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INDY 1295878v2
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DECLARATION OF COVENANTS, CONDITIONS,
EASEMENTS AND RESTRICTIONS OF
CHATEAUX DE MOULIN
Development located in Hamilton County, Indiana
PRIOR DEED REFERENCE
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TABLE OF CONTENTS
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ARTICLE 1. DEFINITIONS......... ...... ...... ........ ...... ........ ........ ..... ..... ................. ....... ............ ...........1
Section 1.01.
Section 1.02.
Section 1.03.
Section 1.04.
Section 1.05.
Section 1.06.
Section 1.07.
INDY 1295878v2
Articles of Incorporation. Articles of Incorporation means and
refers to the Articles of Incorporation of the Association, as filed with
the Secretary of State of the State ofIndiana....................................................l
Association. Association shall mean and refer to Chateaux De
Moulin Homeowners Association, Inc., or an organization of similar
name, formed, or to be formed, as an Indiana not-for-profit
corporation, and its successors and assigns. The Board of Directors
or Board shall mean the elected body of the Association having its
normal meaning under Indiana not-for-profit corporation law, as
amended. ..... .... ........... ........ ........... ... ........ .......... ........... .... ......... .... ..... ... ...........1
Bvlaws. Bylaws shall refer to the Bylaws of the Association, as the
same may exist and are or may be in effect from time to time. ........................1
Common Area. Common Area or Common Areas shall mean all real
property designated as such upon the Plat as recorded with the
Recorder of Hamilton County, Indiana. Common Areas shall be
construed to mean and include, without limitation, any and all
landscaping, accent or special effect lighting systems, the entry gate
and wall to the Development, and similar items and personal property
as such may be contemplated by the Plat filed with the Recorder of
Hamilton County, Indiana, from time to time with respect to the
Development. ....................................................................................................2
Common Expenses. Common Expenses shall mean and include the
actual and estimated expenses of operating the Association, including,
without limitation, any reasonable reserves, all as may be found to be
necessary and appropriate by the Board of Directors pursuant to this
Declaration, the Bylaws, and the Articles of Incorporation of the
Association. Common Expenses shall include, without limitation, the
actual and estimated cost to the Association for the maintenance,
management, operation, repair, improvement and replacement of
Common Area, any private drives or roadways, any private bridges,
real estate taxes or personal property taxes assessed against any
Common Area, as well as any other costs or expense incurred by the
Association for the benefit ofthe Common Area and the Owners. ..................2
Control Transfer Date. Control Transfer Date shall be the date on
which the Declarant is no longer a Class B Member of the
Association. ......................................................................................................2
Declarant. Declarant means Campbell Development Company 2,
LLC, an Indiana limited liability company, or any other person, firm,
corporation or partnership which succeeds to the interest of Campbell
Development Company 2, LLC, as developer of the Development, as
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Section 1.08.
Section 1.09.
Section 1.10.
Section 1.11.
Section 1.12.
Section 1.13.
Section 1.14.
Section 1.15.
Section 1.16.
Section 1.17.
INDY 1295878v2
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a matter of law or as evidenced by a written instrument of transfer to
such effect. ........................................................................................................2
Develonment. Development shall mean and refer to the real property
described in Exhibit A, attached hereto and incorporated herein by
reference........................................................................................................... .2
Dee. DCC shall mean and refer to the Development Control
Committee established pursuant to the provisions of Article X hereof. ...........2
Drainae:e System. Drainage System shall mean and include, without
limitation, the retention/detention ponds, storm sewers, subsurface
drainage tiles, swales, ditches, pipes, and other structures, fixtures,
properties, equipment, and facilities located in, upon, or under the
Common Area, Streets, or easements affecting one or more Lots or
property located outside the Development, and designed for the
purpose of expediting the drainage of surface and subsurface waters
from, over, across and under the Development, other than such as may
have been dedicated to the public and accepted for maintenance by the
appropriate public agency. .......... ..... ........ .................... ...................... ..... ..........2
Elie:ible Morte:ae:e Holder. Eligible Mortgage Holder shall mean a
holder, insurer, or guarantor of a first mortgage on a Lot who has
requested notice of certain matters from the Association as herein and
in the Association's Bylaws provided. ..............................................................2
Elie:ible Votes. Eligible Votes shall mean those votes available to be
cast on the issue at hand. A vote which is for any reason suspended is
not available to be cast......................................................................................2
Lot. Lot shall mean a portion of the Development other than the
Common Area intended for any type of independent ownership and
use as may be set out in this Declaration and as shall be shown on the
Plat and any amendments thereto. Where the context indicates or
requires, the term Lot shall include, without limitation, any structure
on the Lot. .........................................................................................................3
Majoritv. Majority means more than fifty percent (50%) of the total
number of eligible groups, Eligible Votes, eligible Owners, or others,
as the context may indicate. ........ ............ ................................ ........... ............ ...3
Member. Member shall mean and refer to a Person entitled to
membership in the Association, as provided herein. ........................................3
Morte:ae:e. Mortgage means any mortgage, deed to secure debt, and
any and all other similar instruments used for the purpose of
conveying or encumbering real property as security for the payment or
satisfaction of an obligation. ... ................ ............. ....... ........... ......... ..... ....... ......3
Owner. Owner shall mean and refer to the record owner, whether one
or more Persons, of any Lot which is part of the Development, but
excluding any party holding the fee simple title merely as security for
the performance of an obligation. Owner shall include, without
limitation, the Declarant (but pursuant to Section 9.11 no assessments
are payable by Declarant as an Owner except as specifically described
therein). .............................................................................................................3
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Section 1.18.
Section 1.19.
Section 1.20.
Section 1.21.
Section 1.22.
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Person. Person means a natural person, a corporation, a limited
liability company, a partnership, a limited partnership, a limited
liability partnership, a trust and/or trustee, or other legal entity. ......................3
Plat. Plat shall mean that plat of the Development making reference
hereto which has been or hereafter may be recorded in the office of
the Recorder of Hamilton County, Indiana, as the same may be
amended or supplemented by replats or otherwise. ..........................................3
Quorum. Quorum shall mean the percent of Eligible Votes entitled
to be cast on a matter at any meeting of Members as specified in the
Bylaws. .............................................................................................................3
Special Assessments. Special Assessments shall mean those certain
assessments authorized and made pursuant to the terms of Section
9.04 hereof. .......................................................................................................3
Streets. Streets shall mean all driveways, walkways, roadways,
streets and similar areas, designated as such on the Plats and Plans,
which have been or hereafter are constructed for the purpose of
providing common access for Owners, occupants and their guests and
invitees, to any or all Lots, other than those that have been dedicated
to the public and accepted for maintenance by the appropriate public
agency. ..............................................................................................................3
ARTICLE II. PROPERTY RIGHTS ................. .................... ...................... .................. ....... ....... ....3
Section 2.01.
Section 2.02.
Section 2.03.
Section 2.04.
INDY 1295878v2
Owner's Easement of Enjovment. Every Owner shall have a right
and easement of ingress and egress in and to, and, use and enjoyment
of the Common Areas, which shall be appurtenant to and shall pass
with the title to every Lot, subject to: ...............................................................3
Delee:ation of Use. No Owner may delegate his or her right of
enjoyment to the Common Area to any other individual without the
prior written consent of the Association. ..........................................................4
Owner's Rie:ht to Ine:ress. Ee:ress and Support. Each Owner shall
have the right to ingress and egress over, upon, and across the
Common Area necessary for access to his or her Lot and shall have
the right to lateral support for his or her Lot, and such rights shall be
appurtenant to and pass with the title to each Lot.............................................4
Rules and Ree:ulations. The Board of Directors of the Association
may establish reasonable rules and regulations concerning the use of
the Common Area, facilities located thereon, and individual Lots in
the Development, as appropriate. Copies of such regulations and
amendments thereto shall be furnished by the Association to all
Owners prior to the rule's effective date. Such regulations shall be
binding upon the Owners, their families, tenants, guests, invitees, and
agents until and unless such regulation, rule, or requirement shall be
specifically overruled, cancelled, or modified by the Board of
Directors of the Association or the Members by two-thirds (2/3) of all
Eligible Votes and with the written approval of the Class B Member
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Section 2.05.
Section 2.06.
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prior to the Control Transfer Date. The Board shall have the authority
to impose reasonable monetary fines and other sanctions, and
monetary fines may be collected by lien and foreclosure, as provided
in Article IX. In addition, the Association, through its Board of
Directors, may, by contract or other agreement, enforce county or
local ordinances or permit Hamilton County and/or the City of
Carmel, Indiana to enforce ordinances affecting the Development for
the benefit of the Association and its Members................................................4
Declarant's Reserved Easement. Notwithstanding any provisions
contained in the Declaration to the contrary, Declarant hereby
expressly reserves unto itself and its successors and assigns a
nonexclusive, perpetual right, privilege, and easement with respect to
any property in the Development, for the benefit of Declarant and its
successors and assigns over, under, in, and on the Development,
without obligation and without charge to Declarant, for the purposes
of construction, installation, relocation, development, sale,
maintenance, repair, replacement, use and enjoyment and otherwise
dealing with the Development. The reserved easement shall
constitute a burden on the title to all or any portion of the
Development and specifically includes, but is not limited to: ..........................5
Character of the Develoument.. ..... ...................................... ..... ......... ..... .......6
ARTICLE III. MEMBERSHIP AND VOTING RIGHTS .............................................................11
Section 3.01.
Section 3.02.
Section 3.03.
Section 3.04.
Section 3.05.
INDY 1295878v2
Membershiu. Every Owner of a Lot shall be a Member of the
Association. Membership shall be appurtenant to and may not be
separated from ownership of any Lot. ............................................................11
Classes of Membershiu. The Association shall have two (2) classes
of Members consisting of Class A Members and the Class B Member. ........11
Board of Directors. Subsequent to the Control Transfer Date, the
Board of Directors of the Association shall be as prescribed by the
Association's Bylaws. The Board of Directors shall manage the
affairs of the Association. The initial Board of Directors shall be
appointed by Declarant and shall manage the affairs of the
Association until the Control Transfer Date. ..................................................12
Professional Manae:ement. No contract or agreement for
professional management of the Association by Declarant nor any
other contract between the Association and Declarant shall be for a
term in excess of two (2) years. ......................................................................12
Resuonsibilities of the Association. The Association is hereby
authorized to act and shall act on behalf of, and in the name, place,
and stead of, the individual Owners in all matters pertaining to the
maintenance, repair, and replacement of the Common Areas, the
determination of Common Expenses, the collection of annual
assessments and Special Assessments, and the granting of any
approvals whenever and to the extent called for by this Declaration for
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Section 3.06.
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the common benefit of all such Owners. The Association shall also
have the right, but not the obligation, to act on behalf of any Owner or
Owners in seeking enforcement of the terms, covenants, conditions
and restrictions contained in this Declaration. Neither the Association
nor its officers or authorized agents shall have any liability
whatsoever to any Owner for any action taken under color of authority
of this Declaration or for any failure to take any action called for by
this Declaration, unless such act or failure to act is in the nature of a
willful disregard of the rights of the Owners or in the nature of willful,
intentional, or fraudulent misconduct. The Association shall procure
and maintain insurance in accordance with the provisions of Article V
hereof. The Association may contract for such services as
management, snow removal, security control, mowing, maintenance
of areas subject to construction easements, trash removal, and such
other services as the Association deems necessary or advisable. ...................12
Control and Transfer of Control of Association. Until the Control
Transfer Date, the Board of Directors of the Association shall consist
of persons appointed by Declarant................................................................. .12
ARTICLE IV. MAINTENANCE.. ............... ........... ........... ........ ..... ...................... ..... ......... ......... .13
Section 4.01.
Maintenance. . ......... ........... ... ..... ........... ........ ....................... .............. ..... .......13
ARTICLE V. INSURANCE .......... .............. ........ ........ .................................. ................ ....... ....... ..14
Section 5.01.
Section 5.02.
Section 5.03.
Section 5.04.
INDY 1295878v2
Insurance. ..................................................................................................... .14
Individual Insurance. By virtue of taking title to a Lot subject to the
terms of this Declaration, each Owner covenants and agrees with all
other Owners and with the Association that such Owner shall carry
blanket all-risk casualty insurance on such Owner's Lot and structures
constructed thereon. Each individual Owner further covenants and
agrees that in the event of a partial loss or damage and destruction
resulting in less than total destruction, the individual Owner shall
proceed promptly to repair or to reconstruct the damaged structure in a
manner consistent with the original construction. In the event that the
structure is totally destroyed and the individual Owner determines not
to rebuild or to reconstruct, the individual Owner shall clear the Lot of
all debris and return it to substantially the natural state in which it
existed prior to the beginning of construction. The Association may
impose more stringent requirements regarding the standards for
rebuilding or reconstructing structures on the Lot and the standard for
returning the Lot to its natural state in the event the Owner decides not
to rebuild or reconstruct. ................................................................................ .15
Disbursement of Proceeds. Proceeds of insurance policies written in
the name ofthe Association shall be disbursed as follows: ............................16
Damae:e and Destruction. ........................................................................... ..16
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Section 5.05.
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Repair and Reconstruction. If the damage or destruction for which
the insurance proceeds are paid is to be repaired or reconstructed, and
such proceeds are not sufficient to defray the cost thereof, the Board
of Directors shall use general funds or seek a special assessment as
permitted in Section 9.04. ............. .................................................. ....... ....... ..16
ARTICLE VI. NO PARTITION.... ........................ ..... ........ .......................... .................. .......... .....17
Section 6.01.
No Partition. Except as is permitted in this Declaration, there shall
be no physical partition of the Common Area or any part thereof, nor
shall any Person acquiring any interest in the Development or any part
thereofseek any such judicial partition until the happening of the
conditions set forth in Section 5.03 in the case of damage or
destruction, or unless the applicable portions of the Development have
been removed from the provisions of this Declaration. This Article
shall not be construed to prohibit the Board of Directors from
acquiring and disposing of tangible personal property nor from
acquiring title to real property which mayor may not be subject to this
Declaration. .................................................................................................... .17
ARTICLE VII. CONDEMNATION ...... ............ .......... ..... ..... ...... ....... ................ ....................... ....17
Section 7.01.
Condemnation. ............. ..... ...... .............. ............ .................. ....... ... .... ....... .....17
ARTICLE VIII. RIGHTS AND OBLIGATIONS OF THE ASSOCIA nON ...............................17
Section 8.01.
Section 8.02.
INDY 1295878v2
Common Area. The Association, subject to the rights of the Owners
set forth in this Declaration, shall be responsible for the exclusive
management and control of the Common Area and all improvements
thereon (including, without limitation, furnishings and equipment
related thereto, if any), and shall keep it in good, clean, attractive, and
sanitary condition, order, and repair, pursuant to the terms and
conditions of this Declaration and the Bylaws. ..............................................17
Services. The Association may obtain and pay for the services of any
person or entity to manage its affairs or any part thereof, to the extent
it deems advisable, as well as such other personnel as the Association
shall determine to be necessary or desirable for the proper operation of
the Development, whether such personnel are furnished or employed
directly by the Association or by any person or entity with whom or
with which it contracts. The Association may obtain and pay for legal
and accounting services necessary or desirable in connection with the
operation of the Development or the enforcement of this Declaration.
The Association may, but shall not be required to, arrange as an
Association expense with third parties to furnish water, trash
collection, sewer service, snow removal, security, lawn and
landscaping service and other common services to each Lot. The
Association as of the Control Transfer Date shall and does hereby
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Section 8.03.
Section 8.04.
Section 8.05.
Section 8.06.
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assume all rights, responsibilities and obligations of any contract or
agreement entered into by the Declarant for services or other work to
be performed upon or for the benefit of the Development and/or the
Association, subject only to the express terms and conditions set forth
in such contract or agreement and as may be modified or
supplemented by these Declarations. ..............................................................18
Personal Property and Real Property for Common Use. The
Association, through action of its Board of Directors, may acquire,
hold and dispose of tangible and intangible personal property and real
property. The Board, acting on behalf of the Association, shall accept
any real or personal property, leasehold, or other property interests
located within the properties described in Exhibit A attached hereto
and conveyed to it by the Declarant................................................................18
Implied Rie:hts. The Association may exercise any other right or
privilege given to it expressly by this Declaration, the Articles of
Incorporation or the Bylaws, and every other right or privilege
reasonably to be implied from the existence of any right or privilege
given to it herein or reasonably necessary to effectuate any such right
or privilege. ................................................................................................... ..18
Self-Help. In addition to any other remedies provided for herein, the
Association or its duly authorized agent shall have the power to enter
upon a Lot or any portion of the Common Area to abate or remove,
using such force as may be reasonably necessary, any erection, thing
or condition which violates this Declaration, the Bylaws, the rules and
regulations, or the use restrictions. Unless an emergency situation
exists, the Board shall give the violating Owner five (5) days' written
notice of its intent to exercise self-help. All costs of self-help,
including, without limitation, reasonable attorney's fees and
paraprofessional fees actually incurred shall be assessed against the
violating Owner and shall be collected as provided for herein for the
collection of assessments. . ........... ................................ ...... ......... ............ ....... .18
Rie:ht of Entrv. The Association shall have the right, in addition to
and not in limitation of all the rights it may have, to enter into
structures and upon Lots for emergency, security, or safety purposes,
which right may be exercised by the Association's Board of Directors,
officers, agents, employees, managers, and all police officers,
firefighters, ambulance personnel, and similar emergency personnel in
the performance of their respective duties. Except in an emergency
situation, entry shall only be during reasonable hours and after
reasonable notice to the Owner or occupant ofthe Lot. .................................18
ARTICLE IX. ASSESSMENTS..... ....................... ........ ........... ............ .................. ............ ..... ......19
Section 9.01.
INDY 1295878v2
Purpose of Assessment. The assessments for Common Expenses
provided for herein shall be used for the general purposes of
promoting the recreation, health, safety, welfare, common benefit, and
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Section 9.02.
Section 9.03.
Section 9.04.
Section 9.05.
Section 9.06.
Section 9.07.
Section 9.08.
INDY 1295878v2
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enj oyment of the Owners and occupants of Lots, including, without
limitation, the maintenance of real and personal property, all as may
be more specifically authorized from time to time by the Board of
Directors. The word "assessments" as used herein shall mean all
assessments referred to herein for Common Expenses, including,
without limitation, Special Assessments. .......................................................19
Creation of Assessments. .......... ................................. ..... ......... ...... .......... .....19
Computation of Assessment. .... ..... ........... .......... ....... ......... .............. ......... ...19
Special Assessments. In addition to the other assessments authorized
herein, the Association may levy Special Assessments in any year. So
long as the total amount of Special Assessments allocable to each Lot
does not exceed Ten Thousand Dollars ($10,000.00) in anyone fiscal
year, the Board may impose the Special Assessment. Any Special
Assessment which would cause the amount of Special Assessments
allocable to any Lot to exceed this limitation shall be effective only if
approved by two-thirds (2/3) of the Members. Special Assessments
shall be paid as determined by the Board, and the Board may permit
Special Assessments to be paid in installments extending beyond the
fiscal year in which the Special Assessment is imposed. The dollar
and percentage limitations contained in this Section 9.04 shall not
apply to assessments levied pursuant to Section 4.0Hc) hereof, and
the total of Special Assessments hereunder shall be calculated without
inclusion of any assessments levied pursuant to Section 4.01(c)
hereof. ............................................................................................................ .20
Lien for Assessments. ................................................................................. ..21
Effect of Nonpavment of Assessments: Remedies of the
Association. ................................................................................................... .21
Capital Bud2et and Contribution. The Board of Directors shall
annually prepare a capital budget which shall take into account the
number and nature of replaceable assets, the expected life of each
asset, and the expected repair or replacement cost for the Common
Area. The capital budget prepared by the Board of Directors shall
also take into account the projected repair and replacement cost for all
private drives for which repair and replacement a sinking fund shall
be established and maintained by the Association. The Board shall set
the required capital contribution, if any, in an amount sufficient to
permit meeting the projected capital needs of the Association as
shown on the capital budget, with respect to both amount and timing
by annual assessments over the period of the budget. The capital
contribution required shall be fixed by the Board of Directors and
included within the budget and assessment for Common Expenses as
provided in Section 9.03. A copy ofthe capital budget shall be
distributed to each Member in the same manner as the operating
budget. ........................................................................................................... .22
Subordination of the Lien to First Mort2a2es. The lien of the
assessments, including, without limitation, interest, late charges, costs
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Section 9.09.
Section 9.10.
INDY 1295878v2
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(including, without limitation, attorneys' fees and paraprofessional
fees) provided for herein, shall be subordinate to the lien of any first
Mortgage upon any Lot. The sale or transfer of any Lot shall not
affect the assessment lien. However, the sale or transfer of any Lot
pursuant to judicial or non-judicial foreclosure of a first Mortgage
shall extinguish the lien of such assessments as to payments which
become due prior to such sale or transfer (subject to the right of the
Association to payment out of available foreclosure sale proceeds).
No sale or transfer shall relieve such Lot from lien rights for any
assessments thereafter becoming due. Where the mortgagee of a first
Mortgage of record or other purchaser of a Lot obtains title, his or her
successors and assigns shall not be liable for the share of the Common
Expenses by the Association chargeable to such Lot which became
due prior to the acquisition oftitle to such Lot by such acquirer. Such
unpaid share of Common Expenses shall be deemed to be Common
Expenses collectible from all the Lots, including, without limitation,
such acquirer, his or her successors and assigns.............................................22
Capitalization of Association. Unless otherwise provided in a
supplemental declaration, on the earlier of (A) the date a Lot is
conveyed by Declarant to an Owner (other than the holder of a first
mortgage on such lot in a conveyance which constitutes a deed in lieu
of foreclosure), (B) the date a structure constructed on the Lot has
been certified for occupancy by the appropriate zoning authority, or
(C) the date a structure on the Lot is first occupied by an Owner or
other occupant upon completion of construction thereof, there shall be
due and payable to the Association by the Owner of such Lot the sum
of Five Hundred Dollars ($500.00) which shall be deposited by the
Declarant or the Association into a reserve account which shall not be
utilized by Declarant or the Association until after the Control
Transfer Date. ................................................................................................ .22
Date of Commencement of Annual Assessments. The annual
assessments provided for herein shall commence as to a particular Lot
on the first day of the month following the conveyance of such Lot by
the Declarant to an Owner (who is not a commercial builder), or by an
Owner who is a commercial builder to an Owner who is an end-user
and shall be due and payable in a manner and on a schedule as the
Board of Directors may provide. The first annual assessment shall be
adjusted according to the number of months then remaining in that
fiscal year. The date any Lot becomes subject to assessment
hereunder shall be the date on which such Lot is transferred by
Declarant to an Owner; provided, however, that Declarant may, in its
sole and absolute discretion delay the starting date for assessments for
as long as Declarant shall deem appropriate in its sole and absolute
discretion but assessments shall in all events be payable commencing
on the first day of the first month following the date the Lot is
occupied for the residential purposes or is suitable for such occupancy
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Section 9.11.
Section 9.12.
Section 9.13.
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as evidenced, for example, by the appropriate official of the City of
Carmel or of Hamilton County, Indiana, or an architect issuing a
certificate of occupancy or its equivalent stating that the residential
structure on such Lot is substantially complete and available for
occupancy. ..................................................................................................... .22
Assessments bv Declarant. .......................................................................... .23
Architectural Control Assessment. If any owner or person acting
for or on behalf of, or pursuant to the authorization or acquiescence
of, an Owner fails to comply with the architectural control standards
promulgated by the DCC as contemplated by Article X of these
Declarations, then the Declarant or the Association may levee against
the Lot owned by such Owner an assessment in an amount determined
by the DCC, as such amounts are applied on a consistent basis, which
does not exceed the greater of (A) One Hundred Dollars ($100.00) for
each day that such failure continues after written notice is given by the
DCC or the Declarant to such Owner, or (B) Five Thousand Dollars
($5,000.00). Such assessment shall constitute a lien upon the Lot of
such Owner and may be enforced in any manner provided by these
Declarations. The levee of an architectural control assessment shall
be in addition to, and not in lieu of, any other remedies available to
the Declarant and/or the Association provided for in this Declaration,
at law or in equity in the case of the failure to comply with the
provisions of this Declaration. .......... ........................... ......... ................... .......23
Certificates. The DCC and/or the Association shall, upon demand by
an Owner, at any time, furnish a certificate in writing signed by an
officer of the Association or a member ofthe DCC that (A) the
Assessments on a Lot have been paid, or that certain assessments
remain unpaid, as the case may be, (B) the amounts of any unpaid
assessments, the dates when such assessments were due and/or any
late fees or penalties related thereto, and (C) that an Owner and/or a
Lot is in compliance with the Declarations, the DCC architectural
standards, and any other rules or regulations promulgated and
applicable to the Owner or the Lot. No individual Owner may request
more than one (1) such certificate during any calendar year, except
where good cause exists for such Owner to request multiple
certificates (in which case the request for additional certificates must
be reasonable under the circumstances)..........................................................24
ARTICLE X. ARCHITECTURAL STANDARDS... ....... ............................................. ..... ..... ......24
Section 10.01.
INDY 1295878v2
Architectural Standards Jurisdiction. The Board of Directors shall
have the authority and standing, on behalf of the Association, to
enforce in courts of competent jurisdiction decisions of the
Development Control Committee established herein. The DCC shall
have the right to unilaterally promulgate, modify, and amend at any
time and from time to time, on behalf of the Board of Directors and
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Section 10.02.
Section 10.03.
INDY 1295878v2
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the Association, architectural, development and site planning
guidelines and standards which shall be binding on all Owners of Lots
within the Development, as determined in the reasonable discretion of
the DCC. Such guidelines and standards will include, without
limitation, requirements and restrictions regarding drainage,
landscaping, tree removal, sidewalks, etc., as well as the construction
of improvements. Such guidelines and standards and amendments
thereto may be recorded in the Office of the Recorder of Hamilton
County, Indiana, by the Declarant until the Control Transfer Date and
subsequently thereto by the Association. Compliance with these
guidelines and standards shall not relieve Owners of their obligation
to comply with any and all applicable zoning ordinances, restrictions,
development statements, or any other similar requirement. ...........................24
New Construction. The DCC shall have exclusive jurisdiction over
all original construction on any portion of the Development. The
DCC shall prepare and, on behalf of the Board of Directors, shall
promulgate design guidelines and application procedures. The
standards and procedures shall be those of the Association, and the
DCC shall have sole and full authority to prepare and to amend the
standards and procedures. It shall make both available to Owners,
builders, and developers who seek to engage in development of or
construction upon all or any portion of the Development and who
shall conduct their operations strictly in accordance therewith. Until
all the real estate included in the Development has been conveyed by
Declarant to purchasers in the normal course of development and sale,
the Declarant retains the right to appoint all members of the DCC,
which shall consist of at least three (3), but no more than five (5),
persons. There shall be no surrender of this right prior to that time,
except in a written instrument in recordable form executed by
Declarant. Upon the expiration of such right, the Board of Directors
shall appoint the members ofthe DCC. ..........................................................24
Modifications. The DCC shall have exclusive jurisdiction over
modifications, additions, or alterations made on or to existing Lots or
structures thereon and the open space, if any, appurtenant thereto;
provided, however, the DCC may delegate this authority to the
appropriate board or committee of any residential association
subsequently created or subsequently subjected to this Declaration so
long as the DCC has determined that such board or committee has in
force review and enforcement practices, procedures and appropriate
standards at least equal to those of the DCC. Such delegation may be
revoked and jurisdiction reassumed at any time by written notice. No
permission or approval shall be required to repaint in accordance with
an originally approved color scheme, or to rebuild in accordance with
originally approved plans and specifications. Nothing contained
herein shall be construed to limit the right of an Owner to remodel the
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Section 10.04.
Section 10.05.
Section 10.06.
Section 10.07.
Section 10.08.
INDY 1295878v2
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interior of his or her residence, or to paint the interior of his or her
residence any color desired. ........................................................................... .25
Procedures for Approval. For any construction, approvals required
by this Article shall be obtained only after written application has
been made to the Dee by the Owner of the Lot requesting
authorization (or such Owner's duly authorized representative). Such
written application shall be in the manner and form prescribed from
time to time by the Dee and shall be accompanied by two (2)
complete sets of plans and specifications for any such proposed
construction, improvement or modification. Such plans shall include
plot plans showing the location of all improvement existing upon the
Lot and the location of the improvements proposed to be constructed
or placed upon the Lot, each properly and clearly designated, if
applicable. Such plans and specifications shall set forth the color and
composition of all exterior materials proposed to be used and any
proposed landscaping, together with any other material or information
which the Dee may require. All plans and drawings required to be
submitted to the Dee shall be drawn to such scale as the Dee may
require. There shall also be submitted, where applicable, the permits
or plat plans which shall be prepared by either a registered land
surveyor, engineer or architect. Plat plans submitted for improvement
location permit shall bear the stamp or signature of the Dee
acknowledging the approval thereof.............................................................. .25
Power of Disapproval. The Dee may refuse to grant approvals
required under this Article when: ............ .................... ............ ........ ...............25
Liabilitv of Committee. Neither the Dee nor any agent thereof, nor
Declarant, shall be responsible in any way for any defects in any
plans, specifications or other material submitted to it, nor for any
defects in any work done according thereto, nor for any damages
associated with their approval or disapproval of any matters subject to
this Article. .................................................................................................... .26
Inspection. The Dee or its duly authorized agents may inspect work
being performed with their permission to assure compliance herewith,
and any applicable regulations of the Association, and an easement for
such inspection is hereby reserved over and upon each and every Lot
in the Development........................................................................................ .26
Declarant Improvements. The Dee shall have no powers with
respect to any construction, improvements or modifications
undertaken by the Declarant (or any assignee of Declarant if the
Declarant has approved the plans therefor) or any improvements
approved by Declarant at any time. This Section 10.08 shall be
construed to mean and include building or construction or landscaping
companies which are affiliates of, or controlled by, the Declarant.
The term "Affiliate" shall have the meaning set forth at 15 v.s.e.
Section 80a-2, as amended......... ..... ............. ....... ......... ..... ............... .............. .26
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Section 10.09.
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Remedies for Failure to Obtain Approval. In the event any
construction or modifications are made without first obtaining
approval of the DCC as required herein or any construction is being
performed other than in accordance with DCC approved plans and
architectural guidelines and standards, the Declarant, the Association
and the DCC shall each and all have the powers of enforcement
granted to the Association generally for purposes of this Declaration
and may require any modifications, construction, changes or
improvements undertaken or installed without or contrary to the
approval of the DCC and such architectural guidelines and standards
to be removed or renovated by whatever means the Declarant, the
Association and/or DCC deem appropriate, with the costs thereof,
including, without limitation, costs of collection and attorneys fees
and paraprofessional fees, to become a lien against the defaulting
Owner's Lot in the manner described in Section 9.05 hereof. ........................26
ARTICLE XI. MORTGAGEE RIGHTS .......................................................................................26
Section 11.01.
Notices of Action. An institutional holder, insurer, or guarantor of a
first Mortgage, who provides written request to the Association (such
request to state the name and address of such holder, insurer, or
guarantor and the Lot number) (therefore becoming an Eligible
Mortgage Holder), will, upon payment of Two Hundred Fifty Dollars
($250.00) plus the reasonable expense of the Association associated
therewith, be entitled to timely written notice of: ...........................................26
ARTICLE XII. GENERAL PROVISIONS ................... ... .................. .................. .............. ..... ......27
Section 12.01.
INDY 1295878v2
Duration. The provisions of this Declaration shall run with and bind
the land and shall be and remain in effect perpetually to the extent
permitted by law; provided, however, so long as Indiana law limits the
period during which covenants restricting lands to certain uses may
run, any provisions of this Declaration affected thereby shall run with
and bind the land so long as permitted by such law, and such
provisions may be renewed or extended, in whole or in part, beyond
the initial period permitted by such law, for successive periods not to
exceed the period permitted by such law, provided such renewal or
extension is approved by at least two-thirds (2/3) of all Eligible Votes.
Further, no such renewal or extension shall be effective unless there
is filed for record in the Office of the Recorder of Hamilton County,
Indiana, on or before the effective date thereof an instrument executed
by the President and Secretary of the Association which shall state the
terms of such renewal or extension and which shall contain a
certification by such Secretary that such extension and renewal was
duly approved by the Owners. Every purchaser or grantee of any
interest in any real property subject to this Declaration, by acceptance
of a deed or other conveyance therefor, thereby agrees that such
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Section 12.02.
Section 12.03.
Section 12.04.
INDY 1295878v2
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provisions of this Declaration may be extended and renewed as
provided in this Section. ................................................................................ .27
Amendment. ....... .......................................................................................... .27
Indemnification. The Association shall indemnify every officer,
director and member of the Dee against any and all expenses,
including, without limitation, attorney's fees and paraprofessional
fees, reasonably incurred by or imposed upon any officer or director
or Dee member in connection with any action, suit, or other
proceeding (including, without limitation, settlement of any suit or
proceeding, if approved or authorized by the then Board of Directors)
to which he or she may be a party by reason of being or having been
an officer or director or Dec member. The officers, directors and
members of the Dee shall not be liable for any mistake of judgment,
negligent or otherwise, except for their own individual willful
misfeasance, malfeasance or misconduct. The officers, directors and
members of the Dee shall have no personal liability with respect to
any contract or other commitment made by them, in good faith, on
behalf of the Association (except to the extent that such officers or
directors or Dec members may also be Members of the Association),
and the Association shall indemnify and forever hold each such
officer, director, or Dee member free and harmless against any and
all liability to others on account of any such contract or commitment.
Any right to indemnification provided for herein shall not be
exclusive of any other rights to which any officer or director, or
former officer or director or Dee member, may be entitled. The
Association may, as a Common Expense, maintain adequate general
liability and officers' and directors' liability insurance to fund this
obligation, if such insurance is reasonably available. .....................................28
Easement of Utilities. There is hereby reserved to the Association
blanket easements upon, across, above, and under all property within
the Development for access, ingress, egress, installation, repairing,
replacing, and maintaining all utilities serving the Development or any
portion thereof, including, without limitation, gas, water, sanitary
sewer, telephone, cable television, and electricity, as well as storm
drainage and any other services such as, but not limited to, a master
television antenna system, cable television system, or security system
which the Association might decide to have installed to serve the
Development. It shall be expressly permissible for the Association or
its designee, as the case may be, to install, repair, replace, and
maintain or to authorize the installation, repairing, replacing, and
maintaining of such wires, conduits, cables, and other equipment
related to the providing of any such utility or service. Should any
party furnishing any such utility or service request a specific license or
easement by separate recordable document, the Declarant and/or the
Board of Directors shall have the right to grant such easement......................29
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Section 12.05.
Section 12.06.
Section 12.07.
Section 12.08.
Section 12.09.
INDY 1295878v2
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Construction and Sale. Notwithstanding any provisions contained in
the Declaration to the contrary, so long as Declarant owns any Lots, it
shall be expressly permissible for Declarant, free of any and all
charges therefor, to maintain and carry on upon portions of the
Common Area such facilities and activities as, in the sole opinion of
Declarant, may be reasonably required, convenient, or incidental to
the construction or sale of such residences, including, without
limitation, business offices, signs, model units, and sales offices, and
the Declarant shall have an easement for access to such facilities. The
right to maintain and carry on such facilities and activities shall
include the right to use residences owned by the Declarant as models
and sales offices. This Section may not be amended without the
express written consent of the Declarant; provided, however, the
rights contained in this Section 12.05 shall terminate upon the earlier
of (a) ten (10) years from the date this Declaration is recorded, or (b)
upon the Declarant's recording a written statement that all sales
activity has ceased.......................................................................................... .29
Gender and Grammar. The singular, wherever used herein, shall be
construed to mean the plural, when applicable, and the use of the
masculine pronoun shall include the neuter and feminine..............................29
Severability. Whenever possible, each provision of this Declaration
shall be interpreted in such manner as to be effective and valid, but if
the application of any provision of this Declaration to any person or to
any property shall be prohibited or held invalid, such prohibition or
invalidity shall not affect any other provision or the application of any
provision which can be given effect without the invalid provision or
application, and, to this end, the provisions of this Declaration are
declared to be severable. If any of the provisions hereof shall be held
to be invalid or to be unenforceable or to lack the quality of running
with the land, that holding shall be without effect upon the validity,
enforce ability or "running" quality of any other one of the provisions
hereof. Furthermore, in lieu of the invalid or unenforceable provision,
there shall be added automatically as part of this Declaration a
provision as similar in terms to such invalid or unenforceable
provision as may be possible and be legal, valid, reasonable and
enforceable. .................................................................................................... .29
Captions. The captions of each Article and Section hereof, as to the
contents of each Article and Section, are inserted only for convenience
and are in no way to be construed as defining, limiting, extending, or
otherwise modifying or adding to the particular Article or Section to
which they refer. ............................................................................................ .29
Perpetuities. If any of the covenants, conditions, restrictions, or other
provisions of this Declaration shall be unlawful, void, or voidable for
violation of the rule against perpetuities, then such provisions shall
continue only until twenty-one (21) years after the death of the last
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survivor of the now-living descendants of Scott B. Campbell and Kim
Colby...............................................................................................................3 0
ARTICLE XIII. ENFORCEMENT ................................................................................................30
Section 13.01.
Section 13.02.
Section 13.03.
INDY 1295878v2
Ri2ht of Action and Enforcement. The Declarant and the
Association shall have a right of action against any Owner for failure
to comply with any provision of this Declaration, the Bylaws, the
Articles, or any rules, regulations or decisions of the Association or its
Board of Directors or any committee acting under the authority of the
Association or its Board of Directors including, without limitation, the
DCC (the "Enforced Provisions"). The Enforced Provisions, as each
may be amended from time to time, may be enforced by the Declarant
and/or the Association through court proceedings for injunctive
relief, for damages or for both, including, without limitation, such
relief as is set forth under Section 13.02 of this Article XIII..........................30
EQuitable Remedies. The rights and obligations set forth in this
Declaration constitute unique and distinctive property rights and
obligations which are not generally available or replaceable, and for
which the payment of monetary damages may not be adequate
compensation in the event of a violation of any Enforced Provision.
Any violation of this Declaration, including, without limitation, any
Enforced Provision by an Owner or any Person acting through or on
behalf of an Owner may cause irreparable damage or harm to the
Declarant and the Association which will be extremely difficult to
measure; therefore, the Declarant and the Association shall have the
right to temporary or permanent injunctive relief issued by any court
of competent jurisdiction to (a) enjoin or restrain any Owner from a
violation of this Declaration, and/or (b) instructing any Owner to act
in accordance with the terms and provisions of this Declaration. ..................30
Action bv Association. Notwithstanding any provision in this
Declaration to the contrary, any action to enforce this Declaration by
the Association, including, without limitation, action taken in
accordance with Section 1 or Section 2 of this Article XIII shall only
be taken by the Association if a majority of the members of the full
Board of Directors of the Association vote in favor of such action;
and, provided, further, that any such vote by the Board of Directors of
the Association shall be null and void in the event the Board of
Directors of the Association is comprised of fewer than five (5)
members. It is the intention of this provision that any action by the
Association be taken or commenced only after receiving the
affirmative vote of the greater of (a) three members ofa full board of
five directors, or (b) a majority of the members of a Board of
Directors in excess of five members. ..............................................................30
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Section 13.04.
Section 13.05.
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No Duty to Enforce. Neither Declarant nor Association shall be
liable for damages of any kind to any person for failing either to abide
by, enforce or carry out any provision of this Declaration..............................30
Delav or Failure to Enforce. No delay or failure on the part of any
aggrieved party to invoke any available remedy with respect to a
violation of anyone or more of the provisions of this Declaration shall
be held to be a waiver by that party (or an estoppel of that party to
assert) any right available to him upon the occurrence, recurrence, or
continuation of such violation or violations of this Declaration.....................30
ARTICLE XIV. PRIV ATE AMENITIES AND SERVICES ........................................................31
Section 14.01.
Private Amenities and Services. The Drainage System, Streets, and
other elements comprising the Common Area shall be owned and
maintained by the Association so long as this Declaration remains in
force (and subject to any prior dedication or conveyance thereof). In
the event of any termination of this Declaration and! or liquidation,
dissolution or winding up of the affairs of the Association, the
Association shall, after paying or making provision for the payment of
all the liabilities of the Association, distribute all the assets of the
Association exclusively for the purposes of the Association in such
manner, or to such organization or organizations as the Board of
Directors shall determine. Any such assets not so disposed of shall be
disposed by a Judge of the Circuit or Superior Court of Hamilton
County, Indiana, exclusively for such purposes or to such organization
or organizations, as such Court shall determine, which are organized
and operated exclusively for such purpose. ....................................................31
ARTICLE XV . PRIVATE DRIVES ......................... ........ ...... ............ ........ .......... .......... ......... ......31
Section 15.01.
INDY 1295878v2
Creation of Private Drives. (i) Unless otherwise provided in a
supplement or amendment to this Declaration recorded in the Office
of the Recorder for the Hamilton County, Indiana, and (ii) subject to
law, including, without limitation, the law of condemnation; the
private drive designated on the Plat as DeMoulin Drive (the "Private
Drive") shall be owned by the Association and maintained by the
Association in good condition satisfactory for the purpose for which it
was constructed. The maintenance costs incurred by the Association
in maintaining a private drive shall be part of the assessment against
all Lots. It is the intent of this Section 15.01 that snow plowing,
general road repair, and periodic sealing and resurfacing shall be part
of the responsibility of the Association as a whole. In the event of a
complete rebuilding of the Private Drive (or an expansion or other
substantial alteration of the Private Drive), the costs associated
therewith shall be assessed against the Association; provided,
however, that no such assessment shall be made for the reconstruction
or substantial modification of a private drive unless two thirds (2/3) or
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Section 15.02.
Section 15.03.
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more of the Eligible Votes affirmatively vote in favor of the
expenditure or, in the alternative, such action is taken by virtue of the
affirmative vote of eighty percent (80%) or more of all of the
members of the Board of Directors of the Association, unless such
reconstruction or expansion is required by the applicable governing
City or County agency, in which case the Association shall have the
affirmative duty to proceed with such construction or modification,
with costs therefore to be assessed against all Lots. .......................................31
Dedication of Private Drives. (i) Unless otherwise provided in a
supplement or amendment to this Declaration recorded in the Office
of the Recorder for Hamilton County, Indiana, and (ii) subject to law,
including, without limitation, the law of condemnation; the Private
Drive designated on the Plat may be dedicated and thereafter
constitute dedicated rights-of-way upon the affirmative vote of not
less than two thirds (2/3) of the Eligible Votes and the approval of a
majority of all of the members of the Board of Directors of the
Association. ................................................................................................... .31
Incorporations of Article IX Provisions. The assessments and other
applicable provisions of this Article XV of this Declaration shall be,
and are, subject to the provisions of Article IX of this Declaration, as
such provisions may be reasonably construed to apply to the
provisions of this Article XV, including, without limitation, the
provisions of Article IX relating to computation of assessments, liens
for assessments, effective nonpayment of assessments (and remedies
of the Association), capital budget and contribution, subordination to
the lien of first mortgages, and certificates. ....................................................32
ARTICLE XVI. LIMITATION ON DECLARANT'S LIABILITY...............................................32
Section 16.01.
INDY 1295878v2
Limitation on Declarant's Liabilitv. Notwithstanding anything to
the contrary herein, it is expressly agreed, and each Owner, by
accepting title to a Lot and becoming an Owner acknowledges and
agrees that neither Declarant (including, without limitation, any
assignee of the interest of Declarant hereunder) nor any director,
officer or shareholder of Declarant (or any partner, officer, director or
shareholder in any such assignee) shall have any personal liability to
the Association, or any Owner, Member or other Person, arising
under, in connection with, or resulting from (including, without
limitation, resulting from action or failure to act with respect to) this
Declaration or the Association. If any judgment is ever levied against
Declarant (or its assignee), the same is hereby agreed to be limited to
the extent of Declarant's (or such assignee's) interest in the
Development; and, in the event of a judgment no execution or other
action shall be sought or brought thereon against any other assets, nor
be a lien upon any other assets of Declarant (or its assignee).........................32
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ARTICLE XVII. ADDITIONAL EASEMENTS AND RESTRICTIONS....................................32
Section 17.01.
Section 17.02.
Section 17.03.
Section 17.04.
INDY 1295878v2
Easements. Lots are subject to perpetual non-exclusive drainage
easements, utility easements, resident access easements, island
easements, and landscape easements either separately or in
combination, as shown on the Plats and Plans, which are reserved for
the use of the Declarant, Association, Lot Owners, public utility
companies and governmental agencies as follows and which are all
subject to such rules and regulations as the Board of Directors may
promulgate: .....................................................................................................3 2
Floodwav Restrictions. No structures may be built on that portion of
any Lots which lie within a floodway. Any landscaping or other
improvements made to any such part of the Lots, and any alterations
thereon, shall be subject not only to approval of the Declarant (or the
Association), but also to the prior approval of the Indiana Department
of Natural Resources, its successors and assigns, and all other
governmental agencies having jurisdiction thereof. ...... .... .................. ...........33
Common Areas. Those areas designated as "Common Area" on any
Plats and Plans are hereby declared to be Common Area. The
Common Area is hereby reserved for the use of the Declarant during
the development period, for the use of the Association after the
development period, and for the use and enjoyment of all the Owners
subject to the limitations contained herein, and further subject to the
right of the Association to promulgate reasonable rules and
regulations governing such use and enjoyment. Notwithstanding any
provision in this Declaration to the contrary, including, without
limitation, this Section 17.03, the area designated as Common Area B
is, and shall be, dedicated to the state of Indiana in accordance with
Section 2.08 of this Declaration and as required by law.................................33
Construction Procedure. During construction, reasonable care shall
be taken by the builders of the Lots therein to protect all public and
private streets from decomposition due to construction. During
construction, sites shall be kept as clean as possible to avoid blowing
trash and to prevent mud from coming onto other portions of the
Development or adjoining properties. Builders shall keep streets
reasonably clean and free of dirt/mud and debris during construction
periods and neither the Declarant nor the Association shall have
responsibility or liability for the streets during construction. .........................33
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DECLARATION OF COVENANTS, CONDITIONS, EASEMENTS
AND RESTRICTIONS OF CHATEAUX DE MOULIN
THIS DECLARATION OF COVENANTS, CONDITIONS, EASEMENTS AND
RESTRICTIONS OF CHATEAUX DE MOULIN (this "Declaration"), is made this day of
, 2004, by CAMPBELL DEVELOPMENT COMPANY 2, LLC, an Indiana
limited liability company (the "Declarant") and effective as of the date and time of recordation.
RECITALS:
WHEREAS, Declarant is the fee owner of the Development (as defined herein); and,
WHEREAS, Declarant intends by this Declaration to impose upon the Development
mutually beneficial restrictions under a general plan of improvement for the benefit of all owners of
residential property within the Development by the recording of this Declaration; and,
WHEREAS, Declarant desires to provide a flexible and reasonable procedure for the overall
development of the Development and to establish a method for the administration, maintenance,
preservation, use and enjoyment of such properties as are now or may hereafter be subject to this
Declaration; and,
WHEREAS, Declarant has formed, or will in a timely fashion form, the Association (as
defined herein) for the purposes of carrying out the powers and duties aforesaid.
NOW, THEREFORE, Declarant hereby declares that all of the real estate described in
Exhibit A attached hereto, shall be held, sold and conveyed subject to the following covenants,
conditions, easements and restrictions, which shall "run with the land" and are for the purpose of
protecting the value and desirability of and which shall run with the real property subjected to this
Declaration and which shall be binding on all parties having any right, title or interest in the
described Development or any part thereof, their heirs, successors, successors-in-title, and assigns
and shall inure to the benefit of each owner thereof.
ARTICLE I.
DEFINITIONS
Section 1.01. Articles of Incorporation. Articles oflncorporation means and refers to
the Articles of Incorporation of the Association, as filed with the Secretary of State of the State of
Indiana.
Section 1.02. Association. Association shall mean and refer to Chateaux De Moulin
Homeowners Association, Inc., or an organization of similar name, formed, or to be formed, as an
Indiana not-for-profit corporation, and its successors and assigns. The Board of Directors or Board
shall mean the elected body of the Association having its normal meaning under Indiana not-for-
profit corporation law, as amended.
Section 1.03. Bvlaws. Bylaws shall refer to the Bylaws of the Association, as the same
may exist and are or may be in effect from time to time.
INDY 1295878v2
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Section 1.04. Common Area. Common Area or Common Areas shall mean all real
property designated as such upon the Plat as recorded with the Recorder of Hamilton County,
Indiana. Common Areas shall be construed to mean and include, without limitation, any and all
landscaping, accent or special effect lighting systems, the entry gate and wall to the Development,
and similar items and personal property as such may be contemplated by the Plat filed with the
Recorder of Hamilton County, Indiana, from time to time with respect to the Development.
Section 1.05. Common EXDenses. Common Expenses shall mean and include the actual
and estimated expenses of operating the Association, including, without limitation, any reasonable
reserves, all as may be found to be necessary and appropriate by the Board of Directors pursuant to
this Declaration, the Bylaws, and the Articles of Incorporation of the Association. Common
Expenses shall include, without limitation, the actual and estimated cost to the Association for the
maintenance, management, operation, repair, improvement and replacement of Common Area, any
private drives or roadways, any private bridges, real estate taxes or personal property taxes assessed
against any Common Area, as well as any other costs or expense incurred by the Association for the
benefit of the Common Area and the Owners.
Section 1.06. Control Transfer Date. Control Transfer Date shall be the date on which
the Declarant is no longer a Class B Member of the Association.
Section 1.07. Declarant. Declarant means Campbell Development Company 2, LLC, an
Indiana limited liability company, or any other person, firm, corporation or partnership which
succeeds to the interest of Campbell Development Company 2, LLC, as developer of the
Development, as a matter of law or as evidenced by a written instrument of transfer to such effect.
Section 1.08. DeveloDment. Development shall mean and refer to the real property
described in Exhibit A, attached hereto and incorporated herein by reference.
Section 1.09. DCC. DCC shall mean and refer to the Development Control Committee
established pursuant to the provisions of Article X hereof.
Section 1.10. Draina2e System. Drainage System shall mean and include, without
limitation, the retention/detention ponds, storm sewers, subsurface drainage tiles, swales, ditches,
pipes, and other structures, fixtures, properties, equipment, and facilities located in, upon, or under
the Common Area, Streets, or easements affecting one or more Lots or property located outside the
Development, and designed for the purpose of expediting the drainage of surface and subsurface
waters from, over, across and under the Development, other than such as may have been dedicated to
the public and accepted for maintenance by the appropriate public agency.
Section 1.11. Eli2ible Mort2a2e Holder. Eligible Mortgage Holder shall mean a holder,
insurer, or guarantor of a first mortgage on a Lot who has requested notice of certain matters from
the Association as herein and in the Association's Bylaws provided.
Section 1.12. Eli2ible Votes. Eligible Votes shall mean those votes available to be cast
on the issue at hand. A vote which is for any reason suspended is not available to be cast.r
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Section 1.13. Lot. Lot shall mean a portion of the Development other than the Common
Area intended for any type of independent ownership and use as may be set out in this Declaration
and as shall be shown on the Plat and any amendments thereto. Where the context indicates or
requires, the term Lot shall include, without limitation, any structure on the Lot.
Section 1.14. Maioritv. Majority means more than fifty percent (50%) of the total
number of eligible groups, Eligible Votes, eligible Owners, or others, as the context may indicate.
Section 1.15. Member. Member shall mean and refer to a Person entitled to membership
in the Association, as provided herein.
Section 1.16. Morte:ae:e. Mortgage means any mortgage, deed to secure debt, and any
and all other similar instruments used for the purpose of conveying or encumbering real property as
security for the payment or satisfaction of an obligation.
Section 1.17. Owner. Owner shall mean and refer to the record owner, whether one or
more Persons, of any Lot which is part ofthe Development, but excluding any party holding the fee
simple title merely as security for the performance of an obligation. Owner shall include, without
limitation, the Declarant (but pursuant to Section 9.11 no assessments are payable by Declarant as an
Owner except as specifically described therein).
Section 1.18. Person. Person means a natural person, a corporation, a limited liability
company, a partnership, a limited partnership, a limited liability partnership, a trust and/or trustee, or
other legal entity.
Section 1.19. Plat. Plat shall mean that plat of the Development making reference hereto
which has been or hereafter may be recorded in the office of the Recorder of Hamilton County,
Indiana, as the same may be amended or supplemented by replats or otherwise.
Section 1.20. Quorum. Quorum shall mean the percent of Eligible Votes entitled to be
cast on a matter at any meeting of Members as specified in the Bylaws.
Section 1.21. Special Assessments. Special Assessments shall mean those certain
assessments authorized and made pursuant to the terms of Section 9.04 hereof.
Section 1.22. Streets. Streets shall mean all driveways, walkways, roadways, streets and
similar areas, designated as such on the Plats and Plans, which have been or hereafter are constructed
for the purpose of providing common access for Owners, occupants and their guests and invitees, to
any or all Lots, other than those that have been dedicated to the public and accepted for maintenance
by the appropriate public agency.
ARTICLE II.
PROPERTY RIGHTS
Section 2.01. Owner's Easement of Enjovment. Every Owner shall have a right and
easement of ingress and egress in and to, and, use and enjoyment of the Common Areas, which shall
be appurtenant to and shall pass with the title to every Lot, subject to:
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(i) the right of the Association to charge reasonable fees for the use of any
Common Area and to impose reasonable limits on the number of guests who may use such
facilities;
(ii) the right of the Association to suspend or terminate a Member's voting rights
in accordance with law, the Articles of Incorporation, and the Bylaws;
(iii) the Declarant's reserved easements as described herein and the right of the
Declarant to grant easements in and to the Common Area to any public agency, authority, or
utility for such purposes as benefit the Development or portions thereof and Owners or Lots
contained therein;
(iv) the right of the Association to borrow money for the purpose of improving the
Common Area, or any portion thereof, or for constructing, repairing, or improving any
facilities located or to be located thereon, and to give as security for the payment of any such
loan a mortgage conveying all or any portion ofthe Common Area, provided two-thirds (2/3)
of Eligible Votes shall approve; provided, however, the lien and encumbrance of any such
mortgage given by the Association shall be subject and subordinate to any and all rights,
interests, options, easements, and privileges reserved or established in this Declaration for the
benefit of Declarant or any Owner, or the holder of any Mortgage, irrespective of when
executed, given by Declarant or any Owner encumbering any Lot or other property located
within the Development; and,
(v) the right of the Association to dedicate or transfer all or any portion of the
Common Area to any public agency, authority, or utility for such purposes and subject to
such conditions as may be agreed to by the Members of the Association. No such dedication
or transfer shall be effective unless an instrument agreeing to such dedication or transfer has
been approved by the Declarant during any time that the Declarant controls the Association
and otherwise by at least two-thirds (2/3) of all Eligible Votes.
This Section 2.01 may not be amended without the written consent of Declarant during the
time that Declarant owns any property subject to this Declaration.
Section 2.02. Delee:ation of Use. No Owner may delegate his or her right of enjoyment to
the Common Area to any other individual without the prior written consent of the Association.
Section 2.03. Owner's Rie:ht to Ine:ress. Ee:ress and Support. Each Owner shall have
the right to ingress and egress over, upon, and across the Common Area necessary for access to his or
her Lot and shall have the right to lateral support for his or her Lot, and such rights shall be
appurtenant to and pass with the title to each Lot.
Section 2.04. Rules and Ree:ulations. The Board of Directors of the Association may
establish reasonable rules and regulations concerning the use ofthe Common Area, facilities located
thereon, and individual Lots in the Development, as appropriate. Copies of such regulations and
amendments thereto shall be furnished by the Association to all Owners prior to the rule's effective
date. Such regulations shall be binding upon the Owners, their families, tenants, guests, invitees, and
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agents until and unless such regulation, rule, or requirement shall be specifically overruled,
cancelled, or modified by the Board of Directors of the Association or the Members by two-thirds
(2/3) of all Eligible Votes and with the written approval of the Class B Member prior to the Control
Transfer Date. The Board shall have the authority to impose reasonable monetary fines and other
sanctions, and monetary fines may be collected by lien and foreclosure, as provided in Article IX. In
addition, the Association, through its Board of Directors, may, by contract or other agreement,
enforce county or local ordinances or permit Hamilton County and/or the City of Carmel, Indiana to
enforce ordinances affecting the Development for the benefit of the Association and its Members.
Section 2.05. Declarant's Reserved Easement. Notwithstanding any provisions
contained in the Declaration to the contrary, Declarant hereby expressly reserves unto itself and its
successors and assigns a nonexclusive, perpetual right, privilege, and easement with respect to any
property in the Development, for the benefit of Declarant and its successors and assigns over, under,
in, and on the Development, without obligation and without charge to Declarant, for the purposes of
construction, installation, relocation, development, sale, maintenance, repair, replacement, use and
enjoyment and otherwise dealing with the Development. The reserved easement shall constitute a
burden on the title to all or any portion of the Development and specifically includes, but is not
limited to:
(i) the right of access, ingress and egress for vehicular and pedestrian traffic over,
under, on and in all or any portion of the Development, and the right to tie into any portion of
the Development with driveways, parking areas, streets, the Drainage System and walkways;
and to tie into and/or otherwise connect and use (without a tap-on or any other fee for so
doing), replace, relocate, maintain, and repair any device which provides utility or similar
services, including, without limitation, electrical, telephone, natural gas, water, sewer, and
drainage lines and facilities constructed or installed in, on, under, and/or over all or any
portion of the Development; provided, however, Declarant shall only be able to exercise this
right on Lots owned by third parties if it exercises such right in a manner so as to not
unreasonably interfere with the use and enjoyment of said Lot by such owners.
(ii) the right to construct, install, replace, relocate, maintain, repair, use and enjoy
signs, model residences, sales offices, construction offices and business offices as, in the sole
opinion of Declarant, may be required, convenient or incidental to the construction and sale
by Declarant of residences in all or any portion of the Development; and,
(iii) the right to maintain a sales and marketing office(s) for the Development
within the Common Area without cost to Declarant until Declarant no longer owns any Lots
in the Development.
No rights, privileges, and easements granted or reserved herein shall be merged into the title
of any property within the Development, but shall be held independent of such title, and no such
right, privilege, or easement shall be surrendered, conveyed, or released unless and until and except
by delivery of a quitclaim deed from Declarant releasing such right, privilege, or easement by
express reference thereto with respect to all or any portion of the Development. Declarant may grant
to a builder of Lots within the Development similar rights as granted to Declarant under (ii) and (iii)
above.
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This Section 2.05 may not be amended without the advance written consent of Declarant as
long as Declarant owns one (1) or more Lots.
Section 2.06.
Character of the Development.
(a) Use of Lots.
(i) Except as may be otherwise expressly provided in this Declaration, each Lot
shall be used for residential purposes only as a residence for a single family related by blood,
adoption, or marriage. No business buildings shall be erected on said Lots, and no business
may be conducted on any part thereof, other than the home occupations permitted in the
Carmel/Clay Zoning Ordinance, as amended from time to time. Lease or rental of a Lot or
any building thereon for residential purposes shall not be considered to be a violation ofthis
covenant, so long as the lease is in compliance with reasonable rules and regulations as the
Board of Directors may promulgate, or in the absence of such rules and regulations, with the
prior written approval of the Board of Directors or the Declarant. Provided, however, all
such Leases shall be in writing and shall be for a minimum term of not less than six (6)
months. Any lessee or tenant shall in all respects be subject to the terms and conditions of
this Declaration, the Bylaws, and the rules and regulations adopted hereunder.
(ii) Without the prior written consent of the Association's Board of Directors or
the Declarant, nothing shall be done or kept on any Lot or on the Common Area or any part
thereof to increase the rate of insurance on the Development or any part thereof over what the
Association, but for such activity, would pay. Noxious, destructive, or offensive activity, or
any activity constituting an unreasonable source of annoyance, shall not be conducted on any
Lot or on the Common Area or any part thereof, and the Association shall have standing to
initiate legal proceedings to abate such activity. Each Owner shall refrain from any act or use
of his or her Lot which could reasonably cause embarrassment, discomfort, or annoyance to
other Owners, and the Board of Directors shall have the power to make and to enforce
reasonable rules and regulations in furtherance of this provision.
(b) Use of Common Areas. No planting or gardening shall be done, and no fences,
hedges, walls or any other structure or planting shall be erected or maintained upon the Common
Area, except in accordance with the initial construction of the improvements located thereon by the
Declarant or as approved by the Association's Board of Directors or their designated representatives.
No antennas may be erected upon the Common Area. Except for the right of ingress and egress, the
Owners of Lots may use the property outside their respective Lots only in accordance with
reasonable regulations as may be adopted by the Association's Board of Directors or as is expressly
provided herein. It is expressly acknowledged and agreed by all parties concerned that this Section
2.06 is for the mutual benefit of all Owners and is necessary for the protection of all Owners.
(c) Minimum Square Footage. The minimum square footage requirements for any
single family residence constructed on a Lot shall be as follows:
(i) Single story - A minimum of 4000 square feet of finished living area,
exclusive of basements, garages, attics, porches, decks, patios and other similar features.
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(ii) Multiple story - A minimum of 4500 square feet of total finished living area,
exclusive of basements, garages, attics, porches, decks, patios and other similar features.
(d) Signs. Except as hereinafter provided for Declarant, no signs of any type whatsoever,
billboards, unsightly objects, or nuisances shall be erected, placed, or permitted to remain on the
Development, other than signage provided by Declarant (before the Control Transfer Date) or by the
Association (after the Control Transfer Date) and approved by the DCC, and signs that are approved
by the DCC and are erected by a builder of residences on a Lot or Lots in the Development (a
"Builder"), except that one sign of not more than six (6) square feet may be displayed for the purpose
of either advertising the Lot for sale or advertising a garage/yard sale at such Lot. Provided,
however, no Owner of a Lot shall have a garage sale or yard sale more often than two (2) times per
calendar year, or for more than four (4) days in the aggregate per calendar year.
(e) Storage and Parking or Vehicles. There shall be no outside storage or parking upon
any Lot or the Common Area of any automobile, commercial vehicle, truck, tractor, mobile home or
trailer (either with or without wheels), camper, camper trailer, boat or other water craft, boat trailer,
or any other transportation device of any kind, except within the parking spaces in the Owner's
garage and for visitors temporarily parking in spaces and in accordance with rules and regulations
designated and promulgated by the Board; provided, however, that the temporary parking of the
Owner's primary vehicle on the driveway of the Owner's Lot shall not be prohibited. No Owners or
tenants shall repair or restore any vehicle of any kind upon any Lot or Common Area, except for
emergency repairs, and then only to the extent necessary to enable movement thereof to a proper
repair facility. No garage may be altered in such a manner that the" number of automobiles which
may reasonably be parked therein after the alteration is less than the number of automobiles that
could have been reasonably parked in the garage as originally constructed.
(f) Pets. No animals, livestock, or poultry of any kind shall be raised, bred, or kept on
the Development, except that normal household pets in reasonable numbers (presumably, two (2) or
less) may be kept in residences subject to rules and regulations adopted by the Association through
its Board of Directors; provided, however, that such pets are not kept, bred, or maintained for any
commercial purpose. The Board shall have the absolute power to prohibit a pet from being kept on
any Lot in the Development, including, without limitation, inside residences constructed thereon. No
doghouses or other pet enclosures shall be constructed or located on any Lot without the prior written
approval of the DCC. Owners shall not permit pets, if permitted within the Development, to run free
or to defecate in areas other than such pet owner's Lot; and, provided, further, that defecation, even in
or upon a pet owner's lot, shall be promptly removed.
(g) Nuisances. No outside toilets shall be permitted on any Lot in the Development
(except during a period of construction and then only with the consent of the DCC), and no sanitary
waste or other wastes shall be permitted to enter the storm drainage system. No discharge from any
floor drain shall be permitted to enter into the storm drainage system. No noxious or offensive
activities shall be carried on any Lot in the Development, nor shall anything be done on any of said
Lots that shall become or be an unreasonable annoyance or nuisance to any Owner of another Lot in
the Development. By purchase of a Lot, each Owner agrees that any violation of this paragraph
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constitutes a nuisance which may be abated by Declarant or the Association in any manner provided
at law or in equity. The cost or expense of abatement, including, without limitation, court costs and
attorneys' fees, shall become a charge or lien upon the offending Owner's Lot, and may be collected
(i) in any manner provided by law or in equity for collection of a liquidated debt, or (ii) by
foreclosure of said lien in the manner provided for in Section 9.06 for the lien of assessments.
Neither the Declarant, nor any officer, agent, employee or contractor thereof, nor the Association, in
enforcing the provisions of this paragraph shall be liable for any damage which may result from
enforcement hereof.
(h) Garbage, Trash and Other Refuse. No Owner of a Lot in the Development shall
burn or permit the burning out-of-doors of garbage or other refuse, nor shall any such Owner
accumulate or permit the accumulation out-of-doors of such refuse on his Lot except as may be
permitted below. All dwellings built in the Development shall be equipped with a garbage disposal
unit. Every outdoor receptacle for ashes, trash, rubbish or garbage shall be so placed and kept so as
to be enclosed and as not to be visible from any street within the Development or from the Dedicated
Lake Area at any time, except at the time when refuse collections are being made.
(i) Model Homes. No Owner of any Lot in the Development other than Declarant or
persons having the written permission of Declarant shall build or use, or permit the building or use
upon any such Lot of any dwelling that is to be used as a model home or exhibit house.
(j) Temporary Structures. No temporary house, trailer, tent, garage, mini-bam or other
out building shall be placed or erected on any Lot, nor shall any regular overnight camping be
permitted on any Lot; provided, however, that Declarant or any Person specifically authorized by
Declarant may maintain a temporary construction or sales trailer on any Lot or Lots.
(k) Utility Services. No utility services will be installed under any paved areas in the
Development, except by jacking, drilling, or boring, unless specifically approved by the Declarant
(or, after Declarant turns over control of the Association, by the DCC). All utility facilities in the
Development will be underground, except where required to be placed above ground by the
individual utility supplier.
(1) Wells and Septic Tanks. No water wells shall be drilled on any of the Lots in the
Development without the approval of the DCC. No septic tanks shall be installed on any of the Lots
or in any of the Common Areas.
(m) Antennas and Solar Heat Panels. Except as approved by the DCC, no exposed
antennas, satellite dishes in excess of one (1) meter in diameter or solar heat panels shall be allowed
on any Lot or on any residence on any Lot which is visible from outside such residence. All such
items shall be subject to the prior written approval ofthe DCC as to aesthetics, safety and location.
(n) Accessory Outbuildings Prohibited. No accessory outbuildings, including, without
limitation, mini-bams, shall be erected on any of the residential Lots.
(0) Occupancy or Residential Use of Partially Completed Dwelling Houses
Prohibited. No dwelling house constructed on any of the residential Lots shall be occupied or used
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for residential purposes or human habitation until it shall have been substantially completed for
occupancy in accordance with the approved building plan. The determination of whether the house
shall have been substantially completed for occupancy shall be made by the building inspector of the
governmental entity having jurisdiction over the Development and such decision shall be binding on
all parties.
(P) Other Restrictions. All tracts of ground in the Development shall be subject to all
covenants, conditions, easements, restrictions and limitations of record, and to all governmental
zoning authority and regulations affecting the Development, all of which are incorporated herein by
reference.
(q) Fences, Light Fixtures, Etc. In order to preserve the natural quality and aesthetic
appearance of the existing geographic areas within the Development, any fence, basketball goal,
swimming pool, hot tub, play structure (such as swing-set) or other exterior structure must be
approved by the Dee as to size, location, height and composition before it may be installed. Light
fixtures, including, without limitation, fixtures upon or within a structure which shed more than
incidental light outside of such structure, must be approved by the Dee as to size, location, height
and composition before being installed. No metal swing-sets shall be permitted. Any fencing in the
Development will be designed and installed to be as harmonious as possible with the architectural
character of the Community. No fence or screen will be approved if its installation will obstruct
necessary site lines for vehicular traffic. Undue obstruction of view or other amenities from
adjoining properties will be taken into consideration by the Dee when reviewing for approval.
Fences in general shall not be located any closer to the front of the home (i.e. street side of home)
than the rear foundation line of the home. The Dee will discourage fencing of the entire back yard
due to the effect that this fencing may have on the feeling of spaciousness desired by other property
owners. Fences may be privately installed but must be constructed to professional levels of quality.
Non-professionally installed fences will be inspected by the Dee after completion in order to insure
that the final product is of a professional quality and final approval of the fence shall be deemed
withheld until successful completion of this final review.
(i) Height Restriction. The Dee may approve fences up to four (4) feet in
height which otherwise meet these guidelines. The Dee will give consideration, however, to
a variance in this height limit where clearly unique circumstances exist. The use of six (6)
foot fences around small patio areas of a backyard or side yard of a home in order to secure
privacy for the immediate patio area may also be permitted. The specific fence height
restrictions are as follows:
(1) Property fencing and walls above grade shall not exceed four (4) feet
above grade unless otherwise approved by the Dee.
(2) The Dee will not approve any proposed fence which exceeds four (4)
feet in height unless the rear line ofthat Lot offers some circumstance clearly unique
to that Lot.
(3) Patio screens/privacy fences shall not exceed six (6) feet in height.
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(ii) Materials and Finish.
(1 ) Wood fencing or screening will be approved if the design is in
conformity with the architectural design of the Development, and either (i) stained or
complimented to match the exterior colors of the home, or (ii) has a natural wood
finish.
(2) The DCC will not approve an application for the installation of a
chain link or other galvanized metal fencing.
(r) Damaged Structures. No improvement which has partially or totally been destroyed
by fire or otherwise shall be allowed to remain in such state for more than three (3) months from the
time of such destruction or damage.
(s) Prohibition of Used Structures. All structures constructed or placed on any Lot in
the Development, including, without limitation, play structures, shall be constructed with
substantially all new materials, and no used structures shall be relocated or placed on any such Lot
without the prior written approval of the DCC.
(t) Maintenance of Lots and Improvements. Unless the Association is obligated to
perform the same, the Owner of any Lot in the Development shall at all times maintain the Lot and
any improvements situated thereon in such a manner as to prevent the same from becoming unsightly
and, specifically, such Owner shall:
(i) mow and care for the lawn at such times as may reasonably be required in
order to prevent the unsightly growth of vegetation and weeds;
(ii) remove all debris or rubbish;
(iii) prevent the existence of any other condition that reasonably tends to detract
from or diminish the aesthetic appearance of the Development;
(iv) cut down and remove dead trees; and,
(v) keep the exterior of all improvements in such a state of repair or maintenance
as to avoid their becoming unsightly.
(u) Mobile, Manufactured and Modular Homes. All mobile, manufactured and
modular homes as defined in the Carmel/Clay Zoning Ordinance, as amended, are prohibited.
(v) Above Ground Pools. Above ground pools are prohibited.
(w) Garages. All homes shall have an attached garage measuring a minimum of twenty
(20) feet by twenty (20) feet.
(x) Mailboxes and House Numbers. Mailboxes used for each home shall be of uniform
design, as adopted by the Board of Directors. All house numbers shall be of uniform design, as
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adopted by the Board of Directors, and attached to the front of the home in a uniform location visible
from the street and permanently affixed thereto.
(y) Landscaping of Lots. Each and every home located on a Lot shall have landscaping
that shall contain a variety of trees, shrubs, plants and flowers as may be determined and approved by
the DCC as provided herein.
(z) Driveway and Sidewalk Material and Construction. All driveways shall be
surfaced in concrete or brick pavers and sidewalks shall also be concrete or brick. Each Owner of a
Lot shall cause a sidewalk to be installed on his or her Lot contemporaneously with the construction
of a home on such Lot, including all interior Lots on both sides of the streets. Sidewalk materials
shall be consistent throughout the Development as determined by Declarant.
(aa) StreetlightslYardlights. Unless Streetlights are installed by Declarant or the
Association, which installation is not mandatory but subject to the discretion of the Declarant or the
Association, all Lots with homes located thereon shall have a dusk-to-dawn yard light. Such dusk-
to-dawn yard light shall be of uniform design as approved by the Board of Directors of the
Association.
ARTICLE III.
MEMBERSHIP AND VOTING RIGHTS
Section 3.01. Membership. Every Owner of a Lot shall be a Member of the Association.
Membership shall be appurtenant to and may not be separated from ownership of any Lot.
Section 3.02. Classes of Membership. The Association shall have two (2) classes of
Members consisting of Class A Members and the Class B Member.
(a) Class A. Class A Members shall be all Owners of Lots with the exception of the
Declarant. Except as otherwise provided herein or in the Articles of Incorporation, each Owner shall
be entitled to one vote for each Lot owned. When more than one person is an Owner of a Lot, all
such persons shall be Members. The vote for such Lot shall be exercised by the person whom the
collective Members with respect to such Lot may designate. In the event that a Membership stands
of record in the names of at least two (2) Persons, then if one Person votes, the vote binds all
Persons. In no event shall such vote be split into fractional votes and in no event shall more than one
vote be cast with respect to any Lot. Each vote cast with respect to a Lot shall presumptively be
valid, but if such vote is questioned by any Member holding any interest in such Lot and if all such
Members holding an interest in the Lot are not in agreement as to the validity of the vote for such Lot
which is questioned, then such vote shall not be counted. In addition, the Association may reject a
vote, consent, waiver or proxy appointment if there is a reasonable basis to doubt the validity of a
signature or the signatory's authority.
(b) Class B. The Declarant shall be the sole Class B Member. The Class B Member
shall be entitled to ten (10) votes per Platted Lot that it owns for so long as it shall own any Lot or
other real estate in the Development or until the Declarant's Class B membership is converted to a
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Class A membership ifthat occurs earlier. The Class B membership shall cease and be converted to
a Class A membership on the happening of the first to occur of the following events:
(i) when the Class B Member no longer owns or is the contract purchaser of at
least one of the Lots in the Development;
(ii) when the Class B Member voluntarily surrenders its Class B membership; or,
(iii) fifteen (15) years after the first Lot is conveyed to an Owner in any portion of
the Development.
Section 3.03. Board of Directors. Subsequent to the Control Transfer Date, the Board of
Directors of the Association shall be as prescribed by the Association's Bylaws. The Board of
Directors shall manage the affairs of the Association. The initial Board of Directors shall be
appointed by Declarant and shall manage the affairs of the Association until the Control Transfer
Date.
Section 3.04. Professional Manaeement. No contract or agreement for professional
management of the Association by Declarant nor any other contract between the Association and
Declarant shall be for a term in excess oftwo (2) years.
Section 3.05. Responsibilities of the Association. The Association is hereby authorized
to act and shall act on behalf of, and in the name, place, and stead of, the individual Owners in all
matters pertaining to the maintenance, repair, and replacement of the Common Areas, the
determination of Common Expenses, the collection of annual assessments and Special Assessments,
and the granting of any approvals whenever and to the extent called for by this Declaration for the
common benefit of all such Owners. The Association shall also have the right, but not the
obligation, to act on behalf of any Owner or Owners in seeking enforcement of the terms, covenants,
conditions and restrictions contained in this Declaration. Neither the Association nor its officers or
authorized agents shall have any liability whatsoever to any Owner for any action taken under color
of authority of this Declaration or for any failure to take any action called for by this Declaration,
unless such act or failure to act is in the nature of a willful disregard ofthe rights of the Owners or in
the nature of willful, intentional, or fraudulent misconduct. The Association shall procure and
maintain insurance in accordance with the provisions of Article V hereof. The Association may
contract for such services as management, snow removal, security control, mowing, maintenance of
areas subject to construction easements, trash removal, and such other services as the Association
deems necessary or advisable.
Section 3.06. Control and Transfer of Control of Association. Until the Control
Transfer Date, the Board of Directors of the Association shall consist of persons appointed by
Declarant.
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ARTICLE IV.
MAINTENANCE
Section 4.01.
Maintenance.
(a) The Association shall maintain and keep in good repair the Common Area. The
maintenance of the Common Area shall be deemed to include, without limitation, maintenance,
repair and replacement, subject to the insurance and casualty loss provisions contained herein, at the
Association's sole cost and expense as Common Expense, of all trees, fences, walls, shrubs, grass,
Streets, Common Area parking spaces, paths, walks, Drainage System improvements, the entry gate,
accent or special effect lighting system, central signage for the Development including, without
limitation, street signage and other improvements situated upon the Common Area.
(b) In the event that the Board of Directors of the Association determines that (i) any
Owner has failed or refused to discharge properly his or her obligations with regard to the
maintenance, repair, or replacement of items for which he or she is responsible hereunder or
otherwise; or, (ii) that the need for maintenance, repair, or replacement, which is the responsibility of
the Association hereunder, is caused through the willful or negligent act of an Owner, his or her
family, guests, lessees, or invitees, and is not covered or paid for by insurance, in whole or in part,
then, in that event, the Association, except in the event of an emergency situation, shall give the
Owner written notice of the Association's intent to provide such necessary maintenance, repair, or
replacement, at the Owner's sole cost and expense; the notice shall set forth with reasonable
particularity the maintenance, repairs, or replacement required and shall advise the Owner to
complete the same within three (3) days from the date of such notice; provided, however, that ifthe
same is not capable of completion within the three (3) day period, such notice shall advise the Owner
to immediately commence such work which shall be completed within a reasonable time. If any
Owner does not comply with the provisions hereof, the Association may provide any such
maintenance, repair, or replacement at Owner's sole cost and expense, and the cost shall be added to
and become a part of the assessment to which such Owner is subject and shall become a lien against
such Owner's Lot.
( c) The cost of snow removal and landscaping maintenance in excess of amounts
budgeted therefor shall be paid by the Owners (on the same basis as assessments for Common
Expenses are allocated to the Owners in accordance with Section 9.03 hereof) by a Special
Assessment. In the event the Association enters into contracts for snow removal and landscaping
maintenance while Declarant controls the Association, the Association shall indemnify and hold
Declarant harmless from all liability and obligations with respect thereto. This Section 4.01(c) is
included herein in recognition of the fact that the costs of snow removal and landscaping
maintenance for the Development may substantially exceed amounts budgeted therefor by the
Association due to inordinate snow fall, an inordinate number of snow falls during any season,
general weather conditions, agricultural conditions and amount of use. Nothing contained herein
shall be construed to require that the Association provide snow removal service for the Development.
In the event snow removal service is to be provided for the Development an amount therefor shall be
included in the annual budget and collected as a Common Expense with the understanding that a
Special Assessment may be necessary in the event the amount budgeted therefor is insufficient to
defray the actual snow removal costs.
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ARTICLE V.
INSURANCE
Section 5.01. Insurance.
(a) The Association's Board of Directors, or its duly authorized agent, shall have the
authority to and shall obtain insurance for all insurable improvements on the Common Area against
loss or damage by fire or other hazards, including, without limitation, extended coverage, vandalism,
and malicious mischief. This insurance shall be in an amount sufficient to cover the full replacement
cost of any repair or reconstruction in the event of damage or destruction from any such hazard.
(b) The Board shall also obtain a public liability policy covering the Common Area, the
Association, and its officers and Members for all damage or injury caused by the negligence ofthe
Association or any of its officers or Members or agents. The public liability policy shall have at least
a Five Hundred Thousand Dollar ($500,000) single person limit as respects bodily injury and
property damage, a One Million Dollar ($1 ,000,000) limit per occurrence, and a Two Hundred Fifty
Thousand Dollar ($250,000) minimum property damage limit. Premiums for all insurance on the
Common Area shall be Common Expenses of the Association. The policy may contain a reasonable
deductible, and the amount thereof shall be added to the face amount of the policy in determining
whether the insurance at least equals the full replacement cost.
(c) All such insurance coverage obtained by the Board of Directors shall be written in the
name of the Association as Trustee for the respective benefited parties, as further identified below.
Such insurance shall be governed by the provisions hereinafter set forth:
(i) All policies shall be written with a company licensed to do business in Indiana
and holding a rating of XI or better in the Financial Category as established by A.M. Best
Company, Inc., if reasonably available, or, if not available, the most nearly equivalent rating.
(ii) All policies on the Common Area shall be for the benefit of the Lot Owners
and their mortgagees as their interests may appear.
(iii) Exclusive authority to adjust losses under policies in force on the
Development obtained by the Association shall be vested in the Association's Board of
Directors; provided, however, no mortgagee having an interest in such losses may be
prohibited from participating in the settlement negotiations, if any, related thereto.
(iv) In no event shall the insurance coverage obtained and maintained by the
Association's Board of Directors hereunder be brought into contribution with insurance
purchased by individual Owners, occupants, or their mortgagees.
(v) All casualty insurance policies shall have an inflation guard endorsement, if
reasonably available, and an agreed amount endorsement with an annual review by one or
more qualified persons, at least one of whom must be in the real estate industry and familiar
with construction in the Hamilton County area.
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(vi) The Association's Board of Directors shall be required to make every
reasonable effort to secure insurance policies that will provide for the following:
(1) a waiver of subrogation by the insurer as to any claims against the
Association's Board of Directors, its manager, the Owners, and their respective
tenants, servants, agents, and guests;
(2) a waiver by the insurer of its rights to repair, and reconstruct, instead
of paying cash;
(3) that no policy may be cancelled, invalidated, or suspended on account
of anyone or more individual Owners;
(4) that no policy may be cancelled, invalidated, or suspended on account
of the conduct of any director, officer, or employee of the Association or its duly
authorized manager without prior demand in writing delivered to the Association to
cure the defect and the allowance of a reasonable time thereafter within which the
defect may be cured by the Association, its manager, any Owner, or mortgagee;
(5) that any "other insurance" clause in any policy exclude individual
Owners' policies from consideration; and,
(6) that no policy may be cancelled or substantially modified without at
least thirty (30) days' prior written notice to the Association.
(d) In addition to the other insurance required by this Section, the Board shall obtain, as a
Common Expense, worker's compensation insurance, if and to the extent necessary, and a fidelity
bond or bonds on directors, officers, employees, and other persons handling or responsible for the
Association's funds. The amount of fidelity coverage shall be determined in the Board's best
business judgment, but may not be less than three (3) months' assessments plus reserves on hand.
Bonds shall contain a waiver of all defenses based upon the exclusion of persons serving without
compensation and may not be cancelled or substantially modified without at least thirty (30) days'
prior written notice to the Association.
Section 5.02. Individual Insurance. By virtue of taking title to a Lot subject to the terms
of this Declaration, each Owner covenants and agrees with all other Owners and with the Association
that such Owner shall carry blanket all-risk casualty insurance on such Owner's Lot and structures
constructed thereon. Each individual Owner further covenants and agrees that in the event of a
partial loss or damage and destruction resulting in less than total destruction, the individual Owner
shall proceed promptly to repair or to reconstruct the damaged structure in a manner consistent with
the original construction. In the event that the structure is totally destroyed and the individual Owner
determines not to rebuild or to reconstruct, the individual Owner shall clear the Lot of all debris and
return it to substantially the natural state in which it existed prior to the beginning of construction.
The Association may impose more stringent requirements regarding the standards for rebuilding or
reconstructing structures on the Lot and the standard for returning the Lot to its natural state in the
event the Owner decides not to rebuild or reconstruct.
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Section 5.03. Disbursement of Proceeds. Proceeds of insurance policies written in the
name of the Association shall be disbursed as follows:
(a) If the damage or destruction for which the proceeds are paid is to be repaired or
reconstructed, the proceeds, or such portion thereof as may be required for such purpose, shall be
disbursed in payment of such repairs or reconstruction as hereinafter provided. Any proceeds
remaining after defraying such costs of repairs or reconstruction to the Common Area or, in the event
no repair or reconstruction is made, after making such settlement as is necessary and appropriate
with the affected Owner or Owners and their mortgagee(s) as their interests may appear, shall be
retained by and for the benefit of the Association and placed in a capital improvements account.
This is a covenant for the benefit of any mortgagee of a Lot and may be enforced by such mortgagee.
(b) If it is determined that the damage or destruction to the Common Area for which the
proceeds are paid shall not be repaired or reconstructed, such proceeds shall be disbursed in the
manner as provided for excess proceeds in Section 5.03(a).
Section 5.04.
Damae:e and Destruction.
(a) Immediately after the damage or destruction by fire or other casualty to all or any part
of the Development covered by insurance written in the name of the Association, the Board of
Directors, or its duly authorized agent, shall proceed with the filing and adjustment of all claims
arising under such insurance and obtain reliable and detailed estimates of the cost of repair or
reconstruction of the damaged or destroyed portions of the Development. Repair or reconstruction,
as used in this paragraph means repairing or restoring the Development to substantially the same
condition in which it existed prior to the fire or other casualty.
(b) Any damage or destruction to the Common Area shall be repaired or reconstructed
unless the Class B Member and at least seventy-five percent (75%) of the Eligible Votes shall decide
within sixty (60) days after the casualty not to repair or reconstruct. If for any reason the amount of
the insurance proceeds to be paid as a result of such damage or destruction, or reliable and detailed
estimates of the cost of repair or reconstruction, or both, are not made available to the Association
within said period, then the period shall be extended until such information shall be made available;
provided, however, such extension shall not exceed sixty (60) days. No mortgagee shall have the
right to participate in the determination of whether the Common Area damage or destruction shall be
repaired or reconstructed.
(c) In the event that it should be determined by the Association in the manner described
above that the damage or destruction ofthe Common Area shall not be repaired or reconstructed and
no alternative improvements are authorized, then and in that event the damaged portion of the
Development shall be restored to its natural state and maintained as an undeveloped portion of the
Common Area by the Association in a neat and attractive condition.
Section 5.05. Repair and Reconstruction. If the damage or destruction for which the
insurance proceeds are paid is to be repaired or reconstructed, and such proceeds are not sufficient to
defray the cost thereof, the Board of Directors shall use general funds or seek a special assessment as
permitted in Section 9.04.
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ARTICLE VI.
NO PARTITION
Section 6.01. No Partition. Except as is permitted in this Declaration, there shall be no
physical partition of the Common Area or any part thereof, nor shall any Person acquiring any
interest in the Development or any part thereof seek any suchjudicial partition until the happening of
the conditions set forth in Section 5.03 in the case of damage or destruction, or unless the applicable
portions of the Development have been removed from the provisions of this Declaration. This
Article shall not be construed to prohibit the Board of Directors from acquiring and disposing of
tangible personal property nor from acquiring title to real property which mayor may not be subject
to this Declaration.
ARTICLE VII.
CONDEMNATION
Section 7.01. Condemnation.
( a) Whenever all or any part of the Common Area shall be taken (or conveyed in lieu of
and under threat of condemnation by the Board of Directors acting on the written direction of a
majority of the Owners) by any authority having the power of condemnation or eminent domain,
each Owner shall be entitled to notice thereof. The award made for such taking shall be payable to
the Association as Trustee for all Owners, to be disbursed as set forth in Section 7.0Hb) hereof.
(b) If the taking involves a portion of the Common Area on which improvements have
been constructed, then, unless within sixty (60) days after such taking the Class B Member and
seventy- five (75%) per cent of the Eligible Votes shall otherwise agree, the Association shall restore
or replace such improvements so taken on the remaining land included in the Common Area to the
extent lands are available therefore, in accordance with plans approved by the Board of Directors of
the Association. If such improvements are to be repaired or restored, the above provisions in
Article V hereof regarding the disbursement of funds in respect to casualty damage or destruction
which is to be repaired shall apply. If the taking does not involve any improvements on the Common
Area, or if there is a decision made not to repair or restore, or if there are net funds remaining after
any such restoration or replacement is completed, then such award or net funds shall be disbursed to
the Association and used for such purposes as the Board of Directors of the Association shall
determine.
ARTICLE VIII.
RIGHTS AND OBLIGATIONS OF THE ASSOCIATION
Section 8.01. Common Area. The Association, subject to the rights of the Owners set
forth in this Declaration, shall be responsible for the exclusive management and control of the
Common Area and all improvements thereon (including, without limitation, furnishings and
equipment related thereto, if any), and shall keep it in good, clean, attractive, and sanitary condition,
order, and repair, pursuant to the terms and conditions of this Declaration and the Bylaws.
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Section 8.02. Services. The Association may obtain and pay for the services of any
person or entity to manage its affairs or any part thereof, to the extent it deems advisable, as well as
such other personnel as the Association shall determine to be necessary or desirable for the proper
operation of the Development, whether such personnel are furnished or employed directly by the
Association or by any person or entity with whom or with which it contracts. The Association may
obtain and pay for legal and accounting services necessary or desirable in connection with the
operation of the Development or the enforcement of this Declaration. The Association may, but
shall not be required to, arrange as an Association expense with third parties to furnish water, trash
collection, sewer service, snow removal, security, lawn and landscaping service and other common
services to each Lot. The Association as of the Control Transfer Date shall and does hereby assume
all rights, responsibilities and obligations of any contract or agreement entered into by the Declarant
for services or other work to be performed upon or for the benefit of the Development and/or the
Association, subject only to the express terms and conditions set forth in such contract or agreement
and as may be modified or supplemented by these Declarations.
Section 8.03. Personal ProDertv and Real ProDertv for Common Use. The
Association, through action of its Board of Directors, may acquire, hold and dispose of tangible and
intangible personal property and real property. The Board, acting on behalf of the Association, shall
accept any real or personal property, leasehold, or other property interests located within the
properties described in Exhibit A attached hereto and conveyed to it by the Declarant.
Section 8.04. ImDlied Rie:hts. The Association may exercise any other right or privilege
given to it expressly by this Declaration, the Articles ofIncorporation or the Bylaws, and every other
right or privilege reasonably to be implied from the existence of any right or privilege given to it
herein or reasonably necessary to effectuate any such right or privilege.
Section 8.05. Self-HelD. In addition to any other remedies provided for herein, the
Association or its duly authorized agent shall have the power to enter upon a Lot or any portion of
the Common Area to abate or remove, using such force as may be reasonably necessary, any
erection, thing or condition which violates this Declaration, the Bylaws, the rules and regulations, or
the use restrictions. Unless an emergency situation exists, the Board shall give the violating Owner
five (5) days' written notice of its intent to exercise self-help. All costs of self-help, including,
without limitation, reasonable attorney's fees and paraprofessional fees actually incurred shall be
assessed against the violating Owner and shall be collected as provided for herein for the collection
of assessments.
Section 8.06. Rie:ht of Entrv. The Association shall have the right, in addition to and not
in limitation of all the rights it may have, to enter into structures and upon Lots for emergency,
security, or safety purposes, which right may be exercised by the Association's Board of Directors,
officers, agents, employees, managers, and all police officers, firefighters, ambulance personnel, and
similar emergency personnel in the performance of their respective duties. Except in an emergency
situation, entry shall only be during reasonable hours and after reasonable notice to the Owner or
occupant of the Lot.
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ARTICLE IX.
ASSESSMENTS
Section 9.01. Purpose of Assessment. The assessments for Common Expenses provided
for herein shall be used for the general purposes of promoting the recreation, health, safety, welfare,
common benefit, and enjoyment of the Owners and occupants of Lots, including, without limitation,
the maintenance of real and personal property, all as may be more specifically authorized from time
to time by the Board of Directors. The word "assessments" as used herein shall mean all assessments
referred to herein for Common Expenses, including, without limitation, Special Assessments.
Section 9.02. Creation of Assessments.
(a) There are hereby created assessments for Common Expenses as may be from time to
time authorized by the Board of Directors. Assessments for Common Expenses shall be allocated
among all Owners within the Association as described in Section 9.03 hereof and shall be for
expenses determined by the Board to be for the benefit of the Association as a whole. Each Owner,
by acceptance of his or her deed, is deemed to covenant and agree to pay all assessments created or
referenced herein. All such assessments, together with interest, not to exceed the maximum legal
rate, and all late charges from the date first due and payable, all costs of collection, reasonable
attorney's fees and paraprofessional fees actually incurred, and any other amounts provided or
permitted by law, shall be a charge on the land and shall be a continuing lien upon the Lot against
which each assessment is made.
(b) Each such assessment, together with interest, costs, and reasonable attorney's fees and
paraprofessional fees, shall also be the personal obligation ofthe person who was the Owner of such
Lot at the time the assessment arose, and his or her grantee shall be jointly and severally liable for
such portion thereof as may be due and payable at the time of conveyance, except no first mortgagee
who obtains title to a Lot pursuant to the remedies provided in the Mortgage shall be liable for
unpaid assessments which accrued prior to such acquisition of title. Assessments shall be paid in
such manner and on such dates as may be fixed by the Board of Directors which may include,
without limitation, montWy, quarterly, semi-annually or annually and acceleration of the annual
assessment for delinquents. Unless the Board otherwise provides, all assessments shall be paid
annually.
Section 9.03. Computation of Assessment.
(a) It shall be the duty ofthe Board, at least sixty (60) days before the beginning of the
fiscal year and thirty (30) days prior to the meeting at which the budget shall be presented to the
Membership, to prepare a budget covering the estimated costs of operating the Association during
the coming year. The budget shall include, without limitation, a capital contribution establishing a
reserve fund in accordance with a capital budget separately prepared and shall list Common
Expenses. Each Owner of any Lot in the Development hereby covenants and agrees to pay to the
Association its allocated share (the "Allocated Share") of the annual assessments for Common
Expenses for the Development, as fixed, established and determined from time to time as herein
provided. The Allocated Share of each Owner in the Development shall be determined by the
Declarant and shall be based upon a combination of the following factors: (i) the projected number of
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Lots in the Development; (H) the square footage of each Lot; (Hi) the number of Lots owned by
Owners other than the Declarant; and, (iv) any other factor which the Declarant may determine, from
time to time, is in the best interest of Declarant and the Development. The method by which the
Declarant allocates the Common Expenses among Owners may be changed from time to time prior
to the Control Transfer Date as changes occur in the four (4) factors set forth above. The method of
computing each Owner's Allocated Share that is used by the Declarant on the Control Transfer Date
shall be the method used by the Board subsequent to the Control Transfer Date unless a change in
method is approved by two-thirds (2/3) of all Eligible Votes. The Board shall cause a copy of the
budget, the amount of the assessments to be levied against each Lot for the following year and a
description of the method used in determining the assessments to be delivered to each Owner at least
fifteen (15) days prior to the meeting. Each segment of the budget including, without limitation, the
assessments for Common Expenses shall become effective unless disapproved at the meeting by a
vote of at least two-thirds (2/3) of all Eligible Votes.
(b) Notwithstanding the foregoing, however, in the event that (i) the proposed budget or
the assessments for Common Expenses are disapproved in accordance with Section 9.03(a), or
(ii) the Board fails for any reason so to determine the budget for the succeeding year, then and until
such time as a budget (or such portion thereof or assessments as shall have been disapproved in
accordance with the foregoing) shall have been determined as provided herein, the budget (or
applicable portion thereof or assessments) in effect for the then current year shall continue for the
succeeding year.
(c) In the event that the amounts actually expended by the Association for Common
Expenses in any fiscal year exceed the amounts budgeted and assessed for Common Expenses for
that fiscal year, the amount of such deficit shall be carried over and become an additional basis for
assessments for the following fiscal year, except that so long as the Declarant controls the
Association, and subject to Declarant's rights to impose Special Assessments as described in
Section 4.01(c) hereof, Declarant may, but shall be under no obligation, to fund such deficit;
provided, however, that Declarant shall be reimbursed by the Association for any deficits so funded,
together with interest at ten percent (10%) per annum until so reimbursed, from available surpluses
in later years or through Special Assessments. Thereafter, such deficit may be recouped either by
inclusion in the budget for annual assessments or by the making of one or more Special Assessments
for such purpose, at the option of the Association. In the event that the amounts budgeted and
assessed for Common Expenses in any fiscal year exceed the amount actually expended by the
Association for Common Expenses for that fiscal year, an allocable share of such excess (based on
the amounts originally levied as assessments) shall be a credit against the assessments due from each
Owner for the next fiscal year(s); provided, however, that the Declarant shall first be reimbursed for
deficits previously paid, with interest, as required above before such excess shall be so credited to
Owners.
(d) During the first three (3) years following the date of recordation of this Declaration,
the total assessments per Lot per year for Common Expenses shall not exceed Five Thousand Dollars
($5,000.00), pro-rated for partial years.
Section 9.04. Special Assessments. In addition to the other assessments authorized
herein, the Association may levy Special Assessments in any year. So long as the total amount of
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Special Assessments allocable to each Lot does not exceed Ten Thousand Dollars ($10,000.00) in
anyone fiscal year, the Board may impose the Special Assessment. Any Special Assessment which
would cause the amount of Special Assessments allocable to any Lot to exceed this limitation shall
be effective only if approved by two-thirds (2/3) ofthe Members. Special Assessments shall be paid
as determined by the Board, and the Board may permit Special Assessments to be paid in
installments extending beyond the fiscal year in which the Special Assessment is imposed. The
dollar and percentage limitations contained in this Section 9.04 shall not apply to assessments levied
pursuant to Section 4.01(c) hereof, and the total of Special Assessments hereunder shall be
calculated without inclusion of any assessments levied pursuant to Section 4.01(c) hereof.
Section 9.05. Lien for Assessments.
(a) All sums assessed against any Lot pursuant to this Declaration, together with late
charges, interest, costs, and reasonable attorney's fees and paraprofessional fees actually incurred, as
provided herein, shall be secured by a lien on such Lot in favor of the Association. Such lien shall be
superior to all other liens and encumbrances on such Lot, except for (i) liens of ad valorem taxes; or,
(ii) liens for all sums unpaid on a first Mortgage or on any Mortgage to Declarant duly recorded in
the office ofthe Recorder of Hamilton County, Indiana, and all amounts advanced pursuant to such
Mortgage and secured thereby in accordance with the terms of such instrument.
(b) All other Persons acquiring liens or encumbrances on any Lot after this Declaration
shall have been recorded in such records shall be deemed to consent that such liens or encumbrances
shall be inferior to future liens for assessments, as provided herein, whether or not prior consent is
specifically set forth in the instruments creating such liens or encumbrances.
Section 9.06. Effect of Nonpavment of Assessments: Remedies of the Association.
(a) Any assessments which are not paid when due shall be delinquent. Any assessment
delinquent for a period of more than ten (10) days shall incur a late charge in an amount as the Board
of Directors may from time to time determine. The Association shall cause a notice of delinquency
to be given to any Member who has not paid within ten (10) days following the due date. If the
assessment is not paid within thirty (30) days, a lien, as herein provided, shall attach and, in addition,
the lien shall include, without limitation, the late charge, interest, not to exceed the maximum legal
rate, on the principal amount due, and all late charges from the date first due and payable, all costs of
collection, reasonable attorneys' fees and paraprofessional fees actually incurred, and any other
amounts provided or permitted by law. In the event that the assessment remains unpaid after sixty
(60) days, the Association may, as the Board of Directors shall determine, institute suit to collect
such amounts and to foreclose its lien. Each Owner, by acceptance of a deed or as a party to any
other type of a conveyance, vests in the Association or its agents the right and power to bring all
actions against him or her, personally, for the collection of such charges as a debt or to foreclose the
aforesaid lien in the same manner as other liens for the improvement of real property. The lien
provided for in this Article shall be in favor of the Association and shall be for the benefit of all other
Owners. The Association, acting on behalf of the Owners, shall have the power to bid on the Lot at
any foreclosure sale or to acquire, hold, lease, mortgage, or convey the Lot. No Owner may waive or
otherwise except liability for the assessments provided for herein, including, by way of illustration,
but not limitation, abandonment of the Lot.
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(b) All payments shall be applied first to costs and attorney and paraprofessional fees,
then to late charges, then to interest, then to delinquent assessments, then to any unpaid installments
of the annual assessment or special assessments which are not the subject matter of suit in the order
of their coming due, and then to any unpaid installments of the annual assessment or special
assessments which are the subject matter of suit in the order of their coming due.
Section 9.07. Capital Bude:et and Contribution. The Board of Directors shall annually
prepare a capital budget which shall take into account the number and nature of replaceable assets,
the expected life of each asset, and the expected repair or replacement cost for the Common Area.
The capital budget prepared by the Board of Directors shall also take into account the projected
repair and replacement cost for all private drives for which repair and replacement a sinking fund
shall be established and maintained by the Association. The Board shall set the required capital
contribution, if any, in an amount sufficient to permit meeting the projected capital needs of the
Association as shown on the capital budget, with respect to both amount and timing by annual
assessments over the period of the budget. The capital contribution required shall be fixed by the
Board of Directors and included within the budget and assessment for Common Expenses as
provided in Section 9.03. A copy of the capital budget shall be distributed to each Member in the
same manner as the operating budget.
Section 9.08. Subordination of the Lien to First Morte:ae:es. The lien of the
assessments, including, without limitation, interest, late charges, costs (including, without limitation,
attorneys' fees and paraprofessional fees) provided for herein, shall be subordinate to the lien of any
first Mortgage upon any Lot. The sale or transfer of any Lot shall not affect the assessment lien.
However, the sale or transfer of any Lot pursuant to judicial or non-judicial foreclosure of a first
Mortgage shall extinguish the lien of such assessments as to payments which become due prior to
such sale or transfer (subj ect to the right of the Association to payment out of available foreclosure
sale proceeds). No sale or transfer shall relieve such Lot from lien rights for any assessments
thereafter becoming due. Where the mortgagee of a first Mortgage of record or other purchaser of a
Lot obtains title, his or her successors and assigns shall not be liable for the share of the Common
Expenses by the Association chargeable to such Lot which became due prior to the acquisition of
title to such Lot by such acquirer. Such unpaid share of Common Expenses shall be deemed to be
Common Expenses collectible from all the Lots, including, without limitation, such acquirer, his or
her successors and assigns.
Section 9.09. Capitalization of Association. Unless otherwise provided in a
supplemental declaration, on the earlier of (A) the date a Lot is conveyed by Declarant to an Owner
(other than the holder of a first mortgage on such lot in a conveyance which constitutes a deed in lieu
of foreclosure), (B) the date a structure constructed on the Lot has been certified for occupancy by
the appropriate zoning authority, or (C) the date a structure on the Lot is first occupied by an Owner
or other occupant upon completion of construction thereof, there shall be due and payable to the
Association by the Owner of such Lot the sum of Five Hundred Dollars ($500.00) which shall be
deposited by the Declarant or the Association into a reserve account which shall not be utilized by
Declarant or the Association until after the Control Transfer Date.
Section 9.10. Date of Commencement of Annual Assessments. The annual assessments
provided for herein shall commence as to a particular Lot on the first day of the month following the
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conveyance of such Lot by the Declarant to an Owner (who is not a commercial builder), or by an
Owner who is a commercial builder to an Owner who is an end-user and shall be due and payable in
a manner and on a schedule as the Board of Directors may provide. The first annual assessment shall
be adjusted according to the number of months then remaining in that fiscal year. The date any Lot
becomes subject to assessment hereunder shall be the date on which such Lot is transferred by
Declarant to an Owner; provided, however, that Declarant may, in its sole and absolute discretion
delay the starting date for assessments for as long as Declarant shall deem appropriate in its sole and
absolute discretion but assessments shall in all events be payable commencing on the first day of the
first month following the date the Lot is occupied for the residential purposes or is suitable for such
occupancy as evidenced, for example, by the appropriate official of the City of Carmel or of
Hamilton County, Indiana, or an architect issuing a certificate of occupancy or its equivalent stating
that the residential structure on such Lot is substantially complete and available for occupancy.
Section 9.11. Assessments bv Declarant.
(a) Declarant covenants and agrees to pay the full amount of the annual assessment for
each Lot occupied for residential purposes that it owns; provided, however, notwithstanding anything
contained herein to the contrary, Declarant shall not be required to pay any assessments for any Lots
not occupied for residential purposes that it owns, including, without limitation, model homes.
(b) Notwithstanding anything to the contrary herein, Declarant may contribute
assessments due from it in services or materials or a combination of services and materials, rather
than in money (herein collectively called "In-Kind Contribution"). The amount by which monetary
assessments shall be decreased as a result of any In-Kind Contribution shall be the fair market value
of the In-Kind Contribution. If Declarant and the Association agree as to the value of any In-Kind
Contribution, the value shall be as agreed. If the Association and Declarant cannot agree as to the
value of any In-Kind Contribution, Declarant shall supply the Association with a detailed
explanation of the service performed and material furnished, and the Association shall acquire bids
for performing like services and furnishing like materials from three (3) independent contractors
approved by Declarant who are in the business of providing such services and materials. If the
Association and Declarant are still unable to agree on the value of the In-Kind Contribution, the
value shall be deemed to be the average of the bids received from the independent contractors.
Section 9.12. Architectural Control Assessment. If any owner or person acting for or
on behalf of, or pursuant to the authorization or acquiescence of, an Owner fails to comply with the
architectural control standards promulgated by the DCC as contemplated by Article X of these
Declarations, then the Declarant or the Association may levee against the Lot owned by such Owner
an assessment in an amount determined by the DCC, as such amounts are applied on a consistent
basis, which does not exceed the greater of (A) One Hundred Dollars ($100.00) for each day that
such failure continues after written notice is given by the DCC or the Declarant to such Owner, or
(B) Five Thousand Dollars ($5,000.00). Such assessment shall constitute a lien upon the Lot of such
Owner and may be enforced in any manner provided by these Declarations. The levee of an
architectural control assessment shall be in addition to, and not in lieu of, any other remedies
available to the Declarant and/or the Association provided for in this Declaration, at law or in equity
in the case of the failure to comply with the provisions of this Declaration.
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Section 9.13. Certificates. The DCC and/or the Association shall, upon demand by an
Owner, at any time, furnish a certificate in writing signed by an officer of the Association or a
member of the DCC that (A) the Assessments on a Lot have been paid, or that certain assessments
remain unpaid, as the case may be, (B) the amounts of any unpaid assessments, the dates when such
assessments were due and/or any late fees or penalties related thereto, and (C) that an Owner and/or a
Lot is in compliance with the Declarations, the DCC architectural standards, and any other rules or
regulations promulgated and applicable to the Owner or the Lot. No individual Owner may request
more than one (1) such certificate during any calendar year, except where good cause exists for such
Owner to request multiple certificates (in which case the request for additional certificates must be
reasonable under the circumstances).
ARTICLE X.
ARCHITECTURAL STANDARDS
Section 10.01. Architectural Standards Jurisdiction. The Board of Directors shall have
the authority and standing, on behalf of the Association, to enforce in courts of competent
jurisdiction decisions of the Development Control Committee established herein. The DCC shall
have the right to unilaterally promulgate, modify, and amend at any time and from time to time, on
behalf of the Board of Directors and the Association, architectural, development and site planning
guidelines and standards which shall be binding on all Owners of Lots within the Development, as
determined in the reasonable discretion of the DCC. Such guidelines and standards will include,
without limitation, requirements and restrictions regarding drainage, landscaping, tree removal,
sidewalks, etc., as well as the construction of improvements. Such guidelines and standards and
amendments thereto may be recorded in the Office of the Recorder of Hamilton County, Indiana, by
the Declarant until the Control Transfer Date and subsequently thereto by the Association.
Compliance with these guidelines and standards shall not relieve Owners of their obligation to
comply with any and all applicable zoning ordinances, restrictions, development statements, or any
other similar requirement.
No construction, including, without limitation, staking, clearing, excavation, grading, and
other site work, and no planting or removal of plants, trees, or shrubs, fences, walls or other
structures shall take place except in strict compliance with this Article, until the requirements thereof
have been fully met, and until the written approval of the DCC has been obtained.
Section 10.02. New Construction. The Dee shall have exclusive jurisdiction over all
original construction on any portion of the Development. The Dee shall prepare and, on behalf of
the Board of Directors, shall promulgate design guidelines and application procedures. The
standards and procedures shall be those of the Association, and the Dce shall have sole and full
authority to prepare and to amend the standards and procedures. It shall make both available to
Owners, builders, and developers who seek to engage in development of or construction upon all or
any portion of the Development and who shall conduct their operations strictly in accordance
therewith. Until all the real estate included in the Development has been conveyed by Declarant to
purchasers in the normal course of development and sale, the Declarant retains the right to appoint
all members of the DCe, which shall consist of at least three (3), but no more than five (5), persons.
There shall be no surrender of this right prior to that time, except in a written instrument in
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recordable form executed by Declarant. Upon the expiration of such right, the Board of Directors
shall appoint the members of the Dec.
Section 10.03. Modifications. The Dee shall have exclusive jurisdiction over
modifications, additions, or alterations made on or to existing Lots or structures thereon and the open
space, if any, appurtenant thereto; provided, however, the Dee may delegate this authority to the
appropriate board or committee of any residential association subsequently created or subsequently
subjected to this Declaration so long as the Dee has determined that such board or committee has in
force review and enforcement practices, procedures and appropriate standards at least equal to those
of the Dee. Such delegation may be revoked and jurisdiction reassumed at any time by written
notice. No permission or approval shall be required to repaint in accordance with an originally
approved color scheme, or to rebuild in accordance with originally approved plans and
specifications. Nothing contained herein shall be construed to limit the right of an Owner to remodel
the interior of his or her residence, or to paint the interior of his or her residence any color desired.
Section 10.04. Procedures for Approval. For any construction, approvals required by
this Article shall be obtained only after written application has been made to the Dee by the Owner
of the Lot requesting authorization (or such Owner's duly authorized representative). Such written
application shall be in the manner and form prescribed from time to time by the Dee and shall be
accompanied by two (2) complete sets of plans and specifications for any such proposed
construction, improvement or modification. Such plans shall include plot plans showing the location
of all improvement existing upon the Lot and the location of the improvements proposed to be
constructed or placed upon the Lot, each properly and clearly designated, if applicable. Such plans
and specifications shall set forth the color and composition of all exterior materials proposed to be
used and any proposed landscaping, together with any other material or information which the Dee
may require. All plans and drawings required to be submitted to the Dee shall be drawn to such
scale as the Dee may require. There shall also be submitted, where applicable, the permits or plat
plans which shall be prepared by either a registered land surveyor, engineer or architect. Plat plans
submitted for improvement location permit shall bear the stamp or signature of the Dee
acknowledging the approval thereof.
Section 10.05. Power of Disapproval. The Dee may refuse to grant approvals required
under this Article when:
(a) the plans, specifications, drawings or other materials submitted are themselves
inadequate or incomplete, or show the proposed improvements to be in violation of these
restrictions;
(b) the design or color scheme of a proposed repainting, modification or improvement is
not in harmony with the general surroundings ofthe Lot or with adjacent buildings or structures, all
as determined in the sole discretion of the Dee; or,
(c) the proposed improvement, construction or modification, or any part thereof, would
be contrary to the interests, welfare or rights of all or any part of the other Owners, all as determined
in the sole discretion and opinion ofthe DeC.
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Section 10.06. Liability of Committee. Neither the Dee nor any agent thereof, nor
Declarant, shall be responsible in any way for any defects in any plans, specifications or other
material submitted to it, nor for any defects in any work done according thereto, nor for any damages
associated with their approval or disapproval of any matters subject to this Article.
Section 10.07. Inspection. The Dee or its duly authorized agents may inspect work being
performed with their permission to assure compliance herewith, and any applicable regulations of the
Association, and an easement for such inspection is hereby reserved over and upon each and every
Lot in the Development.
Section 10.08. Declarant Improvements. The Dee shall have no powers with respect to
any construction, improvements or modifications undertaken by the Declarant (or any assignee of
Declarant if the Declarant has approved the plans therefor) or any improvements approved by
Declarant at any time. This Section 10.08 shall be construed to mean and include building or
construction or landscaping companies which are affiliates of, or controlled by, the Declarant. The
term "Affiliate" shall have the meaning set forth at 15 v.s.e. Section 80a-2, as amended.
Section 10.09. Remedies for Failure to Obtain Approval. In the event any construction
or modifications are made without first obtaining approval of the Dee as required herein or any
construction is being performed other than in accordance with Dee approved plans and architectural
guidelines and standards, the Declarant, the Association and the Dee shall each and all have the
powers of enforcement granted to the Association generally for purposes of this Declaration and may
require any modifications, construction, changes or improvements undertaken or installed without or
contrary to the approval of the Dee and such architectural guidelines and standards to be removed or
renovated by whatever means the Declarant, the Association and/or Dee deem appropriate, with the
costs thereof, including, without limitation, costs of collection and attorneys fees and
paraprofessional fees, to become a lien against the defaulting Owner's Lot in the manner described
in Section 9.05 hereof.
ARTICLE XI.
MORTGAGEE RIGHTS
Section 11.01. Notices of Action. An institutional holder, insurer, or guarantor of a first
Mortgage, who provides written request to the Association (such request to state the name and
address of such holder, insurer, or guarantor and the Lot number) (therefore becoming an Eligible
Mortgage Holder), will, upon payment of Two Hundred Fifty Dollars ($250.00) plus the reasonable
expense of the Association associated therewith, be entitled to timely written notice of:
(a) any proposed termination of the Association;
(b) condemnation, damage or destruction to the Development or which affects any Lot on
which there is a first Mortgage held, insured, or guaranteed by such Eligible Mortgage Holder;
(c) any delinquency in the payment of assessments or charges owed by an Owner of a Lot
subject to the Mortgage of such Eligible Mortgage Holder where such delinquency has continued for
a period of sixty (60) days;
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(d) any lapse, cancellation, or material modification of any insurance policy or fidelity
bond maintained by the Association; or,
(e) any proposed action which would require the consent of Eligible Mortgage Holders.
ARTICLE XII.
GENERAL PROVISIONS
Section 12.01. Duration. The provisions of this Declaration shall run with and bind the
land and shall be and remain in effect perpetually to the extent permitted by law; provided, however,
so long as Indiana law limits the period during which covenants restricting lands to certain uses may
run, any provisions of this Declaration affected thereby shall run with and bind the land so long as
permitted by such law, and such provisions may be renewed or extended, in whole or in part, beyond
the initial period permitted by such law, for successive periods not to exceed the period permitted by
such law, provided such renewal or extension is approved by at least two-thirds (2/3) of all Eligible
Votes. Further, no such renewal or extension shall be effective unless there is filed for record in the
Office of the Recorder of Hamilton County, Indiana, on or before the effective date thereof an
instrument executed by the President and Secretary of the Association which shall state the terms of
such renewal or extension and which shall contain a certification by such Secretary that such
extension and renewal was duly approved by the Owners. Every purchaser or grantee of any interest
in any real property subj ect to this Declaration, by acceptance of a deed or other conveyance therefor,
thereby agrees that such provisions of this Declaration may be extended and renewed as provided in
this Section.
Section 12.02. Amendment.
(a) This Declaration may be amended unilaterally at any time and from time to time by
Declarant (i) if such amendment is necessary to bring any provision hereof into compliance with any
applicable governmental statute, rule, or regulation or judicial determination which shall be in
conflict therewith; (ii) if such amendment is reasonably necessary to enable any reputable title
insurance company to issue title insurance coverage with respect to the Lots subject to this
Declaration; (iii) if such amendment is required by an institutional or governmental lender or
purchaser of mortgage loans, including, for example, the Federal Housing Administration, the
Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, to enable such
lender or purchaser to make or purchase mortgage loans on the Lots subject to this Declaration; or,
(iv) if such amendment is necessary to enable any governmental agency or reputable private
insurance company to insure mortgage loans on the Lots subject to this Declaration; provided,
however, any such amendment shall not adversely affect the title to any Owner's Lot unless any such
Owner shall consent thereto in writing. Further, so long as Declarant owns any property in the
Development, Declarant may unilaterally amend this Declaration for any other purpose; provided,
however, any such amendment shall not materially adversely affect, in the sole opinion of Declarant,
the substantive rights of any Owner or mortgagee hereunder.
(b) In addition to the above, this Declaration may be amended upon the affirmative vote
or written consent, or any combination thereof, of at least two-thirds (2/3) ofthe Eligible Votes and
the consent of the Declarant, so long as Declarant owns property in the Development. Amendments
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to this Declaration shall become effective upon recordation in the office of the Recorder of Hamilton
County, Indiana, unless a later effective date is specified therein.
(c) Declarant hereby reserves the right to make such amendments to this Declaration as
may be deemed necessary or appropriate by Declarant without the approval of any other person or
entity, in order to bring this Declaration into compliance with the requirements of any public agency
having j urisdiction thereof or of any agency guaranteeing, insuring, or approving Mortgages, so long
as Declarant owns any Lots within the Development or to enable reasonable development of and
construction on the Lots; provided, however, that Declarant shall not be entitled to make any
amendment which has a materially adverse effect on the rights of any mortgagee, nor which
substantially impairs in the reasonable opinion of the Declarant, the benefits of this Declaration to
any Owner or substantially increases the obligations imposed by this Declaration on any Owner.
Declarant further reserves the right to make such amendments to this Declaration as may be deemed
necessary or appropriate by Declarant without the approval of any other person or entity, which
amendment shall be fully effective in accordance with its terms:
(i) to cure any ambiguity, supply any omission, or cure or correct any defect or
inconsistent provision in this Declaration;
(ii) to insert such provisions clarifying matters or questions arising under this
Declaration as are necessary or desirable and are not contrary to or inconsistent with this
Declaration as theretofore in effect; or,
(iii) to amend or modify this Declaration in any manner which in the reasonable
opinion of the Declarant does not adversely affect in any material respect the rights of any
mortgagee or Owner, nor which substantially impairs the benefits of this Declaration to any
Owner or substantially increases the obligations imposed by this Declaration on any Owner.
Section 12.03. Indemnification. The Association shall indemnify every officer, director
and member ofthe Dee against any and all expenses, including, without limitation, attorney's fees
and paraprofessional fees, reasonably incurred by or imposed upon any officer or director or Dee
member in connection with any action, suit, or other proceeding (including, without limitation,
settlement of any suit or proceeding, if approved or authorized by the then Board of Directors) to
which he or she may be a party by reason of being or having been an officer or director or Dee
member. The officers, directors and members of the Dee shall not be liable for any mistake of
judgment, negligent or otherwise, except for their own individual willful misfeasance, malfeasance
or misconduct. The officers, directors and members of the Dee shall have no personal liability with
respect to any contract or other commitment made by them, in good faith, on behalf of the
Association (except to the extent that such officers or directors or Dee members may also be
Members of the Association), and the Association shall indemnify and forever hold each such
officer, director, or Dee member free and harmless against any and all liability to others on account
of any such contract or commitment. Any right to indemnification provided for herein shall not be
exclusive of any other rights to which any officer or director, or former officer or director or Dee
member, may be entitled. The Association may, as a Common Expense, maintain adequate general
liability and officers' and directors' liability insurance to fund this obligation, if such insurance is
reasonably available.
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Section 12.04. Easement of Utilities. There is hereby reserved to the Association blanket
easements upon, across, above, and under all property within the Development for access, ingress,
egress, installation, repairing, replacing, and maintaining all utilities serving the Development or any
portion thereof, including, without limitation, gas, water, sanitary sewer, telephone, cable television,
and electricity, as well as storm drainage and any other services such as, but not limited to, a master
television antenna system, cable television system, or security system which the Association might
decide to have installed to serve the Development. It shall be expressly permissible for the
Association or its designee, as the case may be, to install, repair, replace, and maintain or to
authorize the installation, repairing, replacing, and maintaining of such wires, conduits, cables, and
other equipment related to the providing of any such utility or service. Should any party furnishing
any such utility or service request a specific license or easement by separate recordable document,
the Declarant and/or the Board of Directors shall have the right to grant such easement.
Section 12.05. Construction and Sale. Notwithstanding any provisions contained in the
Declaration to the contrary, so long as Declarant owns any Lots, it shall be expressly permissible for
Declarant, free of any and all charges therefor, to maintain and carry on upon portions of the
Common Area such facilities and activities as, in the sole opinion of Declarant, may be reasonably
required, convenient, or incidental to the construction or sale of such residences, including, without
limitation, business offices, signs, model units, and sales offices, and the Declarant shall have an
easement for access to such facilities. The right to maintain and carry on such facilities and activities
shall include the right to use residences owned by the Declarant as models and sales offices. This
Section may not be amended without the express written consent of the Declarant; provided,
however, the rights contained in this Section 12.05 shall terminate upon the earlier of (a) ten (10)
years from the date this Declaration is recorded, or (b) upon the Declarant's recording a written
statement that all sales activity has ceased.
Section 12.06. Gender and Grammar. The singular, wherever used herein, shall be
construed to mean the plural, when applicable, and the use of the masculine pronoun shall include
the neuter and feminine.
Section 12.07. Severabilitv. Whenever possible, each provision ofthis Declaration shall
be interpreted in such manner as to be effective and valid, but if the application of any provision of
this Declaration to any person or to any property shall be prohibited or held invalid, such prohibition
or invalidity shall not affect any other provision or the application of any provision which can be
given effect without the invalid provision or application, and, to this end, the provisions of this
Declaration are declared to be severable. If any of the provisions hereof shall be held to be invalid or
to be unenforceable or to lack the quality of running with the land, that holding shall be without
effect upon the validity, enforce ability or "running" quality of any other one of the provisions hereof.
Furthermore, in lieu of the invalid or unenforceable provision, there shall be added automatically as
part of this Declaration a provision as similar in terms to such invalid or unenforceable provision as
may be possible and be legal, valid, reasonable and enforceable.
Section 12.08. CaDtions. The captions of each Article and Section hereof, as to the
contents of each Article and Section, are inserted only for convenience and are in no way to be
construed as defining, limiting, extending, or otherwise modifying or adding to the particular Article
or Section to which they refer.
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Section 12.09. Perpetuities. If any of the covenants, conditions, restrictions, or other
provisions of this Declaration shall be unlawful, void, or voidable for violation of the rule against
perpetuities, then such provisions shall continue only until twenty-one (21) years after the death of
the last survivor of the now-living descendants of Scott B. Campbell and Kim Colby.
ARTICLE XIII.
ENFORCEMENT
Section 13.01. Rie:ht of Action and Enforcement. The Declarant and the Association
shall have a right of action against any Owner for failure to comply with any provision of this
Declaration, the Bylaws, the Articles, or any rules, regulations or decisions of the Association or its
Board of Directors or any committee acting under the authority of the Association or its Board of
Directors including, without limitation, the DCC (the "Enforced Provisions"). The Enforced
Provisions, as each may be amended from time to time, may be enforced by the Declarant and/or the
Association through court proceedings for injunctive relief, for damages or for both, including,
without limitation, such relief as is set forth under Section 13.02 of this Article XIII.
Section 13.02. Equitable Remedies. The rights and obligations set forth in this
Declaration constitute unique and distinctive property rights and obligations which are not generally
available or replaceable, and for which the payment of monetary damages may not be adequate
compensation in the event of a violation of any Enforced Provision. Any violation of this
Declaration, including, without limitation, any Enforced Provision by an Owner or any Person acting
through or on behalf of an Owner may cause irreparable damage or harm to the Declarant and the
Association which will be extremely difficult to measure; therefore, the Declarant and the
Association shall have the right to temporary or permanent injunctive relief issued by any court of
competent j urisdiction to (a) enjoin or restrain any Owner from a violation of this Declaration, and/or
(b) instructing any Owner to act in accordance with the terms and provisions of this Declaration.
Section 13.03. Action bv Association. Notwithstanding any provision in this Declaration
to the contrary, any action to enforce this Declaration by the Association, including, without
limitation, action taken in accordance with Section 1 or Section 2 of this Article XIII shall only be
taken by the Association if a majority of the members of the full Board of Directors of the
Association vote in favor of such action; and, provided, further, that any such vote by the Board of
Directors of the Association shall be null and void in the event the Board of Directors of the
Association is comprised of fewer than five (5) members. It is the intention of this provision that any
action by the Association be taken or commenced only after receiving the affirmative vote of the
greater of (a) three members of a full board of five directors, or (b) a majority of the members of a
Board of Directors in excess of five members.
Section 13.04. No Dutv to Enforce. Neither Declarant nor Association shall be liable for
damages of any kind to any person for failing either to abide by, enforce or carry out any provision of
this Declaration.
Section 13.05. Delav or Failure to Enforce. No delay or failure on the part of any
aggrieved party to invoke any available remedy with respect to a violation of anyone or more of the
provisions of this Declaration shall be held to be a waiver by that party (or an estoppel of that party
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to assert) any right available to him upon the occurrence, recurrence, or continuation of such
violation or violations of this Declaration.
ARTICLE XlV.
PRIVATE AMENITIES AND SERVICES
Section 14.01. Private Amenities and Services. The Drainage System, Streets, and other
elements comprising the Common Area shall be owned and maintained by the Association so long as
this Declaration remains in force (and subject to any prior dedication or conveyance thereof). In the
event of any termination of this Declaration and/or liquidation, dissolution or winding up of the
affairs of the Association, the Association shall, after paying or making provision for the payment of
all the liabilities of the Association, distribute all the assets of the Association exclusively for the
purposes of the Association in such manner, or to such organization or organizations as the Board of
Directors shall determine. Any such assets not so disposed of shall be disposed by a Judge of the
Circuit or Superior Court of Hamilton County, Indiana, exclusively for such purposes or to such
organization or organizations, as such Court shall determine, which are organized and operated
exclusively for such purpose.
ARTICLE XV.
PRIVATE DRIVES
Section 15.01. Creation of Private Drives. (i) Unless otherwise provided in a supplement
or amendment to this Declaration recorded in the Office of the Recorder for the Hamilton County,
Indiana, and (ii) subject to law, including, without limitation, the law of condemnation; the private
drive designated on the Plat as DeMoulin Drive (the "Private Drive") shall be owned by the
Association and maintained by the Association in good condition satisfactory for the purpose for
which it was constructed. The maintenance costs incurred by the Association in maintaining a
private drive shall be part of the assessment against all Lots. It is the intent ofthis Section 15.01 that
snow plowing, general road repair, and periodic sealing and resurfacing shall be part of the
responsibility of the Association as a whole. In the event of a complete rebuilding of the Private
Drive (or an expansion or other substantial alteration of the Private Drive), the costs associated
therewith shall be assessed against the Association; provided, however, that no such assessment shall
be made for the reconstruction or substantial modification of a private drive unless two thirds (2/3)
or more of the Eligible Votes affirmatively vote in favor of the expenditure or, in the alternative,
such action is taken by virtue ofthe affirmative vote of eighty percent (80%) or more of all of the
members of the Board of Directors of the Association, unless such reconstruction or expansion is
required by the applicable governing City or County agency, in which case the Association shall
have the affirmative duty to proceed with such construction or modification, with costs therefore to
be assessed against all Lots.
Section 15.02. Dedication of Private Drives. (i) Unless otherwise provided in a
supplement or amendment to this Declaration recorded in the Office of the Recorder for Hamilton
County, Indiana, and (ii) subject to law, including, without limitation, the law of condemnation; the
Private Drive designated on the Plat may be dedicated and thereafter constitute dedicated rights-of-
way upon the affirmative vote of not less than two thirds (2/3) of the Eligible Votes and the approval
ofa majority of all of the members of the Board of Directors of the Association.
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Section 15.03. Incorporations of Article IX Provisions. The assessments and other
applicable provisions of this Article XV of this Declaration shall be, and are, subject to the
provisions of Article IX of this Declaration, as such provisions may be reasonably construed to apply
to the provisions of this Article XV, including, without limitation, the provisions of Article IX
relating to computation of assessments, liens for assessments, effective nonpayment of assessments
(and remedies ofthe Association), capital budget and contribution, subordination to the lien of first
mortgages, and certificates.
ARTICLE XVI.
LIMITATION ON DECLARANT'S LIABILITY
Section 16.01. Limitation on Declarant's Liabilitv. Notwithstanding anything to the
contrary herein, it is expressly agreed, and each Owner, by accepting title to a Lot and becoming an
Owner acknowledges and agrees that neither Declarant (including, without limitation, any assignee
ofthe interest of Declarant hereunder) nor any director, officer or shareholder of Declarant (or any
partner, officer, director or shareholder in any such assignee) shall have any personal liability to the
Association, or any Owner, Member or other Person, arising under, in connection with, or resulting
from (including, without limitation, resulting from action or failure to act with respect to) this
Declaration or the Association. If any judgment is ever levied against Declarant (or its assignee), the
same is hereby agreed to be limited to the extent of Declarant's (or such assignee's) interest in the
Development; and, in the event of a judgment no execution or other action shall be sought or brought
thereon against any other assets, nor be a lien upon any other assets of Declarant (or its assignee).
ARTICLE XVII.
ADDITIONAL EASEMENTS AND RESTRICTIONS
Section 17.01. Easements. Lots are subject to perpetual non-exclusive drainage
easements, utility easements, resident access easements, island easements, and landscape easements
either separately or in combination, as shown on the Plats and Plans, which are reserved for the use
of the Declarant, Association, Lot Owners, public utility companies and governmental agencies as
follows and which are all subject to such rules and regulations as the Board of Directors may
promulgate:
(a) Drainage Easements (D.E. and part ofD.&U.E.) - Are created to provide paths and
courses for area and local storm drainage, either overland or in adequate underground conduit,
including, without limitation, storm water retention or detention areas, to serve the needs of the
Development and adjoining ground and/or public drainage systems; and, it shall be the individual
responsibility of the Owner to maintain the drainage across his own Lot. Under no circumstances
shall said easement be blocked in any manner. Said areas are subject to construction or
reconstruction to any extent necessary to obtain adequate drainage at any time by any governmental
authority having jurisdiction over drainage or by Declarant. No permanent structures shall be
constructed within any such easement areas except as may be approved by Declarant or the
appropriate governmental authority.
(b) Utility Easements (V.E. and partofD.&V.E.) - Are created (i) for the use of the local
governmental agency having jurisdiction over the sanitary waste disposal system of said city and/or
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county designated to serve the Development for the purposes of installation and maintenance of
sewers that are part of said system, and (ii) for the use of public utility companies, not including
transportation companies, for the installation of pipes, mains, ducts, communication lines (which
shall include, without limitation, water, sewer, electric, natural gas, fiberoptic, telephone and cable
T. V.), as well as such other further public services the Declarant may deem necessary. Each Owner
of a Lot must connect with any public sanitary sewer available. No permanent structures shall be
constructed within any such easement areas except as may be approved by Declarant or the
appropriate governmental authority.
(c) Island Easements (I.E.) -- Are created to provide island areas in public and/or private
streets for the use of the Declarant and the Association in landscaping and maintaining said
landscaping to enhance the overall appearance, value and desirability of the Development. It shall be
the responsibility of the Association to maintain such easement areas. Under no circumstances shall
the easement be blocked in any manner. No permanent structures shall be constructed within any
such easement areas except as may be approved by Declarant. These easement areas shall be subject
to all rules and regulations ofthe applicable governmental office or agency.
(d) Landscape Easements (L.S.E.) - Are created to provide areas for the use of the
Declarant and the Association in landscaping and maintaining said landscaping to enhance the
overall appearance, value and desirability of the Development. It shall be the responsibility of the
Association to maintain such easements. Under no circumstances shall the easement be blocked in
any manner. No permanent structures shall be constructed within any such easement areas except as
may be approved by Declarant.
(e) Other Easements -- Are created to the extent and for the purposes specified in any
Supplemental Declaration in which any such easements are set forth.
Section 17.02. Floodwav Restrictions. No structures may be built on that portion of any
Lots which lie within a floodway. Any landscaping or other improvements made to any such part of
the Lots, and any alterations thereon, shall be subject not only to approval of the Declarant (or the
Association), but also to the prior approval of the Indiana Department of Natural Resources, its
successors and assigns, and all other governmental agencies having jurisdiction thereof.
Section 17.03. Common Areas. Those areas designated as "Common Area" on any Plats
and Plans are hereby declared to be Common Area. The Common Area is hereby reserved for the
use of the Declarant during the development period, for the use of the Association after the
development period, and for the use and enjoyment of all the Owners subject to the limitations
contained herein, and further subject to the right of the Association to promulgate reasonable rules
and regulations governing such use and enjoyment. Notwithstanding any provision in this
Declaration to the contrary, including, without limitation, this Section 17.03, the area designated as
Common Area B is, and shall be, dedicated to the state oflndiana in accordance with Section 2.08 of
this Declaration and as required by law.
Section 17.04. Construction Procedure. During construction, reasonable care shall be
taken by the builders of the Lots therein to protect all public and private streets from decomposition
due to construction. During construction, sites shall be kept as clean as possible to avoid blowing
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trash and to prevent mud from coming onto other portions of the Development or adjoining
properties. Builders shall keep streets reasonably clean and free of dirt/mud and debris during
construction periods and neither the Declarant nor the Association shall have responsibility or
liability for the streets during construction.
IN WITNESS WHEREOF, the undersigned Declarant has executed this Declaration as of the
date first above-written.
CAMPBELL DEVELOPMENT
COMPANY 2, LLC
By:
Printed:
Title:
COUNTY OF
)
) SS:
)
STATE OF
Before me, a Notary Public in and for said County and State, personally appeared
, known by me to be the of Campbell Development
Company 2, LLC, an Indiana limited liability company, who acknowledged the execution of the
foregoing Declaration for and on behalf of said limited liability company.
WITNESS my hand and Notarial Seal this
day of
,20_.
Signature
Notary Public
Printed
My County of Residence:
My Commission Expires:
This Instrument was prepared by Joseph D. Calderon, Ice Miller, One American Square, Box 82001,
Indianapolis, IN 47282: (317) 236-2100.
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EXHIBIT A
Lee:al DescriDtion of the DeveloDment
INDY 1295878v2