not limited to water, sewers, gas, telephones and
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electricity on the Real Estate; provided, however, nothing herein shall permit the installation of
sewers, electric lines, water lines, or other utilities, except as initially designed and approved by
Declarant or as thereafter may be approved by the Board of Directors and by the Corporation.
ARTICLE XXIV
Signage
Declarant reserves and grants to and for the benefit of the Units, a perpetual, non-exclusive
easements for the shared use of certain directional signs and monument signs to be located in the
locations identified on the Plans. The easement rights granted herein shall include the right of the
Retail Unit Owner, its contractors and subcontractors to ingress, egress and access the easement
areas for the purpose of the installation, construction, use, operation and maintenance of the signs.
Notwithstanding the foregoing, any signage to be constructed on the Real Estate, including without
limitation the Retail Unit, shall be subject to review and approval of a Majority of the Percentage
Vote and subject to any rules and regulations established by the Declarant and/or the Association.
The sign standards for the Building are attached hereto as Exhibit E.
ARTICLE XXV
Easement for Utilities
An easement is granted to all utilities and their agents for ingress, egress, installation,
replacement, repairing and maintaining of such utilities, including, but not limited to HVAC,
water, sewers, gas, telephones and electricity on the Real Estate; provided, however, nothing
herein shall permit the installation of heating and cooling vents, sewers, electric lines, water lines,
or other utilities, except as initially designed and approved by Declarant or as thereafter may be
approved by the Board of Directors and by the Corporation. By virtue of this easement, the electric
and telephone utility companies are expressly permitted to erect and maintain the necessary
equipment on the Real Estate and to affix and maintain electric and telephone wires, circuits and
conduits on, above, across and under the roofs and exterior walls of the Building.
ARTICLE XXVI
Initial Management
The Initial Board of Directors may enter into a management agreement, which may be with
Declarant or an entity related thereto, for a term not to exceed one (1) year with either party having
the right to terminate upon ninety (90) days’ notice under which the management company will
provide supervision, fiscal and general management and maintenance of the Association Common
Areas and Dwelling Common Areas and, in general, perform all the duties and obligations of the
Corporation. Such management agreement may be renewed by the parties for additional terms of
one (1) year. In the event no management agreement exists because of termination or otherwise,
the Corporation shall thereupon and thereafter resume performance of all the management duties,
obligations and functions.
ARTICLE XXVII
Light, Air and View
Each Owner hereby acknowledges and agrees that no Unit has any rights or assurances of
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light, air or view from or to its Unit and each Owner releases any and all claims against Declarant
and/or the Corporation for any interference with or obstruction of light, air or view from or to its
Unit.
ARTICLE XXVIII
Costs and Attorneys’ Fees
In any proceeding arising because of failure of an Owner to make any payments required
by this Declaration, the Bylaws or the Act, or to comply with any provision of this Declaration,
the Bylaws or the Act, or the rules and regulations adopted pursuant thereto, as each may be
amended from time to time, the Corporation shall be entitled to recover it s costs and reasonable
attorneys’ fees incurred in connection with such default or failure.
ARTICLE XXIX
Waiver
No Owner may exempt himself or itself from liability for his or its contribution toward the
Association Common Expenses and/or Dwelling Common Expenses (in the case of a Residential
Unit Owner or the Apartment Unit Owner) by waiver of the use or enjoyment of any of the
Association Common Areas or Dwelling Common Areas (as applicable) or by abandonment of his
or its Condominium Unit.
ARTICLE XXX
Severability Clause
The invalidity of any covenant, restriction, condition, limitation or other provisions of this
Declaration or the Bylaws filed herewith shall not impair or affect in any manner the validity,
enforceability or affect the remaining provisions of this Declaration or the attached Bylaws. In the
event of any conflict between the terms of this Declaration and the terms of the attached Bylaws
or Articles of Incorporation, the terms of this Declaration shall control.
ARTICLE XXXI
Estoppels
An Owner, within fifteen (15) business days of written request from another Owner, shall
execute and deliver an estoppel certificate in a mutually acceptable form to such requesting Owner
and any prospective purchaser, assignee, lessee or mortgagee designated by such requesting Owner
certifying that this Declaration is in full force and effect without modifications except as disclosed
therein, that there is no existing default and, to the best of such party’s knowledge, no facts which
would then be a default if notice had previously been given and a cure period, if any, had run, that
no sums are currently owed by such Owner or due to such Owner under the terms of this
Declaration, and such other information as may be reasonably requested by the requesting Owner.
ARTICLE XXXII
Limitation of Liability
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The liability under this Declaration shall be limited to and enforceable solely against the
assets of such Owner constituting an interest in one or more Condominium Units (including
insurance and condemnation proceeds attributable to the Condominium Units and improvements
located thereon), and no other assets of such Owner. Assets of an Owner which is a partnership,
corporation or limited liability company do not include the assets of the partners, shareholders or
members of such partnership, corporation or limited liability company member, and the negative
capital account of a partner in a partnership, or a member in a limited liability company, which is
an Owner and an obligation of a partner to contribute capital to the partnership, or a member to
contribute capital to the limited liability company which is an Owner shall not be deemed to be
assets of the partnership or limited liability company which is an Owner. This Article shall not be
construed to limit any rights of a mortgagee to enforce any recourse rights it may have against its
borrower.
ARTICLE XXXIII
Transfer of Ownership: Limitation and Assumption of Liability
If an Owner shall sell, assign, transfer, convey or otherwise dispose of a Condominium
Unit (other than as security for a loan to such Owner), then: (a) to the extent of such assignment,
transfer, conveyance or other disposition, such Owner shall be freed and relieved of any and all
covenants and obligations arising under this Declaration which accrue under this Declaration from
and after the date such Owner shall make such sale, assignment, transfer, conveyance or other
disposition, and (b) the person or entity who or which succeeds to such Owner’s interest in the
Condominium Unit shall be deemed to have assumed and be bound by any and all of the covenants
and obligations arising under this Declaration to the extent of such person’s or entity’s acquired
interest in the Condominium Unit and which accrue under this Declaration from and after the date
of such sale, assignment, transfer or conveyance. Although persons and entities may be released
under the terms hereof, the easements, covenants and restrictions of this Declaration shall continue
to be benefits to and servitudes upon the Real Estate, running with the land and in favor of the
Owners of the Condominium Unit.
ARTICLE XXXIV
Exculpation
This instrument is executed and delivered on the express condition that anything herein
to the contrary notwithstanding, each and all of the representations, covenants, undertakings and
agreements herein made on the part of Declarant (“Representations”), while in form purporting
to be the representations of Declarant, are nevertheless each and every one of them, made and
intended not as personal Representations by Declarant or for the purpose or with the intention of
binding Declarant personally but are made and intended for the purpose of binding only the
Condominium Real Estate; and no personal liability or personal responsibility is assumed by nor
shall at any time be asserted or enforceable against Declarant personally or its members or officers,
on account of this instrument or on account of, in connection with or arising out of any
Representations of Declarant in this instrument contained, either express or implied, all such
personal liability, if any, being expressly waived and released by the Association and each Person
who acquires any interest in a Condominium Unit as a condition to the acquisition thereof.
ARTICLE XXXV
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Pronouns
Any reference to the masculine, feminine or neuter gender herein shall, unless the context
clearly requires the contrary, be deemed to refer to and include the masculine, feminine and neuter
genders. Words in the singular shall include and refer to the plural, and vice versa, as appropriate.
ARTICLE XXXVI
Floor Plans
The Plans setting forth the layout, location, identification numbers, and dimensions of
the Condominium Units and the Real Estate are incorporated into this Declaration by reference,
and have been filed in the Office of the Recorder of Hamilton County, Indiana, [in Plat Book ___,
Page ____] [as Instrument No. ].
ARTICLE XXXVII
Intellectual Property
The Association owns all right, title and interest in and to the tradename “The Signature at Carmel”
and all associated branding, symbols, and logos (collectively, the “Name”). No rights
of ownership in or related to the Name are granted to any Owner pursuant to this Declaration. Any
Owner shall use the Name only for commercially reasonable business purposes or other purposes
expressly permitted by the Association in writing, and in exactly the form provided by the
Association and in conformance with any marketing standards provided by the Association. Any
Owner shall not take any action inconsistent with the Association’s ownership of the Name, and
any benefits accruing from use of the Name shall automatically vest in the Association. Any right
to use the Name shall cease in the event any Owner is no longer an Owner pursuant to this
Declaration. The Association shall be entitled to all forms of equitable relief, including, without
limitation, a temporary restraining order, preliminary and permanent injunction, in the event of
any unauthorized use by any Owner of the Name.
IN WITNESS WHEREOF, the undersigned has caused this Declaration to be executed the
day and year first above written.
__________________________________________
By:
32
STATE OF INDIANA )
) SS:
COUNTY OF __________ )
Before me, a Notary Public in and for said County and State, personally appeared
__________, ____________ of ____________, , and who acknowledged the execution of the
foregoing “Declaration of Signature at Carmel Condominiums” on behalf of said limited liability
company.
Witness my hand and Notarial Seal this _____ day of ___________, 2024.
______________, Notary Public
My Commission Expires:
My County of Residence:
This instrument prepared by Erica S. Black, Attorney at Law, Faegre Drinker Biddle & Reath
LLP, 600 East 96th Street, Suite 600, Indianapolis, IN 46240.
I affirm under the penalties of perjury, that I have taken reasonable care to redact each Social
Security Number in this document unless required by law: Erica S. Black.
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Consent of Mortgagee
The undersigned, ___________________________________, being the holder of an
existing mortgage and other security on the Real Estate described in the above and foregoing
Declaration hereby consents to the recording of the above and foregoing Declaration of the
Signature at Carmel Condominium and the submission of the Real Estate described therein to the
provisions of the Act as provided therein, and further agrees that its mortgage and other security
with respect to the Real Estate shall be subordinate and subject to the provisions of the Act and the
above and foregoing Declaration and Exhibits attached thereto and the documents incorporated
therein; provided, however, that, except and to the extent that the mortgage and other security are
subordinated by this Consent, such mortgage and other security shall remain in full force and
effect.
EXECUTED this ___ day of _______________, 2024.
____________________________
By:
Printed:
Title:
34
EXHIBITS
Exhibit A - Legal Description of Real Estate
Exhibit A-1 - Site Plan for Building
Exhibit B - Bylaws
Exhibit C - Restrictions on Use of Condominium Units
Exhibit D - Rules and Regulations
Exhibit E - Sign Standards
EXHIBIT A
Legal Description of Real Estate
EXHIBIT A-1
Site Plan for Building
(Attached)
EXHIBIT B
Bylaws
BYLAWS
OF
THE SIGNATURE AT CARMEL CONDOMINIUMS
AND
THE SIGNATURE AT CARMEL OWNERS ASSOCIATION, INC.
ARTICLE I
Identification and Applicability
Section 1.1 Identification and Adoption. These Bylaws are adopted
simultaneously with the execution of a certain Declaration of The Signature at Carmel
Condominiums (sometimes referred to as “The Signature at Carmel Condominiums”) to which
these Bylaws are attached and made a part thereof. The Declaration is incorporated herein by
reference, and all of the covenants, rights, restrictions and liabilities therein contained shall apply
to and govern the interpretation of these Bylaws. The definitions and terms as defined and used
in the Declaration shall have the same meaning in these Bylaws and reference is specifically made
to Paragraph 1 of the Declaration containing definitions of terms. The provisions of these Bylaws
shall apply to the Property and the administration and conduct of the affai rs of the Corporation.
These Bylaws shall also constitute the Bylaws of the Corporation.
Section 1.2 Name, Principal Office, and Resident Agent. The name of the
Corporation is The Signature at Carmel Owners Association, Inc. (hereinafter referred to as the
“Corporation”). The initial address of the principal office of the Corporation is
____________________________. Resident Agent in charge of such office is _____________.
The location of the principal office of the Corporation or the designation of its Resident Agent, or
both, may be changed at any time or from time to time when authorized by the Board of Directors.
Section 1.3 Individual Application. All Owners, tenants, guests, invitees
and other persons that might use or occupy a Condominium Unit or any part of the Property, shall
be subject to the restrictions, terms and conditions set forth in the Declaration, these Bylaws and
the Act, and to any rules and regulations adopted by the Board of Directors as herein provided.
ARTICLE II
Meetings of Corporation
Section 2.1 Purpose of Meetings. At least annually, and at such other times
as may be necessary, a meeting of the Owners shall be held for the purpose of electing the Board
of Directors (subject to the provisions of Section 3.02 hereof), presenting the annual budget, and
for such other purposes as may be necessary or required by the Declaration, these Bylaws or the
Act.
Section 2.2 Annual Meetings. The annual meeting of the Members of the
Corporation shall be held on the third (3rd) Tuesday of January in each calendar year. At the annual
meeting, the Owners shall (subject to the provisions of Section 3.02 hereof) elect the Board of
Directors of the Corporation in accordance with the provisions of these Bylaws and transact such
other business as may properly come before the meeting.
Section 2.3 Special Meeting. A special meeting of the Members of the
Corporation may be called by resolution of the Board of Directors or upon a written petition of
Owners who have not less than a majority of the Percentage Vote of all Co-owners (as defined in
the Declaration). The resolution or petition shall be presented to the President or Secretary of the
Corporation and shall state the purpose for which the meeting is to be called. No business shall be
transacted at a special meeting except as stated in the resolution or petition.
Section 2.4 Notice and Place of Meetings. All meetings of the Members of
the Corporation shall be held at any suitable place in Hamilton County, Indiana, as may be
designated by the Board of Directors. Written notice stating the date, time and place of any
meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is
called, shall be delivered or mailed by the Secretary of the Corporation to each Member entitled
to vote not less than ten (10) days prior to the date of such meeting. The notice shall be mailed or
delivered to the Owners at the addresses of their respective Condominium Units. A copy of each
such written notice shall also be delivered or mailed simultaneously by the Secretary of the
Corporation to each Mortgagee who (i) requests in writing that such notices be delivered to it, and
(ii) has furnished the Corporation with its name and address in accordance with Section 8.01 of
these Bylaws. Such Mortgagee may designate a representative to attend the meeting. Attendance
at any meeting in person, by agent or by proxy, shall constitute a waiver of notice of such meeting.
Section 2.5 Waiver of Notice. Notice may be waived in writing, signed by
the Member entitled to notice, and filed with the minutes or the corporate records. Attendance at
or participation in any meeting (i) waives objection to lack of notice unless the Member at the
beginning of the meeting objects to holding the meeting or transacting business at the meeting,
and (ii) waives objection to consideration of a particular matter at the meeting that is not within
the purposes described in the meeting notice, unless the Member objects to considering the matter
when the matter is presented.
Section 2.6 Voting and Conduct of Meetings.
(a) Number of Votes.
(i) Association Matters. On each matter coming before the meeting as
to which an Owner is entitled to vote, and relating to the Association
Common Areas or Association Common Expenses, such Owner shall be
entitled to cast a vote equal to the Percentage Interest applicable to such
Owner’s Condominium Unit.
(ii) Dwelling Matters. On each matter coming before the meeting as to
which an Owner is entitled to vote, and relating to the Dwelling Common
Areas or Dwelling Common Expenses, such Owner shall be entitled to cast
a vote equal to their Dwelling Percentage Interest applicable to such
Owner’s Condominium Unit, if any.
(b) Multiple Owners. Where the Owner of a Condominium Unit
constitutes or consists of more than one (1) person, or is a partnership or other entity,
there shall be only one (1) voting representative entitled to all of the Percentage Vote
allocable to that Condominium Unit. At the time of acquisition of title to a
Condominium Unit by more than one (1) person or a partnership or other entity,
those persons constituting such Owner or the partners in such partnership or board
of directors or similar governing body charged with and responsible for the
management and oversight of such entity shall file with the Secretary of the
Corporation an irrevocable proxy appointing one (1) of such persons or partners as
the voting representative for such Condominium Unit, which proxy shall remain in
effect until all of such persons constituting such Owner or the partners in such
partnership or board of directors or similar governing body charged with and
responsible for the management and oversight of such entity designate another
voting representative in writing, such appointed representative relinquishes such
appointment in writing, becomes incompetent, or dies, such appointment is
otherwise rescinded by order of a court of competent jurisdiction, or persons
constituting such Owner no longer own such Condominium Unit. Such appointed
voting representative may grant a proxy to another to vote in his place at a particular
meeting or meetings pursuant to paragraph (d) of this Section 2.06, which proxy
shall not constitute a permanent relinquishment of his right to act as voting
representative for the Condominium Unit.
(c) Voting by Corporation or Trust. Where a trust, corporation, limited
liability company or other entity 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 such corporation, limited liability company, or other entity duly empowered by
such entity may cast the vote to which such entity is entitled. The trustee of the trust
or the agent or representative of such corporation, limited liability company, or other
entity so entitled to vote shall deliver or cause to be delivered prior to the
commencement of the meeting a certificate signed by such person to the Secretary
or other officer of the Corporation stating who is authorized to vote on behalf of said
trust or entity. In the event that the Secretary of the Corporation receives conflicting
certificates, neither certificate shall be effective or binding upon the Corporation.
(d) Proxy. An Owner may vote either in person or by his duly
authorized and designated attorney-in-fact. Where voting is by proxy, the Owner
shall duly designate his attorney-in-fact in writing, delivered to the Secretary or
other officer of the Corporation prior to the commencement of the meeting.
(e) Quorum. Except where otherwise expressly provided in the
Declaration, these Bylaws, the Act or the Indiana Nonprofit Corporation Act of
1991, as amended (the “Statute”), at least fifty-one percent (75%) of the Unit
Owners (all in accordance with the applicable percentage set forth in the Declaration,
as such may be amended from time to time), shall constitute a quorum at all
meetings.
(f) Conduct of Annual Meeting. The President of the Corporation shall
act as the Chairman of all annual meetings of the Corporation if he is present. At all
annual meetings, the Chairman shall call the meeting to order at the duly designated
time and business will be conducted in the following order:
(i) Reading of Minutes. The Secretary shall read the
minutes of the last annual meeting and the minutes of any special
meeting held subsequent thereto, unless such reading is waived by a
majority of the Percentage Vote present at a meeting at which a
quorum is present or such minutes have been previously approved.
(ii) Treasurer’s Report. The Treasurer shall report to the
Owners concerning the financial condition of the Corporation and
answer relevant questions of the Owners concerning the Association
Common Expenses and financial report for the prior year and the
proposed budget for the current year.
(iii) Budget. The budget for the current fiscal year shall
be presented to the Owners.
(iv) Election of Board of Directors. The name of the
Director elected by the Retail Unit Owner t and the Director elected
by the Apartment Unit Owner shall be provided to the Secretary of
the Corporation. Nominations for the Board of Directors selected by
the Owners of Residential Units may be made by such Owners from
those persons eligible to serve. Such nominations must be in writing
and presented to the Secretary of the Corporation at least seven (7)
days prior to the date of the annual meeting. Voting for the Board
of Directors will be by paper ballot. The ballot shall set forth the
name of each person nominated to serve as a Director. Each
Residential Unit Owner may cast one vote for as many nominees as
are to be elected; however, such Owner shall not be entitled to
cumulate his or its votes. Those persons receiving the highest
number of votes shall be elected. Each voting Owner shall sign his
or its ballot. The foregoing provisions are subject to the provisions
of Sections 3.02 and 3.05 hereof.
(v) Other Business. Other business may be brought
before the meeting only upon a written request submitted to the
Secretary of the Corporation at least seven (7) days prior to the date
of the meeting; provided, however, that such written request may be
waived at the meeting if agreed to by a majority of the Percentage
Vote present at a meeting at which a quorum is present.
(vi) Adjournment.
(g) Conduct of Special Meeting. The President of the Corporation shall
act as Chairman of any special meetings of the Corporation if he is present. If the
President of the Corporation is not present, then the Secretary of the Corporation
shall act as Chairman of any special meetings, or in the absence of both the President
and the Secretary, then the Members present shall designate a representative to act
as Chairman over the special meeting at issue. The acting Chairman shall call the
meeting to order at the duly designated time, and the only business to be considered
at such meeting shall be the consideration of the matters for which such meeting was
called, as set forth in the notice of such special meeting.
Section 2.7 Approval. Except as otherwise provided herein and in the
Declaration, any action required or permitted to be taken by the Members may be taken if the
action is approved by a majority of the Percentage Vote. Such action may be taken by written
consent in lieu of a majority if the action is evidenced by at least one (1) written consent describing
the action taken that meets the following conditions:
(a) the Members representing a majority of the Percentage Vote has
approved the action; and
(b) the written consent is filed with the Corporation’s minutes.
Requests for written consents must be delivered to all Members.
Section 2.8 Action by Written Ballot. Any action that may be taken at an
annual, regular, or special meeting of the Members may be taken without a meeting if the
Corporation delivers a written ballot to every Member. A written ballot must set forth each
proposed action and provide an opportunity to vote for or against each proposed action. Approval
by written ballot is valid only when the number of votes cast by ballot equals or exceeds the
quorum required to be present at a meeting authorizing the action and the number of approvals
equals or exceeds the number of votes that would be required to approve the matter at a meeting
at which the total number of votes cast was the same as the number of votes cast by ballot. A
solicitation for votes by written ballot must (i) indicate the number of responses needed to meet
the quorum requirements, (ii) state the percentage of approvals necessary to approve each matter
other than the election of Directors, and (iii) specify the time by which a ballot must be received
by the Corporation to be counted. A written ballot may not be revoked.
Section 2.9 Means of Communication. The Corporation and the Board of
Directors may (i) permit a Member to participate in an annual, a regular, or a special meeting by
or (ii) conduct an annual, a regular, or a special meeting through the use of any means of
communication by which all Members participating may simultaneously hear each other during
the meeting. A Member participating in a meeting by such means shall be considered present in
person at the meeting.
ARTICLE III
Board of Directors
Section 3.1 Management. The affairs of the Corporation and the Signature
at Carmel Condominiums shall be governed and managed by the Board of Directors (also
collectively called “Board” or “Directors” and individually called “Director”). The Board of
Directors shall be composed of five (5) persons. Directors need not be an Owner.
Section 3.2 Initial Board of Directors. The initial Board of Directors shall
be three (3) Directors appointed by the Declarant on behalf of the Apartment Unit Owner (the
“Apartment Board Members”), one (1) Director appointed by the Declarant on behalf of a
Majority of the Owners of the Residential Units (the “Residential Board Member”) and one (1)
Director appointed by the Declarant on behalf of the Retail Unit Owner t (the “Retail Board
Member”) (collectively, the “Initial Board”). Notwithstanding anything to the contrary
contained in, or any other provisions of, these Bylaws or the Declaration or the Act or elsewhere:
(i) the Initial Board shall hold office until the earlier of (A) December 31, 2024, (B) one hundred
twenty (120) days after the date on which Declarant, or its successor, no longer owns any
Condominium Unit, or (C) the date Declarant files for record in the Office of the Recorder of
Hamilton County, Indiana, an instrument waiving or releasing its right to appoint the Initial Board
(such date when the Directors of the Initial Board shall no longer hold office being herein referred
to as the “Applicable Date”); and (ii) in the event of any vacancy or vacancies occurring in the
Initial Board for any reason or cause whatsoever, prior to the Applicable Date determined as
provided above, such vacancy shall be filled by a person appointed by Declarant, and such
successor shall thereafter be deemed a member of the Initial Board. Prior to the Applicable Date,
the Corporation shall hold a special meeting of the Corporation to elect a Board of Directors whose
succession shall be effective as of the Applicable Date. For elections occurring after the
Applicable Date, the Retail Unit Owner shall have the right to vote for the Retail Board Member,
the Apartment Unit Owner shall have the right to vote for the Apartment Board Members and the
Residential Unit Owners shall have the right to vote for the Residential Board Member. In the
event a replacement Board is not elected on or prior to the Applicable Date, the Initial Board may
do so after the Applicable Date upon its own initiative or the request of any Owner, and such
appointment shall be valid and effective and shall be deemed to have been ratified and consented
to by the Owners, notwithstanding its occurrence after the Applicable Date. An Owner by
acceptance of a deed to a Residential Unit or by acquisition of any interest in a Residential Unit,
shall be deemed to have appointed Declarant as such Owner’s agent, attorney-in-fact and proxy,
which shall be deemed coupled with an interest and irrevocable until the Applicable Date
determined as provided above, to exercise all of said Owner’s right to vote and to vote as Declarant
determines on all matters as to which Members are entitled to vote under the Declaration, these
Bylaws, the Act, or otherwise. This appointment of Declarant as such Owner’s agent,
attorney-in-fact and proxy shall not be affected by incompetence of the Owner granting the same.
Section 3.3 Additional Qualifications. Where an Owner consists of more
than one (1) person or is a partnership, corporation, trust or other legal entity, then one (1) of the
persons constituting the Owner (or a partner, officer, or trustee of such Owner), shall be eligible
to serve on the Board of Directors.
Section 3.4 Term of Office and Vacancy. Subject to the provisions of
Section 3.02 hereof, Members of the Board of Directors shall be elected at each annual meeting of
the Corporation. The Initial Board shall be deemed to be elected and re-elected as the Board of
Directors at each annual meeting until the Applicable Date provided in Section 3.02 hereof. After
the Applicable Date, each Member of the Board of Directors shall be elected for a term of three
(3) years, except that for the first Board after the Applicable Date, the Retail Member shall be
elected for a three (3) year term, the Apartment Board Members shall be elected for a two (2) year
term, and the Residential Board Member shall be elected for a one (1) year term, so that the terms
of at least two (2) of the Directors shall expire annually. Each Director elected shall hold office
throughout the term of his election and until his successor is elected and qualified. Any vacancy
or vacancies occurring in the Board after the Applicable Date shall be filled by the Retail Unit
Owner if the vacancy was created by resignation or removal of the Retail Board Member, or the
Apartment Unit Owner if the vacancy was created by resignation or removal of the Apartment
Board Members, or by a vote of a majority of all Residential Unit Owners if the vacancy was
created by resignation or removal of the Residential Board Member. If a Director is removed in
accordance with Section 3.05 of this Article III, such vote is to occur at a special meeting of the
Members of the Corporation to be called in accordance with the provisions of these Bylaws for the
designated purpose of electing such person or persons to fill any vacancy and to serve until such
time as the next annual meeting, wherein Directors are elected or re-elected, as the case may be.
The Director so filling a vacancy shall serve until the next annual meeting of the Members of the
Corporation and until his successor is elected and qualified. At the first annual meeting following
any such vacancy, a Director shall be elected for the balance of the term of the Director so removed
or with respect to whom there has otherwise been a vacancy.
Section 3.5 Removal of Directors. After the Applicable Date, the Retail
Board Member may be removed with or without cause by the Retail Unit Owner, the Apartment
Board Members may be removed with or without cause by the Apartment Unit Owner and the
Residential Board Member may be removed with or without cause by a vote of the majority of all
Residential Unit Owners at a special meeting of the Owners duly called and constituted for such
purpose. In such case, the successor(s) shall be elected at the same meeting from eligible Owners
nominated at the meeting. A Director so elected shall serve until the next annual meeting of the
Owners and until his successor is duly elected and qualified. At the first annual meeting following
any such vacancy, a Director shall be elected for the balance of the term of the Director so removed
or with respect to whom there has otherwise been a vacancy.
Section 3.6 Duties of the Board of Directors. The Board of Directors shall
provide for the administration of The Signature at Carmel Condominiums, the maintenance,
upkeep and replacement of the Association Common Areas and the Dwelling Common Areas
(unless the same are otherwise the responsibility or duty of any Owner of a Condominium Unit),
the establishment of a budget and the collection and disbursement of the Association Common
Expenses and Dwelling Common Expenses. The Board of Directors shall operate in good faith
and act reasonably to maintain the Association Common Areas and the Dwelling Common Areas
in a good condition and to complete its obligations at a reasonable cost to the Owners. Subject to
the terms and conditions of the Declaration, the Board may, on behalf of the Corporation, employ
a professional management company) (herein called the “Managing Agent”) for a term of one (1)
year with either party having the right to terminate for cause upon thirty (30) days’ notice,
renewable by the parties for an additional term of one (1) year each, and upon such terms as the
Board shall find, in its discretion, reasonable and customary. The Managing Agent shall assist the
Board in carrying out its duties, which include but shall not be limited to:
(a) protection and replacement of the Association Common Areas and
the Dwelling Common Areas, unless the same are otherwise the responsibility or
duty of an Owner;
(b) procuring of utilities used in connection with the Signature at
Carmel Condominiums, removal of garbage and waste, and snow removal from the
Association Common Areas and the Dwelling Common Areas, as applicable;
(c) landscaping, painting, decorating, furnishing, maintenance and
upkeep of the Association Common Areas and, where applicable, the Dwelling
Common Areas;
(d) surfacing, paving and maintaining private streets, parking areas and
sidewalks to the extent the same are part of the Association Common Areas or the
Dwelling Common Areas;
(e) assessment and collection from each Owner of such Owner’s share
of the Association Common Expenses and the Dwelling Common Expenses as
applicable;
(f) preparation of the proposed annual budget, a copy of which shall be
mailed or delivered to each Owner at the same time as the notice of annual meeting
is mailed or delivered;
(g) preparing and delivering annually to the Owners a full accounting
of all receipts and expenses incurred in the prior year, such accounting to be
delivered to each Owner simultaneously with delivery of the proposed annual budget
for the current year;
(h) procuring and maintaining for the benefit of the Owners, the
Corporation and the Board the insurance coverages required under the Declaration
and such other insurance coverages as the Board, in its sole discretion, may deem
necessary or advisable.
(i) The maintenance, repair, upkeep and replacement of the Association
Common Areas and the Dwelling Common Areas (except as is otherwise the
obligation of an Owner), including but not limited to the maintenance, repair, upkeep
and replacement of the following (if located in the Association Common Areas or
Dwelling Common Areas): (A) common area furniture; (B) signage; (C) walls,
interior fences and gates; (D) flowers, plant material, grass and other landscaping;
(E) irrigation system; and (F) lighting.
(j) Taking such action or performing such tasks as are, in the Board’s
discretion, beneficial to the Owners.
Section 3.7 Powers of the Board of Directors. The Board of Directors shall
have such powers as are reasonable and necessary to accomplish the performance of its duties.
These powers include, but are not limited to, the power:
(a) to employ a Managing Agent to assist the Board of Directors in
performing its duties, including keeping a record and minutes of all meetings;
provided, however, that any management agreement shall be terminable by the
Corporation for cause upon thirty (30) days’ written notice and any such agreement
may not exceed one (1) year, renewable by agreement of the parties for successive
one (1) year periods.
(b) to purchase, lease or otherwise obtain for the benefit of the Owners
or for the Corporation to perform its duties such parking facilities, equipment,
materials, labor and services as may be necessary in the judgment of the Board of
Directors;
(c) to employ legal counsel, architects, contractors, accountants and
others as in the judgment of the Board of Directors may be necessary or desirable in
connection with the business and affairs of the Signature at Carmel Condominiums
and of the Corporation;
(d) to employ, designate, discharge and remove such personnel as in the
judgment of the Board of Directors may be necessary for the maintenance, upkeep,
repair and replacement of the Association Common Areas, and, where applicable,
the Dwelling Common Areas and as otherwise necessary for the Board of Directors
to perform its duties;
(e) to include the costs of all of the above and foregoing as Common
Expenses and Dwelling Common Expenses as appropriate and to pay all of such
costs therefrom;
(f) to open and maintain a bank account or accounts in the name of the
Corporation and pay all expenses of the Corporation;
(g) to grant easements and enter into leases from time to time on behalf
of the Corporation for the use and occupancy of the Association Common Areas and
the Dwelling Common Areas;
(h) to promulgate, adopt, revise, amend and alter from time to time such
additional rules and regulations with respect to use, occupancy, operation and
enjoyment of the Property, including, without limitation, the Association Common
Areas and the Dwelling Common Areas (in addition to those set forth in this
Declaration) as the Board, in its discretion, deems necessary or advisable; provided,
however, that copies of any such additional rules and regulations so adopted by the
Board of Directors shall be promptly delivered or mailed to all Owners, and further
provided that such rules and regulations are not in conflict with any terms and
provisions of the Declaration; and
(i) to adopt an annual budget for each fiscal year for the purpose of
estimating the total amount of Common Expenses for such fiscal year.
Section 3.8 Limitation on Board Action. After the Applicable Date, the
authority of the Board of Directors to enter into service contracts or repair obligations shall be
limited to contracts involving a total expenditure of less than Five Thousand Dollars ($5,000)
individually or Fifty Thousand Dollars ($50,000) in the aggregate in any twelve (12) consecutive
calendar month period without the approval of a majority of the Percentage Vote.
Section 3.9 Compensation. No Director shall receive any compensation for
his services as such except to such extent as may be expressly authorized by a majority of the
Percentage Vote present at a meeting at which a quorum is present. The Managing Agent shall be
entitled to reasonable compensation for its services, the cost of which shall be a Association
Common Expense.
Section 3.10 Meetings. Regular meetings of the Board of Directors may be
held at such time and place as shall be determined from time to time by a majority of the Directors.
Special meetings of the Board of Directors may be called by the President or any two (2) Members
of the Board of Directors. The person or persons calling such meeting shall give written notice
thereof to the Secretary who shall either personally or by mail, and at least two (2) days prior to
the date of such special meeting, give notice to all of the Board Members. The notice of the
meeting shall contain a statement of the purpose for which the meeting is called. Such meeting
shall be held at such place and at such time within Marion or Monroe Counties, Indiana, or any of
the contiguous counties, as shall be designated in the notice.
Section 3.11 Waiver of Notice. Before any meeting of the Board of Directors,
any Director may, in writing, waive notice of such meeting and such waiver shall be deemed
equivalent to the giving and receipt of such notice. The presence of any Director at a meeting or
his subsequent consent to the actions taken thereat, shall, as to such Director, constitute a waiver
of notice of the time, place and purpose thereof. If a majority of the Directors are present at any
meeting of the Board of Directors, no notice shall be required and any business may be transacted
at such meeting.
Section 3.12 Quorum and Voting. At all meetings of the Board of Directors
a majority of the Directors shall constitute a quorum for the transaction of business, and, except as
otherwise provided, the votes of the majority of the Directors present at a meeting at which a
quorum is present shall be the decision of the Board of Directors.
Section 3.13 Means of Communication. The Board of Directors, or a
committee thereof, may (i) permit a Director or a committee Member to participate in a meeting
by or (ii) conduct a meeting through the use of any means of communication by which all Directors
or committee Members participating may simultaneously hear each other during the meeting. A
Director or a committee Member participating in a meeting by such means shall be considered
present in person at the meeting.
Section 3.14 Action By Written Consent. Any action required or permitted
to be taken at any meeting of the Board of Directors, or any committee thereof, may be taken
without a meeting if a written consent describing such action is signed by each Director or
committee Member and such written consent is included in the minutes or filed with the corporate
records reflecting the action taken. Action taken by written consent shall be effective when the
last Director or committee Member signs the consent, unless the consent specifies a prior o r
subsequent effective date. A consent signed as described in this Section 3.14 shall have the effect
of a meeting vote and may be described as such in any document.
Section 3.15 Bonds. The Board of Directors shall require the Managing Agent,
Treasurer, employees, officers and agents handling or responsible for funds of or administered on
behalf of the Corporation to have surety bonds indemnifying the Corporation against larceny, theft,
embezzlement, forgery, misappropriation, willful misapplication and other acts of fraud or
dishonesty in a total amount not less than the estimated maximum amount of funds, including
reserve funds, in the custody of the Corporation or the Managing Agent, as the case may be, at any
given time, but in no event less than a sum equal to three (3) months’ aggregate assessments on all
Condominium Units, plus reserve funds. Such bonds shall also specifically include protection for
any insurance proceeds received for any reason by the Board of Directors.
The bonds shall contain waivers by the issuers of the bonds of all defenses based
upon the exclusion of persons serving without compensation from the definition of employees or
similar terms or expressions. The expense of any such bonds, except those maintained by the
Managing Agent, shall be a Common Expense. The bonds shall provide that they may not be
cancelled or substantially modified (including cancellation for non-payment of premium) without
at least ten (10) days’ prior written notice to the Corporation and to all Mortgagees.
Section 3.16 Interest of Directors in Contracts. Any contract or other
transaction between the Corporation and one (1) or more of its Directors, or between the
Corporation and any firm of which one (1) or more of its Directors are Members or employees, or
in which they are interested, or between the Corporation and any corporation, partnership, or
association of which one (1) or more of its directors are shareholders, Members, directors, officers
or employees, or in which they are interested, or in which the Corporation is a Member,
shareholder, or otherwise interested, shall be valid for all purposes, notwithstanding the presence
of such director or directors at the meeting of the Board of Directors of the Corporation which acts
upon, or in reference to, such contract or transaction and notwithstanding his or their participation
in such action, if the fact of such interest shall be disclosed or known to the Board of Directors and
the Board of Directors shall, nevertheless, authorize, approve or ratify such contract or transaction,
by a vote of a majority of the disinterested directors present, notwithstanding the fact that such
majority of the disinterested directors present may not constitute a quorum, a majority of the Board
of Directors, or a majority of the directors present at the meeting at which the contract or
transaction is considered. This section shall not be construed to invalidate any contract or other
transaction which would otherwise be valid under the common and statutory law applicable
thereto.
ARTICLE IV
Officers
Section 4.1 Officers of the Corporation. The principal officers of the
Corporation shall be the President, Secretary and Treasurer, all of whom shall be elected by the
Board of Directors. The Directors may appoint an Assistant Treasurer and an Assistant Secretary
and such other officers as in their judgment may be necessary. Any two (2) or more offices may
be held by the same person, except that the duties of the President and Secretary shall not be
performed by the same person.
Section 4.2 Election of Officers. The officers of the Corporation shall be
elected annually by the Board of Directors at the initial meeting of each new Board of Directors.
Upon an affirmative vote of a majority of all Members of the Board of Directors, any officer may
be removed either with or without cause and his successor elected at any regular meeting of the
Board of Directors or at any special meeting of the Board of Directors called for such purpose.
Any vacancy or vacancies occurring in the offices of the Corporation shall be filled by a vote of a
majority of the Board of Directors at any regular meeting of the Board of Directors or at any special
meeting of the Board of Directors called for such purpose.
Section 4.3 The President. The President shall be elected from among the
Directors and shall be the chief executive officer of the Corporation. He shall preside at all
meetings of the Corporation and of the Board of Directors, shall have and discharge all the general
powers and duties usually vested in the office of president or chief executive officer of an
association organized under the laws of Indiana, including but not limited to the power to appoint
committees from among the Owners as he may deem necessary to assist in the affairs of the
Corporation and to perform such other duties as the Board of Directors may from time to time
prescribe.
Section 4.4 The Secretary. The Secretary shall be elected from among the
Directors. The Secretary shall attend all meetings of the Corporation and of the Board of Directors,
shall keep or cause to be kept a true and complete record of the proceedings of such meetings, and
shall perform all other duties as from time to time may be prescribed by the Board of Directors.
The Secretary shall specifically see that all notices of the Corporation or the Board of Dire ctors
are duly given, mailed or delivered, in accordance with the provisions of these Bylaws.
Section 4.5 The Treasurer. The Board of Directors shall elect from among
the Directors a Treasurer who shall maintain a correct and complete record of account showing
accurately at all times the financial condition of the Corporation and who shall perform such other
duties incident to the office of Treasurer. He shall be the legal custodian of all monies, notes,
securities and other valuables which may from time to time come into 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 or accounts in the name of the Corporation. The Treasurer may permit the
Managing Agent to handle and account for monies and other assets of the Corporation to the extent
appropriate as part of its duties.
Section 4.6 Assistant Officers. The Board of Directors may, from time to
time, designate and elect from among the Owners an Assistant Secretary and an Assistant
Treasurer who shall have such powers and duties as the officers whom they are elected to assist
shall delegate to them and such other powers and duties as these Bylaws or the Board of Directors
may prescribe.
ARTICLE V
Assessments
Section 5.1 Annual Accounting. Annually, after the close of each fiscal year
of the Corporation, the Board of Directors shall cause to be prepared and furnished to each Owner
a financial statement prepared by a certified public accountant or firm of certified public
accountants, which statement shall show all receipts and expenses received, incurred and paid
during the preceding fiscal year.
Section 5.2 Proposed Annual Budget. Annually, on or before the end of
each fiscal year, the Board of Directors shall adopt an annual budget for the next fiscal year
estimating the total amount of the Association Common Expenses for the next fiscal year. A copy
of such budget shall be furnished to each Owner at or prior to December 15th of each year. The
annual budget as presented to the Owners at the annual meeting of the Corporation shall be the
basis for the Assessments, as defined in the declaration and further below, during such fiscal year.
The annual budget, the Assessments and all sums assessed by the Corporation shall be established
by using generally accepted accounting principles applied on a consistent basis. The annual budget
and Assessments shall, in addition, be established to include the establishment and maintenance
of an adequate replacement reserve funds for capital expenditures and replacement and repair of
the Association Common Areas and the Dwelling Common Areas, which replacement reserve
funds shall be used for those purposes and not for usual and ordinary repair expenses of the
Association Common Areas and the Dwelling Common Areas. Such replacement reserve funds
for capital expenditures and replacement and repair of the Association Common Areas and the
Dwelling Common Areas shall be maintained by the Corporation in separate interest-bearing
accounts with one (1) or more banks or savings and loan associations authorized to conduct
business in Hamilton County, Indiana, selected from time to time by the Board of Directors. The
failure or delay of the Board of Directors to prepare an annual budget and to furnish a copy thereof
to the Owners shall not constitute a waiver or release in any manner of the obligations of the
Owners to pay the Association Common Expenses and Dwelling Common Expenses, as
applicable, as herein provided, whenever determined.
Section 5.3 Regular Assessments and Dwelling Assessments. The annual
budget as adopted by the Board of Directors shall, based on the estimated cash requirement for the
Association Common Expenses in the current fiscal year as set forth in said budget, contain a
regular assessment against each Condominium Unit and the Percentage Interest appurtenant
thereto (herein called the “Regular Assessment”), and assessment against each applicable
Residential Unit and the Apartment Unit and the Dwelling Percentage Interest appurtenant thereto
((herein called the “Dwelling Assessment”). Immediately following the adoption of the annual
budget, each Owner shall be given written notice of (a) the regular assessment against his
respective Condominium Unit and the Percentage Interest appurtenant thereto, (b) the Dwelling
Assessment, if applicable, against his respective Residential Unit or Apartment Unit and the
Dwelling Percentage Interest appurtenant thereto (the Dwelling Assessment and Regular
Assessment collectively, the “Assessments”). The aggregate amount of all Assessments shall be
equal to the total amount of expenses provided and included in the final annual budget, including
reserve funds as hereinabove provided. The Assessment shall be paid in advance in either (i) two
(2) equal installments payable on January 1 and June 1 of each year or (ii) twelve (12) equal
installments, commencing on the first day of the first month of each fiscal year and monthly
thereafter through and including the first day of the last month of each fiscal year as directed by
the Board of Directors. In the event that the Board of Directors has not adopted an annual budget
and provided the Owners with notice of the current Assessments prior to the first day of the first
month of any fiscal year, then the current Assessments shall be the amount of the Assessments for
the prior fiscal year until such time as the Board of Directors approves the annual budget for the
current fiscal year and provides the Owners with notice of the current Assessments. Payment of
all installments shall be made to the Board of Directors or the Managing Agent, as directed by the
Board of Directors; provided, however, Owners may elect to pay installments in advance. The
Assessments for the current fiscal year of the Corporation shall become a lien on each separate
Condominium Unit and the Percentage Interest, and/or Dwelling Percentage Interest, if any,
appurtenant thereto as of the first day of each fiscal year of the Corporation, even though the final
determination of the amount of such Assessments may not have been made by that date. The fact
that an Owner has paid his Assessments for the current fiscal year in whole or in part based upon
a previous budget and thereafter, before the annual budget and Assessments for the current fiscal
year are finally determined and approved, sells, conveys or transfers his Condominium Unit and
Percentage Interest, and/or Dwelling Percentage Interest, if any, appurtenant thereto or any interest
therein, shall not relieve or release such Owner or his successor as owner of such Condominium
Unit and the Percentage Interest, and/or Dwelling Percentage Interest, if any, appurtenant thereto
from payment of the Assessments for such Condominium Unit and the Percentage Interest
appurtenant thereto as finally determined, and such Owner and his successor as owner of such
Condominium Unit and Percentage Interest, and/or Dwelling Percentage Interest, if any,
appurtenant thereto shall be jointly and severally liable for the Assessments as finally determined.
Any statement of unpaid assessments furnished by the Corporation pursuant to Section 8.02 hereof
prior to the final determination and adoption of the annual budget and Assessments for the fiscal
year in which such statement is made shall state that the matters set forth therein are subject to
adjustment upon determination and adoption of the final budget and final Assessments for such
fiscal year, and all parties to whom any such statement may be delivered or who may rely thereon
shall be bound by such final determinations. Installments of Assessments shall be due
automatically on their respective due dates without any notice from the Board of Directors or the
Corporation, and neither the Board of Directors nor the Corporation shall be responsible for
providing any notice or statements to Owners for the same.
Section 5.4 Special Assessments. From time to time Association Common
Expenses, and/or Dwelling Common Expenses of an unusual or extraordinary nature or not
otherwise anticipated or budgeted for may arise. At such time and with the approval of a majority
of the Percentage Vote, unless an emergency situation exists requiring immediate action, the Board
of Directors, with the approval of a majority of the Directors, shall have the full right, power and
authority to make special assessments which, upon resolution of the Board of Directors, shall
become a lien on each Condominium Unit and the Percentage Interest, and/or Dwelling Percentage
Interest, if any, appurtenant thereto, prorated in accordance with the Percentage Interest, and/or
Dwelling Percentage Interest, if any, of each Condominium Unit (herein called “Special
Assessment”). Without limiting the generality of the foregoing provisions, Special Assessments
may be made by the Board of Directors from time to time to pay for capital expenditures, or to pay
for the cost of any repair or reconstruction of damage caused by fire or other casualty or disaster
to the extent insurance proceeds are insufficient therefor under the circumstances described in the
Declaration.
Section 5.5 Unit Assessments. In the event an Owner is in breach of its
obligation relating to the maintenance of its Condominium Unit, which affects the operations in
another Condominium Unit, the Association Common Area and/or Dwelling Common Areas as
reasonably determined by the Board of Directors, the Board of Directors upon the approval of a
majority of Directors, shall have the full right, power and authority to make an assessment against
a specific Condominium Unit in an amount equal to the reasonable costs and expenses of the
Association completing or undertaking the cure, including reasonable attorney’s fees and interest
at the rate of 18% per annum (herein called “Unit Assessment”). Notwithstanding the forgoing,
and except in the case of (i) an emergency, or (ii) unreasonable and adverse interference or material
impairment of an easement or access right, both of which may be cured by the Corporation
immediately, the Corporation shall give written notice to the defaulting Owner specifying the
nature of the breach and the reasonable requirements to cure the breach. Thereafter, the defaulting
Owner will have thirty (30) days from receipt of this notice in which to either cure the breach or,
if the breach cannot reasonably be cured within such 30-day period, to commence the cure and,
thereafter, to diligently proceed with the cure to completion which must be completed within
ninety (90) days from receipt of such notice.
Section 5.6 Failure of Owner to Pay Assessments.
(a) No Owner may exempt himself from paying Assessments, Special
Assessments, and/or Unit assessments or from contributing toward the expenses of
administration and of maintenance and repair of the Association Common Areas
and, in the proper case, the Dwelling Common Areas, of the Building, and toward
any other expense lawfully agreed upon, by waiver of the use or enjoyment of the
Association Common Areas and the Dwelling Common Areas or by abandonment
of the Condominium Unit belonging to him. Each Owner shall be personally liable
for the payment of all Assessments, Special Assessments, and/or Unit assessments,
which become due and payable during the period in which such Owner holds title to
a Condominium Unit. Where the Owner constitutes more than one person, the
liability of such persons shall be joint and several. If any Owner shall fail, refuse or
neglect to make any payment of any Assessments or Special Assessment, when due,
the lien for such Assessment on the Owner’s Condominium Unit may be filed and
foreclosed by the Board of Directors for and on behalf of the Corporation as
provided by law. Upon the failure of an Owner to make payments of any
Assessments or Special Assessment, within ten (10) days after any such
Assessments or Special Assessment is due, the Board of Directors, in its discretion,
may (i) impose a late fee as provided in the Declaration; (ii) accelerate the entire
balance of the budgeted and unpaid Assessments, Special Assessments, and/or Unit
assessments and any and all fines, charges and late fees, applicable to the current
full calendar year and all previous calendar years and declare the same immediately
due and payable, notwithstanding any other provisions hereof to the contrary; and
(iii) eliminate such Owner’s right to vote. In any action to foreclose the lien for any
Assessments, the Owner and any occupant of the Condominium Unit shall be jointly
and severally liable for the payment to the Corporation of reasonable rental for such
Condominium Unit, and the Board of Directors shall be entitled to the appointment
of a receiver for the purpose of preserving the Condominium Unit and to collect the
rentals and other profits therefrom for the benefit of the Corporation to be applied to
the unpaid Assessments, Special Assessments, and/or Unit assessments. The Board
of Directors may, at its option, bring a suit to recover a money judgment for any
unpaid Assessments or Special Assessment, without foreclosing or waiving the lien
securing the same. In any action to recover Assessments or Special Assessment,
whether by foreclosure or otherwise, the Board of Directors, for and on behalf of the
Corporation, shall be entitled to recover costs and expenses of such action incurred,
including but not limited to reasonable attorneys’ fees, from the Owner of the
respective Condominium Unit.
(b) Notwithstanding anything contained in this Section or elsewhere in
the Declaration and these Bylaws, the lien for any Assessments or Special
Assessment shall be subordinate to the lien of any Mortgage if and to the extent the
Mortgage was recorded prior to the due date of any Assessments or Special
Assessment, and any sale or transfer of a Condominium Unit to a Mortgagee
pursuant to a foreclosure on its Mortgage or conveyance in lieu thereof, or a
conveyance to any person at a public sale in a manner provided by law with respect
to mortgage foreclosures, shall extinguish the lien of any unpaid installment of any
Assessment or Special Assessment, as to such installments which became due after
the recordation of such Mortgage; provided, however, that the extinguishment of
such lien shall not relieve the prior owner from personal liability therefor. No such
sale, transfer or conveyance shall relieve the Condominium Unit, or the purchaser at
such foreclosure sale, or grantee in the event of conveyance in lieu thereof, from
liability for any installments of Assessments or Special Assessment, thereafter
becoming due or from the lien therefor. Such unpaid share of any Assessments,
Special Assessments, and/or Unit assessments, the lien for which has been divested
as aforesaid, shall be deemed to be a Common Expense, collectible from all Owners
(including the party acquiring the subject Condominium Unit from which it arose),
as provided in the Act.
Section 5.7 Payment of Assessments. Payment of the Assessments
applicable with respect to each Condominium Unit and the Percentage Interest appurtenant thereto
that has been subjected to the Declaration shall commence on the dates set forth in Paragraph 13.2
of the Declaration. In addition, at the initial closing of each Residential Unit credited from the
subdivision of the initial Residential Unit, the purchaser or new Owner is required to pay a sum
equal to two (2) full monthly installments of the Assessment applicable to such Condominium
Unit appurtenant thereto as his initial contribution to the working capital of the Corporation. Such
amounts shall be used by the Corporation for Common Expenses. This amount is not an advance
payment of Assessments and will not be held in any trust or reserve account. Additionally, at each
closing, the purchaser of a Residential Unit shall pay his pro rata share of the installment of
Assessments most recently due. Thereafter, payment of the Assessments shall be made as provided
herein.
Section 5.8 Maintenance and Repairs. Except as provided in the
Declaration, every Owner shall promptly perform all maintenance and repair within his own
Condominium Unit, which, if neglected, would affect the value of the Property. In addition, each
Owner shall furnish, and shall be responsible at his own expense for, the maintenance, repairs and
replacements of his Condominium Unit and all equipment serving only his Condominium Unit,
regardless of whether such equipment is part of the Condominium Unit or a Common Area. Such
maintenance, repairs and replacements which each Owner is responsible to make personally and
at his own expense include, but are not necessarily limited to, water lines, gas lines, plumbing and
electric lines which service the Owner’s Condominium Unit only, including any lines in the area
from below the floor to above the roof if they are within an extension of the exterior walls of the
Condominium Unit; all partitions and interior walls, ceilings and floors; appliances, to include air
conditioning and heating equipment (whether located wholly or partially inside or outside the
Condominium Unit); lamps; interior grouting and/or caulking; and all other improvements,
amenities and accessories appurtenant to and/or located within the Condominium Unit or
belonging to the Owner thereof.
If, due to the willful, intentional or negligent acts or omissions of an Owner, of a
Member of his family, of a guest, tenant or other occupant or visitor of such Owner, or their
respective employees, contractors, agents or invitees, or of an Owner’s pet or automobile, damage
shall be caused to the Association Common Areas, to a Dwelling Common Area, or to a
Condominium Unit, or if maintenance, repairs or replacements shall be required thereby which
would otherwise be a Common Expense or a Dwelling Common Expense, then such Owner shall
pay for such damage and such maintenance, repairs and replacements as may be determined by
the Corporation, unless such loss is covered by the Corporation’s insurance with such policy
having a waiver of subrogation clause. If not paid by such Owner upon demand by the
Corporation, the cost of repairing such damage shall be added to and become a part of the
Assessment to which such Owner’s Condominium Unit is subject. Maintenance, repairs and
replacements to the Association Common Areas, Dwelling Common Areas, or the Condominium
Units shall be subject to the rules and regulations adopted from time to time by the Board of
Directors.
To the extent that equipment, facilities and fixtures within any Condominium Unit
shall be connected to similar equipment, facilities or fixtures affecting or serving other
Condominium Units or any Association Common Areas or Dwelling Common Areas, then the use
thereof by the owner of such Condominium Unit shall be subject to the rules and regulations
adopted from time to time by the Board of Directors. The authorized representatives of the
Corporation or Board of Directors or the Managing Agent for the Corporation shall be entitled to
reasonable access to any Condominium Unit as may be required in connection with maintenance,
repairs or replacements of or to the Association Common Areas or any parts thereof, or any
equipment, facilities or fixtures affecting or serving other Condominium Units, any Association
Common Areas or Dwelling Common Areas.
ARTICLE VI
Restrictions, Entry and Rules and Regulations
Section 6.1 Compliance with Covenants, Conditions and Restrictions.
Every Owner, mortgagee, lessee or other occupant of a Condominium Unit shall comply strictly
with the covenants, conditions and restrictions set forth in this Declaration, with the Bylaws and
with the rules and regulations in relation to the use and operation of the Property. A violation
committed by any persons residing in, occupying or visiting a Condominium Unit at the invitation
or with the implied or express permission of the Owner or any other occupant of the Condominium
Unit, or committed by any agent, employee, business invitee, or contractor of the Owner or of any
person occupying a Condominium Unit, shall be attributed to that Condominium Unit and the
Owner thereof. Failure to comply with any of said covenants, conditions and/or restrictions shall
be grounds for withdrawal by the Board of Directors of privileges with respect to the use of any
of the Association Common Areas and the Dwelling Common Areas by any defaulting Owner and
by his tenants, invitees, guests and all Members of his family and/or his tenant’s family. An action
seeking a declaratory judgment, the recovery of sums due for damages, or injunctive relief, or any
or all of them may be maintained by the Board of Directors or by an interested party who has
obtained the prior written consent of the Board of Directors against any Owner or other person
entitled to occupy a Condominium Unit who refuses to comply or threatens to refuse to comply
with any provisions of this Declaration, the Bylaws, the rules and regulations, or any other
document establishing ownership or control over any part of the Real Estate. One (1) or more
Owners may bring a class action on behalf of all Owners.
After giving not less than ten (10) days’ prior written notice to an Owner who has
not complied, and after giving such party the opportunity to be heard by the Board of Directors,
the Board of Directors shall have the right to impose a fine of not more than Two Hundred
Dollars ($200) for the second violation of any of the condominium documents referred to in this
Section 6.02 attributable to a particular Owner in a calendar year (whether or not this second
violation involves the same term or provision of the above-described condominium documents as
the first violation) against that Owner and the Condominium Unit in which such Owner holds an
ownership interest. For a third violation of any of the condominium documents referred to in this
Section 6.02 attributable to the same Owner in the same calendar year (whether or not this third
violation involves the same term or provision of the above-described condominium documents as
the first or second violations), the Board of Directors, after giving the above-described notice and
opportunity to be heard, may levy a fine against that Owner in an amount not in excess of Five
Hundred Dollars ($500). For the fourth and every subsequent such violation of any of the
condominium documents referred to in this Section 6.02 by the same Owner in the same calendar
year (whether these violations involve the same term or provision as the previous violations), the
Board of Directors, after giving the above-described notice and opportunity to be heard, may levy
a fine against that Owner in double the amount of the fine for the immediately preceding violation
in that calendar year.
All fines described above, any fines imposed by the Board of Directors and any and
all expenses incurred by the Corporation in enforcing any of the terms and provisions of the
condominium instruments, including reasonable attorney’s fees, may be levied as Special
Assessments against the Owner in question and his Condominium Unit and the Percentage Interest
appurtenant thereto.
Any action brought by the Corporation hereunder may be brought in its own name,
in the name of its Board of Directors or in the name of the Managing Agent. In any case of flagrant
or repeated violation by an Owner, he may be required by the Board of Directors to give sufficient
surety or sureties for his future compliance with the covenants, conditions and restrictions
contained in this Declaration and with the Bylaws and rules and regulations.
Section 6.2 Right of Entry. All Owners and occupants of a Condominium
Unit shall be deemed to have granted the right of entry thereto to the Managing Agent or any other
person authorized by the Board of Directors in case of any emergency originating in or threatening
his Condominium Unit or the Building in which it is located, whether the Owner is present at the
time or not. Any Owner shall permit other persons, or their representatives when so required, to
enter his Condominium Unit for the purpose of performing installations, alterations or repairs to
the mechanical or electrical services, or to make structural repairs provided that requests for entry
are made in advance and that such entry is at a time reasonably convenient to the Owner. In case
of emergencies, such right of entry shall be immediate.
Section 6.3 Right of Board to Adopt Rules and Regulations. The Board of
Directors may promulgate and adopt such additional rules and regulations regarding the operating
of the Property, including but not limited to the use of the Association Common Areas and the
Dwelling Common Areas, as it may deem necessary from time to time, and such rules as are
adopted may be amended by a vote of a majority of the Board of Directors; provided, however, no
such additional rules and regulations shall be enforceable without reasonable prior written notice
thereof to Owners. The Board of Directors shall cause copies of such rules and regulations and all
amendments thereto to be delivered or mailed promptly to all Owners. Such rules may further
restrict the provisions contained in these Bylaws.
ARTICLE VII
Amendment to Bylaws
Section 7.1 Amendment to Bylaws. Subject to any contrary, overriding or
superseding provisions set forth herein or in the Declaration, these Bylaws may be amended in the
same manner, and subject to the same limitations and requirements, as amendments to the
Declaration, as set forth in paragraph 18 of the Declaration; provided, however, no such
amendments shall be enforceable without reasonable prior written notice thereof to Owners.
Amendments to these Bylaws shall be considered as amendments of the Declaration and shall be
recorded in the office of the Recorder of Hamilton County, Indiana, as required by the Declaration
and the Act. Notwithstanding anything to the contrary contained herein or in the Declaration, there
shall be no amendment of the Declaration or these Bylaws prior to the Applicable Date without
the consent and approval of Declarant. Notwithstanding anything to the contrary, no such
amendment or supplement made by Declarant shall have a material adverse effect on the rights of
the Retail Unit Owner, that is disproportional to the Retail Unit Owner compared to the other Unit
Owners, without the written consent of Retail Unit Owner.
ARTICLE VIII
Mortgages
Section 8.1 Notice to Corporation. If any Owner places a first mortgage lien
upon his Condominium Unit either such Owner or the pertinent Mortgagee shall notify the
Secretary of the Corporation thereof and provide the name and address of the Mortgagee. A record
of such Mortgagee and 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, these Bylaws or
the Act shall be deemed effectively given if mailed to such Mortgagee at the address shown in
such record in the time provided. Unless notification of any such mortgage and the name and
address of Mortgagee are furnished to the Secretary, either by the Owner or the pertinent
Mortgagee, no notice to any Mortgagee as may be otherwise required by the Declaration, these
Bylaws or the Act shall be required and no Mortgagee shall be entitled to vote on any matter to
which he otherwise may be entitled by virtue of the Declaration, these Bylaws, the Act, or proxy
granted to such Mortgagee in connection with the mortgage.
The Corporation shall, upon request of a Mortgagee who has furnished the
Corporation with its name and address as hereinabove provided, furnish such Mortgagee with
written notice of any default in the performance by its borrower of any obligations of such
borrower under the Declaration or these Bylaws which is not cured within thirty (30) days. Any
Mortgagee shall have the right to inspect the books and records of the Corporation during normal
business hours.
A guarantor or insurer of a Mortgage may, upon written request to the Corporation
giving the Corporation its name and address, receive from the Corporation any notice that would
be given to a Mortgagee also be given to the applicable insurer or guarantor.
Section 8.2 Notice of Unpaid Assessments. The Corporation shall, upon
request of a Mortgagee, a proposed mortgagee, or a prospective purchaser who has a contractual
right to purchase a Condominium Unit, furnish to such Mortgagee or prospective purchaser a
statement setting forth the amount of the unpaid Assessments against the Condominium Unit,
which statement shall be binding upon the Corporation and the Owners, and any Mortgagee or
grantee of the Condominium Unit shall not be liable for, nor shall the Condominium Unit conveyed
be subject to a lien for, any unpaid assessments in excess of the amount set forth in such statement
or as such assessments may be adjusted upon adoption of the final annual budget, as referred to in
Section 5.03 hereof. The Corporation may charge a reasonable fee for issuing such statement.
ARTICLE IX
Miscellaneous
Section 9.1 Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 9.2 Member Compensation. No Member of the Corporation shall
have or receive any earnings from the Corporation as a result of being an officer or Director of the
Corporation, except a Member may receive principal and interest on monies loaned or advanced
to the Corporation as provided in the Statute.
Section 9.3 Contracts, Checks, Notes, Etc. All contracts and agreements
entered into by the Corporation and all checks, drafts and bills of exchange and orders for the
payment of money shall, in the conduct of the ordinary course of business of the Corporation,
unless otherwise directed by the Board of Directors, or unless otherwise required by law, be signed
by the President or, in his absence, the Treasurer. Any one of the documents heretofore mentioned
in this section for use outside the ordinary course of business of the Corporation, or any notes or
bonds of the Corporation, shall be executed by and require the signature of the President and
Secretary.
Section 9.4 Financial Statement. Upon the written request of any entity that
has an interest or prospective interest in any Condominium Unit, the Corporation shall prepare and
furnish to such entity within a reasonable time a financial statement of the Corporation for the
immediately preceding fiscal year.
Section 9.5 Severability Clause. The invalidity of any covenant, restriction,
condition, limitation or other provisions of these Bylaws shall not impair or affect in any manner
the validity, enforceability or affect the rest of these Bylaws. In the event of any conflict between
the terms of these Bylaws and the terms of the Declaration or Articles of Incorporation, the terms
of the Declaration shall control.
EXHIBIT C
Restrictions on Use of Condominium Units
The Real Estate shall not be used for purposes of: (i) a gambling or betting office, other than for
the sale of lottery tickets; (ii) a massage parlor (exclusive of those providing legitimate massage
therapy services [e.g., Massage Envy or similar businesses]); (iii) a cinema, video store or
bookstore selling, renting, or exhibiting primarily material of a pornographic or adult nature; (iv);
a bar or club providing exotic dancing and similar adult entertainment; (v) a firearms shooting
range or any other use which creates or causes excessive noise; (vi) a flea market; (vii) a
warehouse; (viii) a facility which performs on-site dry cleaning; (ix) a gas station; (x) a facility
related to the sale of marijuana or similar products whether natural or synthetic unless and until
the sale and use of marijuana is legalized in the United States and the State of Indiana (and then
subject to satisfaction of federal, state and local requirements for operation of a first -class retail
business selling and serving marijuana and related products); (xi) a bar or club other than a first-
class bar or club which serves a full menu of food; (xii) reserved; or (xiii) a facility which performs
on site auto repair. In addition, no use which would require more than five (5) parking spaces per
1000 square feet under the zoning code for the City of Carmel, Indiana, shall be permitted unless
approved by the Apartment Unit Owner.
EXHIBIT D
Rules and Regulations
Rules and Regulations - Enforcement
All complaints of violations of the Declaration, Bylaws and Rules and Regulations MUST BE
IN WRITING and directed to the Board of Directors and signed by the Owner. Complaints
should state nature of the violation, the time and place the violation occurred and the facts that
give rise to the violation and the unit number or name of the party violating the Declaration,
Bylaw or Rule or Regulation. All complaints should also contain the name, unit number and
telephone number of the complaining party.
1. Upon receipt of a complaint, the Board shall investigate the
complaint and determine whether it is founded.
2. If the Board determines that the complaint is founded, it shall direct that
notice be sent to the violator stating the date, time and rule violated and
request that the owner cease the conduct. This shall constitute a first
notice of violation, the “warning” letter.
3. If the violator wishes to contest this notice, he shall notify the Board in
writing and may appear at the next Board meeting to contest the
violation.
4. If the Board determines that there is a repeated violation of the rules, the
Board shall fine the offender and may request the offender attend the
next Board meeting to discuss the violation.
5. If any such violation or fine is contested, the Board at their next regular
Board meeting shall conduct a hearing of all facts and render a finding in
writing and notify the owner of its decision. The decision shall state the
facts found and if warranted, impose a fine, ban the offender from the
common facilities or direct that legal action be taken to enforce the
condominium instruments. All fines are considered an assessment
against a unit and shall be payable thirty (30) days after the date of the
Board’s decision.
6. Unit Owner may, after payment of all fines, appeal any fine to the
entire Board and request a meeting with the Board and property
manager.
7. The fine structure shall be as follows for like violations within a 1-
year period unless otherwise stated within a specific rule:
a) A first offense shall result in a warning letter.
b) A second violation shall result in a $25.00 fine and may ban
the offender from common facilities if warranted.
c) A subsequent offense shall result a fine of not more than $100.00 for
each offense and the Board may direct that legal action be taken to
enforce the condominium instruments. The attorney’s fees and costs
of such action will be assessed to the violating Unit. Each day a
violation remains unabated is a separate violation.
Costs and expenses, including reasonable attorney’s fees, incurred in enforcing these
Rules shall be assessed by the Board of Directors against the violator and/or the Unit
Owner responsible for the violation. Any Notice required by this section shall be
deemed given when it is given by email, in hand or mailed to the unit owner, by regular
US Mail, at the address.
Rules and Regulations – All Units
The Association reserves the right to add to, modify or rescind any of these rules and
regulations and to make future rules and regulations following reasonable prior written notice to
all Owners. The Association reserves the right to waive any one or more of these rules and
regulations as to any particular Owner, and any such waiver shall not constitute a waiver of any
other rule or regulation or any subsequent application thereof to such Owner.
1. There shall be no use of the Association Common Area or Dwelling Common
Area, which injures or scars Association Common Area or Dwelling Common Area or the
plantings thereon, increases the maintenance thereof, or causes unreasonable disturbance to the
Owners in their enjoyment of the property. No climbing of trees, fences, railings, equipment, or
anything else that could be harmful.
2. There shall be no littering. All refuse/trash material shall be deposited only in
designated dumpsters. Trash must be bagged and secured tightly before placing it in the trash
dumpsters. Under no circumstances is any trash items to be dropped or left on the ground. No
garbage or trash materials shall be permitted to remain in the hallways, patios, decks, or
anywhere in public view.
3. No Owner shall perform, or contract to be performed, any work in a Unit that will
in any way increase the risk of fire or the rate of fire or other insurance on the Building, or that
conflicts with the laws of any governing body or public authority, thereof, or with any insurance
policy on the Building.
4. Each Owner shall comply with all safety, fire prevention and evacuation
procedures and regulations established by the Association or any applicable governmental
agency.
5. Movement within, to, or from any Building of furniture, office equipment, or
other bulky material that requires the use of elevators, stairways, or entrance and lobby shall be
restricted to hours established by the Association.
6. The sidewalks, driveways, other Units, the Garage, surface parking spaces,
doorways, halls, stairways, vestibules and other similar areas within any Building shall not be
obstructed or used for any purpose other than ingress to and egress from a Unit and for going
from one part of the Building to another part.
7. Each Owner shall not use the plumbing facilities in the Building for any purpose
other than that for which they were constructed and installed and no substances of any kind shall
be deposited therein which the fixture is not designed to handle.
8. All contractors and tradesman rendering any service to any Owner shall be
subject to submission of proof of insurance requirements, including the naming of the
appropriate additional insureds.
9. Except for as is customary for applicable retail uses and nominal amounts of
normal cleaning products, no Owner shall use or keep on or within any Unit any kerosene,
gasoline, or inflammable or combustible fluid or material, (ii) any materials or substances
known to emit strong odors, or (iii) any hazardous materials.
10. Other than as permitted under the provisions of the Declaration, no Owner shall
permit or suffer any advertising medium to be placed on exterior windows, on the sidewalks or
on the parking lot areas or light poles. No permission, expressed or implied, is granted to exhibit
or display any banner, pennant, sign, and trade or seasonal decoration of any size, style or
material outside any Unit.
11. An Owner shall not permit or suffer the use of any advertising medium which
can be heard or experienced outside of the Premises, including, without limiting the generality
of the foregoing, flashing lights, searchlights, loud speakers, phonographs, radios or television.
No radio, television, any other communication antenna equipment or device, wiring or conduit
of any type is to be mounted, attached, or secured to any part of the roof, exterior surface, walls,
or anywhere outside the Premises, unless the Association has previously given its written
consent.
12. Neither Owner, nor any of ’Owner’s servants, employees, agents, visitors, guests
(including members of an Owner's family), invitees, customers, licensees or tenants (including
said tenant's servants, employees, agents, visitors, guests, invitees, customrers, licensees, or
subtenants), shall at any time light, use or smoke cigarettes, cigars, pipes, or other tobacco products
in or about the public portion of any Building, including, without limitation, parking areas,
entrances, passages, walkways, restrooms, lobbies, courts, elevators, vestibules, stairways,
corridors and halls. The Association may take all appropriate steps to enforce such “no smoking”
policy, including the posting of no smoking signs, demanding that persons who violate the “no
smoking” policy cease and desist from such violation and removing violators from any Building.
The Association shall in no case be liable for damages in enforcing the “no smoking” policy.
13. Any interior or exterior elements of a Unit visible to the public, other Unit Owner
or any tenants must be maintained in a commercially reasonable manner.
14. Each Owner shall not, in or on any part of the Association Common Area or
Dwelling Common Area (i) vend, peddle or solicit orders for sale or distribution of any
merchandise, device, service, periodical, book, pamphlet or other matter whatsoever; (ii) exhibit
any sign, placard, banner, notice or other written material, except for activities as approved by the
Association; (iii) distribute any circular, booklet, handbill, placard or other material, except for
activities as approved by the Association; (iv) solicit membership in any organization, group or
association or contribution for any purpose; (v) create a nuisance; (vi) throw, discard or deposit
any paper, glass or extraneous matter of any kind except in designated receptacles, or create litter
or hazards of any kind; or (vii) deface, damage or demolish any sign, light standard or fixture,
landscaping materials or other improvement within any Building, or the property of customers,
business invitees or employees situated within any Building.
15. Each Owner is responsible for the actions of members of their families, their
servants, employees, agents, visitors, guests, invitees, customers, licensees or tenants (including
said tenant's servants, employees, agents, visitors, guests, invitees, customrers, licensees, or
subtenants) (collectively "Guests"). Responsibility for such Guest supervision shall rest with any
Owner who is the host of such Guest. Each Unit Owners will be deemed responsible for any
damage caused by their Guests and rules violated by Guests shall be deemed to be violated by the
Unit Owner.
Rules and Regulations – Retail Unit
The Association reserves the right to add to, modify or rescind any of these rules and
regulations and to make future rules and regulations following reasonable prior written notice to
Retail Unit Owner. The Association reserves the right to waive any one or more of these rules and
regulations as to Retail Unit Owner, and any such waiver shall not constitute a waiver of any other
rule or regulation or any subsequent application thereof to such Owner. In the event of any conflict
or inconsistency between these specific Rules and Regulations - Retail Unit and the Rules and
Regulations – All Units, these Rules and Regulations – Retail Unit shall control. 1. The
Retail Unit Owner shall not permit or suffer merchandise of any kind at any time to be placed,
exhibited or displayed outside its Unit, nor shall an Owner use the exterior sidewalks or exterior
walkways of its Unit to display, store or place any merchandise. No sale of merchandise by tent
sale, truck load sale or the like, shall be permitted.
2. The Retail Unit Owner shall not use anywhere any hand trucks except those
equipped with rubber tires and side guards or such other material-handling equipment as the
Association may approve.
3. All loading or unloading of goods, supplies and equipment shall be done only at
such times, in such areas and through such entrances as are designated for such purposes by the
Association. Trailers or trucks shall not be permitted to remain parked overnight in any area,
whether loaded, unloaded or partially loaded or partially unloaded. Loading vehicles using the on-
site parking spaces must be no more than eight (8) feet tall.
4. Any modifications of or alterations to any patios and/or outdoor dining areas are
subject to prior written approval of the Association.
5. Any and all rights of the Retail Unit Owner, including without limitation the Retail
Unit Owner’s tenants, employees, guests or other invitees, to utilize the Garage, shall be pursuant
to a separate lease agreement between the Retail Unit Owner and the Apartment Unit Owner.
6. The Retail Unit Owner shall have no right to install awnings, flags, drape materials
or clothing over railings, balconies or through windows, to the extent the same is visible from the
exterior of the Building, except for Association-approved window treatments and blinds.
Rules and Regulations – Residential Units/Apartment Unit
The Association reserves the right to add to, modify or rescind any of these rules and
regulations and to make future rules and regulations. The Association reserves the right to waive
any one or more of these rules and regulations as to any particular Owner, and any such waiver
shall not constitute a waiver of any other rule or regulation or any subsequent application thereof
to such Owner.
1. No Owner of a Residential Unit shall be entitled to maintain more than (2)
vehicles within the Condominium grounds at one time. No snowmobiles, mobile homes,
campers, boats, trailers or other terrain vehicles will be parked or allowed to remain on the Real
Estate.
2. There shall be no organized activities or picnicking except in areas that are
approved by the Board of Directors. Under no circumstances may a fire, of any kind, be lit or
maintained, and under no circumstances may a person do or permit anything within the
Condominium which is would be in violation of any regulation of the fire department or any
law, ordinance, rule or regulation pertaining to the same, which now exists or is hereafter
promulgated by any public authority or by the Board of Fire Underwriters. Fireworks ar e
prohibited on the Real Estate.
3. No use or practice shall be allowed which is an unreasonable source of annoyance
to the Owners and residents of the Real Estate, or which unreasonably interferes with the
peaceful possession or proper use of the Real Estate by others, including but not limited to
noxious odors and excessive noise. Owners and their guests will be expected to reduce noise
levels during the hours of 11:00 PM to 7:00 AM.
4. The minimum temperature setting for individual Unit thermostats and heaters
shall be 50 degrees (F) during the heating months.
5. Yard sales, tag sales, garage sales and other similar activities are prohibited
except as authorized by the Board of Directors.
6. Planters and flowerpots may be placed on balconies, decks and patios. Planters
and flowerpots cannot be placed on the top of any 2nd or 3rd floor balcony, deck or patio railing
or privacy wall or hang over a deck railing for safety reasons. Plants and flowers must be
maintained so they do not litter on the Association Common Areas, including balconies, decks
and patios. Any dead or diseased plants, flowers or Christmas trees must be removed by the
responsible Owner or resident.
7. The storage and use of outdoor grills will be in full compliance with all applicable
state and local laws, ordinances, and regulations. The use of outdoor grills within ten (10) feet
of the exterior of a unit and within ten feet of any structure including decks, balconies and patios
is prohibited. Outdoor grills must be attended by an adult at all times while in use. The Owner
or resident is responsible for storing or using such a grill and assumes responsibility for any and
all damages incurred incident to said storage and use. The Unit of the responsible Owner or
resident will be assessed the cost of all repairs necessary to restore the property to its original
condition. Electric grills are allowed on patios and decks but must be unplugged after each use.
8. Unit Owners are responsible for advising the Association of the rental of their Unit
and will provide the Association with the Unit address, the name(s) of the renter, and the length
of the initial term within 30 days of the execution of the lease agreement. Unit owners must also
provide vehicle information for their tenants, and a car registration form is available upon request.
Unit Owners will ensure that the renter is furnished with one copy each of the By-Laws and these
Rules and Regulations prior to or upon the signing of the lease agreement. Unit owners are
financially responsible for property damages and fines incurred by their tenants and guests and
will be billed. This includes, but is not limited to, damages and fines incurred because of improper
use of key fobs. Nothing in this paragraph, however, shall be interpreted to prevent the Unit
Owner from seeking reimbursement from their tenants or guests for any such charges or fines.
9. Any and all rights of a Residential Unit Owner to utilize the Garage, shall be
pursuant to a separate lease agreement between the Residential Unit Owner and the Apartment
Unit Owner.