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HomeMy WebLinkAboutDeclaration of HPR Restrictions RECORDED Instrument �11�,Y N REO 200100011118 ION SubJ t g tiR�l M@ fgr Vin. f r Declaration of Horizontal Property Re R ts,p Restrictions, and Covenants AuditpF ffomlllon Count/ Parcel DECLARATION OF HORIZONTAL PROPERTY REGIME A RESTRICTIONS, AND COVENANTS FOR RITTER'S HORIZONTAL PROPERTY REGIME This Declaration is for a condominium under the Indiana Horizontal Property Law, IC 32- 1-6 -1, et seq. "Act made this 5 day of March 2001, by Herman D. and Judith R. Sierzputowski (hereinafter referred to as "Declarants 1. DECLARATION AND SUBMISSION OF REAL ESTATE UNDER TERMS AND CONDITIONS OF THE INDIANA HORIZONTAL PROPERTY LAW. The Declarants, reside in Hamilton County, Indiana and being the owners of the fee simple by Warranty Deed of real estate located in Hamilton County ('Tract A and "Tract B by virtue of a Warranty Deeds recorded as Instrument Number 20002294 and Instrument Number 9000455 in the Office of the Recorder of Hamilton County, Indiana, do hereby on this day of March, 2001, create, submit, subject, and declare Tract "A" the real estate described in Exhibit "A" and Tract "B" the real estate described in Exhibit "B" to be a Horizontal Property Regime under the Act, together with existing or proposed buildings, improvements, and appurtenances as shown and depicted on the Site Development Plan, floor plans, building plans, and drawings certified as correct and accurate on the day of March, 2001, by Registered Surveyor Number 10398, Allan H. Weihe, as President of Weihe Engineering, Inc. 2. INDIANA HORIZONTAL PROPERTY LAW. Declarants further state and expressly declare that the Act is incorporated into and made a part of this Declaration by this reference. 3. DESCRIPTION OF LAND. The legal description of the real estate on which the buildings, improvements, and appurtenances will be located is set forth and described in Exhibit "A" and Exhibit "B" and is further described and depicted on the site plan, all of which are incorporated into and made a part of this Declaration by reference. 4. DEFINITIONS. The following terms, as used in the Declaration, unless the context clearly requires otherwise, shall mean the following: 4.1 Ritter's Horizontal Property Regime" (herinafter "Ritter's means the name by which the Property and Horizontal Property Regime shall be known. 200100011 Filed for Record HAMILTON COUNTY, INDIANA MARY L CLARK 03 -06 20 01 04:155 pm HPR DECLAR 4.2 "Act" means the Horizontal Property Law of the State of Indiana (Acts 1963, Chapter 349, §1 31, as amended by Acts 1977 P.L. 308, Section 1.31; IC 32- 1-6 -1, et seq.). 4.3 "Association" means the unincorporated association of Co- Owners of Ritter's Horizontal Property Regime Association. more particularly described in paragraph 14. 4.4 "Board of Directors" means the governing body of the Association, being the initial Board of Directors referred to in the Bylaws or any subsequent Board of Directors elected by the Co- Owners in accordance with the Bylaws. The term "Board of Directors as used in this Declaration and in the Bylaws, shall be synonymous with the term "Board of Directors" as used in the Act. 4.5 "Buildings" mean physical structures located on Exhibit "A" named as Building A and Building B in which there is specifically located one Condominium Unit in each building and the Condominium Units are labeled and lettered Unit 1- A and Unit 1- B. The Buildings are more particularly described and identified on the Site Development Plans, floor plans and building plans as they are filed. 4.6 "Bylaws" mean the Bylaws of the Association providing for the administration and management of the Property as required by and in conformity with the provisions of the Act. A true copy of the Bylaws is attached to this Declaration and incorporated in this Declaration by this reference. 4.7 "Co- Owners" means the owners of all the two (2) Units. 4.8 "Common Areas" means the common areas and facilities appurtenant to the Property as defined in paragraph eight (8) of this Declaration. 4.9 "Common Expenses" means expenses of administration of the Association and expenses for the upkeep, maintenance, repair, and replacement of the Common Areas and Limited Areas and all sums lawfully assessed against the Owners by the Association or as declared by the Act, this Declaration, or the Bylaws. 4.10 "Condominium Interest" shall mean the following: 4.10.1 Fee simple title to a Unit; 4.10.2 An undivided interest, together with all other Owners in the Common Areas and Limited Common Areas in the Property; 4.10.3 An exclusive right to use the areas described in the Declaration, Plans and accompanying documents, as "Limited Common Areas" and restricted to the use of the Owner's respective Unit; 2 4.10.4 A membership in the Association, as subsequently defined, and subject to the Declaration, the Bylaws of said Association and all governing documents of said Association; 4.11 "Declarants" shall mean and refer to Herman D. and Judith R. Sierzputowski, and any successors and assigns whom Herman D. and Judith R. Sierzputowski designates in one or more written recorded instruments to have the rights of Declarants under this Declaration, including, but not limited to, any mortgagee acquiring title to all or any portion of the Property pursuant to the exercise of rights under, or foreclosure of, a mortgage executed by Declarants. A mortgagee acquiring title by virtue of foreclosure against the Declarants does not assume the prior obligations or liabilities of the Declarants. 4.12 "Limited Areas" means the limited common area and facilities as defined in paragraph nine (9) of this Declaration. 4.13 "Mortgagee' means the holder of a first mortgage lien on a Unit. 4.14 "Owner" means a person, firm, corporation, partnership, Limited Liability Company, association, trust, or other legal entity or any combination thereof who owns the fee simple title to a Unit and the condominium interest inherent therein. 4.15 "Percentage Interest" means the percentage of undivided interest in the title to the Common Areas and Limited Areas appertaining to each Unit as specifically expressed in this Declaration. 4.16 "Percentage Vote" means that, percentage of the total vote accruing to all of the Units, which is appurtenant to each particular Unit, and accrues to the Owner of such Unit. The Percentage Vote to which each Owner shall be entitled on any matter upon which the Co- Owners are entitled to vote shall be the same percentage as the Percentage Interest appurtenant to such Owner's Unit. 4.17 "Plans" means site development plans and building plans, certified by Weihe Engineering, Inc. Registered Surveyor and Engineer, under date of March, 2001, or as may be subsequently amended. 4.18 "Property" means collectively Tract A and Tract B as they may be subjected to the Horizontal Property Regime, including the Units, the Buildings, improvements, recreational facilities, appurtenances, and property of every kind and nature whatsoever, real, personal, and mixed, located upon the real estate and used in connection with the operation, use, and enjoyment of Ritter's Horizontal Property Act but expressly does not include the personal property of the Owners or their tenants. 3 4:20 "Unit" means one of the Condominium Units constituting Building A and one of the Condominium Units constituting 'Building B in the Ritter's Horizontal Property Regime. Each unit shall be a separate freehold estate as provided in the Act consisting of the space within the boundaries of such Unit and being more particularly described and identified on the plans and in other paragraphs of the Declaration. For purposes of the application of the Act to this Horizontal Property Regime, the term "Unit" as used in this Declaration and all attending- documents shall be deemed to be synonymous with the term "Condominium Unit." Wherever the term "Condominium Unit" is used in the Act, the name shall be deemed to apply to the term "Unit" as used in the documents of this Horizontal Property Regime.: 5. DESCRIPTION OF BUILDINGS. There are two (2) one -story buildings. Building A contains one (1)' Condominium Unit labeled and described as 1- A and Building B contains one (1) :Condominium Unit labeled and described as 1- B. Further details, terms and use conditions for all the Buildings' and Appurtenances, including, but not limited to the storage areas recreational areas, parking areas and other Limited and Common Areas are set forth: in and further delineated on the Plans as they are filed or as the Plans may be amended. 6. IDENTIFICATION AND TITLE TRANSFER OF UNITS. Each Unit is identified and located by unit number on the plans. Each floor level' refers to the level on which the Unit is located. The plans of the Ritter's Horizontal Property Regime submitted with this Declaration sets forth the Buildings as placed upon the Property, sets forth the relation of the Buildings to the lot lines, and establishes the placement of all other improvements upon the Property and in the Buildings: The plans further ;establish the location or locations of the Units within the Buildings., Accordingly, the Unit numbers and floor level designating the Units within the Building are set forth on the floor plans of the Buildings submitted with this. Declaration, and said floor plan's-further designate the dimensions, layout, and locations of the respective Units. A sufficient legal description of each Unit for all purposes shallconsist of .the identifying number of the Unit and the name of the Condominium Regime and reference to the recording information: By way of example: Unit 1- A in Building A. may be formally; described, conveyed, and referred to as Unit 1- A in the Ritter's Horizontal Property Regime according to the Declaration recorded as Instrument Number under date of March 2001 in the Office of the Recorder Hamilton County, Indiana. 7. DESCRIPTION OF UNITS. 7.1 Appurtenances: Each Unit shall consist of all, space within the boundaries thereof, as hereinafter defined, all portions of the Building situated within such boundaries, including but not limited to all fixtures,- facilities, utilities, equipment, appliances, and structural components. designed "and intended solely and exclusively for the enjoyment, use and 'benefit of the Unit wherein the same are located, or to which they are attached, but excluding therefrom that designated, 'designed or intended for the 4 use, benefit, support, safety or enjoyment of any other Unit or which may be necessary for the safety, support, maintenance, use and operation of any part of the Buildings or which'are normally designed or designated for common use; provided, however, that all fixtures, equipment and _appliances designated, designed, or intended for the exclusive enjoyment, use and benefit of a Unit shall constitute a part of such Unit, whether or not the same are located within or partly within the boundaries of such Unit, and all interior walls and all of the floors and ceilings within the boundaries of a Unit are considered part of the Unit. 7.2 Boundaries. _The boundaries of each Unit s hall be as shown on the Plans measured between the exterior surface of the floors, ceilings and perimeter walls of each Unit. In the event any horizontal or vertical or other boundary line as shown on the Plans does not coincide with the actual location of the respective wall, floor or ceiling surface of the Unit because of inexactness or construction, settling after construction, or for any other reasons, the boundary lines of each Unit shall be deemed to be and treated for purposes of ownership, occupancy, possession, maintenance, decoration, use and enjoyment, as in accordance with the actual existing construction. In such case, permanent appurtenant easements for exclusive use shall exist in favor of the Owner of each Unit in and to such space lying outside of the actual boundary lines of the Unit, but within the appropriate wall, floor or ceiling surfaces of the Unit. 7.3 Condominium Interest. Each Unit shall carry with it a Condominium Interest, and the Condominium Interest shall be inseparable from said Unit and shall pass with the fee interest to said Unit as an integral;part of such Unit. 8. COMMON AREAS. AND FACILITIES. Common Areas means and consists of and includes all portions of 'the Property and the improvements located on the Property, excluding the Units as defined and provided for in this Declaration, the Bylaws of the Association, and the Plans of the Ritter's Horizontal Property Regime except as otherwise provided. Common Areas shall include but may not be limited to the following: 8.1. The Property (excluding the Units); 8.2. The driveways, parking areas,, yards, gardens, sidewalks, playground areas, and buildings, containing parking spaces, maintenance, and storage facilities; 8.3. All facilities providing central electricity, gas, water supply systems, and sanitary sewer or septic systems and mains serving the Buildings; 8.4. Exterior lighting fixtures and electrical service lighting for the exterior of the Buildings; 8.5. Pipes, ducts, electrical wiring, conduits and public utilities lines; 8.6. All facilities and appurtenances located outside of the boundary lines of the Units, except those areas and facilities expressly defined as part of a Unit and except to 5 r IP the extent the same are otherwise classified and defined as Limited Areas and 'Facilities; and 8.7. Any other portions Of the Property necessary or convenient to its existence, maintenance and safety or normally in common use, except to the extent specifically included within the boundaries of the Units. Each Owner of a Unit may' use the common elements in accordance with the By- Laws, Rules and Regulations and for the purpose for which they were intended without hindering or encroaching; upon the lawful rights of the. other Unit Owners, subject always to the exclusive use of the limited common elements as provided in this Declaration. 9. LIMITED COMMON:.AREAS AND FACILITIES: Limited Areas and Facilities shall be those portions of the Common Areas, which are limited in their use and enjoyment to fewer than all the Owners: Limited Areas and those Units to which use thereof is limited are as follows as depicted on plans of Ritter's Horizontal Property Regime as filed or amended: 9.1 Mechanical Equipment. Air conditioning equipment, heating equipment, ventilation equipment, ducts, pipes, wires, bathroom plumbing facilities and fixtures, kitchen plumbing facilities: and fixtures, and hot and cold water systems, including; water heaters, shall. be limited- common elements reserved for the use of the Units respectively served by such equipment._ The designation of the Limited Areas and Facilities and the Unit or Units they serve is set forth and depicted on the Plan or as further described and defined in this Declaration. The costs of upkeep, maintenance, replacement, and management:of the limited common elements and facilities, systems, and equipment shall be- "charged to the Owners of the Unit or Units served by such equipment as Unit expenses in the manner provided' in the Bylaws. 9.2 Window -Frames, Door Frames, Entrances, Walks, and Steps. Window frames, doorframes, entrances, walks, and steps upon or through which access to a Unit is obtained are limited to the use and enjoyment of the Unit or Units served by such improvements. The exterior sides ancF surfaces of doors, windows, and frames surrounding the same in the perimeter 4alls of each Unit shall be limited to the exclusive use of the Condominium Unit to which they appertain and the expense for maintaining or replacing same;shall be borne by the Owner of the Unit. 9.3 Utilities and Improvements' Serving Individual Units. All utilities lying within the exterior dimensions of .the perimeter walls of any Unit and exclusively serving a particular Unit or Units. within the `Building shall be deemed. to be Limited Areas, and shall be restricted to the use and enjoyment of the Unit or Units which they serve. Such utilities shall expressly be deemed to include, but shall not be limited to all water, sewer, gas, electrical, TV, telephone; and heating and air conditioning lines, ducts, improvements, and facilities, of every type or nature: whatsoever. Except as may otherwise be expressly provided, such utilities and all portions thereof Tying outside the exterior perimeters of any Unit shall be "deemed to be and remain Common Areas. In 6 v I addition to those facilities established as Limited Areas above, all heating and air conditioning facilities Tying within or outside the exterior perimeters of any Unit and serving any particular Unit within any such Building shall be deemed to be Limited Areas, and shall be restricted to the use and enjoyment of the Unit which they serve. The cost of maintaining and replacing such facilities shall be borne by the Unit served by such equipment, and the Owner shall be personally responsible for such maintenance replacement and costs: Such heating and air conditioning facilities shall include all heating and, air conditioning ducts, lines, and improvements lying within the exterior or interior perimeters of the Building, all air condenser units located or lying outside any Unit and all lines, ducts, or facilities connecting any such condenser with any of the said lines, ducts or improvements within the perimeters of a Building. 9.4 Limited Areas Depicted on Plans. All other areas and facilities designated and shown on the plans, as Limited Areas shall be limited to the Unit or Units to which they appertain and serve as shown on the plans. 10. ENCROACHMENTS. AND EASEMENTS FOR COMMON AREAS. If by reason of the location, construction, settling, or shifting of a Building, any Common Area or Limited Areas now encroaching or shall subsequently encroach upon any Unit, then in such event, an easement shall be deemed to exist and run to the Co- Owners and the Association for the maintenance, use, and enjoyment of such Common Area or Limited Area. Notwithstanding .any other provision in this Declaration to the contrary, each Owner shall have an easement in common with another Owner or Owners to use all pipes, wires, ducts, cables, conduits, utility; lines, and other common facilities of any kind or nature located in or running thro'ugh any of the other Units and serving his Unit. 11. ENCROACHMENT DUE TO EXTERNAL CAUSE. In the event the Building, the Unit, or any adjoining common element shall be partially or totally destroyed as a result of fire or other casualty or as a result of condemnation or eminent domain proceedings, and then rebuilt, encroachments of parts of the common elements upon any Unit, or of any Unit upon any other Unit or upon any portion of the common elements, due to such rebuilding, shall be permitted, and valid easements for such encroachments and the maintenance of such encroaching common element or Unit shall exist so long as such Building shall stand. 12. EASEMENTS. The Board of Directors shall be authorized and empowered to give, convey, transfer, cancel, relocate, and otherwise deal with utility and other easements located on or within the Common and Limited Areas and Facilities. 13. OWNERSHIP OF COMMON AREAS AND PERCENTAGE INTEREST. Each Owner shall have an undivided interest in the Common Areas and Facilities and the Limited Areas and Facilities as provided by the Law with all other Owners, equal to his Unit's Percentage Interest as'stated in this Declaration defined as follows: 7 1 Limited Areas and Facilities as provided by the Law with all other Owners, equal to his Unit's Percentage Interest as stated in this Declaration defined as follows: Condominium Unit one A is located in Building A and is a 50% owner in the undivided common property. Condominium Unit one B is located Building B and is a 50% owner in the undivided common property. 14. THE RIGHT TO WITHDRAW PROPERTY; CONTRACTION RIGHTS FROM THE HORIZONTAL PROPERTY REGIME. The. Declarants hereby reserve the unconditional right with the execution of this document to withdraw (contract) certain real estate from the Horizontal Property Regime. Specifically, the real estate that will be contracted is describedand.labeled as Tract Bon Exhibit "B Said real estate lies within the boundaries of the US 31 overlay zone and approximately +1- 600 feet from the right -of -way of US 31. The Declarants reserve this unilateral right to withdraw this for the purpose of removing said real estate from the US 31 overlay zone and to induce the City of Carmel to issue an Improvement Permit for residual Tract A described on Exhibit "A" and lies completely outside the US 31 overlay zone. The Declarants would file an amendment to this declaration and contract or withdraw the real estate from the Horizontal Property Regime. The Declarants reserves this right to file the amendment to withdraw and contract the real estate not to exceed ten (10) years from the filing of the original declaration. The Declarants indicates that there are no Condominium Units located on Tract B. The right of this reservation to contract is unlimited and can be exercised by the Declarants at anytime in one phase by filing an amendment. 15. UNIT VOTING' RIGHTS. Subject to the rights -of Declarants in paragraph 14, the Percentage Interest appertaining to each separate Unit in the Common Areas and Facilities and Limited Areas and Facilities as set forth in the schedule of paragraph 13 above, shall be permanent and shall not be altered or changed without the unanimous written consent of all the Owners and then only if in compliance with all requirements of the Act. Each Unit Owner shall be entitled to the number of votes equal to the total of the percentage of ownership in the common elements applicable to the Owner's Unit percentage of ownership`, as designated in the percentage interest schedule of paragraph 13 above. Section 2.05 of the Bylaws further sets forth the voting rights and procedure. Each Unit Owner shall be permitted to designate a written proxy to vote on all matters. 16. REAL ESTATE TAXES. Real estate taxes are to be separately assessed and taxed to each Unitas provided in the Act. In the event that for any year real estate taxes are not separately assessed and taxed to each Unit, but are assessed and taxed on the Property as a whole, then each Owner shall pay his proportionate share of such taxes 8 S to the extent attributable to the Property in accordance with his respective Percentage Interest. 17. UTILITIES. Each Owner shall pay for the Owner's own utilities which are separately metered. Utilities that are not separately metered shall be treated as and paid as part of the Common Expenses, unless otherwise agreed by a majority of the Percentage Vote of the Co- Owners. 18. EASEMENT FOR UTILITIES AND PUBLIC AND QUASI PUBLIC VEHICLES. All public and quasi public vehicles, including but not limited to police, fire, and other emergency vehicles, trash and garbage collection, post office vehicles, and privately owned delivery and maintenance vehicles, shall have the right to enter upon the streets, Common Areas, and Limited Areas in the performance of their duties and services. An easement is also granted to all utilities and their, agents for ingress, egress, installation, replacement, repairing, and maintaining of such utilities, including but not limited to water, sewer, gas, telephones, cable television and communications, and electricity on the Property; provided, however, nothing in this Declaration shall permit the installation of sewers, electric lines, water lines, telephone lines, cable television lines, or other utilities, except as initially designed and approved by Declarants or as subsequently may be approved by the Board of Directors. By virtue of this easement, the electric and telephone utilities are expressly permitted to erect and maintain the necessary equipment on the property and to affix and maintain electric and telephone wires, circuits, and conduits on, above, across, and under the roofs and exterior walls of the Buildings. 19. ASSOCIATION OF OWNERS. 19.1 Subject to any rights of Declarants reserved in the Declaration or Bylaws, the maintenance, repair, upkeep, replacement, administration, management, and operation of the Property shall: be performed by the Association. After the Declarants no longer owns any Units, the Association may become, at its option, a corporation organized as a non- profit corporation under the laws of the State of Indiana by a majority of the Percentage Vote. Each Owner of a Unit shall, automatically upon becoming an Owner of a Unit, be and become a member of the Association (or corporation if incorporated), and shall remain a member until such time as his ownership ceases, but membership shall terminate when such person ceases to be an Owner, and will automatically be transferred to the new Owner. 19.2 The Association shall elect a Board of Directors annually except for an Initial Board of Directors defined in the Bylaws). in accordance with and as prescribed by the Bylaws. Each Owner shall-be entitled to cast his Percentage Vote for the election of the Board of Directors, except for such Initial Board of Directors who shall serve for the period provided in the Bylaws. Each person serving on the Initial Board of Directors, whether as an original member or as a member appointed by Declarants to fill a vacancy; shall be deemed a member of the Association and an Owner solely for the purpose of qualifying to act as a member of the Board of Directors and for no other purpose. No such person serving on the Initial Board of Directors shall be deemed or 9 considered a member of either the Association or an Owner of a Unit for any other purpose (unless such person is actually an Owner of a Unit and, therefore, a member of the Association). The Board of Directors shall be the governing body of the Association, representing all of the Owners in providing for the management, administration, operation, maintenance, repair, replacement, and upkeep of the Property, exclusive of the Units. 20. MAINTENANCE, REPAIRS, AND REPLACEMENTS. Each Owner shall, at the Owner's expense, be responsible for the maintenance, repairs, decoration, and replacement within his own Unit, and the Limited Areas and Facilities reserved for his Unit's use and as further, provided in the Bylaws. Each Owner shall repair any defect occurring in his Unit, which, if not repaired, might adversely affect any Unit, Common Area, or Limited Area. Maintenance, repairs, replacements, and upkeep of the Common areas and Limited Areas -shall be controlled by the Association and shall be chargeable by the Association to all Units or fewer than all Units for Limited Areas and Facilities serving those areas as the Declaration, Bylaws, and Rules and Regulations of the Condominium Regime shall provide. The Board of Directors shall adopt such rules and regulations concerning maintenance, repairs, use, and enjoyment of the Common Areas and Limited Areas, as it deems appropriate, and may amend and modify the same from time to time as it deems advisable, necessary, or appropriate. The Association shall have the duty of determining, by estimate or otherwise, and collecting the amount of, Common Expenses necessary to maintain, repair, or replace equipment and facilities, and administer all improvements constituting a part of the Common Areas. The duties of the Association shall be more ,fully set out in the Bylaws, consistent with the following general statement of the obligations of the Association. Annually, on or before the date of the regular annual meeting of the Association, the Association shall notify the Owner of each Unit of the amount of the estimated annual assessment, and shall collect the applicable percentage (as set forth in paragraph 13) of the assessment amount from each Owner on not Tess than a monthly basis. The estimated Common Expenses shall be on a calendar year basis. The Association shall maintain: and establish a reserve fund for deferred maintenance, repairs, replacements, administration costs, payment of a manager, other employees and agents, payment of insurance premiums, and other matters deemed appropriate. Common Expenses shall be deemed to include, but shall not be limited to, the insurance premium for all insurable improvements, administration, and management expenses, the cost of maintenance of the recreation areas and other facilities, and equipment used in connection with the Common Areas. It shall also include all other maintenance, repair, and upkeep of the Common Areas. All Owners shall be responsible and liable for a pro -rata share of the, Common Expenses as provided for in this Declaration and the Bylaws. It is expressly provided that the expense of maintenance, repair, and upkeep of the Limited Areas and Facilities shall be borne exclusively by the Owners of the Units entitled to the use and enjoyment of such Limited Areas. Except as otherwise provided in the Declaration, Bylaws, and Rules and Regulations of the Association, It shall be the duty of the Association to provide all such maintenance, repair,. anew of the Limited Areas and Facilities. The Association shall have the further responsibility of collecting the expenses of the same incurred with respect to any such Limited Areas and Facilities from the Unit Owner or Owners entitled 10 t to the exclusive use and enjoyment of such Limited Common Areas and Facilities. The Association may establish uniform reserves for this purpose. It shall be understood, however, that any damage caused by an Owner, tenant of an Owner, or guest or invitee of an Owner through said party's negligence, wear, or tear, or by his willful acts, shall be the responsibility of the Owner, and a lien against the Unit of such Owner, as subsequently provided, shall exist with respect to any such damage. The Board of Directors shall have the sole and exclusive power, authority, and obligation to determine all matters affecting assessments, except as may otherwise be provided for in this Declaration and the Bylaws: Such power, authority, and obligation shall expressly include, but shall not be limited to, the allocation of all assessments between Units and Unit Owners, the determination of whether property making up any portion of the project constitutes Common Areas or Limited Areas as provided for in the Declaration and Bylaws, and the determination of whether expenditures with respect to any such property or affecting the same is assessable against all or fewer than all the Owners. Such determinations by the Board shall be binding upon all parties and all Owners unless it shall be shown that said determinations were made in bad faith with an intent to prefer certain Units or Owners over others, or were made in contravention of the express terms and conditions of the Declaration and the Bylaws. 21. ALTERATIONS, ADDITIONS AND IMPROVEMENTS. Except as may be otherwise provided in the Declaration or Bylaws, no Owner shall make any alterations or additions to any Common Areas or Limited Areas without the prior written approval of the Board of Directors, nor shall any Owner make any alterations to the Owner's respective Unit and within the boundaries of the Owner's Unit which would affect the safety or structural integrity of the Building in which the Unit is located. Any two (2) Units may be interconnected through a common wall, provided the title to the two (2) Units is in the name of one (1) person or husband and wife or corporation or other legal entity. The plans creating the opening and joinder of two (2) Units must be approved by the Declarants and if the Declarants owns no further Units, such approvals must be given by the Board of Directors which will not be unreasonably withheld provided the integrity of the Building is not compromised. 22. INSURANCE. The Co- Owners, through the Association, shall purchase a master casualty insurance policy affording fire and extended coverage insurance insuring the Property in an amount consistent with the full replacement value of the improvements which, in whole or in part, comprise the Common Areas. If the Board of Directors can obtain such coverage for reasonable amounts, they shall also obtain "all risk" coverage. The Board of Directors shall be responsible for reviewing at least annually the amount and type of such insurance and shall purchase such additional insurance as is necessary to provide the type of insurance required above. If deemed advisable by the Board of Directors, the Board of Directors may cause such full replacement value to be. determined by a qualified appraiser. The cost of any such appraisal shall be a Common Expense. Such insurance coverage shall be for the benefit of each Owner and, if applicable, the Mortgagee of each Owner upon the following terms and conditions: All proceeds payable as a result of casualty losses sustained which are covered by insurance purchased by the Association shall be paid to 11 the Association or to the Board of Directors, who shall act as the insurance trustees and hold such proceeds for the benefit of the insured parties. The sole duty of the insurance trustee shall be to receive such proceeds as are paid and to hold the same in trust for the purposes elsewhere stated in this Declaration, and for the benefit of the Owners and their respective Mortgagees: The proceeds shall be used or disbursed by the Association or Board of Directors, as appropriate, only in accordance with the provisions of this Declaration. The interest of each damaged .Owner in the trust fund of insurance proceeds shall be the ratio of the direct damage of each damaged Owner to the damages of all Owners directly damaged by an event insured under the said master casualty insurance policy. Such master casualty insurance policy, and "all risk" coverage, if obtained, shall. (to the extent the same are obtainable) contain provisions that the insurer (a) waives its right to subrogation as to any claim against the Association, the Board of Directors, its agents and employees, Owners, their respective agents, and guests, and (b) waives any defense based on the invalidity arising from the acts of the insured, and providing further, if the Board of Directors is able to obtain such insurance upon reasonable terms, (i) that the insurer shalLnot be entitled to contribution against casualty insurance which may be purchased by individual Owners as permitted in this. Declaration, and (ii). that notwithstanding any provision in this Declaration giving the insurer an election .to restore damage in lieu of a cash settlement, such option shall not be exercisable in the event the Owners do not elect to restore pursuant to paragraph 23, of this Declaration. The Co- Owners, through the Association, shall also purchase a master comprehensive public liability, insurance policy in such an amount or amounts as the Board of Directors_ shall deem appropriate from time to time Such comprehensive public jiabilify insurance policy shall cover the Association, the Board of Directors, any committee or,organization of the ;Association or Board of Directors, any managing agent appointed or .employed; by the Association, all persons acting or who may come to act as agents or employees of any of the foregoing with respect to all Owners of Units and all other persons entitled to occupy any Unit or other portions of the Co- Owners, through. the Association, shall also obtain' any other insurance required by law to be maintained, including but not limited to workers' compensation insurance, and such other insurance as the Board of Directors shall from time to time deem necessary, advisable or appropriate, including but not limited to, :liability insurance on vehicles owned by the Association and officers' and directors' liability policies. Such insurance coverage shall also provide for and cover cross liability claims of one insured party against another insured party. Such insurance shall inure to the benefit of each Owner, the Association,,. the Board of Directors, and any managing agent acting on behalf of the Association. Each Owner. shall be deemed to have delegated to the Board of Directors his right to adjust with the insurance companies all losses under policies purchased by the Board of, Directors. The premiums for all such insurance described above shall be paid by the Association as part of the Common Expenses. When any such policy of insurance described above has been obtained by or on behalf: of the Association, written notice ;of the. obtainment of such policy, and of any subsequent changes or termination of such policy, shall be promptly furnished to each Owner or Mortgagee whose interest may be affected, which notice shall be furnished by the officer of the Association who is required to send notices of meetings of the Association. In no event shall any distribution of proceeds be made by the Board of Directors directly 12 to an Owner where there is a mortgagee endorsement on the certificate of insurance. In such 'event, any remittances shall be to the Owner and the Owner's Mortgagee jointly. Each Owner shall be solely responsible for and may obtain such additional insurance as the Owner deems necessary or desirable at the Owner's own expense affording coverage upon the personal property, the contents of the Owner's Unit (including but not limited to, all floor, ceiling and wall coverings and fixtures, betterments, and improvements installed by the Owner) and the Owner's personal property stored elsewhere on the property, and for the Owner's personal liability, but all such insurance shall contain the same provisions for waiver of subrogation as referred to in the foregoing provisions for the master casualty insurance policy to be obtained by the Association. Each Owner may obtain casualty insurance at the Owner's own expense upon the Owner's Unit, but such insurance shall provide that it shall be without contribution as against "the .casualty insurance purchased by the Association. If a casualty Toss is sustained there is a reduction in the amount of the proceeds which would otherwise be payable on the insurance purchased by the Association pursuant to this paragraph due to pro- ration of insurance purchased by an Owner under this paragraph, the Owner agrees to assign the proceeds of this latter insurance, to the extent of the amount of such reduction, to the Association to be distributed as provided in this Declaration. 23. CASUALTY AND RESTORATION. 23.1 Except as subsequently provided, damage to or destruction of any Building due to fire or any other casualty or disaster shall be promptly repaired and reconstructed by the Association, and the proceeds of insurance, if any, shall be applied for that purpose; provided, however, that repair and reconstruction shall not be compulsory in the event of "complete destruction of all of the Buildings" (as that phrase is defined below), and shall only be done in accordance with the provisions of this paragraph 23. As used in this paragraph 23, the term "complete destruction of all of the Buildings" means a determination, made by a vote of two- thirds (2/3) of all Co- Owners at a special meeting of the Association called for the purpose of making such determination, that total -destruction of all of the Buildings has occurred. A special meeting of the Association shall be called and held within ninety (90) days after any fire or any other casualty or disaster damaging or destroying any of the Buildings for the purpose of making the determination of whether or not there has been a complete destruction of all of the Buildings. If such a special meeting is not called and held within such ninety (90) day period, or if the determination of whether or-not there has been a complete destruction of all of the Buildings has not been made within such ninety (90) day period, 'then it shall'be conclusively presumed that the Co- Owners determined that there was not a complete destruction of all of the Buildings, and the Association shall proceed with repair and reconstruction as provided in this paragraph 23. 23.2 If the insurance proceeds received by the Association as a result of any such fire or any other casualty or disaster are not adequate to cover the cost of repair and reconstruction, or in the event there are no insurance proceeds, and if the Property is not to be removed from the Horizontal Property Regime, the cost of restoring the 13 damage and repairing and reconstructing the Building or Buildings so damaged or destroyed (or the costs in excess of insurance proceeds received, if any) shall be paid by all of the Owners of Units in proportion to the ratio that the Percentage Interest of each Unit bears to the total: Percentage Interest of all Units. Any such amounts payable by the Co- Owners shall be assessed as part of the Common Expenses, and shall constitute a lien from the time of assessment as provided herein and in the Act. 23.3 For purposes, of subparagraphs 23.1 and 23.2 above, repair, reconstruction, and restoration shall mean construction or rebuilding of the Units to as near as possible the same condition as they existed immediately prior to the damage or destruction and with the same type of architecture. 23.4 If, under subparagraph 23.1 above, it is determined by the Co- Owners at the special meeting of the Association that there has been a complete destruction of all of the Buildings, the Co- Owners shall, at the same special meeting, vote to determine whether or not such complete destruction of the Buildings shall be repaired and reconstructed. The Buildings shall not be reconstructed or repaired if it is the determination of the Co- Owners at said special meeting that there has been a complete destruction of all of the Buildings unless by a vote of two thirds (2/3) of all of the Co- Owners a decision is made to rebuild, reconstruct, and repair the Buildings. If two thirds (2/3) of all of the .Co- Owners vote and decide that the Buildings are to be rebuilt, reconstructed, and _repaired, the insurance proceeds, if any, received by the Association shall be applied and any excess of construction costs over insurance proceeds, if any, received by the Association shall be contributed and paid as provided in subparagraphs 23.1 and 23.2. 23.5 If, in any case of the complete destruction of all of the Buildings, Tess than two thirds (2/3) of all of the Co- Owners vote in favor of the rebuilding, reconstruction, and repair of the Buildings, the Buildings shall not be rebuilt, reconstructed or repaired, and in such event, the Property shall be deemed and considered as to be removed from the provisions of the Act and in accordance with the Act: 23.5.1 The Property shall be deemed to be owned in common by the Unit Owners; 23.5.2 The undivided interest in the Property owned in common which shall appertain to each Unit Owner shall be the percentage of undivided interest previously owned by such Owner in the Common Areas; 23.5.3 Any liens affecting any of the Units shall be deemed to be transferred in accordance with the existing priorities to the percentage of the undivided interest of the Unit Owner in the Property; and 23.5.4 The Property shall be subject to an action for partition by the suit of any Unit Owner, in which event the net proceeds of sale, together with the net proceeds of the insurance on the Property, if any, shall be considered as one (1) fund and shall be 14 divided among all the Unit Owners in a percentage equal to the percentage of undivided interest owned by each Owner in the Property, after first paying out of the respective shares of the Unit Owners, to the extent sufficient for the purpose, all liens on the undivided interest in the Property owned by each Unit Owner. 23.6 Immediately after a fire or other casualty causing damage to any property for which the Board of Directors or the Association has the responsibility of maintenance and repair, the Board of Directors shall obtain reliable and detailed estimates of the cost to place the damaged property in condition as good as that before the casualty. Such costs may include professional fees and premiums for such bonds as the Board of Directors desire. 23.7 The proceeds of insurance collected on account of any such casualty, and the sums received by the Board of Directors from collections of assessments against Owners on account of such casualty, shall constitute a construction fund which shall be disbursed, if the Building or Buildings are to be reconstructed and repaired, in payment of the costs of reconstruction and repair in the following manner: 23.7.1 If the amount of the estimated cost of reconstruction and repair is less than Ten Thousand Dollars ($10,000.00), then the construction fund shall be disbursed in payment of such costs upon order of the Board of Directors; provided, however, that upon request of a Mortgagee which is a beneficiary of an insurance policy, the proceeds of which are included in the construction fund, such fund shall be disbursed in the manner provided in the following paragraph 23.7.2. 23.7.2 If the estimated cost of reconstruction and repair of the Buildings or other improvements is more than Ten Thousand Dollars ($10,000:00), then the construction fund shall be .disbursed in payment of such costs upon approval of an architect qualified to practice in Indiana and .employed by the. Board of Directors to supervise such work, payment to be made from time to time as the work progresses. The architect shall be required to furnish a certificate giving a brief description of the services and materials furnished by various contractors, sub contractors, material men, the architect, or other persons who have rendered services -or furnished materials in connection with the work, (i) that the sums requested by them in payment are justly due and owing and that said sums do not exceed the value of the services and materials furnished; (ii) that there is no other outstanding indebtedness known to the said architect for the services and materials described; and (iii) that the costs as estimated -by said architect for the work remaining to be done subsequent to the date of such certificate, does not exceed the amount of construction fund remaining after payment of the sum so requested. 23.7.3 Encroachments upon or in favor of Units which may, be created as a result of such reconstruction or repair shall not constitute a claim or basis of a proceeding or action by the Owner upon whose property such encroachment exists, provided that such reconstruction was either substantially in accordance with the plans and specifications or as the Buildings were originally constructed. Such encroachments shall be allowed to continue in existence for so long as the Buildings stand. 15 23.7.4 In the event that there is any surplus of monies in the construction of Ritter's Horizontal Property Regime after the reconstruction or repair of the damage has been fully completed and all costs paid, such sums may be retained by the Board of Directors as a reserve or may be used in the maintenance and operation; of the Common Areas, or, in the discretion of the Board of Directors, it may be distributed to the Owners in the Building's affected and their Mortgagees who are the beneficial owners of the fund. The action of the Board of Directors in proceeding to repair or reconstruct damage shall not constitute a waiver of any rights against another Owner for committing willful or malicious damage. 24. COVENANTS AND RESTRICTIONS. The covenants and restrictions applicable to the use and 'enjoyment of the Units are set forth in the Bylaws. These covenants and restrictions are for the mutual benefit and protection of the present and future Owners and shall run with the land and inure to the benefit of and be enforceable by any Owner, the :Co- Owne'rs:or by the Association. Present or future Owners of the Association shall be entitled to injunctive relief against any violation of these provisions and shall be entitled to damages for any injuries resulting from any violations of the Bylaws, but there shall be no right of reversion or forfeiture of title resulting from such violation. 25. AMENDMENT OF DECLARATION. Except as otherwise provided in this Declaration, amendments to the Declaration shall be proposed and adopted in the following manner: 25:1 Notice. Notice of, the subject matter of the proposed amendment shall be included in r the notice of any meeting at which the proposed amendment is considered. 25.2 Resolution. A resolution to adopt a proposed amendment may be proposed by the Board of Directors or Owners having the aggregate of at least a majority of the Percentage Vote. 25.3 Meeting. The resolution concerning a proposed amendment must be adopted by the designated vote at a meeting duly called and held in accordance with the provisions of the Bylaws. 25.4 Adoption. Any proposed amendment to this Declaration must be approved by a vote of not less than seventy -five percent (75 in the aggregate of the Percentage Vote: In the event any Unit is subject to a first mortgage, the Mortgagee shall be notified of the meeting and the proposed amendment in the same manner as an Owner if the Mortgagee has given prior notice of its mortgage interest to the Board of Directors in accordance with the provisions of the Bylaws. 16 25.5 Special Amendments. No amendment to this Declaration shall be adopted which changes (i) the Percentage Interest with respect to any Unit or the applicable share of any Owner's liability for the common expenses, without the approval of one hundred percent (100 of the Co- Owners and all Mortgagees whose mortgage interests have been made known to the Board of Directors in accordance with the provisions of the Bylaws; or (ii) the provisions of. paragraph 23, 23 of this Declaration with respect to reconstruction or repair in the event of fire or any other casualty or disaster, without the approval of all Mortgagees whose mortgage interests have been made known to the Board of Directors in accordance with the provisions of the Bylaws. 25.6 Recording. Each amendment to the Declaration shall be executed by the President and Secretary of the Association and shall be recorded in the Office of the Recorder of Hamilton County, Indiana, and such amendment shall not become effective until so recorded. Also, the Declarants reserves the right and power to record a special amendment "Special Amendment to this Declaration at any time and from time to time which amends this Declaration (i) to comply with requirements of the Federal National Mortgage Association, the Government National Mortgage Association, the Federal Horne Loan Mortgage Association, the Department of Housing and Urban Development, the Federal Housing Association, the Veteran's Administration, or any other governmental agency or any other public, quasi- public or private entity which performs (or may in the future perform) functions similar to those currently performed by such entities, (ii) to induce any of such agencies or entities to make, purchase, sell, insure, or guarantee first mortgages covering Unit Ownerships, (iii) to bring this Declaration into compliance with the Act, or (iv) to correct clerical or typographical errors in this Declaration or in any Exhibit hereto or any supplement or Amendment thereto. In furtherance of all rights and powers in this subparagraph, a power coupled with an interest is hereby reserved and granted to the Declarants to vote in favor of, make, or consent to a Special Amendment on behalf of each Owner as proxy or attorney -in -fact, as the case may be. Each deed, mortgage, trust deed, or other evidence of obligation, or other instrument affecting a Unit and the acceptance of such instrument shall be deemed to be a grant and acknowledgment of, and a consent to reservation of, the power of the Declarants to vote in favor, make, execute and record Special Amendments. The right of the Declarants to act pursuant to rights reserved or granted under this Section shall terminate at such time as the Declarants no longer hold or controls title to any Unit. 26. ACCEPTANCE AND RATIFICATION AND MISCELLANEOUS. 26.1 All present and future Owners, Mortgagees, tenants, and occupants of anyUnits shall be subject to and shall comply with the provisions of the Declaration, the Act, the Bylaws, and the Rules: and Regulations as adopted by the Board of Directors as each may be amended or supplemented from time to time. The acceptance of a contract to purchase, deed of conveyance or act of occupancy of any Unit shall constitute an agreement that the provisions of this Declaration, the Act, the Bylaws, and Rules and Regulations and as each may be amended or supplemented from time to 17 time are accepted and ratified by such Purchaser, Owner, tenant, or occupant, and all such provisions shall be covenants running with the Property and shall bind any person having at any time any interest or estate in a Unit or the Property as though such provisions were recited and stipulated at length in each and every deed, conveyance, mortgage, or lease. All persons, corporations, partnerships, trusts, associations, or other legal entities who may occupy, use, enjoy, or control a Unit or Units or any part of the Property in any manner shall be subject to the applicable Declaration, the Act, the Bylaws, and the Rules and Regulations as each may be amended or supplemented from time to time. 26.2 Costs and Attorneys Fees. In any proceeding arising because of failure of an Owner to make any payments required by this Declaration, the Bylaws, or the Rules and Regulations adopted pursuant to the Bylaws, as each may be amended from time to time, the Association shall be entitled to recover its costs and reasonable attorneys' fees incurred in connection with such default or failure. 26.3 Waiver. No Owner may become exempt from liability for such Owner's contribution toward the Common Expenses by waiver of the use or enjoyment of any of the Common Areas or Limited Areas or by abandonment of the Owner's Unit. 26.4 Severability Clause. The invalidity of any covenant, restriction, condition, limitation or other provisions of this Declaration or the Bylaws shall not impair or affect in any manner the validity, enforceability, or effect of the rest of this Declaration or the By- Laws. 26.5 Pronouns. Any reference to the masculine, feminine, or neuter gender shall, unless the context clearly requires the contrary, be deemed to refer to and include the masculine, feminine, and neuter genders. Words in the singular shall include and refer to the plural, and vice versa, as appropriate. 26.6 Floor Plans. The Plans setting forth the layout, location, identification numbers, and dimensions of the Units and the Property are incorporated into this Declaration by reference; and have been filed in the' Office of the Recorder of Hamilton County, Indiana, in Horizontal Property Plan File, as of March 2001, as Instrument Number These Plans may be amended by filing with the Recorder of Hamilton County, Indiana an amended set of floor plans which shall amend the floor plans and amend the Declaration of the Horizontal Property Regime as the floor plans relate to the Declaration of the Horizontal Property Regime. 27. NEGLIGENCE. Each Owner shall be liable for the expense of any maintenance, repair or replacement rendered necessary by the Owners negligence or by that of any member of the Owner's family or guests, employees, agents, or lessees, to the extent that such expense is not covered by the proceeds of insurance carried by the Association. An Owner shall pay the amount of any increase in insurance premiums 18 0 occasioned by the Owner's use, misuse, occupancy or abandonment of his Condominium Unit or its appurtenances or of the Common Areas or Limited Areas. IN WITNESS WHEREOF, the undersigned Declarants have caused this Declaration to be executed the day and year first above written. HERMAN D. SIERZPUTOWSKI BY' ..rv. Owner of Real Est JUDITH R. SIERZPUTOWSKi Owner of R9a1 Esta STATE OF INDIANA COUNTY OF HAMILTON Before me, a Notary Public in and for said County and State personally appeared Herman D. and Judith R. Sierzputowski, the Owners of the real estate, respectively, who acknowledged execution of the foregoing Declaration of Horizontal Property Regime and of Easements, Restrictions, Covenants and Bylaws for Ritter's Horizontal Property Association and for and on behalf of and who, having been duly sworn stated that the representations therein contained are true. WITNESS my hand and Notarial Seal this o) day of March 2001. Notary Public Printed Name r) S Resident of Hamilton County, Indiana My Commission Expires: 1 0 d e This document prepared by Gordon D. Byers Attorney at Law, 949 Conner St. Suite 101 Noblesville, Indiana 46060 (317) 773 -3221. 19