HomeMy WebLinkAboutDeclaration of Covenants - Recorded
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DULY ENTERED fOR TAXATION
Subject to final acceptance for transfer
fo ~ day of V:G \, , I 20 6 ~
f~ ~ Auditor of Hamilton Cou'nty
Parcel #
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RECFIVEO
FEB 1 2003
DOCS
200300012986
Filed for' Reco~'d in L' - ,-'-
HAMILTON COUNTYL INDIANA
JENNIFER J HAYD~N
02-0&-2003 08:58 am.
DEC COU RES 91.00
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ARTICLE I
ARTICLE IT -
ARTICLE ill -
ARTICLE IV -
ARTICLE V -
T ABLE OF CONTENTS
Page
DEFlNITIONS . ..... ......... .... ........ .............. ....................................................... 2
Section 1.1 - Association ................... ...... ..... ............. .......... ........... ............ ......... ..... 2
Section 1.2 - Common Area or Common Areas...................................................... 2
Section 1.3 - Declarant... ...... .............. .......... ......... ......................... ........ ..... ..... ......... 2
Section 1.4 - Declaration .......................................................................................... 2
Section 1.5 - Designated Builder.............................................................................. 2
Section 1.6 - Dwelling Unit...................................................................................... 3
Section 1.7 - Federal Agencies................................................................................. 3
Section 1.8 - Lot........................................................................................................ 3
Section 1.9 - Member ............................................................................................... 3
Section 1.10 - Mortgagee.... ..... ......... ..... ..... .......... .................. .................... ..... .... ...... 3
Section 1.11 - Owner ................................................................................................. 3
Section 1.12 - Party Wall... ........... ......... .............. .......... ......... ...... .......:...... ......... ...... 4
Section 1.13 - Plat.... .......... ...... ..... .... ..... ..... ..... .... .......... ......... ...... .......... ............. ...... 4
Section 1.14 - Property. ........ ......... ............... ........... ............... .............. ..... ................ 4
MEMBERSHIP ......... ..... ........... .... .................... ..... ....... ..... ......... ........ .............4
VOTING RIGHTS ... ..... ........ ............ ..... ............ ............... ........... ...................4
Section 3.1 - Classes .............. ......... ......... .......... ................. ...................................... 4
Section 3.2 - Multiple Ownership Interests.............................................................. 5
Section 3.3 - Board of Directors ..................................................... .................-.. .......5
PROPERTY RIGHTS.. ........ ........ ....... ..... ........... ............. ........ ........ ...... ......... 5
Section 4.1 - Member's Easements ofEnjoyrnent................................................... 5 -
Section'4.2 - Delegation of Use........ .......... ...... ............. ..... ..... ...... ..... ........ .............. 7
ASSESSMENTS ............ ........ ....... ........................... ........................ ... ............ 7
Section 5.1 - Creation ofthe Lien and
Personal Obligation for Assessments............................................... 7
Section 5.2 - Purpose of Assessment........................................................................ 8
Section 5.3 - Establishment of Annual Assessment................................................. 8
Section 5.4 - Basis and Maximum Annual Assessments......................................... 8
Section 5.5 - Special Assessments ...........................................................................9
Section 5.6 - Quorum for any Action Authorized Under
Sections 5.4 or 5.5...........................................................................9
Section 5.7 - One Time Assessment......................................................................... 9
Section 5.8 - Rate of Assessment........................................................................... 10
Section 5.9 - Notice of Assessment and Certificate.........-...................................... 10
Section 5.10 - Remedies of the Association in the Event of Default ..................... 10
Section 5.11 - Subordination of the Lien to Mortgages.......................................... 11
Section 5.12 - Exempt Property............................................................................... 11
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ARTICLE VI ~
ARTICLE VII -
ARTICLE VIII
Section 5.13 - Reserves for Replacements............................................................ .. II
RESTRICTIVE COVENANTS ............................................................. ....... 12
Section 6.1 - Residential Use.................................................................................. 12
Section 6.2 - Architectural Review Board Approval............................................. 12
Section 6.3 - Laundry................................................................ ............. .......... ....... 12
Section 6.4 - Sight Lines......................................................................................... 12
Section 6.5 - Maintenance ...................................................................................... 12
Section 6.6 - Nuisance .......... ....................... .......... ..... .............. ..... ..... ....... ..... ........ 12
Section 6.7 - Signs .................................................................................................. 13
Section 6.8 - Animals...... ...... .................. .................................. .................. ............ 13
Section 6.9 - Trash Storage..................................................................................... 13
Section 6.10 - Antennae Systems ............................................................................ 13
Section 6.11 - Painting............................................................................................. 13
Section 6.12 - Finished Exteriors ............................................................................ 13
Section 6.13 - Fences.... ..................................... ......... ................... ............. ...... ....... 14
Section 6.14 - Vehicles ............................................................................................ 14
Se'ction 6.15 - Commercial Vehicles....................................................................... 14
Section 6.16 - Recreational Vehicles ............................................ .................. ........ 14
Section 6.17 - Towing......................................................................... ..................... 14
Section.6.18 - Garage Usage .................................................................................. 14
Section 6.19 - Rental Agreements ........................................................................... 14
Section 6.20 - Initial Construction and Marketing.................................................. 14
Section 6.21 - Holiday aridSeasomiI Dec6i'atibriS':.'.::':~'::.::.~......;'...:...:::::.:..::.:..:....... 15
Section 6.22 - Window Boxes .................................................. ........ ............... ........ 15
Section 6.23 - Dusk to Dawn Coach Lights ;:...:::................;;.....;;............................ 15
Section 6.24 - Additional Rules and Regulations ...................................................15
ARCHITECTURAL REVIEW BOARD ..................................................... 15
Section 7.1 - Composition ...................................................................................... 15
Section 7.2 - Method of Selection ...................'....................................................... 16
Section 7.3 - Officers .............. ...... ...................... ..... ........... ............. ....................... 16
Section 7.4 - Duties... ............. ........................ ..... ................... ..... ..... ............... .... .... 16
Section 7.5 - Failure to Act..................................................................................... 17
Section 7.6 - Enforcement ......................................................................................17
Section 7.7 - Appeal................................................................................................ 17
EASEMENTS ............................. ........................ ...... .... ..... ....... ....... ..... ... ... ... 17
Section 8.1 - Emergency Easement Rights ............................................................ 17
Section 8.2 - General Easements ............................ .......... .............. .................. ...... 18
Section 8.3 - Limitation on General Easement Rights........................................... 18
Section' 8.4 - Encroaclnnents ........................ .......... .............. .......... ..... ................... 18
Section 8.5 - Ingress Egress Easement................................................. ................... 18
Section 8.6 - Drainage, Utility and Sewer Easements (DU & SE) ....................... 18
Section 8.7 - Water Line Easement......................................................................... 19
Section 8.8 - Reservation of Right to Grant Future Easements .............................. 19
Section 8.9 - Bonds and/or Dedication Requirements ............................................ 19
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ARTICLE IX -
ARTICLE X -
ARTICLE XI -
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ARTICLE XII -
ARTICLE xm
Section 8.10 - Easements for Corrective Work...................................................... 19
Section 8.11 ~ Open Space....................................................................................... 19
Section 8.12 - Parking Areas ............. ............ ............................................. ............. 19
Section 8.13 - Sidewalks........... ....... ......................................................................... 20
Section 8.14 - Private Streets... .............................. ...... ..... .... .............. ......... ............ 20
PARKING............................... .................. ..................................................... 20
PARTY W A.LLS ..... .......... ............ ...... ............... ..... ....... ............ ................... 20
Section 10.1 - General Rules of Law to Apply...................................................... 20
Section 10.2 - Sharing of Repair and Maintenance and
Destruction by Fire or Other Casualty............................................ 20
Section 10.3 - Repairs for Damage Caused by One Owner .................................. 21
Section lOA - Other Changes ................................................................................. 21
. Section 10.5 - Right to Contribution Runs with the Land ..................................... 21
Section 10.6 - Dispute............. ....... ................... ........... ...... ........ ............. .......... ...... 21
POWERS AND DUTIES OF THE ASSOCIATION ..................................21
Section 11.1- Discretionary Powers and Duties.................................................... 21
Section 11.2 - Mandatory Powers and Duties........................................................ 23
Section 11.3 - Board Authority to Act .................................................................... 25
Section 11.4. -:. Compensation.................................................................................. 25
Section 11.5 - Non-Liability of Directors, Officers and
Board Members.., .:. ..~... ...,'.. .:...... ............................................ ... ....... 25
Section'11~6 - Indemnity of Directors, Officers and
Members ofthe Architectural Review Committee .........................25
RIGHTS OF MORTGAGEES ...... ........... .... ........... ...................... ................ 26
Section 12.1. - Veterans Administration .................................................................26
Section 12.2 - Federal Housing Authority ............................................................. 27
Section 12.3- Freddie Mac..................................................................................... 27
Section 12.4 - Fannie Mae ...................................................................................... 28
Section 12.5 - General............................................................................................ 30
GENERAL PROVISIONS....... ..... ............... ........ ..... ...................... .............. 31
Section 13.1 - Enforcement and Declarant's Exemption....................................... 31
Section 13.2 ~ Severability; Headings; Conflict..................................................... 31
Section 13.3 - Duration ............... ........... ........... .... ...... ..... .............. ......... ..... ..... ...... 31
Section 13.4 - Material Amendment/Extraordinary Action ..................................32
. Section .13.5 - Amendment ..................................................................................... 34
Section 13.6 - Special Amendment........................................................................ 34
Section 13.7 - Waiver ..........................................:.................................................. 34
Section 13.8 - Casualty Insurance ..........................................................................34
Section 13.9 - Withdrawable Real Estate................................................................. 35
Section 13.10 - Management Contracts .................................................................. 35
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Section 13.11 - Dissolution .....................................................................................35
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR THE TOWNHOMES AT HAZEL DELL
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
THE TOWNHOMES AT HAZEL DELL (the "Declaration") is made as of :r4AJtOIRy :i. 3 ,
2003 by PLATINUM PROPERTIES, LLC, an Indiana limited liability company (the
"Declarant").
RECITALS:
WHEREAS, the Declarant is, or at the time of recordation of this Declaration will be, the
ovmer of certain real property located in Hamilton County, Indiana, which is more specifically
described in Exhibit A. which is attached hereto and incorporated herein by reference (the
"Property").
WHEREAS, the Declarant desires to create on the Property a residential cOffill1w1ity (the
"Community") which shall have permanent open spaces and other common facilities for the
benefit of the residents of the Community.
WHEREAS, the Declarant desires to provide for the preservation of the values of the
Community and such other areas as may be subjected to this Dec1aration,dand to .provide for the
maintenance of the open spaces and other facilities, and, to this end, declare and publish their intent
to subject the Property to the covenants;' conditions, ~estrictions,easemeJ1.ts, charges and liens
hereinafter set forth, it being.intended that they shall run with title to the Property and shall be
binding on all persons or entities having or acquiring any right, title or interest in the Property or any
part thereof and shall intrr~ to the benefit of each owner thereof.
WHEREAS, the Declarant has deemed it desirable for the efficient preservation of the
values of the Conununity to create an association to be known as The Townhomes at Hazel Dell
Homeowners Association, Inc., an Indiana not-for-profit corporation (the "Association't) to which
shall be delegated and assigned the powers of owning, maintaining and administering the common
areas and facilities, administering and enforcing.the covenants and restrictions made in and pursuant
to this Declaration and collecting and disbursing the assessments and charges hereafter created.
NOW, THEREFORE, the Declarant, for and in consideration of the premises and the
covenants contained herein, grants, establishes and conveys to each owner of each Lot (as herein
defined), mutual, non-exclusive rights, privileges and easements of enjoyment on equal terms and in
common with all other owners of Lots in and to the use of any common areas and facilities; and
further, the Declarant declares that the Property shall be held, transferred, sold, conveyed and
occupied subject to the covenants, conditions, restrictions, reservations, easements, charges and
liens hereinafter set forth, which are for the purpose of protecting the value and desirability of, and
shall ~ with, the Property and be binding on all parties having any right, title or interest in the
Property or any part thereof, their respective successors and assigns, and shall inure to the benefit of
each owner thereof.
ARTICLE I
DEFINITIONS
Section 1.1. "Association" shall mean and refer to The Townhomes at Hazel Dell
Homeowners Association, Inc., an Indiana not-far-profit corporation, its successors and assigns.
Section l.2. "Common Area" or "Common Areas" shall mean and refer to all real
property (including the improvements thereto) owned by the Association for the common use and
enjoyment of the Members, and shall include all of the Property which is shown on such Plat and/or
as described herein, and which is not part of a Lot. No part of the Common Area shall be dedicated
to the public. The Common Area within the Property shall be what is identified on the Plat as
Common Area "A" and shall comprise four components; namely:
(a) private streets comprising the streets identified on the Plat as Esty Way, Tryon
Drive, Roxanne Drive, and Trammel COUli (collectively, the "Private Streets");
(b) concrete sidewalks located adjacent to the Private Streets and in areas between
buildings and adjacent to buildings (the "Sidewalks");
(c) areas specifically identified as parking areas, located adjacent to Private Streets
and between buildings (the "Parking Areas"). Parking Areas are further described
and defined in Article IX below; and
(d) open space, which shall include all parts of the Common Area not occupied by the
Private Streets, Sidewalks, and the Parking Areas (the "Open Space").
Section 1.3. "Declarant" shall mean and refer to Platinum Properties, LLC, an Indiana
limited liability ,company, and its successors or assigns to whom Platinum Properties, LLC, an
Indiana li:m5ted liability company, assigns any or all of its rights as Declarant pursuant to this
Declaration by assignment recorded in the Office of the RecorderofHamilton COUllty, Indiana.
Section 1.4. "Declaration" shall mean and refer to this Declaration of Covenants,
Conditions and Restrictions for The Townhomes at Hazel Dell, which is to be recorded in the Office
of the Recorder of Hamilton County, Indiana.
Section 1.5. "Designated Builder" shall mean and refer, during such period as such
designation by the Declarant may continue, any person or entity engaged in the construction of
more than one Dwelling Unit who is designated by Declarant as a Designated Builder.
Designated Builders shall include, without limitation, R.H. of Indiana, LP, an Indiana limited
partnership. Declarant may make and revoke any such designation at any time and from time to
time.
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Section 1.6. "Dwelling Unit" shall mean and refer to any improvement to the Property
intended for any type of independent ownership for use and occupancy as a residence by a single
household and shall, lUlless otherwise specified, include within its meaning (by way of illustration
but not limitation) townhouses and detached homes.
Section 1.7. "Federal Agencies" shall mean (by way of illustration but not limitation)
the Federal Housing Authority, the Federal National Mortgage Association, the Government
National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Department of
Housing and Urban Development, the Veterans Administration or any other governmental agency.
Section 1.8. "Lot" shall mean and refer to any discrete plot ofland created by and shown
on a Plat upon which a Dwelling Unit is intended to be constmcted in accordance with applicable
zoning ordinances; provided, however, that where a Dwelling Unit (i) is separated from an adjacent
Dwelling Unit by a Party Wall, or (ii) shares a Party Wall with an adjacent Dwelling Unit, the
center line of such Party Wall and its vertical extensions shall constitute the common boundary line
(lot line) between adjacent Lots, and the closure of the boundary lines of such adjacent Lots shall be
accomplished by extending perpendicular lines from the horizontal extremities of such Party Wall
to the closest boundary line or lines for such Lots as shown on any Plat or any part thereof;
provided, further, that where any exterior wall of a Dwelling Unit is not a Party Wall, but extends
outside the boundary lines (lot lines) of any Lot (as shown on any such Plat or part thereof) upon
which such Dwelling Unit is primarily located, the boundary lines of such Lot shall be deemed
extended to include all of the ground area occupied by such Dwelling Unit. It is the intent hereof
that, in any and all events in which a boundary line as shown on any Plat or part thereofdoes not
coincide with the actual location of the respective wall of the Dwelling Unit because of inexactness
of constmction, settling after construction, or for any other reason, this Declaration and any Plat or
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any part thereof shall be interpreted and construed so that all ground area underlying and lying
beneath a Dwelling Unit shall be and constitute part of the Lot upon which such Dwelling Unit is
primarily located to the end that all of such ground area shall be subject to fee simple ownership by
the Owner of such Dwelling Unit; to the extent necessary to accomplish and implement such
intention, interpretation and constmction, the boundary lines of the Lots shall be determined in
accordance with the foregoing definitional provisions and boundary lines as so determined shall.
supercede the boundary lines for Lots shown on any Plat or part thereof.
Section 1.9. "Member" shall mean and refer to every person or entity who holds a
membership in the Association, as more particularly set forth in Article II below.
Section 1.10. "Mortgagee" shall mean and refer to any person or entity secured by a first
mortgage or first deed of trust on any Lot or the Common Area who has notified the Association of
this fact in \Vriting. An "Eligible Mortgagee" shall be a Mortgagee who has given notice to the
Association of its interest and requested all rights afforded Eligible Mortgagees under Article XII.
Section 1.11. "Owner" shall mean and refer to the record owner, whether one (1) or more
persons or entities, of the fee simple title to any Lot, including a contract seller but excl uding those
holding such interest in a Lot solely by virtue of a contract to purchase a. Lot or as security for the
performance of an obligation. If more than one (1) person or entity is the record owner of a Lot, the
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term Owner as used herein shall mean and refer to such owners collectively, so that there shall be
only one (1) Owner of each Lot.
Section 1.12. "Party Wall" shall mean and refer to each wall which is built as part of
the original construction of the Dwelling Units upon the Property and placed on the dividing line
between Lots. Party Walls are further described and defined in Article IO below.
Section 1.13. "Plat" shall mean and refer to a final plat or an "as-built" subdivision plat,
of all or part of the Property, recorded with the Recorder of Hamilton County, Indiana.
Section 1.14. "Propertyu shall mean and refer to that certain real property located in
Hamilton County, Indiana, which is more specifically described in Exhibit A, which is attached
hereto and incorporated herein by reference as the same may be duly subdivided and platted, and
any additions thereto which, from time to time, may be subjected to the covenants, conditions,
restrictions, reservations, easements, charges and liens of this Declaration.
ARTICLE II
MEMBERSHIP
Every Owner of a Lot which is subject to this Declaration shall be a Member of the
Association. Membership shall be appurtenant to and may not be separated from ownership of any
Lot which. is, sU1::ljecttQ assessmeI'lt l?y tIle As~ociation. Ownership of such Lot shall be the sole
qualification fOf' 'membership. . No' owner shall have moreihan 'one (1) membership in the
Association for each Lot it owns.
ARTICLE III
VOTING RIGHTS'
Section 3.1. Classes. The Association shall have two (2) classes of voting membership
as follows:
Class A: Class A Members shall be all Members with the exception of
the Class B Member. A Class A Member shall be entitled to one (1) vote for
each Lot in which it holds the interest required for membership pursuant to
Article n herein.
Class B: The Class B Member shall be the Declarant. A Class B
Member shall be entitled to three (3) votes for each Lot in which it holds the
interest required for membership pursuant to Article II herein. The
Declarant's Class B membership interest shall be converted to and shall
become a Class A membership interest with one (1) vote for each Lot in
which it holds an interest ilpon the happening of any ofthe following events,
whichever occurs first:
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(a) within four (4) months after the total votes outstanding in the Class A
membership equal the total votes outstanding in the Class B membership; or
(b) seven (7) years from the date of recordation of this Declaration; or
(c) sixty (60) days after both (i) the Declarant abandons construction and (ii) any
Designated Builder abandons construction. For purposes hereof, the "abandonment of
construction" shall not be deemed to have occurred unless and until there is no evidence of
continuing constmction and no new dwelling construction has been initiated for a period of
eighteen (18) months.
Section 3.2: Multiple Ownership Interests. If more than one (1) person or entity holds
an ownership interest in any Lot, the vote for such Lot shall be exercised as the owners of the Lot
among themselves determine and may be exercised by anyone (1) of the people or entities holding
such ownership interest, unless any objection or protest by any other holder of such o\Vl1ership
interest is made prior to the completion of a vote, in which case the vote for such membership
interest shall not be counted, but the Member whose vote is in dispute shall be counted as present at
the meeting for quorum purposes if the protest is lodged at such meeting. In no event shall more
than one (1) vote be cast with respect to any Lot.
Section 3.3: Board of Directors. The Board of Directors shall be appointed ancl!or
elected as prescribed by the Association's Articles and Bylaws. The Board of Directors shall
manage the affairs of the Association.
ARTICLE IV
PROPERTY lUGHTS
Section 4.1. Member's Easements of Enioyment. Every Member shall have a right and
easement of enjoyment in and to the Common Areas, and such easement shall be appurtenant to and
shall pass with the title to every Lot, subject to:
(a) the right of the Association to limit the number of guests of Members on the
Common Area or to make any part of the Common Area available to occupants of adjacent
real estate or members of the general public;
(b) the right of the Association to adopt and enforce rules and regulations
governing the use of the Common Area and the personal conduct of Owners, occupants and
guests thereon, including, without limitation, the imposition of fines for tlle violation
thereof;
(c) the right of the Association to suspend the voting rights, the right to run for
office within the Association, and rights of a Member to the use of ariy nonessential services
offered by the Association, to the extent that access and the provision of utilities to the Lot
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through the Common Area are not precluded, for any period during which any assessment
against such Member's Lot remains unpaid or for a period not to exceed sixty (60) days for
any infraction of its published rules and regulations;
(d) the right of the Association at any time, or upon dissolution of the
Association, and consistent with the then-existing zoning and subdivision ordinances of the
City of Carmel (the "City") and/or Hamilton County, Indiana (the "County") and
consistent with its designation of the Common Area as "open space", to transfer all or any
part of the Common Area to an organization conceived and organized to own and maintain
common open space, or, if such organization will not accept such a transfer, then to the City
and/or County (herein sometimes collectively referred to as the "Local Governing
Authority") or other appropriate governmental agency, or, if such a transfer is declined,
then to another entity in accordance with the laws governing the same, for sllch purposes
and subject to conditions as may be agreed to by the Members. Except in the case of
dissolution, any such transfer shall have the assent of at least two-thirds (2/3) of each class
of Members entitled to vote and who are voting in person or by proxy at a meeting duly
called for this purpose at which a quorum is present, written notice of which having been
sent to all Members not less than twenty-five (25) days nor more than fifty (50) days in
advance of the meeting setting forth the purpose of the meeting. Upon such assent and in
accordance th~rewith, the officers of the Association shall execute the necessary documents.
TIle Ie-subdivision or adjustment of the boundary lines of the Common Area and the
granting of easements by the Association shall not be deemed a transfer within the meaning
of this Article;
(e) the right of the Association to grant, with or without payment to the
Association, licenses, rights-of-way and easements through or over any portion of the
Common Area;
(f) the right of the Association to lease the Common Area, provided however
that such lease(s) must:
(i) be only to non-profit organizations;
(ii) prohibit assignment and subleasing;
(iii) require the prior, written approval of the Association of uses of the
Common Area and facilities, which must be in accordance with this Declaration;
(iv) be consistent with the then-existing ordinances of the Local
Governing Authority; and
(v) be consistent with the open space designation of the Common Area;
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(g) the right of the Declarant or the Association to re-subdivide andJor adjust the
boundary lines of the Common Area consistent with applicable zoning and subdivision
ordinances as either deems necessary for the orderly development of the subdivision;
(h) all rights reserved by the Declarant in Article VIII hereof; and
(i) the right of the Declarant to erect, maintain and operate real estate sales and
construction offices, displays, signs and other facilities for sales, marketing and construction
purposes,
The Association, acting through its board of directors (the "Board of Directors"), may
exercise these rights without the need for any approval from any Member, Mortgagee or any
Federal Agency, unless provided otherwise in this Declaration.
Section 4.2. Delc~ation of Use. Any Member may delegate its right of enjoyment to the
Common Area and facilities to the members of its immediate household, its tenants or contract
purchasers who reside on the Member's Lot. However, by accepting a deed to such Lot, every
Owner covenants that should the Owner desire to rent its Lot, the rental agreement shall contain
specific conditions which require the tenant to abide by all Association covenants, rules and
regulations, and any Owner desiring to rent a Lot further covenants that the tenant Vv'ill be provided
a complete set of all Association covenants, rules and regulations.
ARTICLE V
ASSESSMENTS
Section 5.1. Creation of the Lien and Personal Oblil?;ation for Assessments. The
Declarant covenants, for each Lot owned, and each Owner of any Lot by acceptance of a deed
therefor, whether or not it shall be so expressed in any such deed or other instrument of conveyance,
is deemed to covenant and agree to pay to the Association: (i) Annual Assessments (as hereinafter
defined), (ii) Special Assessments (as hereinafter defined), and any other amounts as may be
provided for hereunder to be due from any Owner in connection with his, her or its ownership of a
Lot in the Conununity. Such assessments are to be established and collected as hereinafter
provided. The Association's Annual Assessments and Special Assessments, together with interest
thereon and costs of collection thereof, as heremafter provided, shall be a charge on each applicable
Owner's Lot and shall be a continuing lien upon the Lot against which each assessment is made.
Each such assessment, together with interest, costs, and reasonable attorneys' fees, shall also be the
personal obligation of the person who was the Owner of such Lot at the time the assessment fell due
and shall not he the personal obligation of a successor in interest unless expressly assumed by such
successor. The Annual Assessments and Special Assessments, when assessed upon resolution of
the Board of Directors for each year, shall become a lien on the Lot in the amount of the entire
Annual Assessment or Special Assessment, but shall be payable in equal installments, collected on a
monthly, bi-monthly, quarterly, semi-annual or annual basis, as determined by the Board of
Directors.
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Section 5.2. Purpose of Assessment. The assessments levied by the Association shall be
used for the following purposes:
(a) the improvement, maintenance, and repair of all Common Areas including
the Private Streets, the Sidewalks, the Parking Areas, and the Open Space;
(b) the maintenance, repair, irrigation, and fertilizing of all landscaping located
within the Common Area including, without limitation, trees, lawns, shrubbery, and other
plantings;
(c) to fulfill the duties of the Association specified in Article XI below; and
(d) to carry out such other purposes as the Board of Directors may, in its sole
discretion, determine to be appropriate.
Section 5.3. Establishment of Annual Assessment.
(a) The Association must levy in each of its fiscal years an annual assessment
(the "Annual Assessment"), against each Lot. The amount of such Annual Assessment
shall be established by the.Board of Directors, subject to the limitations imposed by Section
5.4, below, and written notice of such shall be sent to every Owner at least thirty (30) days
in advance of the commencement of each Annual Assessment period. The Annual
Assessment shall become applicable as to all Lots (as shown on a recorded subdivision plat)
on the first day of the month following the fust conveyance of a Lot to afiOwner who is not
the Declarant or a Designated Builder. The. first Annual Assessment shall be adjusted
according to the number of months remaining in the calendar year.
(b) The ainount of the Annual Assessment shall be determined by the Board of
Directors according to its estimate of the cost of providing services or rights of use which
are common to all of the Lots.
Section 5.4. Basis and Maximum Annual Assessment. Until January 1 of the year
immediately following conveyance of the fust Lot to an Owner other than the Declarant, the
maximum Annual Assessment shall be One Thousand Two Hundred Dollars ($1,200.00).
(a) From. and after January 1 of the year immediately following the first
conveyance of a Lot to an Owner other than the Declarant, the maximum Annual
Assessment shall increase, effective January 1 of each year, without the need for a vote of
the Members, by an amount equal to (i) the anticipated increase in costs of insurance, taxes,
snow removal, recycling, trash and waste removal, plus (ii) an amount equal the amount of
the prior year's Annual Assessmenttimes tenpercent, (10%).
(b) The Board of Directors may determine not to increase the maximum Annual
Assessment to the full extent of the automatic increase provided by subparagraph (a) ofthis
8
Section, in which case the Board of Directors may determine to Increase the Annual
Assessment by any lesser amount.
(c) From and after January I of the year immediately follovving the first
conveyance of a Lot to an Owner other than the Declarant, the maximum Annual
Assessment may be increased above that established by subparagraph (a) annually, provided
that, to be effective, any such change shall have the assent of more than fifty percent (50%)
of the votes of each class of Members who are entitled to vote and who are voting in person
or by proxy at a meeting duly called for this purpose at which a quorum is present, written
notice of which (setting forth the purpose of the meeting) shall be sent to all Members not
less than thirty (30) days nor more than sixty (60) days in advance of the meeting.
Section 5.5. Special Assessments. In addition to the Annual Assessment authorized
above, the Association may levy, in any assessment year, a special assessment applicable to that
year only for the purpose of defraying, in whole or in part, the cost of any construction,
reconstruction, repair or replacement of capital improvements upon the Common Area, including
the fixtures and personal property related thereto, or for any other specified purpose (the "Special
Assessment"). Any such Special Assessment shall be levied against all of the Lots which benefit
from the construction, reconstruction, repair or replacement of capital improvements giving rise to
the Special Assessment, pro rata according to each Lots benefit, as reasonably determined by the
Board of Directors, which determination shall be final The amount of the Special Assessment shall
be the same for each Lot. To be effective, any such assessment shall have the assent of more than
two-thirds (2/3) of the votes ,?f each class.ofi\1e!J1bers w119are entitled. to vote and who are voting
in person or by proxy ata meding" duly called foi tills purpose at which a quorum is present, written
notice of which setting forth the purpose of the meeting having been sel1t to all members not less
than thirty (30) days nor more than sixty (60). days in advance of the meeting.
Section 5.6. Quorum for any Action Authorized Under Sections 5.4 or 5.5. At the
first calling of a meeting under Section 5.4 or Section 5.5 of this Article, the presence at the meeting
of Members or proxies entitled to cast sixty percent (60%) of all the votes of each class of Members
shall constitute a quorum. If the required quorum does not exist at any such meeting, another
meeting may be called subject to tile notice requirements set forth in Section 5.4 and Section 5.5 and
to applicable law, and the required quorum at any such subsequent meeting shall be one-half (1/2)
of the required quonun at the preceding meeting. No such subsequent meeting shall be held more
than sixty (60) days following the preceding meeting.
Section 5.7. One Time Assessment. Upon the closing of the initial conveyance of a
Lot to an Owner other than the Declarant or a Designated Builder, the purchaser of such Lot
shall pay to the Association, in addition to any other amounts then owed or due to the
Association, as a contribution towards it working capital and startup fund, an amount of Two
Hundred Dollars ($200.00), which payment shall be non-refundable and shall not be considered
as an advance payment of any other assessment or other charge otherwise owed the Association
with respect to such Lot. Such working capital and startup funds. shall be held and used by the
Association for payment of, or reimbursement to Declarant for advances made to pay expenses
of the Association for the early period of the operation of the Association and the Property, to
9
enable the Association to have cash available to meet unforeseen expenditures, or to acqUlre
addition equipment or services deemed necessary by the Board of Directors.
Section 5.8. Rate of Assessment. The Annual Assessment shall be fixed at a uniform
rate and due and owing for all Lots, except for unoccupied Lots owned by the Declarant or a
Designated Builder, and the Special Assessments shall be fixed at a uniform rate and due and owing
for all Lots, except for unoccupied Lots owned by the Declarant or a Designated Builder.
Section 5.9. Notice of Assessment and Certificate. Written notice of the Annual
Assessments and any Special Assessments shall be sent to every Member. The due dates for
payment of the Annual Assessments and any Special Assessments shall be established by the Board
of Directors. The Association shall, upon demand at any time, furnish a certificate in writing signed
by an officer or authorized agent of the Association setting forth whether the assessments on a
specified Lot have been paid. A reasonable charge may be made by the Board for the issuance of
these certificates. Such certificates shall be conclusive evidence of payment of any assessment
therein stated to have been paid.
Section 5.10. Remedies of the Association in the Event of Default. If any assessment
pursuant to this Declaration is not paid within thirty (30) days after its due date, the assessment shall
bear interest from the date of delinquency at the rate charged by the Internal Revenue Service on
delinquent taxes. In addition, in its discretion, the Association may:
(a) impose a penalty or late charge as previously established by role;
(b) .. bring an action at law against the Owner personally obligated to pay the
same and/or foreclose the lien against the Lot, and interest, costs and reasonable attorneys'
fees of any such action shall be added to the amount of such assessment. A suit to recover a
money judgment for nonpayment of any assessment levied pursuant to this Declaration, or
any instalhnent thereof, may be maintained without perfecting, foreclosing or waiving the
lien provided for herein to secure the same;
(c) suspend a Member's voting rights, right to hold an office within the
Association, and right to use nonessential services offered by the Association to the extent
that access and the provision of utilities to the Lot through the Conunon Area are not
precluded. An Owner, whose rights have been suspended in this manner, shall have no right
to any refund or suspension of his, her or its obligations to pay such assessments for the
duration of such suspension or otherwise; and
(d) accelerate the due date of the unpaid assessment so that the entire balance
shall become immediately due, payable and collectible.
No Owner may waive or otherwise escape liability for the assessments provided for herein
by non-use of the Common Area or facilities, abandonment of its Lot, or the failure of the
Association or the Board of Directors to perform their duties.
10
Section 5.11. Subordination of the Lien to Mortgages. The lien for the assessments
provided for herein shall be subordinate to the lien of any properly recorded first mortgage or deed
of trust encumbering a Lot. Notwithstanding anything contained in this Section 5.11 or elsewhere
in this Declaration, any sale or transfer of a Lot to a Mortgagee pursuant to a foreclosure of its
mortgage or conveyance in lieu thereof, or a conveyance to any person at a public sale in the
manner provided by law with respect to mortgage foreclosures, shall extinguish the lien of any
unpaid assessments (or periodic installments, if applicable) which became due prior to such sale,
transfer or conveyance; provided, however, that the extinguishment of such lien shall not relieve the
prior Owner from personal liability therefore. No such sale, transfer or conveyance shall relieve the
Lot, or the purchaser thereof at such foreclosure sale, or the grantee in the event of conveyance in
lieu thereof, from liability for any assessments (or periodic installments of such assessments, if
applicable) thereafter becoming due or from the lien for such assessments.
Section 5.12. Exempt Property. The following property subject to this DecIaration shall
be exempt from the assessments created herein: (a) all property dedicated to and accepted by a local
public authority; and (b) the Common Area; however, no developed or undeveloped Lot, land or
improvements devoted to dwelling use shall be exempt from said assessments.
Section 5.13. Reserves for Replacements. The Association shall establish and maintain a
reserve fund for the maintenance, repair and replacement of the. Common Area and improvements
located thereon by the allocation and payment to such reserve nmd of an amount to be designated
from time to time by the Board of Directors, which reserve fund shall be sufficient, in the sole
opinion of the Board of Directors, to accommodate such futur~maintena.t}ce, repair and replaceD;1ent " .
and which shall be a component of the Annual Assessment:. Stich fuiid""shallbe conclusively
deemed to be a common expense of the Association and may be deposited with any banking
institution, the accounts of which are insured by any state or by any agency of the United States of
America or may, in the discretion of the Board of Directors, be invested in obligations of, or fully
guaranteed as to principal by, the United States of America. The reserve for replacement of the
Common Area may be expended only for the prupose of effecting the replacement of the Conunon
Area, major repairs to, replacement and maintenance of any improvements within the Common
Area, including but not limited to sidewalks, parking areas, landscape improvements, street or
common area lighting, streets or roadways developed as a part of the Property, equipment
replacement, and for start-up expenses and operating contingencies of a nonrecurring nature relating
to the Common Area. The Association may establish such other reserves for such other pmposes as
the Board of Directors may from time to time consider to be necessary or appropriate. TIle
proportional interest of any Member in any such reserves shall be considered an appurtenance of the
Member's Lot and shall not be separately withdrawn, assigned or transferred or otherwise separated
from the Lot to which it appertains and shall be deemed to be transferred with such Lot.
11
ARTICLE VI
RESTRICTIVE COVENANTS
Section 6.1. Residential Use. The Property shall be used exclusively for residential
purposes except as provided in Section 6.19 hereof. The Declarant reserves the right, pursuant to a
recorded subdivision or re-subdivision plat, to alter, amend, and change any Lot line or subdivision
plan or plat. No building shall be erected, altered, placed or permitted to remain on any Lot other
than one Dwelling Unit and appurtenant structures, approved by the Association and appropriate
Local Governing Authorities, for use solely by the occupant of the Dwelling Unit.
Section 6.2. Architectural Review Board Approval. No Structure (as herein defined)
or addition to a Structure shall be erected, placed, painted, altered or externally modified or
improved on any Lot until the plans and specifications, includIng design, elevation, material, shape,
height, color and texture, and a site plan showing the location of all improvements with grading
modifications, shall be filed with and approved in writing by the Architectural Review Board, and,
if required, by appropriate Local Governing Authorities and, where required, appropriate
construction permits obtained. As used herein, the term "Structure" shall include, but not be
limited to, any building or portion thereof, including, without limitation, walls, decks, patios, stairs,
windows, window boxes, doors, fences, play equipment, greenhouses, skylights, address markers,
mail boxes, name plates, flag poles, lawn ornaments, trees, hedges, sluubbery, solar panels, satellite
dishes, antennae, shutters, awnings, fences,. pools, hot;..tubs, pavement, walkways, driveways,
ga. rag.es and/or garage doors, or appurtenances to any of the aforementioned.
--'-'-- ,,,,... -.. ....." ". ..-... -. -. .. .. ... " .. .
--. .. _n ___ __. _. __ n_.... ".' . ,..._............. ....,,_. _._..n.... ""_U__, '. .. ... .
Section 6.3 . Laundry . ~o clot~ng, laundry or' wasil shall be aired or dried on any
portion of the Property within public view. ". .. .
Section 6.4. Sight Lines. No fence, wall, tree, hedge or shrub shall be maintained in
such a manner as to obstruct sight lines for vehicular traffic.
Section 6.5. Maintenance. Other than as specifically and expt:essly set forth in
Section 11.1 below, an Owner shall, at all times, maintain its Dwelling Unit and all
appurtenances thereto in good repair and in a state of neat appearance from all exterior vantage
points. Prior to landscaping any Lot (other than perennial flowers within approved flower beds),
the Owner of such Lot must submit a written landscape plan to the Architectural Review Board for
its review and approval or disapproval. The Owner shall not be permitted to remove any trees or
shrubs on the Lot without the approval of the Architectural Review Board, except as may be
ordered by Local Goveming Authorities or by the Architectural Review Board to maintain proper
sight lines. No approval for removal of any trees or shrubs will be granted by the Architectural
Review Board unless appropriate provisions are made for replacing the removed trees or shrubs.
Section 6.6. Nuisance. No noxious or offensive activity shall be carried on upon the
Property, nor shall anything be done or placed thereon which is or may become an annoyance or
nuisance to the neighborhood. No exterior lighting on a Lot shall be directed outside the boundaries
of the Lot.
12
Section 6.7. Si~s. The only signs permitted on the Property shall be customary home
and address signs and real estate sale or lease signs which have received the prior written approval
of the Architectural Review Board ("Permitted Signs"). No more than one (l) Pennitted Sign
shall be displayed to public view on any Lot and must be less than or equal to two (2) square feet in
total surface area and may not be illlll11inated. All Permitted Signs advertising the property for sale
or rent shall be removed within three (3) days from the date of the conveyance of the Lot or of the
execution of the lease agreement, as applicable.
Section 6.8. Animals. No domesticated or wild animal shall be kept or maintained on
any Lot, except for common household pets such as dogs and cats which may be kept or
maintained, provided that they are not kept, bred or maintained for commercial purposes and do not
create a nuisance or annoyance to surrounding Lots or the neighborhood and are kept in compliance
with applicable laws and ordinances of the Local Governing Authority. Pets will not be permitted
outside of a Dwelling Unit unless on a leash and any Owner walking a pet within the Community or
on any Common Area will immediately clean up any solid animal waste and properly dispose of the
same. Law enforcement and animal control personnel shall have the right to enter the Property to
enforce local animal control ordinances.
Section 6.9. Trash Storage. Trash shall be collected and stored in trash receptacles only
and not solely in plastic bags. Trash and garbage receptacles shall not be permitted to remain in
public view and shall remain inside of each Owner's garage except on days of trash collection,
except those receptacles designed for trash accumulation located in the Common Area. No
accumulation or storage of litter, new or. used building materials, or trash of any kind shall be
permitted on the exterior of any Dwelling Unit.
Section 6.10. Antennae Systems. To the extent not inconsistent with federal law, exterior
television and other antennae, including satellite dishes, are prohibited, unless approved in writing
by the Architectural Review Board. The Architectural Review Board shall adopt rules for the
installation of such antennae and/or satellite systems, which rules shall require that antennae and
satellite dishes be placed as inconspicuously as possible and only when fully screened from public
view on the rear and above the eave line of any Dwelling Unit. Satellite dishes will not exceed 18
inches in diameter. It is the intent of this provision that the Architectural Review Board shall be
able to strictly regulate exterior antennae and satellite dishes to the fullest extent of the law and
should any regulations adopted herein or by the Architectural Review Board conflict with federal
law, such rules as do. not conflict with federal law shall remain n full force and effect.
Section 6.11. Painting. No person shall paint the exterior of any building, or portion
thereof, a color different than the original color of said building or portion thereof without the
proposed color having been first approved in writing by the Architectural Review Board and the
Association. All Dwelling Units in the Community will, atall times, be painted in a w1iform coior,
without variation.
Section 6.12. Finished Exteriors. The exteriors of all Structures, including, without
limitation, walls, doors, windows and roofs, shall be kept in good maintenance and repair. No
13
~
Structure shan be permitted to stand with its exterior in an unfinished condition for longer than six
(6) months after the commencement of construction. In the event of fire, windstorm or other
damage, the exterior of a Structure shall not be pennitted to remain in a damaged condition for
longer than three (3) months, unless expressly excepted by the Board in \Vriting. Absent approval
from the Architectural Review Board to the contrary, all maintained, repaired, or replaced roofs and
other structure exterior shall be the same color and texture as the original roof and other Structure
exterior.
Section 6.13. Fences. Except for any fencing installed by the Developer on any Lot or in
any Common Areas, no fence or similar enclosure shall be erected or built on any Lot.
Section 6.14. Vehicles. No inoperable, junk, unregistered or unlicensed vehicle shall be
kept on the Property. No portion of the Property shall be used for the repair of a vehicle.
Section 6.15. Commercial Vehicles. No commercial or industrial vehicle, such as but not
limited to moving vans, trucks; tractors, trailers, vans, wreckers, tow trucks, hearses and buses, shall
be regularly or habitually parked or parked overnight on the Property, except upon the prior written
approval of the Architectural Review Board.
Section 6.l6~ Recreational Vehicles. No recreational vehicles or equipment, such as but
not limited to boats, boating equipment, jet-skis, wave ruimers, travel trailers, camping vehicles or
camping equipment shall be parked on "the Property without the prior, written approval of the
Architectural Review Board, as to location, size, screening and other. relevant criteria. The
Association shall not be required to-provide' a'sto~age'ar~~'fhrc'tll~~e'vel1fde's.--'-' ......
Section 6.17. Towi.i2.- The' Board or' bire~tors' ~hai]have the' right to tow any vehicle
parked or kept in violation of the covenants contained wi1hin this Article, upon twenty-four (24)
hours' notice and at the vehicle-owner's sole expense.
Section 6.18. Gara~e_ Usa~e. Any conversion of any garage that will preclude the parking
of vehicles within that garage is prohibited. Owner's shall keep their garages at all times in a
manner that will permit the usage of such garage for parking of passenger automobiles, vans and/or
trucks.
Section 6.19. Rental Aueements. Any rental agreement for a Dwelling Unit must be for
an initial period of at least six (6) months, must be in writing and must be subject to the rules and
regulations set forth in this Declaration and in the other Association docrunents. Every such rental
agreement must include a provision stating that any failure by the tenant, its household members or
guests, to comply with the terms of this Declaration shall be a default tmder the rental agreement,
and the Owner shall be responsible for enforcing that provision.
Section 6.20. Initial Construction and Marketin~. The Declarant or its assigns, or any
Designated Builder, may, during its construction and/or sales period, erect, maintain and operate
real estate sales and construction offices, model homes, displays, signs and special lighting on any
part of the Property and on or in any building or Structure now or hereafter erected thereon and shall
14
...
not be bound by the provisions of this Article to the extent application thereof would delay, hinder
orincrease tbe cost of construction and/or marketing of Dwelling Units for sale in tbe Community.
Section 6.21. Holiday and Seasonal Decorations. Any holiday or seasonal decorations
or ornamentation that is placed on the exterior of a Dwelling Unit or Structure, or that is otherwise
visible from the exterior of such Dwelling Unit or Structure, shall be first approved by the
Architectural Review Board.
Section 6.22. Window Boxes. No window boxes containing flowers or any other
vegetation shall be erected or attached to any Dwelling Unit.
Section 6.23. Dusk to Dawn Coach Li~bts. Each Owner shall maintain any and all coach
lights installed as a part of the initial construction of each Dwelling Unit in good order, condition
and repair, including, without limitation, any necessary repairs or maintenance as may be required
for the effective operation of all "dusk to dawn" photocell switches and replacement of light bulbs
so that those coach lights rem:lin continuously operational from dusk to dawn.
Section 6.24. Additional Rules and Regulations. The Association shall have the
authority to adopt such rules and regulations regarding this Article as it may from time to time
consider necessary or appropriate.
ARTICLE VII
.ARCffiTECTURAL.REVIEW BOARD
"....,_ _0... _. , _
Section 7.1.. The Architectural Review Board. . As used herein, the term "Architectural
Review Board" will mean and refer to a group of individuals who will administer the duties
described in Section 7.4, below. During the Committee Period, as herein defined, the Architectural
Review Board will consist of two (2) conunittees: (i)the "New Construction Committee" and the
"Modification and Change Committee.~~ Upon expiration of the Committee Period, these
committees will be dissolved and the Architectural Review Board will not be divided into
committees. For purposes of this DecI~ation, the term "Committee Period" will mean and refer to
the period of time during which the Declarant OmlS at least one (l) Lot in the Development.
Nothing contained in this Declaration ot in the Articles of Incorporation or By-Laws of the
Association will prohibit an individual from serVing on both committees simultaneously, however,
membership on anyone committee will not entitle any individual to also be a member of the other
committee. Likewise, nothing contained herein will require the appointment of an individmlI to
either such committee simply because that individual is also a member of the other committee
described herein.
The N~w Construction Committee shall consist of three (3) members who are appointed by
the Declarant. The Modification and Change Committee shall consist of a number of members
equivalent to the number of members of the Board of Directors of the Association and will consist
of the individuals who are members of the Board of Directors of the Association. Upon expiration
15
~
of the Committee Period and dissolution of the New Construction Committee and the Modification
and Change Committee, the rights and responsibilities of each such committee hereunder will
simply be administered by the Architectural Review Board. Upon expiration of the Committee
Period, the individuals who are members of the Board of Directors of the Association will
automatically become members or-the Architectural Review Board, without the need for any
previous member of either committee to submit any type of resignation or acknowledgement of the
tennination of such committee. The term of membership for any member of the Architectural
Review Board will be coterminous with the term of that individual's membership on the Board of
Directors.
Section 7.2. Removal and Vacancies. Members of the New Construction Committee
may be removed by the Declarant at any time, with or without cause. The DecIarantwill fill any
vacancies on the New Construction Committee in the same manner that it has the right to initially
appoint members of the New Construction Committee, in its sole discretion. Individuals who are
members of the Modification and Change Committee may only be removed from that committee to
the extent that such individual is removed or otherwise ceases to be a member of the Board of
Directors of the Association. After the Committee Period, individuals who are members of the .
Architectural Review Board may only be removed from that board to the extent that such individual
is removed or otherwise ceases to be a member of 1he Board of Directors of the Association.
Appointments to fill vacancies in unexpired terms (during the Committee Period) on the
Modification and Change Committee or (after the Committee Period) on the Architectural Review
Board, shall be made in the same manner as members are appointed or elected to the Board of
Directors of the Association.
Section 7.3. Officers. At the first meeting of the Modification and Change Committee of
.. .
the Architectural Review Board follo\Vi.ng each annual meeting of Members; the Modification and
Change Committee shall elect from among themselves a chairperson, a vice-chairperson and a
secretary who shall perform the usual duties of their respective offices.
Section 7.4. Duties. The Committees of the Architectural Review Board shall regulate
the external design and appearance of the Property and the external design, appearance and location
of the improvements thereon in such a manner so as to preserve and enhance property values and to
maintain harmonious relationships among Structures and the natural vegetation and topography in
the Community. During the Conunittee Period, the New Construction Committee shall regulate all
initial construction, development or improvements on the Property and the Modification and
Change Committee shall regulate all modifications and changes to existing improvements on the
Property. In furtherance thereof, the Architectural Review Board (acting through the designated
committees during the Committee Period and of its own accord after the Committee Period) shall:
(a) review and approve or disapprove written applications of Owners for
proposed alterations or additions to Lots;
(b) periodically inspect the Property for compliance with adopted, written
architectural standards and approved plans for alteration;
16
. .
(c) adopt and publish architectural standards subject to the confirmation of the
Board of Directors;
(d) adopt procedmes for the exercise of its duties; and
(e) maintain complete and accmate records of all actions taken by the
Architectural Review Board.
No request for approval by the Architectmal Review Board or any committee thereof will be
reviewed or otherwise considered unless submitted in writing by the Owner requesting such
approval. Approval by the Architectural Review Board of a correctly filed application shall not be
deemed to be an approval by. Local Governing Authorities nor a waiver of the applicant's obligation
to obtain any required approvals from any such Local Governing Authorities or to otherwise
comply with applicable local ordinances. No approval of the Architectural Review Board or any
committee thereof shall be effective unless in writing and signed by the members of the
Architectural Review Board or' applicable committee whose approval is required hereunder.
Section 7.5. Failure to Act Failure of the Architectural Review Board, any committee
thereof or the Board of Directors to respond to any request for approval, enforce the architectural
standards contained in this Declaration or to notify an Owner of noncompliance with architectural
standards or approved plans for any period of time shall not constitute a waiver by the Architectural
Review Board or the Board of Directors of any provision of this Declaration requiring such
approval hereunder or othe~sep!eY~I}t~e Architectmal Reyif:'\.V" ?()ard or the Board of Directors
from enforcingthis DeCIaraiionafariyhiterdate. ..0.. m .. .. -.. ... . ... .. .
Section 7.6. ':E~fo'rcenient.. Any exterior additioll~'dlange o~aIteration made without a
written application to, and approval of, the Architectural Review Board shall be deemed to be in
violation of this Declaration and may be required by the Board of Directors to be restored to its
original condition at the offending Owner's sole cost and expense.
Section 7.7. Appeal. Any aggrieved party may appeal a decision of the Architectural
Review Board to the Board of Directors by giving written notice of such appeal to the Association
or any director within twenty (20) days of the adverse ruling.
ARTICLE VIII
EASEMENTS AND OTHER AREAS.
Section 8.1. Emer1:?;ency Easement Rights. The Declarant hereby grants a blanket
easement to the Association, its directors, officers, agents and employees, to any manager employed
by or on behalf of the Association, and to all police, fire, ambulance personnel and all similar
persons, to enter upon the Property in the exercise of the fimctions provided for by this Declaration,
Articles of Incorporation, By-Laws and rules of the Association, and in the event of emergencies
and in the performance of governmental functions.
17
, '
Section 8.2. General Easements. The Declarant hereby reserves unto itself and its
assigns, any governmental or municipal agency, and any public or private utility, a general
easement upon all Lots for the installation, maintenance, repair, and use of any drainage, utility,
and sewer lines or infrastructure so as to pem1it the installation, maintenance, repair, and use of
all electrical, telephone, water, gas, sanitary and storm sewer and other utility services, including
all necessary lines, pipes, wires, cables, ducts, antenna, and other facilities to serve any Dwelling
Unit constructed on the Property. This general easement shall be on all areas of a Lot not
occupied by a Dwelling Unit, with the exception of areas covered by chimneys or patios. This
general easement shall not be exercised, after the conveyance of any Lot, in a manner that (i)
unreasonably or adversely affects any Dwelling Unit or portiont hereof located upon such Lot, or
(ii) lUlfeasonably restricts the right of ingress and egress to such Lot.
Section 8.3. Limitation on General Easement Rights. When not an emergency
situation or a govenm1ental function, the rights accompanying the easements provided for in Section
U of this Article shall be exercised only during reasonable daylight hours and then, whenever
practicable, only after advance notice to, any Owner or tenant directly affected.
Section 8.4. Encroachments. If any improvement on the Property now or hereafter
encroaches on any other portion of the Property by reason of (a) the original construction thereof by
the Declarant or its assigns, which shall include, but not be limited to, any party wall or driveway
which encroaches over a Lot's boundary line and any drainage of stormwater from roofs .and
gutters, (b) deviations within normal construction tolerances in the maintenance, repair, replacement
or reconstruction of any in1provement, or (c) the settling or shifting of any land or improvement, an
.. easement' is hereby granted to the extent of any such encroachment for the period of time the
encroachment exists~ The owner of the encroaching improvement shall also have an easement for
the limited purpose of maintenance of the encroaching improvement. This easement does not
relieve any Owner or any other person from liability for such Owner's or other person's negligence
or willful misconduct.
Section 8.5. Ingress Egress Easement. The Declarant and its agents and employees, and
any Designated Builder and its agents and employees, shall have a right of ingress and egress, as
required for construction on and development of the Property and otherwise over (i) Common Areas
and (ii) portions of any Lots not occupied by a Dwelling Unit; provided, however, that any person
or entity exercising such easement rights upon a Lot shall promptly repair any resulting damage so
that the Lot is restored to the condition in which it existed immediately prior to the exercise of such
easement rights.
Section 8.6. Drainage, Utility and Sewer Easements (DU & SE). Any Drainage,
Utility and Sewer Easement (DU & SE) shown on any Plat are created to provide (i) paths and
courses for area and local storm drainage, either over land or in adequate underground conduit, to
serve the Property and adjoining ground and/or other drainage infrastructure systems and (ii) for the
use by public and private utilities and local governments and their agencies having jurisdiction over
any stonn and sanitary waste disposal system which may be designed to serve the Properly and
adjoining lands, for the purpose of the installation and maintenance of sanitary and storm sewers
and (iii) utility easements for tbe use of the Declarant, the Association, the Ovv:ners, and any
18
municipal or private utility companies for the installation and maintenance of mains, ducts, poles,
lines, wires and other utility facilities and infrastructure.
Section 8.7. Water Line Easement. The Water Line Easement (Water Line ESMT)
shown on any Plat is a non-exClusive easement for the inst~tllation, maintenance, and repair of a
water line and infrastructure, and for use as a water line. The Water Line Easement is reserved
for the City of Cannel, Indiana, and the Declarant and the Declarant's assigns, and is hereby
dedicated to the City of Carmel, Indiana.
Section 8.8. Reservation of Right to Grant Future Easements. There is reserved to the
Declarant a right to grant non-exclusive easements over any Lot or Common Area for the purposes
of installing, repairing ancIJor maintaining utility lines of any sort, including but not limited to storm
drains and drainage swales, sanitary sewers, gas lines, electric lines and cables, water lines,
telephone lines, telecommunication lines and cables; and the like, and for any pmpose necessary for
the Declarant or its assigns to obtain the release of any bonds posted with a municipality,
governmental agency or regulatory agency, and non-exclusive easements over the Common Area to
any municipal agency or private entity for any other purpose consistent with the "open space"
designation thereof. This right to grant easements shall automatically expire as to any Lot or
Common Area seven (7) years from the date of submission of such Lot or Common Area to this
Declaration.
Section 8.9. Bonds and/or Dedication Requirements. There is reserved to the
Declarant an easement and the right to grant and reserve easements or to vacate or. terminate
easements across all Lots and Common Area as may be required by any governmental agency or
authority or utility in connection with the release of improvement bonds or the acceptance of public
streets for state maintenance with respect to the Property.
Section 8.10. Easements for Corrective Work. There is reserved to the Declarant a non-
exclusive easement over all Lots and the Common Area for the purposes of (i) correcting, repairing
or maintaining any drainage, drainage infrastructure, utility infrastructure, grading or regrading,
maintenance, landscaping, (ii) mowing, (iii) erecting street intersection signs, directional signs,
temporary promotional signs, entrance features, lights and wall features, and (iv) executing any of
the powers, rights, or duties granted to or imposed on the Association herein. This easement shall
automatically expire as to any Lot seven (7) years from the date of submission of such Lot to this
Declaration.
Section 8.11. Open Space. The Open Space portions of the Common Area are not
dedicated to the public and are not for use by the general public; instead, the Open Space
portions of the Common Area are to be used exclusively by Owners and their family members,
guests, invitees, and lessees.
Section 8.12. Parking Areas. Parking Areas are not dedicated to the public and are not
to be used by the general public; instead, Parking Areas are to be used exclusively by Owners
and their family members, guests, invitees, and lessees for the parking of motor vehicles.
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Section 8.13. Sidewalks. That portion of the Common Area occupied by Sidewalks is
hereby reserved for use by not anly the Owners and their family members, guests, invitees, and
lessees, but the general public, as well, for pedestrian purposes in the manner in which sidewalks
are typically used.
Section 8.14. Private Streets. The surface of that portion of the Common Area occupied
by Private Streets is reserved not only for the use for Owners and their family members, guests and
invitees, but also for the use by the general public, far vehicular ingress and egress in the manner in
which streets are customarily used.
ARTICLE IX
PARKING
Parking of any type of vehicle in any Common Area is prohibited in areas other than areas
specifically identified as parking areas, adjacent to Private Streets within Common Areas. Parallel
parking within internal private streets within Common Areas is prohibited. The Board of Directors
may promulgate such rules and regulations as it deems appropriate to regulate the use of any
Common Areas ta permit temporary parking for purposes of loading and unloading passengers and
. materials. Those rules and regulations may include the towing of any vehicles parked in violation
of this Declaration, with no notice of towing required and at the vehicle owner's sole expense.
Temporary parking of vehicles on adjacent public rights-of-way will be subject to applicable
limitations and fees impo~ed by the ~.ocal..Gov.erning Authorities.
ARTICLE X
PARTY WALLS
Section 10.1. General Rules of Law to Apply. Each wall which is built as a part of the
original construction of the Dwelling Units upon the Property and placed on the dividing line
between Lots shall constitute a party wall, and, to the extent not inconsistent with the provisions of
this Article, the general rules of law regarding party walls and liability for property damage due to
negligence or willful acts or omissions shall apply thereto.
Section 10.2. Sharinf?: of Repair and Maintenance and Destruction by Fire or Other
CasualtY. If any such party wall is damaged or destroyed by fire or other casualty or by some cause
other than the act of one of the adjoining Owners;its agent", family, household or guests (including
ordinary wear and tear and deterioration from lapse oftime), then in such event both such adjoining
Owners shall proceed forthwith to rebuild or repair the structural components of such wall, sharing
equally the cost thereof, and each individual Owner shall proceed forthwith to rebuild or repair the
non-structural components of such wall in proportion to their respective uses of the party wall. Any
and all such reconstruction and/or repairs shall be completed immediately to the extent that the
failure to commence and/or complete such reconstruction and/or repairs would result in an
immediate risk to hwnan health and/or safety. All other reconstruction and/or repairs shall be
completed within three (3) months following the casualty or other event that damaged or destroyed
20
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. .
such party wall, unless a longer period of time is approved of by the Association. If the damage is
of such a nature that it has resulted, or will (if left unconected) result in damage or destruction of
such party wall, the reconstruction and/or repairs will be completed within a reasonable time, not
exceeding six (6) months following the initial discovery of the condition. Any and all such
reconstruction and/or repair shall be made in compliance with all requirements of Local Governing
Authorities and otherwise in compliance with all applicable laws, to the same or better condition as
existed prior to such damage or destruction.
Section 10.3. Repairs for Dama~e Caused by One Owner. If any such party wall is
damaged or destroyed through the act of one or more adjoining Owners, or their respective agents,
families, households or guests (collectively the "Offending Parties"), whether or not such act is
negligent or otherwise culpable, so as to deprive another adjoining Owner of the full use and
enjoyment of the wall, then the Owner(s) of the Dwelling Unites) from whence the Offending
Parties committed the act that caused the damage or destruction, shall forthwith proceed to rebuild
and repair the same, in the manner required under Section 10.2, above, without cost to the adjoining
Owner.
Section 10.4. Other Chan~es. In addition to meeting the other requirements of these
restrictive covenants and of any building code or similar regulations or ordinances, any Owner
proposing to modify, make additions to or rebuild its Dwelling Unit in any manner which requires
the extension or other alteration of any party wall shall first obtain the written consent of the
adjoining Owner, whose consent shall not be unreasonably withheld. If the adjoining Owner has
not responded in writing to the requesting Owner within twenty-one (21) days of its receipt of any
such written request, given by registered or certified mail, rettun receipt requested, such consent of
the adjoining Owner shall be deemed received. "
Section 10.5. Right to Contribution Runs with the Land. The right of any Owner to
contribution from any other Owner lmder this Article shall be appurtenant to the land and shall pass
to such Owner's successors in title.
Section 10.6. Dispute. In the event of a dispute between Owners with respect to the repair
or rebuilding of a party wall or with respect to the sharing of the cost thereof, then upon written
request of one of such Owners addressed to the Association, the matter shall be submitted to the
Board of Directors, who shall decide the dispute.
ARTICLE Xl
POWERS AND DUTIES OF THE ASSOClATION
Section 11.1. Discretionary Powers and Duties. The Association shall have the
following powers and duties which may be exercised in its discretion:
(a) to enforce any covenants or restrictions which are imposed by the terms of
this Declaration or which may be imposed on any part of the Property. Nothing contained
herein shall be deemed to prevent the Owner of any Lot from enforcing any building
21
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restrIctIOn in its own name. The right of enforcement shall not serve to prevent such
changes, releases or modifications of the restriction or reservations placed upon any part of
the Property by any party having the right to make such changes, releases or modifications
in the deeds, contracts, declarations or plats in which such restrictions and reservations are
set forth; and the right ofenforcement shall not have the effect of preventing the assignment
of those rights by the proper parties wherever and whenever such right of assi gnment exists.
Neither the Association nor the Board of Directors shall have a duty to enforce the
covenants by an action at law or in equity if, in its or their opinion, such an enforcement is
not in the Association's best interest. The expenses and costs of any enforcement
proceedings shall be paid out of the general fund of the Association as herein provided for;
provided, however, that the foregoing authorization to use the general fund for such
enforcement proceedings shall not preclude the Association from collecting such costs from
the offending Owner;
(b) to provide such light as the Association may deem advisable on streets and
the Common Area and to maintain any and all improvements, Structures or facilities which
may exist or be erected from time to time on the Common Area;
(c) to use the Conunon Area and any improvements, Structures or facilities
erected thereon, subject to the general rules and regulations established and prescribed by
the Association and subject to the establishment of charges for their use;
Cd) to mow and re-sow.or re-seeder re-sod lawn.areas and.fertilize lawn areas
within the Common Areas;
., ~. ... . . - . .. '. ,.. ." ,. .' . .
(e) to care for, spray, trim, protect, plant, replant and prune trees, shrubs . and
other landscaping, maintenance and upkeep ofthe Common Area and to pick up and remove
from the Common Area all loose material, rubbish, filth and accumulation of debris; and to
do any other thing necessary or desirable in the judgment of the Association to keep the
Common Area in neat appearance and in good order, including, but not limited to, cleaning
the private streets and maintaining the street lights located in the Common Areas;
(f) to exercise all rights, responsibilities and control over any easements which
the Association may from time to time acquire, including but not limited to those easements
specifically reserved to the Association in the Article VIII herein;
(g) to create, grant and convey easements and licenses upon, across, over and
under all Common Area, including but not limited to easements for the installation,
replacement, repair and maintenance of utility lines serving the Property;
(h) to employ counsel and institute and prosecute such suits as the Association
may deem necessary or advisable, and to defend suits brought against the Association;
(i) to retain as an independent contractor or employee a manager of the
Association and such other employees or independent contractors as the Board deems
22
necessary, and to prescribe the duties of employees and scope of services of independent
contractors;
G) to enter on any Lot to perform emergency repairs or to do other work
reasonably necessary for the proper maintenance or protection of the Property, including
without limitation (i) maintenance and repairs of all storm water drainage infrastructure,
including without limitation retaining walls, and (ii) all utility repairs, and erosion control
repalfs.
(k) to enter (or have the Association's agents or employees enter) on any Lot to
repair, maintain or restore the Lot, all improvements thereon, and the exterior of the
Dwelling Unit and any other improvements located thereon ifsuch is not performed by the
Owner of the Lot, and to assess the Owner of the Lot the costs thereof, such assessment to
be a lien upon the Lot equal in priority to the.lien provided for in Article V herein; provided,
however, that the Board of Directors shall only exercise this right after giving the Owner
written notice ofits intent at least fourteen (14) days prior to such entry;
(1) to re-subdivide and/or adjust the boundary lines of the Conunon Area but
only to the extent such re-subdivision or adjustment does not contravene the requirements of
zoning and other ordinances applicable to the Property;
(m) to adopt, publish and enforce rules and regulations governing the use of the
Common Area and facilities and with respect to such other areas of responsibility assigned
to it bY this Declaration, except where expressly reserved herein to the Members. Such rules
and regulations may' grant to the Board of Directors the p()wer to suspend a Member's
voting rights and the. Member's right to use non-essential services for non-payment of
assessments and to assess charges against Members for violations of the provisions of the
Declaration or rules and regulations; and
(n) . to declare the office of a member of the Board of Directors vacant in the
event such member shall be absent from three (3) consecutive regular meetings of the Board
of Directors.
Section ] ] .2. Mandatory Powers and Duties. The Association shall exerCIse the
following powers, rights and duties:
(a) to accept title to the Common Area and to hold and administer the Common
Area for the benefit and enjoyment of the Owners and occupiers of Lots, and to cause the
Common Area and facilities to be maintained in accordance with the standards adopted by
the Board of Directors;
(b) to transfer part of the ConuDon Area to or at the direction of the Declarant,
for the purpose of adjusting boundary lines or otherwise in connection with the orderly
subdivision or development of the Property, but only to the extent such re-subdivision or
23
, >
adjustment does not contravene the requirements of zoning and other ordinances applicable
to the Property;
(c) after the termination of the Class B membership, to obtain and maintain
without interruption liability coverage for any claim against a director or officer for the
exercise of its duties and fidelity coverage against dishonest acts on the part of directors,
officers, trustees, managers, employees or agents responsible for handling funds collected
and held for the benefit of the Association. The fidelity bond shall cover the maximum
funds that will be in the custody of the Association or its management agent at any time
while the bond is in place. The fidelity bond coverage shall be in an amount as may be
determined to be reasonably prudent by the Board of Directors;
(d) to obtain and maintain without interruption a comprehensive coverage of
public liability and hazard insurance covering the Common Area, private streets and access
easements (AE) existing on the Property or shown on any Plat, and other easements of
which the Association is a beneficiary, if available at reasonable cost. Such insurance policy
shall contain a seve;rabilityof interest clause or endorsement which shall preclude the insurer
from denying the claim of an Owner because of negligent acts of the Association or other
Owners. The scope of coverage shall include all coverage in Jcinds and amounts commonly
obtained with regard to projects similar in construction, location and use as determined by
the Board of Directors. Further, the public liability insurance must provide coverage of at
least $1,000,000.00 for bodily injury and property damage for any single occurrence;
. . . ... .
(e) to provide for the maintenance and repair of any and all (i) Cornman Areas
and improvements which may exist or be erected from time to time on the Common Area,
including but not limited to street lights (including the payment of utility costs therefor).
recreational facilities, entnince features, entrance ways, entrance areas, stormwater
management facilities, including sand filters, retaining walls and sound walls, (ii) easement
areas of which the Association is the beneficiary and for. which it has the maintenance
responsibility, (iii) any private streets or access easements (AE) existing on the Property or
shown on any Plat; (iv) facilities, including but not limited to fences and signs authorized by
the Association and erected on any easements granted to the Association, and (v) street
lights that may be constructed within the rights-of-way of any public streets within or
adjacent to the Property, including those. if any, required to be maintained by Local
Governing Authorities (including the payment of utility costs therefor);
(f) to arrange for plowing and/or removal of snow from (i) private streets
located within Common Areas, (ii) community walkways located \Vithin Common Areas,
and (iii) driveways located upon Lots. It shall be each Owner's responsibility, however, to
remove snow from the walkway extending from the community walkways to the front door
of the Owner's Dwelling Unit.
(g) to mow, trim, and fertilize grass located on each Lot; provided, however,
that the Association shall not be required to maintain, replace, irrigate, or fertilize any
flowers, plants. trees, shrubs, or any landscaping other than grass;
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(h) to paint all wood exterior trim, but shall not be responsible for any other
maintenance of the exterior of a DweJ1ing Unit;
(i) to pay all proper bills, taxes, charges and fees on a timely basis; and
G) to maintain its corporate status.
Section 11.3. Board Authority to Act. Unless otherwise specifically provided in the
Association's documents, all rights, powers, easements, obligations and duties of the Association
may be performed by the Board of Directors. Notwithstanding anything to the contrary contained
herein, any rules or regulations which are promulgated by the Board may be repealed or amended
by a majority vote of the Members cast, in person or by proxy, at a meeting convened for such
purpose in accordance with the By-Laws.
Section 11.4. Compensation. No director or officer of the Association shall receive
compensation for services as such director or officer except to the extent expressly authorized by a
majority vote of the Class A Members.
Section 11.5 Non-liability of Directors, Officers and Board Members. The directors
and officers of the Association and members of the Architectural Review Board shall not be liable
to the Owners or any other persons for any error or mistake of judgment in carrying out their duties
and responsibilities as directors.{)f offl.c.ersof. the Association or members of the Architectural
Review Board, except for their oWTliridividual W:illfulmisc6iiduct or gross. negligence. It is
intended that the directors and officers of the Association and members of the Architectural Review
Board shall have no personal liability with respect to any contract -made by them on behalf of the
Association except in their capacity as Owners.
Section J 1.6. Indemnity of Directors and Officers and Members of the Architectural
Review Board. The Association shall indemnify, hold harmless and defend any person, his or her
heirs, assigns and legal representatives (collectively, the "Indemnitee") made or threatened to be
made a party to any action, suit or proceeding by reason of the fact that he or she is or was a director
or officer of the Association or member of the Architectural Review Board, against all costs and
expenses, including attorneys fees, actually and reasonably incurred by the Indemnitee in
cOlmection with the defense of such action, suit or proceeding, or in connection with any appeal
thereof, except in relation to matters as to which it shall be adjudged in such action, suit or
proceeding that such Indemnitee is guilty of gross negligence or willful misconduct in the
performance of his or her duties. The Association shall also reimburse any such Indemnitee for the
reasonable costs of settlement of or for any judgment rendered in any action, suit or proceeding,
mucss it shall be adjudged in such action, suit or proceeding that such Indemnitee was guilty of
gross negligence or willful misconduct. In making such findings and notwithstanding the
adjudication in any action, suit or proceeding against an Indemnitee, no director or officer or
member of the Architectural Review Board shall be considered or deemed to be guilty of or liable
for gross negligence or willful misconduct in the performance of his or her duties where, acting in
good faith, such director, officer or member of the Architectural Review Board rcl ied on the books
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and records of the Association or statements or advice made by or prepared by any managing agent
of the Association or any director or officer of the Association, or any accountant, attorney or other
person, firm or corporation employed by the Association to render advice or service, unless such
director or officer had actual knowledge of the falsity or incorrectness thereof; nor shall a director
be deemed guilty of gross negligence or wiUful misconduct by virtue of the fact that he or she failed
or neglected to attend a meeting or meetings of the Board of Directors of the Association. The costs
and expenses incurred by an Indemnitee in defending any action, suit or proceeding may be paid by
the Association in advance of the [mal disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of the Indemnitee to repay the amount paid by the Association if it
shall ultimately be determined that the Indemnitee is not entitled to indemnification or
reimbursement as provided in this Section.
ARTICLE XII
RIGHTS OF MORTGAGEES.
Unless a right is waived by the appropriate Federal Agency; all Mortgagees shall have the
following rights:
Section 12.1 Veterans Administration.. If any of the Lots' are security for a loan
guaranteed by the V eteran~s Administration (the "VA"}'and ifthere is a Class B Member:
. (a) The Declarant must.p.rovide, acopy of all amendments to the VA. The
...--. ." . ....... AssoCiation'may not make any Material Amendment or take any Extraordinary Action as
n.. . ... such terms are define4.i~~cle XIllwi~ou~ t.he .approval of the V J!...
:' ,",',..';,...:,. .'-
(b) Eligible ,Mortgagees shall have the following rights:
(i) the right to inspect Association documents and records on the
same terms 'as the Members;
(ii) notice of any Material Amendment to the Association
docwnents;
(iii) notice of any extraordinary Action of the Association;
(iv) notice of any property loss, condenmation or eminent domain
proceeding affecting the Common Area resulting in a loss greater than ten
percent (10%) of the annual budget or affecting any Lot insured by the
AssoCiation in which the Eligible Mortgagee has an interest;
(v) notice of any termination, lapse or material modification of
an insurance policy held by the Association;
26
. .
(vi) notice of any default by an Owner of a Lot subject to a
mortgage held by the Eligible Mortgagee in paying assessments or charges
to the Associationw hich remains uncured for sixty (60) consecutive days;
(vii) notice of any rpoposal to terminate the Declaration or
dissolve the Association at least thirty (30) days before any action is taken;
(viii) the right of a majority of the Eligible Mortgagees to demand
professional management~ and
(ix) the right of a majority of the Eligible Mortgagees to demand
an audit of the Association's financial records.
Section 12.2. Federal Housing: Authority. If any of the Lots are security for a loan
insured by Federal Housing Authority (the "FHA") and ifthere is a Class B Member, the following
actions will require the prior approval of the FHA:
(a) annexation of additional properties~
(b) mergers, consolidations and dissolution of the Association;
(c) mortgaging or, conveyance of the Common Area; and
(d)
amendment of this DeClariition.
Section 12.3. Freddie Mac. AsSuming that-Mortgagees may' securitize pools of
mortgages, including mortgages on Lots and/or Dwelling Units in the Community, with the Federal
Home Loan Mortgage Corporation (alk/a HFreddie'Mac"), the following requirements shall
apply to all Lots and Dwelling Units in the Community:
(a) Unless at least two-thirds (2/3rds) of the first Mortgagees (based on one vote
for each first mortgage owned) or two-thirds of the Class A Members have given their prior
written approval, the Association shall not take any of the following actions:
(i) by act or omission seek to abandon, partition, subdivide, encumber,
sell or transfer the Common Area. The re-subdivision and/or adjustment of
boundary lines of the Common Area and the granting of easements by the
Association shall not be deemed a transfer or subdivision within the meaning of this
clause.
(ii) change the method of determining the obligations, assessments, dues,
or other charges that may be levied against an Owner.
(iii) by act or omission waive or abandon any scheme of regulations or
their enforcement pertaining to the architectural design or the exterior appearance of
27
Dwelling Units and their appurtenances, the exterior maintenance of Dwelling Units
and their appurtenances, the maintenance of the Common Area, common fences and
driveways, and the upkeep of lawns and plantings in the Property.
(iv.) fail to maintain fire and extended coverage insurance on insurable
parts of the Common Area or other Association property on a current replacement
cost basis in an amount not less than one hundred percent (100%) of the insurable
value, based on current replacement costs, not including land value.
(v) use hazard insurance proceeds for losses to the Common Area or
other Association property for other than the repair, replacement or reconstruction of
such property.
(b) A Mortgagee shall be given written notification from the Association of any
default in the performance of any obligation under this Declaration or related Association
documents by the Owner of a Lot that is the security for the indebtedness due the Mortgagee
which is not cured within sixty (60) days after the Owner's receipt of notice of the default.
(c) A Mortgagee may, jointly or singly, pay taxes or other charges which are in
default and which may or have. become a charge against the Common Area and may pay
overdue premiums on hazard insurance policies or secure new hazard insurance coverage
upon the lapse of a policy fo~ stich Common Area. The Mortgagee making such payments
shall be qwed immediate reim~tlI'sement therefor from the Association.
,Cd) The assessinents.J~posed by.the.Ass<?~ia.ti.on shall. in~lude an adequate
reserve fund for maintenance, repairs and replacements for those parts of the Common Area
which may be replaced or require maintenance on a periodic basis. Such reserves shall be
payable in regular installments rather than by Special Assessment.
Section 12.4. Fannie Mae. Assuming that Mortgagees may secure funding for mortgage
loans by selling mortgage loans, including mortgages on Lots and/or Dwelling Units in the
Community, to the Federal National Mortgage Association (a/kJa "Fannie Mae"), the following
requirements shall apply to all Lots and Dwelling Units in the Community:
(a)
following:
A Mortgagee shall be given written notification from the Association of the
(i) any condenmation or casualty loss that affects either a material
portion of the Common Area or the Lot that is the security for the indebtedness due
the Mortgagee;
(ii) any default in the performance of any obligation under this
Declaration or related Association documents by the Owner of a Lot that is the
security for the indebtedness due the Mortgagee which is not cured within sixty (60)
days after the Owner's receipt of notice of the default;
28
(iii) any lapse, cancellation or material modification of any insurance
policy or fidelity bond maintained by the Association;
(iv). any proposed action that. would require the consent of a specified
percentage of Mortgagees.
(b) Provided that improvements have been constructed in the Common Area and
provided that a Mortgagee gives written notice to the Association that it has relied on the
value of the improvements in making a loan on a portion or all of the Property, then subject
to the right of the Declarant to ahnex additional areas as" provided in Article XIII herein,
unless at least sixty-seven percent (67%) of the Members and Mortgagees representing at
least fifty-one percent (51 %) of those Lots that are subject to mortgages or deeds of trust
have given their prior written approval, the Associa!ion shall not add or amend any material
provision oftrus Declaration or related Association documents concerning the following:
(i) voting rights of any Member;
(ii) assessments, assessment liens, or subordination of such liens;
(iii) "reserves for maintenance, repair and replacement of those parts of the
Common Area that may be replaced or require maintenance on a periodic basis;
(iv) responSibility" for maintenance and repair of the Property;
(v) ." reallocation of interests in the Common Area or righ~" to its use.
except as provided in Article III and Article IV herein;
(vi) converting !--ots into Common Area or vice versa;
(vii) annexation or withdrawal of property to or from the Property (other
than annexation of those properties referred to in Article XIII;
(vHi) insurance or fidelity bonds;
(ix) leasing of Dwelling Units;
(x) imposition of any right of first refusal or similar restriction on the
right of an Owner to sell, transfer or otherwise convey its property;
(xi) a decision by the Association to establish self-management when
professional management has been required previously by a Mortgagee;
(xii) restoration or repair of the Property after a hazard damage or partial
condemnation;
29
,.
(xiii) any provisions that are for the express benefit of Mortgagees; and
(xiv) termination of the legal status of the Association after substantial
destruction or condemnation of the subdivision occurs.
An addition or amendment to this Declaration or related Association documents shall not be
considered material if it is for the purpose of clarification or correcting errors. A Mortgagee who
receives a written request to approve additions or amendments who does not deliver or post to the
requesting party a negative response within thirty (30) days of receipt of such request shall be
deemed to have approved such request.
Section 12.5. General.
(a) Condemnation. In the event that there is a condenmation or destruction of
the Common Area or other Association property, to the extent practicable, condemnation or
insurance proceeds shall be used to repair or replace the condemned or destroyed property.
(b) Unpaid Assessments. Any Mortgagee, who obtains title to a Lot pursuant
to the remedies provided in its mortgage or deed of trust or foreclosure of the mortgage or
deed of trust or deed in lieu offoreclosure, will not be liable for such Lot's unpaid dues or
charges which accrue prior to the acquisition oftitle to the L9t by the Mortgagee.
(c) Booksaiid R~cords. A M6rtgage~cshaIfliave th~ righft~ exainin<e ~d copy
at its expense the books and records of the Association dwing normal Imsiness hours and
upon reasonable notice to the Association.
(d) Notice. As set forth in this Article, Mortgagees shall have the right, upon
request, to receive notice of (a) the decision of the Owners to abandon or terminate the
Planned Unit Development (as defined by Fannie Mae); (b) any material amendment to the
Declaration, the By-Laws or the Articles of Incorporation; and (c) if professional
management has been required by a Mortgagee, the decision of the Association to terminate
such professional management and assume self-management.
(e) Excess Proceeds. Should there be excess insurance or condemnation
proceeds after the renovation, repair or reconstruction called for herein, such excess
proceeds may be distributed equally to the Owners, apportioned equally by Lot; subject,
however, to the priority of a Mortgagee with regard to the proceeds applicable to the Lot
securing said Mortgagee and in accordance with Indiana law.
(.0 Audited Financial Statement. The Association must provide an audited
financial statement for the preceding fiscal year to a Mortgagee upon its written request.
(g) Termination. Eligible Mortgagees representing at least sixty-seven percent
(67%) of the votes of the mortgaged Lots must consent to the tennination of the legal status
30
of the Association for reasons other than substantial destruction or condemnation of the
Property .
(h) Dama~e to Common Area. The Association shall cause the immediate
repair, reconstruction or renovation of any damage to the Common Area unless a decision
not to repair, reconstruct or renovate is approved by a majority of the Mortgagees.
ARTICLE Xli
GENERAL PROVISIONS
Section 13.1. Enforcement and Declarant's Exemption. The Association or any
Ov:ner shall have the right to enforce, by a proceeding at law or in equity, all restrictions,
conditions, covenants, reservations, easements, liens and charges now or hereafter imposed by
the provisions of this Declaration or other Association documents unless such right is specifically
limited. Failure by the Association or by any Owner to enforce any right, provision, covenant or
condition which may be granted by this Declaration shall not constitute a waiver of the right of the
Association or an Owner to enforce such right, provision, covenant or condition in the future. All
rights, remedies and privileges granted to the Association or any Owner pursuant to any term,
provision, covenant or condition of the Declaration shall be deemed to be cumulative and the
exercise of anyone or more thereof shall not be deemed to constitute an election of remedies nor
shall it preclude the party exercising the same from exercising such privileges as may be granted to
such party by: this Declaration or at law or in equity.
0- ....... .
Notwithstanding anything in this Declaration to" the contrary, (i) the Declarant and any
Designated Builder reserves a right "to caITy on construction, development, and sales activities, to
place equipment, machinery, supplies and signs, construct and maintain models or other structures,
and park vehicles of prospective or actual pmchasers, lessees, or employees and personnel of the
Declarant, on any part of the Property owned by the Declarant, a Designated Builder, or the
Association and (ii) none of the terms, conditions, provisions, and restrictions set forth in this
Declaration shall be constmed, in any manner, to limit any activity of the Declarant or a Designated
Builder in the construction, development, and sales activities pertaining to the Property.
Section 13.2. Severability; Headings; Conflict. Invalidation of anyone of the provisions
of this Declaration by judgment or court order shall in no way affect any other provision, which
shall remain in full force and effect. Titles of paragraphs are for convenience only and are not
intended to limit or expand the covenants, rights or obligations expressed therein. In the case of any
conflict between the Articles of Incorporation and this Declaration, the Declaration shall control; in
the case of any conflict between this DecIaration and the By-Laws, this Declaration shall control.
Section 13.3. Duration. TIle covenants and restrictions of this Declaration shall nm with
and bind the Property and shall inure to the benefit of and be enforceable by the Association or the
Owner of any Lot subject to this Declaration, their respective legal representatives, heirs, successors
and assigns, unless such right is specifically limited, for a tern) of twenty (20) years from the date
this Declaration is recorded, after which time the covenants and restrictions of this Declaration shall
31
"... .. Co:
be automatically extended for successive periods of twenty (20) years each, unless terminated by a
written and recorded instrument approved of in advance by the affinnative and unanimous vote of
all Members of the Association and their respective Mortgagees.
Section 13.4. Material AmendmentlExtraordinaryAction.
(a) Approval Requirements. In accordance with Federal Agencies'
requirements, material amendments ("Material Amendments") or extraordinary actions
("Extraordinary Actions") must be approved by Members entitled to cast at least sixty-
seven percent (67%) of the votes of Members present and voting, in person or by proxy, at a
meeting held in accordance with the notice and quorum requirements for Material
Amendments and Extraordinary Actions contained in the By-Laws, such vote including the
vote of a majority of the Class A Members present and voting, in person or by proxy, at
such meeting.
(b) Material Amendment. A Material Amendment includes adding, deleting
or modifYing any provision regarding the following:
(i) assessment basis or assessment liens~
(ii) any method of imposing or determining any charges to be levied
against individual O\VIlers;
. . . .
(iii) reserves for maintenance, repair or replacemenfofcClmrrloiiare"ii
improvements;
(iv) . maintenance obligations;
(v) allocation of rights to use Common Areas except as provided in
Article III and Article IV herein;
(vi) any scheme of regulation or enforcement of standards for
maintenance, architectural design or exterior appearance of improvements on Lots~
(vii) reduction of insurance requirements;
(viii) restoration or repair of common area improvements;
(ix) the annexation or withdrawal of land to or from the Property other
than annexation or withdrawal of those properties referred to in this Article XIII;
(x) voting rights;
(xi) restrictions affecting leasing or sale of a Lot; or
32
(xii) any provision which is for the express benefit of Mortgagees.
(c) Extraordinary Action. Alternatively, an Extraordinary Action includes:
(i) merging or consolidating the Association (other than with another
non-profit entity fonned for purposes similar to this Association);
(ii) determining not to require professional management if that
management has been required by the Association documents, a majority of eligible
Mortgagees or a majority vote of the Members;
(iii) expanding the Association to include land not previously described
as annexable which increases the overall land area of the project or number of Lots
by more than ten percent (10%);
(iv) abandoning, partitioning, encumbering, mortgaging, conveying,
selling or otherwise t;ransf~rring the Common Area except for (i) granting
easements; (ii) dedicating Common Area as required by a public authority; (iii) re-
subdividing or adjusting the boundary lines of the Common Area or (iv) transferring
Conunon Area pursuant to a merger or consolidation with a non-profit entity formed
for purposes similar to the Association;
. .... (v) usinginsurancepr.o~~eds fo.r~ ptlIposes other than reconstruction or
... repairofthemsured improveIIlents;oi.. -... . ..... ...
.. . ... .. . .
(vi) making capital expenditures (other than for repair or replacement of
existing improvements) during any period of twelve (12) consecutive months
costing more than twenty percent (20%) of the annual operating budget.
(d) Class Amendments. Any Material Amendment which changes the rights of
any specific class of Members must be approved by Members entitled to cast at least fifty-
one percent (51 %) of the votes of all Members of such class present and voting, in person or
by proxy, at a meeting held in accordance with the requirements contained in the By-Laws.
(e) Material Amendment and/or Extraordinary Actions Amendments. The
following Material Amendments and Extraordinary Actions must be approved by Members
entitled to cast at least sixty-seven percent (67%) of the total authorized votes of all
Members of the Association, including at least a majority of the total authorized votes
entitled to be cast by Class A Members:
(i) termination of this Declaration or the termination of the project;
(ii) dissolution of the Association except pursuant to a consolidation or
merger; and
33
;. "=,
(iii) conveyance of all Common Areas.
(f) VA Amendments. If the V A has guaranteed any loans secured by a Lot, so
long as there is a Class B Member all Material Amendments and Extraordinary Actions
must have the approval of the V A.
Section 13.5. Amendment. Amendments other than Material Amendments or
Extraordinary Actions shall be approved by at least sixty-seven percent (67%) of the votes entitled
to be cast by all Members present and voting, in person or by proxy, at any dilly called and
conveyed meeting, or in writing by Members entitled to cast at least sixty-seven percent (67%) of
the total authorized votes of all Members.
Any amendment must be properly executed and acknowledged by the Association (in the
manner required by law for the execution and acknowledgment of deeds) and recorded among the
appropriate land records.
Section 13.6. Special Amendment. Notwithstanding anything herein to the contrary, the
Declarant may tmilaterally amend this Declaration for any reason prior to the first conveyance of a
Lot to an Owner other than the Declarant and/or a Designated Builder and thereafter may make any
amendment required by any of the Federal Agencies or by the Local Governing Authorities, as a
condition of the approval of this Declaration, by the execution and recordation of such amendment
following notice to all Members.
Section 13.7. Waiver. The Declarant, as the present most interested party in maintaining
the high quality of development which by these covenants is sought to be assured for the Property,
hereby expressly reserves mlto itself (so long as these restrictions are in effect), the lmqualified right
to waive or alter from time to time such of the herein contained restrictions as it may deem best, as
to anyone or more of the Lots, which waiver or alteration shall be evidenced by the mutual written
consent of the Declarant and the then-Owner of the Lot as to which some or all of said restrictions
are to be waived or altered; such written consent to be duly acknowledged and recorded in the
Office ofthe Recorder of Hamilton County, Indiana.
Section 13.8. Casualty Insurance. Notwithstanding anything to the contrary contained
in this Declaration, each and every Owner shall maintain a casualty insurance policy affording
fire and extended coverage insurance insuring the Dwelling Unit in an amount equal to the full
replacement value of the improvements which in whole or in part, comprise the Dwelling Unit,
including, without limitations any Party Walls. Each Owner of each Lot and/or Dwelling Unit,
(regardless of whether or not its ownership is encumbered or is to be encumbered by a mortgage,
deed of trust or similar indenture) will furnish to the Association, at or prior to the closing of its
acquisition of that Lot or Dwelling Unit, a certificate of insurance, in fOlm and content
acceptable to the Association, evidencing the insurance coverage described herein. Each such
Owner shall, prior to the expiration of the terin of any such insurance policy, procure and deliver
to the Association a renewal or replacement policy in form and content acceptable to the
Association. If any such Owner fails to provide evidence of such coverage satisfactory to the
Association, the Association will have the right, but no obligation, to procure such coverage at
34
I. ; 1.,:,
the expense of the applicable Owner, and the cost of procuring such insurance will be assessed to
that Owner as a Special Assessment and shall be immediately due and payable upon demand.
Section 13.9. Withdrawable Real Estate.
(a) The Declarant shall have the unilateral right, withoutthe consent of the Class
A Members or any Mortgagee, to execute and _ record an amendment to this Declaration
withdrawing any portion of the Property on which Dwelling Units have not been
constructed; provided, however, that not more than five (5) years have lapsed since the date
of the recordation oftffis Declaration.
(b) Upon the dedication or the conveyance to any public entity or authority of
any portion of the Property for public street purposes, this Declaration shall no longer be
applicable to the land so dedicated or conveyed.
Section 13.10. Management Contracts: For such time as the Declarant has Class B
membership status, the Declarant shall have the right to enter into professional management
contracts on behalf of the Association for the management of the Property for terms not to exceed
one (1) year; provided, however, that the Association shall have the right to terminate such
contracts, with or without cause, upon thirty (30) days' written notice to the other party and without
payment of a termination fee.
Section 13.11. Dissolution. The Association may be dissolved with the assent given in
writing and signed by at least two-thirds (2/3) Of each class of Members and in accordance with
Article 13 of the Act. Upon dissolution of the Association, other than incident to a merger or
consolidation, the assets of the Association, both real and personal, shall be offered to an
appropriate public agency to be devoted to purposes and uses that would most nearly reflect the
purposes and uses to which they were required to be devoted by the Association. In the event that
such offer of dedication is refused, such assets shall be then offered to be granted, conveyed or
assigned to any non-profit corporation, trust or other organization devoted to similar purposes and in
accordance with mdiana law. Any such dedication or transfer of the Common Area shall not be in
conflict with then-governing zoning ordinances or the designation of the Common Area as "open
space" .
WITNESS the following signatures:
PLATINUM PROPERTIES, LLC
an Indiana limited liability company i
By: ~~R-L/~
Steven R. Edwards, Vice President-Chief
Financial Officer
35
.. J" 1 (,:"
ST ATE OF IAJ DIANA )
)SS:
COUNTY OF I18Ap'/()AJ )
Before me, a Notary Public in and for said County and ,State, personally appeared
Steven R. Edwards, by me known be the Vice President-Chief Financial GfliceT of Platinum
Properties, LLC, an lridiana limited liability company, who acknowledged the execution of the
foregoing "Declaration of Covenants, Conditions and Restrictions for The Townho~es at Hazel
Dell" on behalf of said corporation.
Witne~smyhand and Notarial Seal this'-~ay of TAA/UAIt y ,2003.
My Commission Expires:
/p- /'1 "1>7
~-W-Ltd~
Notary Public
!)iN ##,""11' J2. .81€1'I r.r ~~
Printed Signature
My County of Residence:
#/lPlJ,,(.T'bN
; ,
This instrumeIkw~s prepa.r'edhy' and after recording return to:
Charles D. Frankerib'et,ger'
Nelson & Frai1kenberger
3021 East 98th street; Suite 220
Indianapolis, IN 46280 '
,.,.,.....'";:"~ ' . OffiCIAL SEAL
xo"'a~""~ KENNmtR.\SRASSEUR
(.(SEAL" Notary. .PU,bUo.....:.state.o. r Indiana
~ . ~ Clr ttamlnon County
'. ~. .. . .
"'t,.,:9"I,~r.. . ~Eltplmll OCt. 19.2007
F-I:\Uscr\Janct\Platnurh\Hazcl Dc11\CCRs 020303.doc
36
.., J,-T- . t:.:.~
t::X:HlGl"T A
A part of the East Half and a part ofthe West Half of the Southeast 'Quarter of Section 33,
Township 18 North, Range 4 East, Hamilton County, Indiana, more particularly described as
follows:
Commencing at the Southeast Corner of the Southeast Quarter of said Section 33, Township 18
North, Range 4 East; thence North 89 degrees 42 minutes 50 seconds West (assumed bearing)
1322.90 feet along the South Line of said Southeast Quarter to the Southwest Corner of the East
Half of said Southeast Quarter, said point being the midpoint of the South Li~e of said Southeast
Quarter and the southwestern comer of a tract of land granted to Randolph D. and Michaelene
Martin ("1\ fartin") in a Warranty Deed, recorde'd as Instrument Number 8819464 in the Office of
the Recorder of Hamilton County, Indiana; thence North 00 degrees Dl minute 19 seconds West
268.00 feet along the West Line of said East Half to the northwestern comer of said "Martin"
tract and the POINT OF BEGlNNINGofthis description~ thence continue North 00 degrees 01
minute 19 !;econds West 2174.44 feet along the West Line of said East Half to the southeastern
comer ofa tract.ofland granted to American Aggregates Corporation ("American"), said comer
lying 200.00 feet (measured southerly in a perpendicular direction) from the North Line of said
Southeast Quarter; thence North 89 degrees 51 minutes 19 seconds West. 1326.76 feet along the
southern line of said "American" tract and parallel with said North Line to the West Line ofthe
West Half of said Southeast Quarter; thence North 00 degrees 06 minutes 46 seconds West
200,00 feet along said West Line to the Northwest Comer of said Southeast Quarter; thence
South 89 degrees 51 minutes 19 seconds East 1327.07 feet along said North Line to the
Northwest Corner of the East Half of said Southeast Qmirter, said point being the midpoint of the
North Line of said Southeast Quarter; thence continue South 89 degrees 51 minutes 19 seconds
East 732.07 feet along said North Line to the northwestern corner of a 12.76 acre tract as
recorded in an Affidavit by Bertha M. Irwin ("Irwin"), recorded as Instrument Number 9024929
in said Recorder's Office; thence South 00 degrees 04 minutes 08 seconds West 138.46 feet
along the \-vestern line of said "Irwin" tract and parallel with the East Line of said Southeast
Quarter to the western right-of-way line of a 10.164 acre tract of land granted to the City of
Carmel, Indiana, known as Parcel No.IE ("Parcel IE"), recorded as Instrument Nurnber
9709749368 in said Recorder's Office (the following two (2) courses are along the western right-
of-way line of said "Parcel IE"); (one) thence South 24 degrees 59 minutes 17 seconds West
1 044.61 feet to the point of curvature of a curve concave to the east, said point of curvature lying
North 65 degrees 00 minutes 43 seconds West 1994.86 feet from the radius point of said curve;
(two) thence southerly 1319.17 feet along said curve to a point lying South 77 degrees 05
minutes 58 seconds West 1994,86 feet from the radius point of said curve and lying North 89
degrees 42 minutes 50 seconds West 9.19 feet from the northeastern comer of said "Martin"
tract; thence North 89 degrees 42 minutes 50 seconds West 153.35 feet along the northern line of
said "Marti n" tract and parallel with the South Line of said Southeast Quarter to the PO~T OF
BEGINNING containing 23.945 acres, more or less.
EXHIBIT "A"
H:\KELL.'\JlM NTLetinurn P,op,fti,s'.Logaj Do,cripliondoo