HomeMy WebLinkAboutv.13 LAUTH - 1st on Main - RESIDENTIAL CONDO Declaration (6.7.24)A-1
DECLARATION OF
CONDOMINIUM FOR
1ST ON MAIN
CONDOMINIUMS
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DECLARATION OF CONDOMINIUM FOR 1ST ON MAIN CONDONIMIUMS
This is the Declaration of Condominiums for 1st on Main Condominiums is made on or as
of the _____ day of June, 2024, pursuant to the provisions of the Indiana Horizontal Property
Law (I.C. 32-25-1-1, et seq. (the “Act”)).
STATEMENT OF PURPOSE:
A.Lot One Partners, LLC, an Indiana limited liability company, an affiliate of
Declarant (as hereinafter defined) (“Master Developer”) is the master developer of the real
property described in Exhibit “A” attached hereto and the improvements thereon and
appurtenances thereto (hereinafter referred to as the “Project” and the “Development”).
B.Lot One Condo Partners, LLC, an Indiana limited liability company
(“Declarant”) desires to create on the real property described on Exhibit “B” attached hereto (the
“Property”), which is included in the Project, a site of individually owned Units (as defined
herein), and commonly owned areas and facilities, and to these ends to submit the Property to
Condominium ownership under the provisions of the Act.
DECLARATION:
Declarant hereby establishes the Property as all of that property in Hamilton County, Indiana,
described on Exhibit “B” attached hereto, submits the Property to this Declaration and hereby
declares that such property is and shall be held, transferred, sold, conveyed and occupied subject
to the covenants, restrictions, easements, charges and liens hereinafter set forth in this
Declaration, which shall run with the land and be binding upon all parties having any right, title
or interest in it, and which shall inure to the benefit of every owner of the Property or any portion
of it, and to the benefit of Declarant.
ARTICLE I: Definitions
Act. “Act” shall mean the Horizontal Property Law of the State of Indiana, Indiana Code
§32-25-1-1, et seq.
Articles. “Articles” are the Articles of Incorporation of the Association.
Association. “Association” means the non-profit corporation named “Lot One Condo
Association, Inc.” created by the filing of the Articles and is also one and the same as the
Association created for the Condominium pursuant to the provisions of the Act.
Board. “Board” and “Board of Directors” mean those persons who, as a group, serve as
the Board of Directors of the Association and are also one and the same as the Board of Directors
of the Condominium established for the Condominium pursuant to the provisions of the Act.
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Building. “Building” means the structure containing Units, as constructed from time to
time.
By-Laws. “By-Laws” means the By-Laws of the Association, as the same may be
lawfully amended from time to time, created under and pursuant to the provisions of the Act for
the Condominium. A true copy of the By-Laws is attached hereto as Exhibit “D” and made a
part hereof.
City Plan Commission. “City Plan Commission” means The City of Carmel Plan
Commission, a body corporate and politic.
Common Areas. “Common Areas” means all of the Property, except that portion
thereof described in this Declaration as constituting a Unit or Units. Common Areas include (i)
that portion of the Property constituting “Common Areas and facilities” of the Condominium
under the provisions of the Act, including, but not limited to, mailboxes, private walks, private
utilities and recreational facilities, if any, internal hallways, lobbies, stairwells, and elevators,
constructed by Declarant on the Property for the benefit of all Unit Owners, (ii) the Association’s
interest in the Master Common Properties maintained by the Master Association, including the
easement or license rights in the Condominium Parking Spaces and storage units in the Parking
Garage. Water distribution system, sanitary sewer system and storm water system may be
dedicated to public entities in which case such shall not be Common Areas and shall not be
considered private to the extent they are dedicated to public entities.
Common Expenses. “Common Expenses” means the proposed or actual expenses
affecting the Property, including reserves, if any, lawfully assessed by the Board, including,
without limitation, the items described in Section 14.3(A)(1) of this Declaration.
Condominium. “Condominium” means the Condominium regime for the Property
created under and pursuant to the provisions of the Act.
Condominium Organizational Documents. “Condominium Organizational
Documents” means the Articles, the By-Laws, the Plans, and this Declaration, as the same may
lawfully be amended from time to time.
Condominium Parking Spaces. “Condominium Parking Spaces” means the sixteen
(16) parking spaces for which Declarant has been granted an easement under the Master
Declaration to then be licensed to the unit owners (two parking spaces per Unit) as provided in
this Declaration.
Condominium Rules. “Condominium Rules” shall mean any rules and regulations that
may from time to time by promulgated by the Board (and as amended) governing the use of the
Condominium (which shall be required to be approved, in advance, by the Declarant or the
Master Association, as applicable), and shall include, without limitation, the rules and
regulations set forth in Exhibit “E” attached hereto and hereby incorporated herein by reference.
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Declarant. “Declarant” means Lot One Condo Partners, LLC, and its successors and
assigns, provided the rights specifically reserved to Declarant under the Condominium
Organizational Documents shall accrue to such successors and assigns as are designated in
writing by Declarant as successors and assigns of such rights.
Declaration. “Declaration” means this instrument by which the Property is submitted to
the Act, as this instrument may be lawfully amended from time to time.
Development. “Development” means the mixed use development by Master Developer
of the Project known as 1st on Main comprised of office space, multi-family and other residential
facilities, including the Property, and parking facilities.
Director(s). “Director” and “Directors” means that Person or those persons serving in
the capacity of a member of the Board of Directors of the Association, as defined in the Act.
Eligible Holder of the First Mortgage Lien. “Eligible Holder of the First Mortgage
Lien” means the holder of a valid recorded first mortgage on a Unit, which holder has given
written notice to the Association requesting notification of any proposed action that requires the
consent of a specified percentage of Eligible Holders of First Mortgage Liens.
Limited Common Areas. “Limited Common Areas” means those Common Areas
serving exclusively one Unit or more than one but less than all Units, the enjoyment, benefit or
use of which are reserved to the Occupants of that Unit or Units either in this Declaration, or by
the Board, and is that portion of the Property constituting “Limited Common Areas and
facilities” of the Condominium under the provisions of the Act.
Master Association. “Master Association” means the “Master Association” established
for the Owners (as defined in the Master Declaration) of the facilities in the Development
pursuant to the terms and conditions of the Master Declaration.
Master Common Properties. “Master Common Properties” means the “Common
Properties” as defined in the Master Declaration and shall specifically include the Plaza, the
Parking Garage, the equipment, pipes and other materials comprising the Common Utility
Systems (including the Drainage System) (each as defined in the Master Declaration), but only to
the extent not dedicated to the public, and the foundations and footings shared between the
Parking Garage and the Multi-Family Building and/or the Condominium Building, as applicable
(each as defined in the Master Declaration).
Master Declaration. “Master Declaration” means that certain Master Declaration of
Covenants, Restrictions and Easements for 1st on Main, executed by the Master Developer, dated
June _____, 2024 and recorded in the Office of the Recorder of Hamilton County, Indiana on
June ____, 2024 as Instrument Number , as such instrument shall be
amended from time to time governing the Development.
Occupant. “Occupant” means a Person lawfully residing in a Unit, regardless of
whether that Person is a Unit Owner.
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Parking License Terms. “Parking License Terms” means the terms of the license to
each Owner for the exclusive use of their assigned Condominium Parking Spaces set forth in
Exhibit “F” attached hereto and hereby incorporated herein by reference.
Person. “Person” means a natural individual, corporation, partnership, trustee, or other
legal entity capable of holding title to real property.
Plans. “Plans” means the floor plans and other information of the Units as filed in the
Office of the Recorder of Hamilton County, Indiana in Horizontal Property Plan File, Book
_____, Pages _____ through _____, which Plans are incorporated herein by this reference, as the
same may be lawfully amended from time to time.
Property. “Property” means the tract of land hereinafter described as being submitted to
the Act, the Building, structures and improvements situated thereon, and all easements, rights
and appurtenances belonging thereto including the rights and benefits granted in the Master
Declaration.
Unit(s). “Unit” and “Units” means that portion or portions of the Property described as a
Unit or Units in this Declaration, and is that portion of the Condominium constituting a “Unit” or
“Units” of the Condominium under the provisions of the Act, provided that no structural
components of the Building, and no pipes, wires, conduits, ducts, flues, shafts or public utility
lines situated within such Unit and forming part of any system serving one or more other Units
or the Common Areas, shall be deemed to be a part of such Units.
Unit Owner(s). “Unit Owner” and “Unit Owners” mean that Person or those persons
owning a fee-simple interest in a Unit or Units, each of whom is also a “member” of the
Association, as defined in Indiana’s non-profit corporation statutory act.
ARTICLE II: Name
2.1 Name. The name by which the Condominium shall be known is “1st on Main
Condominiums”.
ARTICLE III: Use and Restrictions
3.1 Purposes. This Declaration is being made to establish separate individual Units
from the Property, of which fee simple interests may be conveyed; to establish a Unit Owners’
Association to administer the Condominium; to provide for the preservation of the values of
Units and the Common Areas; to provide for and promote the benefit, enjoyment and well-being
of Unit Owners and Occupants; to administer and enforce the covenants, easements, charges and
restrictions hereinafter set forth; and to raise funds through assessments to accomplish these
purposes.
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3.2 Restrictions. The Property shall be subject to the following restrictions:
(A)Unit Uses. Use of all Units shall be subject to the restrictions and
requirements set forth in this Declaration and the restrictions and requirements set forth
in the Master Declaration.
(B)Common Areas Uses. The Common Areas (except the Limited Common
Areas) shall be used in common by Unit Owners and Occupants and their agents,
servants, customers, invitees and licensees, in accordance with the purpose for which
they are intended, and as may be required for the purpose of access, ingress to, egress
from, use, occupancy and enjoyment of Units, provided, however, that unless expressly
provided otherwise herein, no Common Areas shall be used for any purpose other than
the health, safety, welfare, convenience, comfort, recreation or enjoyment of Unit Owners
and Occupants, subject to the Condominium Rules.
(C)Limited Common Areas Uses. Except as specifically provided otherwise
herein, those portions of the Common Areas described herein and shown on the Plans as
Limited Common Areas shall be used and possessed exclusively by the Unit Owners and
Occupants of the Unit or Units served by the same, subject to the restrictions on use of
Common Areas and Limited Common Areas set forth in this Declaration and the
Condominium Rules.
(D)Visible Areas. Nothing shall be caused or permitted to be hung or
displayed on the outside or inside of windows (except inoffensive drapes or curtains) or
placed on the outside walls of the Building or otherwise outside of a Unit, or any part
thereof, and no sign (except those approved by Declarant for the sale of Units), awning,
canopy, shutter or television or citizens’ band or other radio antenna or transmitter,
satellite dish or any other device or ornament shall be affixed to or placed upon the
exterior walls or roof or any part thereof, or in or on a patio unless authorized by the
Board, and subject to such Condominium Rules as the Board may adopt from time to
time.
(E)Nuisances. No portion of the Property shall be used, in whole or in part,
for the storage of any property or thing that will cause it to appear to be in an unclean or
untidy condition or that will be visibly obnoxious; nor shall any substance, thing, or
material be kept upon any portion of the Property that will emit foul or obnoxious odors
or that will cause any noise or other condition that will or might disturb the peace, quiet,
safety, comfort or serenity of other Unit Owners. No noxious, illegal or offensive
activity shall be carried on upon any portion of the Property. There shall not be
maintained any plants or animals or device or thing of any sort whose activities or
existence in any way is noxious, dangerous, unsightly, unpleasant or of a nature as may
diminish or destroy the enjoyment of the Property. It shall be the responsibility of each
Unit Owner to prevent the development of any unclean, unhealthy, unsightly or unkept
condition in his or her Limited Common Areas.
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(F)Structural Integrity. Nothing shall be done in any Unit, or in, on or to
the Common Areas, which may impair the structural integrity of any improvement on the
Property or any other portion of the Project or any adjoining property.
(G)Building on Easements. Within the easements for the installation and
maintenance of utilities and drainage facilities, no structure, planting or other material
(except such as exist at the time of this Declaration) shall be placed or permitted to
remain which may damage or interfere with the installation and maintenance of utility
lines or which may change the direction of the flow or drainage channels in the
easements or which may obstruct or retard the flow of water through drainage channels in
the easement areas. The utility facilities within the easement areas shall be subject to the
right of the Association and the Master Association to maintain the same, and its right to
delegate that right to a public authority or utility.
(H)Animals. Except as hereinafter provided, no animals, livestock or poultry
of any kind shall be raised, bred or kept in any Unit or on the Common Areas.
Notwithstanding the foregoing, a maximum of (i) two (2) dogs weighing no more than
one hundred (100) pounds in the aggregate; (ii) two (2) cats or other non-reptilian, non-
exotic, customary, domestic household pets; (iii) one (1) dog weighing no more than
seventy-five (75) pounds and one (1) cat; or (iv) one (1) fish tank not to exceed seventy-
five (75) gallons shall be permitted in a Unit. Notwithstanding the foregoing, no Unit
Owner shall keep in any Unit or in the Common Areas or Limited Common Areas or on
the Property any dangerous breed of dog, including, without limitation, pit bull,
Rottweiler or such other breed as is determined to be dangerous by the Board. All pets
must be registered with and approved in advance by the Board. Unit Owners shall ensure
that their pets do not disturb other Unit Owners due to noise, odors, or other nuisance.
Unit Owners shall immediately clean up the waste produced by the Unit Owner's pet. All
pets, including cats, must be under the control of the Unit Owner, on a leash, or confined
to the Unit or the Limited Common Area exclusively appurtenant thereto. A Unit Owner
shall be fully liable for any injury or damage to persons or property including the
Common Areas or Limited Common Areas, caused by his or her pet. The Board may
adopt such Condominium Rules regarding pets as it may deem necessary from time to
time including, but not limited to, a requirement that any Unit Owner desiring to bring a
pet on the Property shall deposit with the Board a security deposit in an amount to be
determined by the Board to cover any damage that may be caused by such pet to the
Common Areas and Limited Common Areas.
(I)Conveyances. Each Unit shall be conveyed as a separately designated
and legally described freehold estate subject to the terms, conditions and provisions
hereof. The undivided interest of a Unit in the Common Areas shall be deemed to be
conveyed or encumbered with the Unit even though that interest is not expressly
mentioned or described in the deed, mortgage or other instrument of conveyance or
encumbrance. The right of a Unit Owner to sell, transfer or otherwise convey that
owner’s Unit is not subject to any right of first refusal or similar restriction, and any Unit
Owner may transfer that owner’s Unit free of any such limitation. To enable the
Association to maintain accurate records of the names and addresses of Unit Owners,
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each Unit Owner agrees to notify the Association, in writing, within five days after an
interest in that Unit owner’s Unit has been transferred to another Person. In addition,
each Unit Owner agrees to provide to a purchaser of that owner’s Unit a copy of the
Condominium Organizational Documents and all effective Condominium Rules.
(J)Architectural Control. Except as hereinafter specifically provided, no
fence, wall, sign or other structure shall be commenced, erected or maintained upon the
Property, or any part thereof, nor shall any exterior addition to or change or alteration
therein be made, until the Plans and specifications showing the nature, kind, shape,
height, materials, color and location of the same shall have been submitted to and
approved in writing by the Board or its designated representative, as to lawfulness and
appropriateness, and as to harmony of external design, color and location in relation to
surrounding structures and topography.
(K)Decorating. Each Unit Owner, at such Unit Owner’s own expense, shall
furnish and be responsible for all decorating within such Unit Owner’s own Unit and
Limited Common Areas serving such Unit, as may be required from time to time,
including painting, wall papering, washing, cleaning, paneling, floor covering, draperies,
window shades, curtains, lighting and other furnishings and decorating. Each Unit
Owner shall be entitled to the exclusive use of the interior surfaces of the perimeter walls,
doors, floor and ceilings, and such Unit Owner shall maintain said interior surfaces in
good condition at such Unit Owner’s sole expense. Decorating of the Common Areas
(other than interior surfaces within the Units as above provided and other than interior
surfaces of Limited Common Areas) shall be furnished by the Association as part of the
Common Expenses. The interiors and exteriors of all windows and entry doors forming
part of the perimeter wall of a Unit shall be cleaned and washed at the expense of the
Unit Owner of that Unit.
(L)Flooring. All floors of Units shall be covered with acoustical control
material which, in the case of carpeted surfaces, shall be a carpet pad of good quality at
least 1/4" thick with a density of at least 54 ounces per square yard and, in the case of
hard surfaces, shall be an underlayment of acoustical control material approved and
specified by the Board from time to time. All flooring on top of concrete floors will
require a sound attenuating substrate to mitigate sound transfer. No acoustical control
materials in ceilings, walls or floors installed in connection with the initial construction of
a Unit may be removed unless replaced with new, equivalent materials. No Unit may be
modified in any manner which impacts (negatively) the construction measures, materials
and techniques taken to provide sound absorbency in the walls, floors and ceilings of the
Units.
(M)Water Discharge. No clear water sources, including but not limited to
foundation drains, sump pumps and road drains shall be permitted to discharge into the
sanitary sewers.
(N)Occupants. All provisions of the Master Declaration, Declaration, By-
Laws and of the Condominium Rules or use restrictions promulgated pursuant thereto
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which govern the conduct of Unit Owners and which provided for sanctions against Unit
Owners shall also apply to all Occupants, guests and invitees of any Unit. Every Unit
Owner shall cause all Occupants of Unit Owner’s Unit to comply with the Declaration,
By-Laws, and the Condominium Rules adopted pursuant thereto, and shall be responsible
for all violations and losses to the Common Areas or any other portion of the Project
caused by such Occupants, notwithstanding the fact that such Occupants of a Unit are
fully liable and may be sanctioned for any violation of the Master Declaration, the By-
Laws and/or the Condominium Rules adopted pursuant thereto.
(O)Exterior Use. All landscaping, plantings and flowers outside of the Unit
are part of the Common Areas maintained by the Association or the Master Association
with respect to the Master Common Properties, as applicable. Any Occupant’s motor
vehicle shall be kept within the Parking Garage (as defined in the Master Declaration) or
in other areas outside of the Project designated for parking.
(P)Leasing. Subject to applicable law, a Unit Owner may lease any Unit
only in full compliance with the Condominium Rules.
(Q)Satellite Dishes. Satellite dishes are strictly prohibited.
(R)Grills. No charcoal grills shall be permitted on Unit balconies. Subject to
any fire code requirements, gas grills must be stainless steel that are covered when not in
use.
(S)Other Rules. All Unit Owners shall also comply with the rules and
regulations set forth in Exhibit “E” attached hereto and any other Condominium Rules.
ARTICLE IV: Improvement Descriptions
4.1 Building. The residential Building of the Condominium contains eight (8) Units.
The Building is four (4) stories. The Building is tentatively located as shown on the Plans, and
the Building and Plans are subject to amendment by Declarant.
ARTICLE V: Units
5.1 Unit Designations. Each of the Units is designated on the Plans by a number.
Information concerning the Units, with a listing of proper Unit designations, percentage interest,
assigned Condominium Parking Spaces and storage unit, is shown on Exhibit “C” attached
hereto. The street address is assigned by the local municipality.
5.2 Composition of Units.
(A)Unit Composition. Each Unit consists of the space in the Building
designated by that Unit’s designation on the Plans that is bounded by the undecorated
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interior surfaces of the vertical, perimeter walls; the unfinished surface of the floor, and
the unfinished interior surface of the ceiling, all projected, if necessary by reason of
structural divisions such as interior walls and partitions, to constitute a complete
enclosure of space, and all improvements within that space. Without limiting the
generality of the foregoing, each Unit shall include:
(1)the decorated surfaces, including paint, lacquer, varnish, wallpaper,
tile and other finishing material applied to floors, ceilings, and interior surfaces of
the perimeter walls and carpets, paneling and other finishing material attached to
the interior surfaces of the perimeter walls;
(2)all windows, screens and doors, including storm doors and
windows, if any, and including the frames, sashes and jambs and the space
occupied thereby, and the hardware therefor;
(3)all fixtures and appliances installed for the exclusive use of that
Unit, commencing at the point of disconnection from the structural body of the
Building and from utility pipes, lines or systems serving the entire Building or
more than one Unit thereof, including, without limiting the generality hereof,
built-in cabinets, dishwashers, garbage disposal Units, stoves and hoods,
televisions antennas and cables, furnaces, hot water heaters, and air-conditioning
units, and components thereof, if any (even if located outside of the bounds of the
Unit), serving only that Unit;
(4)all control knobs, switches, thermostats and electrical outlets and
connections affixed to or projecting from the walls, floors and ceilings which
service either the Unit or the fixtures located therein, together with the space
occupied thereby;
(5)all interior walls, that are not necessary for support of the structure,
and all components thereof and all space encompassed thereby;
(6)all plumbing, electric, heating, cooling and other utility or service
lines, pipes, wires, ducts or conduits which serve either the Unit or the fixtures
located therein, and which are located within the bounds of the Unit, or within the
exterior walls of that Unit; excluding therefrom, however, all of the following
items located within the bounds of that Unit:
(a)any structural element of the Building contained in interior
walls; and
(b)all plumbing, electric, heating, cooling and other utility or
service lines, pipes, sump pumps and accessories thereto, wires, ducts and
conduits which serve any other Unit.
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(B)Unit Sizes: Locations and Components. The location of each part of
each Unit, the approximate size of each Unit’s interior, and the number of rooms in each
Unit are shown on the Plans.
ARTICLE VI:
Common Areas and
Limited Common Areas
6.1 Common Areas - Description. All of the Property, including all of the land and
all improvements thereon and appurtenances thereto, items listed in Indiana Code § 32-25-2-4,
any sidewalks, access ways, accessory buildings, private irrigation systems, storm retention
systems, private water distribution system, private storm water system and private sanitary sewer
line spurs, except (i) those portions labeled or described herein or in the Plans as a part of a Unit,
(ii) those roads, streets, water distribution system, sanitary sewer system and storm water system
to the extent they are dedicated to public entities, are Common Areas, and (iii) the Master
Common Properties.
6.2 Limited Common Areas - Description. Those portions of the Common Areas
that are labeled or designated “LCA” or “Limited Common Areas” on the Plans, are Limited
Common Areas. In the case of each Unit, the Limited Common Areas appurtenant to that Unit
consist of balconies of upper floors, terraces of upper floors (where applicable), on-site storage,
lockers and closets or bins, as applicable, if any. All such Limited Common Area is reserved for
the exclusive use of the owners and Occupants of the Unit(s) designated to be served by the
same, but are maintained by the Association except as otherwise provided in Section 8.2 of this
Declaration.
6.3 Undivided Interest. The initial undivided interest in the Common Areas of each
Unit is based upon the percentage each Unit is of the total Units as described on Exhibit “C”.
The Common Areas shall be owned by the Unit Owners as tenants in common, and ownership
thereof shall remain undivided. No Unit Owner may waive or release any rights in the Common
Areas. Further, the undivided interest in the Common Areas of a Unit shall not be separated
from the Unit to which it appertains. Any attempted conveyance, encumbrance, judicial sale or
other transfer of a Unit Owner’s fee interest in Common Areas will be void unless the Unit to
which such interest is allocated is also transferred. If at a later time the Condominium is
expanded, as hereinafter provided, the undivided interests of Units in the Common Areas shall be
uniformly reallocated so that all Units, whether originally in the Condominium or added at a later
date, have undivided percentage interests in the Common Areas based upon the total number of
Units in the Property.
6.4 Dedication Rights Reserved. In addition to all easements and rights previously
granted by recorded documents against the Property, Declarant hereby reserves the right at its
sole discretion to dedicate or otherwise convey portions of the Property (but not those portions
on which a Unit is situated) to any public agency or governmental authority or quasi-public
utility for purposes of streets, roads, roadways, utilities, recreation areas, storm detention basins,
storm outfall, storm trunk piping, water, sidewalks and other benefits and improvements, and
rights-of-way and easements therefor. Such right to make such dedications or conveyances shall
not require the consent, approval or signatures of either the Board or any Unit Owner, and such
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dedication or conveyance shall be considered fully accomplished and conclusively binding upon
each of said Unit Owners and upon the Association when set forth in writing or in a Plat of
Dedication executed by the Declarant which has been recorded in the Office of the Recorder of
Hamilton County, Indiana, provided, however, that nothing in this paragraph shall be construed
to in any manner require or obligate Declarant to make any such conveyance or dedication. In
further of the foregoing, an irrevocable power coupled with an interest is hereby granted to the
Declarant and the Board as agent and attorney-in-fact, to grant such easements or make such
dedications or conveyances. Each deed, mortgage, trust deed or other instrument with respect to
a Unit and the acceptance thereof shall be deemed a grant and acknowledgment of the consent to
such power to each of said attorney-in-fact and shall be deemed to reserve to Declarant and the
Board the foregoing powers and rights.
6.5 Parking. Subject to the terms and conditions of the Master Declaration, two (2)
Condominium Parking Spaces in the Parking Garage are licensed by the Association for each
Unit as set forth in Exhibit “C” attached hereto. The terms of the license and use of the
Condominium Parking Spaces are set forth in the Parking License Terms attached hereto in
Exhibit “F”. The assignment of the Condominium Parking Spaces to each Unit is permanent and
not revocable except as maybe provided in the Parking License Terms. The Master Association
shall charge the Association with its share of the costs and expenses associated with the
maintenance and upkeep of the Parking Garage as part of the Master Common Properties.
6.6 Storage Units. Subject to the terms and conditions of the Master Declaration,
one (1) storage unit in the Parking Garage will be granted by the Association, via sublicense, for
each Unit at a fee charged by the owner of the Parking Garage or Declarant from time to time,
commencing at a rate of Fifty Dollars ($50) per month ($600 annually) per Unit. The Declarant
will assign the storage unit upon each conveyance to the Unit Owner which may only be
reassigned/exchanged to a different Unit Owner upon the consent of both such Unit Owners and
the Association.
ARTICLE VII: Association
7.1 Establishment of Association. The Association has been formed to be and to
serve as the Unit Owners’ Association of the Condominium. The Declarant is presently the sole
member of the Association. The Association shall be managed in accordance with the By-Laws.
7.2 Membership. Membership in the Association shall be limited to the Unit
Owners, and every Person or entity who is or becomes a record owner of a fee or undivided fee-
simple interest in a Unit is a Unit Owner and shall be a member of the Association. The
foregoing is not intended to include persons or entities who hold an interest merely as security
for the performance of an obligation. Membership shall be appurtenant to and may not be
separated from ownership of any Unit, and transfer of a Unit shall automatically transfer
membership to the transferee.
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7.3 Voting Rights. Each Unit Owner shall be entitled to vote its undivided interest in
the Common Areas for each Unit owned in fee simple and in the event of multiple owners of a
Unit only such person designated by all owners of the Unit shall be entitled to vote.
7.4 Board of Directors. The Board initially shall be those three (3) persons named
as the initial Directors pursuant to the provisions of the Articles, or such other Person or persons
as may from time to time be substituted by Declarant. The Board shall serve in accordance with
the provisions of the By-Laws. The fiscal year of the Association shall be determined by the
Board, and may be changed from time to time as the Board deems advisable. Notwithstanding
the foregoing, Declarant shall have the right to any time to waive its right to select one or more
Directors or to vote in an election of Directors.
7.5 Authority. The Board shall have all authority to manage, maintain, repair,
replace, alter and improve the Common Areas, negotiate agreements and contracts with public or
private utilities, including cable companies, and assess and collect funds for the payment thereof,
and do all things, and exercise all rights provided by the Condominium Organizational
Documents, or the Act, that are not specifically reserved to Unit Owners, subject to the terms and
conditions of the Declaration. In the event of any dispute or disagreement between any Unit
Owners relating to the Property, or any questions of interpretation or application of the
provisions of the Declaration or By-Laws, the determination thereof by the Board shall be final
and binding on each Unit Owner.
7.6 Delegation of Authority; Professional Management. The Board may delegate
all or any portion of its authority to discharge its responsibilities to a managing agent, including
the Master Association or its managing agent. This delegation of authority and responsibility to
a managing agent may be evidenced by one or more management contracts which may provide
for the payment of reasonable compensation to such managing agent as a part of Common
Expenses, provided, however, that any agreement for professional management shall not exceed
two years unless renewed by agreement of the parties for successive two-year periods; and shall
be bona fide and commercially reasonable at the time entered into under the circumstances then
prevailing. Subject to the foregoing, nothing contained herein shall preclude Declarant, or any
other entity designated by Declarant, from being employed as managing agent. The managing
agent, or the Board, if there is no managing agent, shall have the authority to enter into contracts
with Declarant, for goods, services, or for any other thing, including without limiting the
generality of the foregoing, contracts for the providing of management, maintenance and repair
services, provided the same are bona fide and commercially reasonable to the Unit Owners at the
time entered into under the circumstances then prevailing and are terminable by the Association,
without cause and without penalty, on sixty (60) days’ written notice.
ARTICLE VIII: Maintenance and Repair
8.1 Association Responsibility. The Association shall maintain and repair the
Common Areas, including and not limited to the private water distribution system, private utility
facilities serving more than one Unit, private utility lines in the Common Areas, laterals serving
one or more Units to the connection into the sanitary sewer system, including any requirements
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of instruments of record, private streets including alleys, lawns, shrubs, trees, private walkways,
and all improvements therein, and any improvements which are a part of the Common Area and
which may be located within a sanitary sewer or utility easement. The Association shall (i)
provide routine maintenance or cleaning or snow removal with respect to the driveways and
sidewalks and it shall repair or maintain any improvements within such Limited Common Areas,
and (ii) manage its interest in the Master Common Properties pursuant to the Master Declaration.
8.2 Individual Responsibility. Each Unit Owner shall repair and maintain the Unit
or Units, and all components thereof, owned by that Unit Owner. Without limiting the generality
of the foregoing, the repair and maintenance responsibility shall include repair and maintenance
of all windows, screens and doors (interior and exterior), including the frames, sashes, jambs,
hardware and caulking therefor. The Board shall have the right and authority at its discretion to
assess the costs for the repair, maintenance or replacement of Limited Common Areas, in whole
or in part to the Unit or Units within the Building where so located or assigned or to require the
Unit Owners to pay for, or cause the repair, maintenance and replacement to be performed by the
Unit Owners. In the event a Unit Owner shall fail to make any such repair or perform such
maintenance, or in the event the need for maintenance or repair of any part of the Common Areas
or Limited Common Areas is caused by the negligent or intentional act of any Unit Owner or
Occupant, or its agent, invitee, licensee or pet, or is as a result of the failure of any Unit Owner
or his, her or its predecessors in title to timely pursue to conclusion a claim under any warranty,
express, implied, or imposed by law, and the cost of repair is not covered by insurance, the cost
of such maintenance and repair shall constitute a special individual Unit assessment, as
hereinafter defined, on the Unit Owner. The determination that such maintenance or repair is
necessary, or has been so caused, shall be made by the Board.
ARTICLE IX: Utility Services
9.1 Utilities. Each Unit Owner by acceptance of a deed to a Unit agrees to pay for
utility services separately metered or separately charged by the utility company to that Unit. In
the event any utility service is not separately metered the cost thereof shall be a part of Common
Expense and paid by the Association, except that, with respect to any meters measuring the use
of light or heat or water on the basis of the consumption thereof for one or more Units in the
entire Property, at the option of the Board and its sole discretion, the expenses therefor may be
allocated to and assessed against the Unit or Units located within the entire Property. In such an
event, all of the Units in the entire Property shall be responsible for the total cost of said metered
expense for the entire Property, and among themselves each of said Units shall be responsible for
that proportion of said cost equal to the proportion which the percentage ownership of Common
Areas of said Unit bears to the total percentage ownership of Common Areas of all of the Units
in the entire Property. The Association may own and maintain any non-public utility lines,
systems and facilities which shall be treated as common areas with the Common Expenses being
allocated among the Unit Owners.
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ARTICLE X: Insurance
10.1 Fire and Extended Coverage Insurance. The Board shall have the authority to
and shall obtain insurance for the Building, structures, supplies, machinery, fixtures and
equipment and common personal property and supplies now or at any time hereafter constituting
a part of the Common Areas or common property of the Association, against loss or damage by
fire, lightning, and such other perils as are ordinarily insured against by standard extended
coverage endorsements, and all other perils which are customarily covered with respect to
projects similar in construction, location and use, including all perils normally covered by the
standard “all risk” endorsement, where such is available, policies issued in the locale of the
Property, in amounts at all times sufficient to prevent the Unit Owners from becoming co-
insurers under the terms of any applicable co-insurance clause or provision and not less than one
hundred percent (100%) of the current replacement cost of such items (exclusive of land,
foundations, footings, excavations, and other items normally excluded from coverage), as
determined from time to time by the insurer, with a deductible not greater than $25,000, other
than with respect to wind, hail and other special risk insurance policies with a deductible of not
greater than $50,000. This insurance:
(A)shall provide coverage for improvements, alterations, fixtures and
equipment located within Units; interior walls, windows and doors and the frames,
sashes, jambs and hardware therefor, even though these improvements may be parts of
Units but shall not include additions or improvements to the Units and interior decorating
of the Units by the Unit Owners; and any other items of personal property for which
coverage is required by The Mortgage Corporation, Federal National Mortgage
Association, or any similar holder, insurer or guarantor of first mortgage loans upon
Units in the Condominium;
(B)shall provide that no assessment may be made against a first mortgage
lender, or its insurer or guarantor, and that any assessment under such policy made
against others may not become a lien on a Unit and its appurtenant interests superior to a
first mortgage;
(C)shall provide that its coverage is primary, and be written in the name of
Association for the use and benefit of the individual Unit Owners and their mortgage
holders, or its authorized representative, including any insurance trustee with whom the
Association has entered into an insurance trust agreement, or any successor to such
trustee, for the use and benefit of the individual Unit Owners and their mortgage holders.
(D)shall contain or have attached the standard mortgage clause commonly
accepted by institutional mortgage investors in the area in which the Property is located,
naming the holder, insurer, guarantor or servicer of first mortgages on Units, which must
provide that the insurance carrier shall notify all holders of first mortgages named at least
ten (10) days in advance of the effective date of any reduction in, cancellation of, or
substantial change in the policy, and which standard mortgagee clause must further be
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endorsed to provide that any loss shall be paid to the Association (or its insurance
trustee), as a trustee for each Unit Owner and each such Unit owner’s mortgagee;
(E)shall contain a waiver of subrogation of rights by the carrier as to the
Association, its officers and Directors, and all Unit Owners, and the rights of the various
parties to collect pursuant to such insurance shall not be prejudiced by the acts or failure
to act of any Unit Owner or Person under the control of the Association; and
(F)shall contain such other endorsements and meet such other requirements
as are, from time to time, required by The Mortgage Corporation, Federal National
Mortgage Association, or any similar holder, insurer or guarantor of first mortgage loans
upon Units in the Condominium; and
(G)shall otherwise comply with the terms and conditions of the Master
Declaration.
The cost of this insurance and all insurance described in this Article X (excluding Section 10.6)
shall be a Common Expense, payable by the Association.
10.2 Liability Insurance. The Association shall obtain and maintain a comprehensive
policy of general liability insurance covering all of the Common Areas, insuring the Association,
the Board, and the Unit Owners and Occupants, which complies with the terms and conditions of
the Master Declaration. This insurance shall contain a “severability of interest” endorsement
which shall preclude the insurer from denying the claim of a Unit Owner because of negligent
acts of the Association, the Board, or other Unit Owners and shall include, without limitation,
coverage for legal liability of the insureds for property damage, bodily injuries and deaths of
persons in connection with the operation, maintenance or use of the Common Areas, legal
liability arising out of lawsuits related to employment contracts of the Association, and
additional coverages as are ordinarily obtained with respect to projects similar in construction,
location and use. Each such policy must provide that it may not be canceled or substantially
modified by any party, without at least 10 days’ prior written notice to the Association and to
each Eligible Holder of a First Mortgage Lien upon any Unit.
10.3 Fidelity Coverage. The Board shall obtain and maintain, or cause to be obtained
and maintained, fidelity coverage for the Association against dishonest or fraudulent acts on the
part of the Board, managers, employees, agents, or volunteers responsible for handling funds
belonging to or administered by the Association. The fidelity bond or insurance shall name the
Association as the named obligee or insured and shall be written in an amount sufficient to
provide protection, which is in no event less than the greater of: (i) 150% of the estimated
annual operating expense of the Association, including reserves; (ii) the maximum funds that
will be in the custody of the Association or its agent at any time; or (iii) the sum of three months’
worth of assessments plus the Association’s reserves. In connection with such coverage, an
appropriate endorsement to the policy to cover any persons who serve without compensation
shall be added if the policy would not otherwise cover volunteers. The bond or policy shall
provide that it shall not be canceled or substantially modified (including cancellation for not-
payment of premium) without at least 10 days’ prior written notice to the Association, any
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insurance trustee, and any holder, insurer, guarantor or servicer on behalf of any holder of any
mortgage on a Unit who requires such rights. Any managing agent that handles funds for the
Association shall be required to obtain its own fidelity bond providing similar coverage.
10.4 Other Association Insurance. In addition, the Board may purchase and maintain
contractual liability insurance, directors’ and officers’ liability insurance, and such other
insurance as the Board may determine.
10.5 Insurance Representative; Power of Attorney. Notwithstanding any of the
foregoing provisions of this Article, or any requirement relating to property or liability insurance
herein, there may be named, under any policy obtained by the Association, as an insured on
behalf of the Association, its authorized representative, including any trustee with whom the
Association may enter into an insurance trust agreement, or any successor to such trustee, who
shall have exclusive authority to negotiate losses under any such policy. Each Unit Owner, by
acceptance of a deed to a Unit, irrevocably appoints the Association or such designated
representative, or such successor, as attorney-in-fact 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; the execution of all
documents; and the performance of all other acts necessary to accomplish such purpose. The
Association, or such designated representative, or such successor, shall receive, hold or
otherwise properly dispose of any proceeds of insurance, in trust, for Unit Owners and their first
mortgage holders, as their interests may appear. This power is for the benefit of each and every
Unit Owner, and their respective first mortgage holders, and the Association, and the
Condominium, runs with the land, and is coupled with an interest.
10.6 Unit Owners’ Insurance. Any Unit Owner or Occupant shall carry such
insurance in addition to that provided by the Association pursuant hereto as the Unit Owner or
Occupant may determine, subject to the provisions hereof, and provided that no Unit Owner of
Occupant may at any time purchase individual policies of insurance against loss by fire or other
casualty covered by the insurance carried pursuant hereto by the Association. In the event any
Unit Owner or Occupant violates this provision, any diminution in insurance proceeds resulting
from the existence of such other insurance shall be chargeable to the Unit Owner who acquired
or whose Occupant acquired such other insurance, who shall be liable to the Association to the
extent of any diminution and/or loss of proceeds. Without limiting the foregoing, a Unit Owner
or Occupant may obtain insurance against liability for events occurring within a Unit, losses with
respect to personal property and furnishings, and losses to improvements owned by the Unit
Owner or Occupant, provided that if the Association obtains insurance for permanent
improvements and built-in fixtures and equipment, then the insurance obtained by the Unit
Owner with respect to improvements within the Unit shall be limited to the type and nature of
coverage commonly referred to as “tenants’ improvements and betterments”. All such insurance
separately carried shall contain a waiver of subrogation rights by the carrier as to the
Association, its officers and trustees, and all other Unit Owners and Occupants. Unit Owners
shall be responsible for the deductible of any insurance policy, prorated among the Unit Owners
in proportion to their loss.
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10.7 Sufficient Insurance. In the event the improvements forming a part of the
Common Areas or any portion thereof shall suffer damage or destruction from any cause of peril
insured against and the proceeds of any policy or policies insuring against such loss or damage
and payable by reason thereof shall be sufficient to pay the cost of repair or restoration or
reconstruction, then such repair, restoration or reconstruction shall be undertaken by the
Association and the insurance proceeds shall be applied by the Board in payment therefor;
provided, however, that in the event of complete destruction of all of the Building such as causes
the termination of the Condominium pursuant to Section 11.1, the Condominium shall be
terminated, in which event such repair, restoration or reconstruction shall not be undertaken.
10.8 Insufficient Insurance. In the event the improvements forming a part of the
Common Areas or any portion thereof shall suffer damage or destruction from any cause or peril
which is not insured against, or, if insured against, the insurance proceeds from which shall not
be sufficient to pay the cost of repair, restoration or reconstruction, then, unless there is complete
destruction of the Building such as causes the termination of the Condominium pursuant to
Section 11.1, below, the Association shall make repairs, restoration or reconstruction of the
Common Areas so damaged or destroyed at the expense (to the extent not covered by insurance)
of all Unit Owners in proportion to their respective undivided interests in the Common Areas.
Should any Unit Owner refuse or fail after reasonable notice to pay that Unit owner’s share for
such cost in excess of available insurance proceeds, the amount so advanced by the Association
shall be assessed against the Unit of such Unit Owner and that assessment shall have the same
force and effect, and, if not paid, may be enforced in the same manner as herein provided for the
nonpayment of assessments.
ARTICLE XI: Casualty
11.1 Complete Destruction. In the event of the complete destruction of all of the
Building as determined by a vote of Unit Owners holding three-fourths (3/4) of the voting power
held by all Unit Owners, the Building shall not be reconstructed, and the insurance proceeds, if
any, shall be divided among the Unit Owners and their respective mortgages in the percentage by
which each Unit Owner owns an undivided interest in the Common Areas and facilities, and the
property shall be considered as removed from the Condominium under Section 32-25-8-16 of the
Indiana Code, unless, by a vote of three-fourths (3/4) of the voting power held by all Unit
Owners, a decision is made to rebuild the Building, in which case the insurance proceeds shall be
applied and any excess of construction costs over insurance proceeds shall be contributed as
provided herein for capital contributions.
11.2 Reconstruction. In case of fire or any other casualty or disaster, other than
complete destruction of the Building containing the Condominium Units as provided above, the
improvements shall be promptly reconstructed and the insurance proceeds applied to reconstruct
the improvements.
11.3 Failure to Reconstruct. If it is determined under Section 11.1 above by the Unit
Owners to not rebuild after such casualty or disaster has occurred, then in that event:
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(A)The Property shall be deemed to be owned in common by the Unit
Owners;
(B)The undivided interest in the Property owned in common which shall
appertain to each Unit Owner shall be the percentage of undivided interest previously
owned by such Unit Owner in the Common Areas;
(C)Any liens affecting any of the Units shall be deemed to be transferred in
accordance with the existing priorities to the percentage of the undivided interest of the
Unit Owner in the Property; and
(D)The Property shall be subject to an action for partition at the suit of any
Unit Owner, in which event the net proceeds of sale, together with the net proceeds of the
insurance on the Property, if any, shall be considered as one fund and shall be divided
among all the Unit Owners in a percentage equal to the percentage of undivided interest
owned by each Unit Owner in the Property, after first paying out of the respective shares
of the Unit Owners, to the extent sufficient for the purpose, all liens on the undivided
interest in the Property owned by each Unit Owner.
11.4 Master Declaration. Notwithstanding anything contained herein to the contrary,
the restoration or rebuilding of the Building and Units therein shall be subject to Section
17(F) of the Master Declaration.
ARTICLE XII: Condemnation
12.1 Standing. Except as hereinafter provided, the Association, or its designated
representative, or authorized successor, as trustee, shall represent the Unit Owners in any
condemnation or eminent domain proceedings or in negotiations, settlements and agreements
with the condemning authority for acquisition of all or any part of the Property, and shall have
the sole and exclusive right to settle the loss with the condemning authority and to receive the
award or proceeds of settlement, for the use and benefit of the Unit Owners and their mortgagees
as their interests may appear except that any award or proceeds of settlement for the withdrawal
of a Limited Common Area will be for the use and benefit of the Unit Owners entitled to their
use. Notwithstanding the foregoing, in the event that a Unit Owner may lawfully separately
pursue and realize upon a claim for incidental and consequential losses or damage to that Unit
Owner resulting from a taking under the power of eminent domain, such as for relocation and
moving expenses, loss of favorable mortgage terms, and other such individual incidental or
consequential loss, that Unit Owner may, at his, her or its election, separately pursue such claim,
provided, that the pursuing of the same, or the realization of an award thereof, neither
jeopardizes, in any way, an action by the Association to recoup the losses incurred by it, any
other Unit Owner, or the direct loss with respect to the Unit itself, or with regard to the usability
thereof, nor diminishes any award for any such loss.
12.2 Use of Proceeds. The award of proceeds of settlement in any such proceedings,
after reduction by the cost, if any, incurred in obtaining the same, shall be applied first to the cost
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of restoring or replacing all damaged improvements on the remaining Property in accordance
with the Plans, or in accordance with any new Plans and specifications therefor approved by Unit
Owners exercising no less than three-fourths (3/4) of the voting power of Unit Owners, and the
Eligible Holders of the First Mortgage Liens on Units to which at least fifty-one percent (51%)
of the votes of Units subject to mortgages held by Eligible Holders of the First Mortgage Liens
appertain. If the award of proceeds is insufficient for such purpose, the excess cost shall be paid
by the Association and, to the extent funds of the Association are insufficient therefor, in the
judgment of the Board, such excess cost shall be a part of Common Expense and assessed among
the Units in the same manner as special assessments for capital improvements are assessed.
Except as hereinafter provided, the balance of any such award or proceeds of settlement, if there
is an excess, shall be allocated and distributed to the Unit Owners, and their first mortgages, as
their interests may appear, in proportion to the relative undivided interests of the Units in the
Common Areas. Notwithstanding the foregoing, in the event that as a result of any such taking,
and consequent restoration or replacement, any Unit could not reasonably be restored to
condition comparable to that which existed prior to the taking, or could not be replaced, prior to
the allocation and disbursement of any sum to any other Unit Owner or his, her or its mortgagee,
there shall be allocated and disbursed from such award or proceeds, to each Unit Owner whose
Unit cannot be so restored or replaced, and his, her or its respective first mortgagee, as their
interests may appear, such amount as is equal to the then fair market value of the Unit that
cannot be so restored or replaced. Thereupon, such Unit or Units, and the owners thereof, shall
be immediately and automatically divested of any interest in the Condominium, the Property,
and the Association, including, without limiting the generality of the foregoing, divestment of an
undivided interest, vote, membership in the Association, and future liability for Common
Expenses. All such rights and interests shall be reallocated among all other Units and Unit
Owners in the same relative proportions as those rights and interests were prior to such taking.
To illustrate, upon a Unit being divested from the Condominium, (a) the voting right of that Unit
will be equally allocated among all other Units, since each Unit prior thereto had an equal vote,
and (b) the undivided interest of that Unit will be reallocated among all other Units in the
proportions of their relative undivided interests prior to such taking.
12.3 Power of Attorney. Each Unit Owner, by acceptance of a deed to a Unit,
appoints the Association, or its designated representative, or authorized successor, as his, her or
its attorney-in-fact to represent that Unit Owner, settle losses, receive and utilize the award or
proceeds of settlement, and do all things necessary or desirable for such attorney-in-fact to
exercise the rights and fulfill the responsibilities of the Association set forth in this Article with
respect to condemnation or eminent domain proceedings. This power is for the benefit of each
and every Unit Owner, each holder of a first mortgage on a Unit, the Association, and the real
estate to which it is applicable, runs with the land, is coupled with an interest, and is irrevocable.
ARTICLE XIII: Easements
13.1 Easements of Enjoyment; Limitations. Every Unit Owner shall have a right
and easement of enjoyment in, over and upon the Common Areas and a right of access to and
from his, her or its Unit, which rights and easements shall be appurtenant to and shall pass with
the title to a Unit, subject to the right of the Board to make reasonable Condominium Rules
21
concerning the use and management of the Common Areas (in addition to those set forth in
Exhibit “E”), provided that no such rule or regulation shall limit or prohibit the right of ingress
and egress to a Unit, or any part thereof, or to that Unit’s Limited Common Areas. Any Unit
Owner may delegate that Unit owner’s right to enjoyment to the Common Areas and to ingress
and egress to Occupants.
13.2 Right of Entry for Repair, Maintenance and Restoration. The Association,
and its assigns, agents and authorized contractors, shall have a right of entry and access to, over,
upon and through all of the Property, including, in the case of the Association, each Unit, to
enable the Association to perform its obligations, rights and duties pursuant hereto with regard to
maintenance, repair, restoration and/or servicing of any items, things or areas of or in the
Property. In the event of an emergency, the Association’s right of entry to a Unit and its
appurtenant Limited Common Areas may be exercised without notice; otherwise, the Association
shall give the Owners or Occupants of a Unit no less than 24-hours advance notice prior to
entering a Unit or its appurtenant Limited Common Areas.
13.3 Easement for Encroachments. Each Unit and the Common Areas shall be
subject to easements for encroachments on any other Unit and upon the Common Areas created
or arising by reason of overhangs; or by reason of deviations in construction, reconstruction, or
repair; or by reason of shifting, settlement, or movement of the structures; or by reason of errors
in the Plans. Valid easements for these encroachments and for the maintenance of the same, so
long as the encroaching structures remain, shall and do exist. However, no easement shall be
permitted and no pavement or concrete, including driveways and sidewalks, if installed, shall be
constructed on or within one foot horizontal distance of any sanitary sewer manhole or cleanout
casting.
13.4 Easement for Support. Every portion of the Building or utility line or any
improvement on any portion of the Property or the Project contributing to the support of the
Building, utility line or improvement on another portion of the Property shall be burdened with
an easement of support for the benefit of the Building and all other such utility lines,
improvements and other portions of the Property. Every portion of Building that contributes
support for any other portion of the Project shall be burdened with an easement for support for
the benefit of such portion of the Project.
13.5 Easements for Utilities. There is hereby created upon, over and under all of the
Property easements to the Association and all public agencies, governmental authorities and
quasi-public utilities, for ingress and egress to, and the constructing, installation, extending,
operating, inspecting, reconstructing, replacing, removing, repairing and maintaining of all
utilities, including, but not limited to, water, sanitary sewer, storm sewer, gas, telephone,
electricity, security systems, master television antennas and cable television. By this easement it
shall be expressly permissible for such companies to construct and maintain the necessary poles
and equipment, wires, circuits and conduits on, above, across and under the Property, so long as
such poles, equipment, wires, circuits and conduits do not unreasonably interfere with the use
and enjoyment of the Property. Should any such company furnishing a service request a specific
easement by separate recordable document, the Board shall have the right to grant such easement
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without conflicting with the terms hereof and without the approval of any mortgagee, which
consent is hereby given.
13.6 Easement for Services. A non-exclusive easement is hereby granted to all
police, fireman, ambulance operators, mailmen, deliverymen, garbage and trash removal
personnel, and all similar persons, and to the local governmental authorities and the Association,
but not to the public in general, to enter upon the Common Areas in the performance of their
duties.
13.7 Easements Reserved to Declarant. Non-exclusive easements are hereby
reserved to the Declarant and the Master Association, their respective contractors,
subcontractors, agents, successors and assigns, over and upon the Common Areas (a) for access
for and for the purpose of completing improvements for which provision is made in this
Declaration and/or the Master Declaration, provided that such right of access shall be to the
extent, but only to the extent, that access thereto is not otherwise reasonably available, (b) for the
periods for warranties hereunder, for purposes of making repairs required pursuant to those
warranties or pursuant to contracts of sale made with Unit purchasers, and (c) to maintain one or
more Units for sales and management offices and for storage and maintenance, and model Units,
parking areas for sales and rental purposes, and advertising signs. Notwithstanding any
provisions or restrictions contained in this Declaration to the contrary, it shall be expressly
permissible for the Declarant and its agents, employees, successors and assigns to maintain and
carry on such facilities and activities as may be reasonably required, convenient or incidental to
the completion, improvement and sale of Units or the developing of Units and Common Areas,
including, without limitation, the installation and operation of sales and construction trailers and
offices, signs and model dwellings. The right to maintain and carry on such facilities and
activities shall include specifically the right to use Units as model residences and to use any
Units as an office for the sale of Units and for related activities and to use any Unit as a
construction office.
So long as Declarant owns any Property described on Exhibit “A”, Declarant reserves
blanket easements and the right to grant such specific easements over all the Property, including
Units and Common Areas, as may be necessary in conjunction with the orderly development of
the Property described on Exhibit “A” or any adjacent property (including without limitation the
planning, construction, marketing, leasing, management and maintenance of improvements) for
use, enjoyment, access, construction and maintenance of public or private utilities and storm
drainage (whether subsurface or surface). No such easements may be located within the area
beneath any building located thereon. All Units shall be subject to easements for the
encroachment of initial improvements constructed on adjacent Units by the Declarant to the
extent that such initial improvements actually encroach including, but not limited to, such items
as overhanging eaves and walls. Declarant reserves access easements over all Units for
construction, either for that Unit or any adjacent property and easements for the installation of
public or private utilities and storm drainage (whether subsurface or surface).
13.8 Power of Attorney. Each Unit Owner, by acceptance of a deed to a Unit, hereby
irrevocably appoints the President of the Association, his, her or its attorney-in-fact, to execute,
deliver, acknowledge and record, for and in the name of such Unit Owner, such deeds of
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easement and other instruments as may be necessary or desirable, in the sole discretion of the
Board, to further establish or effectuate the foregoing easements. This power is for the benefit of
each and every Unit Owner, the Association, and the real estate to which it is applicable, runs
with the land, is coupled with an interest, and is irrevocable.
13.9 General. The easements and grants provided herein shall in no way affect any
other recorded grant or easement. The Association or Declarant may delegate any of its rights
hereunder to its affiliates and contractors.
ARTICLE XIV: Assessments
14.1 Types of Assessments. Each Unit Owner by acceptance of a deed to a Unit
(whether or not it shall be so expressed in such deed), is deemed to covenant and agree to pay to
the Association: (1) annual operating assessments, (2) special assessments for capital
improvements, (3) special individual Unit assessments, (4) working capital assessments, and (5)
such assessments as are required or permitted to be paid under this Declaration, all of such
assessments to be established and collected as hereinafter provided or as provided in this
Declaration.
14.2 Purpose of Assessments. The assessments levied by the Association shall be
used exclusively to promote the health, safety and welfare of Unit Owners and Occupants and
the best interests of the Property.
14.3 Elements-Apportionment: Due Dates.
(A)Annual Operating Assessments.
(1)At such time prior to the closing by Declarant of the sale of the
first Unit, and prior to the beginning of each fiscal year of the Association
thereafter, the Board shall estimate, and prorate among the Units on the basis of
the undivided interest of each Unit in the Common Areas, Common Expenses of
the Association consisting of the following:
(a)the estimated next fiscal year’s cost of the maintenance,
repair, and other services to be provided by the Association;
(b)the estimated next fiscal year’s costs for insurance and
bond premiums to be provided and paid for by the Association;
(c)the estimated next fiscal year’s costs for utility services not
separately metered;
(d)an amount deemed adequate by the Board to maintain a
reserve for the cost of unexpected repairs and replacements and usual and
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ordinary repair expenses, and for the funding of insurance deductibles in
the event of casualty loss;
(e)a replacement reserve fund for capital expenditures and
replacement and repair of the Common Areas and facilities, which funds
shall be used for the purpose and not for usual and ordinary repair
expenses of the Common Areas and facilities. This fund for capital
expenditures and replacement and repair of Common Areas and facilities
shall be maintained in a separate interest bearing account with a bank or
savings and loan association;
(f)the estimated next fiscal year’s costs for the operation,
management and administration of the Association, including, but not
limited to, fees for property management, fees for legal and accounting
services, costs of mailing, postage, supplies and materials for operating the
Association, and the salaries, wages, payroll charges and other costs to
perform these services, and any other costs constituting Common
Expenses not otherwise herein specifically excluded;
(g)the Association’s share of any expense of maintenance,
repair and replacement of the Master Common Properties included in the
Master Declaration; and
(h)the aggregate licensing fees charged by the owner of the
Parking Garage or the Declarant for storage unit sublicense assigned to
each Unit (which charge may at the option of the Declarant be billed
separately to each Unit Owner by the owner of the Parking Garage or
Declarant).
(2)The Board shall thereupon allocate to each Unit that Unit’s share
of all of these items, prorated in accordance with each respective Unit’s undivided
interest in the Common Areas, and thereby establish the annual operating
assessment for each separate Unit. For administrative convenience, any such
assessment may be rounded so that monthly installments will be in whole dollars.
(3)The annual operating assessment shall be payable in advance, in
equal monthly or quarterly installments as determined by the Board. The due
dates of any such installments shall be established by the Board, and, unless
otherwise provided, the Association shall collect on or before the first day of each
month from those who own the Unit an equal monthly pro-rata share of the annual
operating assessment for that Unit.
(4)If the amounts so collected are, at any time, insufficient to meet all
obligations for which those funds are to be used, the deficiency shall be assessed
by the Board among the Units on the same basis as heretofore set forth.
25
(5)If assessments collected during any fiscal year are in excess of the
funds necessary to meet the anticipated expenses for which the same have been
collected, the excess shall be retained by the Association, and shall in no event be
deemed profits nor available, except on dissolution of the Association, for
distribution to Unit Owners.
(6)Except for its responsibilities as a Unit Owner as provided in this
Declaration, the Declarant shall not have any responsibility for the maintenance,
repair or replacement of any part of the Common Areas.
(B)Special Assessments for Capital Improvements.
(1)In addition to the annual operating assessments, the Board may
levy, in any fiscal year, special assessments to construct, reconstruct or replace
capital improvements on the Common Areas to the extent reserves therefor are
insufficient, provided that new capital improvements not replacing existing
improvements shall not be constructed nor funds assessed therefor, if the cost
thereof in any fiscal year would exceed an amount equal to twenty-five percent
(25%) of that fiscal year’s budget, without the prior consent of Unit Owners
exercising no less than three-fourths (3/4) of the voting power of Unit Owners.
(2)Any such assessment shall be prorated among all Units in
proportion to their respective undivided interests in the Common Areas, and shall
become due and payable on such date or dates as the Board determines following
written notice to the Unit Owners.
(C)Special Individual Unit Assessments. The Board may levy an
assessment against an individual Unit, or Units, to reimburse the Association for those
costs incurred in connection with that Unit or Units properly chargeable by the terms
hereof to a particular Unit (such as, but not limited to, the cost of making repairs which
are or were the responsibility of a Unit Owner, the cost of insurance premiums separately
billed to a Unit Owner, and a Unit owner’s enforcement and arbitration charges). Any
such assessment shall become due and payable on such date as the Board determines, and
gives written notice to the Unit Owners subject thereto. Additionally, the Association
shall have the right to pay the real estate taxes and assessments attributable to the
Property in the event the same have not been paid, when due, and assess each Unit Owner
for his, her or its share of such real estate taxes and assessments as a special individual
Unit assessment. The share of those taxes and assessments attributable to a Unit shall be
computed by multiplying the total taxes and assessments for all of the Property by the
undivided interest in Common Areas attributable to that Unit. The calculation by the
Association of the Units’ shares of taxes and assessments shall be binding upon all Unit
Owners. Notwithstanding anything contained herein to the contrary, each Unit Owner
shall be subject to Section 19 of the Master Declaration.
(D)Working Capital Assessments. Each Unit Owner shall pay to
Association at the closing of the purchase of that Unit two months’ estimated Common
26
Expenses for each Unit for use as working capital. The initial contribution of working
capital shall be collected at the closing of each Unit, including the closing of sale of Units
occurring after the initial sale by Declarant, and such initial amounts paid shall not be
considered as advance payments of regular assessments.
(E)Capital Contributions. Each Unit Owner shall pay to the Association at
the closing of the purchase of that Unit a capital contribution of $3,000.00 per each Unit
for reserves to construct, reconstruct, replace or repair capital improvements on the
Common Areas. The capital contribution shall be collected at the closing of each Unit,
including the closings of sales of Units occurring after the additional sale by Declarant,
and such amounts paid shall not be considered as advanced payment of special
assessments.
14.4 Effective Date of Assessments. Any assessment created pursuant hereto shall be
effective, provided it is created as provided herein, on the date approved by the Board (with
respect to assessments described in Section 14.3 above), and upon the date that any installment
of such assessment becomes delinquent (with respect to late charges and interest), and/or the date
costs are incurred by the Association (with respect to costs of collection). Written notice of the
amount of the assessments established pursuant to Section 14.3 above shall be sent by the Board
to the Unit Owner subject thereto prior to the due date thereof, or the due date of the first
installment thereof, if to be paid in installments. Written notice mailed or delivered to a Unit
owner’s Unit shall constitute notice to that Unit Owner, unless the Unit Owner has delivered
written notice to the Board of a different address for such notices, in which event the mailing of
the same to that last designated address shall constitute notice to that Unit Owner. Failure of the
Board to deliver such notice in accordance with the foregoing shall not invalidate the assessment,
nor constitute a defense by any party to the collection of the assessment or enforcement of the
lien therefor. Notwithstanding anything to the contrary contained herein, Declarant shall be
excused from paying any of the assessments described in this Article XIV for any Units owned
by Declarant and offered for sale.
14.5 Effect of Nonpayment of Assessment; Remedies of the Association.
(A)If any assessment or any installment of any assessment is not paid when
due, the Board, at its option, without demand or notice, may (i) declare the entire unpaid
balance of the assessment immediately due and payable, (ii) charge interest on the entire
unpaid balance at the rate of interest of ten percent (10%) per annum, or at such rate as
the Board may from time to time determine, and (iii) charge a reasonable, uniform late
fee, as determined from time to time by the Board, as well as the cost of collection,
including, without limitation, reasonable attorneys’ fees to the extent not prohibited by
Indiana law. The interest, late fees, and costs of collection shall be considered to be part
of the “Assessment” for all purposes herein.
(B)Annual operating and both types of special assessments, together with
interest, late charges and costs, shall be a charge and a continuing lien in favor of the
Association upon the Unit against which each such assessment is made, from the
effective date thereof.
27
(C)At any time after an installment of an assessment levied pursuant hereto
remains unpaid after the same has become due and payable, a certificate of lien for all or
any part of the unpaid balance of that assessment, and interest and costs, (including
attorneys’ fees), may be filed with the Recorder of Hamilton County, Indiana, pursuant to
authorization given by the Board. The certificate shall contain a description of the Unit
against which the lien exists, the name or names of the record owner or owners thereof,
and the then current amount of the unpaid portion of the assessment. The failure to
include current interest, fees, and costs of collection, in such certificate shall not
invalidate the Association’s right to collect such interest, fees, and costs of collection
accruing before or after the filing of such certificate.
(D)Any Unit Owner who believes that an assessment chargeable to his, her or
its Unit (for which a certificate of lien has been filed by the Association) has been
improperly charged against that Unit, may bring an action in the Hamilton County,
Indiana, courts for the discharge of that lien. In any such action, if it is finally determined
that all or a portion of the assessment has been improperly charged to that Unit, the court
shall make such order as is just, which may provide for a discharge of record of all or a
portion of that lien.
(E)Each such assessment together with interest, fees, and costs of collection,
(including, without limitation, reasonable attorneys’ fees to the extent not prohibited by
Indiana law), shall also be the joint and several personal obligation of the Unit Owners
who owned the Unit at the time when the assessment fell due.
(F)Any grantee of an interest in a Unit shall be entitled to a statement from
the Board setting forth the amount of the unpaid installments of the assessments against
the grantor, and such grantee shall not be liable for, nor shall the Unit conveyed be
subject to a lien for, any unpaid assessments against the grantor in excess of the amount
set forth in such certificate.
(G)The Association, as authorized by the Board, may file a lien or liens to
secure payment of delinquent assessments, interest, late fees and costs, (including
attorneys’ fees), bring an action at law against the Unit Owner or owners personally
obligated to pay the same, and an action to foreclose a lien, or any one or more of these.
In any foreclosure action, the Unit Owner or owners affected shall be required to pay a
reasonable rental for that Unit during the pendency of such action, and the Association as
plaintiff in any such action shall be entitled to the appointment of receiver to collect such
rent, and to become a purchaser at the foreclosure sale, and acquire, hold, lease, mortgage
and convey the same. Suit to recover a money judgment for unpaid Common Expenses
shall be maintainable without foreclosing or having the lien securing the same. In any
such action, interest and costs of such action (including attorneys’ fees) shall be added to
the amount of any such assessment, to the extent not prohibited by the Indiana law.
28
(H)No owner may waive or otherwise escape liability for the assessments
provided for in this Declaration by non-use of the Common Areas, or any part thereof, or
by abandonment of his, her or its Unit.
14.6 Subordination of the Lien to First Mortgages. The lien of the assessments and
charges provided for herein shall be subject and subordinate to the tax liens on the Unit in favor
of any assessing Unit and special district, and the lien of any duly executed first mortgage on a
Unit recorded prior to the effective date of such assessment.
ARTICLE XV: Notice to Mortgagees
15.1 Notice Requests. Any holder, insurer or guarantor of a first mortgage, upon
written request to the Association (which request states the name and address of such holder,
insurer or guarantor and the Unit designation or address), shall be entitled to timely written
notice, (delivered by certified or registered mail, return receipt requested), by the Association of:
(1)any proposed addition or amendment of the Condominium Organizational
Documents effecting a change or addition in provisions establishing, providing for,
governing or regulating (a) voting, (b) assessments, assessment liens or subordination of
such liens, (c) reserves for maintenance, repair and replacement of Property, (d)
insurance or fidelity bonds, (e) rights to use of the Common Areas, (f) responsibility for
maintenance and repair, (g) expansion or contraction of the Condominium or the
addition, annexation or withdrawal of property to or from the Condominium, (h) the
boundaries or composition of any Unit, (i) the interests in the Common or Limited
Common Areas, (j) the convertibility of Units into Common Areas or of Common Areas
into Units, (k) the leasing of any Unit or part thereof, (l) the imposition of any right of
first refusal or similar restriction on the right of a Unit Owner to sell, transfer, or
otherwise convey his or her Unit, (m) the management of the Condominium, (n) the
restoration or repair of the Condominium, or (o) any provisions which are for the express
benefit of the holder, insurer or guarantor of any first mortgage on a Unit.
(2)any proposed termination of the Condominium as a Condominium regime;
(3)any condemnation, eminent domain proceeding, or casualty loss which
may affect a material portion of the Property or any Unit on which there is a first
mortgage held, insured or guaranteed by such Eligible Holder of the First Mortgage Lien;
(4)any decision by the Association not to restore or repair any portion of the
Property (after damage or destruction or partial condemnation), or not to restore or repair
such property in a manner specified by the Condominium Organizational Documents;
(5)any lapse, cancellation or material modification of any insurance policy or
fidelity bond maintained by the Association, (the Secretary of the Association shall
furnish each Unit Owner and each Eligible Holder of the First Mortgage Lien whose
29
interest may be affected, prompt notice of the obtaining, change or termination of any
insurance policy.);
(6)any decision by the Association to reconstruct the Condominium Building
where all the Building has been destroyed;
(7)any decision by the Association to construct significant new capital
improvements to replacing existing improvements;
(8)times and places of Unit Owners’ meetings;
(9)any default under the Condominium Organizational Documents which
gives rise to a cause of action against a Unit Owner whose Unit is subject to the mortgage
of such holder or insurer, where the default has not been cured in sixty (60) days; and
(10)any proposed action which requires the consent of a specified percentage
of Eligible Holders of the First Mortgage Liens.
No notice shall be required for any addition or amendment of the Condominium
Organizational Documents made for the purpose of correcting technical errors or for clarification
only, nor to any mortgagee who is not an Eligible Holder of the First Mortgage Lien.
ARTICLE XVI: Amendments
16.1 Power to Amend. Except as hereinafter provided, amendment of this
Declaration (or the other Condominium Organizational Documents) shall require (a) the consent
of Unit Owners exercising not less than three-fourths (3/4) of the voting power of Unit Owners
(including Declarant), and (b) notice to all Eligible Holders of the First Mortgage Liens on Units.
Notwithstanding the foregoing:
(A)The prior written consent of all Unit Owners shall be required for any
amendment effecting a change in:
(1)the boundaries of any Unit;
(2)the undivided interest in the Common Areas appertaining to a Unit
or the liability for Common Expenses appertaining thereto except as permitted by
the expansion provisions in this Declaration;
(3)the number of votes in the Association appertaining to any Unit
except as permitted by the expansion provisions in this Declaration;
(4)to terminate the Condominium or remove any interest from the
Property; or
30
(5)the fundamental purposes to which any Unit or the Common Areas
are restricted.
(B)Unless a majority of the Eligible Holders of the First Mortgage Lien
(based upon one vote for each mortgage owned), and three-fourths (3/4) of Unit Owners
have given their prior written approval (except in some cases a greater majority or
unanimous approval may be needed as provided herein or in the Act) the Association
shall not be entitled to (a) take any action, or (b) make any change, which materially
affects the operation of the Association, including the following:
(1)Voting rights;
(2)Assessments, assessment liens, or subordination or assessment
liens;
(3)Reserves for maintenance, repair and replacement of Common
Areas;
(4)Responsibility for maintenance and repairs;
(5)Reallocation of interest in the general or Limited Common Areas,
or rights to their use except as permitted by the expansion provisions in this
Declaration;
(6)Boundaries of any Units;
(7)Convertibility of Units into Common Areas or visa versa;
(8)Expansion or contraction of the Property, or the addition,
annexation or withdrawal of property to or from the Property except as permitted
by the expansion provisions in this Declaration;
(9)Insurance or fidelity bonds;
(10)Imposition of any restrictions on a Unit owner’s right to sell or
transfer his or her Unit;
(11)A decision by the Association to establish self-management when
professional management had existed previously;
(12)Restoration or repair of the Property (after a hazard damage or
partial condemnation) in a manner other than that specified in the documents;
(13)Any action to terminate the legal status of the Property after
substantial destruction or condemnation occurs;
31
(14)Provisions that specifically and explicitly expressly benefit
Eligible holders of a first mortgage lien, mortgage holders, insurers or guarantors;
(15)The prorata interest or obligations of any individual Unit for the
purpose of: (a) levying assessments or charges or allocating distributions or
hazard insurance proceeds or condemnation awards or (b) determining the prorata
share of the ownership of each Unit in the Common Areas, except as provided in
the expansion provisions;
(16)Dimensions of any Unit by partition or subdivision;
(17)By act or omission, seek to abandon, partition, subdivide,
encumber, sell or transfer the Common Areas; and
(18)Use hazard insurance proceeds for losses to any Condominium
Property (whether to Units or to Common Areas) for other than repair,
replacement or reconstruction of such Condominium Property, except as provided
by statute in case of substantial loss to the Units and/or Common Areas.
Notwithstanding the above, the granting of easements for public utilities or for
other public purposes consistent with the intended use of the Common Areas by the
Condominium Property shall not be deemed a transfer within the meaning of this clause.
(C)Eligible Holders of the First Mortgage Lien shall have the right to examine
the books and records of the Association or the Condominium project.
(D)The consent of Eligible Holders of the First Mortgage Liens on Units to
additions or amendments to the Condominium Organizational Documents shall not be
required except in those instances, previously described, in which the Eligible Holders of
the First Mortgage Liens on Units are entitled to written notice of such proposed
additional or amendment.
(E)Any Eligible Holders of the First Mortgage Liens who obtain title to a
Unit pursuant to the remedies provided in the mortgage or foreclosure of the mortgage
will not be liable for such Unit’s unpaid dues or charges which accrue prior to the
acquisition of title to such Unit by the Mortgagee.
(F)Notwithstanding anything contained herein to the contrary, this
Declaration may also be unilaterally amended by the Declarant upon the same terms and
conditions as the Declarant may amend the Master Declaration as set forth in Section
21(A)(ii) of the Master Declaration.
An Eligible Holder of the First Mortgage Lien on a Unit who receives a written request to
approve additions or amendments who does not deliver or post to the request party a negative
response with in thirty (30) days after it receives such written notice (provided that notice was
32
delivered by certified or registered mail, return receipt requested), shall be deemed to have
approved such request.
16.2 Method to Amend. An amendment to this Declaration (or the Plans or the By-
Laws), adopted with the consents hereinbefore provided, shall be executed with the same
formalities as this Declaration and shall contain their certification that the amendment was duly
adopted in accordance with the foregoing provisions. Any amendment adopted by the Declarant
or a duly empowered successor Declarant pursuant to authority granted it pursuant to the
Declaration shall be duly executed by it with the same formalities as to execution as this
Declaration and shall contain the certification of such signor or signors that such amendment is
made pursuant to authority vested in the Declarant or any duly empowered successor Declarant
by the Declaration. Any amendment duly adopted and executed in accordance with the
foregoing provisions shall be effective upon the filling of the same with the Recorder of
Hamilton County, Indiana.
16.3 Declarant’s Rights. In any event, Declarant reserves the right and power, and
each Unit Owner by acceptance of a deed to a Unit is deemed to and does give and grant to
Declarant a power of attorney, which right and power is coupled with an interest and runs with
the title to a Unit and is irrevocable (except by Declarant), without the consent, approval or
signature of each Unit Owner, to (i) amend the Declaration and all attachments, to the extent
necessary to conform to the requirements of the Indiana Department of Environmental
Management, the Indiana Utility Regulatory Commission, The Mortgage Corporation, Federal
National Mortgages Association, Governmental National Mortgages Association, Federal Home
Loan Mortgage Corporation, Mortgage Guaranty Insurance Corporation, Department of Housing
and Urban Development, the Federal Housing Administration, the Veterans Administration, or
any other similar agency or organization, (ii) induce any such agencies or entities to make,
purchase, sell, insure or guarantee first mortgages covering Unit ownership, (iii) correct
typographical errors, surveyor errors in descriptions or otherwise, or obvious factual errors or
omissions, the correction of which would not impair the interest of any Unit Owner or
mortgagee, (iv) bring this Declaration into compliance with the Act, (v) amend any Exhibits, (vi)
bring this Declaration into compliance with any governmental requests or requirements, (vii)
comply with or satisfy the requirements of any insurance underwriters, insurance rating bureaus
or organizations which perform (or may in the future perform) functions similar to those
performed by such agencies or entities, (viii) to subject additional property to these restrictions,
(ix) clarify, further define or limit any easement, or otherwise exercise any rights reserved
herein, (x) exercise any Declarant rights or development rights, (xi) change the name of the
property made subject to this Declaration; (xii) clarify, eliminate conflicts between, or change
the substance of one or more covenants, conditions, terms or provisions hereof; provided that any
such change (A) does not materially increase the obligation(s) of any Unit Owner under any
covenant, condition, term or provision without such Unit Owner’s consent or (B) is necessary to
comply with a bona fide governmental requirement, including applicable laws, ordinances,
regulations or orders of any municipality or court having jurisdiction, and further provided that if
there is an Unit Owner other than the Declarant, the Declaration shall not be amended to increase
the scope or the period of control of the Declarant; or (xii) amend this Declaration upon the same
terms and conditions as the Declarant may amend the Master Declaration as set forth in Section
21(A)(ii) of the Master Declaration. Each deed, mortgage, other evidence of obligation, or other
33
instrument affecting a Unit and the acceptance thereof shall be deemed to be a grant and
acknowledgment of, and consent to the reservation of, the power of Declarant to vote in favor of,
make, execute and record any of the foregoing amendments. The rights of Declarant under this
Section shall terminate at such time as Declarant no longer holds or controls title to a Unit.
ARTICLE XVII: RESERVED
ARTICLE XVIII: General Provisions
18.1 Covenants Running With the Land. The covenants, conditions, restrictions,
easements, reservations, liens and charges created hereunder or hereby shall run with and bind
the land, and each part thereof, and shall be binding upon and inure to the benefit of all parties
having any right, title or interest in or to all or any part of the Property, and the Association, and
their respective heirs, executors, administrators, successors and assigns.
18.2 Enforcement.
Each Unit Owner shall comply strictly with the provisions of this Declaration and with the
administrative Condominium Rules drafted pursuant hereto as the same may be lawfully
amended from time to time and with decisions adopted pursuant hereto, and administrative
Condominium Rules, and failure to comply shall be grounds for an action to recover sums due
for damages or injunctive relief or both, maintainable by the Declarant and/or the Association on
behalf of the Unit Owners, or in a proper case, by an aggrieved Unit Owner. Failure by
Declarant, the Association or by any Unit Owner to proceed with such enforcement shall in no
event be deemed a waiver of the right to enforce at a later date the original violation or a
subsequent violation, nor shall the doctrine of laches nor any statute of limitations bar the
enforcement of any such restriction, condition, covenant, reservation, easement, lien or change.
Further, the Declarant, the Association and each Unit Owner shall have rights of action against
each other for failure to comply with the provisions of the Condominium Organizational
Documents, rules and regulations, and applicable law, and with respect to decisions made
pursuant to authority granted thereunder, and the Association shall have the right to assess
reasonable charges against a Unit Owner who fails to comply with the same, including the right
to assess charges for the costs of enforcement and arbitration. Except with respect to default in
payment of assessments or any other “Exempt Claim” as defined in Indiana Code § 32-25-8.5-5,
prior to such enforcement the claimant and all other necessary parties must comply with the
claim and grievance procedures set forth in Chapter 8.5 of Article 25, Title 32 of the Indiana
Code, to the extent applicable, and such requirements shall equally apply to the Declarant, all
Unit Owners, the Association and the Board of Directors.
18.3 Severability. Invalidation of any one or more of these covenants, conditions,
restrictions or easements by judgment or court order shall in no way affect any other provisions,
which provisions shall remain in full force and effect. In the event any language of this
Declaration conflicts with mandatory provisions of the Act, the latter’s requirements shall prevail
and the conflicting language shall be deemed to be invalid and void, provided that such invalidity
34
shall in no way affect any other provisions of this Declaration, which provisions shall remain in
full force and effect. In the event any language in this Declaration conflicts with the Master
Declaration, the Master Declaration shall prevail and the conflicting language shall be deemed to
be invalid and void, provided that such invalidity shall in no way affect any other provisions of
this Declaration, which provisions shall remain in full force and effect.
18.4 Gender and Grammar. The singular wherever used herein shall be construed to
mean the plural when applicable, and the necessary grammatical changes required to make the
provisions hereof apply either to corporations, partnerships, limited liability companies, men or
women, shall in all cases be assumed as though in such case fully expressed.
18.5 Captions. The captions of the various provisions of this Declaration are not part
of the context hereof, but are merely labels to assist in locating the various provisions hereof.
18.6 Notices. Notices provided for in the Act, Declaration or By-Laws shall be in
writing and shall be addressed to the Association or the Board, as the case may be, at 10 West
Carmel Drive, Suite 100, Carmel, Indiana 46032, or to the Unit Owner at the address of his Unit,
or at such other address as hereinafter provided. The Association or Board may designate a
different address or addressees for notices to them, respectively, by giving written notice of such
change of address to all Unit Owners. Any Unit Owner may designate a different address for
notices to him by giving written notice to the Association. Notices addressed as above shall be
deemed delivered when mailed by United States registered or certified mail, or when delivered in
person with written acknowledgment of the receipt thereof.
18.7 Exculpation. Notwithstanding anything contained in this Declaration, if at any
time Declarant shall fail to perform or pay any covenant or obligation to be performed or paid
under this Declaration or any other agreement, and as a consequence thereof a Unit Owner or
third party claiming by, through or under a Unit Owner, shall recover a money judgment against
Declarant, such judgment shall be enforced against and satisfied out of only the proceeds of sale
produced upon execution of such judgment and levy thereon against Declarant’s interest in the
Property, the rents, issues or other income receivable from the Property after such judgment is
obtained, or the consideration received by Declarant from the sale of other disposition of the
Property after such judgment is obtained. The provisions of this Section are not intended to
relieve Declarant from the performance of any of its obligations hereunder, but rather to limit
Declarant’s liability as aforesaid.
18.9 Non-Liability of the Board, Officers and Declarant. Neither the Board,
Officers of the Association nor Declarant shall be personally liable to the Unit Owners for any
mistake of judgment or for any other acts or omissions of any nature whatsoever of such Board,
Officers or Declarant, except for any acts or omissions found by a court to constitute gross
negligence, fraud or criminal intent. The Unit Owners shall indemnify and hold harmless each
member of the Board, Officers and Declarant, and their respective members, heirs, executors,
administrators, successors and assigns in accordance with the provisions of the By-Laws.
[Signatures appear on the following page(s).]
35
IN WITNESS WHEREOF, Declarant has caused this Declaration of Condominiums for
1st on Main Condominiums to be executed on the day and the year first above written.
LOT ONE CONDO PARTNERS, LLC,
an Indiana limited liability company
By:
Michael J. Garvey, Manager
STATE OF INDIANA )
) SS
COUNTY OF HAMILTON )
Before me the undersigned, a Notary Public for the State of Indiana, personally appeared
Michael J. Garvey, to me known to be a Manager of Lot One Condo Partners, LLC, an Indiana
limited liability company, and to me known to be the person who executed the foregoing
instrument and acknowledged the same on behalf of such entity.
WITNESS my hand and Notarial Seal this day of June, 2024.
My Commission Expires:
Notary Public - Signature
My County of Residence:
Printed
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social
Security number in this document, unless required by law. David A. Adams
This instrument prepared by (and return recorded instrument to): David A. Adams, Esq., Krieg
DeVault LLP, 12800 North Meridian Street, Suite 300, Carmel, Indiana 46032, (317) 566-1110.
KD_13756191_11.doc
A-1
EXHIBIT “A”
[Description of the Project]
Lot 1, Lot 2, Lot 3, Lot 4 and Common Area 1 of the 1st on Main Secondary Plat, recorded on
June 1, 2023, in Plat Cabinet 6, Slide 401, as Instrument No. 2023019784.
B-1
EXHIBIT “B”
[Description of the Property]
Lot 2 of the 1st on Main Secondary Plat, recorded on June 1, 2023, in Plat Cabinet 6, Slide 401,
as Instrument No. 2023019784.
C-1
EXHIBIT “C”
Unit Numbers and Percentage of Interest Table for Condominium Units
UNIT
NUMBER
PERCENTAGE
OF
INTEREST
ASSIGNED
CONDOMINIUM
PARKING SPACES
ASSIGNED
STORAGE
UNITS
C-1 12.5%A-1 B-1 Unit 1
C-2 12.5%C-2 D-2 Unit 2
C-3 12.5%E-3 H-3 Unit 3
C-4 12.5%F-4 G-4 Unit 4
C-5 12.5%K-5 L-5 Unit 5
C-6 12.5%I-6 J-6 Unit 6
C-7 12.5%M-7 P-7 Unit 7
C-8 12.5%N-8 O-8 Unit 8
TOTAL:100%
D-1
EXHIBIT “D”
CODE OF BYLAWS
OF 1ST ON MAIN CONDOMINIUMS AND
LOT ONE CONDO ASSOCIATION, INC.
ARTICLE I
Identification and Applicability
Section 1.01 Identification and Adoption. These Bylaws are adopted simultaneously
with the execution of a certain Condominium Declaration for 1st on Main Condominiums (the
“Declaration”) creating 1st on Main Condominiums, to which these Bylaws are attached and
made a part. The Declaration is incorporated by this reference, and all of the covenants, rights,
restrictions and liabilities therein contained shall apply to and govern the interpretation of these
Bylaws. The capitalized terms used herein and not elsewhere defined shall have the same
meanings ascribed to them in the Declaration. The provisions of these Bylaws shall apply to the
Property and the administration and conduct of the affairs of the Condominiums and the
Association.
Section 1.02 Name. The name of the Association (hereinafter referred to as the
“Association”) is “Lot One Condo Association, Inc.”.
Section 1.03 Registered Office and Registered Agent. The post-office address of the
registered office of the Association is 135 North Pennsylvania Street, Suite 1610, Indianapolis,
IN, 46204, and the name and address of the Registered Agent in charge of such office is
Corporation Service Company.
Section 1.04 Individual Application. All of the Owners, future Owners, tenants, future
tenants, or their guests and invitees, or any other person that might use or occupy a 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.
ARTICLE II
Meetings of the Association
Section 2.01 Purpose of Meetings. At least annually, and at such other times as may be
necessary, the meetings of the Association shall be held for the purpose of electing the Board of
Directors, approving the annual budget, providing for the collection of Common Expenses, and
for such other purposes as may be required by the Declaration, these Bylaws or the Act.
Section 2.02 Annual Meetings. The first annual meeting of the Association shall be
held no later than: (a) one hundred twenty (120) days after one hundred percent (100%) of the
Units have been conveyed to Owners; or (b) seven (7) years after the first Unit is conveyed to an
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Owner, whichever is earlier, and provided further that Declarant may, at any time after
recording, call for the first annual meeting of the Association, and pursuant to such meeting, the
Association shall assume the duties and responsibilities ascribed to it by the Declaration and
these Bylaws. The date the Association assumes such duties shall be referred to as the
“Applicable Date.” Subsequent regular annual meetings of the Association shall be held on a
date established by the Board pursuant to notice provided in accordance with these Bylaws,
which date shall not be more than six (6) months after the close of each fiscal year of the
Association. The Board of Directors may change the date for the annual meeting, but shall give
written notice to the Owners of any such change in date in accordance with Section 2.05 below.
At the annual meeting, the Owners shall elect the Board of Directors of the Association in
accordance with the provisions of these Bylaws and transact such other business as may properly
come before the meeting.
Section 2.03 Special Meetings. A special meeting of the members of the Association
may be called by resolution of the Board of Directors or upon a written petition of Owners who
have not less than fifty percent (50%) of the Percentage Vote. The resolution or petition shall be
presented to the President or Secretary of the Association 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 petition or resolution. As used herein, “Percentage Vote” shall mean the percentage of the
total vote accruing to all of the Units, which is appurtenant to each particular Unit and accrues to
the Owner of such Unit. 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 Unit. The term “Percentage Interest” means
the percentage of undivided interest in the fee simple title to the Common Areas and Limited
Common Areas appertaining to each Unit as specifically expressed in the Declaration, based
upon the number of Units owned in fee simple by an Owner divided by the number of Units in
the Building (i.e., 12.5% per Unit). In the event of multiple owners of a Unit, only such person
designated by all owners of the Unit shall be entitled to vote.
Section 2.04 Place of Meeting. All annual or special meetings of the Members of the
Association shall be held at any suitable place in Hamilton County, Indiana, as may be
designated by the Board of Directors.
Section 2.05 Notice of Annual and Special Meetings. Written notice stating the place,
day and hour of any meeting and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be given by the Secretary of the Association to each member
entitled to vote at the meeting at least fifteen (15) days but not more than sixty (60) days before
the date of the meeting. The notice shall be mailed or delivered to the Owners at the address of
their respective Units and to one other address that each Owner may supply on a signed address
card filed with the Secretary of the Board. A copy of each such written notice shall also be
delivered or mailed simultaneously by the Secretary of the Association to each mortgagee (a)
who requests in writing that such notices be delivered to it, and (b) who has furnished the
Association 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. If any officer of
the Association has received an appropriate call of a special meeting of the members and does
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not give notice of such meeting within thirty (30) days after receipt thereof or if the Board or any
Member(s) calling a special meeting of the Members have reason to believe that the officer of
the Association receiving such call has not appropriately given notice of such meeting within
thirty (30) days after receipt thereof, then such Board or Member(s) calling such meeting may
give notice of such meeting to the Members of the Association in the manner and within the time
limits set forth above. Any such notice which is mailed by an officer of the Association or by an
authorized representative of the Board of Directors for or on behalf of the Board of Directors to a
Member shall be effective when mailed.
Section 2.06 Voting at Meetings.
(a)Number of Votes. On each matter coming before the meeting as to which
an Owner is entitled to Vote, such Owner shall be entitled to cast a vote equal to the Percentage
Interest applicable to such Owner's Unit.
(b)Multiple Owners. Where the Owner of a Unit constitutes or consists of
more than one person, or is a partnership, there shall be only one voting representative entitled to
all of the Percentage Vote allocable to that Unit. At the time of acquisition of title to a Unit by
more than one person or a partnership, those persons constituting such Owner or the partners
shall file with the Secretary of the Association an irrevocable proxy appointing one of such
person or partners as the voting representative for such Unit, which shall remain in effect until
all of such parties constituting such multiple Owner or the partners in such partnership designate
another voting representative in writing, or such appointed representative relinquishes such
appointment in writing, becomes incompetent, dies, or such appointment is otherwise rescinded
by order of a court of competent jurisdiction or the Owner no longer owns such 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 shall not constitute a
permanent relinquishment of his right to act as voting representative for the Unit.
(c)Voting by Corporation or Trust. Where a corporation or trust is an Owner
or is otherwise entitled to vote, the trustee may cast the vote on behalf of the trust and the agent
or other representative of the corporation duly empowered by the Board of Directors of such
corporation may cast the vote to which the corporation is entitled. The secretary of the
corporation or a trustee of the trust 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 of the
Association stating who is authorized to vote on behalf of said corporation or trust.
(d)Proxies. 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 of the Association prior to the
commencement of the meeting.
(e)Pledgees. If the vote of an Owner or Owners has been pledged by
mortgage, security agreement, conditional assignment, or other instrument, an executed copy of
which has been filed with the Secretary, only the pledgee shall be entitled to cast the vote of such
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Owner or Owners upon those matters upon which the Owner or Owners vote is so pledged.
(f)Quorum. Except where otherwise expressly provided in the Declaration,
these Bylaws or the Act, the Owners representing fifty percent (50%) of the Percentage Vote
shall constitute a quorum at all meetings.
(g)Conduct of Annual Meeting. The President of the Board of Directors
shall act as Chairman of all annual meetings of the Association if the President 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.
(ii)Treasurer's Report. The Treasurer shall report to the Owners
concerning the financial condition of the Association and answer relevant questions of
the Owners concerning the Common Expenses and financial report for the prior year and
the proposed budget for the current year.
(iii)Budget. The proposed budget for the ensuing fiscal year shall be
presented to the Owners for approval or amendment unless otherwise changed by the
Board of Directors.
(iv)Election of Board of Directors. After the Applicable Date,
nominations for the Board of Directors may be made by any Owner from those persons
eligible to serve. Such nominations must be in writing and presented to the Secretary 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 contain the name of each person
nominated to serve as a Board member. Each Owner may cast the total number of votes
to which he is entitled for as many nominees as are to be elected, however, he shall not
be entitled to cumulate his votes. Those persons receiving the highest number of votes
shall be elected. Each voting Owner shall sign his ballot. The Board may provide a
method to assure secrecy of the ballot. Prior to the Applicable Date, the nomination and
election of the Board shall be governed by the provisions of Article III hereof.
(v)Other Business. Other business requiring a vote may be brought
before the meeting only upon a written request submitted to the Secretary of the
Association 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 by a majority of the
Percentage Vote. Any other general business matters of discussion that do not require a
vote may be properly brought before the meeting by any Owner in good standing.
(vi)Adjournment. Except as otherwise provided herein, any meeting of
members, including both annual and special meetings and any adjournments thereof, may
be adjourned to a later date without notice (other than announcement at the meeting) of
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the date, place and time for the new meeting even though a quorum is not present. A
meeting may not be adjourned to a date later than one hundred twenty (120) days after
the original meeting date.
(h)Conduct of Special Meetings. The President of the Board of Directors
shall act as Chairman of any special meetings of the Association if he is present. The Chairman
shall call the meeting to order at the duly designated time and the only business to be discussed
and acted upon at such meeting shall be consideration of the matters for which such meeting was
called, as set forth in the notice of such special meeting.
ARTICLE III
Board of Directors
Section 3.01 Management; Board Composition. The affairs of the Condominium
and the Association shall be governed and managed by the Board of Directors (collectively, the
“Board” or “Board of Directors” and each individually, a “Director”). Prior to the Applicable
Date, the Board shall be composed of three (3) individuals selected by the Declarant, as
described in Section 3.02 below; after the Applicable Date, the Board shall be composed of three
(3) individuals. The total number of Directors shall at no time exceed three (3). Following the
Applicable Date, no person shall be eligible to serve as a Director unless such person is, or is
deemed in accordance with the Declaration to be, an Owner, excluding a person appointed by
Declarant as provided in Section 3.02. At such time as one hundred percent (100%) of the Units
have been conveyed by Declarant to other Owners, a special meeting of all Owners shall be
called by the Board to elect not less than two (2) Director(s) to replace appointed member(s) of
the Initial Board.
Section 3.02 Initial Board of Directors. The initial Board of Directors shall be Michael J.
Jones, Michael J. Garvey, and Jonathan L. Goodburn (herein referred to as the “Initial Board”),
all of whom have been or shall be appointed by Declarant. Declarant reserves the right to remove
or replace any of such persons as Directors prior to the first annual or special meeting of the
Association. Notwithstanding anything to the contrary contained in, or any other provisions of
these Bylaws or the Declaration or the Act, the Initial Board, subject to the removal and
replacement rights of Declarant, shall hold office until a special meeting of the Association is
held for the election of Directors, which shall be held not later than (i) four (4) months after one
hundred percent (100%) of the Units have been conveyed by Declarant to other Owners, or (ii)
seven (7) years after the first Unit is conveyed by Declarant to an Owner, whichever is earlier. In
the event of any vacancy or vacancies occurring in the Initial Board for any reason or cause
whatsoever, prior to the Applicable Date, every such vacancy shall be filled by a person
appointed by Declarant, who shall thereafter be deemed a member of the Initial Board.
Section 3.03 Additional Qualifications. Where an Owner consists of more than one
person or is a partnership, personal representative of an estate, association, trust or other legal
entity, then one of the persons constituting the multiple Owners, or a partner or an officer or
trustee or personal representative of an estate shall be eligible to serve on the Board of Directors,
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except that no single Unit may be represented on the Board of Directors by more than one person
at a time.
Section 3.04 Term of Office; Vacancies. Subject to the provisions of Section 3.02, the
Board of Directors shall be elected at each annual meeting of the Association. The Initial Board
of Directors shall be deemed to be elected as the Board of Directors for successive annual terms
until the first annual meeting following the Applicable Date. Directors shall hold office for a
term of one (1) year or until their successors have been duly elected and qualified. Subject to the
provisions of Section 3.02, any vacancy or vacancies occurring in the Board shall be filled by a
vote of a majority of the remaining Directors or by vote of the Owners if a Director is removed
in accordance with Section 3.05. A Director filling a vacancy shall serve until the next annual
meeting of the Association or until his successor has been duly elected and qualified.
Section 3.05 Removal of Directors. A Director or Directors, except the members of the
Initial Board, may be removed with or without cause by vote of a three-fourths (3/4) of the
Percentage Vote at a special meeting of the Owners duly called and constituted for such purpose.
In such case, the Director's successor shall be elected at the same meeting from eligible Owners
nominated at the meeting. A Director so elected shall serve until the next annual meeting of the
Owners or until the Director's successor is duly elected and qualified.
Section 3.06 Duties of the Board of Directors. The Board of Directors shall provide for
the administration of, the maintenance, upkeep and replacement of the Common Areas and
Limited Common Areas (unless the same are otherwise the responsibility or duty of Owners of
Units), the establishment of a budget, and the collection and disbursement of the Common
Expenses. After the recording of the Declaration, the Board may, on behalf of the Association,
employ a property management agent (the “Managing Agent”) upon such terms as the Board
shall find, in its discretion, reasonable and customary. The Board shall be entitled to contract
with a Managing Agent that is an affiliate of Declarant, provided that contract complies with the
requirements of Section 3.16. The Managing Agent shall assist the Board in carrying out its
duties, which include, but are not limited to:
(a)protection, surveillance, maintenance and replacement of the Common
Areas and Limited Common Areas, unless the same are otherwise the responsibility or duty of
Owners of Units; provided, however, that this duty shall not include or be deemed or interpreted
as a requirement that the Association, the Board or any Managing Agent may provide any on-
site or roving guards, security service or security system for protection or surveillance;
(b)procuring of utilities used in connection with the operation of the
Condominiums;
(c)arranging for removal of garbage and waste, and snow removal from the
Common Areas and Limited Common Areas, as applicable;
(d)painting, decorating, furnishing, maintenance and upkeep of the Common
Areas and, where applicable, the Limited Common Areas;
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(e) assessment and collection from the Owners of the Owner's pro rata share of
the Common Expenses, including (i) determination of whether improvements are to Common or
Limited Common Areas, pursuant to the terms and conditions of the Declaration and Bylaws; (ii)
determination of whether expenses incurred with respect to the same are allocable to all or fewer
than all of the Owners; and (iii) the allocation of all expenses among the respective Units;
(f)preparation of the proposed annual budget;
(g)keeping a current, accurate and detailed record of receipts and
expenditures affecting the Property, specifying and itemizing the Common Expenses; all records
and vouchers shall be available for examination by an Owner at any time during normal business
hours; payment vouchers for all expenditures shall, prior to payment, be approved by a member
of the Board or such other person (which may include the Managing Agent) to whom the Board
may delegate such duty and authority;
(h) procuring and maintaining for the benefit of the Owners, the Association and
the Board the insurance coverage required under the Declaration and such other insurance
coverage as the Board, in its sole discretion, may deem necessary or advisable;
(i)interpreting, applying and enforcing all restrictive covenants, rules and
regulations established by the Declaration, Bylaws or Board with respect to the Owners or users
of Units within or relating to the use, maintenance or repair of the Property;
(j)enforcing the lien procedures against any property for which
assessments are not paid within thirty (30) days, or such other period of time as the Board shall
from time to time determine, after due date, or to bring an action at law against the Owner
personally obligated to pay the same;
(k)making available to Owners and mortgagees current copies of the
Declaration, Bylaws and rules and regulations governing the Condominium (the
“Organizational Documents”) and any other books, records and financial statements of the
Association; the Board shall also make available to prospective purchasers of Units current
copies of the Organizational Documents and the most recent annual financial statement if such
statement has been prepared; “available” means available for inspection upon request during
normal business hours or under other reasonable circumstances. A copy shall be provided
initially for the Owners of each Unit and additional copies shall be made available for purchase
by Members at reasonable costs. Upon written request by the United States Department of
Housing and Urban Development, the Board may, in the Board's discretion, also cause to be
prepared and furnished, within a reasonable time, an audited financial statement for the
Association for the immediately preceding fiscal year;
(l)taking such action or performing such tasks as are, in the Board's
discretion, beneficial to the Owners.
Section 3.07 Powers of the Board of Directors. The Board of Directors shall have such
full powers as are provided in the Act and are reasonable and necessary to accomplish the
performance of their duties. These powers include, but are not limited to, the power:
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(a)to employ a Managing Agent to assist the Board in performing its duties;
(b)to purchase, lease or otherwise obtain for the benefit of the Owners or for
the Association to perform its duties, such equipment, materials, labor and services as may be
necessary in the judgment of the Board;
(c)to employ legal counsel, architects, contractors, accountants, and others as
in the judgment of the Board may be necessary or desirable in connection with the business and
affairs of the Condominium and the Association;
(d)to employ, designate, discharge and remove such personnel as in the
judgment of the Board may be necessary for the maintenance, upkeep, repair, and replacement of
the Common Areas and, where applicable, the Limited Common Areas;
(e)to procure and maintain insurance as required in the Declaration;
(f)to include the costs of all of the above and foregoing as Common
Expenses and to pay all of such costs therefrom;
(g)to open and maintain a bank account or accounts in the name of the
Association;
(h)to determine, adopt, revise, amend and alter from time to time, rules and
regulations with respect to use, occupancy, operation, and enjoyment of the Property as the
Board, in its discretion, deems necessary or advisable: provided, however, that copies of any
such additional rules and regulations so adopted by the Board shall be promptly delivered 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, the Act or these Bylaws;
(i)to suspend the voting rights of a member during any period in which
such member shall be in default in the payment of any assessment levied by the Association;
such rights may also be suspended after notice and hearing for a period not to exceed one
hundred twenty (120) days for infraction of published rules and regulations;
(j)to grant easements, rights-of-way and other rights over the Common
Areas; and
(k)to do such other acts and things as are in the best interests of a majority
of the Owners and which are not contrary to law, or to the Declaration or Bylaws.
Section 3.08 Limitation on Board Action. After the Applicable Date, the authority of the
Board of Directors to enter into contracts shall be limited to contracts involving a total
expenditure of less than fifty thousand dollars ($50,000.00) without obtaining the prior approval
of a majority of the Percentage Vote, except that in the following cases such approval shall not
be necessary:
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(a)contracts for replacing or restoring portions of the Common Areas or
Limited Areas damaged or destroyed by fire or other casualty where the cost thereof is payable
out of insurance proceeds actually received;
(b)proposed contracts and proposed expenditures expressly set forth in the
proposed annual budget as approved by the Owners at the annual meeting; and
(c)contracts for repair, replacement or maintenance of improvements on the
Property or affecting any property constituting all or a portion of the Property where delay in the
said repair, replacement or maintenance would increase substantially the costs and expense of
the same and/or would subject the Property or the persons thereon to substantial risk of injury or
damage.
Section 3.09 Compensation. No Director shall receive any compensation for the
Director's services as such except to the extent as may be expressly authorized by two-thirds (⅔)
of the Percentage Vote of the Owners. However, any Director may at any time be reimbursed for
the Director's actual expenses incurred in the performance of the Director's duties, and such
reimbursement shall not require express approval of all the Owners or any portion thereof, but
shall require majority approval of the Board. The Managing Agent shall be entitled to reasonable
compensation for its services, the cost of which shall be a Common Expense.
Section 3.10 Meetings and Action of the Board. The Board shall meet each year within
forty-five (45) days following the date of the annual meeting of the Association, which time and
place shall be fixed at the annual meeting, for the purpose of organization, election of officers
and consideration of any other business that may properly be brought before the meeting, and no
notice shall be necessary to any newly elected Directors in order legally to constitute such
meeting if a quorum is present.
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. The Secretary shall give notice
of regular meeting of the Board to each Director personally or by United States mail at least ten
(10) days prior to the date of such meeting. There shall be at least two (2) regular meetings of the
Directors annually.
Special meetings of the Board may be called by the President or any two (2) members of
the Board. 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 five (5) days prior to the date of
such special meeting, give notice to the Board members. The Notice of the meeting shall contain
a statement of the purpose for which the meeting is called.
Section 3.11 Waiver of Notice. Before any meeting of the Board, any Director may, in
writing, waive notice of such meeting and such waiver shall be deemed equivalent to the giving
of such notice. The presence of any Director at a meeting or the Director's subsequent written
consent to the actions taken, shall, as to such Director, constitute a waiver of notice of the time,
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place and purpose thereof. If all Directors are present at any meeting of the Board, no notice
shall be required and any business may be transacted at such meeting.
Section 3.12 Action Without a Meeting. Any action required or permitted to be taken at
any meeting of the Board may be taken without a meeting if a consent in writing setting forth
such action so taken is signed by all Directors and such written consent is filed with the minutes
of the proceedings of the Board.
Section 3.13 Quorum. At all meetings of the Board, a majority of the Directors shall
constitute a quorum for the transaction of business and 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.
Section 3.14 Non-Liability of Directors. The Directors shall not be liable to the Owners
or any other persons for any error or mistake of judgment exercised in carrying out their duties
and responsibilities as Directors, except for their own individual willful misconduct, bad faith or
gross negligence. The Association shall indemnify and hold harmless and defend each of the
Directors against any and all liability to any person, firm or Association arising out of contracts
made by the Board on behalf of the Condominium or the Association, unless any such contract
shall have been made in bad faith or contrary to the provisions of the Declaration or Bylaws. It is
intended that the Directors shall have no personal liability with respect to any contract made by
them on behalf of the Condominium or the Association and that in all matters the Board is acting
for and on behalf of the Owners as their agent. The liability of any Owner arising out of any
contract made by the Board or out of the aforesaid indemnity in favor of the Directors shall be
limited to such percentage of the total liability or obligation thereunder as is equal to his
Percentage Interest. Every contract made by the Board or the Managing Agent on behalf of the
Condominium or the Association shall provide that the Board of Directors and the Managing
Agent, as the case may be, are acting, as agent for the Owners and shall have no personal
liability thereunder, except in their capacity as Owners (if applicable) and then only to the extent
of their Percentage Interest.
Section 3.15 Additional Indemnity of Directors. The Association shall indemnify, hold
harmless, and defend any person, his heirs, assigns, and legal representatives, made a party to
any action, suit or proceeding by reason of the fact that he is or was a Director of the
Association, against the reasonable expenses, including attorneys' fees, actually and necessarily
incurred by him in connection with the defense of such action, suit or proceeding, or in
connection with any appeal therein, except as otherwise specifically provided herein in relation
to matters as to which it shall be adjudged in such action, suit or proceeding that such Director is
liable for gross negligence or misconduct in the performance of his duties. The Association shall
also reimburse to any such Director the reasonable costs of settlement or of judgment rendered in
any action, suit or proceeding, if it shall be found by a majority of the Percentage Vote that such
Director was not guilty of gross negligence or misconduct. In making such findings and
notwithstanding the adjudication in any action, suit or proceeding against a Director, no Director
shall be considered or deemed to be guilty of or liable for negligence or misconduct in the
performance of his duties where, acting in good faith, such Director relied on the books and
records of the Association or statements or advise made by or prepared by the Managing Agent
of or any officer or employee, or any accountant, attorney or other person, firm or Association
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employed by the Association to render advice or service unless such Director had actual
knowledge of the falsity or incorrectness of such statements; nor shall a Director be deemed
guilty of or liable for negligence or misconduct by virtue of the fact that he failed or neglected to
attend a meeting or meetings of the Board of Directors.
Section 3.16 Transactions Involving Affiliates. After the Applicable Date, no contract or
other transaction between the Association and one or more of its Directors, or between the
Association and any Person (including Declarant and/or shareholders or members of Declarant)
in which one or more of the Directors are directors, officers, partners, or employees or are
pecuniarily or are otherwise interested, directly or indirectly, shall be void or voidable because
such Director or Directors are present at the meeting of the Board that authorizes or approves the
contract or transaction, or because his or their votes are counted for such purpose if:
(a)the contract or transaction is between the Association and Declarant or
any affiliate of Declarant and entered into prior to the Applicable Date; or
(b)the fact of the affiliation or interest is disclosed or known to the Board or a
majority thereof or noted in the minutes, and the Board authorizes, approves, or ratifies such
contract or transaction in good faith by a vote sufficient for the purpose; or
(c)the fact of the affiliation or interest is disclosed or known to the Owners,
or a majority thereof, and they approve or ratify the contract or transaction in good faith by a
vote sufficient for the purpose; or
(d)the contract or transaction is commercially reasonable to the Association
at the time it is authorized, ratified, approved or executed. Affiliated or interested Directors may
be counted in determining the presence of the quorum at any meeting of the Board that
authorizes, approves or ratifies any contract or transaction, but, following the Applicable Date,
may not vote thereat to authorize any contract or transaction in which they are so affiliated or so
interested.
Section 3.17 Bonds. The Board of Directors may require the Managing Agent, Treasurer
and such other officers or employees of the Association as the Board deems necessary to provide
surety bonds, indemnifying the Association against larceny, theft, embezzlement, forgery,
misappropriation, wrongful obstruction, willful misapplication, and other acts of fraud or
dishonesty, in such sums and with such sureties as may be approved by the Board of Directors
and any such bond shall specifically include protection for any insurance proceeds received for
any reason by the Board. The expense of any such bonds shall be a Common Expense.
ARTICLE IV
Officers
Section 4.01 Officers of the Association. The principal officers of the Board and the
Association shall be the President, Secretary, and Treasurer, and such other officers as the Board
may from time to time by resolution create, all of whom shall be elected by the Board. The
Board may appoint an Assistant Secretary and an Assistant Treasurer and such other officer as in
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their judgment may be necessary. Any two or more offices may be held by the same person,
except that the duties of the President shall be exclusive, and the President shall not hold any
other office.
Section 4.02 Election and Removal of Officers. The Officers of the Board and the
Association shall be elected annually by the Board at the initial meeting of each new Board.
Upon an affirmative vote of a majority of all members of the Board, any officer may be removed
either with or without cause and his successor elected at any regular meeting of the Board or at
any special meeting of the Board called for such purpose.
Section 4.03 President. The President shall be elected from among the Directors and
shall be the chief executive officer of the Board and Association. The President shall preside at
all meetings of the Association and of the Board, shall have and discharge all the general powers
and duties usually vested in the office of president or chief executive officer of an association or
a stock 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 Association and to perform such other duties as the Board may from time to time
prescribe.
Section 4.04 Secretary. The Secretary shall be elected from among the Directors. The
Secretary shall attend all meetings of the Association and of the Board and shall keep or cause to
be kept a true and complete record of the proceedings of such meetings, shall perform all other
duties incident to the office of the Secretary, and shall perform such other duties as from time to
time may be prescribed by the Board. The Secretary shall specifically see that all notices of the
Association or the Board are duly given, mailed or delivered, in accordance with the provisions
of these Bylaws.
Section 4.05 Treasurer. The Board 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 Association and who shall perform such other duties incident to the
office of Treasurer. The Treasurer shall be the legal custodian of all monies, notes, securities and
other valuables which may from time to time come into possession of the Association. The
Treasurer shall immediately deposit all funds of the Association coming into his hands in some
reliable bank or other depository to be designated by the Board and shall keep such bank account
or accounts in the name of the Association. The Treasurer may permit and delegate to the
Managing Agent the authority and responsibility to handle an account for monies and other
assets of the Association to the extent approved by resolution of the Board.
Section 4.06 Assistant Officers. The Board of Directors may, from time to time,
designate and elect from among the Owners an Assistant Secretary and 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.
Section 4.07 Special Appointments. The Board may elect such officers as the affairs of
the Association may require, each of whom shall hold office for such period, have such
authority, and perform such duties as the Board may, from time to time, determine.
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Section 4.08 Committees. The Board may appoint committees to assist m the
administration and affairs of the Association and Board.
ARTICLE V
Assessments; Repairs
Section 5.01 Annual Budget & Assessments. The annual budget and assessments for the
Association shall be determined in accordance with the Declaration.
Section 5.02 Maintenance and Repairs. Every Owner shall promptly perform all
maintenance and repairs within the Owner's 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 Unit and Limited Common Areas exclusive
to his Unit, and all equipment serving the same. 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 Unit only and are located within exterior walls of the Unit 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 Units; all partitions and interior walls, ceilings and floors; appliances, to include garbage
disposals, dishwashers, stoves, ranges and refrigerators, telephones, air conditioning and heating
equipment (whether located wholly or partially inside or outside the Unit), doors, screens, and
windows (including exterior and interior of all glass and screen surfaces), lamps, and interior and
exterior grouting and/or caulking and all other accessories appurtenant to the Unit or belonging
to the Owner thereof.
Notwithstanding the foregoing, if, due to the willful, intentional or negligent acts or
omissions of an Owner or a member of his family, or of a guest, tenant or other occupant or
visitor of such Owner, damage shall be caused to the Common Areas or to a Unit or Limited
Common Area owned by or reserved for the use of others, or if maintenance, repairs or
replacements shall be required thereby which would otherwise be a Common Expense, then such
Owner shall pay for such damage and such maintenance, repairs and replacements, as may be
determined by the Association, unless such loss is covered by the Association's insurance with
such policy having a waiver of subrogation clause. Maintenance, repairs and replacements to the
Common Areas or the Units or any Limited Common Areas shall be subject to the
Condominium Rules.
To the extent that equipment, facilities and fixtures within any Unit shall be connected to
similar equipment, facilities or fixtures affecting or serving other Units or any Common Areas or
Limited Common Areas, then the use thereof by the Owner of such Unit shall be subject to the
Condominium Rules. The authorized representatives of the Association or Board of Directors, or
the Managing Agent for the Association, shall be entitled to reasonable access to any Unit as
may be required in connection with maintenance, repairs or replacements of or to the Common
Areas or Limited Common Areas or any parts thereof, or any equipment, facilities or fixtures
affecting or serving other Units or any Common Areas or Limited Common Areas.
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ARTICLE VI
Restrictions, Entry and Rules and Regulations
Section 6.01 Restrictions on Use. The use and enjoyment of the Units, Common Areas,
Limited Common Areas and the Property shall be subject to those Condominium Rules attached
to the Declaration as Exhibit “E” and made a part thereof. These Bylaws, including all
restrictions set forth herein and the Condominium Rules may be enforced by injunctive relief,
specific performance or the imposition of reasonable monetary fines and suspension of use and
voting privileges. These powers, however, shall not be construed as limiting any other legal
means of enforcing the use restrictions or rules and regulations of the Association. Any fines so
imposed shall be considered an assessment against the Unit and may be collected in the manner
provide for collection of other assessments. In addition to the foregoing, if any person shall fail
to maintain its Unit in a reasonably safe and sanitary condition, the Association may, at the
Board's option, and after thirty (30) days written notice to the Owner, perform any clean-up,
repair and/or replacement to cure any such condition, and all costs and expenses reasonable
incurred by the Association, plus interest thereof at the rate of eighteen percent (18%) per
annum, shall be reimbursed to the Association by such Owner within thirty (30) days after the
work has been completed. The Association may levy a special assessment against any such Unit,
which may be enforced in accordance with these Bylaws.
Section 6.02 Compliance with Covenants, Conditions and Restrictions. Every Owner,
mortgagee, lessee or other occupant of a Unit shall comply strictly with the covenants,
conditions and restrictions set forth in the Declaration, with the Bylaws and with the
Condominium Rules in relation to the use and operation of the Property. A violation committed
by any persons residing in, occupying or visiting a Unit at the behest or with the implied or
express permission of the Owner or any other occupant of the Unit, or committed by any agent,
employee, business invitee, or contractor of the Owner or of any person occupying a Unit shall
be attributed to that 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 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 any
person entitled to occupy a Unit who refuses to comply or threatens to refuse to comply with any
provisions of the Declaration, the Bylaws, the Condominium Rules, or any other document
establishing ownership or control over any part of the Property. One or more Owners may bring
a class action on behalf of all Owners.
After giving not less than thirty (30) 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 One Hundred Dollars
($100) for the second violation attributable to a particular owner in a calendar year against the
Owner and the Unit in which such Owner holds an ownership interest. For a third violation
attributable to the same Owner in the same calendar year (whether or not this third violation
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involves the same terms or provision of the above-described condominium instruments 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 and the Unit in which each Owner
holds an ownership interest in an amount not in excess of One Hundred Fifty Dollars ($150). For
the fourth and every subsequent such violation of said condominium instruments by the same
Owner in the same calendar year, the Board of Directors, after giving the above-described notice
and opportunity to be heard, may levy a fine against that Owner and the Unit in which such
Owner holds an ownership interest 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 Association in enforcing any of the terms and provisions of the
condominium instruments, including reasonable attorneys' fees, may be levied as a Special
Assessment against the Owner in question and his Unit.
Any action brought by the Association 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 the Declaration, the Bylaws, and the rules and regulations.
Section 6.03 Right of Entry. All Owners and occupants of a Unit shall be deemed to
have granted the right of entry thereto to the Board or any person authorized by the Board in
case of any emergency originating in or threatening his Unit or the Building, 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 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 6.04 Right of Board to Adopt Rules and Regulations. The Board may
promulgate such additional rules and regulations to the Condominium Rules, including but not
limited to the use of the Common Areas and Limited 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, and the Board shall cause copies of such Condominium Rules and all amendments
thereto to be delivered to and mailed promptly to all Owners. In the event of any conflict
between such Condominium Rules of the Board and restrictions contained in these Bylaws, the
restrictions in the Bylaws shall control.
Section 6.05 Interpretation of Bylaws and Covenants. The Board of Directors shall have
the power, authority and obligation to determine all matters affecting or relating to the
interpretation, application and enforcement of the Bylaws and the Restrictive Covenants set forth
in this Article VI of the Bylaws. Any decision or determination made by the Board pursuant to
its powers and obligations as set forth in this Section shall be deemed binding upon all parties
and all Owners unless it shall be shown that said determination was made in bad faith with an
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intent to unfairly discriminate between Owners or was made in contravention of the express
terms and conditions of the Declaration and/or Bylaws.
ARTICLE VII
Amendment to Bylaws
Section 7.01 Amendment to Bylaws. Subject to any contrary, overriding or superseding
provisions set forth herein or in the Declaration or the Act, these Bylaws may be amended in the
same manner, and subject to the same limitations and requirements, as amendments to the
Declaration. 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.
Section 7.02 Amended and Restated Bylaws. An amended and restated Bylaws
containing the original Bylaws and all amendments theretofore made may be executed any time
or from time to time by a majority of the then Board of Directors and shall, upon recording in the
Office of the Recorder of Hamilton County, Indiana, be conclusive evidence of all amendments
contained therein and may thereafter be referred to in lieu of the original Bylaws and the various
amendments thereto.
ARTICLE VIII
Miscellaneous
Section 8.01 Fiscal Year. Unless changed by resolution of the Board of Directors prior to
the fiscal year of the Association shall begin on the first day of January in each year and end on
the last day of December next following.
Section 8.02 Personal Interests. No member of the Association shall have or receive any
earnings from the Association as a result of being an officer or director of the Association except
a member may receive principal and interest on moneys loan or advanced to the Association as
provided in the Act.
Section 8.03 Contracts, Checks, Notes, Etc. All contracts and agreements entered into by
the Association 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 Association, 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 Association or any notes or bonds of
the Association shall be executed by and require the signature of the President and Secretary.
Section 8.04 Financial Statements. Upon the written request from any person or entity
that has an interest or prospective interest in any Unit, the Association shall furnish to such entity
within a reasonable time a copy of the financial statement of the Association for the immediately
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preceding fiscal year. The reasonable copying costs shall be paid by the person or entity
requesting same.
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KD_14423566_5.docx
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EXHIBIT “E”
Condominium Rules
1.All Units shall be used exclusively for residential purposes and no Unit may be
partitioned or subdivided. Except for the lease of certain Units designated as “model units” to the
Declarant, any Owner who leases a Unit shall lease the entire Unit for at least a twelve (12)
month period and shall have a written lease, and such lease shall provide that the lease is subject
to the provisions of the Declaration, the Bylaws and the rules and regulations as adopted by the
Board of Directors, and any failure of the lessee to comply with the terms of such documents
shall be a default under the lease. A copy of each such lease shall be delivered to the Board of
Directors promptly upon execution. Notwithstanding the foregoing, (i) no more than four (4)
Units may be leased at any one time, (ii) the availability of Units for lease shall be on a first-
come-first-serve basis, and (iii) each Owner shall have owned its Unit for a period of twelve (12)
months prior to any proposed lease as provided herein.
2.No Unit may be leased or rented on a short-term basis including, but not limited
to, being made available for lease or rent on websites such as Airbnb.
3.No additional buildings, temporary structures, utility buildings or tents shall be
erected or located on the Property other than the Buildings designated in the Declaration or a
supplement or amendment to the Declaration, and shown on the Plans or plans filed with such
supplement or amendment to the Declaration without consent of the Board of Directors, except
Declarant reserves the right to maintain a mobile office for construction, and no such structure no
additional building shall be used as a residence. All hardware, doors and windows and trim
visible from the exterior of the Units, except model Units during the period when they are in use
as sales model units, shall be uniform in design throughout the Condominiums and shall not be
changed, altered, painted, remodeled or replaced without the prior written approval of the Board
of Directors.
4.Nothing shall be done or kept in any Unit or in the Common Areas or Limited
Common Areas which will cause an increase in the rate of insurance on the Building or the
contents thereof. No Unit Owner shall permit anything to be done or kept in the Unit or in the
Common Areas or Limited Common Areas which will result in a cancellation of insurance on
the Building or any part of the Common Areas or Limited Common Areas or contents thereof, or
which would be in violation of any law or ordinance or the requirements of any insurance
underwriting or rating bureau.
5.No nuisance shall be permitted and no waste shall be committed in any Unit or in
the Common Areas or Limited Common Areas.
6.No Unit Owner shall cause or permit anything to be hung or displayed on the
outside of the windows or placed on the outside walls of the Building, and no sign, awning,
canopy, shutter or radio or television antenna or-other attachment or thing shall be affixed to or
placed upon the exterior walls or roofs or any other part of the Building without the prior consent
of the Board.
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7.Nothing shall be done or permitted in any Unit which will impair the structural
integrity of the Building or which would structurally change the Building or which would affect
the exterior appearance of any Unit, except as otherwise provided in the Declaration. No Unit
shall be used in any unlawful manner, in violation of the zoning laws in effect in Hamilton
County, Indiana, or in any manner which might cause injury to the reputation of the Association
or which might be or cause a nuisance, annoyance, inconvenience or damage to other Unit
Owners and occupants of Units or neighboring property, including without limiting the
generality of the foregoing noise by the use of any musical instruments, radio, television, loud
speakers, electrical equipment, amplifiers or other equipment or machines or loud persons.
8.No “for sale”, “for rent” or “for lease” signs, or other signs, or other window or
advertising display shall be maintained or permitted on any part of the Property or any Unit
without the prior consent of the Board; provided, however, that the right is reserved by the
Declarant and the Board to place or allow to be placed “for sale” or “for lease” signs on or about
the Property in connection with any unsold or unoccupied Units.
9.All Unit Owners and members of their families, their guests, or invitees, and all
occupants of any Unit or other persons entitled to use the same and to use and enjoy the
Common Areas and Limited Common Areas or any part thereof, shall observe and be governed
by such Condominium Rules as may from time to time be promulgated and issued by the Board
governing the operation, use and enjoyment of the Units, the Common Areas and Limited
Common Areas.
10.No boats, campers, trailers of any kind, buses, mobile homes or any other vehicles
of any similar description or type shall be permitted, parked or stored anywhere within the
Property or elsewhere in the Project including, but not limited to, the Parking Garage. No repair
work shall be done on the Property or Project on any vehicles, including, but not limited to,
passenger automobiles, motorcycles, trucks or boats unless express written permission is
obtained from the Board.
11.No Unit Owner shall be allowed to plant trees, landscape or do any gardening in
any of the Common Areas or Limited Common Areas, except with express permission from the
Board.
12.No Owner or tenant shall be allowed to place or cause to be placed in either
Common Areas or Limited Common Areas, any furniture, packages or objects of any kind,
without the consent of the Board.
13.All garbage, trash and refuse shall be stored in appropriate containers. All such
garbage, trash and refuse shall be placed in the containers approved by the Board and shall be
placed at locations designated by the Board for scheduled trash collection.
14.No use shall be made of any part of the Property which violates these restrictions,
or the Condominium Rules, and all Unit Owners and their guests, tenants, invitees and all
occupants or other parties entitled to use or who may use any part of the Property shall at all
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times fully comply with the terms, covenants, provisions, conditions, limitations, restrictions and
requirements contained and described herein.
15.All Common Areas and Limited Common Areas shall be used only for the
purposes for which they are designed and intended, and shall be used subject to the
Condominium Rules from time to time adopted by the Board.
16.No Unit Owner shall be entitled to use the Condominium Parking Spaces except
pursuant to the Parking License Terms. No Condominium Parking Space shall be leased or
rented by a Unit Owner unless such Condominium Parking Space is provided pursuant to a lease
agreement, as provided hereinabove.
17.No additional storage, including but not limited to shelving and baskets, shall be
permitted within the parking areas, except for movable storage provided by the Declarant at the
time a Condominium Unit is conveyed or as otherwise approved by the Board.
18.All window coverings shall be the standard building window covering with
uniform white color.
19.Bicycles stored in Condominium Units must be kept inside the unit and shall not
be locked to fencing, balconies, or other parts of the structure or stored on patios or balconies.
Bicycle storage outside the Condominium Units shall be restricted to the bike racks and storage
areas provided in Common Areas and Limited Common Areas.
20.The Declarant, the Board or, in a proper case, an Aggrieved Owner (hereinafter
defined), shall have the right of enforcement of all restrictions and regulations adopted herein.
An “Aggrieved Owner” shall mean a Unit Owner whose rights are affected or infringed by any
such alleged failure to comply with the provisions of the Declaration, By-Laws or any decision
of the Association or its Board in a manner different from the rights of all other Unit Owners.
Any Unit Owner who alleges that to be an “Aggrieved Owner” shall first notify the Board of
such Owner’s aggrieved status and request a special meeting of the Board to be held within thirty
(30) days of such request (or within seven (7) 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. Any costs, including reasonable
attorneys' fees, may be recovered from any Owner for violation thereof, however, any
reservation of right to the use of summary abatement or similar means to enforce restrictions
against a Unit or its use shall require that judicial proceedings be instituted before any items of
construction can be altered or demolished.
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EXHIBIT “F”
[Parking License Terms]
See attached.
F-1
LICENSE AGREEMENT
(Condominium Reserved Parking)
This License Agreement (“License”) dated as of this ________ day of _________, 2024 is issued by LOT
ONE CONDO PARTNERS, LLC, an Indiana limited liability company (“Condominium Developer”), and LOT
ONE CONDO ASSOCIATION, INC., an Indiana nonprofit corporation (“Condominium Association”)
(collectively, the “Issuer”), for the benefit of the Condominium Association’s members owning certain
condominium units (“Users”).
Recitals:
WHEREAS, Lot One Partners, LLC, an Indiana limited liability company (the “Master Developer”) has
developed a complex of buildings as an integrated and interdependent mixed-use development, including office
space, one or more residential units containing rental apartments and residential condominium units and a parking
garage (the “Project”); and
WHEREAS, in connection with the Project, Master Developer has entered into and provided that certain
Master Declaration of Covenants, Restrictions and Easements for 1st on Main dated __________, 2024 and recorded
as Instrument No. ____________, in the Office of the Recorder of Hamilton County, Indiana (the “Master
Declaration”), pursuant to which the Project will involve the development of the Condominium Lot, the Multi-
Family Lot, the Office Lot and the Parking Garage, all as defined in the Master Declaration; and
WHEREAS, Lot One Garage Partners, LLC (“Garage Owner”), owner of the Parking Garage containing
approximately 307 spaces (the “Parking Garage”) and located on the Parking Garage Lot to serve the Project,
including the Condominium Building located on the Condominium Lot, has entered into that certain Agreement For
Parking (Condominium) of even date herewith (“Agreement for Parking”) confirming and regulating the Issuer’s
rights concerning the Reserved Spaces and authorizing the License granted herein; and
WHEREAS, pursuant to the Condominium Declaration, the Condominium Developer has developed the
Condominium Building containing eight (8) “Units” as defined in the Condominium Declaration (the
“Condominium Units”) and has been granted to it the Condominium Parking Easement under the Master
Declaration providing for sixteen (16) parking spaces in the Parking Garage (the “Reserved Spaces”) with two
Reserved Spaces to be licensed and assigned to each Condominium Unit by the Condominium Developer (the
“Assigned Spaces”) and regulated by the Condominium Association for each User, as hereinafter provided; and
WHEREAS, the Issuer is issuing a License to each User with two (2) Assigned Spaces assigned to each
Condominium Unit as shown on Schedule 1 attached hereto and made a part hereof, and each User is bound to the
terms hereof pursuant to the Condominium Declaration.
WHEREAS, terms used herein with their initial letters capitalized to have the meanings ascribed to them in
the Master Declaration unless otherwise defined herein.
NOW, THEREFORE, in consideration of the mutual promises contained herein, Issuer provides each Unit
Owner (as defined in the Condominium Declaration) the following License subject to the terms and conditions as
hereinafter provided which are accepted by each Unit Owner pursuant to the terms of the Condominium Declaration,
as follows:
1.Use. Each Unit Owner (hereinafter sometimes referred to as a “User”) is granted an irrevocable
license to use its Assigned Spaces, as shown on Schedule 1 attached hereto and incorporated herein by reference, for
vehicular parking for automobiles, sport utility vehicles, pick-up trucks, mini-vans and other motor vehicles of
similar size and weight (but not heavy duty trucks, motor homes, recreational vehicles, boats, trailers or vehicles that
are too tall to fit into the Parking Garage) (the "Permitted Vehicles"). The Assigned Spaces are for residential
purposes associated with the Condominium Unit and shall not be used for maintenance or delivery vehicles or for
construction traffic of any kind. The time for Users to exclusively use the Reserved Spaces is twenty-four (24)
hours per day, seven days per week, and no third party shall have the right to use the Reserved Spaces. Users shall
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have no obligation to pay Garage Owner a fee for any User’s Assigned Spaces or any other parking spaces in the
Parking Garage, provided that the Condominium Association is responsible for Assessments (which may include the
cost of maintenance of the Parking Garage) as provided in the Master Declaration which is treated as a Common
Expense charged to all Unit Owners under the Condominium Declaration. Garage Owner shall have the right to
approve the vendor for such Charging Stations, and may require the same vendor, design, utility source and other
requirements similar or the same as done for any other Charging Stations in the Parking Garage. In addition, the
Condominium Association shall have the exclusive right to manage the Reserved Spaces during the times set forth
above, including any numbering or other marking of such spaces, and regulating specific assignments to User and its
Permittees (the “Permitted Parties”). Any disputes among such Permitted Parties shall be determined by the
Condominium Association, which shall have the right to prohibit or remove any party using the Assigned Spaces
who is not a Permitted Party authorized by User. The Condominium Association shall be entitled to post such
signage concerning the reservation on or around the Reserved Spaces pursuant to the Parking Agreement.
2.Reserved Spaces Assigned to Condominium Unit. Pursuant to Schedule 1, each Assigned Space
is associated with a specific Condominium Unit, with each Condominium Unit being licensed for two (2) Assigned
Spaces. Such licenses are an assignment coupled with an interest and are appurtenant to and runs with the assigned
Condominium Unit so that the Assigned Space shall automatically be transferred and owned by the owner of the
designated Condominium Unit from time to time. The License for each Assigned Space may not be severed from
the associated Condominium Unit, nor may any Unit Owner reserve or transfer rights to the same other than
transferees of the Condominium Unit who shall automatically receive the transfer of the License. The Unit Owner
further may not rent, time-share, lease, sub-license, hypothecate or grant use or occupancy rights to any other party
other than a tenant, guest or occupant of such User’s Condominium Unit to the extent permitted in the
Condominium Declaration. Unit Owners may transfer or grant other rights to their Assigned Spaces to another Unit
Owner in the Condominium Building, only upon the prior written approval of the Condominium Developer until the
”Applicable Date” as defined in Section 2.02 of the By-Laws of the Condominium Association, or thereafter by the
Condominium Association, with such transferring parties paying for all costs associated with any amendments,
consents or other documentation deemed necessary by the approving party.
3.Parking Regulations.
A.Users must part in the Parking Garage in Assigned Spaces. There is no provision for guest
parking, except in the Unit Owner’s own Assigned Space or through pre-arranged permission from another Unit
Owner. Smoking is not permitted at any time in the Parking Garage. Only one motorized vehicle may be parked
per space.
B.All vehicles parking in the Parking Garage may be required to be registered with the Association
which may require the display of an authorized parking sticker.
C.Parking spaces should be free of excessive oil, transmission fluid, anti-freeze, brake fluid, steering
column fluid, etc. Parking spaces noted as inordinately dirty will be noted and the User notified in writing. The
User will be given ten (10) days in which to clean the parking space. If the notice is not complied with in a timely
manner, the parking space may be cleaned by the Association and the costs will be billed to the User.
4.Public Facility. The parties acknowledge that a portion of the Parking Garage not reserved to
Users will be available for public parking without the requirement of any fees or charges for the use of such parking
(the “Free Parking Spaces”). The maintenance for the Free Parking Spaces is also conducted by the Garage
Owner, but included in Assessments passed under the Master Declaration to the Condominium Association. The
establishment of the Free Parking Spaces is a requirement pursuant to the CRC Project. In the event that the CRC
Project expires or is modified to permit Garage Owner (or Garage Owner otherwise is given approval) to charge for
the Free Parking Spaces, the Garage Owner is authorized to do so, provided that net proceeds from such parking
revenue, or parking charges to any other party, shall be applied toward payment of Assessments.
5.Purpose. User shall solely use the Parking Garage for parking of registered and licensed passenger
motor vehicles owned or leased by Permitted Parties. Notwithstanding anything to the contrary contained herein, in
no event shall any of the Permitted Parties or any other party claiming under User be permitted to park or operate
any commercial vehicles or any trailers in the Parking Garage.
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6.Maintenance. The User shall reimburse the Condominium Association for the cost to repair any
damage that has occurred as a result of damage from usage by the User’s Permitted Parties. Garage Owner may
temporarily restrict User’s use of the Parking Garage upon forty-eight (48) hours’ notice, except in an emergency,
when notice shall be given as soon as practical, in order to complete any maintenance or repair thereof that Garage
Owner desires to complete, with User being permitted to utilize the Parking Garage to the extent available.
7.Compliance with Law. The use of the Parking Garage by the Permitted Parties shall be subject to
orders and regulations of all governmental authorities with respect to zoning, building, fire, health and with all other
codes, regulations, ordinances or laws applicable to the Parking Garage and any use being conducted therein,
including without limitation, the Parking Declaration, as well as any reasonable rules or regulations as may be
adopted by Garage Owner from time to time.
8.Indemnification. Users shall indemnify, defend and save Garage Owner harmless from and
against any and all claims, damages, liabilities or penalties asserted by or on behalf of any person, firm, corporation
or public authority on account of nuisance or injury, death, damage or loss to person or property in or upon the
Parking Garage or adjacent property owned by Garage Owner or any other Owner (as defined in the Master
Declaration) solely out of the use or occupancy of the Parking Garage by User or by any person claiming by,
through or under User (including, without limitation, all Permitted Parties), or arising out of any delivery to or
service supplied to the Building by way of the Parking Garage on behalf of User, which is not covered by any
insurance of the Owner, with all rights of subrogation being waived.
9.User’s Risk. User shall, at all times during the term hereof and for such further time as User shall
use and occupy the Parking Garage or any part thereof, keep all effects and property of every kind, nature and
description of User and of all persons claiming by, through or under User which, during the continuance of this
Agreement or any use and occupancy of the Parking Garage by User or anyone claiming under User, may be on the
Property, at the sole risk and hazard of User, and if the same shall be lost or damaged by any cause, no part of said
loss or damage is to be charged to or to be borne by Garage Owner, Condominium Developer or Condominium
Association.
11.Nuisance. User shall not injure, deface or otherwise harm the Parking Garage, nor commit any
nuisance, nor make, allow or suffer any waste, nor make any use of the Parking Garage which is improper, offensive
or contrary to any law or ordinance or which will invalidate or increase the premiums for any of Owner’s insurance.
12.Hazardous Waste. User shall not introduce on or transfer to the Parking Garage, any Hazardous
Materials (as hereinafter defined), nor generate, store, use, release, spill or dispose of any Hazardous Materials in or
on the Parking Garage and User shall not commit or suffer to be committed in or on the Parking Garage any act
which would require any reporting or filing of any notice with any governmental agency pursuant to any statutes,
laws, codes, ordinances, rules or regulations, present or future, applicable to the Property or to Hazardous Materials.
For purposes of this Agreement, the term “Hazardous Materials” shall mean and include any oils,
petroleum products, asbestos and any other toxic or hazardous wastes, materials and substances which are defined,
determined or identified as such in any Environmental Laws, or in any judicial or administrative interpretation of
Environmental Laws.
“Environmental Laws” shall mean any and all federal, state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, codes, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements or other governmental restrictions relating to the environment or to emissions, discharges or
releases of pollutants, contaminants, petroleum or petroleum products, chemicals or industrial, toxic or hazardous
substances or wastes into the environment including, without limitation, ambient air, surface water, ground water or
land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, petroleum or petroleum products, chemicals or industrial, toxic or hazardous
substances or wastes or the clean-up or other remediation thereof.
13.Default. In the event of any monetary default hereunder, Issuer shall have such remedies as under
the Condominium Declaration or otherwise provided by law or in equity. With respect to any noncompliance by
any Permitted Parties with the terms of this Agreement, Issuer shall have the right to enjoin the Permitted Party from
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continuing such noncompliance or cause User to enforce such noncompliance.
14.Liens. User shall not permit any statement of intention to hold a mechanic's lien or other similar
or dissimilar lien collectively (“Lien”) to be filed against the Parking Garage by reason of labor, services or
materials claimed to have been performed or furnished to or for User or at User's request. If such Lien shall be filed,
User may compel the prosecution of an action for the foreclosure of such lien, by the Owner. If any such Lien shall
be filed and an action commenced to foreclose the Lien, User shall cause the Lien to be released by the filing of a
written undertaking with a surety approved by the court and obtaining an order from the court releasing the Parking
Garage from such Lien within forty-five (45) days of request from Owner. Except as otherwise provided herein,
nothing in this Agreement shall be deemed to constitute consent to or request to any party for the performance of
any labor or services or the furnishing of any materials for the improvements at the Parking Garage.
15.Management and Declaration. The parties acknowledge that the Garage Owner may engage from
time to time a Parking Manager as provided in the Master Declaration, which Parking Manager shall be entitled to
enforce the terms and provisions of the Parking Agreement on behalf of Garage Owner.
16.Amendment. This License Agreement may be amended from time to time in accordance with the
amendment provisions of the Condominium Declaration.
KD_14982682_4.docx
[SIGNATURES APPEAR ON THE FOLLOWING PAGE.]
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SIGNATURE PAGE TO AGREEMENT FOR PARKING
IN WITNESS WHEREOF, Owner and User have executed this Agreement as of the day and year first
above written.
Condominium
Developer:
LOT ONE CONDO PARTNERS, LLC, an Indiana limited liability
company
By: ______________________________
Michael J. Garvey, Manager
Condominium
Association:
LOT ONE CONDO ASSOCIATION, INC.
By: __________________________________
Printed: _______________________________
Title: _________________________________
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EXHIBIT A
[License Agreement (Condominium Reserved Parking)]
Depiction of User Reserved Spaces
LEVEL 1 - SPACES A1 B1 C2 D2 E3 F4 G4 H3:
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LEVEL 3 – SPACES I6 J6 K5 L5 M7 N8 O8 P7:
KD_15344798_1.docx