HomeMy WebLinkAboutAvian Glen HOA Revised Covenants and Restrictions201600SS23 AMND DECL $69 .00
03/03/2016 10:04 :02A 27 PGS
Jennifer Hayden
HAMILTON County Recorder IN
Recorded as Presented
~-~1~1111!~11111~1111~11111~11111~11111~111/l~llllrulllllmiiiii~IIIII~IIII~I/III~IIIIILII _____ /
Cross References: 92-36482; 92-36483; 92-36485; 93-24083; 93-24084; 93-43916; 93-
43917;94-28545; 94-28546; 94-36275; 94-36276; 94-36277; 95-51403; 95-51404; 95-51405;
95-51406;9809841366; 199909962328
AMENDED AND RESTATED DECLARATIONS OF COVENANTS.
CONDITIONS AND RESTRICTIONS
OF
AVIAN GLEN
This Amended and Restated Declaration of Covenants , Conditions and Restrictions of Avian
Glen is made as of the date set forth below.
WITNESSETH:
WHEREAS , the Declarant, Avian Glen Associates, L.P., an Indiana limited partnersthip ,
established the Avian Glen subdivision pursuant to a certain "Declaration of Covenants ,
Conditions and Restrictions of Avian Glen ," which was recorded in the Office of the Recorder of
Hamilton County, Indiana on September 22, 1992 as Instrument No. 92-36482 (hereafter "Original
Declaration");
WHEREAS, the Original Declaration, together with the Plat, established the Initial Real
Estate and established the mechanism by which the developer would later add more Lots and
Common Areas, subject to the Original Declaration. The Original Declaration contained a legal
description in Exhibit "A" attached thereto. For historical purposes, this legal description, as well
as later legal descriptions referenced by the original developer as more Lots and Residence Units
were added, may be referred to from time to time, and therefore, for cross-reference purposes, one
should refer to them as they were filed with the Hamilton County Recorder . Those legal
descriptions, however, are not included in this Amended and Restated Declaration of Covenants,
Conditions and Restrictions of A vi an Glen. Except as to any legal description in the Original
Declaration that shall remain relevant, all other provisions of the Original Declaration are hereby
modified in their entirety, and superceded by this Amended and Restated Declaration.
WHEREAS, Plats filed with the Office of the Recorder of Hamilton County, Indiana
established two hundred twenty-one (221) Lots and Common Areas comprising the Avian Glen
subdivision; and
WHEREAS, at the same time the Plats were filed with the Hamilton County Recorder,
certain Plat Covenants and Restrictions were also recorded which subjected the Lots within the
various sections of Avian Glen to the terms and conditions of said Plat Covenants and Restrictions,
in addition to the terms and conditions of the Declaration; and
WHEREAS, the Plat Covenants and Restrictions for Avian Glen, Section 2 were filed with
the Office of the Recorder of Hamilton County, Indiana on September 22, 1992, as Instrument No.
92-36483 ; and
WHEREAS, the Plat Covenants and Restrictions for Avian Glen, Section 3 were filed
with the Office of the Recorder of Hamilton County, Indiana on September 22, 1992 , as
Instrument No. 92-36485; and
WHEREAS, the First Supplement to Declaration of Covenants, Conditions and
Restrictions of Avian Glen was filed with the Office of the Recorder of Hamilton County, Indiana
on May 20, 1993, as Instrument No. 93 -24083; and
WHEREAS , the Plat Covenants and Restrictions for Avian Glen, Section 4 were filed
with the Office ofthe Recorder ofHamilton County, Indiana on May 20, 1993 , as Instrument
No. 93-24084 ; and
WHEREAS, the Second Supplement to Declaration of Covenants, Conditions and
Restrictions of Avian Glen was filed with the Office of the Recorder of Hamilton County,
Indiana on September 10, 1993 , as Instrument No. 93-43916; and
WHEREAS , the Plat Covenants and Restrictions for Avian Glen, Section 5 were filed
with the Office ofthe Recorder of Hamilton County, Indiana on September 10 , 1993 , as
Instrument No.
93-43917 ; and
WHEREAS , the Third Supplement to Declaration of Covenants, Conditions and
Restrictions of Avian Glen was filed with the Office of the Recorder of Hamilton County,
Indiana on June 27, 1994 , as Instrument No. 94-28545 ; and
WHEREAS, the Plat Covenants and Restrictions for Avian Glen, Section 6 were filed
with the Office ofthe Recorder ofHamilton County, Indiana on June 27, 1994, as Instrument
No. 94-28546; and
WHEREAS , the Fourth Supplement to Declaration of Covenants, Conditions and
Restrictions of Avian Glen was filed with the Office ofthe Recorder ofHamilton County, Indiana
on August 19, 1994 , as Instrument No. 94-36275 ; and
2
WHEREAS, the Plat Covenants and Restrictions for Avian Glen, Section 1 were filed with
the Office ofthe Recorder of Hamilton County, Indiana on August 19, 1994, as Instrument No.
94-36276; and
WHEREAS, the Plat Covenants and Restrictions for Avian Glen, Section 7 were filed with
the Office of the Recorder of Hamilton County, Indiana on August 19, 1994, as Instrument No.
94-36277; and
WHEREAS, the Amendment to Plat Covenants and Restrictions Avian Glen, Section 3
was filed with the Office ofthe Recorder of Hamilton County, Indiana on September 11, 1995, as
Instrument No. 95-51403; and
WHEREAS, the Amendment to Plat Covenants and Restrictions Avian Glen, Section 4
was filed with the Office ofthe Recorder of Hamilton County, Indiana on September 11, 1995 , as
Instrument No. 95-51404; and
WHEREAS, the Amendment to Plat Covenants and Restrictions Avian Glen , Section 5
was filed with the Office of the Recorder of Hamilton County, Indiana on September 11, 1995, as
Instrument No. 95-51405; and
WHEREAS, the Amendment to Plat Covenants and Restrictions Avian Glen , Section 6
was filed with the Office of the Recorder of Hamilton County, Indiana on September 11, 1995, as
Instrument No. 95-51406; and
WHEREAS, the Plat Covenants and Restrictions of Avian Glen were amended by certain
"Amendments to Plat Covenants and Restrictions of Avian Glen," which were recorded in the
Office of the Recorder of Hamilton County, Indiana on July 29, 1998 as Instrument No.
9809841366;and
WHEREAS, the By-Laws of the Avian Glen Community Association, Inc. were amended
by a certain "Amendments to the By-Laws of Avian Glen Community Association, Inc.," which
was recorded in the Office of the Recorder of Hamilton County, Indiana on October 26, 1999 as
Instrument No. 199909962328; and
WHEREAS, Article XI ofthe Original Declaration provides that the same may be amended
at a meeting by a vote of not less than sixty-seven percent ( 67%) in the aggregate of the votes of
all Owners;
WHEREAS, Article XI, Section 11.1 (iv) of the Original Declaration provides that consent
of Mortgagees that have given prior notice of its mortgage interest to the Board of Directors shall
also be sought, and based on the records of the Association, no eligible mortgagee has requested
such notice and, thus , no mortgagee approval is required by law;
WHEREAS, the Owners holding more than the sixty-seven percent (67%) in the aggregate
of the votes of all Owners voted to approve this Amended and Restated Declaration of Covenants,
3
Conditions and Restrictions of Avian Glen at a duly -constituted meeting of the Owners on
November 15, 2010; and
WHEREAS , although this Amended and Restated Declaration of Covenants, Conditions
and Restrictions of Avian Glen was approved at a meeting ofthe Owners on November 15 ,2010 ,
it was not duly recorded;
WHEREAS, the ratification of four current Owners to the votes of approval for this
Amended and Restated Declaration by their predecessors in interest has been obtained and are
maintained in the official records of the Association; and
WHEREAS , the remainder of the Owners holding more than sixty-seven percent (67%) in
the aggregate of the votes of all Owners are titled Owners in A vi an Glen; and
WHEREAS, the Owners desire to amend certain provisions of the Original Declaration
and amendments thereto and to restate the same for the convenience of the Owners such that this
Amended and Restated Declaration of Covenants, Conditions and Restrictions of Avian Glen in
no way nullifies the Original Declaration or the effective date of the Original Declaration . All
provisions of the Original Declaration and any amendments thereto are hereby modified in their
entirety, and superseded by this Amended and Restated Declaration of Covenants, Conditions and
Restrictions of Avian Glen and all exhibits thereto.
RECITALS
1. Developer was the owner and developer of the real estate which is described in Exhibit
"A" attached hereto and made a part hereof (the "Initial Real Estate").
2. Developer subdivided the Initial Real Estate into residential Lots .
3. Developer subjected the Initial Real Estate to certain rights, privileges, covenants,
conditions, restrictions, easements, assessments , charges and liens for the purpose of preserving
and protecting the value and desirability of the Initial Real Estate for the benefit of each owner of
any part thereof.
4. Developer created an organization to which was delegated and assigned the powers of
maintaining and administering the common areas and certain other areas of the Real Estate and of
administering and enforcing the covenants and restrictions contained in this Declaration and the
subdivision plats of the Real Estate as recorded in the Office of the Recorder of Hamilton County,
Indiana, and of collecting and dispersing assessments and charges as herein provided.
5. Developer subjected additional real estate located within the tract adjacent to the Initial
Real Estate to the provisions of this Declaration (the Initial Real Estate, together with any such
4
additions, as and when this same becomes subject to the provisions of this Declaration as herein
provided, is hereinafter referred to as the "Real Estate").
6. Pursuant to the terms of the original Declaration the Association has taken control of the
real estate and hereby pursuant to Article XI amends and restates the Declaration as adopted by
the Association on the 15th day ofNovember 2010, and thereafter ratified.
NOW, THEREFORE, the Original Declaration, and amendments thereto, are hereby
amended and restated as follows:
ARTICLE I
DEFINITIONS
The following terms, when used in this Declaration with initial capital letters, shall have
the following respective meanings:
1.1 "Association" means the Avian Glen Community Association, Inc., an Indiana not-for-
profit corporation and its successors and assigns.
1.2 "Architectural Review Committee" means the architectural review committee established
pursuant to Article VI, paragraph 6.1, of this Declaration, as provided in such Article VI, paragraph
6 .1.
1.3 "Common Areas" means (i) all portions of the Real Estate shown on any Plat of a part of the
Real Estate as a "Common Area" or which are otherwise not located in Lots and are not dedicated
to the public and (ii) all facilities, structures, buildings , improvements and personal property owned
or leased by the Association from time to time. Common areas may be located within a public right-
of-way.
1.4 "Common Expenses" means (i) expenses of and in connection with the maintenance, repair
or replacement of the common areas and the performance of the responsibilities and duties of the
Association, including without limitation expenses for the improvement, maintenance or repair of
the improvements, lawn, foliage and landscaping not located on a lot (unless located on a Drainage,
5
Utility or Sewer Easement or unless located on a landscape easement located on a lot to the extent
the association deems it necessary to maintain such easement), (ii) expenses of and in connection
with the maintenance, repair or continuation of the drainage facilities located within and upon the
Drainage, Utility or Sewer Easements, (iii) all judgments, liens and valid claims against the
association, (iv) all expenses incurred to procure liability, hazard and any other insurance with
respect to the common areas and (v) all expenses incurred in the administration of the Association.
1.5 "Developer" means Avian Glen Associates, L.P., an Indiana limited partnership, and any
successors and assigns whom it designates in one or more written recorded instruments to have the
right of Developer hereunder. Developer no longer has any interest in the real estate.
1.6 "Development Period" means the period of time commencing with the date of recordation
of the original Declaration and ending on the date Developer or its affiliates no longer own any
Residence Unit or Lot within or upon the Real Estate, but in no event shall the Development Period
extend beyond the date ten (1 0) years after the date this Declaration is recorded. The Development
Period has expired.
1. 7 "Landscape Easements" means those areas of ground so designated on a Plat of any part of
the Real Estate.
1.8 "Lake Easements" means those areas of ground so designated on a Plat of any part of the
Real Estate.
1.9 "Lot" means any parcel of land shown and identified as a lot on a Plat or any part of the Real
Estate.
1.10 "Mortgagee" means the holder of a recorded first mortgage lien on any Lot or Residence Unit.
1.11 "Nonaffiliated Owner" means any Owner other than Developer or any entity affiliated with
Developer.
1.12 "Owner" means the record owner, whether one or more persons or entities, of fee-simple title
to any Lot, including contract sellers, but excluding those having such interest merely as security
6
for the performance of an obligation unless specifically indicated to the contrary.
1.13 "Plat" means a duly approved final plat of any part of the Real Estate as hereafter recorded
in the Office of the Recorder of Hamilton County, Indiana.
1.14 "Residence Unit" means any single family home in the subdivision designed for residential
occupancy.
1.15 "Utility, Drainage or Sewer Easements" means those areas of ground so designated on a Plat
of any part of the Real Estate.
ARTICLE II
APPLICABILITY
All Owners, their tenants, guests, invitees and mortgagee, and any other person using or
occupying a Lot or any other part of the Real Estate shall be subject to and shall observe and comply
with the covenants, conditions, restrictions, terms and provisions set forth in this Declaration and
any rules and regulations adopted by the Association as herein provided, as the same may be
amended from time to time.
The Owner of any Residence Unit (i) by acceptance of a deed conveying title thereto or
the execution of a contract for the purchase thereof from any builder or any subsequent Owner of
the Residence Unit, or (ii) by the act of occupancy of the Residence Unit, shall conclusively be
deemed to have accepted such deed, executed such contract or undertaken such occupancy subject
to the covenants, conditions, restrictions, terms and provisions of this Declaration. By acceptance
of a deed, execution of a contract or undertaking of such occupancy, each Owners covenants for
himself, his heirs, personal representatives, successors and assigns, with the other Owners from time
to time, to keep, observe, comply with and perform the covenants, conditions, restrictions, terms
and provisions of this Declaration.
7
ARTICLE III
PROPERTY RIGHTS
3.1 Owners' Easement of the Enjoyment of Common Areas. There is hereby created a non-
exclusive easement in favor of each Owner for the use and enjoyment of the Common Areas. Such
easement shall run with and be appurtenant to each Residence Unit, subject to the following
prOVISIOnS:
(i) the right of the Association to charge reasonable admission and other fees for the
use of the recreational facilities, if any, situated upon the Common Areas;
(ii) the right of the Association to fine any Owner or make a special assessment against
any Residence Unit or Lot in the event a person permitted to use the Common Areas by the
Owner of the Residence Unit violates any rules or regulations of the Association as long as
such rules and regulations are applied on a reasonable and nondiscriminatory basis;
(iii) the right of the Association to make reasonable regular assessments for use of the
Common Areas;
(iv) the right of the Association to dedicate or transfer all or any part ofthe Common
Areas or to grant easements to any public agency, authority or utility for such purposes and
subject to such conditions as may be set forth in the instrument of dedication or transfer,
provided that the open space shall permanently run with the subdivision and shall not be
developed or separated from the subdivision at a later date;
(v) the right of the Association to enforce collection of any fines or regular or special
assessments through the imposition of a lien pursuant to paragraph 7. 7;
(vi) the terms and provisions of this Declaration;
(vii) the easements reserved elsewhere in this Declaration and in any Plat of any part of
the Real Estate; and
(viii) the right of the Association to limit the use of Common Areas in a reasonable
8
nondiscriminatory manner for the common good.
3.2 Permissive Use. Any Owner may permit his or her family members, guest, tenants or
contract purchasers who reside in the Residence Unit to use his or her right of use and enjoyment
of the Common Areas. Such permissive use shall be subject to the by-laws of the Association and
any reasonable nondiscriminatory rules and regulations promulgated by the Association from time
to time.
3.3 Conveyance of Common Areas. Developer has conveyed all of its right, title and interest
in and to any of the Common Areas to the Association by quit -claim deed, and such Common Areas
so conveyed are the property of the Association.
ARTICLE IV
USE RESTRICTIONS
4.1 Lakes. There shall be no swimming, skating, or boating (except for maintenance by the
Association) in or on any lake, pond, creek or stream on the Real Estate. The Association may
promulgate rules and regulations with respect to the permitted uses, if any, of the lakes or other
bodies of water on the Real Estate.
4.2 Sale or Rental of the Units. The sales of any Residence Unit shall be to owner/occupants or
to a mortgagee or its successor who acquires the residential unit through foreclosure or sale in lieu
thereof. Only an owner/occupant may lease his unit, and such rental shall be pursuant to a written
lease with a minimum tenn of one year and such lease shall expressly provide that the lessee shall
be subject to all rules and regulations of the Association. A copy of any lease shall be submitted to
the office of the Association prior to occupancy by the tenant.
4.3 Use of Common Areas. The Common Areas shall be used only for recreational
purposes.
4.4 Lot Access. All lots shall be accessed from the interior streets of the subdivision. No direct
access is permitted to any Lot via Hazel Dell Parkway or Cherry Tree Road.
9
4.5 Other Use Restrictions Contained in Plat Covenants and Restrictions. The Plat Covenants and
Restrictions relating to the Real Estate contain additional restrictions on the use of lots in the
subdivision, including but not limited to prohibitions against commercial use, detached accessory
buildings and nuisances; restrictions relating to the use of Landscape Easements, Lake Easements,
and Utility, Drainage and Sewer Easements; and restrictions relating to temporary structures, vehicle
parking, signs, mailboxes, garbage and refuse disposal, storage tanks, water supply and sewage
systems, ditches and swales, driveways, antenna and satellite dishes, awnings, fencing, swimming
pools, solar panels and outside lighting. Such prohibitions and restrictions contained in the Plat
Covenants and Restrictions are hereby incorporated by reference as though fully set forth herein.
ARTICLEV
ASSOCIATION
5.1 Membership. Each Owner, automatically upon becoming an Owner, shall be and become a
member of the Association and shall remain a member of the Association so long as he or she
owns the Lot. Each Lot shall be entitled to one vote.
5.2 Governance of Association. Governance of the Association shall be by the Board of
Directors pursuant to the By-Laws.
5.3 Multiple or Entity Owners. Where more than one person or entity constitutes the Owner of
a Lot, all such persons or entity shall be members of the Association, but the single vote in respect
of each Lot shall be exercised and the persons or entities holding an interest in such Lot determine
among themselves. In no event shall more than one person exercise a Lot's vote under paragraph
5.2. No Lot's vote shall be split.
5.4 Board of Directors. The members of the Association shall elect a Board ofDirectors ofthe
Association as prescribed by the Association's Articles of Incorporation and By-Laws. The Board
of Directors of the Association shall manage the affairs of the Association.
5.5 Professional Management. No contract or agreement for professional management of the
10
Association, nor any contract between Developer and the Association, shall be for a term in excess
of three (3) years. Any such agreement or contact shall provide for termination by either party with
or without cause, without any termination penalty, on written notice of ninety (90) days or less.
5.6 Responsibilities of the Association. The responsibilities of the Association include, but
shall not be limited to:
(i) Maintenance of the Common Areas including any and all improvements thereon in
good repair as the Association deems necessary or appropriate.
(ii) Installation and replacement of any and all improvements, signs, lawn, foliage and
landscaping in and upon the Common Areas or Lake Easements or Landscape Easements as
the Association deems necessary and appropriate.
(iii) Maintenance, repair and replacement of any private street signs.
(iv) Replacement of the drainage system in and upon the Common Areas as the
Association deems necessary and appropriate and the maintenance of any drainage system
installed in or upon the Common Areas by Developer or the Association. Nothing herein shall
relieve or replace the obligation of the Owner, including any builder, of a Lot subject to a
Drainage Easement to keep the portion of the drainage system and Drainage Easement on
his Lot free from obstructions so that the storm water drainage will be unimpeded.
(v) Maintenance of lake water levels so as not to create stagnant or polluted waters
affecting the health and welfare of the community through recirculation of accumulated
water or chemical treatment.
(vi) Procuring and maintaining for the benefit of the Association , its officers and Board
of Directors and the Owners, the insurance coverage required under this Declaration and
such other insurance as the Board of Directors deems necessary or advisable .
(vii) Payment of taxes, if any, assessed against and payable with respect to the Common
Areas.
11
(viii) Assessment and collection from Owners of the Common Expenses.
(ix) Performing or contracting for such service as management, snow removal,
Common Area maintenance, security control, trash removal or other services as the
Association deems necessary or advisable.
(x) Enforcing the rules and regulations of the Association and the requirements ofthis
Declaration and any applicable zoning covenants.
5. 7 Powers of the Association. The Association may adopt, amend , or rescind reasonable rules
and regulations (not inconsistent with the provisions of this Declaration) governing the use and
enjoyment of the Common Areas and the management and administration of the Association, as
the Association deems necessary or advisable. The rules and regulations promulgated by the
Association may provide for reasonable interest and late charges on past due installments of an y
regular or special assessments or other charges against any Residence Unit or Lot. The Association
shall furnish or make copies available of its rules and regulations to the Owners prior to the time
when the rules and regulations become effective.
5.8 Compensation. No director or officer of the Association shall receive compensation for his
or her services as such director or officer except to the extent expressly authorized by a majority
vote of the Owners present at a duly constituted meeting of the Association members.
5.9 Non-Liability of Directors and Officers. The directors and officers ofthe Association 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 or officers of the Association, except for their own
individual willful misconduct or gross negligence. It is intended that the directors and officers of
the Association shall have no personal liability with respect to any contract made by them on behalf
of the Association except in their capacity as Owners.
5.10 Indemnity of Directors and Officers . The Association shall indemnify, hold harmless and
defend any person, his or her heirs , assigns and legal representatives (collectively , the "Indemnitee")
12
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, against all costs and expenses , including
attorney fees , actually and reasonably incurred by the Indemnitee in connection 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, unless 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 shall be considere d 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 or officer relied on the books 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 or firm employed or retained 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 willful
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 any Indemnitee
in defending any action, suit or proceeding may be paid b y the Association in advance of the final
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 paragraph 5.10.
5.11 Bond. The Board of Directors of the Association may provide surety bonds and may require
the managing agent of the Association (if any), the treasurer of the Association and any such other
officers as the Board of Directors deems necessary, to provide surety bonds , indemnifying the
Association against larceny, theft , embezzlement, forgery , misappropriation, wrongful abstraction,
willful misapplication and other acts of theft, fraud or dishonesty in such sums and with such sureties
as may be approved by the Board of Directors , and any such bond may specifically include
protection for any insurance proceeds received for any reason by the Board of Directors. The
expense of any such bonds shall be a Common Expense.
13
ARTICLE VI
ARCHITECTURAL REVIEW COMMITTEE
6.1 Creation. There shall be , and hereby is , created and established an Architectural Review
Committee to perform the functions provided for herein. The Architectural Review Committee shall
be a standing committee of the Association, consisting of three (3) or more persons appointed, from
time to time , by the Board of Directors of the Association. The persons appointed by the Board of
Directors to the Architectural Review Committee shall consist of Owners of Lots. The Board of
Directors may at any time remove any member of the Architectural Review Committee at any time
upon a majority vote of the members of the Board of Directors.
6.2 Purposes and Powers of Architectural Review Committee. The Architectural Review
Committee shall review and approve the design , appearance and location of all residences , buildings,
structures or any other improvements placed by any person, including any builder, on any Lot within
the community, and the installation and removal of any trees, bushes , shrubbery and other
landscaping on any Lot within the community, in such a manner as to preserve and enhance the value
and desirability of the Real Estate and to preserve the harmonious relationship among the structures
and the natural vegetation and topography.
(i) In General. No residence , building, structure, walkway, fence , deck , pool, tennis
court, wall, patio or other improvement of any type or kind shall be erected, constructed,
placed or altered on any Lot and no change shall be made in the exterior color of any
Residence Unit or accessory building located on any Lot without the prior written approval
of the Architectural Review Committee. Such approval shall be obtained only after written
application has been made to the Architectural Review Committee by the Owner of the Lot
requesting authorization from the Architectural Review Committee. Such written
applications shall be in the manner and form prescribed from time to time by the
Architectural Review Committee and, in the case of construction or placement of any
improvement, shall be accompanied by two (2) complete sets of plans and specifications
for any such proposed construction or improvement. Such plans shall include plot plans
showing the location of all the improvement proposed to be constructed or placed upon the
14
Lot, each properly and clearly designated. Such plans and specifications shall set forth the
color and composition of all exterior materials proposed to be used and any proposed
landscaping, together with any other material or information which the Architectural
Review Committee may reasonably require. Unless otherwise specified by the
Architectural Review Committee, plot plans shall be prepared by either a registered land
surveyor, engineer or architect. Plot plans submitted for the Improvement Location Permit
shall bear the signature of the Architectural Review Committee Chair acknowledging the
approval thereof.
(ii) Power of Disapproval. The Architectural Review Committee may refuse to approve
any application made to it as required under paragraph 6.2 (i) above (a "Requested Change")
when:
(a) The plans, specifications, drawings or other materials submitted are
inadequate or incomplete, or show the Requested Change to be in violation of any
restrictions in this Declaration or in the Plat of any part of the Real Estate;
(b) The design or color scheme of the requested Change is not in harmony with the
general surroundings of the Lot or with the adjacent buildings or structures; or
(c) The Requested Change, or any part thereof, in the opinion of the Architectural
Review Committee would not preserve or enhance the value and desirability of the
Real Estate or would otherwise be contrary to the interests , welfare or right of any
other Owner.
(iii) Rules and Regulations. The Architectural Review Committee, from time to time,
may promulgate, amend or modify additional rules and regulations as it may deem necessary
or desirable to guide Owners as to the requirements of the Architectural Review Committee
for the submission and approval of items to it. Such rules and regulations may set forth
additional requirements to those set forth in this Declaration or a Plat of any part of the Real
Estate, as long as the same are not inconsistent with this Declaration or such Plat(s).
15
6.3 · Duties of Architectural Review Committee. If the Architectural Review Committee does not
approve a Requested Change within thirty (30) days after all required information on the Requested
Change shall have been submitted to it, then such Requested Change shall be deemed approved. One
copy of submitted material shall be retained by the Architectural Review Committee for its
permanent files.
6.4 Liability of the Architectural Review Committee. Neither the Architectural Review
Committee, the Association nor any agent or member of any of the foregoing, shall be responsible
in any way for any defects in any plans, specifications or other materials submitted to it, nor for
any defects in any work done according thereto or for any decision made by it unless made in bad
faith or by willful misconduct.
6.5 Inspection. The Architectural Review Committee or its representative may, but shall not
be required to, inspect work being performed to assure compliance with this Declaration and the
materials submitted to it pursuant to this Article VI and may require any work not consistent with the
approved Requested Change, or not approved, to be stopped and removed.
ARTICLE VII
ASSESSMENTS
7.1 Purpose of Assessments. The purpose of Regular and Special Assessments is to provide
funds to maintain and improve the Common Areas and related facilities for the benefit of the
Owners, and the same shall be levied for the following purposes: (i) to promote the health, safety
and welfare of the residents occupying the Real Estate, (ii) for the improvement, maintenance and
repair of the Common Areas, the improvement, lawn foliage and landscaping within and upon the
Common Areas, Landscape Easements, Landscape Preservation Easements, Drainage, Utility or
Sewer Easements or Lake Easements and the drainage system, (iii) for the performance of the
responsibilities and duties and satisfaction of the obligations of the Association and (iv) for such
other purposes as are reasonably necessary or specifically provided herein. A portion of the Regular
Assessment may be set aside or otherwise allocated in a reserve fund for the purpose of providing
repair and replacement of any capital improvements which the Association is required to maintain.
The Regular and Special Assessments levied by the Association shall be uniform for all Lots and
16
Residence Units within the subdivision .
7.2 Regular Assessment. The Board of Directors of the Association shall have the right, power
and authority, without any vote of the members of the Association, to fix from time to time the
Regular Assessment against each Residence Unit at any amount not in excess of the Maximum
Regular Assessment as follows:
(i) Until December 31 , 2010, the Maximum Regular Assessment on any Residence
Unit for any calendar year shall not exceed Four Hundred Eighty Dollars ($480.00).
(ii) The Maximum Regular Assessment on any Residence Unit for any calendar year
may be increased by not more than Sixty Dollars ($60.00) per year above the Regular
Assessment for the previous calendar year without a vote of the members of the Association
as provided in the following subparagraph (iii).
(iii) The Board of Directors of the Association may fix the Regular Assessment at an
amount in excess of the maximum amount specified in subparagraph (ii) above only with
the approval of a majority of those members of the Association who cast votes in person or
by proxy at a meeting of the members if the Association duly called for such purpose.
(iv) Each Residence Unit shall be assessed an equal amount for any Regular
Assessment, excepting any proration for ownership during only a portion of the
assessment period.
7.3 Special Assessments. In addition to Regular Assessments, the Board of Directors of the
Association may make Special Assessments against each Residence Unit, for the purpose of
defraying , in whole or in part, the cost of constructing, reconstructing , repairing or replacing any
capital improvement which the Association is required to maintain or the cost of special
maintenance and repairs or to recover any deficits (whether from operations or any other loss) which
the Association may from time to time incur, but only with the assent of a majority of the members
of the Association who cast votes in person or by proxy at a duly constituted meeting of the
members of the Association called for such purpose.
17
7.4 Limitations on Capital Expenditures . The Board of Directors of the Association shall
determine all expenditures for the maintenance, repair , or replacement of the Common Areas (as
defined in Section 1.3 herein). If the Board proposes a new capital expenditure that is not for the
maintenance , repair, or replacement of the existing Common Areas and that exceeds Twenty
Thousand Dollars ($20,000.00) it shall obtain the assent of a majority of the members of the
Association who cast votes in person or by proxy at a duly constituted meeting of the members of
the Association. The dollar limitation on such expenditures shall be increased annually by the rate
of inflation as determined by the Consumer Price Index commencing January 1, 2012.
7.5 Date of Commencement of Regular or Special Assessments Due Dates . The Regular
Assessment or Special Assessment, if any, shall commence as to each Residence Unit on the first
day of the first calendar month following the first conveyance of the related Lot to an Owner.
The Board of Directors of the Association shall fix the amount of the Regular Assessment at least
thirty (30) days in advance of each annual assessment period. Written notice of the Regular
Assessment, any Special Assessments and such other assessment notices as the Board of Directors
shall deem appropriate shall be sent to each Owner subject thereto. The due dates for all
assessments shall be established by the Board of Directors . The Board of Directors may provide
for reasonable interest and late charges on past due installments of assessments.
7.6 Failure of Owner to Pay Assessments.
(i) No Owner may exempt himself from paying Regular Assessments and Special
Assessments due to such Owner's non-use of the Common Areas or abandonment of the
Residence Unit or Lot belonging to such Owner. If any Owner shall fail, refuse or neglect
to make any payment of any assessment (or periodic installment of an assessment, if
applicable) when due, the lien for such assessment (as described in paragraph 7.7 below)
may be foreclosed by the Board of Directors of the Association for and on behalf of the
Association as a mortgage on real property or as otherwise provided by law. Upon the failure
of an Owner to make timely payments of any assessment when due , the Board of Directors
of the Association may in its discretion accelerate the entire balance of any unpaid
assessments and declare the same immediately due and payable, notwithstanding any other
18
provisions hereof to the contrary. In any action to foreclose the lien for any amount, the
Owner and any occupant of the Residence Unit shall be jointly and severally liable for the
payment to the Association of reasonable rental for such Residence Unit, and the Board of
Directors shall be entitled to the appointment of a receiver for the purpose or preserving the
Residence Unit or Lot, and to collect the rentals and other profits therefrom for the benefit of
the Association to be applied to the unpaid assessment. The Board of Directors of the
Association, at its option, may in the alternative bring suit to recover a money judgment for
any unpaid assessment without foreclosing or waiving the lien securing the same. In any
action to recover an assessment, whether by foreclosure or otherwise, the Board of
Directors of the Association, for and on behalf of the Association, shall be entitled to
recover from the Owner of the respective Residence Unit or Lot, costs and expenses of
such action incurred (including but not limited to attorneys reasonable fees) and interest from
the date such assessments were due until paid. Pursuant to Article VII, Section 1 (b) of the
By-Laws of the Association, a member shall be suspended from voting if the member is
delinquent in payment of any assessment levied by the Association for more than sixty ( 60)
days.
(ii) Notwithstanding anything contained in this paragraph 7.6 or elsewhere in this
Declaration, any sale or transfer of Residence Unit or 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
become due prior to such sale, transfer or conveyance; provided, however, the
extinguishment of such lien shall not relieve the prior Owner from personal liability
therefore. No such sale, transfer or conveyance shall relieve the Residence Unit, or the
purchaser thereof, at such a 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 therefor.
7. 7 Creation of Lien and Personal Obligation. Each Owner of a Residence Unit or Lot by
acceptance for itself and related entities of a deed therefore, whether or not it shall be so expressed
in such deed, is deemed to covenant and agree to pay to the Association for his obligation for (i)
19
regular assessments for Common Expenses ("Regular Assessments") and (ii) special assessments
for capital improvements and operating deficits and for special maintenance and repairs (''Special
Assessments"). Such assessments, together with interest, costs of collection and attorneys reasonable
fees, shall be a continuing lien upon the Residence Unit or lot against which such assessment is
made prior to all other liens except only (i) tax liens on any Residence Unit or Lot in favor of any
unit of government or special taxing district and (ii) the lien of any first mortgage of record. Each
such assessment, together with interest, costs of collection and reasonable attorney's fees, shall also
be the personal obligation of the Owner of the Residence Unit at the time such assessment became
due and payable. Where the Owner constitutes more than one person, the liability of such persons
shall be joint and several. The personal obligation for delinquent assessments (as distinguished from
the lien upon the Residence Unit) shall not pass to such Owner's successors in title unless expressly
assumed by them. The Association, upon request of a proposed Mortgagee or proposed purchaser
having a contractual right to purchase a Residential Unit, shall furnish to such Mortgagee or purchaser
a statement setting forth the amount of any unpaid Regular or Special Assessments or other charges
against the Residence Unit or Lot. Such statement shall be binding upon the Association as of the
date of such statement.
7.8 Expense Incurred to Clear Drainage. Utility or Sewer Easements Deemed a Special
Assessment. As provided in the Plat covenants relating to the Real Estate, the Owner of any Lot
subject to a Drainage, Utility or Sewer Easements, including any builder, shall be required to keep
the portion of said Drainage, Utility or Sewer Easements on his Lot fee from obstructions so that the
storm water drainage will not be impeded and will not be changed or altered without a permit from
the applicable governmental authority. Also, no structures or improvements, including without
limitation decks, patios, pools, fences , walkways or landscaping of any kind, shall be erected or
maintained upon said easements, and any such structure or improvement so erected shall, at
Association's written request, be removed by the Owner at the Owner's sole cost and expense. If,
within thirty (30) days after the date of Association's written request, such Owner shall not have
commenced and diligently and continuously effected the removal of any obstruction of storm water
drainage or any prohibited structure or improvement, the Board may, on behalf of the Association,
enter upon the lot and cause such obstruction, structure or improvement to be removed so that the
Drainage Utility and Sewer Easement is returned to its original designed condition. In such event,
the Association shall be entitled to recover the full cost of such work from the offending Owner
20
and such amount shall be deemed a Special Assessment against the Lot owned by such Owner
which, if unpaid, shall constitute a lien against such Lot and may be collected by the Association
pursuant to this Article 7 in the same manner and any other Regular Assessment or Special
Assessment may be collected.
7.9 New Homeowners Initiation Fee to Establish Reserve Account Funding at Time of Resale .
On the date a Lot is conveyed by any owner to a subsequent Owner, there shall be due and payable
to the Association by such subsequent Owner of such Lot the sum equal to one year total association
fees which shall be deposited in the Reserve Account for Capital Repair, Replacement and
Additions. The foregoing shall not apply to any sale or transfer of a Lot to a mortgagee pursuant to a
I
foreclosure on 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.
ARTICLE VIII
INSURANCE
8.1 Casualty Insurance. The Association shall purchase and maintain fire and extended coverage
of insurance in an amount equal to the full insurable replacement cost of any improvements owned
by the Association . If the Association can obtain such coverage for a reasonable amount, it shall
also obtain "all risk coverage". The Association shall also insure any other property, whether real or
personal , owned by the Association, against loss or damage by fire and such other hazards as the
Association may deem desirable. Such insurance policy shall name the Association as the insured.
The insurance policy or policies shall , if practicable, contain provisions that the insurer (i) waives
its rights to subrogation as to any claim against the Association, its Board of Directors , officers ,
agents and employees, any committee of the Association or the Board of Directors and all Owners
and their respective agents and guests and (ii) waives any defense to payment based on invalidity
arising from the acts of the insured. Insurance proceeds shall be used by the Association for the repair
or replacement of the property for which the insurance was carried.
8.2 Liability Insurance. The Association shall also purchase and maintain a master
comprehensive public liability insurance policy in such amount or amounts as the Board of Directors
shall deem appropriate from time to time , but in any event with a minimum combined limit of One
21
Million Dollars ($1,000,000) per occurrence. Such comprehensive public liability insurance shall
cover all of the Common Areas and shall inure to the benefit of the Association, its Board of
Directors, officers, agents and employees, any committee of the Association or of the Board of
Directors, all persons acting who may come to act as agent or employees of any of the foregoing
with respect to the Real Estate and the Developer.
8.3 Other Insurance. The Association shall also purchase and maintain any other insurance
required by law to be maintained, including but not limited to workers' compensation and
occupational disease insurance, and such other insurance as the Board of Directors shall from time
to time deem necessary, advisable or appropriate, including but not limited to officers' and directors'
liability insurance.
8.4 Miscellaneous. The premiums for the insurance described above shall be paid by the
Association as part of the Common Expenses.
ARTICLE IX
MAINTENANCE
9.1 Maintenance of Lots and Improvements. Except to the extent such maintenance shall be the
responsibility of the Association under any of the foregoing provisions of this Declaration, it shall
be the duty of the Owner of each Lot, including any builder during the building process, to keep
the grass on the Lot properly cut and keep the Lot, including Drainage, Utility or Sewer Easements
located on the Lot, free of weeds, trash or construction debris and otherwise neat and attractive in
appearance, including, without limitation, the proper maintenance of the exterior of any structures on
such Lot. If the Owner of any Lot fails to do so in a manner reasonably satisfactory to the
Association, the Association, after approval by a majority vote of the Board of Directors, shall have
the right (but not the obligation through its agents, employees and contractors, to enter upon said Lot
and to clean, repair, maintain or restore the Lot, as the case may be, and the exterior of the
improvements erected thereon. The cost of any such work shall be and constitute a Special
Assessment against such Lot and the owner thereof, whether or not a builder, and may be collected
and enforced in the manner provided in this Declaration for the collection and enforcement of
assessments in general. Neither the Association nor any of its agents, employees or contractors shall
22
be liable for any damage which may result from any maintenance work performed hereunder.
9.2 Damage to Common Areas. In the event of damage to or destruction of any part of the
Common Areas or any improvements which the Association is required to maintain hereunder, the
Association shall repair or replace the same from the insurance to the extent of availability of such
insurance proceeds. If such insurance proceeds are insufficient to cover the costs of repair or
replacement of the property damaged or destroyed, the Association may make a Special
Assessment against all Owners to cover the additional cost of repair or replacement not covered by
the insurance proceeds. Notwithstanding any obligation or duty of the Association hereunder to repair
or maintain the Common Areas if, due to the willful, intentional or negligent acts or omissions of
any Owner, (including any builder) or of a member of his family or of a guest, tenant, invitee or
other occupant or visitor of such Owner, damage shall be caused to the Common Areas, or if
maintenance, repairs or replacements shall be required thereby which would otherwise be a Common
Expense, then the Association shall cause such repairs or replacements to be made and such Owner
shall pay for such damage and such maintenance, repairs and replacements unless such loss is
covered by the Association's insurance with such policy having a waiver of subrogation clause. If
not paid by such Owner upon demand by the Association, the cost of repairing such damage shall
be added to and constitute a Special Assessment against such Owner, whether or not a builder,
and its Residence Unit or Lot, to be collected and enforced in the manner provided in this
Declaration for the collection and enforcement of assessments in general.
ARTICLE X
MORTGAGES
10.1 Notice to Mortgagees. The Association, upon request, shall provide to any Mortgagee a
written certificate or notice specifying unpaid assessments and other defaults, if any, of the Owner
of a Residence Unit or Lot in the performance of the Owner's obligations under this Declaration or
any other applicable documents.
10.2 Notice to Association. Any Mortgagee who holds a first mortgage lien on a Lot or
Residence Unit may notify the Secretary of the Association of the existence of such mortgage and
provide the name and address of the Mortgagee. A record of the Mortgagee and name and address
23
shall be maintained by the Secretary of the Association and any notice required to be given to the
Mortgagee pursuant to the terms of this Declaration, the By-Laws of the Association or otherwise
shall be deemed effectively given if mailed to the Mortgagee at the address shown in such record
in the time provided. Unless notification of a Mortgage and the name and address of the Mortgagee
are furnished to the Secretary, as herein provided, no notice to any Mortgagee as may be otherwise
required by this Declaration, the By-Laws of the Association or otherwise shall be required, and no
Mortgagee shall be entitled to vote on any matter to which it otherwise may be entitled by virtue of
this Declaration, the By-Laws of the Association, a proxy granted to such Mortgagee in connection
with the mortgage or otherwise.
10.3 Mortgagees' Rights Upon Default by Association. If the Association fails (i) to pay taxes
or the charges that are in default and that have or may become charges against the Common Areas,
or (ii) to pay on a timely basis any premiums on hazard insurance policies on Common Areas or
to secure hazard insurance coverage for the Common Areas upon lapse of a policy, then the
Mortgagee on any Lot or Residence Unit may make the payment on behalf of the Association.
ARTICLE XI
AMENDMENTS
11.1 By the Association. Except as otherwise provided in this Declaration, amendments to
this Declaration shall be proposed and adopted in the following manner:
(i) Notice. Notice of the subject matter of any proposed amendment shall be included
in the notice of the meeting of the members of the Association at which the proposed
amendment is to be considered.
(ii) Resolution. A resolution to adopt a proposed amendment may be proposed by the
Board of Directors or Owners having in the aggregate at least a majority of votes of all
Owners.
(iii) Meeting. The resolution concerning a proposed amendment must be adopted by the
vote required by paragraph 11.1 (iv) at a meeting of the members of the Association duly
24
called and held in accordance with this provisions of the By-Laws.
(iv) Adoption. Any proposed amendment to this Declaration must be approved by a
vote of not less than sixty-seven percent ( 67%) in the aggregate of all Owners . In the event
any Residence Unit is subject to a first mortgage, the Mortgagee shall be notified of the
meeting and the proposed amendment in the same manner as Owner if the Mortgagee has
given prior notice to its mortgage interest to the Board of Directors of the Association in
accordance with the provisions of the foregoing paragraph 1 0.2.
11.2 Recording. Each amendment to this Declaration shall be executed by the President or Vice
President and Secretary of the Association. All amendments shall be recorded in the Office of the
Recorder ofHamilton County, Indiana, and no amendment shall become effective until so recorded.
ARTICLE XII
MISCELLANEOUS
12.1 Right of Enforcement. Violation or threatened violation of any of the covenants, conditions
or restrictions enumerated in this Declaration or in a Plat of any part of the Real Estate now or
hereafter recorded in the Office of the Recorder of Hamilton County, Indiana, or zoning covenants
shall be grounds for an action by the Association, any Owner and all persons or entities claiming
under them against the person or entity violating or threatening to violate any such covenants,
conditions or restrictions. Available relief in any such action shall include recovery of damages or
other sums due for such violation, injunctive relief against any such violation or threatened violation,
declaratory relief and the recovery of costs and attorneys' fees reasonably incurred by any party
successfully enforcing such covenants and restrictions; provided, however, that neither any Owner
nor the Association shall be liable for damages of any kind to any person for failing to enforce any
such covenants, conditions or restrictions .
12.2 Delay or Failure to Enforce. No delay or failure on the part of any aggrieved party to invoke
any available remedy with respect to any violation or threatened violation of any covenants,
conditions or restrictions enumerated in this Declaration or in a Plat of any part of the Real Estate
shall be held to be a waiver by that party (or an estoppel of that party to assert) of any right available
to it upon the occurrence, reoccurrence or continuance of such violation or violations.
25
12.3 Duration. These covenants, conditions or restrictions and all other provisions of this
Declaration (as the same may be amended from time to time as herein provided) shall run with the
land and shall be binding on all persons and entities from time to time having any right, title or interest
in the Real Estate or any part thereof, and on all persons claiming under them shall continue
automatically until terminated or modified by vote in the majority of all Owners at any time thereafter;
provided, however, that no termination of this Declaration shall affect any easement hereby created
and reserved unless all persons entitled to the beneficial use of such easement shall consent thereto.
12.4 Severability. Invalidation of any of the covenants, restrictions or provisions contained in
this Declaration by judgment or court order shall not in any way affect any of the other provisions
hereof, which shall remain in full force and effect.
12.5 Titles. The underlined title preceding the various paragraphs and subparagraphs of this
Declaration are for the convenience of reference only, and none of them shall be used as an aid to the
construction of any provisions of this Declaration. Wherever and whenever applicable, the singular
form of any word shall be taken to mean or apply to the plural, and the masculine form shall be taken
to mean or apply to the feminine or to the neuter.
12.6 Applicable Law. This Declaration shall be governed by the laws of the State oflndiana.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
26
IN WITNESS WHEREOF, we, the undersigned, do hereby execute this Amended and
Restated Declaration of Covenants, Conditions and Restrictions of Avian Glen and certify that at
least sixty-seven percent ( 67%) of the total number of Owners voted to approve this Amended
and Restated Declaration of Covenants, C<)!lditions and Restrictions of Avian Glen, and certify
the truth of the facts herein stated this ?> "fV\ day of Mv(Mbtr , 2015.
STATE OF INDIANA
COUNTY OF I.JN..t f L-ro,J
)
)
)
Before me a Notary Public in and for said County and State, personally appeared David Morfas
and Jared Hamilton, the President and Secretary, respectively, of Avian Glen Community
Association, Inc. who acknowledged execution of the foregoing Amended and Restated
Declaration of Covenants, Conditions and Restrictions of Avian Glen and on behalf of said
corporation and the Owners, and who, having been duly sworn, stated that the repr.~tibni·~.,
contained herein are true. · ;~01~~
/\¢ <Q ~~·. ••••••• •. "?c
Witness my hand and Notarial Seal this~.=n.day of ~ , 201?4Q.~·.·~::. f ..._J f ····· ... «!.~
My Commission Expires: '~\·f.'/' r~' )~ ~ r-~·· ~, .. ~! J:~~de!h De6€A L WA&NeJc01-~;;_~
Notary Public Printed Name -·<~.:.~ .......... · >
Residence County:
Signature
"I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social
Security Number in this document, unless required by law." Courtney S. Figg, Esq.
This instrument prepared by, and should be returned to, Courtney S. Figg, EADS MURRAY &
PUGH, P.C., Attorneys at Law, 9515 E. 59th St., Suite B, Indianapolis, IN 46216