HomeMy WebLinkAboutDeclaration of Condominium Ownership RECORDED1208555.2
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DECLARATION OF CONDOMINIUM OWNERSHIP
FOR
PRUDENTIA CONDOMINIUMS
DULY ENTERED FOR TAXATION
Subject to final acceptance for transfer
a day of MAY
DRAY) CAVAdak Auditor of HamiltonCaunIy
P el
2010022582 DECLARATIO $106.00
05/24/2010 08:52:25A 48 PGS
Jennifer J Hayden
HAMILTON County Recorder IN
Recorded as Presented
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TABLE OF CONTENTS
1. Definitions 1
2. Declaration. 4
3. Description of the Building 4
4. Legal Description and Percentage Interest. 4
5. Description of Condominium Units 5
6. Common Areas and Facilities 5
7. Areas Pertaining to a Specific Condominium Unit 6
8. Ownership of Common Areas and Percentage Interest. 6
9. Encroachments and Easements for Common Areas. 7
10. Real Estate Taxes. 7
11. Utilities 7
12. Association of Owners 7
13. Maintenance, Repairs and Replacements. 7
14. Alterations, Additions and Improvements 8
15. Insurance. 8
16. Casualty and Restoration 11
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17. Covenants and Restrictions 14
18. Amendment of Declaration 14
19. Acceptance and Ratification 16
20. Negligence 17
21. Grantin of Easements. 17
22. Reservation of Rights to the Use of the Common Areas 17
23. Easement for Utilities and Public and Quasi Public Vehicles. 17
24. Costs and Attorneys' Fees. 18
25. Waiver 18
26. Severability Clause. 18
27. Enforcement 18
28. Number, Gender and Headings. 18
29. Floor Plans. 18
EXHIBITS
Exhibit A Real Estatc Legal Description
Exhibit B Floor Plans and Plat
Exhibit C Code of By -Laws
Exhibit D The Prudentia Condominiums Percentage Interest
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DECLARATION OF
CONDOMINIUM OWNERSHIP
PRUDENTIA CONDOMINIUMS
This Declaration of Condominium Ownership for Prudentia Condominiums is made this
29` day of April, 2010, by Prudentia, LLC, an Indiana limited liability company (the
"Declarant
WITNESSETH:
A. Declarant is the sole owner of the fee simple title to certain real estate, located in
Hamilton County, State of Indiana, more particularly described in Exhibit A attached hereto and
made a part hereof (the "Real Estate
B. The Real Estate is located in the development commonly known as the Village of
WestClay, City of Carmel, Hamilton County, State of Indiana (the "Village of WestClay").
C. Declarant, by execution of this Declaration, hereby creates Prudentia
Condominiums upon the Real Estate, subject to the provisions of Ind. Code 32 -25 -1, et seq.,
the condominium statute of the State of Indiana under the terms and conditions of this
Declaration.
NOW, THEREFORE, for and in consideration of the foregoing recitals which are
incorporated in the following Declaration by this reference, Declarant hereby makes this
Declaration as follows:
1. Definitions. The following terms, as used in this Declaration, unless the context
clearly requires otherwise, shall mean the following:
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(a) "Act" means the condominium law of the State of Indiana, Indiana Code
§32 -25 -1 et. seq., as such Act may be amended. The Act is incorporated herein by
reference.
(b) "Articles" or "Articles of Incorporation" means the Articles of
Incorporation of the Corporation, as hereinafter defined. The Articles of Incorporation
are incorporated herein by reference.
(c) "Board of Directors" or "Board" means the governing body of the
Corporation being the initial Board of Directors referred to in the By -Laws or any
subsequent Board of Directors elected by the Members in accordance with the By -Laws
of the Corporation.
(d) "Building" means the structure on the Real Estate in which the
Condominium Units are located. The Building and Condominium Units are more
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particularly described and identified on the Plat and described in Exhibit B 1 through B
3 of this Declaration.
(e) "By- Laws" means the Code of By -Laws of the Corporation providing for
the administration and management of the Property and restrictions on its use, as required
by and in conformity with the Act. A copy of the By -Laws is attached to this Declaration
as Exhibit C and incorporated herein by reference.
(f)
Building.
(g)
"Commercial Unit" means the Condominium Unit on the first floor of the
"Common Areas" means the common areas and facilities appurtenant to
the Property as defined in paragraph 6 of this Declaration.
(h) "Common Expense" means expenses for administration of the
Corporation, and expenses for the upkeep, maintenance, repair and replacement of the
Common Area and the Limited Areas (to the extent provided herein), and all sums
lawfully assessed against the Members of the Corporation.
(1) "Condominium Unit" means each one of the units constituting The
Prudentia Condominiums, each individual living unit being more particularly described
and identified on the Plans and in paragraphs 4 and 5 of this Declaration, and each
additional living unit which may be submitted and subjected to the Act and this
Declaration by supplemental declarations as herein provided. "Condominium Unit"
includes the undivided interest in the Common Areas and Limited Areas appertaining to
such unit.
(t) "Co- owners" means the owners of all the Condominium Units.
(k) "Corporation" means Prudentia Owners Association, Inc., a nonprofit
corporation, its successors and assigns, and whose Members shall be the Owners of
Condominium Units, such Corporation being more particularly described in Paragraph 12
of this Declaration.
(1) "Declarant" means Prudentia, LLC, an Indiana limited liability company,
and any successors and assigns of it whom it designates in one or more written recorded
instruments, to have the rights of Declarant hereunder including, but not limited to, any
mortgagee acquiring title to any portion of the Real Estate pursuant to the exercise of
rights under, or foreclosure of, a mortgage executed by Declarant.
(On) "Limited Areas" means the limited common areas and facilities as defined
in paragraph 7 of this Declaration or those parts of the Common Areas limited to the use
of certain Condominium Units.
(n) "Member" means a member of the Corporation.
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Unit.
(o) "Mortgagee" means the holder of a first mortgage lien on a Condominium
(p) "Owner" means one or more persons, firms, corporations, partnerships,
associations, trust or other legal entities, or any combination thereof, owning the fee
simple title to a Condominium Unit.
(q) "Percentage Interest" means the percentage of undivided interest in the fee
simple title to the Common Areas and Limited Areas appertaining to each Condominium
Unit as specifically expressed in paragraphs 4 and 8 of this Declaration.
(r) "Percentage Vote" means that percentage of the total vote accruing to all
the Condominium Units which is appurtenant to each particular Condominium Unit and
accrues to the Owner thereof. The Percentage Vote to which each Owner shall be
entitled on any matter upon which the Owners are entitled to vote shall be the same
percentage as the Percentage Interest appurtenant to such Owner's Condominium Unit.
(s) "Plans" means the floor and building plans and elevations of the Building
and Condominium Units prepared by SBG Design, Inc., under date of February 9, 2009,
and the Plat of the Real Estate and the Building prepared by The Schneider Corporation,
certified by Brandon T. Burke, a registered engineer, dated January 16, 2009, as
described on Exhibit B 1 through B 3, all of which are incorporated herein by
reference and any supplemental plans that are prepared and filed in connection with the
Real Estate.
(t) "Property" means the Real Estate and appurtenant easements, the
Condominium Units, the Building, garages improvements and property of every kind and
nature whatsoever, real, personal and mixed, located upon the Real Estate and used in
connection with the operation, use and enjoyment of The Prudentia Condominiums, but
does not include the personal property of Owners.
(u) "Real Estate Taxes" means taxes, assessments or other charges of the State
of Indiana, any political subdivision, any special improvement district or any other taxing
or assessing authority assessed on each Condominium Unit.
(v) "Residential Unit" means the Condominium Unit on the second floor of
the Building.
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2. Declaration. Declarant hereby expressly declares that the Property shall be a
condominium project created in accordance with and subject to the provisions of the Act.
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Declarant expressly acknowledges and agrees that the Property is SUBJECT TO:
(a) certain covenants and restrictions in that certain "Genera] Warranty Deed"
from Brenwick TND Communities, LLC, an Indiana limited liability company to
Declarant dated June 24, 2009, recorded July 6, 2009, in the Office of the Hamilton
County Recorder as Instrument No. 2009040812 (the "Granting Deed
(b) certain covenants and restrictions in that certain "Declaration of Covenants
and Restrictions, The Village of WestClay," dated August 9, 1999, recorded August 9,
1999, in the Office of the Hamilton County Recorder as Instrument No. 199909946964,
as amended and supplemented from time -to -time thereafter (the "Village of WestClay
Declarations
(c) certain "Commitments Concerning the Use or Development of Real Estate
Made in Connection with a Rezoning," dated January 13, 1999, recorded May 13, 1999,
in the Office of the Hamilton County Recorder as Instrument No.9909928951;
(d) certain "Commitments Concerning the Use or Development of Real Estate
Made in Connection with a Rezoning," dated January 13, 1999, recorded May 13, 1999,
in the Office of the Hamilton County Recorder as Instrument No.9909928953;
(e) the restrictions and matters contained the "Village of WestClay, Section
3004 Village Center, Part 1, Secondary Plat part of Sec.28- T18N -R3 E, Hamilton County,
Indiana dated November 3, 1999, recorded November 5, 1999, in the Office of the
Hamilton County Recorder as Instrument No.199909965089 (the "Village of WestClay
Plat and
(f) and all other matters of record affecting the Village of WestClay and the
real estate, improvements, and appurtenances thereto.
3. Description of the Building. There will be one Building of no more than two (2)
stories in height, containing a total of two (2) Condominium Units as shown on the Plans. The
Building is identified on the Plans as the "Prudentia Building." As provided in the Granting
Deed, and during the "Restricted Period," as defined therein, (a) the maximum gross square
footage of commercial space in the Building shall not exceed 4, 308 square feet; and (b) no more
than one (1) dwelling unit shall be located on the Property.
4. Legal Description and Percentage Interest. Both Condominium Units are
identified on the Plans. The legal description for each Condominium Unit shall consist of the
Building address and Unit number as shown on the Plans. The Percentage Interest of each Owner
in the Common Areas and Limited Areas as hereinafter defined shall be that percentage interest
included in each Condominium Unit as set forth on Exhibit D attached hereto and made a part
hereof.
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(d) Commercial Unit. The Commercial Unit shall only be open for normal
business hours. The Owner(s), occupant(s), tenant, guests, invitees and contractors of the
Commercial Unit shall not interfere with the use an enjoyment of the Owner(s),
occupants, guests, invitees and contractors of the Residential Unit.
6. Common Areas and Facilities. Except those areas and facilities expressly
identified as part of a Condominium Unit, "Common Areas" means (1) the Real Estate, (2) the
foundations, columns, girders, beans, supports, main walls and exterior surfaces of roofs of the
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5. Description of Condominium Units.
(a) Appurtenances. Each Condominium Unit shall consist of all space within
the boundaries thereof, as hereinafter defined, and all portions of the Building situated
within such boundaries, including but not limited to all fixtures, facilities, utilities,
equipment, appliances, and structural components designed and intended solely and
exclusively for the enjoyment, use and benefit of the Condominium Unit wherein the
same are Iocated, or to which they are attached, but excluding therefrom those
appurtenances designed or intended for the use, benefit, support, safety or enjoyment of
any other Condominium Unit or which may be necessary for the safety, support,
maintenance, use, and operation of any of the Buildings or which are normally designed
for common use; provided, however, that all fixtures, equipment, appliances, and cabinets
designed or intended for the exclusive enjoyment, use and benefit of a Condominium
Unit shall constitute a part of such Condominium Unit, whether or not the same are
located within or partly within the boundaries of such Condominium Unit. Also, the
interior sides and surfaces of all doors and windows in the perimeter walls of a
Condominium Unit, whether or not located within or partly within the boundaries of a
Condominium Unit, and all interior walls and all of the floors and ceilings within the
boundaries of a Condominium Unit, are considered part of the Condominium Unit.
(b) Boundaries. The boundaries of each Condominium Unit shall be as shown
on the Plans without regard to the existing construction measured between the interior
unfinished surface of the floors, roofs and perimeter walls of each Condominium Unit. In
the event any horizontal or vertical or other boundary line as shown on the Plans does not
coincide with the actual location of the respective wall, floor or roof surface of the
Condominium Unit because of inexactness of construction, settling after construction, or
for any other reasons, the boundary lines of each Condominium Unit shall be deemed to
be and treated for purposes of ownership, occupancy, possession, maintenance,
decoration, use and enjoyment, as in accordance with the actual existing construction. In
such case, permanent appurtenant easements for exclusive use shall exist in favor of the
Owner of each Condominium Unit in and to such space lying outside of the actual
boundary lines of the Condominium Unit, but within the appropriate wall, floor or roof
surfaces of the Condominium Unit.
(c) Residential Unit. The Owner(s), occupants, guests, invitees and
contractors of the Residential Unit shall not interfere with the use an enjoyment of the
Owner(s), occupants, guests, invitees and contractors of the Commercial Unit.
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Building, (3) the yards, gardens, sidewalks and parking areas, except to the extent the same are
otherwise classified and defined herein as part of the Condominium Unit or Limited Areas, (4)
central electricity, gas, water, air conditioning and sanitary sewer serving the Building (including
those located in the interior of the Building), if any, -(5) exterior lighting fixtures and electrical
service lighting the exterior of the Building unless separately metered to a particular
Condominium Unit, (6) pipes, ducts, electrical wiring, telecommunication devices and conduits
and public utilities lines which serve more than one Condominium Unit, (7) all streets or interior
access drives designated on the Plans as Common Area, (8) floors, roofs and exterior perimeter
walls of the Building, except to the extent the same are otherwise classified and defined herein as
part of the Condominium Unit, and (9) all facilities and appurtenances located outside of the
boundary lines of the Condominium Units.
7. Areas Pertaining to a Specific Condominium Unit. Areas and those
Condominium Units to which use thereof is limited are as follows:
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(a) The Residential Unit shall be the owner, and have exclusive use of, the
garage and elevator identified on the Plans.
(b) The exterior sides and surfaces of doors, windows and frames surrounding
the same in the perimeter walls in each Condominium Unit shall be limited to the
exclusive use of the Condominium Unit to which they appertain.
(c) Any other areas limited to the Condominium Unit to which they appertain
shall be as shown on the Plans.
8. Ownership of Common Areas, Percentage interest and Percentage Vote.
(a) Ownership of Common Areas. Each Owner shall have an undivided
interest in the Common Areas and Limited Areas, as tenants in common with all other
Owner, equal to his, her or its Condominium Unit's Percentage Interest.
(b) Percentage Interest. The Percentage Interest in the Common Areas and
Limited Areas appertaining to each Condominium Unit is set forth in Paragraph 4 of this
Declaration. The Percentage Interest of each Condominium Unit shall be a percentage
equal to one (1) divided by the number of Condominium Units which, from time to time,
have been submitted and subjected to the Act and this Declaration as herein provided and
which constitute a part of The Prudentia Condominiums. Except as otherwise provided
or permitted herein, the Percentage Interest appertaining to each Condominium Unit in
the Common Areas and Limited Areas shall be permanent and shall not be altered
without the unanimous consent of all the Owners and Mortgagees and then only if the
alteration is in compliance with all requirements of the Act.
(c) Percentage Vote. The Percentage Interest appertaining to each
Condominium Unit shall also be the Percentage Vote allocable to the Owner(s) of each
Condominium Unit in all matters with respect to The Prudentia Condominiums, and the
Corporation upon which the Co- owners are entitled to vote.
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10. Real Estate Taxes. Real Estate Taxes shall be separately assessed and taxed to
each Condominium Unit as required by the Act. In the event that for any year Real Estate Taxes
are not separately assessed and taxed to each Condominium Unit, but are assessed and taxed on
the Property (or the Property and any other portions of the Real Estate) as a whole, then each
Owner shall pay the Owner's proportionate share of such taxes to the extent attributable to the
Property in accordance with the Owner's respective Percentage Interest.
I I. Utilities. Each Owner shall pay for the Owner's utilities which are separately
metered. Utilities which are not separately metered shall be treated as and paid as part of the
Common Expenses, unless otherwise agreed by a majority of the Percentage Vote of Co- owners.
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9. Encroachments and Easements for Common Areas.
(a) Encroachments. If, by reason of the location, construction, settling or
shifting of the Building, any Common Area or Limited Area now encroaches or shall
hereafter encroach upon either Condominium Unit, then in such event, an easement shall
be deemed to exist and run to the Co- owners and the Corporation for the maintenance,
use and enjoyment of such Common Area or Limited Area.
(b) Easements. Each Owner shall have an easement in common with each
other Owner to use all pipes, wires, ducts, cables, conduits, utility lines,
telecommunication devices, and other common facilities located in any of the other
Condominium Units and serving the Owner's Condominium Unit. Each Owner shall
have the right of ingress and egress from such Owner's Condominium Unit with such
right being perpetual and appurtenant to the ownership of the Condominium Unit.
12. Association of Owners.
(a) Membership. The obligations of the Owners, the maintenance, repair,
upkeep, replacement, administration, management and operation of the Property shall be
conducted by the Corporation which shall serve as the "association" of the Owners. Each
Owner of a Condominium Unit shall, automatically upon becoming an owner of a
Condominium Unit, be and become a member of the Corporation and shall remain a
member until such time as the Owner's ownership of the Condominium Unit ceases, at
which time the Owner's membership shall terminate, and be transferred to the new Owner
without further action.
(b) Board of Directors. Members of the Corporation shall elect a Board of
Directors annually (except for an Initial Board of Directors defined in the By -Laws) in
accordance with and as prescribed by the By -Laws. The Board of Directors shall be the
governing body of the Corporation, representing all of the Owners in providing for the
management, administration, operation, maintenance, repair, replacement and upkeep of
the Property exclusive of the Condominium Units.
13. Maintenance, Repairs and Replacements.
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(a) Owner's Obligation. Each Owner shall, at the Owner's expense, be
responsible for the Owner's maintenance, repairs, decoration and replacement within the
Owner's own Condominium Unit, and to the extent provided in this Declaration or the
By -Laws for the Limited Areas reserved for the Owner's use. Each Owner shall repair
any defect occurring in the Owner's Condominium Unit which, if not repaired, might
adversely affect any Condominium Unit, Common Area or Limited Area. Maintenance,
repairs, replacements and upkeep of the Common Areas and Limited Areas or that
portion of the Property covered by the Corporation's insurance as provided in
paragraph 15 shall be furnished by the Corporation as part of the Common Expenses,
except as otherwise provided herein or in the By -Laws.
(b) Board of Directors' Duties. The Board of Directors shall adopt rules and
regulations concerning maintenance, repairs, use and enjoyment of the Common Areas
and Limited Areas as it deems appropriate, and may amend and modify the same from
time to time as it deems advisable, necessary or appropriate. The Board of Directors or
its designated agent shall have the right at reasonable times and upon reasonable prior
notice (except in cases of emergency in which case no notice shall be required), to enter
into each Condominium Unit for the purpose of inspection of the Common Areas and
Limited Areas appurtenant thereto and replacement, repair and maintenance of such
Common Areas and Limited Areas.
14. Alterations, Additions and Improvements. No Owner shall make any alterations
or additions to or which would affect the Common Areas or Limited Areas without the prior
written approval of the Board of Directors, nor shall any Owner make any alteration in or to the
Owner's Condominium Unit and within the boundaries thereof which would affect the safety or
structural integrity of the Building in which the Condominium Unit is located, nor shall any
Owner change the color of any of the Common Areas or Limited Areas without the prior written
approval of the Board of Directors.
15. Insurance.
(a) Casualty Insurance Coverage. The Co- Owners, through the Corporation,
shall purchase and maintain in effect a master casualty insurance policy, using insurance
carriers selected by the Board of Directors, providing fire and extended coverage
insurance, insuring the Property in an amount equal to the full replacement value of the
improvements which, in whole or in part, comprise the Common Areas, Limited Areas
and facilities appurtenant thereto. If the Board of Directors can obtain such coverage for
reasonable amounts they shall also obtain "all risk" coverage. The Board of Directors
shall review the amount and type of such insurance annually and shall purchase such
additional insurance as is necessary to provide the insurance required above. If deemed
advisable by the Board of Directors, it may cause such full replacement value to be
determined by a qualified appraiser. The cost of any such appraisal shall be a Common
Expense. Such insurance coverage shall name each Owner and, if applicable, the
Mortgagee of each Owner, as insureds and shall be for the benefit of each such Owner
and Mortgagee in accordance with the terms and conditions of this Paragraph 15.
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Such master casualty insurance policy, and "alI risk" coverage if obtained, shall
(to the extent the same are obtainable) contain provisions that the insurer (a) waives its
right to subrogation as to any claim against the Corporation, the Board of Directors, its
agents and employees, Owners, their respective agents and guests, and (b) waives any
defense based on the invalidity arising from the acts of the insured, and (c) contains an
endorsement that such policy shall not be terminated for non payment of premiums
without at least thirty (30) days prior written notice to Mortgagees and to the Corporation
and providing further, if the Board of Directors is able to obtain such insurance upon
reasonable terms, (i) that the insurer shall not be entitled to contribution against casualty
insurance which may be purchased by individual Owners as hereinafter permitted,
(ii) that notwithstanding any provision thereof giving the insurer an election to restore
damage in lieu of a cash settlement, such option shall not be exercisable in the event the
Owners do not elect to restore pursuant to paragraph 16 of this Declaration, and (iii) an
agreed amount endorsement or an inflation guard endorsement to the extent such are
commonly required by prudent institutional mortgage investors in the City of Carmel,
Hamilton County area.
(b) Insurance Proceeds. All proceeds payable as a result of casualty losses
sustained, which are covered by insurance purchased by the Corporation as hereinabove
set forth, shall be paid to it or to the Board of Directors, who shall act as the insurance
trustees and hold such proceeds for the benefit of the individual Owners and Mortgagees.
The proceeds shall be used or disbursed by the Board of Directors in accordance with the
provisions of this Declaration. Any surety bond or bonds obtained by the Board of
Directors concerning the officers of the Corporation, as may be provided in the By -Laws,
shall specifically include protection for any insurance proceeds so received.
The interest of an Owner whose Condominium Unit is damaged by fire or other
casualty in the trust fund of insurance proceeds shall be the ratio of the direct damage of
each Owner sustaining damages to the damages of all Owners directly damaged by any
casualty insured under the said master casualty insurance policy. The Corporation shall
have exclusive authority to negotiate losses under any policy providing property or
liability insurance and to perform such other functions as are necessary to accomplish this
purpose. Each Owner appoints the Corporation to act for and on behalf of the Owners for
the purpose of purchasing and maintaining such insurance, including the collection and
appropriate disposition of the proceeds thereof, the negotiation of losses and execution of
releases of liability and the performance of all other acts necessary to accomplish such
purposes.
In no event shall any distribution of proceeds be made by the Board of Directors
directly to an Owner where there is a mortgagee endorsement on the certificate of
insurance. In such event any remittances shall be to the Owner and the Owner's
Mortgagee jointly.
No Owner or any other party shall have priority over any rights of a Mortgagee
pursuant to its mortgage in the case of distribution to such Owner of insurance proceeds
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1208555.3
or condemnation awards for losses to or a taking of Condominium Unit and /or Common
Areas.
(c) Comprehensive Public Liability Insurance Coverage. The Co- owners,
through the Corporation, shall also purchase a master comprehensive public liability
insurance policy in such amount or amounts as the Board of Directors shall deem
appropriate from time to time. Such comprehensive public liability insurance policy shall
cover the Corporation, the Board of Directors, any committee or organ of the Corporation
or Board of Directors, any managing agent appointed or employed by the Corporation, all
persons acting or who may come to act as agents or employees of any of the foregoing
with respect to The Prudentia Condominiums, all Owners of Condominium Units and all
other persons entitled to occupy any Condominium Unit or other portions of The
Prudentia Condominiums. Such policy shall provide that it may not be cancelled or
substantially modified without at least thirty (30) days prior written notice to the
Corporation and all Mortgagees.
(d) Additional Insurance Coverages. The Co- owners, through the
Corporation, shall also obtain any other insurance required by law to be maintained,
including but not limited to worker's compensation insurance and such other insurance as
the Board of Directors shall from time to time deem necessary, advisable or appropriate.
Such insurance coverage shall also provide for and cover cross liability claims of one
insured party against another insured party. Such insurance shall inure to the benefit of
each Owner, the Corporation, the Board of Directors and any managing agent acting on
behalf of the Corporation.
(e) Payment of Premiums. The premiums for all such insurance hereinabove
described shall be paid by the Corporation as part of the Common Expenses. When any
such policy of insurance hereinabove described has been obtained by or on behalf of the
Corporation, written notice of the obtainment thereof and of any subsequent changes
therein or termination thereof shall be promptly furnished to each Owner or Mortgagee
whose interest may be affected thereby, which notice shall be furnished by the officer of
the Corporation who is required to send notices of meetings of the Corporation.
(f) Owner's Obligation to Insure Contents of Condominium Unit. Each
Owner shall be solely responsible for loss or damage to the contents of the Owner's
Condominium Unit however caused (including, but not limited to, all floor, ceiling and
wall coverings and fixtures, light fixtures, appliances and betterments and improvements
installed by him) and the Owners' personal property stored elsewhere on the Property,
and the Corporation shall have no liability to the Owner for loss or damage to the
contents of any Condominium Unit. Each Owner shall be solely responsible for
obtaining the Owner's own insurance to cover any such loss and risk. Each Owner shall
have the right to purchase such additional insurance at the Owner's own expense as the
Owner may deem necessary, including but not limited to (i) personal liability insurance
provided all such insurance shall contain the same provisions for waiver of subrogation
as referred to in the foregoing provisions for the master casualty insurance policy to be
obtained by the Corporation, and (ii) casualty insurance upon the Owner's Condominium
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1208555.3
Unit but such insurance shall provide that it shall be without contribution as against the
casualty insurance purchased by the Corporation. If a casualty loss is sustained and there
is a reduction in the amount of the proceeds which would otherwise be payable on the
insurance purchased by the Corporation pursuant to this paragraph due to proration of
insurance purchased by an Owner under this paragraph, the Owner agrees to assign the
proceeds of this latter insurance, to the extent of the amount of such reduction, to the
Corporation to be distributed as herein provided.
16. Casualty and Reconstruction.
(a) Determination of Condition of the Building. Except as hereinafter
provided, damage to or destruction of the Building due to fire or any other casualty or
disaster shall be promptly repaired and reconstructed by the Corporation and the proceeds
of insurance, if any, shall be applied for that purpose; provided, however, that repair and
reconstruction shall not be compulsory in the event of "complete destruction of all of the
Buildings" (hereinafter defined) and shall only be done in accordance with the provisions
hereinafter set forth. As used herein, the term "complete destruction of all of the
Buildings" means a determination, made by a vote of sixty -five percent (65 of all
Co- owners at a special meeting of the Corporation called for the purpose of making such
determination, that the complete destruction of all of the Buildings has occurred. A
special meeting of the Corporation shall be called and held within thirty (30) days after
any fire or any other casualty or disaster damaging or destroying any of the Buildings for
the purpose of making the determination of whether or not there has been a complete
destruction of all of the Buildings. If such a special meeting is not called and held within
such thirty (30) day period, or if the determination of whether or not there has been a
complete destruction of all the Buildings has not been made within such thirty (30) day
period, then it shall be conclusively presumed that the Co- owners determined that there
was not a complete destruction of all of the Buildings, and the Corporation shall proceed
with repair and reconstruction as herein provided.
In the event of substantial damage to or destruction of any Condominium Unit or
any part of the Common Areas, the affected Mortgagee or Mortgagees shall be given
timely written notice of such damage or destruction and, notwithstanding any other
provision of the Declaration or By -Laws, the Property shall not be removed from the
provisions of the Act without the approval of the Mortgagees of all Co- owners holding
sixty -five percent (65 of the Percentage Vote.
(b) Inadequate Insurance Proceeds. If the insurance proceeds, if any, received
by the Corporation as a result of any such fire or any other casualty or disaster are not
adequate to cover the cost of repair and reconstruction, or in the event there are no
insurance proceeds, and if the Property is not to be removed from the provisions of the
Act, the cost for restoring the damage and repairing and reconstructing the Building (or
the costs thereof in excess of insurance proceeds received, if any) shall be paid by all of
the Owners of Condominium Units so damaged in proportion to the ratio that the damage
to such Condominium Unit bears to the total damage of all Condominium Units. Any
such amounts payable by the Co- owners shall be assessed as part of the Common
11
1208555.3
Expenses and shall constitute a lien from the time of assessment as provided herein and
in the Act.
(c) Definition. For purposes of subparagraph (a) and (b) above, "repair,
reconstruction and restoration shall mean construction or rebuilding of the Condominium
Units to as near as possible the same condition as they existed immediately prior to the
damage or destruction and with the same type of architecture.
(d) Vote of Owners. If, under subparagraph (a) above, it is determined by the
Co- owners at the special meeting of the Corporation referred to therein that there has
been a complete destruction of the Building, the Co- owners shall, at said same special
meeting, vote to determine whether or not such complete destruction of the Building shall
be repaired and reconstructed. The Building shall not be reconstructed or repaired if it is
the determination of the Co- owners at said special meeting that there has been a complete
destruction of all of the Building, unless by a vote of sixty -five percent (65 of all of the
Co- owners a decision is made to rebuild, reconstruct and repair the Building. If sixty
five percent (65 of all of the Co- owners vote and decide that the Building is to be
rebuilt, reconstructed and repaired, the insurance proceeds, if any, received by the
Corporation shall be applied and any excess of construction costs over insurance
proceeds, if any, shall be contributed and paid as hereinabove provided in subparagraphs
(a) and (b).
(e) Removing Building from the Act. If, in any case of the complete
destruction of all of the Building, less than sixty -five percent (65 of all of the
Co- owners vote in favor of the rebuilding, reconstruction and repair of the Building, the
Building shall not be rebuilt, reconstructed or repaired and, in such event, the Property
shall be deemed and considered as to be removed from the provisions of the Act:
(i) the Property shall be deemed to be owned in common by
the Owners;
(ii) the undivided interest in the Property owned in common
which shall appertain to each Owner shat] be the percentage of undivided
interest previously owned by such Owner in the Common Areas;
(iii) any liens affecting any of the Condominium Units shall be
deemed to be transferred in accordance with the existing priorities to the
percentage of the undivided interest of the Owner in the Property; and
(iv) the Property shall be subject to an action for partition at the
suit of any Owner, in which event the net proceeds of sale, together with
the net proceeds of the insurance on the Property, if any, shall be
considered as one (I) fund and shall be divided among all the Owners in a
percentage equal to the percentage of undivided interest owned by each
Owner in the Property, after first paying out of the respective shares of the
Owners, to the extent sufficient for the purpose, all liens on the undivided
interest in the Property owned by each Owner.
12
1208555.3
(f) Estimates. Immediately after a fire or other casualty or disaster causing
damage to any property for which the Board of Directors or Corporation has the
responsibility of maintenance and repair, the Board of Directors shall obtain reliable and
detailed estimates of the cost to place the damaged property in condition as good as that
before the casualty. Such costs may include professional fees and premiums for such
bonds as the Board of Directors desire.
(g) Construction Fund. The proceeds of insurance collected on account of any
such casualty, and the sums received by the Board of Directors from collections of
assessments against Owners on account of such casualty, shall constitute a construction
fund which shall be disbursed, if the Building is to be reconstructed and repaired, in
payment of the costs of reconstruction and repair in the following manner:
(i) If the amount of the estimated cost of reconstruction and
repair is less than Ten Thousand Dollars ($I0,000.00), then the
construction fund shall be disbursed in payment of such costs upon order
of the Board of Directors; provided, however, that upon request of a
Mortgagee which is a beneficiary of an insurance policy, the proceeds of
which are included in the construction fund, such fund shall be disbursed
in the manner hereinafter provided in the following paragraph (ii).
(ii) If the estimated cost of reconstruction and repair of the
Building or other improvement is more than Ten Thousand Dollars
($10,000.00), then the construction fund shall be disbursed in payment of
such costs upon approval of an architect qualified to practice in Indiana
and employed by the Board of Directors to supervise such work, payment
to be made from time to time as the work progresses. The architect shall
be required to furnish a certificate giving a brief description of the services
and materials furnished by various contractors, subcontractors,
materia]men, the architect, or other persons who have rendered services or
furnished materials in connection with the work, (A) that the sums
requested by them in payment are justly due and owing and that said sums
do not exceed the value of the services and materials furnished; (B) that
there is no other outstanding indebtedness known to the said architect for
the services and materials described; and (C) that the costs as estimated by
said architect for the work remaining to be done subsequent to the date of
such certificate, does not exceed the amount of the construction fund
remaining after payment of the sum so requested.
(iii) Encroachments upon or in favor of Condominium Units
which may be created as a result of such reconstruction or repair shall not
constitute a claim or basis of a proceeding or action by the Owner upon
whose property such encroachment exists, provided that such
reconstruction was either substantially in accordance with the plans and
specifications or as the Building was originally constructed. Such
13
encroachments shall be allowed to continue in existence for so long as the
Building stands.
(iv) In the event that there is any surplus of monies in the
construction fund after the reconstruction or repair of the damage has been
fully completed and all costs paid, such sums may be retained by the
Board of Directors as a reserve or may be used in the maintenance and
operation of the Common Areas, or, in the reasonable discretion of the
Board of Directors it may be distributed to the Owners in the Building and
their Mortgagees who are the beneficial owners of the fund. The action of
the Board of Directors in proceeding to repair or reconstruct damage shall
not constitute a waiver of any rights against another Owner for committing
willful or malicious damage.
(h) Condemnation, If any Condominium Unit or portion thereof or any of the
Common Areas is made the subject of a condemnation or eminent domain proceeding or
is otherwise sought to be acquired by a condemning authority, then the affected
Mortgagee or Mortgagees shall be given timely written notice of such proceeding or
proposed acquisition. The Corporation shall represent the Owners in any condemnation
proceeding or any negotiation settlements or agreements with the condemning authority
for acquisition of the Common Areas or any part thereof. In the event of a taking or
acquisition of part or all of the Common Areas by a condemning authority, the award or
proceeds of settlement shall be payable to the Corporation to be held in trust for the
Owners and Mortgagees as their interests may appear and the provisions of the
Declaration relating to restoration and allocation of funds in the event of a casualty shall
be applicable in the event of a condemnation.
17. Covenants and Restrictions. The covenants and restrictions applicable to the use
and enjoyment of the Condominium Units and the Common Areas and Limited Areas are set
forth in the By -Laws. These covenants and restrictions are for the mutual benefit and protection
of the present and future Owners and shall run with the land and inure to the benefit of and be
enforceable by any Owner, or by the Corporation. Present or future Owners or the Corporation
shall be entitled to injunctive relief against any violation or attempted violation of these
provisions and shall be entitled to damages for any injuries resulting from any violations thereof,
but there shall be no right of reversion or forfeiture of title resulting from such violation. The
Corporation shall represent the Owners in any condemnation proceeding or any negotiation
settlements or agreements with the condemning authority for acquisition of the Common Areas
or any part thereof. In the event of a taking or acquisition of part or all of the Common Areas by
a condemning authority, the award or proceeds of settlement shall be payable to the Corporation
to be held in trust for the Owners and Mortgagees as their interests may appear.
18. Amendment of Declaration. Except as otherwise provided in this Declaration,
amendments to this Declaration shall be proposed and adopted in the following manner:
1208555.3
(a) Notice. Notice of the subject matter of the proposed amendment shall be
included in the notice of any meeting at which the proposed amendment is considered.
14
1 208555.3
(b) Resolution. A resolution to adopt a proposed amendment may be
proposed by the Board of Directors or Owners having in the aggregate at least a majority
of -the Percentage Vote.
(c) Meeting. The resolution concerning a proposed amendment must be
adopted by the designated vote at a meeting duly called and held in accordance with the
provisions of the By -Laws.
(d) Adoption. Any proposed amendment to this Declaration must be
approved by a vote of not less than sixty -five percent (65 in the aggregate of the
Percentage Vote. In the event any Condominium Unit is subject to a first mortgage, the
Mortgagee shall be notified of the meeting and the proposed amendment in the same
manner as an Owner if the Mortgagee has given prior notice of its mortgage interest to
the Board of Directors in accordance with the provisions of the By -Laws.
(e) Special Amendments. No amendment to this Declaration shall be adopted
which changes (i) the Percentage interest with respect to any Condominium Unit or the
applicable share of an Owner's liability for the Common Expenses, without the approval
of one hundred percent (100 of the Co- owners and all Mortgagees whose mortgage
interests have been made known to the Board of Directors in accordance with the
provisions of the By -Laws except for changes pursuant to paragraph 21 herein, or (ii) the
provisions of paragraph 16 of this Declaration with respect to reconstruction or repair in
the event of fire or any other casualty or disaster, without the unanimous approval of all
Mortgagees whose mortgage interests have been made known to the Board of Directors
in accordance with the provisions of the By -Laws or (iii) the provisions of paragraph 12
regarding the obligation of the Board of Directors to provide professional management
for The Prudentia Condominiums; or (iv) the provisions of paragraph 15 providing for no
priority of an Owner or other person over a Mortgagee as to insurance or condemnation
proceeds.
(f) Recording. Each amendment to the Declaration shall be executed by the
President and Secretary of the Corporation shall include an affidavit stating that Owners
representing sixty -five percent (65 of the aggregate of Percentage Vote or such other
amount as required by this Declaration have approved the amendment and shall be
recorded in the Office of the Recorder of Hamilton County, Indiana, and such
amendment shall not become effective until so recorded.
(g) Amendments by Declarant Only. Notwithstanding the foregoing or
anything elsewhere contained herein, the Declarant shall have the right acting alone and
without the consent or approval of the Co- owners, the Corporation, the Board of
Directors, any Mortgagees or any other person at any time prior to the election of the
Initial Board to amend or supplement this Declaration from time to time if such
amendment or supplement is necessary to conform this Declaration to the Act, as
amended from time to time, or (ii) such amendment is necessary to comply with
requirements of the Federal National Mortgage Association, the Government National
15
1208555.3
Mortgage Association, the Federal Home Loan Mortgage Corporation, the Department of
Housing Urban Development, the Federal Housing Association, the Veteran's
Administration or any other governmental agency or any other public, quasi public or
private entity which performs (or may in the future perform) functions similar to those
currently performed by such entities or (iv) such amendment is necessary to correct
clerical or typographical errors or to clarify Declarant's original intent or (v) such
amendment is necessary to implement any changes in The Prudentia Condominiums
permitted to be made by Declarant under this Declaration.
(h) Special Requirements. Notwithstanding anything to the contrary
contained herein, unless specifically controlled by a more restrictive provision under
Indiana law or contained herein, the Corporation shall not, without the prior written
notice to the Mortgagees of all Co- owners holding sixty -five percent (65 of the
Percentage Vote, be entitled to:
{i) by act or omission, seek to abandon, terminate or otherwise
remove the Property from being subject to the Act;
(ii) change the pro rata interest or obligations of any individual
Condominium Unit for the purpose of: (i) levying assessments or charges
or allocating distributions of hazard insurance proceeds or condemnation
awards, or (ii) determining the pro rata share of ownership of each
Condominium Unit in the Common Areas except for expansion rights;
(iii) partition or subdivide any Condominium Unit;
(iv) by act or omission, seek to abandon, partition, subdivide,
encumber, sell or transfer the Common Areas (the granting of easements
for public utilities or for other public purposes consistent with the intended
use of the Common Areas shall not be deemed a transfer within the
meaning of this clause);
(v) use hazard insurance proceeds for losses to any part of the
Property (whether to Condominium Units or to Common Areas) for other
than the repair, replacement or reconstruction of such Property, except as
provided in paragraph 16 of this Declaration in case of substantial damage
to the Condominium Units.
19. Acceptance and Ratification. All present and future Owners, Mortgagees, tenants
and occupants of the Condominium Units shall be subject to and shall comply with the
provisions of this Declaration, the Act, the By -Laws appended thereto, and the rules and
regulations as adopted by the Board of Directors 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
Condominium Unit shall constitute an agreement that the provisions of this Declaration, the Act,
the By -Laws and rules and regulations 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 anytime any interest or
16
estate in a Condominium Unit or the Property as though such provisions were recited and
stipulated at length in each and every deed, conveyance, mortgage or lease thereof. All persons,
corporations, partnerships, trusts, associations, or other legal entities who may occupy, use, enjoy
or control a Condominium Unit or Condominium Units or any part of the Property in any manner
shall be subject to the Declaration, the Act, the By -Laws, and the rules and regulations applicable
thereto as each may be amended or supplemented from time to time.
20. Negligence. Each Owner shall be liable for the expense of any maintenance,
repair or replacement rendered necessary by the Owner's negligence or by that of any member of
ihe Owner's family or the Owner's or their guests, employees, agents or lessees, (including but
not limited to damage caused by any pet or any automobile) to the extent that such expense is not
covered by the proceeds of insurance received by the Corporation. An Owner shall pay the
amount of any increase in insurance premiums occasioned by the Owner's use, misuse,
occupancy or abandonment of the Owner's Condominium Unit or its appurtenances or of the
Common Areas or Limited Areas.
21. Granting of Easements. The Board of Directors is granted the authority to grant
easements to utility companies (excluding transportation companies but including
telecommunication companies) upon such terms and conditions and for such consideration as it
deems appropriate.
23. Easement for Utilities and Public and Quasi Public Vehicles. All public and quasi
public vehicles, including, but not limited to police, fire and other emergency vehicles, trash and
garbage collection, post office vehicles and privately owned delivery vehicles, shall have the
right to enter upon the streets, Common Areas and Limited Areas of The Prudentia
,,;idominiums in the performance of their duties. An easement is also granted to all utilities and
their agents for ingress, egress, installation, replacement, repairing and maintaining of such
utilities, including, but not limited to water, sewers, gas, telephones and electricity on the
Property; provided, however, nothing herein shall permit the installation of sewers, electric lines,
water lines, or other utilities, except as initially designed and approved by Declarant or as
1208555.3
22. Reservation of Rights to the Use of the Common Areas.
(a) Declarant shall have, and hereby reserves, an easement over, across, upon,
along, in, through and under the Common Areas and, to the extent necessary, the Limited
Areas, for the purposes of installing, maintaining, repairing, replacing, relocating and
otherwise servicing utility equipment, facilities and installations to serve the Property and
any portions of the Real Estate which are not part of the Property, to provide access to
and ingress and egress to and from the Property and to any such portions of the Real
Estate which are not part of the Property, to make improvements to and within the
Property and any such portions of the Real Estate which are not part of the Property, and
to provide for the rendering of public and quasi public services to the Property and such
portions of the Real Estate which are not part of the Property.
(b) Declarant reserves the right to use any of the Real Estate that is not
annexed to or made subject to the Declaration for any permitted purposes.
17
thereafter may be approved by the Board of Directors. By virtue of this easement the electric
and telephone utilities are expressly permitted to erect and maintain the necessary equipment on
the Property and to affix and maintain electric and telephone wires, circuits and conduits on,
above, across and under the roofs and exterior walls of the Buildings.
24. Costs and Attorneys' Fees. In any proceeding arising because of failure of an
Owner to make any payments required by this Declaration, the By -Laws or the Act, or to comply
with any provision of the Declaration, the Act, the By -Laws, or the rules and regulations adopted
pursuant thereto as each may be amended from time to time, the Corporation shall be entitled to
recover its costs and reasonable attorneys' fees incurred in connection with such default or
failure.
25. Waiver. No Owner may exempt himself from liability for the Owner's
contribution toward the Common Expenses by waiver of the use or enjoyment of any of the
Common Areas or Limited Areas or by abandonment of his Condominium Unit.
26. Severability Clause. The invalidity of any covenant, restriction, condition,
limitation or other provisions of this Declaration or the By -Laws filed herewith shall not impair
or affect in any manner the validity, enforceability or affect the rest of this Declaration or the
attached By -Laws.
27. Enforcement. The provisions of this Declaration, the By -Laws, the Articles of
Incorporation or the Statute may be enforced by the Corporation or by any aggrieved Owner
through court proceedings for injunctive relief, for damages or for both.
28. Number, Gender and Headings. Any reference to the masculine, feminine or
neuter gender herein shall, unless the context clearly requires the contrary, be deemed to refer to
and include the masculine, feminine and neuter genders. Words in the singular shall include and
refer to the plural, and vice versa, as appropriate. Headings used herein are for convenience and
shall not be held to be part of the terms and conditions of this Declaration.
29. Floor Plans. The Plans setting forth the Iayout, location, identification numbers,
and dimensions of the Condominium Units and the Property are incorporated into this
Declaration by reference, and have been filed in the Office of the Recorder of Hamilton County,
Indiana, on the day of 2010, as Instrument No.
1208555.3
[Signature page follows]
I8
IN WITNESS WHEREOF, the undersigned has caused this Declaration to be executed
the day and year first above written.
STATE OF INDIANA
SS:
COUNTY OF 1- -s
Before me, a Notary Public in and for said County and State, personally appeared John
Loveys, by me known and by me known to be a Member of Prudentia, LLC, an Indiana limited
liability company, who acknowledged the execution of the foregoing "Declaration of Prudentia
Condominiums" on behalf of said limited liability company.
My Commi sion Expires: Notary Pub is Signature
�DIs
My County of Residence:
Notary Public Printed Name
I affirm under the penalties for perjury, that I have taken reasonable care to redact each Social Security
Number in this document, unless required by law. Marci A. Reddick
This instrument prepared by Marci A. Reddick, Taft Stettinius Ilollister LL1', One Indiana Square,
Suite 3500, Indianapolis, IN 46204.
1208555.3
DECLARATION OF CONDOMINIUM OWNERSHIP SIGNATURE PAGE
PRUDENTIA CONDOMINIUMS
Prudentia LC, an Indiana limited liability company
By: "'"Iwv
Printed: i k li tehn Love s
Title: Member
Witness my hand and Notarial Scai this 29 day of April, 2010.
19
TIMOTHY R. HAAK
Boone County
My Commission Expires
February 22, 2015
EXHIBIT A
REAL ESTATE LEGAL DESCRIPTION
A part of Block "D" of the Village of West Cloy, Section 3004 Village Center, Part 1 os recorded in Instrument No.
199909965089, Plat Cabinet 2, Slide 345, also being o port of the Southwest Quarter of Section 28, Township 18 North, Range
3 East of the 2nd Principal Meridian, Cloy Township, Hamilton County, Indiana described as follows:
COMMENCING at the northwest comer of Block D" of said Vlloge of West Clay, Section 3004; thence North 89 degrees 51
minutes 51 seconds East o distance of 130.62 feet; to the Point of Beginning; thence North 89 degrees 51 minutes 51 seconds
Eost (beorings based upon said Plot) along the north line of said Block "D" (olsa being the south line of Broughton Street per
said Plat) a distance of 101.00 feet; thence South 00 degrees 08 minutes 09 seconds East o distance of 84.50 feet; thence
South 09 degrees 51 minutes 51 seconds West a distance of 101.00 feet; thence North 00 degrees 08 minutes 09 seconds
West o distance of 84.50 feet to the point of beginning. Containing O.20 acres, more or less.
1208555.2
1208555.3
EXHIBIT B
DESCRIPTION OF THE REAL ESTATE
EXHIBIT B 1 Commercial Unit, floor plan
EXHIBIT B 2 Residential Unit, floor plan
EXHIBIT 13 3 Plat of Real Estate and Building
1208555.2
1208555.3
1208555.2
1208555.3
EXHIBIT C
CODE OF BY -LAWS
1209051.3
CODE OF BY -LAWS
OF
PRUDENTIA CONDOMINIUMS
AND OF
PRUDENTIA OWNERS ASSOCIATION, INC.
CODE OF BY -LAWS
OF
PRUDENTIA CONDOMINIUMS
AND OF
PRUDENTIA OWNERS ASSOCIATION, INC.
TABLE OF CONTENTS
ARTICLE I 1
Applicability of Declaration, Membership, Office 1
Section 1.01. Name, Adoption and Applicability of Declaration. 1
Section 1.02. Membership 1
Section 1.03. Principal Office, Registered Agent and Registered
Office 1
1
ARTICLE II
Board of Directors
Section 2.01.
Section 2.02.
Section 2.03.
Section 2.04.
Section 2.05.
Section 2.06.
Section 2.07
Section 2.08.
Section 2.09.
Section 2.10.
Section 2.11.
Section 2.12. Additional Indemnity of Directors
Section 2.13. Bond.
1209051.3
General Provisions. 1
Special Meetings 3
Notice of Meetings 3
Waiver of Notice 3
Term of Office and Vacancy 3
Removal of Directors. 4
Duties of the Board of Directors. 4
Powers of the Board of Directors 5
Compensation 6
Meetings 6
Non Liability of Directors 6
6
7
ARTICLE III
Officers
Section 3.01.
Section 3.02.
Section 3.03.
Section 3.04.
Section 3.05.
7
7
ARTICLE IV 8
Assessments 8
Section 4.01. Annual Accounting.. 8
Proposed Annual Budget. 8
Regular Assessments. 9
Special Assessments 9
Failure of Owner to Pay Assessments. 10
Maintenance and Repairs. 11
Section 4.02.
Section 4.03.
Section 4.04.
Section 4.05.
Section 4.06.
ARTICLE V 12
Restrictions, Entry and Rules and Regulations 12
Section 5.01. Restrictions on Use 12
Section 5.02. Compliance with Covenants, Conditions and
Restrictions 13
Section 5.03. Right of Entry. 13
Section 5.04. Right of Board to Adopt Rules and Regulations 14
1 209051.3 11
Officers of the Corporation. 7
Election of Officers 7
The President. 7
The Secretary. 8
The Treasurer. 8
ARTICLE VI 14
Amendment to By -Laws 14
Section 6.01 14
ARTICLE VII 14
Mortgages 14
Section 7.01. Notice to Corporation 14
Section 7.02. Notice of Unpaid Assessments 14
ARTICLE VIII 15
Miscellaneous 15
Section 8.01. Fiscal Year. 15
Section 8.02. Personal Interests 15
Section 8.03. Contracts, Checks, Notes, Etc. 15
Section 8.04. Financial Statement 15
1 209051.3
iii
CODE OF BY -LAWS
OF
PRUDENTIA CONDOMINIUMS
AND OF
PRUDENTIA OWNERS ASSOCIATION, INC.
ARTICLE I
Applicability of Declaration, Members Office
Section 1.01. Name, Adoption and Applicability of Declaration. The name of the
corporation is Prudentia Owners Association, Inc. (the "Corporation These By -Laws are
adopted simultaneously with the execution of a certain declaration filed in the office of the
Hamilton County Recorder "Declaration to which these By -Laws are attached and made a part
thereof, creating Prudentia Condominiums. The Declaration as it may be amended from time to
time is incorporated herein by reference, and all of the covenants, rights, restrictions and
liabilities therein contained shall apply to and govern the interpretation of these By -Laws. The
Prudentia Condominiums are subject to the restrictions of the Village of WestClay, including the
Declaration and By -Laws thereof, as described in paragraph 2 of the Declaration. The
definitions and terms as defined and used in the Declaration shall have the same meaning in
these By -Laws. The provisions of these By -Laws shall apply to the Property and the
administration and conduct of the affairs of the Corporation.
Section 1.02. Membership. The Owner of a Condominium Unit shall be a "Member"
of the Corporation. All Owners, tenants, future tenants, including their guests and invitees, and
any other person that might use or occupy a Condominium Unit or any part of the Property, shall
be subject to the restrictions, terms and conditions set forth in the Declaration, these By -Laws
and the Act, and to any rules and regulations adopted by the Board of Directors as herein
provided.
Section 1.03. Principal Office, Registered Agent and Registered Office. The address
of the principal office of the Corporation is 2071 Broughton Street, Carmel, Indiana, 46032. The
name of its Registered Agent and the address of the Registered Office of the corporation is as
stated in the records of the Office of the Indiana Secretary of State and may be changed from
time to time when authorized by the Board of Directors by filing a Notice of Change of
Registered Agent, Registered Office, and/or Principal Office with the Secretary of State.
1209051.3
Section 2.01. General Provisions
ARTICLE II
Board of Directors
(a) Board of Directors. The affairs of the Corporation and Prudentia
Condominiums shall be governed and managed by the Board of Directors (herein
collectively called "Board" or "Directors" and individually called "Director The initial
Board of Directors will consist of persons selected by Declarant on the date hereof and
120905 1.3
shall serve until the first annual meeting of the Board of Directors of the Corporation.
Thereafter, the Board of Directors shall be composed of the Owners and there shall be
two (2) Directors. No single Condominium Unit may be represented on the Board of
Directors by more than one person at a time.
(b) Multiple Owners. Where the Owner of a Condominium Unit consists of
more than one person, or is a partnership, there shall be only one voting representative
entitled to serve on the Board of Directors and entitled to all of the Percentage Vote
allocable to that Condominium Unit. At the time of acquisition of title to a
Condominium Unit by multiple Owners or a partnership, those persons constituting such
Owner or the partners shall deliver written notice prior to the commencement of the
annual meeting of the Board stating who is authorized to serve on the Board and vote on
behalf of the Owner.
(c) Voting by Corporation or Trust. Where a corporation or trust is an
Owner, a duly appointed representative of the corporation or the trustee may vote on
behalf of the corporation or the trust. The corporation or the trust shall deliver written
notice prior to the commencement of the annual meeting of the Board stating who is
authorized to serve on the Board and vote on behalf of the corporation or trust.
(d) Proxy. An Owner may vote either in person or by his, her or its duly
authorized and designated attorney -in -fact. Where voting is by proxy, the Owner shall
designate his, her or its attorney -in -fact in writing, delivered to an officer or the
Managing Agent (as defined in Section 2.06) of the Corporation prior to the
commencement of the meeting.
(e) Quorum. Except as otherwise provided in the Declaration, these
By -Laws, the Act or the Indiana Nonprofit Corporation Act of 1991 (the "Statute the
Owners representing sixty -five percent (65 of the Percentage Vote, according to the
Declaration.
(f) Annual Meetings. All Owners may attend and speak at annual meetings
of the Board. The President of the Corporation shall act as the Chairman of the annual
meeting of the Board of Directors if he or she is present. The Chairman shall call the
meeting to order and business will be conducted in the following order:
(i) Reading_of Minutes. Unless waived by a majority of the
Directors, the Secretary shall read the minutes of the last annual meeting
and the minutes of any special meeting held subsequent thereto.
(ii) Treasurer's Report. The Treasurer shall report to the
Board concerning the financial condition of the Corporation and answer
questions of the Owners concerning the Common Expenses and financial
report or budget for the prior year and the proposed budget for the current
year.
2
(iii) Budget. The budget for the next fiscal year shall be
presented to the Owners.
(iv) Other Business. Other business as the Owners and
Directors may bring before the meeting.
(v) Adjournment.
(g) Special Meeting. All Owners may attend and speak at special meetings
of the Board. The President of the Corporation shall act as Chairman of any special
meetings of the Board if he or she is present. The only business to be considered at such
meeting shall be the matters for which the meeting was called, as set forth in the notice of
the special meeting.
Section 2.02. Special Meetings. A special meeting of the Board may be called by
resolution of the Board of Directors or upon a written request of an Owner. The resolution or
petition shall be presented to the President or Secretary of the Corporation and shall state the
purpose for which the meeting is to be called. No business shall be transacted at a special
meeting except as stated in the petition or resolution.
Section 2.03. Notice of Meetings. Written notice stating the date, time and place of any
meeting of the Board and, in the case of a special meeting, the purpose or purposes for which the
meeting is called, shall be delivered or mailed by the Secretary of the Corporation to each Owner
not less than ten (10) days prior to the date of the meeting at the addresses of their respective
Condominium Units. A copy of each written notice shall also be delivered or mailed
simultaneously by the Secretary to each Mortgagee who (a) requests in writing that such notices
be delivered to it, and (b) has furnished the Corporation with its name and address in accordance
with Section 7.01 of these By -Laws. A Mortgagee may designate a representative to attend the
meeting.
Section 2.04. Waiver of Notice. Before any meeting of the Board of Directors, any
Director may waive notice of the meeting in writing and the waiver shall be deemed equivalent
to giving notice. Attendance at any meeting in person, by agent or by proxy shall constitute a
waiver of notice of the meeting or his or her subsequent consent to the actions taken at the
meeting shall constitute a waiver of notice of the time, place and purpose of the meeting. If all
Directors are present at any meeting of the Board of Directors, no notice shall be required and
any business may be transacted at such meeting.
Section 2.05. Term of Office and Vacancy Each member of the Board of Directors
shall serve for a term of one (1) year and may be reappointed by the Owner whom the Director
represents for succeeding one (1) year terms. Each Director shall hold office until his or her
successor is selected and qualified. A vacancy on the Board shall be filled by the Owner whom
the Director represents as provided in Section 2.01(b) and (c), unless the Owner is an individual.
The Director filling a vacancy shall serve until the next annual meeting of the Owners or until his
or her successor is selected and qualified.
1209051.3
3
Section 2.06. Removal of Directors. A Director may be removed with or without cause
by the Owner whom the Director requests if the Owner is not an individual. The Owner shall
appoint a successor for the Director immediately.
Section 2.07. Duties of the Board of Directors. The Board of Directors shall provide
for the administration of Prudentia Condominiums, the maintenance, upkeep and replacement of
the Common Areas unless the same are otherwise the resp.onsibility or duty of Owners of
Condominium Units, establish an annual budget and collect and disburse the Common Expenses.
The Board's duties include, but are not limited to:
1209051.3
(a) repair, protection and replacement of the Common Areas, unless the same
are otherwise the responsibility or duty of an Owner;
(b) procuring of utilities used in connection with Prudentia Condominiums,
although such utilities shall be separately metered and each Owner shall pay for utilities
for its Condominium Unit, removal of garbage and waste, and snow removal from the
Common Areas;
(c) landscaping, painting, decorating, furnishing, maintenance and upkeep of
the Common Areas;
(d) surfacing, paving and maintaining private streets, parking areas and
sidewalks to the extent the same are part of the Common Area;
(e) assessment and collection from the Owners of the Owner's share of the
Common Expenses;
(f) preparation of the proposed annual budget, a copy of which will be mailed
or delivered to each Owner with the notice of annual meeting is mailed or delivered;
(g) preparing and delivering annually to the Owners a full accounting of all
receipts and expenses incurred in the prior year; such accounting shall be delivered to
each Owner with the proposed annual budget for the current year;
(h) procuring and maintaining for the benefit of the Owners, the Corporation
and the Board the insurance coverages required under the Declaration and such other
insurance coverages as the Board, in its sole discretion, may deem necessary or advisable.
(i) The maintenance, repair, upkeep and replacement of the Common Area
(except as is otherwise the obligation of an Owner), including but not limited to, the
maintenance, repair, upkeep and replacement of the following (if located in the Common
Area):
(1) Signage;
(2) Flowers, plant material, grass and other landscaping;
4
1209051.3
(3) Irrigation system, if any; and
(4) Exterior lighting.
(j) Taking such action or performing such tasks as are, in the Board's
discretion, beneficial to the Owners.
Section 2.08. Powers of the Board of Directors. The Board of Directors shall have
such powers as are reasonable and necessary to accomplish the performance of its duties. These
powers include, but are not limited to, the power:
(a) to employ a Managing Agent to assist the Board in performing its duties,
including keeping a record and minutes of all meetings; provided, however, any
management agreement shall be terminable by the Corporation for cause upon thirty (30)
days written notice and otherwise upon ninety (90) days written notice, and any such
agreement may not exceed one (1) year, but may be renewable by agreement of the
parties for successive one (1) year periods.
(b) to purchase, lease or otherwise obtain for the benefit of the Owners or for
the Corporation such equipment, materials, labor and services as may be necessary in the
judgment of the Board of Directors;
(c) to employ legal counsel, architects, contractors, accountants and others in
the judgment of the Board of Directors as may be necessary or desirable in connection
with the business and affairs of the Association and of the Corporation;
(d) to employ, designate, discharge and remove such personnel as in the
judgment of the Board of Directors may be necessary for the maintenance, upkeep, repair
and replacement of the Common Areas and as otherwise necessary for the Board of
Directors to perform its duties;
(e) to include the costs of all of the above and foregoing as Common
Expenses and to pay all of such costs therefrom;
(0
Corporation;
to open and maintain a bank account or accounts in the name of the
(g) to adopt, revise and amend from time to time additional rules and
regulations with respect to use, occupancy, operation and enjoyment of the Tract, the
Common Area as the Board of Directors deems necessary or advisable; provided,
however, that copies of any rules and regulations shall be promptly delivered or mailed to
all Owners, and, provided further, that the rules and regulations are not in conflict with
any terms and provisions of the Declaration or of any rules and regulations adopted by
the Corporation; and
5
1209051 .3
(h) to adopt an annual budget for each fiscal year for the purpose of
estimating the total amount of Common Expenses for such fiscal year.
Section 2.09. Compensation. No Director shall receive any compensation for his or her
services. The Managing Agent shall be entitled to reasonable compensation for its services, the
cost of which shall be a Common Expense.
Section 2.10. Meetings. Regular meetings of the Board of Directors may be held at
such time and place as shall be determined from time to time by a majority of the Directors. The
Secretary shall give notice of regular meetings of the Board to each Director personally or by
United States mail at least five (5) days prior to the date of such meeting.
Section 2.11. Non- Liability of Directors. The Directors shall not be liable to the
Owners or any other persons for any error or mistake of judgment exercised in carrying out their
duties and responsibilities as Directors, except for their own individual willful misconduct, bad
faith or gross negligence. The Corporation shall indemnify and hold harmless and defend each
of the Directors against any and all liability to any person, firm or corporation arising out of
contracts made by the Board of Directors on behalf of the Corporation, unless the contract shall
have been made in bad faith or contrary to the provisions of the Declaration or By -Laws. It is
intended that the Directors shall have no personal liability with respect to any contract made by
them on behalf of the Corporation and that in all matters the Board of Directors is acting for and
on behalf of the Owners as their agent. The liability of any Owner arising out of any contract
made by the Board of Directors or out of the aforesaid indemnity in favor of the Directors shall
be limited to such percentage of the total liability or obligation thereunder as is equal to the
Owner's Percentage Interest. Every contract made by the Board of Directors or the Managing
Agent on behalf of the Corporation shall provide that the Board of Directors and the Managing
Agent, as the case may be, are acting as agent for the Owners and the Owners shall have no
personal liability thereunder, except in their capacity as Owners (if applicable) and then only to
the extent of their Percentage Interest.
Section 2.12. Additional Indemnity of Directors The Corporation shall indemnify,
hold harmless and defend any person, his or her heirs, successors, assigns and legal
representatives, known or unknown, made a party to any action, suit or proceeding by reason of
the fact that he or she is or was a Director of the Corporation, against the reasonable expenses,
including attorneys' fees, actually and necessarily incurred by him or her in connection with the
defense of such action, suit or proceeding, or in connection with any appeal therein, except as
otherwise specifically provided herein in relation to matters as to which it shall be adjudged in
such action, suit or proceeding that such Director is liable for gross negligence or willful
misconduct in the performance of his or her duties. The Corporation shall also reimburse to any
such Director the reasonable costs of settlement of or judgment rendered in any action, suit or
proceeding, unless it is determined by a majority of the Percentage Vote that such Director was
guilty of gross negligence or willful misconduct. In making such findings and notwithstanding
the adjudication in any action, suit or proceeding against a Director, no Director shall be
considered or deemed to be guilty of or liable for negligence or misconduct in performing his or
her duties where, acting in good faith, such Director relied on the books and records of the
Corporation or statements or advice made by or prepared by the Managing Agent of the
6
Corporation or any officer or employee thereof, or any accountant, attorney or other person, firm
or corporation employed by the Corporation to render advice or service unless such Director had
actual knowledge of the falsity or incorrectness thereof; nor shall a Director be deemed guilty of
or liable for negligence or misconduct by virtue of the fact that he or she failed or neglected to
attend a meeting or meetings of the Board of Directors.
Section 2.13. Bond. The Board of Directors shall require the Managing Agent,
Treasurer, employees, officers and agents handling or responsible for funds of or administered
on behalf of the Corporation to have surety bonds indemnifying the Corporation against larceny,
theft, embezzlement, forgery, misappropriation, willful misapplication and other acts of fraud or
dishonesty in an amount not less than the estimated maximum amount of funds, including
reserve funds, in the custody of the Corporation or the Managing Agent, as the case may be, at
any given time, but in no event less than a sum equal to three (3) months aggregate assessments
on all Condominium Units, plus reserve funds. Such bonds shall also specifically include
protection for any insurance proceeds received for any reason by the Board.
The bonds shall contain waivers by the issuers of the bonds of all defenses based upon
the exclusion of persons serving without compensation from the definition of employees or
similar terms or expressions. The expense of any such bonds, except those maintained by the
Managing Agent, shall be a Common Expense. The bonds shall provide that they may not be
cancelled or substantially modified (including cancellation for non payment of premium) without
at least thirty (30) days prior written notice to the Corporation and to all Mortgagees.
ARTICLE III
Officers
Section 3.01. Officers of the Corporation. The principal officers of the Corporation
shall be the President, Secretary and Treasurer, all of whom shall be elected by the Board. Any
two or more offices may be held by the same person, except that the duties of the President and
Secretary shall not be performed by the same person.
Section 3.02. Election of Officers. The officers of the Corporation shall be elected by
the Board of Directors at its annual meeting. Upon an affirmative vote of a majority of all
members of the Board of Directors, any officer may be removed either with or without cause and
his or her successor elected at any regular meeting of the Board or at any special meeting of the
Board called for such purpose. An officer shall serve at the pleasure of the Board of Directors
until the next annual meeting of the Board of Directors or until his or her successor is elected and
has qualified.
Section 3.03. The President. The President shall be elected from among the Directors
and shall be the chief executive officer of the Corporation. He or she shall preside at all
meetings of the Corporation and of the Board of Directors, shall have and discharge all the
general powers and duties usually vested in the office of president or chief executive officer of
an association or a stock corporation organized under the laws of the State of Indiana, including
but not limited to the power to appoint committees from among the Owners as he or she may
1 20905 .3
7
deem necessary to assist in the affairs of the Corporation and to perform such other duties as the
Board may from time to time prescribe.
Section 3.04. The Secretary. The Secretary shall be elected.from among the Directors.
The Secretary shall attend all meetings of the Corporation and of the Board and shall keep or
cause to be kept a minute book for the Corporation which shall contain true and complete record
of the proceedings of such meetings, the Articles, By-laws, and all amendments thereto; and
shall perform all other duties as from time to time may be prescribed by the Board. The
Secretary shall specifically see that all notices of the Corporation or the Board are duly given,
mailed or delivered, in accordance with the provisions of these By -Laws.
Section 3.05. The Treasurer. The Board shall elect from among the Directors a
Treasurer who shall maintain a correct and complete record of account showing accurately at all
times the financial condition of the Corporation and who shall perform such other duties incident
to the office of Treasurer. He or she shall be the legal custodian of all monies, notes, securities
and other valuables which may from time to time come into possession of the Corporation. He
or she shall immediately deposit all funds of the Corporation coming into his or her hands in
some reliable bank or other depository to be designated by the Board and shall keep such bank
account or accounts in the name of the Coiporation. The Treasurer may permit the Managing
Agent to handle and account for monies and other assets of the Association to the extent
appropriate as part of the Managing Agent's duties.
1209051.3
ARTICLE IV
Assessments
Section 4.01. Annual Accounting. Annually, within ninety (90) days after the close of
each fiscal year of the Corporation, the Board may cause to be prepared and furnished to each
Owner a financial statement prepared by the tax advisors then serving the Coiporation, which
statement shall show all receipts and expenses received, incurred and paid during the preceding
fiscal year.
Section 4.02. Proposed Annual Budget. The Board of Directors shall adopt an annual
budget prior to the end of the then current fiscal year for the next fiscal year estimating the total
amount of the Common Expenses for the next fiscal year, provided, however, that the initial
annual budget shall be adopted by the Board of Directors within thirty (30) days of the adoption
of the Declaration. The budget may not increase by more than twenty percent (20 of the
previous annual budget without the approval of a majority of the Percentage Vote of the Owners.
A copy of the proposed annual budget shall be furnished to each Owner prior to December 1 of
each year. The proposed annual budget presented to the Owners at the annual meeting of the
Board shall be the basis for the Regular Assessments (defined in Section 4.03) during the next
fiscal year. The annual budget, the Regular Assessments and all sums assessed by the
Corporation shall be prepared by using generally accepted accounting principles applied on a
consistent basis. The annual budget and the Regular Assessments shall, in addition, be
established to include the establishment and maintenance of an adequate replacement reserve
fund for capital expenditures and replacement and repair of the Common Areas. The
replacement reserve fund shall be used for the foregoing purposes and not for usual and ordinary
8
repair expenses of the Common Areas. Such replacement reserve fund for capital expenditures
and replacement and repair of the Common Areas shall be maintained by the Corporation in a
separate interest bearing account or accounts with one or more banks or savings and loan
associations authorized to conduct business in the State of Indiana, selected from time to time by
the Board of Directors. The failure or delay of the Board of Directors to prepare an 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.
Section 4.03. Regular Assessments. The annual budget adopted by the Board shall
contain an assessment against each Condominium Unit that is based on the estimated cash
requirement for the Common Expenses in the current fiscal year. Immediately following the
adoption of the annual budget, each Owner shall be given written notice of the assessment
against the Owner's Condominium Unit (herein called the "Regular Assessment The aggregate
amount of the Regular Assessments shall be equal to the total amount of expenses included in the
final annual budget, including reserve funds and the total Regular Assessment. The Regular
Assessment against each Condominium Unit shall be paid in advance in equal monthly
installments, commencing on the first day of the first month of each fiscal year and monthly
thereafter through the last month of such fiscal year. Payment of the Regular Assessment shall
be made to the Board of Directors or the Managing Agent, as directed by the Board of Directors;
provided, however, Owners may elect to pay regular assessments monthly, quarterly,
semi annually or annually, in advance. The Regular Assessment for the current fiscal year shall
become a lien on each Condominium Unit as of the first day of each fiscal year of the
Corporation, even though the final determination of the amount of such Regular Assessment may
not have been made by that date. Monthly installments of Regular Assessments shall be due and
payable automatically on their respective due dates without any notice from the Board or the
Corporation, and neither the Board nor the Corporation shall be responsible for providing any
notice or statements to Owners for the same.
The fact that an Owner has paid the Owner's Regular Assessment for the current fiscal
year in whole or in part based upon a previous budget before the annual budget and Regular
Assessment are adopted, sells, conveys or transfers the Owner's Condominium Unit or any
interest therein, shall not relieve or release Owner or the Owner's successor as owner of the
Condominium Unit from paying of the Regular Assessment as finally determined, and the Owner
and the Owner's successor shall be jointly and severally liable for the Regular Assessment as
finally determined. Any statement of unpaid assessments furnished by the Corporation pursuant
to Section 7.02 hereof prior to the adoption of the annual budget and Regular Assessment for the
year in which such statement is made shall state that the matters set forth therein are subject to
adjustment upon adoption of the final budget and Regular Assessment for such year, and all
parties to whom any such statement may be delivered or who may rely thereon shall be bound by
such final determination.
Section 4.04. Special Assessments. The Board of Directors shall have the power to
make special assessments for Common Expenses of an unusual or extraordinary nature or not
otherwise anticipated which, upon resolution of the Board, shall become a lien on each
Condominium Unit, prorated in accordance with the Percentage Interest of each Condominium
1209051.3
9
Unit (herein called "Special Assessment unless otherwise provided in these By -Laws, the
Declaration or the Act. 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, to pay for operating deficits, 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 the Declaration.
1209051.3
Section 9.05. Failure of Owner to Pay Assessments.
(a) No Owner may exempt himself or herself from paying Regular
Assessments and Special Assessments, or from contributing toward the expenses of
administration and of maintenance and repair of the Common Areas and of the Building,
and toward any other expense lawfully agreed upon, by waiver of the use or enjoyment of
the Common Areas or by abandonment of the Condominium Unit belonging to the
Owner. Each Owner shall be personally liable for the payment of all Regular
Assessments and Special Assessments. Where the Owner constitutes more than one
person, the liability of such persons shall be joint and several. If any Owner fails, refuses
or neglects to pay any Regular Assessments or Special Assessments when due, the lien
for the Assessment on the Owner's Condominium Unit may be filed and foreclosed by
the Board on behalf of the Association as provided by law. If an Owner fails to pay any
Regular Assessments and/or Special Assessments, within ten (10) days after they are due
(with such due dates being set forth in Sections 4.03 and 4.04 herein), the Board may (i)
impose a late charge of up to fifteen percent (15 of the amount past due, (ii) accelerate
the entire balance of the budgeted and unpaid Regular Assessments and/or Special
Assessments, and any and all fines, charges and late fees, applicable to the current full
calendar year and all previous calendar years to the Owners and declare the same
immediately due and payable, and (iii) eliminate the Owner's Percentage Vote. In any
action to foreclose the lien for any Assessments, the Owner and any occupant of the
Condominium Unit shall be jointly and severally liable to pay reasonable rent for the
Condominium Unit to the Corporation, and the Board shall be entitled to the appointment
of a receiver for the purpose of preserving the Condominium Unit and to collect the
rentals and other amounts therefrom for the benefit of the Corporation to be applied to the
unpaid Regular Assessments or Special Assessments. The Board may bring a suit to
recover a money judgment for any unpaid Regular Assessment or Special Assessment
without foreclosing or waiving the lien securing the same. The Board shall be entitled to
recover costs and expenses it incurs in an action to recover a Regular Assessment or
Special Assessment, including reasonable attorneys' fees, from the Owner of the
respective Condominium Unit.
(b) Notwithstanding any other provisions in the Declaration and these
By -Laws, the lien for any Regular Assessment or Special Assessment shall be
subordinate to the lien of any Mortgagee. Any sale or transfer of a Condominium Unit to
a Mortgagee pursuant to foreclosure on its mortgage, a conveyance in lieu thereof, or a
conveyance to any person at a public sale in a manner provided by law with respect to
mortgage foreclosures, shall extinguish the lien of any unpaid installment of any Regular
Assessment or Special Assessment as to such installments which became due prior to
10
such sale, transfer or conveyance; provided, however, that extinguishing the lien shall not
relieve the prior Owner from personal liability therefor. No sale, transfer or conveyance
shall relieve the Condominium Unit or the purchaser at such foreclosure sale, or grantee
in the event of conveyance in lieu thereof, from liability for any installments of Regular
Assessments or Special Assessments thereafter becoming due or from the lien therefor.
The unpaid share of any Regular Assessments or Special Assessments, the lien for which
has been divested as provided above, shall be deemed to be a Common Expense,
collectible from all Owners (including the party acquiring the subject Condominium Unit
from which it arose), as provided in the Act.
Section 4.06. Maintenance and Repairs. Every Owner shall promptly perform all
maintenance and repair within the Owner's own Condominium Unit which, if neglected, would
affect the value of the Property. In addition, each Owner shall furnish, and shall be responsible
at the Owner's own expense for, the maintenance, repairs and replacements of the Owner's
Condominium Unit and all equipment serving the same, include, but are not necessarily limited
to, water lines, gas lines, plumbing and electric lines which service the Owner's Condominium
Unit and are located within exterior walls of the Owner's Condominium Unit, including any lines
in the area from below the floor to above the roof if they are within an extension of the exterior
walls of the Condominium Unit; all partitions and interior walls, ceilings and floors; appliances,
to include garbage disposals, dishwashers, stoves, ranges and refrigerators, telephones, air
conditioning and heating equipment (whether located wholly or partially inside or outside the
Condominium Unit), doors, screens and windows (including exterior and interior of all glass and
screen surfaces), lamps, and interior grouting andlor caulking and all other accessories
appurtenant to the Condominium Unit or belonging to the Owner thereof In addition, the Owner
of the Residential Condominium is responsible for the maintenance, repair and upkeep of the
Owner's garage, including the garage door.
If, due to the acts or omissions of an Owner or of a guest, tenant, occupant, visitor,
invitee, or contractor of the Owner, or of an Owner's pet or vehicle, the Common Areas or to a
Condominium Unit is damaged, or if maintenance, repairs or replacements shall be required
thereby which would otherwise be a Common Expense, then such Owner shall pay for such
damage and the maintenance, repairs and replacements, as may be determined by the Board of
Directors, unless the loss is covered by the Corporation's insurance with such policy having a
waiver of subrogation clause. The cost of repairing the damage shall be added to and become a
part of the assessment to which the Owner's Condominium Unit is subject if not paid by the
Owner upon demand by the Corporation. Maintenance, repairs and replacements to the
Common Areas or the Condominium Units shall be subject to the rules and regulations adopted
from time to time by the Board.
To the extent that equipment, facilities and fixtures within any Condominium Unit shall
be connected to similar equipment, facilities or fixtures affecting or serving other Condominium
Units or any Common Areas, then the use thereof by the Owner of such Condominium Unit shall
be subject to the rules and regulations adopted from time to time by the Board. The authorized
representatives of the Corporation, Board of Directors or the Managing Agent for the
Corporation, shall be entitled to reasonable access to any Condominium Unit as may be required
in connection with maintenance, repairs or replacements of or to the Common Areas or any parts
209051.3
11
thereof, or any equipment, facilities or fixtures affecting or serving other Condominium Units or
any Common Areas.
Section 5.01. Restrictions on Use. The following restrictions on the use and enjoyment
of the Condominium Units, Common Areas and the Property are in addition to those set forth in
the Declaration:
1209051.3
ARTICLE V
Restrictions, Entry and Rules and Regulations
(a) Personal Property. All personal property of the Owner of the Residential
Condominium must be kept inside the porch area or the garage of the Residential
Condominium. Nothing may be hung or displayed, nor may signs, awnings, canopies,
shutters, antennae or satellite dishes or any other device or ornament be affixed to or
placed upon the exterior walls, doors, fences or roof of the Building without prior written
approval of the Board of Directors.
(b) Decorative Items: (i) Holiday lights and decorations are permitted to be
placed in the Common Area and/or on the Building exterior provided the decorations do
not damage the Common Area, the Building, gutters or siding; and the American flag
may be flown or displayed at anytime following normal flag protocol.
(c) Flowers /Landscape Plants. The Board of Directors shall adopt a
landscape plan appropriate to the Building.
(d) Exterior Alterations. No alterations, additions, fences, walls, patios,
decks, etc., may be made to the exterior surface of the Building, nor may any trees or
shrubs be planted, transplanted or removed without prior written approval of the Board.
(e) Windows and Window Coverings. All window coverings, whether
draperies, blinds (vertical or horizontal) or valances must be white, off white, Light beige
or light gray on the exterior side.
(f) Signs. Nothing may be hung or displayed from inside the windows of a
Condominium Unit except professionally prepared "For Sale" and "For Rent" signs or
security system decals, which shall be limited in size and number. No real estate signs are
permitted in any Common Area.
(g) Animals. All domestic animals that are pets of the Owner of the
Residential Unit shall be kept on a leash not more than eight (8) feet in length when
outdoors. Pets shall be supervised by a responsible individual at all times and that
individual shall be responsible for the immediate clean up of all pet litter. No pet shall be
tethered outside on the Tract and kept in the Commercial Unit.
(h) Parking/Vehicles. No boats, trailers, motor homes, recreational vehicles,
trucks travel trailers, or any vehicle with commercial advertising may be parked on any
12
street or driveway of the Property overnight. Commercial moving vans, when conducting
contract business, and commercial trucks when in the area to perform service or repair
work are an authorized exception. Parking by the Owners or guests of the Residential
Unit must be (i) in the garage; (ii) in the parking lot; or (iii) on the street in such a manner
so as not to block access to the garage or street. Parking for the Commercial Unit shall
be in the parking lot for the Building or on public streets. No vehicle shall be parked in
any manner-which blocks any street or driveway, or the ingress /egress to the garage.
(i) Utilities. Owners are responsible for maintaining and paying their own
gas, water, sewage, electric, and telecommunication service, and for calling to initiate
service on the date of possession.
(j) Condominium Sales. Any Owner who sells a Condominium Unit is
responsible for making certain the Corporation is aware of ownership changes at the time
a closing date is established; making certain all fees and assessments are current; and
making certain new owners receive the Declaration, By -Laws and any rules and
regulations of the Corporation.
Section 5.02. Compliance with Covenants, Conditions and Restrictions. Every
Owner, mortgagee, Iessee or other occupant of a Condominium Unit shall comply with the
covenants, conditions and restrictions set forth in the Declaration, with the By -Laws and with the
Rules and Regulations. A violation committed by any persons residing in, occupying or visiting
a Condominium Unit with the implied or express permission of the Owner or any other occupant
of the Condominium Unit, or committed by any agent, employee, business invitee, or contractor
of the Owner or of any person occupying a Condominium Unit, shall be attributed to that
Condominium Unit and the Owner thereof. An action seeking a declaratory judgment, the
recovery of sums due for damages, or injunctive relief, or any or all of them may be brought by
the Board of Directors or by an interested party who has obtained the prior written consent of the
Board of Directors against any Owner, or any person entitled to occupy a Condominium Unit
who refuses to comply or threatens to refuse to comply with any provisions of this Declaration,
the By -Laws, the Rules and Regulations, or any other document establishing ownership or
control over any part of the Tract.
Any action brought by the Corporation hereunder may be brought in its own name, in the
name of its Board of Directors or in the name of the Managing Agent. In any case of flagrant or
repeated violation by an Owner, the Board of Directors may require the Owner to give sufficient
surety or sureties for the Owner's future compliance with the covenants, conditions and
restrictions contained in this Declaration and with the By -Laws and Rules and Regulations.
Section 5.03. Right of Entry. All Owners and occupants of a Condominium Unit shall
be deemed to have granted the right of entry thereto to the Declarant, the Managing Agent or any
other person authorized by the Board in case of any emergency originating in or threatening the
Owner's Condominium Unit or the Building in which it is located, whether the Owner is present
at the time or not. Any Owner shall permit other persons, or their representatives when so
required, to enter the Owner's Condominium Unit for the purpose of performing installations,
alterations or repairs to the mechanical or electrical services, or to make structural repairs
1209051.3
13
provided that requests for entry are made in advance and that such entry is at a time reasonably
convenient to the Owner. In case of emergencies, such right of entry shall be immediate.
Section 5.04. Rules and Regulations. The Board of Directors may adopt such
additional rules and regulations regarding the operating of the Property as it may deem necessary
and such rules may be amended by a vote of a majority of the Board of Directors. The Board of
Directors shall promptly deliver or mail copies of the rules and regulations and all amendments
to all Owners,
ARTICLE VI
Amendment to By-Laws
Section 6.01. These By -Laws may be amended in the same manner, and subject to the
same limitations and requirements, as amendments to the Declaration, as set forth in paragraph
18 of the Declaration. Amendments to these By -Laws shall be considered as amendments of the
Declaration and shall be recorded in the office of the Recorder of Hamilton County, Indiana, as
required by the Declaration and the Act.
1209051.3
ARTICLE VII
Mortgages
Section 7.01. Notice to Corporation. Any Owner who places a mortgage lien upon the
Owner's Condominium Unit or the Mortgagee shall notify the Secretary of the Corporation
thereof and provide the name and address of the Mortgagee. A record of the Mortgagee and
name and address shall be kept by the Secretary and any notice required to be given to the
Mortgagee pursuant to the terms of the Declaration, these By -Laws or the Act shall be mailed to
the Mortgagee at the address shown in the records of the Corporation. Unless notification and the
address of a Mortgagee are furnished to the Secretary, no notice to a Mortgagee, as may be
required by the Declaration, these By -Laws or the Act, shall be required and no Mortgagee shall
be entitled to vote on any matter to which it otherwise may be entitled by virtue of the
Declaration, these By -Laws, the Act, or by a proxy granted to such Mortgagee in connection
with the mortgage.
The Corporation shall, upon request of a Mortgagee who has furnished the Corporation
with its name and address as hereinabove provided, furnish such Mortgagee with written notice
of any default in the performance by its borrower of any obligations of such borrower under the
Declaration or these By -Laws which is not cured within thirty (30) days,
A guarantor or insurer of a Mortgage may receive any notice that the Corporation is
required to give to a Mortgagee if the guarantor or insurer requests notice in writing and provides
its address to the Corporation.
Section 7.02. Notice of Unpaid Assessments. Upon request of a Mortgagee, a
proposed mortgagee, or a proposed purchaser who has a contractual right to purchase a
Condominium Unit, the Corporation shall furnish a statement listing the amount of the unpaid
Regular Assessments or Special Assessments against the Condominium Unit, which statement
14
shall be binding upon the Corporation and the Owners, and any Mortgagee or grantee of the
Condominium Unit shall not be liable for nor shall the Condominium Unit conveyed be subject
to a lien for any unpaid assessments in excess of the amount set forth in such statement or as
such assessments may be adjusted upon adoption of the final annual budget, as referred to in
Section 5.03 hereof.
ARTICLE VIII
Miscellaneous
Section 8.01. Fiscal Year. The fiscal year of the Corporation shall be the calendar year.
Section 8.02. Personal Interests. No Owner shall have or receive any earnings from
the Corporation as a result of being an officer or director of the Corporation except an Owner
may receive principal and interest on moneys loaned or advanced to the Corporation as provided
in the Statute.
Section 8.03. Contracts, Checks, Notes, Etc. All contracts and agreements entered
into by the Corporation and all checks, drafts and bills of exchange and orders for the payment of
money shall, in the conduct of the ordinary course of business of the Corporation, unless
otherwise directed by the Board of Directors, or unless otherwise required by law, be signed by
the President, the Treasurer, or an authorized representative of the Managing Agent. Any one of
the documents heretofore mentioned in this section for use outside the ordinary course of
business of the Corporation or any notes or bonds of the Corporation shall be executed by and
require the signature of the President and Secretary.
Section 8.04. Financial Statement. Upon the written request from any person that has
an interest or prospective interest in any Condominium Unit, the Corporation shall prepare and
furnish to such entity within a reasonable time a financial statement of the Corporation for the
immediately preceding fiscal year.
1209051,3
15
Unit Square Footage Percentage Interest
Commercial Unit 6,310
Residential Unit 5,523
1208555.2
1208555.3
EXHIBIT D
PERCENTAGE INTEREST
53%