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DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
FOR
THE TOWNHOMES AT PROVIDENCE AT OLD MERIDIAN
Hamilton County, Indiana
DEED CROSS-REFERENCE: 2003-
MORTGAGE CROSS-REFERENCE: 2000-33314 (Mortgage); 2001-72541 (Mortgage
Amendment)
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS
...........................2
Section 1.1. "Additional Property" ........................................................ ...............................2
Section 1.2. "Association" ..................................................................... ...............................2
Section 1.3. "Articles" ........................................................................... ...............................2
Section 1.4. "Authority Transfer Date" ................................................. ...............................2
Section 1.5. "Board of Directors" .......................................................... ...............................2
Section 1.6. "Bylaws" ............................................................................ ...............................2
Section 1.7. "City" ................................................................................. ...............................2
Section 1.8. "Common Area" or "Common Areas" ............................... ...............................2
Section 1.9. "Common Expenses" ......................................................... ...............................2
Section 1.10. "County" ............................................................................ ...............................2
Section 1.11. "Declarant" ......................................................................... ...............................3
Section 1.12. "Declaration" ..................................................................... ...............................3
Section 1.13. "Development Period" ....................................................... ...............................3
Section 1.14. "Dwelling Unit" ................................................................. ...............................3
Section 1.15. "Federal Agencies" ............................................................ ...............................3
Section 1.16. "Local Governing Authority" ............................................ ...............................3
Section 1.17. "Lot" .................................................................................. ...............................3
Section 1.18. "Maintenance Costs" .......................................................... ...............................3
Section 1.19. "Member" ........................................................................... ...............................3
Section 1.20. "Mortgagee" ....................................................................... ...............................3
Section 1.21. "Owner" ............................................................................. ...............................4
Section 1.22. "Permitted Signs" ............................................................... ...............................4
Section 1.23. "Person" ............................................................................. ...............................4
Section 1.24. "Property" .......................................................................... ...............................4
Section 1.25. "Recorder's Office" ............................................................ ...............................4
Section 1.26. "Regular Assessment" ........................................................ ...............................4
Section 1.27. "Restrictions" ..................................................................... ...............................4
Section 1.28. "Special Assessments" ....................................................... ...............................4
Section 1.29. "Structure" ......................................................................... ...............................4
Section 1.30. "Supplemental Declaration" ............................................. ...............................4
ARTICLE II MEMBERSHIP ................................................................. ...............................5
ARTICLE III VOTING RIGHTS ............................................................. ...............................5
Section3.1. Classes ............................................................................... ...............................5
Section 3.2. Expansion .......................................................................... ...............................6
Section 3.3. Multiple Ownership Interests ............................................ ...............................6
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ARTICLE IV DECLARATION OF RESTRICTIONS AND STATEMENT OF
PROPERTY RIGHTS ............................................................................ ..........6
Section 4.1. Declaration ............................................................................................. ..........6
Section 4.2. Property Rights ....................................................................................... ..........7
Section 4.3. Common Area ......................................................................................... ..........9
ARTICLE V ASSESSMENTS ..................................................................................... ........10
Section 5.1. Creation of the Lien and Personal Obligation for Assessments ............. ........10
Section 5.2. Purpose of Assessment ........................................................................... ........10
Section 5.3. Annual Accounting ................................................................................. ........10
Section 5.4. Proposed Annual Budget ........................................................................ ........10
Section 5.5. Establishment of Regular Assessment .................................................... ........1 l
Section 5.6. Regular Assessments .............................................................................. ........11
Section 5.7. Special Assessments ............................................................................... ........12
Section 5.8. Quorum for any Action Authorized Under Sections 5.6 or 5.7 .............. ........ ] 3
Section 5.9. Working Capital Assessment ................................................................ ........13
Section 5.10. Rate of Assessment ................................................................................ ........13
Section 5.11. Notice of Assessment and Certificate ..................................................... ........14
Section 5.12. Remedies of the Association in the Event of Default ............................. ........14
Section 5.13. Subordination of the Lien to Mortgages ................................................. ........15
Section 5.14. Exempt Property ..................................................................................... ........15
Section 5.15. Replacement Reserve Fund ................................................................... ........15
ARTICLE VI USE, RESTRICTIONS AND ARCHITECTURAL CONTROLS ........ ........16
Section 6.1. Residential Use ....................................................................................... ........16
Section 6.2. Architectural Review Board Approval ................................................... ........16
Section 6.3. Laundry ................................................................................................... ........16
Section 6.4. Sight Lines .............................................................................................. ........16
Section 6.5. Lot Maintenance .................................................................................... ........16
Section 6.6. Additions to Landscape Improvements .................................................. ........17
Section 6.7. Nuisance ................................................................................................. ........17
Section 6.8. Signs ....................................................................................................... ........17
Section 6.9. Animals .................................................................................................. ........17
Section 6.10. Trash Storage .......................................................................................... ........18
Section 6.11. Antennae Systems ................................................................................... ........18
Section 6.12. Painting ................................................................................................... ........18
Section 6.13. Finished Exteriors ................................................................................... ........19
Section 6.14. Fences ..................................................................................................... ........19
Section 6.15. Vehicles .................................................................................................. ........19
Section 6.16. Commercial Vehicles .............................................................................. ........19
Section 6.17. Recreational Vehicles ............................................................................. ........19
Section 6.18. Towing .................................................................................................... ........19
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Section 6.19. Garage Usage ..................................................
Section 6.20. Rental Agreements ..........................................
Section 6.21. Initial Construction and Mazketing .................
Section 6.22. Dusk to Dawn Lights ......................................
Section 6.23. Garages ...........................................................
Section 6.24. Storage Facilities ............................................
Section 6.25. Awnings ..........................................................
Section 6.26. Mailboxes .......................................................
Section 6.27. Address Markers .............................................
Section 6.28. Pools and Hot Tubs .........................................
Section 6.29. Play Equipment ...............................................
Section 6.30. Basketball Goals .............................................
Section 6.31. Business Use ...................................................
Section 6.32. Landscaping of Common Areas .....................
Section 6.33. Declazant's Use ...............................................
Section 6.34. Non-applicability to Association ....................
Section 6.35. Additional Rules and Regulations ..................
ARTICLE VII ARCHITECTURAL REVIEW BOARD ................................................. ......22
Section 7.1. The Architectural Review Board .............................................................. ......22
Section 7.2. Removal and Vacancies ............................................................................ ......22
Section 7.3. Officers ..................................................................................................... ......22
Section 7.4. Duties ........................................................................................................ ......22
Section 7.5. Failure to Act ................................
............................................................
......23
Section 7.6. Discretion ......................................
............................................................
......
Section 7.7. Enforcement .............................................................................................. ......23
Section 7.8. Appeal ....................................................................................................... ......24
Section 7.9. Liability of the Architectural Review Boazd, Declarant, Association...... ......24
Section 7.10. Inspection .................................................................................................. ......24
ARTICLE VIII PROPERTY EASEMENTS ..................................................................... ......24
Section 8.1. General Easement Rights .......................................................................... ......24
Section 8.2. Limitation on General Easement Rights ................................................... ......25
Section 8.3. Plat Easements .......................................................................................... ......ZS
Section 8.4. Encroachments .......................................................................................... ......26
Section 8.5. Ingress/Egress Easement .......................................................................... ......26
Section 8.6. Reservation of Right to Grant Future Easements ..................................... ......26
Section 8.7. Bonds and/or Dedication Requirements ................................................... ......27
Section 8.8. Easements for Corrective Work ................................................................ ......27
Section 8.9. Reciprocal Cross-Easements for Adjoining Dwelling Units .................... ......27
ARTICLE IX PARKING ................................................................................................. ......27
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ARTICLE X PARTY WALLS ........................................................................................ ....28
Section 10.1. General Rules of Law to Apply .................................................................. ....28
Section 10.2. Sharing of Repair and Maintenance and Destruction by Fire or Other
Casualty ...................................................................................................... ....28
Section 10.3. Repairs for Damage Caused by One Owner ............................................... ....28
Section 10.4. Other Changes ............................................................................................ ....28
Section 10.5. Right to Contribution Runs with the Land ................................................. ....29
Section 10.6. Dispute ........................................................................................................ ....29
ARTICLE XI POWERS AND DUTIES OF THE ASSOCIATION ................................. ....29
Section 11.1. Discretionary Powers and Duties ................................................................ ....29
Section 11.2. Mandatory Powers and Duties .................................................................... ....31
Section 11.3. Limitation on Association Action ............................................................... ....32
Section 11.4. Board ofDirectors Authority to Act ........................................................... ....32
Section 11.5. Compensation ............................................................................................. ....32
Section 11.6. Non-liability of Directors, Officers and Board Members ........................... ....32
Section 11.7. Indemnity ofDirectors and Officers and Members of the Architectural
Review Board ............................................................................................. ....33
ARTICLE XII RIGHTS OF MORTGAGEES ................................................................... ....33
Section 12.1. Veterans Administration ............................................................................. ....34
Section 12.2. Federal Housing Authority ......................................................................... ....34
Section 12.3. Freddie Mac ................................................................................................ ....35
Section 12.4. Fannie Mae ................................................................................................. ....36
Section 12.5. General ........................................................................................................ ....37
ARTICLE XIII GENERAL PROVISIONS ......................................................................... ....38
Section 13.1. Enforcement ................................................................................................ ....38
Section 13.2. Severability; Headings; Conflicts ............................................................... ....38
Section 13.3. Duration ...................................................................................................... ....39
Section 13.4. Material Amendment/Extraordinary Action ............................................... ....39
Section 13.5. Amendment ................................................................................................. ....41
Section 13.6. Special Amendment .................................................................................... ....41
Section 13.7. Waiver ......................................................................................................... ....41
Section 13.8. Annexation of Additional Property ............................................................ ....41
Section 13.9. Casualty Insurance ...................................................................................... ....41
Section 13.10. Withdrawable Real Estate ........................................................................... ....42
Section 13.11. Management Contracts ............................................................................... ....42
Section 13.12. Dissolution .................................................................................................. ....42
Section 13.13. Negligence .................................................................................................. ....43
Section 13.14. Acceptance and Ratification ....................................................................... ....43
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INDY 1 115670v4
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
THE TOWNHOMES AT PROVIDENCE AT OLD MERIDIAN (the "Declaration") is made as
of , 2003 by PROVIDENCE TOWNHOME PARTNERS, LLC, an Indiana
limited liability company ("Declarant").
RECITALS:
A. Declazant is the owner of a certain parcel of real estate located in Hamilton County,
Indiana, which is more particularly described on Exhibit A attached hereto and
incorporated herein by this reference (the "Property"); and
B. Declarant desires to create on the Property a residential community (the "Community")
which shall have permanent open spaces and other common facilities for the benefit of
the residents of the Community; and
C. Declarant desires to provide for the preservation of the values of the Community and
such other areas as may be subjected to this Declaration, and to provide for the
maintenance of the open spaces and other facilities, and, to this end, declare and publish
its intent to subject the Property to the covenants, conditions, restrictions, easements,
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 inure to the benefit of each
owner thereof; and
D. Declarant has deemed it desirable for the efficient preservation of the values of the
Community to create an association to be known as The Townhomes at Providence at
Old Meridian Homeowners Association, Inc., an Indiana not-for-profit corporation
(the "Association"), to which shall be delegated and assigned the powers of owning,
maintaining and administering the common azeas and facilities located within the
Property, administering and enforcing the covenants and restrictions made in and
pursuant to this Declaration with respect to the Property, collecting and disbursing the
assessments and charges hereafter created with respect to the Property, and promoting the
recreation, health, safety and welfare of the owners of the Property and all parts thereof;
and
E. The Property is subject to a mortgage in favor of National City Bank of Indiana, under
that certain Mortgage, Security Agreement and Absolute Assignment of Rents and Leases
dated as of July 5, 2000, and recorded on July 10, 2000 as Instrument No. 2000-33314 in
the Recorder's Office, as amended by that certain First Amendment recorded on
November 9, 2001 as Instrument No. 2001-72541 in the Recorder's Office.
NOW, THEREFORE, 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
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facilities; and further, Declarant declares that the Property shall be held, transferred, sold,
conveyed, hypothecated, encumbered, leased, rented, used, improved, and occupied subject
to the provisions, agreements, covenants, conditions, restrictions, reservations, easements,
assessments, charges and liens hereinafter set forth, all of which are for the purpose of
protecting the value and desirability of, and shall run 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 Declarant and the successors in title
to the Property or any part or parts thereof.
ARTICLE I
Section 1.1. "Additional Property" shall have the meaning ascribed thereto in
Section 3.2 of this Declaration.
Section 1.2. "Association" shall mean and refer to The Townhomes at Providence at
Old Meridian Homeowners Association, Inc., an Indiana not-for-profit corporation, and its
successors and assigns.
Section 1.3. "Articles" shall mean and refer to the Articles of Incorporation of the
Association, as the same maybe amended from time to time.
Section 1.4. "Authority Transfer Date" shall have the meaning ascribed thereto in
Section 3.1 of this Declaration.
Section 1.5. "Board of Directors" shall mean the elected body having its normal
meaning under Indiana corporate law.
Section 1.6. "Bylaws" shall mean and refer to the Code of Bylaws of the Association,
as the same maybe amended from time to time.
Section 1.7. "City" shall mean the City of Carmel, Indiana.
Section 1.8. "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. All of the Property which is not included in any particular Lot,
as shown on current or future approved plats of the Property and/or as described herein, shall be
considered to be a part of the Common Area.
Section 1.9. "Common Expenses" shall mean and refer to expenses of administration
of the Association and expenses for the upkeep, maintenance, repair and replacement of
Common Areas, and all sums lawfully assessed against the Owners by the Association, and all
sums, costs and expenses declared by this Declaration to be Common Expenses.
Section 1.10. "County" shall mean the County of Hamilton, Indiana.
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Section 1.11. "Declarant" shall mean and refer to Providence Townhome Partners,
LLC, an Indiana limited liability company, or any successors or assigns to whom the foregoing
assigns any or all of its rights as Declarant pursuant to this Declaration by assignment recorded
in the Recorder's Office.
Section 1.12. "Declaration" shall mean and refer to this Declaration of Covenants,
Conditions and Restrictions for The Townhomes at Providence at Old Meridian, which is to be
recorded in the Recorder's Office.
Section 1.13. "Development Period" means the period of time commencing with
Declarant's acquisition of the Property and ending when Declarant, or an affiliate or subsidiary of
Declarant, has completed the development and sale of, and no longer owns, any Lot. The
Development Period shall recommence each time Declarant acquires any part (or all) of the
Additional Property.
Section 1.14. "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, unless otherwise specified, include within its meaning (by way
of illustration but not limitation) a townhouse and a detached home.
Section 1.15. "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 1.16. "Local Governing Authority" shall mean the City and/or the County,
individually or collectively.
Section 1.17. "Lot" shall mean and refer to any plot of land created by and shown on a
lawfully recorded subdivision plat of the Property upon which a Dwelling Unit could be
constructed in accordance with applicable zoning ordinances, with the exception of the Common
Area and streets dedicated to public use. Each Lot shall include such property to the centerline
of any party wall separating Dwelling Units in the same Structure (as herein defined) and shall
include an area equal to the exterior face of the rear wall of each Dwelling Unit.
Section 1.18. "Maintenance Costs" means all of the costs necessary to keep the
facilities to which the term applies operational and in good condition, including but not limited to
the cost of all upkeep, maintenance, repair, replacement, of all or any part of any such facility,
payment of all insurance with respect thereto, all taxes imposed on the facility and on the
underlying land, leasehold, easement or right-of--way, and any other expense related to
continuous maintenance, operation or improvement of the facility.
Section 1.19. "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 1.20. "Mortgagee" shall mean and refer to any person or entity secured by a
first mortgage on any Lot or the Common Area who has notified the Association of this fact in
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writing. 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 1.21. "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
excluding 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 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 1.22. "Permitted Signs" shall mean (i) customazy real estate sale or lease
signs which have received the prior written approval of the Architectural Review Board; and (ii)
temporary constmction and wooden home signage.
Section 1.23. "Person" shall mean an individual, firm, corporation, partnership,
association, trust, or other legal entity, or any combination thereof.
Section 1.24. "Property" shall mean that certain real property located in Hamilton
County, Indiana, which is more specifically described on Exhibit A 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, chazges and liens of this Declaration.
Section 1.25. "Recorder's Office"shall mean the Office of the Recorder of Hamilton
County, Indiana."Regular Assessment" shall mean and refer to assessments levied against all
Lots to fund Common Expenses.
Section 1.27. "Restrictions" shall mean and refer to the agreements, conditions,
covenants, restrictions, easements, assessments, charges, liens, and other provisions set forth in
this Declaration with respect to the Property, as the same maybe amended from time to time.
Section 1.28. "Special Assessments" shall mean and refer to assessments levied in
accordance with Section 5.7 of this Declaration.
Section 1.29. "Structure" shall mean any temporary or permanent improvement or
building or portion thereof, including, without limitation, walls, decks, patios, stairs, windows,
window boxes, doors, fences, play equipment, trampolines, greenhouses, skylights, address
mazkers, mail boxes, name plates, flag poles, lawn ornaments, trees, hedges, shrubbery, solar
panels, satellite dishes, antennae, shutters, awnings, fences, pools, hot tubs, pavement, walkways,
driveways, garages and/or garage doors, or appurtenances to any of the aforementioned.
Section 1.30. "Supplemental Declaration" shall mean an amendment or supplement
to this Declaration executed by or consented to by a Declarant or its successors or assigns, and
recorded in the public records of Hamilton County, Indiana, which subjects Additional Property
to this Declaration and/or imposes, expressly or by reference, additional restrictions and
obligations on the Additional Property described therein. The term shall also refer to the
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instrument recorded by a Declarant or its successors or assigns to subject Additional Property
to this Declaration.
ARTICLE II
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 subject to assessment by the Association. Ownership of such Lot shall be the
sole qualification for membership. No Owner shall have more than 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 II herein with respect to each matter submitted to a vote of
Members upon which the Class A Members are entitled to vote.
Class B: The Class B Member shall be Declarant and all successors and assigns of
Declarant designated by Declarant as Class B Members in a written notice
mailed and delivered to the resident agent of the Association. 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.
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 upon the happening of any of the following
events, whichever occurs first (the "Authority Transfer Date"):
(a) the date which is four (4) months after the date upon which the
total votes outstanding in the Class A membership equals 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 the date upon which Declarant abandons
construction (i.e., no new Dwelling Unit construction has been
initiated for a period of eighteen (18) months, unless there is
evidence of continuing construction).
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Section 3.2. Expansion. If Declarant exercises its rights to expand the Property to
include additional real estate to be subject to this Declaration including, but not limited to,
additional real estate to be used as Lots or Common Area (collectively, "Additional
Property"), and in the event that Declarant's Class B membership shall have ceased as provided
in Section 3.1, above, Declazant's Class B membership interest shall be revived with respect to
all Lots owned by Declarant, including those, if any, as to which it had previously had its Class
B membership interest converted to Class A membership interests. In addition, in such event,
without the requirement of further action or consent by any Member, all of Declarant's rights and
privileges hereunder which it enjoyed prior to the Authority Transfer Date shall also be
automatically renewed and reinstated. Any such new and/or revived Class B membership
interests shall cease and be converted to Class A membership interests upon the happening of
any of the following events, whichever occurs first:
(a) the date which is four (4) months after the date upon which the total votes
outstanding in Class A membership in the Additional Property equals the
total votes outstanding in the Class B membership in such Additional
Property; or
(b) five (5) years from the date of recordation of the document subjecting such
Additional Property to this Declazation; or
(c) sixty (60) days after the date upon which Declarant abandons construction
(i.e., no new Dwelling Unit construction has been initiated for a period of
eighteen (18) months, unless there is evidence of continuing construction).
Section 3.3. Multiple Ownership Interests. When more than one (1) Person
constitutes the Owner of a particulaz Lot, all of such Persons shall be Members of the
Association, but all of such Persons, collectively, shall have only one (1) vote for such Lot. The
vote for such Lot shall be exercised as such Persons constituting the Owner of the Lot determine
among themselves, and may be exercised by any one (1) of the Persons holding such ownership
interest, unless any objection or protest by any other holder of such ownership interest is made
prior to the completion of a vote, in which case the vote cast for such Lot 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.
ARTICLE IV
DECLARATION OF RESTRICTIONS AND STATEMENT OF PROPERTY RIGHTS
Section 4.1. Declaration. Declarant hereby expressly declares that the Property
and any additions thereto pursuant to this Declaration, shall be held, transferred and occupied
subject to these Restrictions. The Owners of each Lot are subject to these Restrictions, and all
other Persons, whether (i) by acceptance of a deed from Declarant, or its successors or assigns,
conveying title thereto, or the execution of a contract for the purchase thereof, whether from
Declarant or a subsequent Owner of such Lot, or (ii) by the act of occupancy of any Lot, shall
conclusively be deemed to have accepted such deed, executed such contract and undertaken such
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INDY 1115670v4
occupancy subject to each Restriction and agreement herein contained. By acceptance of such
deed, or execution of such contract, or undertaking such occupancy, each Owner and each other
Person for itself, its heirs, personal representatives, successors and assigns, acknowledges the
rights and powers of Declarant, the Architectural Review Board and of the Association with
respect to these Restrictions, and also, covenants, agrees and consents to and with Declarant,
the Architectural Review Board, the Association, and the Owners and subsequent Owners of
y each of the Lots affected by these Restrictions, to keep, observe, comply with and perform
such Restrictions and agreements.
Section 4.2. Property Rights. Every Owner shall have a right and easement of use,
access, and 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) this Declaration as it may be amended from time to time and to any
restrictions, limitations or other matters contained in any deed conveying any part of the
Property to the Association;
(b) 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;
(c) 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 the violation
thereof;
(d) the right of the Association to impose reasonable membership
requirements and charge reasonable admission or other fees for the use of any
recreational facility situated upon the Common Area;
(e) the right of the Association to suspend (i) the Members' voting rights, (ii)
the Members' right to run for office within the Association, and (iii) rights of a Member
to the use of any nonessential services offered by the Association, provided that access
and the provision of utilities to the Lot through the Common Area shall not be precluded,
for (x) any period during which any assessment against such Member's Lot remains
unpaid or (y) for a period not to exceed sixty (60) days for any infraction of its published
rules and regulations;
(f) 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 and/or 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 a 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 such purposes and subject to
conditions as may be agreed to by the Members. Except in the case of dissolution, any
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INDY 1115670v4
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 must have 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 therewith, the officers of the Association shall execute the
necessary documents to effectuate the transfer under this subuarat;ranh (f). The re-
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;
(g) the right of the Association to grant, with or without payment to the
Association, licenses, rights-of--way and easements under, across, through or over any
portion of the Common Area;
(h) 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 with respect
to the lessee(s)' uses of the Common Area and facilities, all of 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;
(i) the right of Declarant or the Association to re-subdivide and/or 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;
(j) all rights reserved by Declarant in Article VIII hereof; and
(k) the right of 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 the Board of Directors, may exercise these rights without
the need for any approval from any Member, Mortgagee or any of the Federal Agencies, unless
provided otherwise in this Declaration.
INDY 1 115670v4
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Section 43. Common Area
(a) Ownership. Declarant may retain legal title to the Common Area during
the Development Period, but shall convey title to the Common Area to the Association
free and clear of all liens and other Financial encumbrances, exclusive of the lien for
taxes not yet due and payable, no later than the end of the Development Period. The
Common Areas shall remain private, and neither Declarant's execution, or recording
of an instrument portraying the Common Areas, nor the doing of any other act by
Declarant is, or is intended to be, or shall be construed as, a dedication to the public
of the Common Areas. Declarant or the Association may, however, dedicate or
transfer all or any part of the Common Areas to any public agency or utility for
roadways, utility or parks purposes, or for other public purposes.
(b) Maintenance. The Association shall be responsible for maintaining the
Common Area and the Maintenance Costs thereof shall be assessed as a Regular
Assessment against all Lots subject to assessment.
(c) Control. The Association, subject to the rights of Declarant and the
Owners set forth in this Declaration, shall be responsible for the exclusive management
and control of the Common Areas and all improvements thereon and, except as otherwise
provided herein or in a Supplemental Declaration, shall keep the Common Areas in good,
clean, attractive and sanitary condition, order, and repair.
(d) No Permanent Structures. Except for underground utility facilities, and
except as provided in this Declaration, or any Supplemental Declaration, no permanent
improvements shall be made to or installed on the Common Area other than lighting,
seating, walkways, paved paths, planting structures, and fountains or other non-
recreational water features. The use of the Common Area shall be subject to rules and
regulations adopted by the Board of Directors which are not inconsistent with the
provisions of this Declaration or any Supplemental Declaration.
(e) Delegation 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, each Owner, for itself individually, covenants that (i) every rental agreement
with respect to the Lot shall contain specific conditions which require the tenant
thereunder to abide by all Association covenants, rules and regulations, without
exception, and (ii) each such tenant will be provided, prior to the execution of such lease,
a complete set of all Association covenants, rules and regulations.
(f) Damage or Destruction by Owner. In the event any Common Area is
damaged or destroyed by an Owner or any of his guests, tenants, licensees, agents,
members of his family, or any other Person having or gaining access to the Owner's Lot,
such Owner authorizes the Association to repair said damaged area, and an amount equal
to the costs incurred to effect such repairs shall be assessed against such Owner as a
Special Assessment and shall constitute a lien upon the Lot of said Owner until paid in
full. The Association shall repair said damaged area in a good and workmanlike manner
INDY 1] 15670v4
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in conformance with the original plans and specifications of the area involved, or as the
area may have been modified or altered subsequently by the Association in the discretion
of the Association.
(g) Density of Use. Declarant expressly disclaims any warranties or
representations regarding the density of use of the Common Areas or any facilities
located thereon.
ARTICLE V
ASSESSMENTS
Section 5.1. Creation of the Lien and Personal Obligation for Assessments.
Declarant covenants and agrees, for each Lot owned by Declarant, and each Owner of a Lot
covenants and agrees, by acceptance of a deed therefor, whether or not it shall be so expressed in
any such deed or other instrument of conveyance, to pay to the Association: (a) Regular
Assessments, (b) Special Assessments, and any other amounts as may be provided for hereunder
to be due from any Owner in connection with his ownership of a Lot. Such assessments are to be
established and collected as hereinafter provided. The Association's Regular Assessments and
Special Assessments, together with interest thereon, late fees (as contemplated in Section 5.6(d)
below) and costs of collection thereof, as hereinafter provided, shall be assessed against 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 became first due. The Regular Assessments and Special
Assessments, when assessed upon resolution of the Board of Directors for each year, shall
become a lien on each Lot in the amount of the entire Regular Assessment or Special
Assessment, but shall be payable in two equal installments collected on asemi-annual basis.
Section 5.2. Purpose of Assessment. The assessments levied by the Association shall
be used to promote the recreation, health, safety and welfare of the residents and Owners of the
Property, and for the improvement, maintenance and landscaping of the Common Area,
including but not limited to the payment of taxes, construction of improvements and maintenance
of services, facilities, irrigation sprinkler systems, trees, lawns, shrubbery and other plantings,
and devoted to these purposes or related to the use and enjoyment of the Common Area or other
property which the Association has the obligation to maintain, and for such other purposes as the
Board of Directors may determine to be appropriate.
Section 5.3. Annual Accounting. Annually, after the close of each fiscal year of the
Association and prior to the date of the annual meeting of the Association next following the end
of such fiscal year, the Board of Directors shall cause to be prepared and furnished to each
Owner a financial statement prepared by a certified public accountant or firm of certified public
accountants then serving the Association, which statement shall show all receipts and expenses
received, incurred and paid during the preceding fiscal year.
Section 5.4. Proposed Annual Budget. Annually, on or before the date of the annual
or special meeting of the Association at which the budget is to be acted upon, the Board of
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INDY 1115670v4
Directors shall cause to be prepared a proposed annual budget for the next ensuing fiscal year
estimating the total amount of the Common Expenses for such next ensuing fiscal year and shall
furnish a copy of such proposed budget to each Owner at or prior to the time the notice of such
meeting is mailed or delivered to such Owners. The annual budget shall be submitted to the
Owners at the designated meeting of the Association for adoption and, if so adopted, shall be the
basis for the Regular Assessments for the next ensuing fiscal year. At such annual or special
meeting of the Owners, the budget may be approved in whole or in part or may be amended in
whole or in part by a majority vote of the Owners; provided, however, that in no event shall such
meeting of the Owners be adjourned until an annual budget is approved and adopted at such
meeting, whether it be the proposed annual budget or the proposed annual budget as amended.
The annual budget, the Regular Assessments and all sums assessed by the Association shall be
established by using generally accepted accounting principles applied on a consistent basis. The
failure or delay of the Board of Directors to prepare a proposed annual budget and to furnish a
copy thereof to the Owners shall not constitute a waiver or release in any manner of the
obligations of the Owners to pay the Common Expenses as herein provided, whenever
determined. In the event there is no annual budget approved by the Owners as herein provided
for the current fiscal year, whether before or after the meeting of the Association at which the
budget is to be acted upon, the Owners shall continue to pay Regulaz Assessments based upon
the last approved budget or, at the option of the Board of Directors, Regular Assessments based
upon one hundred and ten percent (110%) of such last approved budget, as a temporazy budget.
Section 5.5. Establishment of Regular Assessment. The Association must levy in
each of its Fiscal years a Regular Assessment against each Lot. The amount of such Regular
Assessment shall be established by the Boazd of Directors, subject to the limitations imposed by
Section 5.6 below, and written notice of the same shall be sent to every Owner at least thirty (30)
days in advance of the commencement of each Regular Assessment period. Regular
Assessments against each Lot shall be paid in advance, payable in two equal semi-annual
installments. The initial Regular Assessment levied by the Association for each Lot shall be
adjusted according to the number of months remaining in the period for which such initial
assessment was levied. All payments of Regular Assessments and Special Assessments shall be
non-refundable, and all collections and funds held by the Association on account thereof shall be
appurtenant to and be applied for the benefit of the respective Lot. In no event shall any Owner
be due any rebate or credit from the Association upon resale or other transfer or conveyance for
prepaid Regular Assessments or Special Assessments.
Section 5.6. Regular Assessments. Prior to Januazy 1 of the year immediately
following conveyance of the first Lot to an Owner other than Declarant, the Regular Assessment
shall be Twelve Hundred and 00/100 Dollars ($1,200.00).
(a) Upon January 1 of the yeaz immediately following the first conveyance of
a Lot to an Owner other than Declarant, and upon January 1 of each yeaz thereafter, the
Regular Assessment shall increase, effective as of 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 and other
Common Area maintenance services, plus (ii) an amount equal to the amount of the
Regular Assessment for the immediately preceding year multiplied by ten percent (10%).
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INDY 1 115670v4
(b) The Board of Directors may determine not to increase the Regular
Assessment to the full extent of the automatic increase provided in subsection (al above,
in which case the Board of Directors shall specify the amount of such lesser Regular
Assessment.
(c) Upon and after January 1 of the year immediately following the first
conveyance of a Lot to an Owner other than Declarant, the Regular Assessment may be
increased above that established by subsection (a) above; provided, however, that any
such change must have the consent of at least fifty percent (50%) of the votes of those
Members who are entitled to vote and who, in fact, do vote, 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.
(d) The Regular Assessment against each Lot shall be paid in semi-annual
installments, each of which is paid in full in advance by the due dates specified by the
Board of Directors, the first of which due date shall not be earlier than fifteen (15) days
after the written notice of such Regular Assessment is given to the Owners. Semi-annual
installments of Regular Assessments shall be due and payable automatically on their
respective due dates without any notice from the Board of Directors or the Association,
and neither the Board of Directors nor the Association shall be responsible for providing
any notice or statements to Owners for the same. If an Owner fails to pay any
semiannual installment of any such Regular Assessment on or before the due date
established by the Board of Directors, a late fee in the amount of $25.00 will be added to
the amount due, and any such installment, together with such late fee, will be and remain,
immediately due and payable.
(e) Payment of the Regular Assessment shall be made to the Board of
Directors or a managing agent, as directed by the Board of Directors.
(f) The Regular Assessment for each fiscal year of the Association shall
become a lien on each sepazate Lot as of the first day of each fiscal year of the
Association, even though the final determination of the amount of such Regular
Assessment may not have been made by that date.
Section 5.7. Special Assessments. In addition to the Regular Assessment authorized
above, the Association may levy, in any assessment year, a Special Assessment applicable to that
year for the purpose of defraying, in whole or in part, the cost of any construction,
reconstnuction, repair or replacement of capital improvements upon the Common Area, including
the fixtures and personal property related thereto, or for any other specified purpose. Without
limiting the generality of the foregoing provisions, Special Assessments may be made by the
Board of Directors from time to time to pay for capital expenditures and to pay for the cost of
any repair or reconstruction of damage caused by fire or other casualty or disaster to the extent
insurance proceeds are insufficient therefor under the circumstances described in this
Declaration. Except in the case of damage or destruction caused by an Owner or any of his
guests, tenants, licensees, agents, members of his family, or any other Person having or gaining
access to the Owner's Lot as contemplated by Section 4.3(f), any such Special Assessment shall
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INDY l 11S670v4
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 Lot's benefit, as reasonably determined by the Board of Directors, which determination
shall be final. In the case of damage or destruction caused by an Owner or any of his guests,
tenants, licensees, agents, members of his family, or any other Person having or gaining access to
the Owner's Lot as contemplated by Section 4.3(fl, the Special Assessment maybe levied solely
against that Owner. Notwithstanding the fact that in some instances, this Declaration may
provide that certain items of routine and ordinary repair and maintenance should be performed
by the Association, the Association shall nevertheless retain the right to assess the costs thereof
to any Owner or group of Owners as a Special Assessment. To be effective, any such Special
Assessment shall have the assent of more than two-thirds (2/3) 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, and written notice setting forth the purpose
of the meeting must have been sent to all Members not less than thirty (30) days nor more than
sixty (60) days in advance of the meeting.
Section 5.8. Ouorum for any Action Authorized Under Sections 5.6 or 5.7. At the
first calling of a meeting under Section 5.6 or Section 5.7 of this Article, the presence at the
meeting of Members or proxies entitled to cast sixty percent (60%) of all the votes with respect
to 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 the notice requirements set forth in
Section 5.6 and Section 5.7 and subject further to applicable law, and the required quorum at any
such subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting.
No such subsequent meeting shall be held more than sixty (60) days following the preceding
meeting.
Section 5.9. WorkinE Capital Assessment. In addition to the Regular and Special
Assessments authorized above, the Association shall establish and maintain a working capital
fund. At the closing of each sale or other transfer of a Lot by Declarant, or any re-sale of a Lot
by a Declarant, for which a residential use permit has been issued, the purchaser of such Lot
shall pay to the Association a working capital assessment in an amount equal to one-sixth
(1/6th) of the then current Regular Assessment for said Lot (a "Working Capital
Assessment"), which payment shall be non-refundable and shall not be considered as an
advance payment of an assessment or other charge owed to the Association with respect to
such Lot.
Section 5.10. Rate of Assessment. The Regular Assessment shall be fixed at a
uniform rate for all Lots, except for unoccupied Lots owned by Declarant. Except in the case of
damage or destruction caused by an Owner as contemplated by Section 4.3(11, and except for
unoccupied Lots owned by Declarant, the Special Assessments shall be fixed at a uniform rate
for all Lots which benefit from the construction, reconstruction, repair or replacement of capital
improvements giving rise to the Special Assessment, pro rata according to each Lot's benefit, as
reasonably determined by the Board of Directors, which determination shall be final.
Notwithstanding the foregoing or anything else contained herein, no Regular Assessments or
Special Assessments or other charges shall be owed or payable by Declarant with respect to any
Lot or other portion of the Property owned by Declarant while the same is owned by Declarant,
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nor shall any such assessments or charges become a lien on any such Lot or other portion of
the Property owned by Declarant.
Section 5.11. Notice of Assessment and Certificate. Written notice of the Regular
Assessments and any Special Assessments shall be sent to every Member. The due dates for
payment of the Regular Assessments and any Special Assessments shall be established by the
Board of Directors. The Association shall, upon written demand by a Member 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 and the amounts of any
outstanding assessments. A reasonable charge may be made by the Board of Directors for the
issuance of these certificates, which chazge shall be paid to the Board of Directors in advance by
the requesting Member. Such certificates shall be conclusive evidence of payment of any
assessment therein stated to have been paid.
Section 5.12. Remedies of the Association in the Event of Default. Each Owner
shall be personally liable for the payment of all Regular Assessments and Special Assessments
against his Lot. Where the Owner constitutes or consists of more than one Person, the liability of
such Persons shall be joint and several. If any assessment pursuant to this Declaration is not paid
within thirty (30) days after its initial 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 if previously established by the
Association;
(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 installment 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, provided
that access and the provision of utilities to the Lot through the Common Area shall not be
precluded. A Member, whose rights have been suspended in this manner, shall have no
right to any refund or suspension of his obligations to pay such assessments or any other
assessments becoming due 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 respective duties.
In any action to foreclose the lien against a Lot pursuant to Section 5.12(a) above, the
Owner and any occupant of the Lot and Dwelling Unit which are the subject of such action shall
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INDY 1115670v4
be jointly and severally liable for the payment to the Association of reasonable rental for such
Lot and Dwelling Unit, and the Board of Directors shall be entitled to the appointment of a
receiver for the purpose of preserving the Lot and Dwelling Unit and to collect the rentals
and other profits therefrom for the benefit of the Association to be applied to the unpaid
Regular Assessments or Special Assessments. The Board of Directors may, at its option,
bring a suit to recover a money judgment for any unpaid Regular Assessment or Special
Assessment without foreclosing (and without thereby being deemed to have waived) the lien
securing the same. In any action to recover any Regular Assessment or Special Assessment,
or any other debts, dues or charges owed the Association, whether by foreclosure or
otherwise, the Board of Directors, for and on behalf of the Association, shall be entitled to
recover from the Owner of the respective Lot and Dwelling Unit all of the costs and expenses
incurred as a result of such action (including, but not limited to, reasonable attorneys' fees)
and interest upon all amounts due at the rate of twelve percent (12%) per annum, which shall
accrue from the date such assessments or other amounts become first due, until the same are
paid in full.
Section 5.13. Subordination of the Lien to Mortea~es. The lien for the assessments
provided for herein shall be subordinate to the lien of any properly recorded first mortgage
encumbering a Lot. Notwithstanding anything contained in this Section 5.13 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 not extinguish the lien of any
unpaid assessments (or periodic installments, if applicable) which became due prior to such sale,
transfer or conveyance, and any Person taking title to such Lot in the foregoing manner shall
have no right to use the non-essential services or amenities of the Property until such time as all
assessments due with respect to such Lot have been paid in full. 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 5.14. Exempt Property. The following portions of the Property shall be
exempt from the assessments created by this Declaration: (a) those portions of the Property that
are dedicated to and accepted by a local public authority; and (b) the Common Area. Except as
otherwise provided in Section 5.10 hereof, no developed or undeveloped Lot, ]and or
improvements devoted to dwelling use shall be exempt from said assessments.
Section 5.15. Replacemeut Reserve Fund. The Association shall establish and
maintain a reserve fund ("Replacement Reserve Fund") for the maintenance, repair and
replacement of the Common Area and improvements located thereon by the allocation and
payment to such reserve fund 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 future maintenance, repair and replacement and which shall be a component
of the Regular Assessment. The Replacement Reserve Fund (i) shall be conclusively deemed to
be a Common Expense of the Association, (ii) shall be maintained by the Association in a
separate, interest bearing account or accounts with any banking institution, the accounts of which
are insured by any state or by any agency of the United States of America as selected by the
INDY I l 15670v4
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Board of Directors, and (iii) may be expended only for the purpose of effecting the
replacement of the Common 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 purposes as the Board of
Directors may from time to time consider to be necessary or appropriate. The 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.
ARTICLE VI
USE, RESTRICTIONS AND ARCHITECTURAL CONTROLS
Section 6.1. Residential Use. The Property shall be used exclusively for residential
purposes except as provided in Section 6.31 hereof. 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 structure shall be erected, altered, placed or permitted to remain on
any Lot other than one (1) Dwelling Unit and appurtenant structures, approved by the
Association and appropriate Local Governing Authorities, for use solely by the occupant(s) of
the Dwelling Unit.
Section 6.2. Architectural Review Board Approval. No Structure or addition to a
Structure shall be erected, placed, painted, altered or externally modified or improved on any Lot
unless and until (i) 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 have been filed with and approved in writing in all respects by the
Architectural Review Board (as defined in Article VII below) and, if required, by appropriate
Local Governing Authorities; and (ii) all construction permits have been obtained, if applicable
or required.
Section 6.3. Laundry. No clotheslines may be erected on any Lot, and no clothing,
sheets, blankets, rugs, laundry or wash shall be hung out, exposed, 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. Lot Maintenance. Each Owner shall, at all times, maintain its Lot and
Dwelling Unit and all appurtenances thereto free of debris or rubbish and in good repair and in a
state of neat appearance from all exterior vantage points. While the Association will perform all
routine maintenance to all structures and landscape improvements, the Owners are responsible
for all extraordinary items of maintenance to any Structure or landscape improvement or amenity
on his Lot, including, without limitation, trees and shrubs, and for repair of any damage or
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INDY 1115670v4
destruction maintenance to any Structure or landscape improvement or amenity on his Lot,
including, without limitation, trees and shrubs, whether or not caused by the Owner, a third
party, elements of nature, or acts of God.
Section 6.6. Additions to Landscape Improvements. No tree, shrub, or other
vegetation or landscape improvement originally installed by Declarant shall be removed or
altered unless such item is dead or decayed and dangerous to human health, safety, or welfare,
and the removal has been approved in writing in advance by the Architectural Review Board, or
removal is ordered by a Local Governing Authority or by the Architectural Review Board to
maintain proper sightlines. No approval for removal of any trees or shrubs shall be granted by
the Architectural Review Board unless appropriate provisions are made for replacing the
removed trees or shrubs. Each Owner is permitted to add to the landscape of his Lot certain
landscaping features within approved flowerbeds; however, prior to adding any such landscape,
the Owner of such Lot must submit a written landscape plan to the Architectural Review Board
for its review and obtain the written approval of such Architectural Review Board.
Section 6.7. Nuisance. No noxious or offensive activity shall be carved on or
permitted to 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. Nothing shall be done or kept
or permitted to be done or kept by an Owner in any Dwelling Unit, or on any Lot, or on any of
the Common Areas, which will cause an increase in the rate of insurance paid by the Association
or any other Owner. No Owner shall permit anything to be done or kept in his Dwelling Unit or
on his Lot which will result in a cancellation of insurance on any part of the Common Area or
any other Owner, or which would be a violation of any law or ordinance or the requirements of
any insurance underwriting or rating bureau. No Dwelling Unit or Lot shall be used in any
unlawful manner or in any manner which might cause injury to the reputation of the Community
or which might be a nuisance, annoyance, or inconvenience, or which might cause damage, to
other Owners and occupants of Dwelling Units or neighboring property, including, without
limiting the generality of the foregoing, noise by the use of any musical instrument, radio,
television, loud speakers, electrical equipment, amplifiers or other equipment or machinery. No
exterior lighting on a Lot shall be directed outside the boundaries of the Lot. No outside toilets
shall be permitted on any Lot (except during a period of construction and then only upon
obtaining prior written consent of the Architectural Review Board), and no sanitary waste or
other wastes shall be permitted to be exposed.
Section 6.8. Sins. The only signs permitted on the Property shall be Permitted Signs.
No more than one (1) Permitted Sign shall be displayed to public view on any Lot and must be
less than or equal to six (6) square feet in total surface area and may not be illuminated. All
Permitted Signs advertising the property for sale shall be removed within three (3) days from the
date of the conveyance of the Lot or the execution of the lease agreement, as applicable.
Section 6.9. Animals. No domesticated or wild animal shall be kept or maintained
on any Lot, except that no more than three (3) common household pets such as dogs and cats
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.
Excessive barking of dog(s) or vicious animals shall constitute a nuisance and may be ordered
MDY 1115670v4
17-
removed from the Property by the Association. 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. Failure to remove any solid animal waste shall subject the owner to a fine not to
exceed $50.00 per occurrence as determined by the Board of Directors. Law enforcement
and animal control personnel shall have the right to enter the Property to enforce local animal
control ordinances.
Section 6.10. Trash Storaee. Trash shall be collected and stored in sealed trash
receptacles only and not solely in plastic garbage 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, and except for 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. No rubbish, garbage or
other waste shall be allowed'to accumulate on any Lot or Common Area. No homeowner or
occupant of a Lot shall burn or bury any garbage or refuse on any Lot or Common Area.
Section 6.11. Antennae Systems. To the extent not inconsistent with federal and state
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. To the
extent not inconsistent with federal law, satellite dishes will not exceed eighteen (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 in full force and effect.
Section 6.12. Painting. No Owner shall cause or permit any alterations or changes of
the exterior design and/or color scheme of any Dwelling Unit, Structure or building within the
Property. No person shall paint the exterior of any building within the Property, or portion
thereof, except contractors and agents employed by Declarant or the Association. Any and all
such painting of the exterior of any building within the Property or any portion thereof shall be
done by the Association, and the costs thereof will be assessed to the Owners either as a part of
the Regular Assessments due hereunder or, if necessary, as a Special Assessment, as determined
by the Board of Directors in its discretion under Article V above. All Dwelling Units will, at all
times, be painted in a uniform color, without variation. By way of example only, in the event the
Board of Directors or Declarant, as applicable, deems it necessazy to paint only a portion of a
building (i.e., in the case of damage affecting only one Dwelling Unit), and, if matching paint
cannot be located or if, when applied, the paint does not match the finish on the adjacent
Dwelling Units, the Board of Directors, in its sole discretion, may cause the exterior of the entire
building to be painted, with the costs thereof being assessed to the Owners of the Dwelling Units
in the building, either as a part of the Regular Assessments due hereunder, or, if necessary, as a
Special Assessment, as determined by the Board of Directors in its discretion.
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Section 6.13. Finished Exteriors. The exteriors of all Structures, including, without
limitation, walls, doors, windows and roofs, shall be kept in good maintenance and repair. No
Structure shall 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 permitted to remain in a damaged condition for
longer than three (3) months, unless expressly excepted by the Board of Directors in writing. If
the Board of Directors determines that any Structure or Dwelling Unit is not in compliance with
the provisions of this Section 6.13, the Association shall send written notice to the Owner of that
Structure or Dwelling Unit identifying, with reasonable specificity, the items in need of repair or
maintenance (a "Repair Notice"). If an Owner fails to comply with the provisions of this
Section 6.13 after its receipt of such a Repair Notice, the Association shall be entitled to enforce
the provisions of this Section 6.13 in the manner contemplated under Section 11.1(1), below, and
in any other manner permitted hereunder or by applicable law.
Section 6.14. Fences. No fence or similar enclosure shall be erected or built on the
Property, except for any fencing required to be constructed by Declarant pursuant to that certain
Statement of Covenants recorded in the Recorder's Office on Apri125, 2000, as Instrument No.
2000-19558 (the "Statement of Covenants").
Section 6.15. 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.
Sectioh 6.16. Commercial Vehicles. Except upon the prior written approval of the
Architectural Review Board, no commercial or industrial vehicle, including, but not limited to,
moving vans, trucks, tractors, trailers, vans, wreckers, tow trucks, hearses and buses, shall be
parked overnight or regularly or habitually parked on the Property, nor shall any such vehicle be
located on the Property for longer than twenty-four (24) hours.
Section 6.17. Recreational Vehicles. No recreational vehicles or equipment,
including, but not limited to, boats, boating equipment, jet-skis, wave runners, travel trailers, fuel
tanks, 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 criteria deemed to be relevant by the Architectural Review Board. The Association shall
not be required to provide a storage area for these vehicles.
Section 6.18. Towing. The Board of Directors shall have the right to tow any vehicle
parked or kept in violation of the covenants contained within this Article VI, upon twelve (12)
hours' written, telephonic or verbal notice and at the vehicle owner's sole expense.
Section 6.19. Garage Usage. Any conversion of any garage that will preclude the
parking of vehicles within that garage is prohibited. Owners shall keep and maintain 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 6.20. Rental Agreements. Notwithstanding anything contained in this
Declaration to the contrary, at no time shall greater than eighteen percent (18%) of the
occupiable Dwelling Units be leased rather than owner-occupied. Any rental agreement for a
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Dwelling Unit shall (i) require an initial period of at least one (1) year, (ii) be in writing, (iii)
require the payment of rental at prevailing market rates or higher, and (iv) be subject to the
Restrictions, and all other terms and conditions set forth in this Declaration and in the other
Association documents. Every such rental agreement must include a provision stating that any
failure by the tenant, its household members or guests, to comply with such Restrictions, terms
and conditions shall be a default under the rental agreement, and the Owner shall be responsible
for enforcing such provision at its sole expense; provided, however, that the Association shall
also have the right to enforce any of such Restrictions and other terms and conditions against the
Owner or any tenant, or both, in the sole discretion of the Association, without regard to whether
Declarant or the Association were or are in privity with such tenant. The foregoing shall not be
construed as a waiver by the Association of its rights hereunder to enforce these Restrictions
against a tenant or any other Person in possession of the Property or any part thereof.
Section 6.21. Initial Construction and Marketing. Declarant or its assigns 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 not be
bound by the provisions of this Article to the extent application thereof would delay, hinder or
increase the cost of construction and/or marketing of Dwelling Units for sale in the Community
by Declarant.
Section 6.22. Dusk to Dawn Lights. Each Owner shall maintain any and all 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 remain continuously operational from dusk to dawn.
Section 6.23. Garages. Garage doors shall remain closed except when entering and
exiting or otherwise accessing the garage.
Section 6.24. Storage Facilities. No permanent, temporary or portable storage
facilities shall be permitted on any Lot, except for portable storage facilities that are located
wholly within the Owner's garage area and are removed within twenty-four (24) hours. No
portable storage facility is permitted in any driveway, Common Area, or public right-of--way.
Section 6.25. Awnings. Except with respect to Lots upon which Declarant maintains a
sales office or model home, or as otherwise approved by the Architectural Review Board, no
metal, wood, fabric, fiberglass or similar type material awnings or patio covers will be permitted
anywhere on the Property.
Section 6.26. Mailboxes. No individual mailboxes at curb or on any Dwelling Unit
shall be allowed or permitted. Declarant shall install a common postal facility, with individual
mailboxes, for all attached Dwelling Units within each single building.
Section 6.27. Address Markers. Declarant shall install uniform address markers on
each Lot and no Person, except the Association, shall remove, alter, change, or add to such
address markers.
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Section 6.28. Pools and Hot Tubs. No pools or hot tubs shall be permitted on any Lot.
Section 6.29. PIaV Equipment. No children's play equipment such as playhouses,
sandboxes, swing and slide sets, and trampolines, shall be permitted on any Lot.
Section 6.30. Basketball Goals. No basketball goals, hoops, or backboards shall be
permitted on any Lot.
Section 6.31. Business Use. No garage sale, moving sale, rummage sale or similar
activity and no trade or business may be conducted in or from any Lot, except that an Owner or
occupant resident on a Lot may conduct business activities within a Dwelling Unit so long as:
(a) the existence or operation of the business activity is not apparent or detectable by sight, sound
or smell from outside the Dwelling Unit; (b) no sign or display is erected that would indicate
from the exterior that the Dwelling Unit is being utilized in part for any purpose other than that
of a residence; (c) no commodity is sold upon the premises; (d) no person is employed other than
a member of the immediate family residing in the Dwelling Unit; (e) no manufacture or
assembly operations are conducted; (f) the business activity conforms to al] zoning requirements
for the Property; (g) the business activity does not involve persons coming onto the Property
who do not reside in the Property or door-to-door solicitation of residents of the Property; and
(h) the business activity is consistent with the residential character of the Property and does not
constitute a nuisance, or a hazardous or offensive use, or threaten the security or safety of other
residents of the Property, as may be determined in the sole discretion of the Board of Directors.
The terms "business" and "trade", as used in this provision, shall be construed to have their
ordinary, generally accepted meanings, and shall include, without limitation, any occupation,
work or activity undertaken on an ongoing basis which involves the provision of goods or
services to persons other than the provider's family and for which the provider receives a fee,
compensation, or other form of consideration, regardless of whether: (i) such activity is engaged
in full or part-time; (ii) such activity is intended to or does generate a profit; or (iii) a license is
required therefor. Notwithstanding the above, the leasing of a Lot or Dwelling Unit shall not be
considered a trade or business within the meaning of this Section 6.31. This Section 6.31 shall
not apply to any activity conducted by Declarant or its affiliates or a builder approved by
Declarant with respect to their development and sale of the Property or their use of any Dwelling
Units which Declarant or such builder owns within the Property for such activities.
Section 6.32. Landscaping of Common Areas. No Owner shall be allowed to plant
trees, landscape or do any gardening in any of the Common Areas, except with prior, express
written permission from the Board of Directors. All landscaping shall comply with the terms and
conditions of the Statement of Covenants.
Section 6.33. Declarant's Use. Notwithstanding anything to the contrary contained
herein or in the Articles or Bylaws, Declarant shall have, until the Authority Transfer Date, the
right to use and maintain any Lots and Dwelling Units owned by Declarant and other portions of
the Property (other than individual Dwelling Units and Lots owned by Persons other than
Declarant), as Declarant may deem advisable or necessary in its sole discretion to aid in the sale
of Lots and the construction of Dwelling Units, or for the conducting of any business or activity
attendant thereto, or for the construction and maintenance of Common Areas, including, but not
limited to, model Dwelling Units, storage areas, construction yards, signs, construction offices,
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INDY 1115670v4
sales offices, management offices and business offices. Declarant shall have the right to relocate
any or all of the same from time to time as it desires. At no time shall any of such facilities so
used or maintained by Declarant be or become part of the Common Areas, unless so designated
by Declarant, and Declarant shall have the right to remove the same from the Property at any
time.
Section 6.34. Non-applicability to Association. Notwithstanding anything to the
contrary contained herein, the covenants and restrictions set forth herein shall not apply to or be
binding upon the Association in its ownership, management, administration, operation,
maintenance, repair, replacement and upkeep of the Common Areas to the extent the application
thereof could or might hinder, delay or otherwise adversely affect the Association in the
performance of its duties, obligations and responsibilities as to the Common Areas.
Section 6.35. Additional Rules and Regulations. The Association shall have the
authority to adopt such rules and regulations regarding this Article VI as it may from time to
time consider necessary or appropriate.
ARTICLE VII
ARCHITECTURAL REVIEW BOARD
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 Development Period, the
Architectural Review Board shall consist solely of Declarant. Upon the expiration of the
Development Period, the number of members of the Architectural Review Board shall
automatically be increased to equal the number of members on the Board of Directors, and the
individuals who are members of the Board of Directors shall automatically be deemed to be the
members of the Architectural Review Board, without the necessity for further action. The term
of membership for each member of the Architectural Review Board will be coterminous with the
term of such individual's membership on the Board of Directors.
Section 7.2. Removal and Vacancies. After the expiration of the Development
Period, a member of the Architectural Review Board may only be removed in the event such
member is removed or otherwise ceases to be a member of the Board of Directors.
Appointments to fill vacancies in unexpired terms on the Architectural Review Board shall be
made in the same manner as members are appointed or elected to the Board of Directors.
Section 7.3. Officers. At the first meeting of the Architectural Review Board (after
the expiration of the Development Period) following the annual meeting of Members, the
Architectural Review Board shall elect from among themselves achairperson, avice-chairperson
and a secretary who shall perform the usual duties of their respective offices.
Section 7.4. Duties. 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
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in the Community. During the Development Period, the Architectural Review Board shall
regulate all initial construction, development and improvements on the Property and all
modifications and changes to existing improvements on the Property. In furtherance thereof, the
Architectural Review Board 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;
(c) adopt and publish architectural standards subject to the confirmation of the
Board of Directors;
(d) adopt procedures for the exercise of its duties; and
{e) maintain complete and accurate records of all actions taken by the
Architectural Review Boazd.
No request for approval by the Architectural Review Board 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 Association's right to require an
applicant to obtain any required approvals from any such Local Governing Authorities or to
otherwise comply with applicable laws, rules, regulations and local ordinances. No approval by
the Architectural Review Board shall be effective unless in writing and signed by all of the
members of the Architectural Review Board.
Section 7.5. Failure to Act. Failure of the Architectural Review Board 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 otherwise prevent the Architectural Review Board or the Board of Directors from
enforcing this Declazation at any later date. If approval has not been issued in writing within
thirty (30) days after submission of an application to the Board of Directors or the Architectural
Review Board, then any such request shall be deemed to be denied.
Section 7.6. Discretion. Declarant intends that the members of the Architectural
Review Board exercise discretion in the performance of their duties, and every Owner by the
purchase of a Lot shall be conclusively presumed to have consented to the exercise of discretion
by the members of the Architectural Review Board.
Section 7.7. Enforcement. Any exterior addition, change or alteration made without
a written application to, and prior written approval of, the Architectural Review Board, shall be
deemed to be in violation of this Declaration and the Board of Directors shall have the right to
require such exterior to be immediately restored to its original condition at the offending Owner's
sole cost and expense.
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Section 7.8. 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 member of the Board of Directors within twenty (20) days of the adverse
ruling.
Section 7.9. Liability of the Architectural Review Board, Declarant, Association.
Neither the Architectural Review Board, nor any agent thereof, nor Declarant, nor the
Association, shall be liable in any way for any costs, fees, damages, delays, or any charges or
liability whatsoever relating to the approval or disapproval of any plans submitted to it, nor shall
the Architectural Review Board, nor any agent thereof, nor Declarant, nor the Association, be
responsible in any way for any defects in any plans, specifications or other materials submitted to
any of them, or for any defects in any work done according thereto. Further, the Architectural
Review Board, Declarant, and the Association make no representations or warranties as to the
suitability or advisability of the design, engineering, method of construction involved, or
materials to be used. Each Owner should seek professional construction advice, engineering, and
inspections with respect to such Owner's Lot, at such Owner's sole cost and expense, prior to
proposing plans for approval by the Architectural Review Board or the Board of Directors.
Section 7.10. Inspection. The Architectural Review Board and Declarant may, but
shall not be obligated to, inspect work being performed on a Lot or Dwelling Unit to assure
compliance with the Restrictions, the restrictions contained in any plat of the Property and
applicable regulations. However, neither the Architectural Review Board, nor any member
thereof, nor Declarant, nor any agent or contractor employed or engaged by any of the foregoing,
shall be liable or responsible for defects or deficiencies in any work inspected or approved by
any of them, or on behalf of any of them. Further, no such inspection performed or approval
given by or on behalf of the Architectural Review Board or Declarant shall constitute a warranty
or guaranty of the work so inspected or approved.
ARTICLE VIII
EASEMENTS
Section 8.1. General Easement Riehts. Declarant hereby grants anon-exclusive
blanket easement over, across, through and under the Property 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 and all other emergency personnel and government, to enter upon
the Property, in the exercise of the functions provided for by this Declaration, Articles, Bylaws
and rules and regulations of the Association, and in the event of emergencies or in the
performance of governmental functions. Declarant further grants anon-exclusive blanket
easement over, across, through and under the Property to utility service providers for ingress,
egress, installation, replacement, repair and maintenance of underground utility and service lines
and systems, including, but not limited to, water, sewer, gas, telephones, electricity, television,
cable or communication lines and systems. By virtue of this easement it shall be expressly
permissible for Declarant or the utility service provider to install, maintain and repair facilities
and equipment on the Property if such utility service provider promptly restores the disturbed
area, if any, as nearly as is practicable to the condition in which it was found, provided, however,
that no sewers, electrical lines, water lines, or other utility service lines or facilities for such
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INDY 1115670x4
utilities may be installed or relocated except as proposed and approved by Declarant in advance
in writing. Should any utility providing a service to the Property request a specific easement by
separate recordable document, Declarant or the Association shall have the right to grant such
easement with respect to the Property without conflicting with the terms hereof. This blanket
easement shall in no way affect any other recorded easements on the Property, shall be limited to
improvements as originally constructed, and shall not cover any portion of a Lot upon which a
Dwelling Unit has been constructed.
Section 8.2. Limitation on General Easement Rights. The rights accompanying the
easements provided for in Section 8.1 of this Article VIII shall, except in the event of an
emergency, be exercised only during reasonable daylight hours and then, whenever practicable,
only after advance notice to any Owner or tenant directly affected.
Section 8.3. Plat Easements. In addition to such easements as are or may hereafter
be created elsewhere in this Declaration or in a Supplemental Declaration, and as may have been
or may hereafter be created by Declarant pursuant to written instruments recorded in the
Recorder's Office, all Lots are or shall be subject to drainage easements, sewer easements, other
utility easements and Common Area access easements, which easements may be granted by
Declarant (prior to the Authority Transfer Date) or the Association (from and after the Authority
Transfer Date), as applicable, which grants may be made separately or in any combination
thereof, as shown on that certain Plat prepared by dated
and recorded on in the Recorder's Office as Instrument Number
("Plat"), and which grants shall benefit Declarant, Owners, the
Association, the Architectural Review Board, and public utility companies or governmental
agencies, as follows:
(a) Drainage Easements (designated as "DE" on the Plat) (each, a "Drainage
Easement") are hereby granted for the mutual use and benefit of Declarant and the
Owners and are intended to provide paths and courses for area and local storm drainage,
either overland or in adequate underground conduit, to serve the. needs of the Community
and adjoining ground and/or public drainage systems. Under no circumstance shall said
easements be blocked in any manner by the construction or reconstruction of any
improvement, nor shall any grading restrict, in any manner, the waterflow. The drainage
easements and facilities are subject to construction or reconstruction to any extent
necessary to obtain adequate drainage at any time by any governmental authority having
jurisdiction over drainage, or by Declarant, the Association or the Architectural Review
Board; provided, however, that Declarant, the Association and the Architectural Review
Board shall have no duty to undertake any such construction or reconstruction. The
Owner of each Lot, by acceptance of a deed thereto, consents to the temporary storage
(detention) of storm water within the Drainage Easement on such Owner's Lot.
(b) Sewer Easements (designated as "SE" on the Plat) may be granted for the
use and benefit of the local governmental agency or public utility company having
jurisdiction over any storm and sanitary waste disposal system designed to serve the
Community, for the purpose of installation and maintenance of sewers that are a part of
said system.
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INDY 1 115670v4
(c) Access Easements (designated as "AE" on the Plat) may be granted for
the benefit of Declarant, the Association and the Owners and each of their guests, tenants,
contractors, subcontractors, licensees, agents, or members of their families, for purposes
of ingress and egress to the Lots, and for purposes of ingress and egress to the Common
Areas.
(d) Other Utility Easements (designated as "UE" on the Plat) may be granted
for the benefit of Declarant, the Association and all public or municipal utility
companies, not including transportation companies, for the installation, maintenance and
repair of mains, ducts, poles, lines and wires, and other facilities related to the specific
utility.
(e) Landscape Easements (designated as "LE" on the Plat) may be granted
for the benefit of Declazant, the Architectural Review Board and the Association, for the
planting, installation, repair and maintenance of trees, shrubs and other landscaping,
wherever located on the Property.
All easements described in this Section 8.3 shall include the right of ingress and egress
for the exercise of the respective rights granted. No structure, including fences, shall be built on
any drainage, sewer or utility easement if such structure would (i) materially interfere with the
utilization of such easement for the purpose intended, (ii) violate any applicable legal
requirement, or (iii) violate the terms and conditions of any easement specifically granted to a
Person who is not an Owner by an instrument recorded in the Recorder's Office, except that
neither paved drives necessary to provide access to a Lot from a public street nor sidewalks
installed by or at the direction of Declazant (and replacements thereof) shall be deemed to be a
"structure" for the purpose of the foregoing restriction.
Section 8.4. Encroachments. If any improvement on a Lot or the Common Area now
or hereafter encroaches on any other Lot or Common Area, by reason of (a) the original
construction thereof by Declazant or its assigns, which shall include, but not be limited to, any
party wall or drive which encroaches over a Lot's boundazy line and any drainage of stonnwater
from roofs and gutters, (b) deviations within normal construction tolerances in the maintenance,
repair, replacement or reconstruction of any improvement, or (c) the settling or shifting of any
land or improvement, an easement is hereby granted over the encroached-upon portion of such
Lot or Common Area in favor of the Owner of the encroaching improvements, solely to the
extent of such encroachment and solely for the period of time the encroachment exists (including
replacements thereof), for the limited purposes of use, repair, replacement and maintenance of
the encroaching improvement.
Section 8.5. Inaress/Eeress Easement. Declarant, its agents and employees, shall
have a right of ingress and egress over the Common Area, and any roadways and drives within
the Community as required for construction of improvements and development of the Property,
and otherwise as Declarant deems to be necessary or for access, ingress and egress to and from
any Dwelling Unit.
Section 8.6. Reservation of Ri>?ht to Grant Future Easements. Declarant reserves
the right to (a) grant non-exclusive easements over any Lot or Common Area for the purposes of
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INDY 1115670v4
(i) installing, repairing and/or 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 (ii) obtaining the
release of any bonds posted with a municipality, governmental agency or regulatory agency, (b)
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, and (c) in its sole
discretion, grant non-exclusive easements over, under, across or through the Property in favor of
owners of adjoining real property, and their tenants, successors and assigns, for purposes of
providing access and utilities benefiting such adjoining real property.
Section 8.7. Bonds and/or Dedication Requirements. Declarant reserves the right to
grant and reserve easements or to vacate or terminate easements across all Lots or Common Area
as may be required by any govemmental agency or authority or utility in connection with the
release of improvement bonds or the dedication of public streets for maintenance by
governmental agencies.
Section 8.8. Easements for Corrective Work. Declarant reserves anon-exclusive
easement over, across, under, through and above all Lots and the Common Area for the purposes
of correcting drainage, regrading, maintenance, landscaping, mowing and erecting street
intersection signs, directional signs, temporary promotional signs, entrance features, lights and
wall features, and for the purpose of executing any of the powers, rights, or duties granted to or
imposed upon the Association in this Declaration or any Supplemental Declaration.
Section 8.9. Reciprocal Cross-Easements for Adjoining Dwelling Units. Subject to
Section 10.1 below, there is hereby created in favor of the Owner of each Lot a reciprocal cross-
easement and right of entry permitting the Owners of all adjoining Dwelling Units to repair and
maintain all encroaching party walls, roofs, roof overhangs, eaves, downspouts, gutters, and
splash blocks at reasonable times; provided, however, that the Owner exercising this right of
entry upon the adjoining Owner's Lot shall be solely responsible for preserving and restoring the
adjoining Owner's Lot to the same condition such adjoining Lot was in prior to the exercise of
the right of entry.
ARTICLE IX
PARHING
No Owner, tenant, or any other Person shall park any type of vehicle in any Common
Area. Notwithstanding the foregoing, visitors, guests and invitees shall be permitted to park in
those portions of the Common Area designated by Declarant or the Association as visitor parking
areas; provided, however, that such parking shall be permitted only on a temporary and
intermittent basis and no such parking shall be permitted in any portion of the Common Area
which has not been designated as a visitor parking area. Temporary parking on or within any
public right-of--way within or adjacent to the Property is prohibited except to the extent expressly
permitted by Local Governing Authorities, and shall be subject to any restrictions or limitations
relating thereto, including, without limitation, fees assessed by any Local Governing Authorities.
The Board of Directors may promulgate such additional rules and regulations as it deems
appropriate to regulate the use of any Common Areas for parking purposes, which rules and
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INDY 1115G70v4
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.
ARTICLE X
PARTY WALLS
Section 10.1. General Rules of Law to Apply. Each wall built as part of the original
construction of a Dwelling Unit and situated upon the dividing line between two Lots shall
constitute a party wall, and, to the extent not inconsistent with the provisions of this Article X,
the general rules of law regarding party walls and liability of Owners for property damage due to
negligence or willful acts or omissions in connection with party walls shall apply thereto.
Section 10.2. Sharing of Repair and Maintenance and Destruction by Fire or
Other Casualty. If any party wall is damaged or destroyed by (i) fire or other casualty, or (ii)
ordinary wear and tear and deterioration from lapse of time, or (iii) or by some cause other than
the act of one of the adjoining Owners, its agents, family, household or guests, then both
adjoining Owners shall proceed forthwith to rebuild or repair the structural components of such
party 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 human 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 such party wall, unless a longer period of time is approved in writing by
the Association. If a party wall is in a condition that is of such a nature that it has or will (if left
uncorrected) result in further damage or destruction of such party wall, the reconstruction and/or
repairs shall 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
a good and workmanlike manner, in compliance with all requirements of Local Governing
Authorities and otherwise in compliance with all applicable laws, ordinances, rules and
regulations, to the same or better condition as existed prior to such condition, damage or
destruction.
Section 10.3. Repairs for Damage 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 use
and enjoyment of the party wall, then the Owner(s) of the Dwelling Unit(s) 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 Changes. In addition to meeting the other requirements of these
Restrictions 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 involves the
alteration of any party wall shall first obtain the written consent of the adjoining Owner, whose
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trrpv n tss~ova
consent shall not be unreasonably withheld, conditioned or delayed. 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, return receipt requested, such
consent of the adjoining Owner shall be deemed to have been given.
Section 10.5. Rieht to Contribution Runs with the Land, The right of any Owner to
contribution from any other Owner under this Article X 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 or among 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 and whose
decision shall be final.
ARTICLE XI
POWERS AND DUTIES OF THE ASSOCIATION
Section 11.1. Discretionary Powers and Duties. The Association shall have the
following powers and duties which maybe 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 restriction in its own name. The foregoing rights of enforcement shall not
prevent (i) changes, releases or modifications of the restrictions 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; or (ii) the assignment of the foregoing
rights by the proper parties wherever and whenever such rights of assignment exist.
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 either party believes such 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; 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 build facilities upon the Common Area;
(c) to use the Common 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;
(d) to regularly mow, re-sow, re-seed or re-sod lawn areas and fertilize lawn
areas at least three (3) times each year within the Common Areas and on each Lot and to
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INDY 1 I15670v4
operate and maintain in-ground irrigation sprinkler systems in the Common Areas and in
the landscaped areas of each Lot;
(e) to care for, spray, trim, protect, plant, replant and prune trees, shrubs and
other landscaping, maintenance and upkeep of the 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 any street lights located in
the Common Areas;
(f) to arrange for plowing and/or removal of snow and ice on all Common
Areas, streets and public walks within the Community;
(g) to exercise all rights, responsibilities and control over all easements which
the Association may from time to time acquire, including, but not limited to, those
easements specifically reserved to the Association in Article VIII above;
(h) to create, grant and convey easements and licenses upon, across, over and
under all Common Areas, including but not limited to easements for the installation,
replacement, repair and maintenance of utility lines serving the Property;
(i) subject to the limitations set forth in Section 113 hereof, 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;
(j) to retain, as an independent contractor or employee, a manager of the
Association and such other employees or independent contractors as the Board of
Directors deems necessary, and to prescribe the duties of employees and scope of
services of independent contractors;
(k) to enter upon any Lot to perform emergency repairs or to do other work
reasonably necessary for the proper maintenance or protection of the Property;
(1) to enter (or have the Association's agents or employees enter) upon 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 if such 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 of its intent at least fourteen (14) days prior to such
entry;
(m) to re-subdivide and/or adjust the boundary lines of the Common Area, to
the extent such re-subdivision or adjustment does not contravene the requirements of
zoning and other ordinances applicable to the Property;
INDY 1115670v4
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(n) 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 power 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;
(o) to remove a member of the Board of Directors and declare such member's
office to be vacant in the event such member shall be absent from three (3) consecutive
regular meetings of the Board of Directors;
(p) to arrange for the collection of trash and recyclable items on a weekly
basis from approved locations and from appropriate receptacles in the manner
contemplated in Section 6.10 above.
Section 11.2. Mandatory Powers and Duties. The Association shall exercise the
Following powers, rights and duties:
(a) to unconditionally accept title to the Common Area upon the transfer
thereof by Declarant to the Association as provided hereunder, and to hold and administer
the Common Area for the benefit and enjoyment of the Owners and occupants of Lots,
and to cause the Common Area and facilities to be maintained in accordance with the
standards adopted by the Boazd of Directors;
(b) to transfer part of the Common Area to or at the direction of 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
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 and easements of which
the Association is a beneficiary, if available at reasonable cost. Such insurance policy
shall contain a severability of 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
kinds and amounts commonly obtained with regard to projects similar in construction,
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INDY 1115670v4
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, including
death, and property damage for any single occurrence;
(e) to provide for the maintenance of any and all (i) improvements, Structures
or facilities which may exist or be erected from time to time on the Common Area;
(ii) easement areas of which the Association is the beneficiary and for which it has the
maintenance responsibility; and (iii) facilities, including, but not limited to, fences and
signs, authorized by the Association and erected on any easements granted to the
Association;
(f) to pay all proper bills, taxes, charges and fees on a timely basis;
(g) to maintain its corporate status; and
(h) to maintain all private streets, open space and landscaping within the
Common Area.
Section 11.3. Limitation on Association Action. The Association shall hold a duly
authorized, duly noticed special meeting of the Members of the Association prior to commencing
or prosecuting any judicial or administrative proceeding, and no judicial or administrative
proceeding shall be commenced or prosecuted by the Association except upon the affirmative
vote of at least seventy-five percent (75%) of the votes cast at said special meeting by Members
entitled to vote authorizing the commencement and prosecution of the proposed action. This
Section 11.3 shall not apply to (a) actions brought by the Association to enforce the provisions of
this Declaration, the Bylaws, or rules and regulations adopted by the Board of Directors
(including, without limitation, any action to recover Regular Assessments or Special
Assessments or other charges or fees or to foreclose a lien for such items) or (b) counterclaims
brought by the Association in connection with proceedings instituted against it.
Section 11.4. Board of Directors 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 of
Directors 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 Bylaws.
Section 11.5. Comaensation. 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 11.6. Non-liability of Directors, Officers and Board Members. The
directors and officers of the Association and members of the Architectural Review Board, and all
committees thereof, 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 or members ofthe Architectural Review Board, or any committee thereof, except for
their own individual willful misconduct or gross negligence. It is intended that the directors and
officers of the Association and members of the Architectural Review Board, and all committees
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INDY ll 15670v4
thereof, shall have no personal liability with respect to any contract made by them in good faith
on behalf of the Association, and the Association shall indemnify and hold harmless each of the
directors, officers, Architectural Review Board members, or committee members against any and
all liability to any person, firm or corporation arising out of contracts made in good faith on
behalf of the Association.
Section 11.7. Indemnity of Directors and Officers and Members of the
Architectural Review Board. Except with respect to matters (i) as to which it is adjudged in
any civil action, suit, or proceeding that such person is liable for gross negligence or willful
misconduct in the performance of his or her duties, or (ii) to which it is adjudged in any criminal
action, suit or proceeding that such person had reasonable cause to believe that such person's
conduct was unlawful or that person had no reasonable cause to believe that such person's
conduct was lawful, 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, or subject to any claim, by reason
of the fact that he or she is or was a director or officer of the Association or member of the Board
of Directors of the Architectural Review Board, or any committee thereof, from and against
(1) all liability, including, without limitation, the reasonable cost of settlement of, or the amount
of any judgment, fine, or penalty rendered or assessed in any such claim, action, suit, or
proceeding; and (2) all costs and expenses, including attorneys' fees, actually and reasonably
incurred by the Indemnitee in connection with the defense of such claim, action, suit or
proceeding, or in connection with any appeal thereof. In making such findings and
notwithstanding the adjudication in any action, suit or proceeding against an Indemnitee, no
director or officer of the Association, or member of the Board of Directors or the Architectural
Review Board, or any committee thereof, 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 or officer of the Association, or member of the Architectural Review
Board, or any committee thereof, 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, officer or member of the Association, of any accountant, attorney or other person, firm
or corporation employed by the Association to render advice or service, unless such director,
officer or member had actual knowledge of the falsity or incorrectness thereof; nor shall a
director, officer or member 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 Association,
the Board of Directors or the Architectural Review Board, or any committee thereof. 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 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 Article XI.
ARTICLE XII
RIGHTS OF MORTGAGEES
Unless a right is waived by the appropriate Federal Agency, all Mortgagees shall have the
following rights:
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INDY 1115670v4
Section 12.1. Veterans Administration. If any of the Lots are security for a loan
guaranteed by the Veteran's Administration (the "VA") and if there is a Class B Member:
(a) Declarant must provide to the VA a copy of all amendments to the
Declaration. The Association may not make any Material Amendment or take any
Extraordinary Action (as such terms are defined in Article XIII) without the approval of
the VA.
(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 of the Association documents;
(iii) notice of any Extraordinary Action of the Association;
(iv) notice of any property loss, condemnation 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;
(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
Association which default remains uncured for sixty (60) consecutive days;
(vii) notice of any proposal 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 the Federal Housing Authority (the "FHA") and if there is a Class B Member, the
following actions will require the prior approval of the FHA:
(a) annexation of additional properties, except the land described in
Article XIII below;
(b) mergers, consolidations and dissolution of the Association;
(c) mortgaging or conveyance of the Common Area; and
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INDY ll 15670v4
(d) amendment of this Declaration.
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 (a/k/a "Freddie Mac"), the following requirements
shall apply to all Lots and Dwelling Units in the Community:
(a) Unless at least two-thirds (2/3) of the first Mortgagees (based on one vote
for each first mortgage owned) or two-thirds (2/3) 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 require the consent described in subsection (a) above;
(ii) change the method of determining the obligations, assessments,
dues, or other charges that maybe 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 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 property owned by the Association 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; or
(v) use hazard insurance proceeds for losses to the Common Area or
other property owned by the Association 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 default 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 for such Common Area. The Mortgagee making
such payments shall be owed immediate reimbursement therefor from the Association.
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INDY 1115670x4
(d) The assessments imposed by the Association shall include 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/k/a "Fannie Mae"), the
following requirements shall apply to all Lots and Dwelling Units in the Community:
(a) A Mortgagee shall be given written notification from the Association of
the following:
(i) any condemnation 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 default is not cured within
sixty (60) days after the Owner's receipt of notice of the default;
(iii) any lapse, cancellation or material modification of any insurance
policy or fidelity bond maintained by the Association; or
(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 Declazant to annex 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 Association
shall not add or amend any material provision of this 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;
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INDY 1115670v4
(v) reallocation of interests in the Common Area or rights to its use,
except as provided in Article III and Article IV herein;
(vi) converting Lots 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);
(viii) 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;
(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 condemnation or destruction
of the Common Area or other property owned by the Association, to the extent
practicable, condemnation or insurance proceeds shall be used to repair or replace the
condemned or destroyed property.
(b) Books and Records. A Mortgagee shall have the right to examine and
copy at its expense the books and records of the Association during normal business
hours and upon reasonable notice to the Association.
(c) Notice. As set forth in this Article XII, 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 Bylaws or the Articles; and (c) if professional management has
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INDY ] 115670v4
been required by a Mortgagee, the decision of the Association to terminate such
professional management and assume self-management.
(d) Excess Proceeds. Should there be excess insurance or condemnation
proceeds after the renovation, repair or reconstruction called for herein, such excess
proceeds maybe distributed equally to the Owners, apportioned equally among the Lots;
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.
(e) Audited Financial Statement. The Association must provide an audited
financial statement for the preceding fiscal year to a Mortgagee upon its written request.
(f) Termination. Eligible Mortgagees representing at least sixty-seven
percent (67%) of the votes of the mortgaged Lots must consent to the termination of the
legal status of the Association for reasons other than substantial destruction or
condemnation of the Property.
(g) Damage 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 the Board of Directors and a majority
of the Mortgagees.
ARTICLE XIII
GENERAL PROVISIONS
Section 13.1. Enforcement. The Association or any Owner 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 herein or therein. Failure
by the Association or by any Owner to enforce any right, provision, covenant or condition which
maybe granted by this Declazation 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
any one or more thereof shall not be deemed to constitute an election of remedies nor shall it
preclude the parry exercising the same from exercising such privileges as maybe granted to such
party by this Declaration or at law or in equity.
Section 13.2. Severability; Headings; Conflicts. Invalidation of any one of the
provisions of this Declazation 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 aze not intended to limit or expand the covenants, rights or obligations expressed
therein. In the case of any conflict between the Articles and this Declaration, this Declaration
shall control; in the case of any conflict between this Declaration and the Bylaws, this
Declaration shall control.
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INDY 1115G70v4
Section 13.3. Duration. The covenants and restrictions of this Declaration shall run
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 herein, for a term of twenty (20)
years from the date this Declaration is recorded, after which time the covenants and restrictions
of this Declaration shall be automatically extended for successive periods of twenty (20) years
each, unless terminated by a written and recorded instrument approved in advance by the
affirmative and unanimous vote of all Members of the Association and their respective
Mortgagees.
Section 13.4. Material Amendment/Extraordinary Action.
(a) Approval Requirements. In accordance with Federal Agencies'
requirements, material amendments ("Material Amendments") or extraordinary actions
("Extraordinary Actions"), as each such term is defined below, 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 Bylaws, 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 Owners;
(iii) reserves for maintenance, repair or replacement of Common Area
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;
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INDY 11 I5670v4
(x) voting rights;
(xi) restrictions affecting leasing or sale of a Lot; or
(xii) any provision which is for the express benefit of Mortgagees.
(c) Extraordinarv Action. Alternatively, an Extraordinary Action includes:
(i) merging or consolidating the Association (other than with another
non-profit entity formed for purposes similaz 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 ofthe 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 transfemng the Common Area except for (i) granting
easements; (ii) dedicating Common Area as required by a public authority;
(iii) re-subdividing or adjusting the boundazy lines of the Common Area; or
(iv) transferring Common Area pursuant to a merger or consolidation with a
non-profit entity formed for purposes similar to the Association;
(v) using insurance proceeds for purposes other than reconstruction or
repair of the insured improvements; or
(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 Bylaws.
(e) Material Amendment and/or Extraordinarv Actions Amendments.
The following Material Amendments and Extraordinazy 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) tennination of this Declaration;
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(ii) dissolution of the Association, except pursuant to a consolidation
or merger; and
(iii) conveyance of all Common Areas.
(f) VA Amendments. If the VA 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 VA.
Section 13.5. Amendment. Amendments to this Declazation 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
duly 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 to this Declaration 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,
Declarant may unilaterally amend this Declaration for any reason prior to the first conveyance of
a Lot to an Owner other than Declarant, and after such first conveyance, 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. Declarant hereby expressly reserves unto itself (so long as these
Restrictions are in effect), the unqualified right to waive or alter from time to time such of the
herein contained restrictions as it may deem best, as to any one or more of the Lots, which
waiver or alteration shall be evidenced by the mutual written consent of 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 shall be duly acknowledged and recorded in the Recorder's Office.
Section 13.8. Annexation of Additional Property. Notwithstanding anything
contained in this Declaration to the contrary, Declazant may annex any Additional Property
without the consent of the Association. The Association may annex any Additional Property and
provide for maintenance, preservation and architectural control of Lots and Common Area
within such Additional Property, and may add to its membership under the provisions of
Article II herein, with the written consent of more than fifty percent (50%) of each class of
Members. Any future improvements on the Additional Property must be consistent with or
better than the initial improvements on the Property in terms of quality, design and construction
and comparable in style, size and cost.
Section 13.9. 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 limitation, any party walls. Each and every Owner shall, in addition,
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also procure endorsements naming the Association as an additional insured under such insurance
policies and requiring each such insurer to provide (i) immediate written notice to the
Association of any cancellation of such policy, and (ii) at least thirty (30) days' written notice to
the Association prior to any termination or material modification of such policy. 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 similaz 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
and endorsement, in form and content acceptable to the Association, evidencing the insurance
coverage described herein. Each such Owner shall, prior to the expiration of the term of any
such insurance policy, procure and deliver to the Association a renewal or replacement policy in
form and content acceptable to the Association, including an endorsement naming the
Association as an additional insured. 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 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 13.10. Withdrawable Real Estate.
(a) Prior to the date which is five (5) years after the date of the recordation of
this Declaration, Declarant shall have the unilateral right, without the consent of the Class
A Members or any Mortgagee, to execute and record an amendment to this Declaration
withdrawing any portion of the Property upon which Dwelling Units have not been
constructed.
(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 13.11. ManaEement Contracts. The Board of Directors shall have the right to
enter into professional management contracts for the management of the Property, in accordance
with the Articles and Bylaws. Notwithstanding anything contained herein to the contrary,
Buckingham Management, L.L.C., or its affiliate (collectively, "Buckingham Management"), is
hereby designated as exclusive property manager with respect to the Property. The Association
shall enter into an exclusive property management agreement with Buckingham Management
which agreement shall, in part, provide that Buckingham Management shall not be removed for
any reason other than the following: (i) in the event that Providence Housing Partners, LLC, or
its affiliate, ceases to own or control the real property located adjacent south of and to the
Property which contains an apartment community known as "Providence at Old Meridian", (ii)
upon thirty (30) days' written notice of termination by Buckingham Management, or (iii) for
cause.
Section 13.12. Dissolution. Subject to the restrictions and conditions contained in
Article XII and this Article XIiI, 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
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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 Indiana 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".
Section 13.13. Ne>?liaence. Each Owner shall be liable for the expense of any
maintenance, repair or replacement rendered necessary by his negligence or by that of any
member of his family or his or their guests, employees, agents, invitees or lessees, to the extent
that such expense is not covered by the proceeds of insurance carried by the Association. An
Owner shall pay the amount of any increase in insurance premiums occasioned by violation of
any of the Restrictions by such Owner, any member of his family or their respective guests,
employees, agents, invitees or tenants.
Section 13.14. Acceptance and Ratification. All present and future Owners,
Mortgagees, tenants and occupants of the Lots and Dwelling Units, and other Persons claiming
by, through or under them, shall be subject to and shall comply with the provisions of this
Declaration, the Articles, the By-Laws and the rules, regulations and guidelines as adopted by
the Board of Directors and (to the extent of its jurisdiction) the Architectural Review Board, or
any committee thereof, as each may be amended or supplemented from time to time. The
acceptance of a deed of conveyance or the act of occupancy of any Lot or Dwelling Unit shall
constitute an agreement that the provisions of this Declaration, the Articles, the Bylaws and
roles, regulations and guidelines, as each may be amended or supplemented from time to time,
are accepted and ratified by such Owner, tenant or occupant, and all such provisions shall be
covenants running with the land and shall bind any Person having at any time any interest or
estate in a Lot or Dwelling Unit or the Property, all as though such provisions were recited and
stipulated at length in each and every deed, conveyance, mortgage or lease thereof. All Persons
who may own, occupy, use, enjoy or control a Lot or Dwelling Unit or any part of the Property
in any manner shall be subject to this and guidelines applicable thereto as each maybe amended
or supplemented from time to time.
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WITNESS the following signatures:
DECLARANT:
PROVIDENCE TOWNHOME PARTNERS, LLC,
an Indiana limited liability company
By:
Bradley B. Chambers, Manager and sole
member
MDY 1115670x4
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STATE OF INDIANA )
)SS:
COUNTY OF MARION )
Before me, a Notary Public in and for said County and State, personally appeared
Bradley B. Chambers, known to me to be the Manager and sole member of Providence
Townhome Partners, LLC, an Indiana limited liability company, who acknowledged the
execution of the foregoing Declaration of Covenants, Conditions and Restrictions for the
Townhomes at Providence at Old Meridian, as such Manager and sole member acting for and on
behalf of said limited liability company, and who, having been duly sworn, stated that any
representations therein contained are true.
Witness my hand and Notarial Seal this day of
(signature)
My Commission Expires:
Printed Name
My County of Residence:
2003.
Notary Public
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INDY l I1S670v4
CONSENT
National City Bank of Indiana, the holder of that certain Mortgage, Security Agreement
and Absolute Assignment of Rents and Leases dated as of July 5, 2000, and recorded on July 10,
2000 as Instrument No. 2000-33314 in the Recorder's Office, as amended by that certain First
Amendment recorded on November 9, 2001 as Instrument No. 2001-72541- in the Recorder's
Office (collectively, the "Mortgage"), hereby consents to the aforementioned Declaration. Upon
any foreclosure or other action under the above-referenced Mortgage, such foreclosure or other
action will be taken subject to the terms and conditions of the Declaration, as if such Declaration
were of record prior to the recordation of the Mortgage, as applicable .
NATIONAL CITY BANK OF INDIANA
By:
Printed
Title:
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INDY 1115670v4
STATE OF INDIANA )
SS:
COUNTY OF )
Before me, a Notary Public in and for said County and State, personally appeared
the of National City Bank of Indiana,
and acknowledged the execution of the foregoing instrument as such officer acting for and on
behalf of said entity.
Witness my hand and Notarial Seal this day of , 2003.
Signature
PrintedNotary Public
My Commission Expires:
County of Residence:
This instrument was prepared by and after recording return to:
Angela E. Tempel
ICE MILLER
One American Square
Box 82001
Indianapolis, IN 46282-0002
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EXHIBIT A
Legal Description of Property
Part of the Southeast Quarter of Section 26, Township 18 North, Range 3 East, Second Principal
Meridian in Hamilton County, Indiana more particularly described as follows:
Commencing at the Southeast corner of the Southeast Quarter of Section 23 and running
N00°47'16"E on and along in the East line of said Southeast Quarter 378.09 feet to the POINT
OF BEGINNING of this description; thence departing said East line and running S89°28'27"W
158.86 feet; thence N00°31'33"W 39.81 feet; thence S89°28'27"W 173.04 feet; thence
S36°04'38"W 230.93 feet; thence N53°55'22"W 61.00 feet; thence N36°04'38"E 63.50 feet;
thence N53°55'26"W 212.53 feet; thence S36°04'42"W 17.99 feet; thence N53°55'22"W 171.01
feet; thence S36°04'38"W 52.02 feet; thence N53°55'26"W 240.15 feet; thence S36°04'42"W
55.98 feet; thence N53°55'22"W 56.50 feet; thence N36°04'38"E 288.72 feet to the North line of
Lot 13 in R.A. Franke's Addition as per plat thereof recorded among the records of Hamilton
County, Indiana as Deed Record 128, Page 197; thence N89°43'22"E along the North line of said
Lot 13 a distance of 278.12 feet to the Northeast corner thereof; thence S00°22'20"W along the
East line of said Lot 13 a distance of 196.47 feet to the North line of the South Half of the
Southeast Quarter of the Southeast Quarter of said Section 26; thence N89°28'27"E along the
North line of the South Half of said Quarter-Quarter Section a distance of 661.11 feet to the
Northeast Quarter thereof; thence S00°47'16"W along the East line of the South Half of said
Quarter-Quarter Section 280.40 feet to the POINT OF BEGINNING, containing 7.062 acres,
more or less.
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