HomeMy WebLinkAboutDeclaration of Ownership Bldg 2 RECORDED11
DULY ENT :RED FOR TAXATION
Subject to final acce Nance for transfer
.23. day of_ -�i�i. 201
60(nlak Auditor of Hamilton County
_Parcel
2010062757 DECLARATIO $130.00
11/23/2010 04:18:51P 60 PGS
Jennifer J Hayden
HAMILTON County Recorder IN
Recorded as Presented
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Cross Reference: Instrument No.: f Lo 1 L9
DECLARATION OF
CONDOMINIUM OWNERSHIP
FOR
THE CARMEL CITY CENTER CONDOMINIUM BUILDING 2
NOVEMBER 17, 2010
DECLARATION OF CONDOMINIUM OWNERSHIP
FOR
THE CARMEL CITY CENTER CONDOMINIUM BUILDING 2
This Declaration of Condominium Ownership (this "Declaration is dated
effective as of November 17, 2010, by Carmel City Center, LLC, an Indiana limited
liability company "Declarant who is the owner of the property described on Exhibit
"A" attached to and made a part of this Declaration for all purposes (the "Property
RECITALS
A. The Property contains approximately 0.2203 acres upon which Declarant
is currently constructing a 3 story building and office facilities that contains
approximately 19,973 square foot of commercial office space on the second and third
floors, and approximately 7,226.2 square foot of retail space on the first floor "Premises"
as further defined below). The building upon the recording of this Declaration will
contain 2 condominium units, including (a) 1 retail condominium unit on the 1 floor of
the building (comprised of 4 retail suites), and (b) 1 office condominium unit on the 2nd
and 3 floors of the building (comprised of numerous commercial offices). The garage
level which shall be Common Areas, will consist of utility mechanical rooms. The
building and Premises are situated within a larger mixed -use development currently
known as the Carmel City Center development, which will when completed contain
residential, office and retail space (collectively the "Project" as further defined below).
The Property is comprised of the real estate described on Exhibit "A A site plan
depicting Phase I of the Project is attached hereto as Exhibit B1, and a site plan depicting
the entire Project is attached hereto as Exhibit B2.
B. The Declarant anticipates that certain portions of the Premise may be
conveyed or sold to third parties for specific uses.
C. In order to protect the development that has already occurred, and provide
for the maintenance of Common Areas within the Premises, the Declarant desires to
impose these covenants, restrictions, easements, charges and other agreements set forth in
this Declaration on the Premises.
D. The Declarant desires to create entities that will have the powers and
duties of maintaining certain Common Areas, enforcing the obligations hereunder,
collecting and disbursing the Building Assessments hereinafter provided for, and
performing all other functions of the Association as set forth herein.
NOW, THEREFORE, for and in consideration of the matters set forth in the
Recitals and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Declarant hereby imposes the following covenants,
restrictions, easements, and agreements upon the entire Premises.
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ARTICLE I DEFINITIONS
lDefinitions. The following words or phrases, when used in this Declaration, unless
the context shall otherwise clearly indicate or prohibit, shall have the following
meanings:
1.1 "Access Declarations" shall mean that certain Garage Access Declaration, made by
the Declarant and recorded at the County Clerk simultaneously with or prior to the
recording of this Declaration, that concerns (a) pedestrian and vehicular access from
public right -of -ways to and through the Parking Garage, (b) vehicular ingress and
egress through the Parking Garage to public and private parking spaces, and (c)
pedestrian ingress and egress from the Parking Garage to the Building and vice versa.
1.2 Approval of Two Thirds of the Members" shall mean two- thirds of all the votes
which could be cast pursuant to Section 6.3 below if all Members of an Association
were Members in Good Standing and attended a meeting of the Association in person
or by proxy; provided, however, that such action may be taken by written consent of
such Members of the Association without the necessity of a meeting. If all Members
of the Association are not in Good Standing, then any vote requiring Approval of
Two Thirds of Members will be calculated based upon Two Thirds of the Members
of the Association in Good Standing.
1.3 "Building" shall mean the building on the Real Estate that is known as Building 2
which is 3 stories above ground and 1 story within the garage level as more
particularly described in paragraph 2.4 of this Declaration, which is intended to be
used for office and retail purposes.
1.4 "Building Association" shall mean a to be formed Indiana non profit corporation;
provided, however, until such time as the Building Association is formed, the
Declarant shall perform all obligations of, and be entitled to exercise all rights of, the
Building Association with respect to the matters set forth in this Declaration.
1.5 "Building Articles" shall mean the articles of incorporation of the Building
Association, as the same may be amended from time to time. The Building Articles
are herein incorporated by reference.
1.6 "Building Assessments" shall mean the Building Regular Assessments and the
Building Special Assessments.
1.7 "Building Board" shall mean the governing body of the Building Association being
the initial Building Board referred to in the Building Bylaws or any subsequent
Building Board elected by the Members of the Building Association accordance with
the Building Bylaws.
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1.8 "Building Bylaws" shall means the Bylaws of the Building Association, as the same
may be amended from time to time. A true copy of the Building Bylaws is attached
to this Declaration as Exhibit C and incorporated herein by this reference.
1.9 "Building Common Expense" shall mean the costs and expenses for administration of
the Building Association and for upkeep, maintenance, repair and replacement of the
Common Areas (exclusive of the Limited Common Areas appurtenant to individual
Units) and for capital repair and capital replacement in Limited Common Areas, and
all sums lawfully assessed (through Building Regular Assessments and Building
Special Assessments) against the Members of the Building Association, which shall
include without limitation, payment of insurance premiums for Common Areas and
Limited Common Areas, the payment for the cost of trash removal to the extent not
separately contracted for by the Owners or Occupants, and the establishment of
reserves.
1.10 `Building Percentage Interest" shall mean the percentage undivided interest in the
fee simple title to the Common Areas appertaining to each Unit as determined and/or
expressed in paragraph 2.9 of this Declaration.
1.11 "Building Percentage Vote" shall mean the percentage of the total vote as
members of the Building Association that accrues to all of the Units which is
appurtenant to each particular Unit and accrues to the Owner thereof. The Building
Percentage Vote to which each Owner shall be entitled on any matter upon which the
Owners are entitled to vote as a member of the Building Association shall be the
same percentage as the Building Percentage Interest appurtenant to such Owner's
Unit.
1.12 "Building Regular Assessment" shall mean the regular assessment applicable to
all Owners as provided in Paragraph 5.2 of this Declaration and the Building Bylaws,
which shall be assessed against Unit Owners on a periodic basis as determined by this
Declaration or the Building By -Laws, and, if not prescribed therein, by the Building
Board.
1.13 "Building Special. Assessment" shall mean the special Building Assessment
applicable to all Owners as provided in Paragraph 5.2 of this Declaration and in the
Building Bylaws, which shall be assessed by the Building Board from time to time
against Owners to pay for Building Common Expenses not assessed in the Building
Regular Assessment, or for the cost of emergency repairs, or for shortfalls in reserve
as permitted by this Declaration or the Building Bylaws..
1.14 "City" means the City of Carmel, Indiana.
1.15 "Co- owners" shall mean all of the Owners of all of the Units.
1.16 "Common Areas" shall mean all of the Premises, except that portion thereof
described in this Declaration as constituting a Unit or Units, and is that portion of the
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Premises constituting garage level and other common areas and facilities of the
Condominium under the provisions of the Condominium Act, including, but not limited
to, garage area, mailboxes, master television antenna, if any, which Common Areas
(except, to the extent described below under the maintenance obligations for Limited
Common Areas) shall be maintained by the Building Association, including, among
other facilities (as such may be applicable to the Premise), building exteriors and
roofs, common open spaces, loading areas, lighting facilities, drinking fountains,
meeting rooms, public toilets, and the like. This definition is further supplemented by
the descriptions contained in Section 2.9 hereof.
1.17 "Condominium Act" means the statutory law of the State of Indiana regulating the
creation and operations of condominiums and is presently the Indiana Horizontal
Property Law, (I.C. 32- 25 -1 -1- through 32- 25 -9 -2).
1.18 "County Clerk" shall mean the Office of the County Recorder of Hamilton County,
Indiana.
1.19 "Declarant" shall mean Carmel City Center, LLC, an Indiana limited liability
company, and successor entities that are affiliates of Carmel City Center, LLC and to
which Carmel City Center LLC transfers the Premises.
1,20 "Identified Mortgagees" shall mean the Mortgagees that have provide written
notice to the Building Association, which notice identifies such Mortgagee, the Unit
as to which they are a Mortgagee and provides the Building Association with the
address of such Mortgagee.
1.21 "Declaration" shall mean this Declaration of Condominium Ownership for the
Carmel City Center Building 2 for the Premises and any amendment or supplement
thereto enacted in accordance with the provisions hereof.
1.22 "First- Class" when used in this Declaration in connection with the maintenance,
operation or condition of the Premises or any portion of the Premises, refers to the
comparative standard of excellence judged in accordance with the standards for
mixed use real estate developments situated within the Midwest region of the United
States which are maintained to a "first class" or "class A" standard of care.
1.23 "Garage Agreements" shall mean the Garage Option Agreement and the Access
Declarations.
1.24 "Garage Option Agreement" shall mean that certain Garage Option Agreement
dated December 31, 2009, by and between the Declarant and The Carmel
Redevelopment Commission "CRC), under which (i) Declarant has an option to
transfer fec simple title of the Parking Garage (or a portion thereof) to the CRC or the
City of Carmel, and (ii) CRC has an option to require Declarant to transfer fee title to
the Parking Garage (or a portion thereof) to CRC or the City of Carmel.
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1.25 "Improvements" means any and all physical structures, facilities, alterations or
changes of any type or nature made to the Premises from time to time, including,
without limitation, loading areas, mechanical equipment, window coverings, signs,
utilities, antennae, walls, poles, recreational facilities, exterior lighting facilities,
drainage structures, retaining walls, and grates.
1.26 "Interest Rate" shall have the meaning ascribed to such term in Section 5.2(d)
hereof.
1.27 "Limited Common Areas" shall mean the stairwell areas, the use and enjoyment
of which are limited to use by Unit2, which are depicted and or described as such on
the Plans or otherwise defined in this Declaration as Limited Common Area.
1.28 "Majority Vote of the Members" shall have the meaning ascribed to such term in
Article XI hereof.
1.29 "Member" means each member of the Association as provided for in ARTICLE
IV hereof.
1.30 "Mortgagee" means any bank, financial institution, savings and loan association,
trust company, insurance company, pension fund, real estate investment trust, credit
union, REMIC or other similar entity which holds a first lien on a Unit of a Member
pursuant to the terms of a deed of trust or mortgage which is recorded in the real
property records of the County Clerk against such Unit.
1.31 "Owner" shall mean each and every person or entity who is a record owner of a
fee simple interest in a Unit.
1.32 "Parking Garage" shall mean the one (1) story parking structure located adjacent
to Building 2 as set forth in the Access Declaration and Garage Option Agreement for
Phase 1 of the Project, a depiction of which is attached hereto as Exhibit B -3.
1.33 "Parking Spaces" shall mean any vehicular parking areas or parking spaces
which are owned by the Declarant or the Building Association, and the use of which
is leased, licensed or assigned to a Unit pursuant to the Access Declaration and
Garage Option Agreement It is understood and agreed that the Parking Spaces may
change locations from time to time based upon terms or changes in terms in
instruments and agreements described in the foregoing sentence.
1.34 "Party Wall" shall mean a wall located at the perimeter of a Unit, which is a
common wall shared with an adjacent Unit.
1.35 "Perimeter Wall" means any wall adjacent to either the exterior of the Building or
any Common Area or Limited Common Area.
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1.36 "Permittees" means (i) the Owners, (ii) any person or entity (an "Occupant from
time to time entitled to the use and occupancy of any portion of the Building under an
ownership right or any lease, sublease, license, concession, or other similar
agreement, and (iii) the officers, directors, employees, agents, contractors, customers,
vendors, suppliers, visitors, and invitees of the Owners or Occupants (collectively, the
"Invitees but only insofar as such Invitees are engaged in activities directly related
to the discharge of their responsibilities to an Owner or an Occupant or their
patronization of any Owner or Occupant's business within the Premises.
1.37 "Plans" shall mean the floor plans and other information of the Units as filed in
office of the County Clerk as Instrument 1()C) 1 recorded on
November 2010, which plans are incorporated herein by reference.
1.38 "Premises" shall mean the Real Estate and appurtenant easements, the Units, the
Common Areas, Building 2, the improvements and property of every kind or nature
whatsoever, real, personal, mixed, located upon the Real Estate, and used in
connection with the operation, use and enjoyment thereof, but does not include the
personal property of. any Owner.
1.39 "Project" shall mean the Cannel City Center development, which shall include
parcel 5 and parcel 7, a depiction of which is attached hereto as Exhibit B -2.
1.40 "Real Estate" shall mean the real property and all improvements thereon, a legal
description of which is attached as Exhibit A, and incorporated herein by reference.
1.41 "Regime" means a Condominium under the Act.
1.42 Unit(s)" shall mean Unit(s) described in the Plans and this Declaration, Unit 1
of which is generally comprised of the first floor and Unit 2 is generally comprised of
the second and third floors of the Building; provided, however, the Declarant shall
have the authority from time to time pursuant to Article IV to divide, subdivide,
separate, and /or combine Units (upon the recording of the amended plans) which
shall be a separate condominium unit for purposes of the Act and for purposes of this
Declaration.
1.43 "Rule and Regulations" means such Rules and Regulations as promulgated by the
Building Board from time to time, with respect to various details of use of all or any
portion of the Units, either supplementing or amplifying the provisions of this
Declaration, the Building Bylaws.
Other terms used in this Declaration are defined in various provisions contained herein.
ARTICLE H GENERAL
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2.1 Declaration. Declarant hereby expressly subjects the Premises to the Act and
declares that the Premises shall be a Regime in accordance therewith.
2.2 Purpose of Declaration. The purpose of this Declaration is to promote the proper
development and use of the Premises in a manner that is consistent with the quality
and integrity of the developments within the City; to maintain and support a quality
designed mixed -use Project; to restrict certain uses within the Units, Common Areas,
the Building, and the Premises; to provide for the administration and enforcement of
this Declaration; and generally to preserve the aesthetic appearance of the Building,
Improvements, and Premises in a manner that is consistent with the Project.
2.3 Property Subject to Declaration. The property initially covered by this Declaration is
depicted and/or described in the Plans, and as otherwise described herein. Any right,
title and interest in the Premises owned or held by any person (except for the rights of
the City and its agents) shall be subject to this Declaration and the covenants,
conditions, restrictions, easements, charges and liens set forth herein during the time
period described herein, as the same may be added to, modified or deleted in
accordance with the provisions of this Declaration.
2.4 Description of the Building. The Declarant will construct one (1) Building on the
Real Estate, which will be three (3) stories in height above ground level and one (1)
story within the garage level, all as depicted and/or described on the Plans.
2.5 Description and Limitation of Units.
2.5.1 Legal Description of Units. Each Unit is identified on the Plans by a Unit
number. The legal description for each Unit shall consist of the Unit number as
shown on the Plans, and shall be stated as "Unit in the Cannel City Center
Condominium Building 2, a schedule of which is attached hereto as Exhibit B -4.
2.5.2 Appurtenances of Units. Each Unit shall consist of all space within the
boundaries thereof, as hereinafter described, including but not limited to and
together with: (i) the drywall, wall paneling, wood, tile, paint, paper, carpeting,
and any other wall, ceiling, or floor coverings and interior doors and frames; (ii)
any fireplace; (iii) fixtures and hardware and all improvements that are contained
within the unfinished Perimeter Walls, ceilings, floors, and that serve only the
Unit; (iv) any heating, ventilation, cooling, and other mechanical, electrical,
electronic or fiber optic or other related equipment, utility lines and outlets,
electrical and plumbing fixtures, pipes, and all other related equipment required to
provide electrical communications, heating, air conditioning, hot and cold water,
or other services solely to the Unit; provided, however, the Unit shall not include
any structural components of the Building or utility or service lines or other
related equipment located within the Unit but serving more than one (1) Unit.
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2.5.3 Boundaries of Units. The boundaries of each Unit shall be shown on the Plans
and shall generally consist of the enclosed rooms in the Building and shall be
bounded by the following planes:
(i) The Unit -side surface of all doors, and their sills and hardware, leading
from such Unit to the interior corridors of the Building and the Unit -side
surface of the door frames in which such doors are set.
(ii) The Unit -side surface of the sash of windows which are set in the exterior
walls of such Unit, the interior surfaces of the panes of such windows and
the Unit -side of the panes of such windows;
(iii) With respect to Perimeter Walls:
I) if the wall is of a hollow drywall type construction, the title line of the
Unit shall be at the Unit -side of the drywall closest to the Unit; or
2) if the wall is poured concrete or masonry construction regardless of
whether any other wall material may be installed on it, the title line of
the Unit shall be at the Unit -side face of such poured concrete or
masonry wall.
(iv) The center line of Party Walls.
(v) The Unit -side of the concrete slab (or other stnictura] component)
constituting the floor of such Unit.
(vi) The Unit -side of any shaft wall.
(vii) The Unit -side or lower face of the concrete slab (or other structural
components) constituting the ceiling of the Unit.
(viii) The Unit -side face of columns and pipes, or the Unit -side surfaces of the
furring around ducts, wires, conduits, chutes, mechanical chases, structural
elements and flues that are Common Areas (including Limited Common
Areas).
(xi) The side opposite the Unit -side surface of all grills and registers which
cover bathrooms and kitchen exhaust fans and ventilation ducts that serve
only the Unit.
An unfinished wall, ceiling and floor means the concrete slab, framing or
other structural materials which constitute the wall, ceiling or floor, as the
case may be, of a Unit. In the event any horizontal or vertical or other
boundary line as shown on the Plans does not coincide with the location of
the respective wall, floor, or ceiling surface of the Unit because of
inexactness of construction, settling after construction, or for any other
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reason, the boundary of each Unit shall be deemed to be and treated for
purposes of ownership, occupancy, possession, decoration, use and
enjoyment, as in accordance with the actual location.
2.6 Common Areas. "Common Areas" shall mean (a) the Real Estate, (b) the garage
level, (c) foundations, columns, girders, beams, supports and exterior surfaces of
roofs of the Building, (d) the exit corridors and doors, (e) the halls, corridors, fire
exits, lobbies, storage areas, vestibules, elevator, elevator lobbies, elevator shafts,
stairwells, vertical chases, HVAC and mechanical rooms, stairs, stairways, entrances
and exits of the Building that are outside of boundaries of any Unit and designated as
Common Areas on the Plans, (f) those portions of the central electricity, gas, water,
HVAC, sanitary sewer, telephone, telecommunications, pipes, ducts, electrical wiring
and conduits, public utility lines, and any other similar infrastructure, serving more
than one Unit, (g) exterior lighting fixtures and electrical service lighting the exterior
of the Building unless (i) separately metered to a particular Unit in which case it shall
be deemed Limited Common Area of the Unit or (ii) separately metered to the City
(or its agencies) in which case it shall be excluded from the Regime and Premises,
and not subject to the Act, (h) unfinished floors, roofs, exterior windows (including
frames and glass), and exterior Perimeter walls of the Building, except to the extent
the same are otherwise classified and defined herein as part of a Unit, and (i) all
improvements, facilities and appurtenances located outside of the boundary lines of
the Units, except those areas and facilities expressly classified and defined herein as
part of a Unit.
2.7 Limited Common Areas. Limited Common Areas and those Units to which use of
the Limited Common Areas are limited may be designated as follows:
23.1 Hallways, elevators, elevator shafts, stairways, balconies, and other Common
Areas that serve only a particular Unit (except in the even of an emergency), shall
constitute Limited Common Areas and be limited to exclusive use of the Unit to
which such use is designated.
2.7.2 Any areas designated and shown on the Plans as Limited Common Areas shall
constitute Limited Common Areas and be limited to the Unit which they appertain
as shown on the Plans or as provided in an agreement between the (i) Owner of
the Unit and the Declarant or the Building Association.
2.8 Parking.
2.8.1 Each Owner must:
a) comply with the rules and regulations enacted under the Garage
Agreements governing the Parking Garage, as amended from time to
time,
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b) limit its employees to park in Parking Spaces in areas of the Parking
Garage designated by the Building Association for such parking
(which may involve the exclusion of such employees from the Parking
Space),
c) pay its proportionate share of the cost of annual maintenance for the
Parking Garage as calculated by the Building Association under this
Declaration and the Garage Agreements, and
d) not impose a parking fee in the Parking Garage in the Parking Spaces
reserved for the exclusive use of a Unit, except in accordance with the
Garage Agreements.
2.8.2 Nontransferabilty of Parking Spaces. Notwithstanding any other provision of this
Declaration, interests in Parking Spaces that are held by Owners shall be nontransferable
other than in connection with the transfer of ownership of a Unit; provided that this
provision shall not apply to the Declarant or Units owned by the Declarant.
2.9 Ownership of Common Areas and Building Percentage Interest.
2.9.1 Computation of Building Percentage Interest. Each Owner shall have an
undivided interest in the Common Areas, as tenants in common with all other
Owners, equal to his, her or its Unit's Building Percentage Interest. The
Building Percentage Interest of each Unit shall be a percentage equal to the sum
of:
(i) the total square footage of the particular Unit,
(ii) the square footage of any Limited Common Areas limited to the exclusive use
of the Unit, and
(iii)such Unit's proportional share of Common Areas (excluding Limited
Common Areas);
(iv)divided by the sum of the total square footage of all Units and Common Areas
which, from time to time, have been submitted and subject to the Act and this
Declaration as herein provided and which constitutes a part of the Premises.
(v) The initial Building Percentage Interest of each Owner in the Common Areas
as calculated in accordance with this Section 2.9 is set forth on Exhibit D
attached hereto and made a part hereof. Except as otherwise provided or
permitted in this Declaration, the Building Percentage Interest pertaining to
each separate Unit in the Common Areas shall be of a permanent nature and
shall not be altered without the unanimous consent of all the Owners and their
respective Mortgagees and then only if in compliance with all requirements of
the Act; provided, however the Declarant may redistribute the Building
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Percentage Interest to the subdivided or combined Units in accordance with
Section 4.5 hereof, and Units may combine Units as provided in Section 4.5
hereof, and the Declarant may unilaterally alter (with or without the consent
of any other person) the Building Percentage Interest to correct errors in the
calculation thereof.
2.9.2 Building Percentage Vote. The Building Percentage Interest pertaining to each
Unit shall also be the Building Percentage Vote allocable to the Owner thereof in
all matters where Owners have a vote with respect to the Premises as a Member
of the Building Association.
2.10 Encroachments and Easements of Common Areas.
2.10.1 If by reason of the location, construction, settling of shifting of the Premises or
any other reason, any Common Area now encroaches or shall hereafter encroach
upon any Unit, in such event, an easement shall be deemed to exist and run to
each affected Co -owner of each affected Association, and to each affected Unit
Owner's Mortgagee for the maintenance, use and enjoyment of such Common
Area.
2.10.2 Each Owner and the Owner's Mortgagee shall have an easement in common with
all other Co- owners to use all pipes, wires, ducts, cables, conduits, utility lines
and other common facilities located in any of other Units and servicing his, her or
its Units. Owner shall have the right of ingress and egress to and from such
Owner's Unit, with the approval and under the supervision of the Building Board
to perform maintenance, repairs or replacements, with such right being perpetual
and appurtenant to the ownership of the Unit.
2.10.3 The Unit Owners and the Mortgagees shall also have a permanent non exclusive
easement to use the portions of other Units and the Common Areas for purposes
of location, installation, maintenance, repair, replacement, and inspection of
pipes, wires, ducts, cables, conduits, utility lines, and other similar facilities
serving the applicable Unit. The Unit Owners and their Mortgagees shall also
have an easement on, over, and across such areas as necessary to accomplish the
purposes of the easement established by this paragraph, with such easement rights
being perpetual and appurtenant to the ownership of such Units. The easement
rights provided herein shall be used in a manner so as not to unreasonably
interfere with the other Unit Owner's construction, development, use, enjoyment,
maintenance, or repair of the applicable Unit and the activities occurring in the
applicable Unit. However, such rights shall only be exercised upon reasonable
prior notice (which shall be no less than 24 hours in advance) to the applicable
Unit Owner and the Building Board if the area to be utilized is a Common Area,
identifying the scope of the work to be performed within such area (except in
cases of emergency, in which case no notice or Building Board approval shall be
required).
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2.10.4 In exercising the rights described in this Section, the structural integrity of the
Building must be preserved and protected at all times, and plans relating to the
creation of all areas of open access (including but not limited to alteration of
weight bearing structures and penetrations of exterior and weight bearing walls)
must either be certified to the Building Association, by a reputable architect
retained by the Unit Owner (and reasonably to the Building Association in its
sole and exclusive discretion) to be in compliance with all applicable codes prior
to the commencement of any construction for such purposes.
2.11 Dedication Rights Reserved. In addition to all easements and rights previously
granted by recorded documents against the Property, Declarant hereby reserves the
right at its sole discretion, without the consent of any Unit Owners being necessary, to
dedicate or otherwise convey portions of the Property (but not those portions on which
a Unit is situated) to any public agency or governmental authority or quasi public
utility, or to otherwise dedicate portions of the Property for purposes of streets, roads,
roadways, utilities, recreation areas, storm detention basins, storm outfall, storm trunk
piping, water, sidewalks, public walkways and other benefits and improvements, and
rights -of -way and easements therefor. Such right to make such dedications or
conveyances shall not require the consent, approval or signatures of and Building
Board or Unit Owner, and such dedication or conveyance shall be considered fully
accomplished and conclusively binding upon each of said Unit Owners and upon the
Building Association when set forth in writing or in a plat of dedication executed by
the Declarant which has been recorded in the Office of the County Clerk, provided,
however, that nothing in this paragraph shall be construed to in any manner require or
obligate Declarant to make any such conveyance or dedication.
In furtherance of the foregoing, an irrevocable power coupled with an interest is hereby
granted to the Declarant as agent and attorney -in -fact, to grant such easements or make
such dedications or conveyances. Each deed, mortgage, trust deed or other instrument
with respect to a Unit and the acceptance thereof shall be deemed a grant and
acknowledgment of the consent to such power to each of said attorney -in -fact and shall be
deemed to reserve to Declarant the foregoing powers and rights.
ARTICLE III RESTRICTIONS ON THE USE OF UNITS AND COMMON AREAS
3 Restrictions.
3.1.1 Unit Uses. Units shall be used primarily for office and retail business and
trade purposes. No garage sale, moving sale, rummage sale or similar activity
shall be conducted by an Owner of a Unit within the Premises without approval
of the Association if the sale is within the Premises. The terms "business" and
"trade as used in this provision, shall be construed to have their ordinary,
generally accepted meanings, and shall include, without limitation, any
occupation or services to persons other than the provider's family and for which
the provider receives a fee, compensation, or other form of consideration,
regardless of whether (i) such activity is engaged in full or part -time; (ii) such
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activity is intended to or does generate a profit; or (iii) a license is required
therefor.
3.1.2 Units Uses. Units may be used for any retail, commercial or professional
purposes permitted by applicable zoning regulations, including, without
limitation, commercial amusement, retail, eating and drinking establishments;
provided, however, that retail Units may not be used for sale pornographic
displays, or the exhibition of pornographic or erotic literature, objects or similar
merchandize.
3.1.3 Common Areas Uses. The Common Areas (except the Limited Common Areas)
shall be used in common by Unit owners and occupants and their agents, servants,
customers, invitees and licensees, in accordance with the purpose for which they
are intended, and as may be required for the purpose of access, ingress to, egress
from, use, occupancy and enjoyment of Units; provided, however, that unless
expressly provided otherwise herein, no Common Areas shall be used for any
purpose other than the health, safety, welfare, convenience, comfort, recreation or
enjoyment of Unit Owners and occupants and in accordance with such rules and
regulations as may from time to time be promulgated by the Building
Association for Common Areas.
3.1.4 Limited Common Areas Uses. Except as specifically provided otherwise herein,
those portions of the Common Areas described herein and shown on the Plans as
Limited Common Areas shall be used and possessed exclusively by the Unit
Owners, and their respective occupants and tenants and their agents, servants,
customers, invitees and licensees of the Unit(s) served by the same, subject to the
restrictions on use of Common Areas and Limited Common Areas set forth in
this Declaration and such rules and regulations as may from time to time be
promulgated by the Building Association.
3.1.5 Visible Areas. Nothing shall be caused or permitted to be hung or displayed on
the outside or inside of windows of Units (except inoffensive drapes or curtains)
or placed on the outside walls of the Building or otherwise outside of a Unit, or
any part thereof, and no sign (except those of the Declarant), awning, canopy,
shutter or television or citizens' band or other radio antenna or transmitter,
satellite dish or any other device or ornament shall be affixed to or placed upon
the exterior walls or roof or any part thereof, or in or on a patio or balcony unless
authorized in writing by the Building Association, and subject to such rules and
regulations as the Building Association may from time to time promulgate.
Owners of Units by acquiring a Unit subject to this Declaration consent and agree
that any consent, authorization or approval that is not in writing shall be void
and unenforceable.
3.1.6 Decorating. Each Unit Owner, at his own expense, shall furnish and be
responsible for all decorating within his own Unit and Limited Common Areas
serving his or her Unit exclusively, as may be required from time to time,
13
including painting, wall papering, washing, cleaning, paneling, floor covering,
draperies, window shades, curtains, lighting and other furnishings and decorating.
Each Unit owner shall be entitled to the exclusive use of the interior surfaces of
the Perimeter walls, doors, floor and ceilings, and such Unit Owner shall
maintain said interior surfaces in good condition at his sole expense. All blinds,
draperies or other window coverings shall have a white backing or other backing
approved in writing prior to their installation by the Building Association when
the window coverings "Window Coverings are visible outside the Unit.
Decorating of the Common Areas (other than interior surfaces within the Units as
above provided and other than interior surfaces of Limited Common Areas), and
expressly including without limitation, the exterior surfaces of all outside doors to
the Building, and any redecorating of Units, to the extent such redecorating of
Units is made necessary by damage to Units caused by maintenance, repair or
replacement of the Common Areas shall be furnished by the Building
Associations if the area is a Common Area other than a Limited Common Area
as part of the Common Expenses. The exteriors of all windows forming part of
the Perimeter Wall of a Unit shall be cleaned and washed at the expense of the
Building Association from time to time at such intervals as the Building
Association shall deem appropriate.
3.1.7 Nuisances. No portion of the Premises shall be used, in whole or in part, for the
storage of any property or thing that will cause it to appear to be in an unclean or
untidy condition or that will be visibly obnoxious; nor shall any substance, thing,
or material be kept upon any portion of the Premises that will emit foul or
obnoxious odors or that will cause any noise or other condition that will or might
disturb the peace, quiet, safety, comfort or serenity of other Unit Owners. No
noxious, illegal or offensive activity shall be carried on upon any portion of the
Premises. There shall not be maintained any plants or animals or device or thing
of any sort whose activities or existence in any way is noxious, dangerous,
unsightly, unpleasant or of a nature as may diminish or destroy the enjoyment of
the Premises. No outside burning of wood, leaves, trash, garbage or household
refuse shall be permitted within the Premises. It shall be the responsibility of
each Unit Owner to prevent the development of any unclean, unhealthy,
unsightly or unkempt condition in his or her Limited Common Areas reserved
for the exclusive use of the Unit. The pursuit of hobbies or other activities,
specifically, without limiting the generality of the foregoing, the assembly and
disassembly of motor vehicles and other mechanical devices, which might tend
to cause disorderly, unsightly or unkempt conditions shall not be pursued or
undertaken on any part of the Premises.
3.1.8 Occupants. All provisions of the Declaration, By -Laws and of any rules and
regulations or use restrictions promulgated pursuant thereto which govern the
conduct of Unit Owners and which provide for sanctions against Unit Owners
shall also apply to all occupants, and their agents, servants, customers, invitees
and licensees of any Unit. Every Unit Owner shall cause all occupants of his or her
Unit to comply with the Declaration, By -Laws, and the rules and regulations
14
adopted pursuant thereto, and shall be responsible for all violations and losses to
the Common Areas caused by such occupants, notwithstanding the fact that such
occupants of a Unit are fully liable and may be sanctioned for any violation of
the Declaration, By -Laws and rules and regulations adopted pursuant thereto.
3.1.9 Renting and Leasing. All leases shall be in writing, except with the prior
written consent of the Building Board.
3.1.10 Structural Integrity. Nothing shall be done in any Unit, or in on or to the
Common Areas, which may impair the structural integrity of any improvement.
All structural modifications to the Building and Premise must be approved in
writing by the Building Association prior to commencement of such activity, and
the Building Association may request documentation that it determines is
necessary to review the proposed modification. The costs and expenses
associated with modifications and the filings and approvals required complete the
modifications shall be borne by the Owner of the Unit who proposes such
modifications.
3.1.11 Loads. Owners of Units shall not impose floor loading of the Units in excess
of an amount per square foot which is reasonable and customary for structures
similar in use and function as the Building, but in any event shall not exceed
load limits established by the Building Board from time to time.
3.1.12 Acoustic Control. All floors of the Units shall be covered with acoustical
control material which, in the case of carpeted surfaces, shall be a carpet pad of
good quality at least 1 /4" thick with a density of at least 54 ounces per square
yard and, in the case of hard surfaces, shall be an underlayment of acoustical
control material approved and specified by the Building Board from time to
time. No acoustical control material in the ceiling, walls or floors installed in
connection with the initial construction of a Unit may be removed unless
replaced with new, equivalent materials (which shall be determined by the
Building Board in its sole discretion). No Unit may be modified in any manner
that impacts (negatively) the construction measures, materials and techniques
taken to provide sound absorbency in the walls, floors, and ceilings of the
Units.
3.1.13 Conveyances. Each Unit shall be conveyed in fee simple as a separately
designated and legally described freehold estate subject to the terms, conditions
and provisions hereof. The legal description of each Unit shall consist of the
identifying number of symbol of such Units, as shown on the Plans. The
undivided interest of a Unit in 'the Common Areas shall be deemed to be
conveyed or encumbered with the Unit even though that interest is not expressly
mentioned or described in the deed, mortgage or other instrument of conveyance
or encumbrance. The right of a Unit owner to sell, transfer or otherwise convey
that owner's Unit is not subject to any right of first refusal or similar restriction,
and any Unit owner may transfer that owner's Unit free of any such limitation.
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To enable the Building Association to maintain accurate records of the names and
addresses of Unit Owners, each Unit Owner agrees to notify the Building
Association, in writing, within five (5) days after an interest in that Unit Owner's
Unit has been transferred to the new Unit Owner or another person. In addition,
each Unit Owner agrees to provide to a purchaser of that Owner's Unit a copy of
the Building Association's organizational documents and all effective rules and
regulations.
3.1.14 Architectural Control. Except as hereinafter specifically provided, no fence,
wall, sign or other structure shall be commenced, erected or maintained upon
the Premises, or any part thereof, nor shall any exterior addition to or change or
alteration therein be made, until the plans and specifications showing the nature,
kind, shape, height, materials, color and location of the same shall have been
submitted to and approved in writing by the Declarant or by the Building
Association in the event that the Declarant is no longer in control of the Premises,
or its designated representative, as to lawfulness and appropriateness, which the
Declarant or Building Association may determine in their sole discretion.
3.1.15 Discrimination. No action shall at any time be taken by the Associations or its
Boards which in any manner would discriminate against any Unit Owner in favor
of another.
3.1.16 Arbitration. In the event of any dispute between Unit Owners as to the
application of these restrictions or any rule or regulation promulgated by the
Building Association, the party aggrieved shall submit a complaint in writing to
the Building Board specifying the dispute. The Building Board shall set a time,
date and place for a hearing thereon within sixty (60) days thereafter, and give
written notice to each party thereof no less than three (3) days in advance. The
Building Board shall thereupon hear such evidence on the dispute as the
Building Board deems proper and render a written decision on the matter to each
party within thirty (30) days thereafter. No action at law may be instituted by
either party to such a dispute unless arbitration pursuant hereto has first been had.
The decision of the Building Board shall be binding on all parties.
3.1.17 Sales and Management Offices, and Models. So long as the Declarant
owns any Unit, Declarant (or a designated affiliate of Declarant) may
maintain 1 or more sales and management offices within the
condominium of such size and at such locations as Declarant may elect in
its sole discretion. So long as the Declarant owns any Unit, Declarant (or
a designated affiliate of Declarant) may maintain 1 or more model units
within the condominium of such size and at such locations as Declarant
may elect in its sole discretion.
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ARTICLE IV —THE ASSOCIATION AND MEMBERSHIP AND VOTING
RIGHTS
4.1 Purpose of Building Association. The Building Association has been established to
provide for the administration and enforcement of this Declaration.
4.2 General Duties of the Building Association. Except as otherwise provided herein, the
Building Association shall operate, keep and maintain the Common Areas within the
Premises in a First -Class manner and in a safe, clean and attractive condition at all
times, including but not limited to ensuring that the Common Areas comply in all
respects with Rules and Regulations and governmental laws, codes, rules and
regulations, including those which address fire and human health and safety, as the
case may be, and perform the other duties and obligations and exercise the rights of
the Building Association described throughout this Declaration.
4.3 Building Association.
4.3.1 Subject to the obligations of the Owners, the maintenance, repair, upkeep,
replacement, administration, management and operation of the Premises,
exclusive of the Units, shall be obligation of the Building Association. Each
Owner of a Unit shall, automatically upon becoming an Owner of a Unit, be and
become a Member of the Building Association and shall remain a Member of the
Building Association until such time as his, her or its ownership of a Unit ceases,
and each Owner's membership shall terminate when such person ceases to be the
Owner of a Unit, and shall be transferred to the new Owner.
4.3.2 The Building Association shall elect a Building Board (except for the Initial
Building Board, as defined in the Building Bylaws, which shall be appointed as
provided therein) in accordance with and as prescribed in the Building Bylaws.
Each person serving on the Initial Building Board, whether as an original member
thereof or as a member thereof appointed to fill a vacancy, shall be deemed a
Member of the Building Association and an Owner solely for the purpose of
qualifying to act as a member of the Building Board and for no other purpose. No
such person serving on the Initial Building Board shall be deemed or considered a
Member of the Building Association nor an Owner of a Unit for any other
purpose (unless he or she is actually the Owner of a Unit and thereby a Member
of the Building Association).
4.3.3 The Building Board shall be the governing body of the Building Association,
representing all of the Owners in providing for the management, administration,
operation, maintenance, repair, replacement and upkeep of the Premises,
exclusive of the Units. The Building Board may provide for professional
management.
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4.4 Maintenance, Repairs and Replacements.
4.4.1 Each Owner shall, at his, her or its expense, be responsible for the maintenance,
repairs, decoration, upkeep and replacement of his, her or its own Unit and, to the
extent provided in this Declaration, and the Building Bylaws.
4.4.2 (i) Maintenance, repairs, replacements and upkeep of the Common Areas,
exclusive of the Limited Common Areas reserved or designated for the exclusive
use of individual Units, shall be furnished by the Building Association as part of
the Building Common Expenses, and (ii) capital repairs and capital replacements
of the Common Areas shall be furnished by the Building Association as part of
the Building Common Expenses.
4.4.3 The Building Board shall adopt rules and regulations concerning maintenance,
repairs, use and enjoyment of the Common Areas, as it deems advisable,
necessary or appropriate, and may amend and modify the same from time to time
as it deems advisable, necessary or appropriate.
4.4.4 The Building Board or their 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 individual Unit or Limited
Common Areas reserved for the exclusive use of a Unit for the purpose of
inspection of the Common Areas appurtenant thereto and replacement, repair and
maintenance of such Common Areas to the extent contemplated in this
Declaration.
4.5 Alterations, Additions and Improvements
4.5.1 Alterations, Subdivision, and Reservation of Right to Subdivide.
4.5.1.1 No Owner shall make any alterations or additions to or which would affect the
Common Areas without the prior written approval of the Building Board (except
for the Limited Common Areas appurtenant to the Unit, which is addressed
below), nor shall any Owner make any alteration in or to such Owner's respective
Unit which would affect the safety or structural integrity of the Building nor shall
any Owner change the color of any of the Common Areas without the prior
written approval of the Building Board (except for the Limited Common Areas
appurtenant to the Units, which is addressed below).
4.5.1.2 No Owner shall make any alterations or additions to any structural component of
the Building without prior written approval of the Building Board, which the
Building Board in its sole discretion shall have the right to determine.
4.5.1.3 The Building Board may impose additional limitations or restrictions on alteration
through promulgation of rules and regulations.
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4.5.2 A Unit may be divided, subdivided, separated or combined with another Unit only
with the approval of the Building Association on such terms as it shall provide,
and which Building Board may withhold in its sole and exclusive discretion. In
the event of such combination, an amendment or supplement to this Declaration
shall be recorded to reflect the combined Building Percentage Interest, new Plans
and Unit number designations. Supplements or amendments to the Plans and this
Declaration shall be approved by the Building Association; provided that so long
as the Declarant owns Units to be divided, subdivided, separated or combined, the
Declarant shall not need the approval of the Building Association, Building Board
or any other person to make such modifications. Owners (including the
Declarant) who seek approval to divide, subdivide, separate or combine Units
shall bear all financial responsibility relating to such matters, including without
limitation, for approvals and filing of any documents.
4.5.3 In the event of such subdivision, division or separation, the Declarant shall file
and record an amendment or supplement to this Declaration that reflects the
divided and revised Building Percentage Interest, new Plans and Unit number
designations. Such allocation of Building Percentage Interests shall vest when
the amendment or supplement to this Declaration incorporating such changes has
been recorded.
4.5.4 Except as expressly limited above, each Owner of the Units shall have the right to
change the interior design of their respective Unit.
ARTICVLE V ASSESSMENTS
5.1 Covenants for Building Assessment. Each Owner of a Unit within the Premises by
acceptance of a deed or other conveyance therefore whether or not it shall be so
expressed in any such deed or other conveyance, shall be deemed to covenant and
agree to pay the Building Association or to an independent entity or agency which
may be designated by the Building Association to receive such monies, to the extent
the following apply to an Owner as set forth in this Declaration, the following
assessments (the `Building Assessments
(i) Building Regular Assessments;
(ii) Building Special Assessments.
No Owner will be obligated as to any of the aforesaid Building Assessments
unless and until the improvements to be constructed by the Declarant upon its
Unit have been substantially completed and a certificate of occupancy for the
shell of such improvements has been issued by the City or its agencies.
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5.2 Building Assessments of the Building Association.
5.2.1 Unless otherwise stated in the Building Bylaws, as of the first day of the first
month following the conveyance (by fee simple transfer or by transference of a
leasehold interest) of the first Unit located in the Building and the Building
Percentage Interest appurtenant thereto to an Owner intending to occupy that
Unit, each Unit located in the Building and the Building Percentage Interest
appurtenant thereto shall be subject to the Building Regular Assessments and the
Building Special Assessments (as determined by Declarant and/or the Building
Board, as applicable) (collectively, the "Building Assessments and all such
Building Assessments shall constitute liens upon each Unit and appurtenant
Building Percentage Interest as provided and described in this Declaration and the
Building Bylaws. The date(s) on which the Building Assessments are due and
payable shall be as specified in this Declaration or the Building Bylaws, or if not
so specified, then as determined by the Building Board. In addition, each Owner
shall be personally liable for the amounts of any and all Building Assessment
which become due and payable during the period in which such Owner holds title
to a Unit. The lien of any Building Assessment shall be subordinate to the lien of
any Mortgage on any Unit which was recorded before the time when said
Building Assessment first became delinquent, and any sale or transfer of a Unit
pursuant to a foreclosure of the first mortgage or of the acceptance of a deed in
lieu of foreclosure, such Mortgagee, its successors and assigns, shall not be
personally liable for the assessment levied against such Unit which were levied
prior to the acquisition of an ownership interest in such Unit by such Mortgagee.
5.2.2 Each Building Assessment shall be due and payable on the due dates(s) thereof as
specified in the Declaration, the Building Bylaws, or if not so specified, then on
the due dates(s) thereof as specified by the Building Association, and the date for
the payment of such Building Assessment is herby termed the "Delinquency
Date Any Building Assessment which is not paid in full by the Delinquency
Date shall be deemed delinquent without further notice or demand to the
defaulting Owner, and such Owner shall be charged a fifty dollar ($50.00) late
fee, and all such delinquent Building Assessments and charges shall bear interest
from the dates incurred until paid in full, at a rate of interest equal to fourteen
percent (14 per annum, compounded monthly. In the event that any costs or
expenses including, without limitation, attorney's fees, are incurred by or on
behalf of the Building Association with respect to the recovery or collection of
any delinquent Building Assessment, all such costs and expenses shall be due and
payable immediately by such delinquent Owner and shall bear interest from the
dates incurred until paid in full, at a rate of interest equal to fourteen percent
(14 per annum, compounded monthly "Interest Rate All interest, late fees,
costs and expenses payable hereunder with respect to a delinquent Building
Assessment shall be added to and deemed a part of such delinquent Building
Assessment. In the event that any Building Assessment is not fully paid on or
before the Delinquency Date, th.e Building Association shall be entitled to
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accelerate and declare due and payable in full all installments of the respective
Building Assessments due for the year in which such delinquency occurs, and to
enforce payment of the same by foreclosure of said lien and /or other appropriate
legal proceedings in accordance with the laws of the State of Indiana. Any such
lien against a Unit and its Building Percentage Interest shall be subordinate to the
lien of any Mortgage encumbering such. Unit and its Building Percentage Interest
if and to the extent the Mortgage creating such first mortgage lien was recorded
prior to the due date of the delinquent Building Assessments.
5.3 Owner's Personal Obligation for Payment of Building Assessments. The Building
Assessments provided for in this ARTICLE V shall be the personal and individual
debt of the Owner(s) of each Unit covered by such Building Assessments. No such
Owner may exempt itself from liability for such Building Assessments. In the event
of default in the payment of any such Building Assessment, such Owner shall be
obligated to pay interest at the Interest Rate on the amount of such Building
Assessment from the delinquent date thereof, together with all costs and expenses,
including, but not limited to, reasonable attorney's fees incurred by the Building
Association in connection with such delinquency.
5.4 Building Assessment Lien and Foreclosure. All sums assessed in the manner
provided for in this ARTICLE V but unpaid, together with interest as provided herein
and the costs of collection, including, but not limited to, reasonable attorneys' fees, as
hereinafter provided, are secured by a continuing contractual lien and charge on the
Unit covered by such Building Assessment, which shall bind such Unit in the hands
of the Owner(s) and its heirs, successors, devisees, personal representatives and
assignees. To evidence the aforesaid Building Assessment lien, the Building
Association shall prepare a written notice of Building Assessment lien setting forth
the amount of the unpaid indebtedness, name of the Owner(s) of the Unit covered by
such lien and a description of the Unit in the form attached hereto as Exhibit E, or
other form reasonably prescribed by the Building Association. Such notice shall be
signed by one of the officers of the Building Association and shall be recorded in the
office of the County Clerk and, when so established, shall be prior and superior to any
right, title, interest, lien or claim which may be or has been acquired or attached to
such property after the time of filing the claim of lien, and shall be subordinate to any
others. The Building Association shall also have the power to subordinate the
aforesaid Building Assessment lien(s) to any other lien. Such power shall be entirely
discretionary with the Building Association. Such lien for payment of Building
Assessments may be enforced by foreclosure of the lien upon the defaulting Owner's
Unit by the Building Association subsequent to the recording of the notice of
Building Assessment lien as provided above either by judicial foreclosure or by non
judicial foreclosure through a public sale. Each Owner by acquisition of any Unit
grants to the Building Association a power of sale in connection with any lien in
favor of the Building Association created pursuant to this Declaration. In addition,
the Building Association may institute suit against the Owner(s) personally to obtain
a judgment for unpaid Building Assessments. In any foreclosure proceeding, whether
judicial or non judicial, or in any other suit against the Owner(s), the Owner(s) shall
21
be required to pay the costs, expenses and reasonable attorneys' fees incurred by the
Building Association. The Building Association shall have the power to buy the Unit
at foreclosure or other legal sale and to acquire, hold, lease, mortgage, convey or
otherwise deal with the same.
(i)
ARTICVLE VI STANDING AND VOTING
6.1 Member in Good Standing. A Member shall be considered to be a "Member in Good
Standing" of the Building Association and eligible to vote within the Building
Association if such Member:
has, at least ten days prior to the taking of any vote by the Building
Association, fully paid all Building Assessments or other charges levied
by the Building Association, as such Building Assessments or charges are
provided for in ARTICLE V;
(ii) does not have a lien filed by the Building Association against the Unit
owned by it; and
(iii) has discharged all other obligations of the Building Association as may be
required of Members hereunder or under the Building Articles and the
Building Bylaws and resolutions adopted by the Building Association.
The Board of the Building Association shall have sole authority for determining
the good standing status of any Member within the Building Association at any
time and shall make such determination with respect to all Members prior to a
vote being taken by the Building Association on any matter. The Building Board
shall have the right and authority, at its sole discretion, to waive the ten -day prior
payment requirement and require only that such payment be made at any time
before such vote is taken if the Building Board shall determine, in its own
judgment, that extenuating circumstances exist which have prevented prior
payment. Any Member that does not conform with the foregoing requirements
shall be declared by the Building Board not to be a Member in Good Standing and
shall be disqualified from voting on matters before the Building Association until
such time as Member in Good Standing status is attained and so declared by the
Building Board. Notwithstanding the provisions of this Section 6.1, the Building
Board may not declare a member to be a member not in Good Standing until an
Owner is delinquent on the payment of an assessment for the minimum period
prescribed by the Act.
6.2 Number of Votes. If any Unit is owned by more than one Member, the number of
votes attributable to such Unit shall be the same number of votes as if there were only
one Owner of such Unit, and the votes attributable to such Unit may be cast only if all
of such Members, prior to the time of the vote in question, have delivered to the
Building Association a written agreement as to how such votes are to be cast or a
written designation of one of such Members to cast the votes attributable to such
22
Unit. Any Member who is not an individual must designate a representative to act for
such Member in the Building Association matters and to cast votes for such Member,
such designation to be made in writing to the Building Board. A Member may
delegate all, but not part, of its right to vote to any tenant occupying its Unit provided
such delegation is made in writing delivered to the Building Board.
6.3 Voting Quorum and Notice Requirements. Members holding Two Thirds of the
aggregate votes entitled to be cast by Members in Good Standing (unless a greater
quorum is required by applicable law), represented at a meeting of the Members in
person or by a legitimate proxy in a form approved by the Building Board, shall
constitute a quorum for voting on matters brought before the Members at meetings
called by the Building Board. Unless otherwise provided to the contrary herein, the
vote of the majority of those votes entitled to be cast by the Members present or
voting by legitimate proxy at a called meeting at which a quorum of Members in
Good Standing is present in person or by legitimate proxy (the "Majority Vote of the
Members shall be the act of the Building Association. Notice requirements for all
action to be taken by the Members of the Building Association shall be as set forth
herein or in the Building Bylaws, as the same may be amended from time to time.
ARTICLE XII TAXES, USER FEES AND UTILITIES
7.1 Real Estate and Other Taxes/User Fees.
7.1.1 Real estate taxes are to be separately assessed and taxed to each Unit as provided
in the Act. In the event that for any year real estate taxes are not separately
assessed and taxed on each Unit, but are assessed on the Premises (or the
Premises and any portion of the Real Estate) as a whole, then each Owner shall
pay his, her or its proportionate share of such taxes to the extent attributable or
allocated to the Premises in accordance with his, her or its Building Percentage.
7.1.2 Each Owner must pay all ad valorem taxes, general and special assessments, and
other taxes attributable to such Owner's Unit before delinquency. The Owner of
each such Unit shall present any such tax or assessment bill to the Building
Association at least ninety (90) days prior to its due date, if practicable.
7.2 All utilities exclusively serving a Unit shall be separately metered from any other
Unit. Each Owner shall individually pay for the utilities serving the Unit which are
separately metered. Utilities which are not separately metered shall be treated as and
paid as part of the Building Common Expenses, as applicable, or as otherwise
determined by the mutual agreement of the Building Association; provided that the
Building Association shall have the flexibility and authority to allocate costs for
utilities that are not separately metered based upon the estimated use by the Unit,
which determination shall be binding upon Unit Owners.
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ARTICLE VIII GENERAL PROTECTIVE COVENANTS
8.1 General. No use shall be permitted on any portion of the Building which is not
allowed under applicable public codes and ordinances either already adopted or as
may be adopted by the City or other controlling public authority. Each Owner or
other user of any portion of the Premises shall comply at all times in every respect
with this Declaration, and any and all laws, ordinances, policies, rules, regulations
and orders of all federal, state, county and municipal governments or their agencies
having jurisdictional control over the Premises, specifically including, but not limited
to, the zoning restrictions of the City applicable thereto as they exist from time to
time. In the event a conflict exists between any such public requirement and any
requirement of this Declaration, the more restrictive requirement shall prevail. Where
a governmental requirement does not clearly conflict with the provisions of this
Declaration, but permits action that is different from that required by this Declaration,
the provisions of this Declaration shall prevail. All portions of the Premises shall be
developed in accordance with this Declaration.
8.2 Construction Standards. Any Owner performing, or causing to be performed,
construction work on a Unit must perform, or cause to be performed, such work in a
good, workmanlike, safe, expeditious, and diligent manner, and use reasonably
prudent methods so as to minimize any disruption or inconvenience caused by such
work to the other improved portions of the Premises and to the other Owners and
their Permittees.
ARTICLE IX MAINTENANCE BY OWNER
9.1 Duty of Maintenance. Except to the extent that such maintenance is an obligation of
the Building Association as provided elsewhere herein, each Owner is responsible for
(a) keeping its Unit and all Improvements located thereon in a well planned, safe,
clean, and attractive condition at all times, consistent with the First -Class nature of
the Building, and ensuring that its Unit complies in all respects with Rules and
Regulations and governmental laws, codes, rules and regulations, including those
which address fire and human health and safety (such obligations being referred to
collectively as the "Maintenance and Repair Obligations Any person or entity
performing maintenance or repair work on a Unit must perform such work in a good,
workmanlike, safe, expeditious, and diligent manner, so as to minimize any
disruption or inconvenience caused by such work to the other improved portions of
the Building and to the other Owners and their permittees. The person or entity
performing such work must use appropriate methods customarily utilized in order to
control dust, noise, and other deleterious effects of such work in a populated or
densely developed area. The Owner of the Unit upon which such work is conducted
must repair at its own cost and expense any and all damage caused by such work. If
any maintenance or repair work requires disrupting or interfering with any improved
portion of the Building or the use of any portion of the Building by the other Owners
or their Permittees, then the person or entity who proposes to perform such work must
24
provide not less than seven (7) business days' prior written notice of such work to the
other Owners and must comply with the requirements imposed by the Building
Association concerning such maintenance and repair work. Notwithstanding anything
to the contrary in this Declaration, after the initial construction of any Improvements
in a Unit, no person or entity may perform any construction of, Improvements to, or
repairs of exterior portions of such Improvements or the parking or access areas
during the period from November 1 to December 31 of any calendar year without the
prior written consent of the Building Association, except for minor, essential repairs
diligently pursued.
9.2 Operations. The Building Association may at any time impose and issue written rules
and regulations concerning repairs and maintenance, parking, deliveries (loading and
unloading), garbage storage and removal, and the like, as the Building Association, in
its discretion, deems to be appropriate for the ongoing operation of the Building as a
whole. The Owner of each Unit is obligated to comply, and ensure compliance by any
Occupants of its Unit, with such obligations.
ARTICLE X INSURANCE AND INDEMNITY
10.1 Basic Insurance Requirements. Each Owner of a Unit must carry or, if a third
party is the Occupant of such portion of the Unit, must cause such Occupant to carry
commercial general liability insurance written on an "occurrence" policy form,
covering Bodily Injury, Property Damage, and Personal Injury (all as defined in the
standard form of commercial general liability insurance), arising out of or relating,
directly or indirectly, to such Owner or Occupant's business operations, conduct,
assumed liabilities, and the use or occupancy of or any occurrence on, such Owner's
Unit. Such liability insurance must include the broadest available form of contractual
liability coverage. The minimum acceptable limits for such liability insurance are
$1,000,000, although the Building Association can increase the minimum acceptable
limit at any time. The Building Association shall carry a policy of special form
property insurance insuring the Common Areas, including all Limited Common
Areas, in an amount equal to 100% of the replacement cost thereof, with any
deductible in connection therewith being reasonable in amount and subject to the
approval of the Building Association. Each Owner shall deliver to the Building
Association certificates of insurance for all insurance required to be maintained by
each Owner pursuant hereto. Such policies must be issued by companies licensed to
do business in the State of Indiana and the companies issuing such policies and the
terms thereof are subject to the reasonable approval of the Building Association. Each
Owner, for itself and all parties claiming under it, hereby releases and discharges each
other Owner of any Unit and their Permittees from all claims and liabilities arising
from or caused by fire or other casualty covered by insurance policies or required to
be covered by insurance policies described in this section and each Owner waives any
right of subrogation which might otherwise exist in or accrue to any person on
account thereof.
25
10.2 Indemnification and Waiver. To the fullest extent permitted by law, each Owner
(the "Indemnifying Owner') hereby indemnifies and holds the Other Owning Parties
(as defined below) harmless from and against all Claims (as defined below) arising
from any Personal Injury, Bodily Injury, or Property Damage (all as defined in the
standard form of commercial general liability insurance) whatsoever on such Owner's
Unit (which Claims are referred to in this Declaration as the "Indemnified Matters"
and individually as an "Indemnified Matter To the fullest extent permitted by law,
the Indemnifying Owner waives any and all Claims against the Other Owning Parties
and the Association Parties arising from any of the Indemnified Matters. Each
Indemnifying Owner, at its own expense, must assume on behalf of the Other Owning
Parties and the Association Parties and conduct with due diligence and in good faith
the defense of any Indemnified Matter. The defense must be by counsel satisfactory
to the affected Other Owning Parties and Association Parties, but such Other Owning
Parties and Association Parties cannot unreasonably withhold or delay their approval
of such counsel. The Other Owning Parties and the Association Parties further agree
to cooperate in such Owner's defense of any action or proceeding brought by a person
or entity in connection with any Indemnified Matter. Any final settlement by an
Indemnifying Owner of any action or proceeding in connection with any Indemnified
Matter must be approved by the affected Other Owning Parties and Association
Parties, which approval may not be unreasonably withheld or delayed. Each Other
Owning Party and each Association Party has the right, at its option, to be represented
by advisory counsel of its own selection and at its own expense. In the event of
failure by the Indemnifying Owner to fully perform in accordance with this
indemnification, each Other Owning Party and Association Party, at its option, and
without relieving the Indemnifying Owner of its obligations under this section, may
perform such obligation, but the Indemnifying Owner must reimburse such Other
Owning Party or Association Party for all costs and expenses so incurred, together
with interest at the maximum contractual rate permitted at law. The Indemnifying
Owner's obligations under this section are not and cannot be deemed to be limited to
damages, compensation or benefits payable under insurance policies, worker's
compensation acts, disability benefit acts or other employees' benefit acts. As used in
this Declaration, the term "Other Owning Parties" means (a) the Owner of any
portion of the Building (other than the Indemnifying Owner's Unit), and such
Owner's partners, affiliated companies of such Owner or of any partner of such
Owner, (b) such Owner's lenders, and (c) as to each of the persons or entities listed in
"(a)" and "(b)" above, the following persons or entities: such person or entity's
partners, partners of their partners, and any successors, assigns, heirs, personal
representatives, devisees, agents, stockholders, officers, directors, employees, and
affiliates. "Other Owning Party" means any one of the Other Owning Parties. As used
in this Declaration, the term "Claims" means any and all liabilities, claims, damages
(including, consequential damages), losses, penalties, demands,
causes of action (whether in tort or contract, in law or at equity, or otherwise), suits
judgments, disbursements, charges, assessments, and expenses (including attorneys'
and experts' fees and expenses) incurred in investigating, defending, or prosecuting
any litigation, claim, proceeding, or cause of action (whether in tort or contract, in
26
law or at equity, or otherwise). "Association Party" means any director, officer,
employee, representative or agent of the Building Association.
ARTICLE XI CASUALTY AND CONDEMNATION
11.1 Casualty. In the event any Improvements located within a Common Area,
including a Limited Common Area, are damaged or destroyed by fire or other
casualty, the Building Association must, within a reasonable period of time not to
exceed ninety (90) days, either contract to repair, restore and rebuild such
Improvements to their prior condition in a diligent manner and complete such repair,
restoration, or rebuilding within the Required Time Period (as defined below). The
Required Time Periods for partial damage or destruction of the Improvements within
Common Areas (including Limited Common Areas) is one hundred eighty (180) days
and for complete destruction of the Improvements is two hundred seventy (270) days,
unless a longer time period is required to complete construction, then such time
period need to complete construction.
11.2 Condemnation. The Owner of any Unit taken by condemnation or eminent
domain must promptly repair, restore, and rebuild the remaining portion of such Unit
as nearly as possible in the circumstances to the condition which existed prior to such
condemnation or eminent domain without contribution from any other Owner;
provided, however, in the event the Owner of such Unit determines that it is no longer
feasible to utilize such Unit (or Improvements) for its intended purpose (which
determination cannot be made arbitrarily), such Owner must raze any remaining
Improvements on such partially condemned Unit, clear such Unit of all debris. If an
Owner elects to raze the Improvements, then the Owner must do so within ninety (90)
days after the date of such taking (defined as the day title is actually transferred) and
if the Owner does not do so within such time period, the Owner will be deemed to
have elected to repair and restore. Any award of compensation or damages (whether
obtained by agreement or by judgment, verdict or order in a legal proceeding)
resulting from the taking of any Unit, or any portion of a Unit, by exercise of right of
condemnation or eminent domain by any governmental authority or other public or
quasi governmental authority must be distributed in accordance with the terms of the
agreement, or the judgment, verdict or order made in the proceedings concerning such
taking In the event of any sale of any Unit, or any portion thereof, under threat or
condemnation or eminent domain, such Unit, or applicable portion of such Unit, will
for all purposes be deemed to have been "taken" as that term is used in this Section
11.2, and the net amount of the price received for such Unit after deduction of the
expenses of the sale borne by the Owner of the Unit taken will be deemed to
constitute an "award" as that term is used in this Section 11.2. However, nothing
contained in this Section 11.2, entitles any Owner to share in any award made to any
other Owner whose Unit, or portion of a Unit, is taken, other than as provided above
and to the extent an award is made for the interest of such Owner created by this
Declaration in the Unit taken.
27
ARTICLE XII DEFAULT AND REMEDIES
12 In the event that an Owner breaches any of its obligations under this Declaration,
the Building Association has the right (and the obligation, to the extent necessary to
keep the Premises in a First -Class condition) to enforce any rights and remedies to
which it may be entitled at law or in equity, including, without limitation, the right to
sue for an injunction or specific performance. In addition, the Building Association
has the following specific rights for breaches of the Maintenance and Repair
Obligations. If the Building Association believes that an Owner is not complying with
the Maintenance and Repair Obligations, the Building Association may give the
Owner written notice of such fact and a period of time (which cannot be less than
thirty (30) days) in which to perform the applicable obligation. If the Owner fails to
comply with the foregoing requirements within such thirty (30) day period, then the
Building Association will have the right (and the obligation, to the extent necessary to
keep the Premises in First -Class condition) to cause such work to be performed on
such Owner's Unit. The Owner must pay the cost of such work directly or reimburse
the Building Association for the cost of such work within thirty (30) days after the
date the Building Association makes demand upon the Owner to pay such amount. If
the Owner does not pay such amount within such thirty (30) -day period, then (i) the
amount so due will bear interest at the Interest Rate beginning on the first day after
the end of such thirty (30) -day period and ending at such time as the amount is paid in
full, (ii) the Owner's obligation to pay such amount will be secured by a lien against
such Owner's Unit, which lien is effective as of the first day after the end of such
thirty (30) -day period without any further documentation, although the Building
Association may file a lien in the form attached as Exhibit "E or such other form
that is prescribed by the Building Association from time to time, against such
Owner's Unit, and (iii) the Building Association may offset the amount due from the
Owner against amounts that may be or become due to such Owner.
ARTICLE XIII MISCELLANEOUS PROVISIONS
13.1 Binding Effect and Duration. The provisions of this Declaration shall run with
and bind the land subject to this Declaration, and shall inure to the benefit of the
Owners of Units and their respective legal representatives, heirs, successors and
assigns and be enforceable by the Building Association for a term commencing on
November J'7, 2010, and ending on November 7, 2109, after which time this
Declaration shall automatically be extended for successive periods of ten (10) years
each unless the Approval of Two- Thirds of the Members is obtained, without the
necessity of the joinder of any other party, to abolish this Declaration, and an
instrument is recorded in the real property records of the County Clerk evidencing the
same. Notwithstanding the foregoing, the easements created by this Declaration shall
continue in perpetuity.
13.2 Amendment. Except as otherwise provided in this Declaration, this Declaration
may be amended only with the Approval of Two Thirds of the Members to such
amendment, and an instrument is recorded with the County Clerk the same; provided,
28
however, that if an amendment to this Declaration will materially, adversely affect the
financial obligations of a particular Owner, then that Owner must join in the
amendment for such amendment to be binding against such Owner and such Owner's
Unit; provided further, the Declarant may unilaterally amend these Declarations (i) to
comply with FHA or HUD requirements for financing so long as such amendments
do not materially, adversely affect the financial obligations of then current Owners
other than the Declarant; (ii) clarify or correct any other term, condition or provision
of the Declaration. The joinder of any other party is not required in order for any such
amendment to be effective. Additionally, this Declaration shall not be amended in a
manner which materially adversely affects any rights specifically granted to
Mortgagees herein or which adds material burdens specifically directed toward
Mortgagees without the approval of all of the Identified Mortgagees.
13.3 Enforcement. The Building Association shall enforce the covenants, conditions
and restrictions set forth in this Declaration. Enforcement shall be by any proceeding
at law or in equity against any person or persons violating or attempting to violate any
part of this Declaration, either to restrain violation or to recover damages, and against
the land, to enforce any lien created by the provisions of this Declaration; and failure,
by the Building Association to enforce any such provision shall in no event be
deemed a waiver of the right to do so thereafter. Owners may litigate matters against
the Declarant only with the Approval of Two- Thirds of the Members of the Building
Association. With respect to any litigation hereunder, the prevailing party shall be
entitled to recover reasonable attorneys' fees and court costs from the nonprevailing
party.
13.4 Interpretation. The Building Board shall have the right, power and authority to
determine all questions arising under or in connection with this Declaration, the
Building Articles and Building Bylaws, and to reasonably construe and interpret their
provisions in accordance with the laws of the State of Indiana and the laws of the
United States applicable to transactions in Indiana. Any such determination,
construction or interpretation made by the Building Board, in the absence of
adjudication by a court of competent jurisdiction to the contrary, shall be binding on
the Owners. In all cases, the provisions set forth or provided for in this Declaration
shall be construed together and given that interpretation or construction which, in the
reasonable opinion of the Building Board, will best effect the intent of the Existing
Owners' general plan of development as reflected herein in accordance with the laws
of the State of Indiana and the laws of the United States applicable to transactions in
Indiana. The provisions hereof shall be liberally interpreted and, if necessary, they
shall be so extended or enlarged by implication as to make them fully effective.
13.5 Severability. To the extent that any portion of this Declaration is unenforceable or
inapplicable for any reason (for example, but without limitation, because it is
generally unenforceable or inapplicable or is unenforceable or inapplicable in specific
circumstances or in connection with a particular person or entity), this Declaration
and the other provisions of this Declaration will remain in full force and effect in the
same manner as if such unenforceable or inapplicable provision were not contained in
29
this Declaration (generally or in the specific circumstances in question, as
appropriate). Furthermore, to the extent permitted under applicable law, a substitute
provision that would be enforceable or applicable and which would achieve the
results intended by the unenforceable or inapplicable provision will be deemed
substituted into this Declaration (either generally or in the specific circumstances in
question, as appropriate).
13.6 Notices. All notices under this Declaration must be in writing and will be deemed
to have been served, given, and received when actually received or, if earlier, and
regardless of when received, (a) if hand delivered, when delivered in person to the
address for the Owner to whom notice is given, as determined in accordance with the
terms of this Declaration, or (b) if sent by overnight delivery service which provides
service to the addressee's address, on the delivery date selected by the sender of such
notice, as long as the sender complies with all of the requirements of the delivery
service concerning address, payment, and selection of delivery date, or (c) if mailed,
upon the expiration of the third (3rd) business day after having been placed in the
United States mail, postage prepaid, by certified mail, return receipt requested,
addressed to the Owner to whom notice is being given at the address hereinafter
specified. Any Owner which is not a signatory to this Declaration must, upon
becoming an Owner of any portion of the Premises, record its address for notices
under this Declaration with the County Clerk against such Owner's portion of the
Premises and any Owner may change its address for notices in the same manner. The
mailing address of the Owners, until changed in the manner set forth above, is such
Owner's Unit.
13.7 Mortgagee's Rights. All Mortgagees have the following rights:
a. Rights to Notice and Cure: The Building Association must send simultaneous
copies of any notices of default relating to a particular Unit to the Mortgagee of
such Unit as long as the Building Association has previously received a request to
do so from such Mortgagee together with a specific address to which such notices
must be sent. The Mortgagee will be given thirty (30) days from the date of such
notice in which to cure such default should it so elect; provided, however, if such
default results, or could result, in any imminent danger to any portion of the
Premises or to any person, then the cure period specified above will be decreased
to ten (10) days (or such lesser time as the Building Association determines is
reasonably necessary given the nature and extent of the circumstances).
b. Priority Rights: In the event that a Mortgagee obtains title to a Unit pursuant to
the remedies provided in the mortgage, or pursuant to a deed in lieu of
foreclosure, the Mortgagee will not be liable for any amounts that became due and
unpaid after the date such mortgage was recorded but before the date upon which
the Mortgagee became the owner of the Unit and relating to such Unit and the
Unit will not be subject to any lien securing payment of such amounts.
30
13.8 Estoppel. Any Owner may, at any time and from time to time, in connection with
the sale, lease, transfer or other disposition of such Owner's Unit, or any portion
thereof, or in connection with the financing or refinancing of such Owner's Unit by
mortgage, deed of trust or other lien or encumbrance made in good faith and for
value, deliver written notice to the Building Association requesting that the Building
Association certify in writing (a) that to the best knowledge of the Building
Association, the requesting Owner is not in default in the performance or observance
of its covenants and obligations under this Declaration, or, if the requesting Owner is
in default, the specific nature and amount of any and all defaults, and (b) to such other
reasonable matters as the requesting Owner may request. The Building Association
must deliver such a certificate to the requesting Owner within fifteen (15) days after it
receives the requesting Owner's request for such a certificate. If the Building
Association does not deliver such a certificate to the requesting Owner within such
fifteen (15) -day time period, the Building Association will be deemed to have
certified that the Owner requesting the certificate is current and is not in default in the
performance or observance of such Owner's covenants and obligations under this
Declaration, and otherwise a favorable response. However, the sole purpose of such a
certificate is to prevent the Building Association from claiming that the facts are other
than as set in such certificate and does not constitute an inducement, or
representation, or warranty to such purchasers, tenants, transferees, mortgagees, deed
of trust beneficiaries and other lien or encumbrance holders.
13.9 Rule Against Perpetuities. Notwithstanding any provision contained in this
Declaration which could be construed to the contrary, if any of the covenants,
conditions and/or restrictions created by this Declaration are unlawful, void or
voidable for violation of the rule against perpetuities as interpreted and effective
under Indiana law, then any such covenant(s), condition(s) or restriction(s) will
continue only until twenty -one (21) years after the death of the survivor of the now
living descendants of any of the members of the United States House of
Representatives which first sat as a group in January, 2009.
13.10 No Merger. Unless otherwise clearly indicated to the contrary in a written,
recorded document executed by the Building Association, in no event will there be a
merger of the dominant and servant tenements in the Units by virtue of the present or
future ownership of any portion of said tenements being vested in the same person or
entity, but instead the casements and servitudes created pursuant to the terms of this
Declaration will not be extinguished by such vesting in common ownership and the
dominant and servient tenements will be kept separate.
13.11 Owner's Obligation to Ensure Compliance. Although an Owner may impose upon
a third party (usually, a tenant) the obligation to comply with and perform the duties
of the Owner under this Declaration, such imposition does not free the Owner from
the obligation to comply with and perform the duties of the Owner under this
Declaration, which obligation continues to rest fully and completely with the Owner.
31
13.12 No Joint Venture or Partnership. None of the terms or provisions contained in this
Declaration creates, or can be deemed to create, a partnership between or among the
Owners in their respective businesses, or otherwise, nor can this Declaration cause the
Owners to be considered joint venturers or members of any joint enterprise or
association or render any of said Owners liable for the debts or obligations of any
other of said Owners.
13.13 No Public Dedication. Nothing in this Declaration can be deemed to be a gift or
dedication of any portion of the Premises, or of any Unit, or any portion of the
Premises or a Unit, to the general public, for the general public or for any public use
or purpose whatsoever, it being the intent that this Declaration be strictly limited to
and for the purposes herein expressed for the development, maintenance and
operation of a private real estate development on private property solely for the
benefit of the Owners, except that certain easements and rights-of-way within the
Project have been so dedicated by separate documents and may in the future be
dedicated by separate documents.
13.14 Force .Majeure. Whenever performance is required of any Owner or the Building
Association under this Declaration, that Owner and the Building Association must use
all due diligence to perform and take all necessary measures in good faith to perform;
provided; however, that if completion of performance is delayed or prevented at any
time by reason of acts of God, war, civil commotion, riots, strikes, picketing, or other
labor disputes, unavailability of labor or materials or damage to work in progress by
reason of fire or other casualty or any other cause beyond the reasonable control of an
Owner or the Building Association obligated to perform hereunder (financial
inability, imprudent management, failure to meet the obligation to carry insurance, or
negligence excepted), then the time for performance as herein specified will be
appropriately extended by the amount of the delay actually so caused. The right of
any Owner or the Building Association to excuse its failure to perform by reason of
this section is conditioned upon such Owner, the Building Association, or any
affected Occupant (but only if such Occupant is a single user in a single Building)
delivering to the other Owners, the Building Association (in the case of any Owner or
any affected Permittee as allowed above) or the affected Owner (in the case of the
Building Association), written notice of its assertion that a delay has commenced
within thirty (30) days after the events giving rise of such delay first commence.
13.15 Personal Liability. Each Owner now or hereafter owning any Unit is personally
liable for performance of all covenants, obligations and undertakings set forth in this
Declaration insofar as the same affect the Unit so owned and which accrue during the
period of such ownership. All such personal liability terminates upon the conveyance
by an Owner of its ownership interest in its Unit when, but not until, the transferring
Owner obtains from its transferee a written assumption agreement of all of the
obligations of the transferor under this Declaration. Notwithstanding the foregoing,
however, the transferring Owner is not released from liability hereunder for its default
in the performance of any provision of this Declaration occurring or accruing prior to
any such transfer. In addition, any transferring Owner must use its good faith and
32
diligent efforts to deliver notice to the Building Association of such sale, transfer,
conveyance or other assignment, which notice must include a legal description of the
Unit and the name and address of the transferee.
13.16 Approval. Unless otherwise' expressly provided to the contrary herein, whenever
the approval or consent is required of any Owner, it cannot be unreasonably withheld,
conditioned or delayed. Unless provision is otherwise made herein for a specific time
period, an Owner's approval or consent will be deemed given within thirty (30) days
of the receipt of the request for approval or consent, and if an Owner neither approves
nor disapproves of the matter being considered within such thirty (30) day period, or
other time period as may be specified elsewhere in this Declaration for approval or
consent, that Owner will then be deemed to have given its approval or consent. If an
Owner disapproves, the Owner must state the reasons for such disapproval in
reasonable detail and writing. The consent or approval by an Owner to or of any act
or request by any -other Owner cannot be deemed to waive or render unnecessary any
consent or approval to or of any similar or subsequent act or request.
13.17 Attorney's Fees. In the event any Owner or Association Party should bring suit
against any other Owner(s) or the Association Parties (individually or collectively)
concerning any matters provided for herein, the prevailing Owner or Association
Party is entitled to recover from the other Owner(s) or Association Party(ies)
reasonable attorneys' fees and costs of court in connection with such suit. As used
herein, a "prevailing Owner or Association Party" includes, without limitation, an
Owner or Association Party who dismisses an action for recovery hereunder in
exchange for payment of the sums allegedly due, performance of covenants allegedly
breached or consideration substantially equal to the relief sought in the action.
13.18 Entire Agreement. This Declaration constitutes the entire agreement and
understanding between the Owners and supersedes all prior agreements and
understandings, if any, concerning the subject matter hereof, and there are no other
covenants, agreements, promises, terms, provisions, conditions, undertakings or
understandings, either oral or written, between them concerning the subject matter of
this Declaration other than those expressly herein set forth.
13.19 Headings. The headings, captions, numbering system, etc. are inserted only as a
matter of convenience and under no circumstances will they be considered in
interpreting the provisions of this Declaration.
13.20 Number and Gender. Where required for proper interpretation, words in the
singular tense includes the plural, and vice versa; the masculine gender includes the
neuter and the feminine, and vice versa.
13.21 Applicable Law. This Declaration is to be construed under and in accordance with
the laws of the State of Indiana and the laws of the United States applicable to
transactions in Indiana. All of the obligations contained in this Declaration are and is
performable in Hamilton County, Indiana.
33
13.22 Applicability to Occupants. With respect to any obligation of a particular Owner
under this Declaration, this Declaration shall not limit or modify how responsibility
for the performance of that obligation or the responsibility for the payment of the cost
thereof is allocated between such Owner and its Occupant pursuant to the terms of
their lease.
13.23 No Representations. Although a site plan is attached to this Declaration, it does
not constitute a representation concerning the development or layout of the Premises
and no such representation can be inferred.
13.24 Counterparts. This Declaration may be executed in multiple counterparts, each of
which shall be deemed an original to the same effect as if all parties hereto had
executed the same instrument and all of which shall together constitute one and the
same instrument.
[The remainder of this page is intentionally left blank.]
34
IN WITNESS WHEREOF, The Existing Owner has caused this instrument to be
executed to be effective as of the date first written above.
Notary Public
My Commission Expires:
Carmel City Center, LLC
an Indiana limited liability company
35
By:
Printed:
Title: n /0"/Z Ur
STATE OF n A. P et-e-,0
ss
COUNTY OF 6rr.I 1-
This instnRent as AWTOWLEDGED before me on the da y of h
201 by Authorized
On behalf of said r +k t .r n. b 1 c 3 p
TERRE: L. CROSS
Marion County
My Commission Expires
August 30, 2015
I affirm, under penalty of perjury, that I have taken reasonable care to redact each social
security number in this document, unless required by law, Ronald Brown.
This instrument we prepared by Ronald Brown, Attorney LD 18348 -49, Pedcor Bancorp,
One Pedcor Square, 770 3rd Avenue, S.W., Carmel, Indiana 46032.
Donald R. Mosson Page 1 11/1T/2010
M: \MSIBANKS \Carmel City Center, LLC \Condominium Docu nents\Building 2 \exhibits \EX A Building 2 Overall Garage
Level.doc
EX1 A
Carmel City Center Building 2
Overall Garage Level
A portion of the property of Carmel City Center, LLC
A part of Instrument Number 200600060668
A part of the Northeast Quarter of Section 36, Township 18 North, Range 3 East of the
Second Principal Meridian, Clay Township, Hamilton County, Indiana, being further
defined from elevation 850.02 feet (first floor slab) and above (NGVD 1929), more
particularly described as follows:
Commencing at the Northeast Corner of the Northeast Quarter of said Section 36,
Township 18 North, Range 3 East; thence South 00 degrees 1 minutes 54 seconds East
(Basis of Bearings assumed from the Quitclaim Deed granted to Pedcor Office, LLC
"Grantor (recorded as Instrument Number 200500045693 in the Office of the Recorder
of Hamilton County, Indiana) 443.34 feet along the East Line of said Northeast Quarter;
thence South 89 degrees 59 minutes 31 seconds West 226.56 feet to the northeastern
corner of an existing three -story masonry building and the POINT OF BEGINNING of
this description (the following twenty (20) courses are along the perimeter of said
building); (one) thence South 00 degrees 00 minutes 29 seconds East 32.38 feet; (two)
thence South 89 degrees 59 minutes 31 seconds West 0.75 feet; (three) thence South 00
degrees 00 minutes 29 seconds East 55.94 feet; (four) thence North 89 degrees 59
minutes 31 seconds East 0.75 feet; (five) thence South 00 degrees 00 minutes 29 seconds
East 32.38 feet; (six) thence South 89 degrees 59 minutes 31 seconds West 2234 feet;
(seven) thence North 00 degrees 00 minutes 29 seconds West 0.68 feet; (eight) thence
South 89 degrees 59 minutes 31 seconds West 35.94 feet; (nine) thence South 00 degrees
00 minutes 29 seconds East 0.68 feet; (ten) thence South 89 degrees 59 minutes 31
seconds West 22.34 feet; (eleven) thence North 00 degrees 00 minutes 29 seconds West
32.38 feet; (twelve) thence North 89 degrees 59 minutes 31 seconds East 0.75 feet;
(thirteen) thence North 00 degrees 00 minutes 29 seconds West 55.94 feet; (fourteen)
thence South 89 degrees 59 minutes 31 seconds West 0.75 feet; (fifteen) thence North 00
degrees 00 minutes 29 seconds West 32.38 feet; (sixteen) thence North 89 degrees 59
minutes 31 seconds East 22.34 feet; (seventeen) thence South 00 degrees 00 minutes 29
seconds East 0.72 feet; (eighteen) thence North 89 degrees 59 minutes 31 seconds East
35.94 feet; (nineteen) thence 00 degrees 00 minutes 29 seconds West 0.72 feet;
Donald R. Masson Page 2 11/11 /2010
MAMS\BANKSICarmel City Center, LLC \Condominium Documents\Building 2 \exhibits \EX A Building 2 Overall Garage
Level.doc
(twenty) thence North 89 degrees 59 minutes 31 seconds East 22.34 feet to the POINT
OF BEGINNING, containing 9,594.8 square feet, more or less.
ALSO:
A part of the Northeast Quarter of Section 36, Township 18 North, Range 3 East of the
Second Principal Meridian, Clay Township, Hamilton County, Indiana, being further
defined from elevation 831.41 feet (garage floor) to 850.02 (first floor slab) (NGVD
1929), more particularly described as follows:
Commencing at the Northeast Corner of the Northeast Quarter of said Section 36,
Township 18 North, Range 3 East; thence South 00 degrees 13 minutes 54 seconds East
(Basis of Bearings assumed from the Quitclaim Deed granted to Pedcor Office, LLC
"Grantor (recorded as Instrument Number 200500045693 in the Office of the Recorder
of Iamilton County, Indiana) 510.70 feet along the East Line of said Northeast Quarter;
thence South 89 degrees 59 minutes 31 seconds West 227.31 feet to the northeastern
corner of the exterior masonry garage level enclosure below an existing three -story
masonry building and the POINT OF BEGINNING of this description (the following
sixteen (16) courses are along the exterior perimeter of said masonry garage level); (one
thence South 00 degrees 00 minutes 29 seconds East 15.85 feet; (two) thence South 89
degrees 59 minutes 31 seconds West 11.08 feet; (three) thence South 00 degrees 00
minutes 29 seconds East 6.54 feet; (four) thence South 89 degrees 59 minutes 31 seconds
West 28.17 feet; (five) thence North 00 degrees 00 minutes 29 seconds West 14.64 feet;
(six) thence South 89 degrees 59 minutes 31 seconds West 21.70 feet; (seven) thence
North 00 degrees 00 minutes 29 seconds West 14.30 feet; (eight) thence North 89 degrees
59 minutes 31 seconds East 13.20 feet; (nine) thence North 00 degrees 00 minutes 29
seconds West 1.70 feet; (ten) thence North 89 degrees 59 minutes 31 seconds East 18.94
feet; (eleven) thence South 00 degrees 00 minutes 29 seconds East 1.70 feet; (twelve)
thence North 89 degrees 59 minutes 31 seconds East 10.20 feet; (thirteen) thence South
00 degrees 00 minutes 29 seconds East 0.17 feet; (fourteen) thence North 89 degrees 59
minutes 31 seconds East 11.14 feet; (fifteen) thence South 00 degrees 00 minutes 29
seconds East 6.37 feet; (sixteen) thence North 89 degrees 59 minutes 31 seconds East
7A8 feet to the POINT OF BEGINNING, containing 1,355.0 square feet, more or less.
Unit 1
Unit 2
EXHIBIT B -4
SCHEDULE OF UNITS
Unit 1 in the The Carmel City Center Condominium Building 2 together with an
undivided interest in the Common Area as per Declaration thereof recorded November
2010 in the Office of the Recorder of Hamilton County, Indiana with the site plan
and floor plats to the Building, as shown in Plat Book pages in the
Office of the Recorder of Hamilton County, Indiana
Unit 1 in the The Carmel City Center Condominium Building 2 together with an
undivided interest in the Common Area as per Declaration thereof recorded November
2010 in the Office of the Recorder of Hamilton County, Indiana with the site plan
and floor plats to the Building, as shown in Plat Book pages in the
Office of the Recorder of Hamilton County, Indiana
EXHIBIT C
BY -LAWS
OF
THE CARMEL CITY CENTER BUILDING 2 CONDOMINIUM BUILDING
ASSOCIATION, INC.
ARTICLE I
Definitions and Membership
SECTION 1. Definitions. The following capitalized terms shall have the meanings
ascribed to such terms. All other capitalized and non capitalized terms shall have the
meanings ascribed to such terms under the Declarations, and if not defined in the
Declarations, shall have the meaning ascribed to such terms in the Act.
(a) "Association" as used in these Bylaws, shall mean the "Building Association"
as defined in the Declaration.
(b) `Board" as used in these Bylaws, shall mean the "Building Board" as defined
in the Declaration.
(c) "Declaration" shall mean the Declaration of Covenants, Restrictions, and
Easements for the Carmel City Center Building 2 recorded at the County CIerk.
(d) "member" or "members" as used in these By -Laws shall means and refer to
"Owner" or "Owners as the case may be, as defined in the Declaration. If an Owner is a
trust, then the member shall be a beneficiary of such trust, and if an Owner or such a
beneficiary is a corporation or partnership, the member may be an officer, partner, or
employee of such Owner or beneficiary.
SECTION 2. Eligibility. There shall be one class of Members of The Carmel. City
Center Building 2 Condominium Association, Inc. The Members shall consist of the
respective Owners of the Property known as Building 2 of The Carmel City Center
Condominium located within the City of Carmel, Indiana (called "Property"), in
accordance with their Building Percentage Interests (these and other terms are used in these
By -Laws as they are defined in the Declaration, which Declaration is recorded in the
office of the County Clerk).
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SECTION 3. Succession. The membership of each Owner shall terminate when he
ceases to be an owner of a Unit, and upon the sale, transfer or other disposition of his
ownership interest in the Property, his membership in the Association shall automatically
be transferred to the new Owner succeeding to such ownership interests.
SECTION 4. Regular Meetings. The first regular annual meeting of Owners (the
"First Meeting may be held within the limits of the City of Carmel, subject to the terms
hereof, on any date, at the option of the Board, provided, however, that said First Meeting
shall be held not later than the earlier of (a) the date that is 2 years after the recording of the
Declaration, or (b) sixty (60) days after Carmel City Center, LLC "Declarant (or an
affiliate of Declarant) has sold and delivered its deed for the last of the Units which
comprise 75% of the aggregated square footage of all Units. Subsequent to the First
Meeting, there shall be a regular annual meeting of the Owners held each year within limits
of the City of Carmel, within fifteen (15) days of the anniversary of the First Meeting, one
of the purposes of which shall be to elect members of the Board. AlI such meetings of
Owners shall be held at such place in Hamilton County, Indiana, and at such time, and for
purposes as specified in the written notice of such meeting which shall be mailed to all
Owners at least ten (10) days and not more than sixty (60) days prior to the date of such
meeting, except that notice of the First Meeting shall be given at least twenty -one (21) days
prior to the date of such Meeting. Regarding the First Meeting, the Declarant shall provide
to any Owner the names, addresses, telephone numbers (if available), and weighted vote of
each Owner entitled to vote at the Meeting within three (3) working days of the request.
Owners shall receive this same information within three (3) working days of request for
each subsequent meeting to elect members of the Board. The method of calling meetings
shall be by the aforesaid written notice sent by the Board, copies of which notice may also
be either delivered personally to the Owners or to the entry door of their Unit or posted
conspicuously in the hallways, lobbies, or on bulletin boards or other parts of the Common
Areas, at the discretion of the Board.
SECTION 5. Special Meetings. Special meetings of the Owners may be called by
the President or by a majority of the directors of the Board, or by twenty percent (20 of
the Owners that are Members in Good Standing (as described in the Declarations). Said
special meetings shall be called by delivering written notice to all Owners not less than
ten (10) days nor more than sixty (60) days prior to the date of said meeting, stating the
date, time and place of said special meeting within the limits of the City of Carmel and the
matters to be considered. Matters to be submitted by the Owners shall first be submitted
to the Board, at least five (5) days prior to the special meeting, who shall then submit such
matters to the special meeting.
SECTION 6. Voting Member. There shall be one person with respect to each Unit
who shall be entitled to vote at any meeting of the Owners. Such Voting Members shall be
the Owner or one of the groups composed of all the Owners of a Unit or may be some
person designated by such Owners to act as proxy of his or their behalf and who need not
be an Owner. The proxies shall give the Owner the right to express a preference from
among the known candidates or to write in a name. Such designations shall be dated, shall
42
be made in writing to the Board prior to the meeting, shall be executed by the Owner or his
duly authorized attorney in fact or by any of multiple owners of a Unit as set forth below,
and shall be revocable at any time by actual notice to the Board of the death or judicially
declared incompetence of any designator, or by written notice to the Board by the Owner or
Owners, and such designations shall be invalid after 11 months from their date unless
provided otherwise therein. Any or all Owners, and their designee, if any, may be present at
any meeting of the Voting Members, but only the Voting members of the Unit may vote or
take any other action as a Voting Member either in person or by proxy. The Declarant shall
designate the voting member with respect to any Unit owned by the Declarant. In the
absence of any written designation with respect to a particular Unit, the Board shall be
entitled to conclusively rely on a vote cast by anyone of the group composed of all Owners
of that particular Unit.
SECTION 7. Voting. The aggregate number of votes for all Owners shall be one
hundred (100), and shall be divided among the respective Owners in accordance with their
respective Building Percentage Interests. If any Owner consist of more than one person, and
if only one of the multiple owners of a Unit is present at a meeting of the Association, he is
entitled to cast all the votes allocated to that Unit, if more than one of the multiple owners
are present, the votes allocated to that Unit may be cast only in accordance with the
agreement of a majority in interest of the multiple owners; there is majority agreement if
any one of the multiple owners cast the votes allocated to that Unit without protest being
made promptly to the person presiding over the meeting by any of the other owners of the
Unit. Voting of Owners shall be limited to those Owners who are Members in Goods
Standing pursuant to the terms and condition of the Declarations.
SECTION 8. Quorum. A quorum of Owners for any meeting shall be constituted by
Owners represented in person or by proxy and holding an of at least twenty
percent (20 of the total ownership interest in the Common Areas of Members in Good
Standing.
SECTION 9. Miscellaneous.
(a) No merger or consolidation of the Association; sale, lease, exchange,
mortgage, pledge or other disposition of all, or substantially all of the Property and assets
of the Association; and the purchase or sale of property of Units on behalf of all Owners
shall be effectuated unless there is an Approval of Two Thirds of the Members (as
defined in the Declarations), or such greater percentage as may be provided for in the
Declaration and an affirmative vote of three- fourths (3/4) of the eligible holder of a first
mortgage lien. Unless otherwise permitted by the Declarations.
(b) In the event of a resale of a Unit from other than the Declarant under an
installment contract, while the purchaser resides in the Unit he shall be counted toward a
quorum for the election of Board members at any meeting of the Owners called for the
purposes of such election, shall have the right to vote for election of Board members and
shall have the right to be elected and serve on the Board unless the Seller expressly retains
in writing all or any of such rights. In no event may both the Purchaser and Seller be
43
counted toward a quorum, permitted to vote, elected or permitted to serve on the Board.
Satisfactory evidence of the installment contract shall be given to the Board or its agents.
ARTICLE II
Board of Directors
SECTION 1. Number, Election and Term of Office. The Board of Directors of the
Association (referred to in the Condominium Declaration as Directors of the Association)
shall consist of three (3) members (hereinafter referred to as "directors Directors shall be
elected at large at the regular annual meeting of Association members by the vote of
Owners, except that, until the election of directors at the first regular annual meeting of
Members, the directors and number thereof (hereinafter called "members of the First
Board shall be appointed by the Declarant. (The first annual meeting will not be held
until the Declarant or developer of the Project has sold 75% of the aggregate square
footage of all Units within the Building unless prior to that time the Declarant or developer
give notice in writing to the members that it has waived such requirement, at which time
the first annual meeting shall be scheduled. At such annual meetings, directors, or their
representatives shall have the right to be present at the counting of the ballots cast during
such annual meetings. The Board may, but shall not be obligated to, distribute to Owners,
biographical and background information about candidates for election to the Board
provided that (1) no preference is expressed in favor of any candidate, and (2) reasonable
efforts are made to identify all candidates and (3) all candidates are given an opportunity to
include biographical and background information in the infomiation to be distributed.
Those candidates for election as director receiving the greatest number of votes cast either
in person or by proxy at the Meeting shall be elected. At the initial election held at the first
regular meeting of Members, the director receiving the greatest number of votes shall hold
office for a term of three (3) years, the director receiving the next greatest number of votes
shall hold office for a term of two (2) years, and the remaining director shall hold office for
a term of one (1) year. Thereafter, every director shall hold office for a term of two (2)
years and until his or her successor shall be elected and qualified. Members of the Board
may succeed themselves.
SECTION 2. Qualifications. Except for members of the First Board, each director
shall be a resident of a Unit and shall be a Owner (or, if a Owner is a trustee of a trust, a
director may be a beneficiary of such trust, and if a Owner or such a beneficiary is a
corporation or partnership, a director may be an officer, partner or employee of such
Owner or beneficiary). If a Director shall cease to meet such qualifications during his
term, he shall thereupon cease to be a director and his place of the Board shall be deemed
vacant.
SECTION 3. Vacancies. Any vacancies occurring in the Board shall be filled by an
Approval of Two- Thirds of the Members, except that a vacant position of the Board which
was last filled by a member of the First Board may be filled by a person appointed by the
Declarant. Any director so elected or appointed to fill a vacancy shall hold office for a
44
term equal to the time until the next meeting of Owners or thirty (30) days following the
filing of a petition signed by Owners holding 20% of the Association's votes requesting a
meeting of the Owners to fill the vacancy for the balance of its unexpired term. Such a
meeting shall be called no later than sixty (60) days following the filing of such a petition
signed by Owners holding 20% of the Association's votes.
SECTION 4. Meetings. A regular annual meeting of the Board shall be held within
ten (1 0) days following the regular annual meeting of Owners. Special meetings of the
Board shall be held upon a call by the President or by a majority of the Board on not less
than forty -eight (48) hours notice in writing to each director, delivered personally or by
mail or telegram.
Any director may waive notice of a meeting, or consent to the holding of meeting
without notice, or consent to any action proposed to be taken by the Board without a
meeting. A director's attendance at a meeting shall constitute his waiver of notice of said
meeting. The Board shall meet at least four (4) times annually, and at such other times as
the Board deems necessary. Meetings of the Board shall be open to any Owner, except for
the portion of any meeting held (i) to discuss litigation when an action against or on behalf
of the particular association has been filed and is pending in a court or administrative
tribunal, or when the Board finds that such action is probable or imminent, (ii) to consider
information regarding appointment, employment or dismissal of an employee, or (iii) to
discuss violations of rules and regulations of the Association or a Owner's unpaid share of
Building Common Expenses (as defined in the Declaration); however, any vote on these
matters shall be taken at a meeting or portion thereof open to any Owner. Any Owner may
record the proceedings at meetings required to be open by this Act by tape, film or other
means. The Board may prescribe reasonable rules and regulations to govern the right to
make such recordings. Notice of any such meeting shall be mailed or delivered at least
forty -eight (48) hours prior thereto, unless a written waiver of such notice is signed by the
person or persons entitled to such notice pursuant to the Declaration, By -Laws, or
provision of law before the meeting is convened. Copies of notices of any such meetings
shall be posted conspicuously in hallways, lobbies or bulletin boards at least forty -eight
(48) hours prior to such meeting, except if there is no common lobby for seven (3) or more
Units, the Board may designate locations near said Units.
SECTION 5. Removal. Any director may be removed from office for cause by an
Approval of Two- Thirds of the Members.
SECTION 6. Compensation. Directors shall receive no compensation for their
services as directors, unless expressly provided for in resolutions adopted by the Owners.
SECTION 7. Quorum. Two (2) Directors shall constitute a quorum
SECTION 8. General Powers and Duties of the Board. The powers and duties
of the Board shall include, but shall not be limited to, the following matters:
(a) operation, care, upkeep, maintenance, replacement and improvement of the
45
Common Areas, except with regards to Limited Common Areas reserved for the
exclusive use of Units the Board shall only have duties for repair and capital
replace, unless as provided in the Declaration, maintenance, and routine repair and
replacement obligations are delegated to the Board by the Owner of the Unit with
the duties to provide such services for the applicable Limited Common Areas;
(b) preparation, adoption and distribution of the annual budget for the
Property;
(c) levying of assessments;
(d) collection of assessments from Owners;
(e) employment and dismissal of the personnel necessary or advisable
for the maintenance and operation of the Common Areas;
(f) obtaining adequate and appropriate kinds of insurance;
(g) owning, conveying, encumbering, leasing and otherwise dealing with Units
conveyed to or purchased by it;
(h) adoption and amendment of rules and regulations covering the details of the
operation and use of the Property (except as limited by the Declaration);
(i) keeping of detailed accurate records of the receipts and expenditures affecting
the use and operation of the Property;
(j) having access to each Unit from time to time as may be necessary for the
maintenance, repair or replacement of any Common Areas therein or accessible therefrom,
or for making emergency repairs therein necessary to prevent damage to the Common
Areas or to any other Unit (except as limited by the Declaration).
Notwithstanding the provisions of this Section 8, the Board's obligations,
responsibilities and authority shall be limited by the terms, conditions, and provisions of the
Declaration.
SECTION 9. Other Powers and Duties. The Board shall also have the following
powers and duties:
(a) to elect and remove the officers of the Association as hereinafter
provided;
(b) to administer the affairs of the Association and the Property;
46
(c) to engage, if the Board deems desirable, the services of an agent (hereinafter
sometimes called the "Managing Agent to maintain, repair, replace, administer and
operate the Property or any part thereof for which the Board has responsibility, for all of
the Owners, upon such terms and for such compensation and with such authority as the
Board may approve;
(d) to formulate policies for the administration, management and operation
of the Property and the Common Areas thereof;
(e) to provide for payments for all debts, obligations, and contracts of the
Association and to approve payment vouchers or to delegate such approval to the officers
or the manager or Managing Agent;
(f) to provide for the designation, hiring and removal of employees and other
personnel, including accountants and attorneys, and to engage or contract for the services
of others, and to make purchases for the maintenance, repair, replacement,
administration, management and operation of the Property and the Common Areas and to
delegate any such powers to the Managing Agent (and any such employees or other
personnel who may be the employees of a Managing Agent);
(g) to appoint committees of the Board and to delegate to such committees the
Board's authority to carry out certain duties of the Board;
(h) to determine the fiscal year of the Association and to change said fiscal year
from time to time as the Board deems advisable;
(i) to acquire such furnishing, equipment, and other personal property for the
Common Areas as the Board shall determine are necessary and proper;
(j) to maintain and repair any Unit if such maintenance and repair is necessary, in
the discretion of the Board, to protect the Common Areas or any other portion of the
Building, and, if a Owner or any Unit has failed or refused to perform said maintenance or
repair within a reasonable time after written notice of the necessity of said maintenance or
repair mailed or delivered by the Board to said Owner, the Board may levy a special
assessment against such Owner for the cost of said maintenance or repair;
(k) the Board or its agent upon reasonable notice, may enter any Unit when
necessary in connection with any maintenance or construction for which the Board is
responsible. Such entry shall be made with as little inconvenience to the Owner as
practicable and any damage caused thereby shall be repaired by the Board as a common
expense.
(1) the Board may, in accordance with the Act, adopt such reasonable rules and
regulations not consistent herewith, as it may deem advisable for the maintenance,
administration, management, operation, use, conservation and beautification of the
Property, and for the health, comfort, safety and general welfare of the Owners and
47
Occupants of the Property. Written notice of such rules and regulations shall be given to
all Owners and Occupants and the entire Property shall at all times be maintained subject to
such rules and regulations.
(m) upon authorization by a two- thirds (2/3) vote of the members of the Board or by
the affirmative votes of not less than a majority of the voting members at a meeting duly
called for such purposes, the Board, acting on behalf of all Owners, shall have the power to
seek relief from or in connection with the assessment or levy of any real property taxes,
special assessments and any other special taxes or charges of the State of Indiana or any
political subdivision thereof, or any other lawful taxing or assessing body, which are
authorized by law to be assessed and levied on real property and to charge and collect all
expenses incurred in connection therewith as common expenses.
(n) Unless otherwise provided herein or in the Declaration, to comply with the
instructions of a majority (51 of the Building Percentage Interests, Owners as expressed
in a resolution duly adopted at any annual or special meeting of the Owners;
(o) to exercise all other power and duties of the board or Owners as group referred
to in the Act, and all powers and duties of a board or a board of directors referred to in the
Declaration of these By -Laws or as permitted by law.
SECTION 10. Non Delegation. Nothing in this Article or elsewhere in these By-
Laws shall be considered to grant to the Board, the Association or to the officers of the
Association any powers or duties which, by law, have been delegated to the Owners.
SECTION 11. Action Taken Without a Meeting. The directors shall have the
right to take any action in the absence of a meeting at which time they could take at a
meeting by obtaining the written approval of all of the directors. Any action so taken
shall have the same effect as though taken at a meeting of the directors.
SECTION 12. Conflict with Declaration. If there exist any conflict between the
terms, conditions, and provisions of these Bylaws and the Declaration, the term,
conditions and/or provisions of the Declaration shall govern concerning the scope of the
Board's authority, responsibility, and obligations, for matters including without
limitation, Common Area (and the responsibility or lack thereof for Limited Common
Areas), Building Assessments.
ARTICLE III
Officers
SECTION 1. Designation. At each regular annual meeting, the directors present at
said meeting shall elect the following officers of the Association by a majority vote:
48
(a) a President, who shall he a director and who shall preside over the meetings
of the Board and the Owners, and who shall be the chief executive of the Association;
(b) a Secretary, who shall keep the minutes of all meetings of the Board and
the Unit, owners, and who shall, in general, perform all the duties incident to the
office of Secretary, and who may be a representative of the Managing Agent;
(c) a Treasurer, who shall be responsible for financial records and books of
account and the manner in which such records and books are kept and reported;
(d) such additional officers as the Board sees fit to elect.
SECTION 2. Powers. The respective officers shall have the general powers usually
vested in such officers, provided that the Board may delegate any specific powers to any
other officer or impose such limitations or restrictions upon the powers of any officer as the
Board may see fit. Either the President or the Secretary may mail and receive notices and
execute amendments to the Declaration as provided for in the Act and in the Declaration.
SECTION 3. Tenn of Office. Each officer shall hold office for the term of one (1)
year and until his successor shall have been appointed or elected and qualified.
SECTION 4. Vacancies. Vacancies in any office shall be filled by the Board by a
two- thirds (2/3) vote of the remaining members thereof, at a special meeting of said Board.
Any officer so elected to fill a vacancy shall hold office for a term equal to the time until
the next meeting of Owners or thirty (30) days following the filing of a petition signed by
Owners holding 20% of the Association's votes requesting a meeting of the Owners to fill
the vacancy for the balance of its unexpired term. Such a meeting shall be called no later
than sixty (60) days following the filing of such petition signed by Owners holding 20% of
the Association's votes. Any officer may he removed for cause at any time by vote of two
thirds (2/3) of the total membership of the Board at a special meeting thereof.
SECTION 5. Compensation. The officers shall receive no compensation for
their services as officers, unless expressly provided for in a resolution duly adopted
by the Owners.
ARTICLE IV
Building Assessments
SECTION 1. Annual Budget. The Board shall cause to be prepared an estimated
annual budget for each fiscal year of the Association. Such budget shall take into account
the estimated Common Expenses and cash requirements for the year for the
responsibilities and obligations of the Board. The budget shall include without limitation
salaries, wages, payroll taxes, legal and accounting fees, working capital fund, supplies,
materials, parts, services, maintenance, repairs, replacements, landscaping, insurance, fuel,
49
power, real estate taxes, and all other Common Expenses. To the extent that the
assessments and other cash income collected from the Owners during the preceding year
shall be more or less than the expenditures for such preceding year, the surplus or deficit,
as the case may be, shall also be taken into account. The annual budget shall also take
into account the estimated net available cash income for the year from the lease, operation
or use of the Common Areas. The annual budget shall provide for a reserve for
contingencies for the year and a reserve for capital expenditures, in reasonable amounts as
determined by the Board. The reserve for capital expenditures shall be held in a segregated
account in the name of the Association. If there exists any conflicts between the
Association and a Unit Type Association concerning their respective authority to assess
for common expense items, the determination ofthe Board shall be conclusive unless the
decision of the Board is determined to be arbitrary under the provisions of the Bylaws and
Declaration.
SECTION 2. Building Assessments. The estimated annual budget for each fiscal
year shall be approved by the Board, and copies of the proposed annual budget, together
with an indication of which portions are intended for capital expenditures or repairs or
payment of real estate taxes, shall be furnished by the Board to each Owner, not later than
thirty (30) days prior to the adoption thereof. If an adopted budget requires assessment
against the Owners in any fiscal or calendar year exceeding 115% of the assessments for
the preceding year, the Board, upon written petition by Owners with 20% of the votes of
the Association filed with fourteen (14) days of the Board action, shall call a meeting of the
Owners within thirty (30) days of the date of filing of the petition to consider the budget.
Unless a majority of the votes ofthe Owners are cast at a meeting to reject the budget, it is
ratified, whether or not a quorum is present. I.n determining whether assessments exceed
115% of similar assessments inprior years, any authorized provisions for reasonable
reseraes for repair or replacement of the Condominium Property, and anticipated expenses
by the Association which are not anticipated to be incurred on a regular basis, shall be
excluded from the computation. On or before the first day of the first month and of each
succeeding month of the year covered by the annual budget, each Owner shall pay, as his
respective monthly assessment for the Common Expenses, on twelfth (1 /12) of his
proportionate share of the Common Expenses for such year as shown by the annual budget.
Unless otherwise provided in the Declaration, such proportionate share for each Owner
shall be in accordance with his respective Building Percentage Interest. In the event that the
Board shall not approve an estimated annual budget or shall fail to determine new monthly
assessments for any year, or shall he delayed in doing so, each Owner shall continue to pay
each month the amount of his respective monthly assessment as last determined. Each
Owner shall pay his monthly assessment on or before the first day of each month to the
Managing Agent or as may be otherwise directed by the Board. No Owner shall be relieved
of his obligation to pay his assessment by abandoning or not using his Unit, the Common
Areas, or the Limited Common Areas. Each Owner shall receive notice, in the same
manner as is provided herein for membership meetings, of any meeting of the Board
concerning the adoption of the proposed annul budget or any increase or establishment of
an assessment.
SECTION 3. Partial Year or Month. For the first fiscal year, the annual budget
50
shall be as approved by the First Board. If such first fiscal year, or any succeeding fiscal
year, shall be less than a full year, then the monthly assessments for each Owner shall be
proportionate to the number of months and days in such period covered by such budget.
Commencing with the date of occupancy of his Unit, each Owner shall pay his assessment
for the following month or fraction of a month, which assessment shall be in proportion to
his Building Percentage Interest and the number of months and days remaining of the
period covered by the current annual budget, and which assessment shall be as computed
by the Board.
SECTION 4. Annual Report. Within ninety (90) days after the end of each fiscal
year covered by an annual budget, or as soon thereafter as shall he practicable, the Board
shall cause to be furnished to each Owner an audited statement for such year so ended,
showing an itemized accounting of the Common Expenses for the preceding year actually
incurred and paid including capital expenditures or repairs and real estate taxes, together
with an indication of which portions were for capital expenditures or payment of real
estate taxes and with a tabulation of the amounts collected pursuant to the budget or
assessments, and showing the net excess or deficit of income over expenditures plus
reserves, and such other information as the Board may deem desirable. The audited
statement shall be prepared by a CPA firm selected by the Board.
SECTION 5. Supplement Budget, In the event that during the course of a year, it
shall appear to the Board that the monthly assessments, determined in accordance with the
estimated annual budget for such year, are insufficient or inadequate to cover the
estimated Common Expenses for the remainder of such year, then the Board shall prepare
and approve a supplemental budget covering the estimated deficiency for the remainder of
such year, copies of which supplemental budget shall be furnished to each Owner, and
thereupon a supplemental assessment shall be made to each Owner for his proportionate
share of such supplemental budget.
SECTION 6. Expenditures. Except with respect to such expenditures which (i) are
specifically authorized by the Declaration or By- Laws, or. (ii) are required by law, or (iii)
can be paid from the proceeds of insurance received by or for the account of the Board, or
(iv) are immediately necessary for the emergency repair, preservation, safety or protection
of the Owners or the Common Areas, the Board shall have no authority to approve or
authorize any structural alterations, capital additions to, or capital improvements of the
Common Areas requiring an expenditure in excess of the Thirty Thousand Dollars
($30,000.00) or any contract for a term of more than four (4) years, unless such expenditure
or contract shall have been approved by two- thirds (2/3) of the total votes cast at a meeting
called for that purpose.
Any non recurring Common Expense not set forth in the budget as adopted, and
any increase in assessment over the amount adopted shall be separately assessed against
all Owners. Any such separate assessment shall be subject to the approval by the
affirmative votes of at least two- thirds (2/3) of the Owners voting at a meeting of Owners
duly called for the purpose of approving the assessment if it involves proposed
expenditures resulting in a total payment assessed to a Unit equal to the greater of five (5)
51
times a Unit's most recent Common Expense assessment calculated on a monthly basis or
$300.00.
SECTION 7. Lien. It shall be the duty of every Owner to pay his proportionate
share of the Common Expenses, as provided in the Declaration, and as assessed in the
manner herein provided. If any Owner shall fail or refuse to make any such payment
of the Common Expenses, when due, the amount thereof together with interest thereof
at the Interest Rate or such greater percentage as may then be permitted under the laws
of the State of Indiana after said Common Expenses become due and payable, late
charges, reasonable attorneys' fees and cost of collection or amount of any unpaid fine
shall constitute a lien, as provided in the Act, enforceable by the Board, on the interest
of such Owner in the Property, provided, however, that such lien shall be subordinate
to the lien of a prior recorded first mortgage held a Mortgagee on the interest of such
Unit, except for the amount of the proportionate share of Common Expenses which are
due and payable from and after the date on which such mortgage owner or holder
either takes possession of the Unit, accepts a conveyance of any interest therein (other
that as security), or accepts a deed in lieu of foreclosure for its mortgage and causes a
receiver to be appointed, in suit to foreclosure its mortgage, all as provided in the
Declaration. The provisions of this paragraph of this Section 7 shall not be amended,
changed, modified or rescinded in any way without the prior written consent of all
such lien holders of record. The Association or its successors and assigns, or the Board
or its agents, shall have the right to maintain a suit to foreclose any such lien, and there
shall be added to the amount due the costs of said suit and other fees and expenses,
together with legal interest and reasonable attorneys' fees to be fixed by the Court.
Furthermore, if any Owner shall fail or refuse to pay when due his proportionate share
of the Common Expenses and such Owner withholds possession of his Unit after
demand by the Board or the Association in writing setting forth the amount claimed,
the Board or the Association shall have the right to possession of such Unit. The Board
and the Association shall have the authority to exercise and enforce any and all rights
and remedies as provided for in the Act, the Declaration or these By -Laws, or as are
otherwise available at law or in equity, for the collection of all unpaid assessments.
SECTION 8. Records and Statement of Accounts. The Board shall cause to be kept
detailed and accurate records in chronological order of the receipts and expenditures
affecting the Common Areas, and Limited Common Areas, specifying and itemizing the
Common Expenses and limited Common Expenses incurred by such Board. Payment
vouchers may be approved in such manner as the Board may determine.
The Board shall, upon receipt of ten (10) day written notice to it or the Association
and upon payments of a reasonable fee, furnish to any Owner a statement of his account
setting forth the amount of any unpaid assessments of other charges due and owing from
such owner.
SECTION 9. Discharge of Liens. The Board may cause the Association to discharge
any mechanic's lien or other encumbrance which in the opinion of the Board may constitute
a lien against the property of the Common Areas, rather than a lien against only a particular
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Unit. When less than all the Owners are responsible for the existence of any such lien, the
Owners responsible shall be jointly and severally liable for the amount necessary to
discharge the same and for all costs and expenses, including attorneys' fees, incurred by
reason of such lien.
SECTION 10. Holding of Funds. All funds collected hereunder shall be held and
expended for the purpose designated herein, and (except for such special assessments as
may be levied hereunder against less than all the Owners and for such adjustments as may
be required to reflect delinquent or prepaid assessments) shall be deemed to be held for
the benefit, use and account of all the Owners in the proportions of their respective
Building Percentage Interest.
SECTION 11. Forbearance. The Association shall have no authority to forebear the
payment of assessments by any Owner.
ARTICLE V
Contractual Powers
No contract or other transaction between the Association and one or more of its
Directors or between the Association and any corporation, firm or association in which
one or more of the Directors of the Association are directors, or are financially interested,
is void or voidable because such director or directors are present at the meeting of the
Board or a committee thereof which authorizes or approves the contract or transaction or
because his or their votes are counted, if the circumstances specified in either of the
following subparagraphs exists:
(a) the fact of the common directorship or financial interest is disclosed or known
to the Board or committee and noted in the minutes and the Board or committee authorizes,
approves or ratifies the contract or transaction in good faith by a vote sufficient for the
purpose without counting the vote or votes of such director or directors; or
(b) the contract or transaction is just and reasonable as to the Association at the
time it is authorized or approved.
Common or interested directors may be counted in determining the presence of a quorum
at a meeting of the Board or a committee thereof which authorizes, approves or ratifies a
contract or transaction.
ARTICLE VI
Amendments and Litigation
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These By -Laws may be amended or modified from time to time by action or
approval of seventy -five percent (75 of the total ownership and first mortgage holders
of the Common Areas, and such amendment shall be effective upon the recording, in the
office of the County Clerk, of a certificate of the Secretary of the Association setting forth
the amendment and certifying the requisite percentage vote of the total ownership;
provided, however, that no change, modification or amendment which affects the rights,
privileges, or obligations of the Declarant, shall he effective without the prior written
consent of the Declarant.
Only the Association shall have the right and authority to bring a cause of action
against the Declarant and/or developer of the Building for construction or latent defects.
Such cause of action shall only be authorized by the approval of seventy -five percent
(75 of the total ownership and first mortgage holders of the Common Areas.
ARTICLE VII
Indemnification
SECTION 1. General. The Association shall indemnify and hold harmless each of
its directors and officers, each member of any committee appointed pursuant to the By-
Laws of the Association, and the Board and Declarant, and each of its members, against all
contractual and other liabilities to others arising out of contracts made by or other act of
such directors, Board, officers, committee members, Declarant or its members, on behalf of
the Owners, or arising out of their status as directors, Board, officers, committee members,
Declarant or its members unless any such contract or act is contrary to the provisions of the
Declaration or these By -Laws or shall have been made fraudulently or with gross
negligence or criminal intent. It is intended that the foregoing indemnification shall include
indemnification against all cost and expenses (including, but not limited to, counsel fees,
amounts of judgment paid and amounts paid in settlement) reasonably incurred in
connection with the defense of any claim, action, suit, or proceeding, whether civil,
criminal, administrative or other, in which any such director, officer, Board, Committee
member, Declarant or its members may be involved by virtue of such persons being or
having been such directors, officer, Board, committee member, Declarant or its members;
provided, however, that such indemnity shall not be operative with respect to (a) any matter
as to which such person shall have been finally adjudged in such action, suit or proceeding
to be liable for gross negligence or fraud in the performance of his duties as such director,
officer, Board, committee member, Declarant or its members; of (b) any matter settled or
compromised, unless, in the opinion of independent counsel selected by or in a manner
determined by the Board, there is not reasonable ground for such persons being adjudged
liable for gross negligence or fraud in the performance of his duties as such director, Board,
officer, committee member, Declarant or its members.
SECTION 2. Success on Merits. To the extent that the Declarant or its members or
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a member of the Board of directors or an officer of the Association or a member of any
committee appointed pursuant to the By -Laws of the Association has been successful on
the merits or otherwise in defense of any action, claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonable incurred
by him in connection therewith.
SECTION 3. Advance Payment. Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the Association in advance of the final
disposition of such action, suit or proceeding as authorized by the Board of Directors in the
specific case upon receipt of any undertaking by or on behalf of the person or entity seeking
such indemnification or payment in advance to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the Association as
authorized in this Article VII.
SECTION 4. Miscellaneous. The Association and the Board shall have the power to
raise and the responsibility for raising by special assessment or otherwise, any sums
required to discharge its obligations under this Article, provided, however, that the liability
of any Owner arising out of any contract made by or other acts of the directors, Board,
officers, members of such committees, Declarant or its member, or out of the aforesaid
indemnity in favor of the directors, Board, officers, members of such committees,
Declarant or its members, shall be limited to such proportion of the total liability
hereunder as said Owner's Building Percentage Interest. Every agreement made by the
directors, Board, officers, members of such committees, Declarant or its members or by
the Managing Agent on behalf of the Owners shall provide that the directors, Board,
officers, members of such committees, Declarant or its members or the Managing Agent,
as the case may be, are acting only as agents for the Owners and shall have no personal
liability thereunder (except as Owners), and that each Owner's liability thereunder shall be
limited to such proportion of the total liability thereunder as his Building Percentage
Interest. The indemnification provided by this Article VII shall not he deemed exclusive
of any other rights to which those seeking indemnification may be entitled under any
statute, agreement, vote of members of the Association or disinterested members of the
Board of Directors or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office. Such right to indemnification shall
continue as to a person or entity who has ceased to be the Declarant or its members or a
member of the Board of Directors, officer of the Association or a member of such
committee, and shall inure to the benefit of the heirs, executors, administrators, successors
and assigns of such person or entity.
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EXHIBIT D
BUILDING PERCENTAGE INTEREST
UNIT 1
UNIT 2
70.8787%
29.1213%
EXHIBIT E
WRITTEN NOTICE OF ASSESSMENT LIEN
NOTICE OF PAST DUE ASSESSMENT PURSUANT TO DECLARATION OF CONDOMINIUM
OWNERSHIP FOR THE CARMEL CITY CENTER CONDIMINTIUM BUILDING 2 CERTIFIED MAIL,
RETURN RECEIPT REQUESTED
(to be mailed at least 30 days prior to recording a lien)
The Carmel City Center Building Association hereby notifies you, the owner of
[Unit) of the name of subdivision at 736 Hanover Place, Carmel, IN 46032 that you are
past due in your payment of the regular or special Assessment of the Association, and that
the Association intends to impose upon your Unit] a lien as specified under Article 12 of the Declaration
of Condominium Ownership for the Car,el City Center Condominium Building 2 "Declaration and,
pursuant to Indiana Code §32- 25 -6 -3, by the recording with the County Recorder of Hamilton County a
Notice of Delinquent Assessment.
Fee and Penalty Procedures of the Association:
Article XII of the Declaration provides that any Assessment not paid within 30 days after the due date shall
and shall bear interest from the due date at the rate of fourteen percent (14 per year. The Association
may bring an action at law against the Owner personally obligated to pay the Assessment or foreclose the
lien against the property. Article V of the Declaration provides that each Owner of a lot or Unit is deemed
to covenant and agree to pay to the Association annual Assessments or charges and special Assessments
together with interest, costs, and reasonable attorney fees, which shall be a charge on the land and a
continuing lien upon the property upon which the Assessment is made. Each Assessment shall be the
personal obligation of the person who was the Owner of the property at the time the Assessment fell due.
Itemized Statement of Charges: The following is an itemized statement of charges owed by you to the
Association as of the date of this Notice.
Principal owed: 1
Interest owed:
Late charges owed:
Fees: s
Costs of Collections:
e
Method of ca ._.J-
lculation of late charges:
Attorney's fees:
TOTAL DUE
Collection and Lien Procedures of the Association: The Association's pract i to require payment of
all Assessments, regular and special, as specified in the Declaration for the Project, pursuant to the
provisions of applicable law, including interest incurred on those Assessments, and the costs of and
expenses of collection, including reasonable attorney fees. The Association has the right to the reasonable
costs of collection. You (the Owner) may submit a written request to meet with the Board to discuss a
payment plan for assessment, in which case the Board shall meet with the Owner (you) in executive session
within forty-five (45) days of the postmark of the request if the request is mailed within fifteen (15) days of
the date of the postmark of the Notice, unless there is no regularly scheduled Board meeting within that
period, in which case the Board may designate a committee to meet with the Owner (you). You (the
Owner) [have] [has] the right to dispute the debt by submitting to the Board a written explanation of the
reasons for disputing the debt in which case the Board shall respond within fifteen (15) days of the
postmark of the explanation if the explanation is mailed within fifteen (15) days of the postmark of the
Notice of delinquent assessment. IMPORTANT NOTICE: IF YOUR SEPARATE INTEREST IS
PLACED IN FORECLOSURE BECAUSE YOU ARE BEHIND YOUR ASSESSMENTS, IT MAY
BE SOLD WITHOUT COURT ACTION.
THE BUILDING ASSOCIATION FOR THE CARMEL CITY CENTER CONDOMINIUM BUILDING 2
By:
Name J Signature j Its:
Capacity or title of signator J Dated:
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