HomeMy WebLinkAboutPacket 02-27-12ICEiILL€RLP
LEGAL COUNSEL
City of Carmel
Board of Zoning Appeals
February 27, 2012
Docket Nos. 11110010A and 1111011A
TRADITIONS ON THE MONON
Appeal Regarding Determination of
Director of Community Services of
the City of Carmel (October 18, 2011)
Timothy E. Ochs, Esq.
ICE MILLER LLP
Attorney for Petitioner
One American Square 1 Suite 2900 1 Indianapolis, IN 46282 -0200 1 P 317 236 -2100 1 F 317 236 -2219
INDIANAPOLIS 1 CHICAGO 1 NAPERVILLE 1 WASHINGTON D.C. www.icemiller.com
IC€ILL€RLP
LEGAL COUNSEL
City of Carmel
Board of Zoning Appeals
February 27, 2012
Docket Nos. 11110010A and 11110011A
TRADITIONS ON THE MONON
Appeal Regarding Determination of
Director of Community Services of
the City of Carmel (October 18, 2011)
TABLE OF CONTENTS
1. Planned Unit Development Traditions on the Monon
2. Articles of Incorporation of Traditions of the Monon Homeowners
Association, Inc.
3. Declaration of Covenants, Conditions Restrictions for Traditions on
the Monon
4. Landscape Plan contained in Preliminary Development Plan
5. Site Plan regarding Curbs
6. Utility Plan
7. Street Plan Profiles (3 pages)
8. Retaining Wall (2 pages)
One American Square 1 Suite 2900 1 Indianapolis, IN 46282 -0200 1P 317 236 -2100 IF 317 236 -2219
INDIANAPOLIS 1 CHICAGO 1 NAPERVILLE 1 WASHINGTON D.C. www.icemiller.com
ORDINANCE NO, Z- 464 -04
Sponsor: Councilor Ratterrnann
AN ORDINANCE OF THE COMMON COUNCIL OF THE
CITY OF CARMEL, INDIANA
ESTABLISHING THE
Traditions on (he Monon
PLANNED UNIT DEVELOPMENT DISTRICT
WHEREAS, Section 31.6.4 of the Carmel /Clay Zoning Ordinance Z -289 (the
"Carmel /Clay Zoning Ordinance provides for the establishment of a Planned Unit
Development District in accordance with the requirements of I.C. 36 -7.4 -1500 et seq.;
WHEREAS, the Carmel /Clay Plan Commission (the "Commission has given a
unanimous favorable recommendation to the ordinance set forth herein (the "Traditions on the
Monon which establishes the Traditions on the Monon Planted Unit Development District (the
"District").
NOW, 'THEREFORE, BE IT ORDAINED by the Common Council of the City of
Carmel, Indiana (the "Council that (1) pursuant to IC §36 -7 -4 -1500 et seq., it adopts this
Traditions on the Monon Ordinance, as an amendment to the Carmel /Clay Zoning Ordinance and
it shall he in full force and effect from and after its passage, (ii) all prior commitments shall be
null and void and replaced and superseded by this Traditions on the Monon Ordinance, and
(iii) this Traditions on the Monon Ordinance shall be in full force and effect from and after its
passage and signing by the Mayor,
Section I Applicability of Ordinance
Section 1,1 The Official Zoning Map of the City of Carmel and Clay Township, a part
of the Carmel /Clay Zoning Ordinance, is hereby changed to designate the land described
in Exhibit "A" (the "Real Estate as a Planned Unit Development District to be known
as the Traditions on the Monon.
Section 1.2 Development in the District shall be governed entirely by (i) the
provisions of this Traditions on the Monon Ordinance and its exhibits, and (ii) those
provisions of the Carmel /Clay Zoning Ordinance specifically referenced in this
Traditions on the Monon Ordinance. In the event of a conflict between this Traditions on
the Monon Ordinance and the CarmeUClay Zoning Ordinance or the Sign Ordinance, the
provisions of this Traditions on the Monon Ordinance shall apply,
Section 1.3 Any capitalized term not defined herein shall have the meaning as set forth
in the Carty net /Clay Zoning Ordinance in effect on the date of the enactment of this
Traditions on the Monon Ordinance.
Section 2 Permitted Uses
Permitted use are townhomes, condominiums and /or multifamily dwelling units.
Section 3 Accessory Buildings and Uses
All Accessory Structures and Accessory Uses shall be permitted except that any detached
accessory building shown in any development plan shall have on all sides the same architectural
features or shall be architecturally compatible with the principal building(s) with which it is
associated.
Section 4 Communication Equipment, Cell towers shall not be permitted. Home satellite
dishes shall be permitted.
Section 5 Platting
The platting of the Real Estate into smaller tracts shall be permitted, so long as the proposed plat
complies with the area requirements set forth below in Section 6, and the creation of a new
property line within the Real Estate shall not impose or establish new development standards
beyond those specified below in Section 6 for the entirety of the Real Estate. However, the
development of any parcel shall conform to the requirements of Section 13 below, and all other
applicable requirements contained in this Traditions on the Monon Ordinance.
Section 6 ileind Ar Req uirements
Maximum Building Height: The maximum Building Height is thirty -eight
Section 6.1
(38) feet.
Section 6.2 Minimum Building, Set Back: The minimum Set Back from the perimeter
boundary line of the Real Estate contiguous with Smokey Row Road shall be fifteen (15)
feet, and along the north property line of the Real Estate the minimum Set Back shall be
ten (10) feet, along the west property line of the Real Estate the minimum Set Back shall
be ten (10) feet, and along the east property line of the Real Estate, the Minimum Set
Back shall be ten 0 0) feet.
Section 6.3 Minimum Building Separation. The minimum building distance between
Buildings, measured from the exterior face of the foundation, shall be ten (10) feet,
Section 6.4 Density,. There shall be a maximum of one hundred and forty (140) units
on approximately 12.21 acres,
Section 6.5 Square Footage of Townhome Units. The minimum square footage for an
individual Townhome unit shall be one thousand four hundred (1,400) square feet,
exclusive of any garages.
Section 77. Corte tual luildin ypes
S�cliora
Architectural Design Requirements:
A. Roof design: All roofs, except for open porch roofs, shall have a
minimum slope of 12 horizontal to 8 vertical.
B. Building rendering and elevations: Attached hereto and incorporated
herein by reference as Exhibit "8” are conceptual huilding renderings of
the Buildings to be constructed upon the Real Estate. All Buildings
constructed upon the Real Estate shall include Masonry as the primary
building materials, excluding but not limited to doors, soffits, trim,
windows, gables and roofs.
Section 8 Landscaping
Attached hereto and incorporated herein by reference as Exhibit "C" is the conceptual landscape
plan (hereafter "Conceptual Landscape Plan
Section 8,1 Planting Standards. Landscaping shall be integrated with other functional
and ornatnental site design elements, where appropriate, such as hardscape materials,
paths, sidewalks, or any water features. Deciduous trees planted to satisfy the landscaping
requirements of this Ordinance shall have at least a two and one -half inch (2 -112
Caliper and seven foot (7') height at the time of planting, unless otherwise specified
herein or otherwise indicated on the Conceptual Landscape Ilan, Evergreen trees shall
be a minimum of six feet (6') in height at the time of planting. Shrubs shall he two (2)
feet in height at the time of planting. All trees, shrubs and ground covers shall be planted
according to accepted horticultural standards. Landscaping materials shall be appropriate
to local growing and climatic conditions. Plant suitability, maintenance and compatibility
with site construction features are critical factors that should be considered. Plantings
should be designed with repetition, structured patterns, and complementary textures and
colors, and should reinforce the overall character of the area.
Section 8.2 Maintenance, It shall be the responsibility of the owners and their agents
to insure proper maintenance of project landscaping approved in accordance with this
Traditions on the Monon Ordinance. This is to include, but is not limited to, irrigation
and mulching of planting areas, replacing dead, diseased, or overgrown plantings with
identical varieties or a suitable substitute, and keeping the area free of refuse, debris, rank
vegetation and weeds.
Section 8.3 Building Base Landscaping. The building base landscaping around the
buildings shall include a minimum of twelve (12) shrubs. Additionally, there shall he a
minitnum of two (2) shade trees per unit between the unit and the sidewalk, if the
necessary area for planting is available. If a shade tree can not be planted between the
unit and the sidewalk, that shade tree will be planted at an alternate location on the site.
Section $.4 Perimeter Planting/Buffer Yard. The perimeter planting and buffer yard
planting shall be in accordance with Section 26.04 Perimeter Buffering Requirements of
the Zoning Ordinance.
Section 8.5 Interior Plantings. Adjacent to any entry drive, for each one hundred
(100) linear foot increment, there shall be a minimum of' three (3) shade trees, two (2)
ornamental trees and ten (10) shrubs, For any common areas adjacent to a parking area,
plantings shall be in accordance with Section 26.04 Perimeter Buffering Requirements of
the Zoning Ordinance.
Section 8.6 Tree Conservation. Existing trees as identified on the Conceptual
Landscape Plan as "Tree Conservation Area" shall not be removed from the Real Estate
except as follows:
1. As is necessary to clear underbrush and dead trees;
2. As is necessary for the installation of access easements, rights -of -way,
streets, paths, sidewalks, and utilities and drainage improvements and
infrastructure; and
3. As necessary for public health and safety.
Section 9 Lighting Requirements
A. Front of Townhome lighting: Each Townhome shall have one (1) light
fixture near the door.
B, Rear ofj'ownhome lighting: Each Townhome shall have a minimum of
one (1) light fixture on the rear of each unit, however the light position(s)
shall be consistent among all units.
C. Street Lighting: Street lighting shall be provided near intersections of
streets and alleyways and along the Monon Trail and 136` Street.
D. Light Fixture Renderings: Attached as Exhibit "1:)" and Exhibit "E
respectively, and referred to herein as the Conceptual Wall Mounted
Luminaries and Conceptual Pole Mounted Luminaries are renderings
which depict the acceptable types of wall and pole mounted luminaries for
the District.
Section 10 Signs and Entry 'Way Wall
Section 10.1. Ground Signs and Entry Wall,
A. one: At each entrance to the development, adjacent to both Smokey
Row Road and Rangeline Road, Two (2) Ground/Entryway Signs shall be
permitted, as is conceptually depicted on Exhibit "F which is attached
hereto and incorporated herein by reference, One (1) entry wall is also
permitted, not to exceed fifteen (15) feet in length, as depicted on what is
attached hereto and incorporated herein by reference as Exhibit "F".
B. Maximum Sign Area: Twenty -four (24) square feet each.
C. illumination of Sign: External,
D. Sign Permit: Required.
11 Fees: Required.
Section 11 Parking
Section 11.1 Minimum Parking: Each Townhome shall contain a two (2) car garage
and, in addition, there shall be guest parking provided within on- street parking spaces and
other spaces to be provided on the site, as depicted on the Conceptual Plan and
incorporated herein by reference as Exhibit "G
Section 12 Homeowners Associatioon nand Declaration of Covenants
Section 12.1 Declaration of Covenants and Homeowners Association: The Developer
shall prepare and record a Declaration of Covenants which shall also contain various
provisions regarding the Real Estate as determined by the. Developer, including, without
limitation, provisions for mandatory assessments and maintenance of common areas.
The Declaration of Covenants will also provide for the establishment of a Homeowners
Association in which membership shall be mandatory.
Section 113. �rova1 Process
Section 13.1. ,Approval or Dental of the Primary Plntl])eveiQ i m nt Plan.
A. Exhibit "fl". which is attached hereto and incorporated hercin b■•
reference, shall serve as the Conceptual plan the "CP However, the CP
does not constitute the approved Development Plan and) primary plat t'or
t heal Estate, nor does it constitute the approved architecture, design,
lighting and landscaping for the Real Estate and the improvements
thereon, considered in connection with the Traditions on the Monon
Ordinance. Traditions on the Monon shall require further (i) ADLS
approval and (ii) Development Plan/primary plat approval. The Final
Development Plan approval procedures are set forth below in this Section
13. If there is a Substantial Alteration in the approved ADLS and
Development Plan /primary plat, review and approval of the amended
plans shall be made by the Commission, or a Committee thereof, pursuant
to the Commission's rules of procedure. Minor Alterations may be
approved by the Director.
13. The Director shall have the sole and exclusive authority 10 approve
11'1thS7lrt eclnS.11ti(n ialprS;Vc 11ith conditions, Lir di approve the final
Development hlrim /S1:condnry Plats (collectively, the "FDP for the
Traditions on the liaison, provided, Ito w'ev'cr, that the Director shall 1)01
unreasonably withhold or delay the Director's ;tpprov ;il of the FE)i' that is
in substantial conformance ,vish the t`1' and is in conformance wvith the
Development Requirements and Development Standards of this Traditions
on the Monon Ordinance, if the Director disapproves any FDP, the
Director shall set forth in writing the basis for the disapproval and
schedule the request for approval of the FDP for a hearing before the full
Plan Commission.
C. An amendment to the FDP, which is not determined by the Director to be
a Substantial Alternation or Material Alteration from the approved CP,
may be reviewed and approved solely by the Director. However, in the
event the Director deterrnines that there has been a Substantial Alteration
or Material Alteration between the approved CP and any proposed FDP,
the Director may, at the Director's discretion, refer the amended FDP to
the Commission, or a Committee thereof, for review and approval by the
Commission and/or a Committee thereof,
D. The FDP shall be a specific plan for the development of all or a portion of
the Real Estate that is submitted for approval to the Director, which shall
include reasonable detail regarding the facility and structures to be
constructed, as well as drainage, erosion control, utilities, and building
information.
Section 14 Definitions and Rules of Construction
Section 14.1 General Rules of Construction, The following general rules of
construction and definitions shall apply to the regulations of this Ordinance:
A. The singular number includes the plural and the plural the singular, unless
the context clearly indicates the contrary.
B. Words used in the present tense include the past and future tenses, and the
future the present.
C, The word "shall" is a mandatory requirement, The word "may" is a
permissive requirement, The word "should" is a preferred requirement.
Section 14.2 Definitions
Accessory Structure: A structure subordinate to a building or use located
on the Real Estate which is not used for permanent human occupancy.
B. Accessory Use; A use subordinate to the main use located on the Real
Estate or in the same building as the main use, and incidental to the main
use.
C. Building Height: The vertical distance from the lot ground level to the
highest point of the roof for a flat roof, to the deck line of a mansurd roof
and the mean height between eaves and ridges for gable, hip and gambrel
roofs.
D. City: The City of Carmel, Indiana.
F. Commission: The Carmel /Clay Plan Commission,
F. Council: The City Council of the City of Carmel, Indiana.
G. County: Hamilton County, Indiana.
H. Declaration of Covenants: A Declaration of Covenants, Conditions and
Restrictions for the Real Estate which shall be recorded in the office of the
Recorder of Hamilton County, Indiana, and which may, from time to time,
be amended.
Flan, Conceptual. A general plan for the development of the Real ]✓state
that is submitted for approval showing proposed facilities, buildings, and
structures. This plan generally shows landscape areas, parking areas, site
access, drainage features, and building locations and is depicted on Exhibit
"G which is attached hereto and incorporated herein by reference.
J. Development Ilan Final. A specific plan for the development of the Real
Estate that is submitted for approval showing proposed facilities,
buildings, and structures. This plan review includes general landscaping,
parking, drainage, erosion control, signage, lighting, screening and
building information for the site
K. Development Requirements. Development standards and any
requirements specified in this Traditions on the Monon Ordinance which
must be satisfied in connection with the approval of a Final Development
Plan.
L. Developer, Buckingham Properties, Inc, and its successors and assigns.
M. Director: Director, or Administrator, of the Department of Community
Services for the City of Carmel, Indiana. "Director" and "Administrator"
shall include his/her authorized representatives.
N. Homeowners Association: A nonprofit corporation established for the
promotion of the health, safety and welfare of the residents of the
Traditions on the Monon, and to manage, maintain, and repair the
common areas within the Real Estate and any improvements located
thereon.
0. Masonry: Masonry shall include brick, stone and/or stucco.
l'. Material Alteration: Any change to an approved plan of any type that
involves the substitution of one material, species, element, etc. for another.
Q. Minor Alteration: Any change to an approved plan of any type that
involves the revision of less than ten percent (10 of the plan's total area
or approved materials.
R. Parcel Coverage: The total ground area, within the Real Estate, covered
by buildings and accessory structures which are greater than eighteen (18)
inches above grade level, excluding fences and wails not attached in any
way to a roof, divided by the total horizontal area within the Real Estate
boundaries.
S. Real Estate. The Real Estate shall mean and refer to all of the Real Fsstate
described in Exhibit "A
T. Right of Way: An area of land permanently dedicated to provide light, air
and access.
U. Set Back: The least measured distance between a building or structure,
excluding, however, porches, patios, and the perimeter boundary of the
Real Estate. For purposes of determining Set Back, the perimeter
boundary of the Real Estate (i) shall always mean and refer to the outside
perimeter boundary line of the Real Estate and (ii) shall not be changed or
reduced by reason of the platting or subdivision of the Real Estate into
smaller parcels.
V. Sign.: Any type of sign as further defined and regulated by this Ordinance
and the Sign Ordinance for Carmel -Clay Township, Ordinance Z -396, as
amended.
W. Substantial Alteration: Any change to an approved plan of any type that
involves the revision of ten percent (10 or more of the plan's total area
or approved materials.
X. Townhome: An attached dwelling intended for occupancy by a single
family.
Y. Townhomc Building: A structure containing attached dwellings.
1. Trim; Soffits, architraves, wood reveals, and casement around doors and
windows.
Section 15. Violations
All violations of this Traditions on the Monon Ordinance shall be subject to Section 34.0
of the Carmel/Clay Zoning Ordinance.
PtA
PASSED by the Common Council of the City of Carmel, Indiana this CIO day of
2004, by a V016 of Pt ayes and 6 mys,
COMMON COUNCIL FOR THE CITY OF CARMEL
ATTEST.
Ronald E. Carter, President Pro Tempore
9
}Z.L. irby
iNt
Brian D. Mayo
Mark Rattennann
Diana L. Cordra IAMC, Clerk T StIret
Presented by me to the Mayor of the City of Carmel, Indiana the 2 day of
2004, at o'clock ,.M.
Diana L. Cordray, IAMC, Cli j i re:ismer
Approved by me, Mayor of the City of Carmel, Indiana, ihis
2004, at 10 o'clock 4 .M.
Diana L. Cordray, JAW'. Clerk
re sitter
A
.Fes Brainard, Mayor
This Instrument prepared by David E. Leazenby
Buckingham Properties, Inc,
333 N. Pennsylvania St., le Floor
Indianapolis, IN 46204
This Instrument reviewed by: Charles JJ, Frankenberger James E. Shinaver
NELSON FRANKENBERGER
3021 East 98 Street, Suite 220
Indianapolis, IN 46280
H:Vanct1EdcntEtuckinghamtPUD Council Draft 1 120604.doc
10
day d
EXHIBIT "A"
Legal Desctjption
Part of the Southeast Quarter of Section 24, Township 18 North, Range 3 East in Hamilton County, Indiana, more
particularly described as follows:
Commencing at the Southeast corner of the Southeast Quarter of Section 24, Township 18 Nonh, Range 3 East in
Hamilton County, Indiana; thence South 88 degrees 23 minutes 47 seconds West (assumed bearing) on and along the
South he of said Southeast Quarter 307.68 feet to the Southwest corner of real estate conveyed to '1'olpy(tin per decd
recorded in the Office of the Hamilton County Recorder as lnstrumcnt Number 2002 -2496 (Tolpygin parcel) and the
POINT OF )WGINNIN(3 of this description; thence continuing South 88 degrees 23 minutes 47 seconds West 480.21 feet
to a point on the East right •of•way lino of the Monon Railroad and the point of curvature of a curve to the left having a
radius of 1983.00 feet; thence northwesterly on and along said curve an arc distance of 957.33 feet to the Southwest corner
of real estate conveyed to the Carmel Cemetery Association (Cemetery Parcel) per deed recorded in the Office of the
Hamilton County Recorder in Deed 13ook 278, Page 370; thence Nonh 88 degrees 23 minutes 47 seconds i:iast'on and
along the South line of said Cemetery Parcel 343,14 feet to a point on the West line of The Rider's H.P. R recorded in the
Office of the Hamilton County Recorder in Plat Cabinet 2, Slide 562; thence South 00 degrees 11 minutes 45 seconds
West on said West line 145.77 feet to the Southwest corner of said Ritter's H.P,R.; thence the following six (6) calls on
and along the South line of said Ritter's H.P,R 1 Nonh 79 degrees 59 minutes 29 seconds East 170.0 feet; 2.) South 8.1
degrees (18 minutes 47 seconds Mast 71.41 feet; 3.) North 67 degrees 57 minutes 12 seconds Bast 44.54 feet; 4.) Nonh 88
degrees 12 minutes 49 seconds East 101,88 feet; 5.) North 57 degrees 13 minutes 24 seconds East 69,78 feet; 6.) South 60
degrees 35 minutes 56 seconds Isasi 55.18 feel; thence South 00 degrees 21 minutes 44 seconds East 409.53 feet to the
Southwest corner of real estate conveyed to Leppert Hensley Mortuary Crematory, Inc. (Mortuary Parcel) per deed
recorded in the Office of the Hamilton County Recorder as Instrument Number 2002.61980; thence North 88 degrees 23
minutes 47 seconds Fast on and along the South line of said Mortuary Parcel 270.10 feet to a point on the East line of said
Southeast Quarter; thence South 00 degrees 21 minutes 44 seconds East on and along said East line 50.00 feet; thence
South 88 degrees 23 minutes 47 seconds West 175.87 feet to a point 00 the Northwest corner of real estate conveyed to
P.S 1. per decd recorded in the Oif'ice of the Hamilton County Recorder as Deed Record 231, Page 168 and the point of
curvature of a curve to the left having a radius of 1903 08; thence southerly on and along said curve an arc distance of
358.64 feet to the POINT OP 13F.OJNNING, containing in all 12.2lacres, more or less.
Subject to the Right •of way of 136 Street
Subject w the Right -of -way of Range Line Road
Subject w the Right -of -way of the Morton Railroad,
Subject to the Right-of-way of the Follett Mol'row Legal Drain Easement.
Subject to all legal easements, rights of -way, covenants, and restrictions,
*Note: This description has heen prepared based upon instructions from the client and limited field observations by Mid
States Engineering, L1..C. A boundary survey has not been performed by Ivlid•States Engineering, LI,C on the above
described area per Indiana Survey Standards as defined in Title 865, Article 1, Rule 12 of the Indiana Administrative
Code, in no event will Mid States Engineering, LLC, its employees, agents, and/or assigns be liable for any damages
arising out of the furnishing and /or use of this description.
14
APPROVED. ARTICLES OF INCORPORATION DIV
AND OF 05 OCT 10: 55
FILED RADITIONS ON THE MONON HOMEOWNERS ASSOCIATION, INC.
1 incorporator, desiring to form a corporation (hereinafter referred to as
the "Corporation pursuant to the provisions of the Indiana Nonprofit Corporation Act of 1991
(hereinafter referred to as the "Act executes the following Articles of Incorporation:
67780_1.DOC
ARTICLE I
Section 1.1. The name of the Corporation is Traditions on the Monon Homeowners
Association, Inc. (hereinafter referred to as the "Corporation
ARTICLE II
Adoption and Purposes
Section 2.1. Adoption. These Articles of Incorporation creating Traditions on the
Monon Homeowners Association, Inc. are adopted as contemplated by, and in accordance with,
the Declaration of Covenants, Conditions and Restrictions of Traditions on the Monon which
was recorded in the Office of the Recorder of Hamilton County, Indiana, as Instrument
No. 200500063264 on September 26, 2005 (the "Declaration The Declaration is incorporated
herein by reference, and all of the standards, rights, liabilities, covenants and restrictions and
other terms and provisions contained in such Declaration and any amendments and supplements
thereto shall apply to and govern the interpretation of these Articles and the Code of By -Laws of
the Corporation.
Section 2.2. Purposes, The Corporation shall be a mutual benefit corporation. The
purposes of the Corporation shall be to provide for the administration and enforcement of the
standards, covenants and restrictions contained in the Declaration, to provide for the
maintenance, repair, upkeep, replacement, administration, management and operation of the Real
Estate, to perform such other functions relating to the operation and maintenance of Fishers
Pointe as determined by its Board of Directors to be advisable or appropriate, and to:
(a) Have and exercise all of the powers, rights and privileges and perform all of the
duties and obligations of the Corporation as set forth herein and in the Declaration and the Code
of By -laws of the Corporation, as the same may be amended from time to time.
(b) Establish, levy, collect and enforce by any lawful means charges, dues or
assessments against any Owner of any Lot or others pursuant to the terms of the Declaration; to
pay all expenses in connection with the Corporation's performance of its duties and obligations
pursuant to the Declaration including, but not limited to, any fees, taxes or other governmental
charges levied or imposed against the property of the Corporation.
(c) Acquire (by gift, purchase or otherwise), own, hold, improve, build upon, operate,
maintain, convey, sell, lease, transfer, dedicate for public use or otherwise dispose of real or
personal property in conducting the affairs of the Corporation.
(d) Merge and consolidate with other nonprofit corporations organized for the same
or similar purposes.
(e) Have and exercise any and all powers, rights and privileges which a corporation
organized under the Nonprofit Corporation Act of 1991 of the State of Indiana by law may now
or hereafter have or exercise.
Section 2.3. Definitions, Capitalized terms used but not defined herein shall have the
meanings attributed to such terms in the Declaration.
67780 1,DOC 2
ARTICLE III
Period of Existence
Section 3.1. Period of Existence. The period during which the Corporation shall
continue is perpetual.
ARTICLE IV
Registered Agent and Registered Office
Section 4.1. Registered Agent and Registered Office. The name of the Registered
Agent is Timothy K. McMahon and the address of the Registered Office at which the Registered
Agent resides is Centex Homes, 8440 Allison Pointe Boulevard, Suite 200, Indianapolis, Indiana
46250.
ARTICLE V
Membership
Section 5.1. Members. Every person or entity who owns one or more Lots, including
but not limited to Owners and Declarant, shall automatically upon becoming an owner of a Lot
be and become a Member of the Corporation. In addition, any original Member or any
replacement Member of the Initial Board of Directors (as designated in Paragraph 11.2 of the
Declaration) shall be deemed a Member of the Corporation and an Owner solely for the purpose
of qualifying to act as a Member of the Board of Directors but shall not be deemed an Owner or
Member of the Corporation for any other purpose.
Section 5.2. Rights, Preferences, Limitations, and Restrictions of Classes, All
Members of the Corporation shall have the same rights, privileges, duties, liabilities, limitations
and restrictions as the other Members, All Members shall abide by the Articles of Incorporation,
the Code of By -Laws, the rules and regulations adopted by the Board of Directors, and all
covenants, restrictions and other provisions contained in the Declaration.
Section 5.3. Voting Rights. With respect to each matter on which a Member of the
Corporation is entitled to vote, the Corporation shall have two (2) classes of membership with
the following voting rights:
(i) Class A. Class A Members shall be all Owners except Class B Members.
Each Class A Member shall be entitled to one (1) vote for each Lot of which such
Member is the Owner with respect to each matter submitted to a vote of Members upon
which the Class A Members are entitled to vote. When more than one (1) person
constitutes the Owner of a particular Lot, all such persons shall be Members of the
Corporation, but all of such persons shall have only one (1) vote for such Lot, which vote
shall be exercised as they among themselves determine, but in no event shall more than
one (1) vote be cast with respect to any such Lot.
(ii) Class B. Class 13 Members shall be Declarant and all successors and
assigns of Declarant designated by Declarant as Class B Members in a written notice
mailed or delivered to the resident agent of the Corporation. Each Class B Member shall
be entitled to four (4) votes for each Lot of which it is the Owner on all matters requiring
a vote of the Members of the Corporation. The Class B membership shall cease and
terminate upon the "Applicable Date which shall be the the earlier of (1) 7 years from
date the Declaration is recorded; (2) 120 days after title to 75% of the Lots in the
Property and on the Additional Land has been conveyed to Owners other than Declarant;
or (3) the date Declarant resigns, as evidenced by notice delivered to the Resident Agent
of the Association.
Directors
Section 6.1. Number of Directors. The Board of Directors shall be composed of
three (3) members until the Applicable Date and five (5) members thereafter.
Section 6.2. Election of Directors. All Directors, other than the Initial Board of
Directors, shall be elected by the Members.
Section 6.3. Names and Post Office Addresses of the Directors. The names and post
office addresses of the Initial Board of Directors are:
67780_',DOC 3
ARTICLE VI
Name Number and Street or Building City and State Zip Code
Jeffery Pape 8440 Allison Pointe Blvd., Suite 200 Indianapolis, IN 46250
Michael Mates 8440 Allison Pointe Blvd., Suite 200 Indianapolis, IN 46250
Leigh Barrett 8440 Allison Pointe Blvd., Suite 200 Indianapolis, IN 46250
67780_1.noc 4
ARTICLE VII
Incorporator
Section 7.1. Name and Post Office Address. The name and post office address of the
incorporator of the Corporation is Tammy K. Haney, Attorney at Law, Bose McKinney Evans
LLP, 600 East 96th Street, Suite 500, Indianapolis, Indiana 46240.
ARTICLE VIII
Provisions for the Regulation and
Conduct of the Affairs of the Corporation
Section 8.1. Contributions and Liabilities of Members. No Member of the Corporation
nor any property of a Member shall be subject to any liability for any debts of the Corporation
with the sole exception of the Member's Regular Assessments, Special Assessments and
Additional Assessments which both (1) are specifically approved by a majority of Directors
elected by the Members in accordance with these Articles of Incorporation and (ii) are, to the
extent of the Member's proportionate share thereof, the personal obligation of the Member, or a
lien upon property of the Member, pursuant to the terms and provisions of the Declaration.
Section 8.2. Code of By -Laws. The power to make, alter, amend or repeal the Code of
By -Laws and the rules and regulations for the conduct of the affairs of the Corporation, including
the power to elect officers of the Corporation, shall be vested in the Board of Directors;
provided, however, any amendment that would change any provision of the Code of By -Laws
that are a part of the Declaration must be approved in accordance with the amendment provisions
or requirements of such Code of By -Laws; provided, however, that no acts of the Board of
Directors shall be inconsistent with or contradictory to these Articles of Incorporation or any
applicable law.
Section 8.3. Dissolution. The Corporation may be dissolved only with the written
consent of not less than a majority of the votes of the Members. Upon dissolution of this
Corporation, any assets remaining after payment of any known debts and obligations shall be
transferred or distributed ratably to the Members consistent with the provisions of I.C. 23- 17 -22-
5(x)(7)
Section 8.4. Amendment of Articles of Incorporation. These Articles of Incorporation
may be amended with the consent of a majority of the votes of the Members, but no amendment
may modify or change any provision of the Declaration, unless such change is approved in
accordance with the provision of the Declaration for amendment to the Declaration.
Section 8.5. Non Liability of Directors. The Directors shall not be liable to the
Members of the Corporation for any error or mistake of judgment exercised in carrying out their
duties and responsibilities as Directors, except for their own individual willful misconduct, bad
faith or gross negligence. The Corporation shall indemnify and hold harmless each of the
Directors against any and all liability to any person, firm or corporation arising out of contracts
made by the Board on behalf of the Corporation, unless any such contract shall have been made
in bad faith. The Directors shall have no personal liability with respect to any contract made by
them on behalf of the Corporation, and in all matters the Board shall act for and on behalf of the
Corporation and as its agent.
Section 8.6. Additional Indemnity of Directors. The Corporation shall indemnify, hold
harmless and defend any person, his heirs, assigns and legal representatives, made a party to any
action, suit or proceeding by reason of the fact that he is or was a Director of the Corporation,
against the reasonable expenses, including attorneys' fees, actually and necessarily incurred by
him in connection with the defense of such action, suit or proceeding, or in connection with any
appeal therein, except as otherwise specifically provided herein in actions, suits or proceedings
where such Director is adjudged liable for bad faith, gross negligence or wilful misconduct in the
performance of his duties. The Corporation shall also reimburse any such Director the
reasonable costs of settlement of or judgment rendered in any action, suit or proceeding, if it
shall be found by a majority vote of the Owners that such Director was not guilty of gross
negligence or misconduct. In making such findings and notwithstanding the adjudication in any
action, suit or proceeding against a Director, no Director shall be considered or deemed to be
guilty of or liable for negligence or misconduct in the performance of his duties where, acting in
good faith, such Director relied on the books and records of the Corporation or statements or
advice made by or prepared by the Managing Agent (if any) or any officer or employee thereof,
or any accountant, attorney or other person, firm or corporation employed by the Corporation to
render advice or service unless such Director had actual knowledge of the falsity or incorrectness
thereof; nor shall a Director be deemed guilty of or liable for negligence or misconduct by virtue
of the fact that he failed or neglected to attend a meeting or meetings of the Board of Directors.
IN WITNESS WHEREOF, the undersigned does hereby execute these Articles of
Incorporation this 13 day of October, 2005.
67780_1.DOC 5
64701.3
200500063264
Filed for Record in
HAMILTON COUNTYr INDIANA
JENNIFER J HAYDEN
07-26 -2005 At 02:51 am.
DEC COV RES 172.00
DECLARATION OF COVENANTS,
CONDITIONS RESTRICTIONS
FOR
TRADITIONS ON THE MONON
Carmel
Hamilton County, Indiana'
CENTEX HOMES
DECLARATION OF
COVENANTS, CONDITIONS RESTRICTIONS
FOR
TRADITIONS ON THE MONON
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS 1
ARTICLE 2 PROPERTY SUBJECT TO THE DECLARATION AND OTHER
GOVERNING DOCUMENTS 4
2.1. SUBJECT TO GOVERNING DOCUMENTS 4
2.2. NO OTHER DECLARATION OR MASTER RESTRICTIONS 4
2.3, ADDITIONAL LAND 4
2.4. MERGER WITH ANOTHER ASSOCIATION 4
ARTICLE 3 PROPERTY EASEMENTS AND RIGHTS 5
3.1. GENERAL; RECORDED EASEMENTS 5
3.2. DRAINAGE, SEWER AND UTILITY EASEMENTS 5
3.3. LANDSCAPE EASEMENTS 5
3,4. ACCESS AND PARKING EASEMENT 6
3.5. PEDESTRIAN ACCESS EASEMENTS 6
3.6. TREE CONSERVATION AREA EASEMENT 7
3.7, COOL CREEK TRAIL. EXTENSION EASEMENT 7
3.8 EMERGENCY ACCESS EASEMENT 7
3.9. OWNER'S EASEMENT OF ENJOYMENT 7
3.10. OWNERS MAINTENANCE AND TOWNHOME UTILITY EASEMENTS 8
3.11. OWNER'S ENCROACHMENT EASEMENT 8
3.12. ASSOCIATION'S ACCESS EASEMENT 8
3.13. UTILITY EASEMENT 9
3.14. SECURITY 0 9
3.15. DECLARANT'S EASEMENT TO INSPECT AND RIGHT TO CORRECT 9
ARTICLE 4 LOTS, TOWNHOMES AND AREA OF COMMON RESPONSIBILITY 10
4.1. LOTS 10
4.2. ALLOCATION OF INTERESTS 10
4.3. TOWNHOMES 10
4.4. AREA OF COMMON RESPONSIBILITY 10
ARTICLE 5 COVENANT FOR ASSESSMENTS 12
5.1. PURPOSE OF ASSESSMENTS 12
5.2. PERSONAL OBLIGATION 12
5.3. ASSESSMENT INCREASES 12
5.4. TYPES OF ASSESSMENTS 12
5.5. INITIAL ASSESSMENTS 13
TABLE OF CONTENTS TO DECLARATION FOR TRADITIONS ON THE MONON Page i
64701.3
5.6. REGULAR ASSESSMENTS 13
5.7. SPECIAL ASSESSMENTS 15
5.8. INDIVIDUAL ASSESSMENTS 15
5.9. RESTORATION ASSESSMENTS 15
5.10. DUE DATE 15
5.11. RESERVE FUNDS 15
5.12. ASSOCIATION'S RIGHT TO BORROW MONEY 1C
ARTICLE 6 ASSESSMENT LIEN 16
6.1. ASSESSMENT LIEN 16
6.2. SUPERIORITY OF ASSESSMENT LIEN 16
6.3. EFFECT OF MORTGAGEE'S FORECLOSURE 16
6.4. FORECLOSURE OF LIEN. 16
ARTICLE 7 EFFECT OF NONPAYMENT OF ASSESSMENTS 17
7.1. FAILURE TO PAY ASSESSMENTS 17
7.2. INTEREST 17
7.3. LATE FEES 17
7.4. COLLECTION EXPENSES 17
7.5. ACCELERATION 17
7.6. SUSPENSION OF USE AND•VOTE 17
7.7. MONEY JUDGMENT 17
7.8. NOTICE TO MORTGAGEE 18
7.9. APPLICATION OF PAYMENTS 18
ARTICLE 8 MAINTENANCE AND REPAIR OBLIGATIONS AND LIMITATIONS 18
8.1. ASSOCIATION MAINTENANCE 18
8.2. OWNER RESPONSIBILITY 18
8.3. DISPUTES 19
8.4. CONCRETE AND ASPHALT 19
8.5. LAWNS AND LANDSCAPING 19
8.6. SNOW REMOVAL 19
8.7. PEST CONTROL 19
8.8. BALCONIES AND DECKS 19
8.9. WARRANTY CLAIMS 19
8.10. PARTY WALLS 20
8.11. OWNER'S DEFAULT IN MAINTENANCE 20
ARTICLE 9 ARCHITECTURAL COVENANTS AND CONTROL 20
9.1. PURPOSE 20
9.2. PROHIBITION OF CONSTRUCTION, ALTERATION AND IMPROVEMENT 21
9.3. ARCHITECTURAL CONTROL DURING THE DEVELOPMENT PERIOD 21
9.4. ARCHITECTURAL CONTROL BY ASSOCIATION 21
9,5. ARCHITECTURAL APPROVAL 22
9.6. ARCHITECTURAL GUIDELINES 22
TABLE OF CONTENTS TO DECLARATION FOR TRADITIONS ON THE MONON Page ii
6470].3
9.7. PROHIBITED ACTS 22
ARTICLE 10 USE RESTRICTIONS f 23
10.1. VARIANCE 23
10.2. ASSOCIATION'S RIGHT TO PROMULGATE RULES 23
10.3. ANIMALS 24
10.4. ANNOYANCE 24
10.5. APPEARANCE 24
10.6. DECLARANT PRIVILEGES 24
10.7. DRAINAGE 24
10.8. SIDEWALKS DRIVEWAYS 24
10.9. FIRE SAFETY 24
10.10. LANDSCAPING 25
10.11: LEASING OF TOWNHOMES 25
10.12. NOISE AND ODOR 25
10.13. OCCUPANCY 25
10.14. VEHICLES 25
10.15. GARAGES 26
10.16. PARKING 26
10.17. RESIDENTIAL USE 26
10.18. SIGNS 26
10.19. SPECIFIC USES 26
10.20. STRUCTURAL INTEGRITY 27
10.21. TPLRVISION RECEPTION 27
10.22. WINDOW TREATMENTS 28
10.23. BALCONIES AND DECKS 28
ARTICLE 11 ASSOCIATION OPERATIONS 28
11,1. THE ASS OCIATION 28
11.2. BOARD 28
11.3. MEMBERSHIP 28
11.4. MANAGEMENT COMPANY 29
11.5. BOOKS AND RECORDS 29
11.6. INDEMNIFICATION 29
11.7. OBLIGATIONS OF OWNERS 29
ARTICLE 12 ENFORCING THE DOCUMENTS 30
12.1. ENFORCEMENT 30
12.2. REMEDIES 30
12.3. BOARD DISCRETION 30
12.4. NO WAIVER 31
12.5. RECOVERY OF COSTS 31
ARTICLE 13 INSURANCE 31
13.1. GENERAL PROVISIONS 31
TABLE OF CONTENTS TO DECLARATION FOR TRADITIONS ON THE MONON Page
64701.3
13.2. PROPERTY INSURANCE 32
13.3. LIABILITY INSURANCE 32,
13.4. WORKER'S COMPENSATION 33
13.5. FIDELITY COVERAGE 33
13.6, DIRECTORS AND OFFICERS LIABILITY 33
13.7. OTHER POLICIES 33
13.8. OWNER'S RESPONSIBILITY FOR INSURANCE 33
ARTICLE 14 RECONSTRUCTION OR REPAIR AFTER LOSS 34
14.1. GENERAL 34
14.2. RESTORATION FUNDS 34
14.3., COSTS AND PLANS 35
14.4. DUTY TO REPAIR 35
14.5. OWNER'S LIABILITY FOR INSURANCE DEDUCTIBLE 36
ARTICLE 15 CONDEMNATION 36
15.1. CONDEMNATION 36
ARTICLE 16 MORTGAGEE PROTECTION 36
16.1. INTRODUCTION 36
16.2. AMENDMENT TO SATISFY REQUIREMENTS OF UNDERWRITING
LENDERS 36
16.3. NOTICE REGARDING EXISTENCE OF MORTGAGEE 36
16.4, IMPLIED APPROVAL 36
16.5. OTHER MORTGAGEE RIGHTS 37
16.6, INSURANCE POLICIES 37
16.7. NOTICE OF ACTIONS 37
ARTICLE 17 AMENDMENTS 37
17.1. CONSENTS REQUIRED. 37
17.2. METHOD OF AMENDMENT 38
17.3.. EFFECTIVE 38
17.4. DECLARANT PROVISIONS 38
ARTICLE 18 DISPUTE RESOLUTION 38
18.1. INTRODUCTION AND DEFINITIONS 38
18.2. MANDATORY PROCEDURES 39
18.3. NOTICE 39
18.4. NEGOTIATION 39
18.5. MEDIATION 39
18.6. TERMINATION OF MEDIATION 39
18.7. ALLOCATION OF COSTS 40
18.8. ENFORCEMENT OF RESOLUTION 40
'18.9, GENERAL PROVISIONS 40
18.10, LITIGATION APPROVAL AND SETTLEMENT 40
TABLE OF CONTENTS TO DECLARATION FOR TRADITIONS ON THE MONON Page iv
64701.3
ARTICLE 19 GENERAL PROVISIONS 40
19.1. COMPLIANCE WITU LAWS 40
192. HIGHER AUTHORITY 40
19.3. NOTICE 40
19.4. LIBERAL CONSTRUCTION 41
19.5. SEVERABILITY, ENUMERATED MATTERS 41
19.6. CAPTIONS 41
19.7. INTERPRETATION 41
19.8. DURATION 41
19.9. CONTROLLING DOCUMENT 41
19.10. APPENDIXES 41
APPENDIX A DESCRIPTION OF PROPERTY 43
APPENDIX B DECLARANT RESERVATIONS B -1
B.1. GENERAL PROVISIONS B -1
B.2. DECLARANT CONTROL PERIOD RESERVATIONS B -1
B.3. DEVELOPMENT PERIOD RESERVATIONS B -2
B.4. COMMON AREAS B -5
B.5. SUCCESSOR DECLARANT B -5
B.6. ANNEXATION B -5
APPENDIX C COMMITMENTS CONCERNING THE USE
DEVELOPMENT OF REAL ESTATE C -1
APPENDIX D COOL CREEK TRAIL EXTENSION EASEMENT D -1
TABLE OF CONTENTS TO DECLARATION FOR TRADITIONS ON THE MONON Page v
64701,3
DECLARATION OF
COVENANTS, CONDITIONS RESTRICTIONS
FOR TRADITIONS ON THE MONON
This DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS FOR
TRADITIONS ON THE MONON is made by Centex Homes, a Nevada general partnership
"Declarant on the date signed below.
Declarant owns the land described in Appendix A of this Declaration, together with all
improvements, easements, rights, and appurtenances to the land, (collectively, the "Property Declarant
desires to establish a general plan of development for the Property for a planned community to be known
as "Traditions on the Monon Declarant also desires to provide a reasonable and flexible procedure by
which Declarant may expand the Property to include additional real property, and to maintain certain
development rights that are essential for the successful completion and marketing of the Property.
Declarant further desires to provide for the preservation, administration, and maintenance of
portions of the Property, and to protect the value, desirability, and attractiveness of the Property. As an
integral part of the development plan, Declarant deems it advisable to create a homeowners association to
perform these functions and activities more fully described in this Declaration and the other Governing
Documents described below.
Accordingly, Declarant declares that the Property and any additional property made subject to
this Declaration by recording of an amendment of or supplement to this Declaration, will be owned, held,
transferred, sold, conveyed, leased, occupied, used, insured, and encumbered subject to the terms,,
covenants, conditions, restrictions, and easements of this Declaration, including Declarant's reservations
'in the attached Appendix B. All of these terms, covenants, conditions, restrictions and easements run
with the real property and bind all parties having or acquiring any right, title, or interest in any part of the
Property, their heirs, successors, and assigns, and inure to the benefit of each Owner of any part of the
Property.
ARTICLE 1
DEFINITIONS
DEFINITIONS. The following words and phrases, whether or not capitalized, have specified
meanings when used in the Governing Documents, unless a different meaning is apparent from the
context in which the word or phrase is used,
1.1. "Additional Land" means real property which may be added to the Property and
subjected to this Declaration by Declarant and the owner of such property, as described in Section B.3.2
of Appendix B of this Declaration.
1.2. "Applicable Law" means the statutes and public laws and ordinances'in. effect at the time
a provision of the Governing Documents is applied that pertain to the subject matter of the Document
provision, regardless of whether such Applicable Law is specifically or correctly cited in the Governing
Documents,
1.3. "Architectural Reviewer" means the entity having jurisdiction over a particular
application for architectural approval. During the Development Period, the Architectural Reviewer is
Declarant or its designee. Thereafter, the Board appointed Architectural Control Committee is the
Architectural Reviewer.
DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS
TRADITIONS ON THE MONON
64701.3
Page 1
1.4. "Area of Common Responsibility" means that portion of the Property and those
components of the Townhomes for which the Association has maintenance responsibilities, as described
with more particularity in Article 4 of this Declaration.
1.5. "Assessment" means any charge levied against a Lot or Owner by the Association,
pursuant to the Governing Documents or State law, including but not limited to Initial Assessments,
Regular Assessments, Special Assessments, Individual Assessments, and Restoration Assessments, as
defined in Article 5 of this Declaration.
1.6. "Association" means the association of Owners of all Lots in the Property, initially
organized as Traditions on the Monon Homeowners Association, Inc., an Indiana nonprofit corporation.
1.7. "Board" means the board of directors of the Association.
1.8. "Bylaws" means the bylaws of the Association, as they may be amended from time to
time.
1.9. "Common Area" means all of the Property, save and except the Townhome Lots.
1.10. "Common Expenses" means expenses incurred by Declarant or the Association that are
to be shared by the Owners, as more particularly described in this Declaration.
1.11. "Declarant" means Centex Homes, a Nevada general partnership, which is developing
the Property, or the successors and assigns of Centex Homes that acquire any portion of the Property for
the purpose of development and which are designated a "Successor Declarant" by Centex Homes, or by
any such successor and assign, in a recorded document.
1.12. "Declarant Control Period" means that period of time during which Declarant controls
the operation and management of the Association, pursuant to Appendix B of this Declaration. The
duration of the Declarant Control Period is from the date this Declaration is recorded for a maximum
period not to exceed the earlier of (1) 7 years from date this Declaration is recorded; (2) 120 days after
title to 75 Lots in the Property and on the Additional Land has been conveyed to Owners other
than•Declarant; or (3) the date Declarant resigns,. as evidenced by notice delivered to the Resident Agent
of the Association.
1.13. "Declaration" means this document, as it may be amended from time to time.
During the Development Period, the rights of Declarant set forth in Appendix B
have priority over the main body of this Declaration.
1.14. "Development Period" means the 10 -year period beginning the date this Declaration is
recorded, during which Declarant has certain rights pursuant to Appendix B hereto, including rights
relating to development, construction, expansion, and marketing of the Property. The Development
Period is for a term of years and does not require that Declarant own any portion of the Property.
Declarant may terminate the Development Period at any time by recording a notice of termination.
DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS
TRADITIONS ON THE MONON
64701.3
Page 2
1.15. "Eligible Mortgagee" means a• Mortgagee who has submitted to the Association a
written notice containing its name and address, the loan number, and the identifying number and street
address of the mortgaged Lot.
1.16. "Governing Documents" means, singly or collectively as the case may be, this
Declaration, the Plat, the Bylaws, the Association's Articles of Incorporation, and the Rules of the
Association, as any of these may be amended from time to time. An appendix, exhibit, schedule, or
certification accompanying a Document is a part of that Document.
1.17. "Lot" means a portion of the Property intended for independent ownership, as shown on
the Plat, on which there is or will be constructed a Townhome. Where the context indicates or requires,
"Lot" includes all improvements thereon. A lot without a Townhome that is owned by the Association as
a Common Area is not included within the meaning of "Lot."
1.18. "Majority" means more than half.
1.19. "Member" means a member of the Association, each Member being an Owner of a Lot,
unless the context indicates that member means a member of the Board or a member of a committee of
the Association.
1.20. "Mortgagee" means a holder, insurer, or guarantor of a purchase money mortgage
secured by a recorded senior or first mortgage or deed of trust lien against a Lot.
1.21, "Municipal Entity" means any town, city, township, county, political subdivision or
public or private utility, as the context shall require.
1.22. "Owner" means a holder of recorded fee simple title to a Lot. Declarant is the initial
Owner of all Lots. Sellers under land contracts are Owners. Mortgagees who acquire title to a Lot
through a deed in lieu of foreclosure or through foreclosure are Owners. Persons or entities having
ownership interests merely as security for the performance of an obligation are not Owners. Every Owner
is a Member of the Association.
1.23. "Plat" means the plat of Traditions on the Monon, recorded on
2005,• as Instrument 005 0 006 3 1 is 3 in the Office of the Recorder of Hamil n County, Indiana,
including all dedications, limitations, restrictions, easements, notes, and reservations shown on the Plat, as
it may be amended from time to time.
1.24. "Property" has the meaning given to it in the introductory paragraphs of this Declaration.
The Property includes every Lot and all Common Area.
the Lot.
1.25. "Resident" means an occupant of a Townhome, regardless of whether the person owns
1.26. "Resident Agent" means the person or entity designated as Resident Agent in the
Association's articles of incorporation.
1.27. "Rules" means rules and regulations of the Association adopted in accordance with the
Governing Documents. The initial Rules may be adopted by Declarant for the benefit of the Association.
1.28. "State" means the State of Indiana.
DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS
TRADITIONS ON THE MONON
64701.3
Page 3
1.29. Townhome" means the attached single family dwelling constructed on a Lot. Where
the context indicates or requires, "Townhome" includes the exterior appurtenances of the dwelling, such
as balconies and porches. In some contexts, such as Townhome Owner, "Townhome" has the same
meaning as "Lot."
1.30. "Underwriting Lender" means Federal Home Loan Mortgage Corporation (Freddie
Mac), Federal National Mortgage Association (Fannie Mae), Government National Mortgage Association
(Ginnie Mae), Federal Housing Administration (HUD/FHA), or U. S. Department of Veterans Affairs
(VA), singly or collectively. The use of this term and these institutions may not be construed as a
limitation on an Owner's financing options nor as a representation that the Property is approved by any
institution.
1.31. "Zoning Commitments" means the standards and zoning commitments set forth in
Ordinance No. 2- 464 -04 approved by the Common Council of the City of Carmel, Indiana, together with
those certain Commitments Concerning the Use and Development of Real Estate dated December 17,
2004, a copy of which is attached hereto as Appendix C.
ARTICLE 2
PROPERTY THAT IS SUBJECT TO THE DECLARATION
AND OTHER GOVERNING DOCUMENTS
2.1. SUBJECT TO GOVERNING .DOCUMENTS. In addition to the Zoning Commitments
and other easements and rights created by the Governing Documents, the Property is held, transferred,
sold, conveyed, leased, occupied, used, insured, and encumbered subject to the terms, covenants,
conditions, restrictions, liens, and easements of this Declaration, including Declarant's reservations in the
attached Appendix B, which run with the Property, bind all parties having or acquiring any right, title, or
interest in the Property, their heirs, successors, and assigns, and inure to the benefit of each Owner of the
Property.
2.2. NO OTHER DECLARATION OR MASTER RESTRICTIONS. The Property is not
subject to any other set of declarations or restrictions, other than this Declaration.
2.3. ADDITIONAL LAND. Additional real property, which is referred to as Additional
Land, may be added to the Property and subjected to this Declaration and the jurisdiction of the
Association (i) on approval of Owners representing at least 2/3 of the Lots in the Property, or (ii) during
the Development Period, by Declarant as permitted in Appendix B. Additional Land may added to the
Property by recording a supplemental declaration, including an amendment of Appendix A, in the Office
of the Recorder of Hamilton County.
2.4. MERGER WITH ANOTHER ASSOCIATION. Merger or consolidation of the
Association with another association must be evidenced by an amendment to this Declaration. The
amendment must be approved by Owners of at least 2/3 of the Lots. On merger or consolidation of the
Association with another association, the property, rights, and obligations of another association may, by
operation of law, be added to the properties, rights, and obligations of the Association as a surviving
corporation pursuant to the merger. The surviving or consolidated association may administer the
provisions of the Governing Documents within the Property, together with the covenants and restrictions
established on any other property under its jurisdiction. No merger or consolidation, however, will have
the effect of revoking, changing, or adding to the covenants established by this Declaration within the
Property.
DECLARATION OF COVENANTS, CONDTTIONS RESTRICTIONS
TRADITIONS ON THE MONON
64701.3
Page 4
ARTICLE 3
PROPERTY EASEMENTS AND RIGHTS
3.1.. GENERAL; RECORDED EASEMENTS.
3.1.1. General. In addition to other easements and rights established by the Governing
Documents, the Property is subject to the easements and rights contained in this Article. The
Property also is subject to any easements, licenses, leases, dedications, limitations, restrictions,
reservations, and encumbrances of record, including but not limited to those shown or cited on
the Plat, which is incorporated herein by reference. Each Owner, by accepting an interest in or
title to a Lot, covenants and agrees to be bound by the Other Easements and other prior recorded
instruments affecting the Property.
3.1.2. Easements Shown on the Plat. As shown on the Plat, portions of the Property are
burdened with and benefited by (i) Drainage, Sewer, Utility, Landscape and Pedestrian Access
Easements, (ii) an Access, Parking, Drainage, Sewer, Utility and Landscape Easement; and (iii)
an emergency access easement. These easements are more particularly described in this Article.
3.2. DRAINAGE, SEWER AND UTILITY EASEMENTS. The Drainage, Sewer and Utility
Easements (shown on the Plat as part of the Drainage, Sewer, Utility, Landscape and Pedestrian Access
Easements and the Access, Parldng, Drainage, Sewer, Utility and Landscape Easement) are created and
reserved by the Plat and this Declaration as non exclusive, perpetual easements over the Property
(including portions of the Lots) for the use of all public utility companies (not including transportation
companies), governmental agencies, Declarant and the Association for access to and installation,
maintenance, repair or removal of poles, mains, ducts, drains, lines, wires, cables and other equipment
and facilities for the furnishing of utility services, including cable television services. The Drainage,
Sewer and Utility Easements are also created and reserved by the Plat and this Declaration for the use of
Declarant and the Association for access to and construction, maintenance, operation, repair and control
of any retention and detention ponds and improvements comprising and/or related to the storm water
drainage system, either by surface drainage or appropriate underground installations, and the use of the
Association for access to and maintenance, repair and replacement of such drainage system. The
delineation of the Drainage, Sewer and Utility Easement areas on the Plat will not be deemed a limitation
on the rights of any entity for whose use any such easement is created and reserved to go on any portion
of the Property subject to such easement (including the Lots) temporarily to the extent reasonably
necessary, for the exercise of the rights granted to it by this Section. Except as installed by Declarant or
by third party public utility companies as provided above, no structures or improvements, including
without limitation decks, patios, fences, walkways or landscaping, may be erected or maintained upon the
Drainage, Sewer and Utility Easements. The water lines and the storm sewer facilities situated on the
Property are private.
3.3. LANDSCAPE EASEMENTS The Landscape Easements (shown on the Plat as part of
(i) the Drainage, Sewer, Utility, Landscape and Pedestrian Access Easements and (ii) the Access, Parking,
Drainage, Sewer, Utility and Landscape Easement) are created and reserved by the Plat and this
Declaration as non exclusive, perpetual easements over the Property (including portions of the Lots) for
the use of the Declarant and the Association for installation, maintenance and removal of trees, shrubbery,
flowers and other plantings, entryway and street signage and additional similar landscape improvements.
These easements include a right of ingress and egress on and over the areas adjacent thereto for the
purpose of this maintenance obligation.
DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS
TRADITIONS ON THE MONON
64701.3
Page 5
NOTICE
Although the Property is platted into individually owned Lots and
Townhomes, portions of the Lots and Townhomes are maintained by
the Association. Any portion of the Lots that is part of streets,
sidewalks, and pathways may be used by Residents of other Lots.
3.4. ACCESS AND PARKING EASEMENT.
3.4.1. Access and Parking Easement. An Access and Parking Easement (shown on the
Plat as part of the Access, Parking, Drainage, Sewer, Utility and Landscape Easement) is created
and reserved by the Plat and this Declaration over Block 24 (as shown on the Plat), which is part
of the Common Area, as a perpetual easement for the use of Declarant and the Association for the
maintenance, use, governance, and control of all streets, sidewalks and parking areas in the
Property. Declarant also grants to the Owners and Residents, and their invitees, the right to use
the streets and sidewalks for vehicular and pedestrian ingress to and egress from their Lots. The
Association has the right, from time to time, to use as much as the surface of each Lot as may be
reasonably necessary for the Association to perform work on the improvements in the Access and
Parking Easement. The Association may assign this easement, or any portion thereof, to a
Municipal Entity if the Municipal Entity agrees to accept the assignment.
3.4.3. Private Streets. As identified on the Plat, certain streets on the Property will be
constructed and used as private streets.
3.4.3. Control. In exercising this Access and Parking Easement; the Association may
do anything reasonably related to the use, maintenance, operation, and governance of the streets,
sidewalks, and parking areas. To the extent not prohibited by public law, the Association is
specifically authorized to adopt, amend, repeal, and enforce Rules for use of the streets,
sidewalks, and parking areas.
3.4.4. Municipal Entity Access. Declarant hereby reserves and grants to the Municipal
Entity a non exclusive easement across the private streets for access and all governmental
purposes, including, but not limited to, police and fire .protection, garbage ;collection, mail
delivery, building inspection, and any similar purpose. The Association must maintain adequate
access in and to the private streets to enable the Municipal Entity (or any entity providing service
on behalf of the Municipal Entity) to provide such services.
PRIVATE STREETS
The private streets, sidewalks, and parking areas on the Property are
subject to Association control, even if they are located on individual-Lots.
3.5. PEDESTRIAN ACCESS EASEMENTS. The Pedestrian Access Easements (shown on
the Plat as part of the Drainage, Sewer, Utility, Landscape and Pedestrian Access Easements) are created
and reserved by the Plat and this Declaration over the Property and certain portions of the Lots as non-
exclusive, perpetual easements for the use of Declarant and the Association for the construction,
maintenance, use, governance, and control of sidewalks, lighting, landscaping, and similar improvements.
Declarant also grants to the Owners and Residents, and their invitees, the right to use the sidewalks for
DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS
TRADITIONS ON THE MONON
64701.3
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ingress and egress to the Common Areas. In connection with these Pedestrian Access Easements, the
Association has the temporary right, from time to time, to use as much as the surface of each Lot as may .w
be reasonably necessary for the Association to perform its work on the improvements in the Pedestrian
Access Easements.
3.6. TREE CONSERVATION AREA EASEMENT. A portion of the Property contains a
wooded natural "Tree Conservation Area This Tree Conservation Area is identified on the Plat. With
respect to the Tree Conservation Area, existing trees shall not be removed except as follows:
3.6.1 as is necessary to clear underbrush and dead trees;
3.6.2 as is necessary for the installation of access easements, rights of ways, streets,
paths, sidewalks, utilities, drainage improvements and infrastructure; and
3.6.3 as is necessary for public health and safety..
3.7 COOL CREEK TRAIL.EXTENSION.EASEMENT. Declarant and/or the Association
hereby agrees to grant to the City of Carmel a construction easement for the construction of the Cool
Creek Trail Extension shown on Appendix D attached hereto and incorporated herein at such time as the
location of the Cool Creek Trail Extension is determined. Upon construction of the Cool Creek Trail
Extension, Declarant and/or the Association agree to grant to the City of Carmel a perpetual access
easement for the Cool Creek Trail Extension. Declarant and/or the Association, as applicable, shall grant
such further easements to the City of Carmel as are necessary for the Cool Creek Trail Extension. As
required by the Zoning Commitments, Declarant and/or the Association, as applicable, hereby 'agrees to
convey to the City of Carmel or the Carmel Clay. Board of Parks and Recreation, that area shown on.
Appendix C and identified on the Plat as Block 25 for use as a public park. Notwithstanding any other
provision of this Declaration, the Board of Directors may convey such easements and property described
in this Section 3.7 without the consent or approval of the Owners.
3.8 EMERGENCY ACCESS EASEMENT. An Emergency Access Easement, as shown on
the Plat, is created and reserved by the Plat and this Declaration as a non exclusive easement for
emergency access for the benefit of public and quasi- public emergency, fire, ambulance and police
authorities subject only to the provisions contained herein. Such Emergency Access Easement shall be
only for emergency purposes and shall not allow public access. Declarant and/or such public authorities
may construct bollards and/or take other preventative measures to allow emergency access but not public
access across and through the Emergency Access Easement. The. Association shall maintain the
Emergency Access Easement, but shall have no right to make any changes to the Emergency Access
Easement as originally installed and may not install any additional landscaping or other features within
the Emergency Access Easement.
3.9 OWNER'S EASEMENT OF ENJOYMENT. Each Owner and his invitees are granted a
right and easement of use and of enjoyment over the Access and Parking Easement, the Pedestrian Access
Easement, and any Common Areas, and to use of improvements therein, subject to other rights and
easements contained in the Governing Documents. An Owner who does not occupy a Townhome
delegates this right of enjoyment to the Residents of his Townhome, in which case the Owner is no longer
entitled to use the Common Areas. If a portion of the Common Area, such as a recreational feature, is
designed for private use, the Association may temporarily reserve the use of such area for certain persons
and purposes.
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3.10 OWNER'S MATNTENANCE AND TOWNHOME UTILITY EASEMENTS.
3.10.1. Maintenance Easement. Every Owner is granted an easement over adjoining
Lots and the Area of Common Responsibility for the maintenance or reconstruction of his
Townhome and other improvements on his Lot.
3.10.2. Townhome Utility Easement. Every Owner of a Lot is granted an easement over,
under, and through every other Townhome in the same building in which bis Townhome is
located for the limited purpose of installing, maintaining, and replacing wires, cables, conduit,
and pipes, that serve his Townhome, but only to the extent that use of this easement is reasonable
and necessary. The Owner of a Townhome that contains wire, cables, conduit, or pipes that serve
one or more other Townhomes has a duty to refrain from interfering with or damaging those
items.
3.10,3. Use of Maintenance Easement and Townhome Utility Easement. An Owner's
right to use the Maintenance Easement or the Townhome. Utility Easement is subject to the
consent of the Owner of the adjoining Townhome or, in the case of the Area of Common
Responsibility, the Association. Such consent may not be unreasonably withheld. Any dispute as
to whether or not a requested entry by an Owner is appropriate, and whether or not the
withholding of consent is reasonable, will be resolved by the Board. An Owner's use of the
easement may not damage or materially interfere with the use of the adjoining Townhome or
Area of Common Responsibility. If an Owner damages an adjoining Lot, Townhome, or Area of
Common Responsibility in exercising its rights under this easement, the Owner is obligated to
restore the damaged property to its original condition, at his expense, within a reasonable period
of time.
3.11 OWNER'S ENCROACHMENT EASEMENT. Every Owner is granted an easement for
the existence and continuance of any encroachment by his Townhome (including a Party Wall, as
described is Section 8.10) on any adjoining. Lot or Common Area now existing or which may come into
existence hereafter, as a result of construction, repair, shifting, settlement, or movement of any portion of
a building, or as a result of condemnation or eminent domain proceedings, so that the encroachment may
remain undisturbed.
3.12 ASSOCIATION'S ACCESS EASEMENT: Each Owner, by accepting an interest in or
title to a Lot, whether or not it is so expressed in the instrument of conveyance, grants to the Association
an easement of access and entry over, across, under, and through the Property, including without
limitation all Common Areas and the Owner's Lot and all improvements thereon, for the below- described.
purposes. In exercising this easement on an Owner's Lot, the Association is not liable to the Owner for
trespass.
a. To perform inspections and/or maintenance that is permitted or required of the
Association by the Governing Documents or by applicable lave.
b. To perform maintenance that is permitted or required of the Owner by the
Governing Documents or by applicable law, if the Owner fails or refuses to
perform such maintenance.
c. To enforce the Governing Documents, including without limitation the
architectural standards and use restrictions.
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d. To exercise self help remedies (if any permitted by the Documents and by
Applicable Law.
g.
e. To respond to emergencies.
f. To grant such easements to utility providers as may be necessary to install,
maintain, and inspect utilities serving any portion of the Property.
To perform any and all functions or duties of the Association as permitted or
required by the Governing Documents or by applicable law.
3.13 UTILITY EASEMENT. The Association may grant permits, licenses, and easements
over the Common Area and the Area of Common Responsibility for utilities, roads, and other purposes
necessary for the proper operation of the Property.
THE DECLARANT AND ASSOCIATION ARE NOT
RESPONSIBLE FOR YOUR PHYSICAL SECURITY.
3.14 SECURITY. The Association may, but is not obligated to, maintain or support certain
activities within the Property designed, either directly or indirectly, to improve safety in or on the
Property. Each Owner and Resident acknowledges and agrees, for himself and his guests, that Declarant,
the Association, and their respective directors, officers, committees, agents, and employees are not
providers, insurers, or guarantors of security within the Property. Each Owner and Resident
acknowledges and accepts his sole responsibility to provide security for his own person and property; and
assumes all risks for loss or damage to same. Each Owner and Resident further acknowledges that
Declarant, the Association, and their respective directors, officers, committees, agents, and employees
have made no representations or warranties, nor has the Owner or Resident relied on any representation or
warranty, express or implied, including any warranty of merchantability or fitness for any particular
purpose, relating to any fire, burglary, and/or intrusion systems recommended or installed, or any security
measures undertaken within the Property. Each Owner and Resident acknowledges and agrees that
Declarant, the Association, and their respective directors, officers, committees, agents, and employees
may not be held liable for any loss or damage by reason of failure to provide security or ineffectiveness of
security measures which may be undertaken.
3.15 DECLARANT'S EASEMENT TO INSPECT AND RIGHT TO CORRECT. For a
period of 10 years after the last closing of a sale of a Townhome from Declarant to an Owner, Declarant
reserves for itself and for Declarant's architect, engineer, other design professionals, builder, and general
contractor the right, but not the duty, to inspect, monitor, test, redesign, correct, and relocate any
structure, improvement, or condition that may exist on any portion of the Property, including the
Townhomes, and a perpetual nonexclusive easement of access throughout the Property to the extent
reasonably necessary to exercise this right. Declarant will promptly repair, at its sole expense, any
damage resulting from the exercise of this right. This Section should not be construed to create a duty for
Declarant or the Association, and may not be amended without Declarant's written and acknowledged
consent. In support of this reservation, each Owner, by accepting an interest in or title to a Lot, hereby
grants to Declarant an easement of access and entry over, across, under, and through the Property,
including without limitation all Common Areas and the Owner's Lot and all improvements thereon for the
purposes contained in this Section.
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ARTICLE 4
LOTS, TOWNHOMES AND AREA OF COMMON RESPONSIBILITY
4.1. LOTS. The Property is platted into Lots, the boundaries of which are shown on the Plat,
and which may not be obvious on visual inspection of the Property. Portions of the Lots are designated
by this Declaration to be Areas of Common Responsibility, and are burdened with easements for the use
and benefit of the Association, Owners, and Residents. The legal description for each Lot on the Property
will be as follows:
Lot in Traditions on the non, a subdivision in Hamilton County, Indiana as
per plat thereof recorded 9 S. as Instrument Number in the Office of the
Recorder of Hamilton County, Indiana. Do50uv(o3 3
4.2. ALLOCATION OF INTERESTS. The interests allocated to each Lot are calculated by
the following formulas.
4.2.1. Common Expense Liabilities. The percentage of liability for. Common Expenses
allocated to each Lot is uniform for all Lots, regardless of the value, size, or location of the Lot or
Townhome.
4.2.2. Votes. The one vote appurtenant to each Lot is weighted equally for all votes,
regardless of any other allocation appurtenant to the Lot.
4.3. TOWNHOMES. Each residential Lot is to be improved with a Townhome. The Owner
of a Lot owns every component of the Lot and Townhome, including all the structural components and
exterior features of the Townhome. Nevertheless, this Declaration identifies components of the
Townhomes as Areas of Common Responsibility, to be maintained by the Association as a Common
Expense.
SIZE OF TOWNHOME
The size of a Townhome may be measured different ways for different purposes, such as
for tax purposes, appraisal purposes, marketing purposes, and for purposes of carpeting
and paint. No single measurement is definitive for all purposes. Measurements may be of
the area under roof, or the air conditioned space, or the area within the Lot's building
lines. The Townhome's partition wall cavities and/or its perimeter wall cavities may or
may not be included. The Townhome's garage area, attic area, front porch, and/or
balcony space, if any, may or may not be included.
4.4. AREA OF COMMON RESPONSIBILITY. The Area of Common Responsibility
consists of the following components on or adjacent to the Property, even if located on a Lot or a public
right of way:
a. Any Common Area shown on the Plat, and all improvements, signage, and
equipment thereon, including water lines and storm sewers, pipes, structures and
wet retention areas.
b. The private streets, sidewalks, and offstreet parking spaces in the Property.
c. Any perimeter fences or walls on or near the borders of the Property.
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d. All unfenced grounds in the Property.
e. Any landscape irrigation system that serves the Property.
f. Any fixture and improvement on or appurtenant to the street and which are
intended for the use, operation, or maintenance of a street, including but not
limited to curbs, street lamps, and traffic signs.
g.
Any right, title, or interest in real property that is held by the Association for the
use and benefit of Owners or Residents of the Property, including any Lot owned
by the Association.
h. Any area, item, easement, or service, the maintenance of which is assigned to the
Association by this Declaration or by the Plat..
i. Any personal property owned by the Association.
j. Any obligation of the Association under any easements affecting the Property.
k. The following limited areas and components of the individually -owned Lots and
Townhomes, which are to be maintained as a Common Expense:
(1) The roofs of the buildings in which the Townhomes are located,
including (if any) skylights, gutters, and flashing, but not including roof
trusses.
(2) The foundations of the buildings in which the Townhomes are located.
(3) Water lines from the Common Area to the point at which such water
lines protrude through the lowest floor of a Townhome,
(4) Sanitary sewer lines from the Common Area to the "clean -out" located
on the exterior of a Townhome.
(5) Garage doors, but not glass panes, hardware, locks, automatic door
openers, or security devices.
(6) Exterior materials of the buildings' walls, such as brick veneer, stucco, or
siding, and including sealants and `fillers.
(7)
Exterior materials of chimney stacks and caps, but not chimney flues,
fireboxes, or the periodic cleaning of flues.
(8) Exterior painted surfaces of front doors, but not hardware or other
aspects of the front door.
(9) Exterior painted surfaces.
(10) Decorative trim and hardware on Townhome facades, including street
numbers, railings and shutters (but not door hardware).
DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS
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(11) Exterior light fixtures (but not the light bulbs for the light fixtures),
(12) All landscaping and grounds on a Lot.
(13) Driveways and sidewalks situated on a Lot.
(14) Street lights installed by Declarant or the Association, situated on a Lot.
(15) Balconies and decks.
1. Any modification, replacement, or addition to any of the above described areas
and improvements.
ARTICLE 5
COVENANT FOR ASSESSMENTS
5.1. PURPOSE OF ASSESSMENTS. The Association will use Assessments for the general
purposes of preserving and enhancing the Property, and for the common benefit of Owners and Residents,
including but not limited to maintenance of real and personal property, management and operation of the
Association, and any expense reasonably related to the purposes for which the Property was developed.
The Board's decision with respect to the use of Assessments is final.
5.2. PERSONAL OBLIGATION. An Owner is obligated to pay Assessments levied by the
Board against the Owner or his Lot. Payments are made to the Association at its principal office or at any
other place (including to the management company) the Board directs. Payments' must be made in full
regardless of whether an Owner has a dispute with the Association, another Owner, or any other person or
entity regarding any matter to which this Declaration pertains. No Owner may exempt himself from. his
Assessment liability by waiver of the use or enjoyment of the Common Area or by abandonment' of his
Townhome. An Owner's obligation is not subject to offset by the Owner, nor is it contingent on the
Association's performance of the Association's duties. Payment of Assessments is both a continuing
affirmative covenant' personal to the Owner and a continuing covenant running with the Lot.
5.3. ASSESSMENT INCREASES. In addition to other rights granted to Owners by this
Declaration, Owners have the following powers and controls over the Association's budget. At least 30
days prior to the effective date of a Special Assessment or increase in Regular Assessments, the Board
will notify an Owner of each Lot of the amount of, the budgetary basis for, and the effective date of the
Special Assessment or increase. The Special Assessment or increase will automatically become effective
unless Owners representing at least a majority of the Lots disapprove the Special Assessment or increase
in Regular Assessment by petition or at a meeting of the Association. In that event, the last- approved
budget will continue in effect until a revised budget is approved by the Board. This Section of the
Declaration may not be amended without the approval of Owners of at least 75% of the,Lots.
5.4. TYPES OF ASSESSMENTS. There .are 5 types .of Assessments: Initial, Regular,
Special, Individual, and Restoration.
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64701.3
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IF YOU BUY A TRADITIONS ON THE MONON TOWNHOME,
YOU MUST PAY INITIAL
ASSESSMENTS TO THE ASSOCIATION.
5.5. INITIAL ASSESSMENTS. Initial Assessments include both an Initial Working Capital
Assessment and an Initial Replacement Reserve Assessment.
5.5.1. Initial Working Capital Assessment. Upon the purchase or transfer of a Lot to an
Owner other than the Owner purchasing the Lot from Declarant, each new Owner (other than
Declarant, a Successor Declarant or a Declarant- affiliate) will pay to the Association an Initial
Working Capital Assessment equal to 2 months of the Regular Assessment established from time
to time by the Association, as initial working capita] to be deposited with the general funds of the
Association and to be used by the Association.
5.5.2. Initial Replacement Reserve Assessment. Upon the purchase or transfer of a Lot
to an Owner by Declarant, each new Owner (other than Declarant, a successor to Declarant or a
Declarant affiliate) will pay to the Association an Initial Replacement Reserve Assessment in the
amount of $200.00 as such Owner's initial contribution to the Replacement Reserve Fund
provided in Section 5.11.2. Such Reserve Fund shall be deposited by the Association and used by
the Association as provided in Section 5.11.2.
5.5.3. Payment and Collection of Initial Assessment. If the funds are collected by the
Declarant, on or before termination of the Declarant Control Period, Declarant will provide the
Association with an accounting of any contributions collected and will transfer the balance of
such fund to the Association. The Initial Assessment is not an advance payment of the Regular
Assessment, but is, instead, in addition to the Regular Assessments that will otherwise become
due with respect to the Lot. The payment will be deemed to be the property of the Association
and will not be refundable or applied as a credit against any subsequent assessments. No Owner
will have any vested or other rights with respect to any such payments. If an Owner's contribution
is not collected at time of closing on the Lot, for any reason or no reason, the Owner of the Lot
(but not Declarant) is thereafter liable for the contribution, which may be collected by the
Association.
5.6. REGULAR ASSESSMENTS.
5.6.1. Purpose of Regular Assessments. Regular Assessments are used for Common
Expenses related to the reoccurring, periodic, and anticipated responsibilities of the Association,
including but not limited to:
a. Maintenance, repair, and replacement, as necessary, of the Common Area and.
Area of Common Responsibility, including snow removal.
DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS
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Most exterior maintenance of your Townhome and Lot, and all
maintenance of the Common Area, will be handled and paid for
by the Association as a Common Expense.
c. Services billed to the Association and serving the Lots.
d. Taxes on property owned by the Association and the Association's income taxes.
e. Management, legal, accounting, auditing, and professional fees for services to the
Association.
f. Costs of operating the Association, such as telephone, postage, office supplies,
printing, meeting expenses, and educational opportunities of benefit to the
Association.
g.
Utilities billed to the Association, including water and sanitary sewer utility
charges for usage by Owners and Residents.
Insurance premiums and deductibles.
Insurance premiums for the Townhome building itself
but not for your personal belongings or personal liability
will be paid by the Association as a Common Expense.
Contributions to the Reserve Fund, which is described below.
Any other expense which the Association is required by law or the Governing
Documents to pay or which, in the opinion of the Board, is necessary or proper
for the operation and maintenance of the Property or for enforcement of the
Governing Documents.
5.6.2. Annual Budget. The Board will prepare and approve an estimated annual budget
for each fiscal year. The budget will take into account the estimated income and Common
Expenses for the year, contributions to reserve funds, and a projection for uncollected receivables.
The Board will make the budget or its summary available to an Owner of each Lot, although
failure to receive a budget or summary does not affect an Owner's liability for Assessments.
IF YOU OWN A TRADITIONS ON THE MONON TOWNHOME,
YOU MUST PAY ASSESSMENTS TO THE ASSOCIATION.
5.6.3. Basis of Regular Assessments. Regular Assessments will be based on the annual
budget, minus estimated income from sources other than Regular Assessments. Each Lot will be
liable for its allocated share of the annual budget. If the Board does not approve an annual budget
or, fails to determine new Regular Assessments for any year, or delays in doing so, Owners will
DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS
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64701.3
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continue to pay the Regular Assessment as last determined. Regular Assessments will be paid in
monthly installments.
5.6.4. Supplemental Increases. If during the course of a year the Board determines that
Regular Assessments are insufficient to cover the estimated Common Expenses for the remainder
of the year, the Board may increase Regular Assessments for the remainder of the fiscal year in
an amount that covers the estimated restoration.
5.6.5. Initial Regular Assessments. Declarant estimates that the Regular Assessthent
payable for each Lot will initially be $155 per month. Of this amount, approximately $40 per
month is attributable to cost of water and sanitary sewer utility service for the Townhomes, and
approximately $28 per month is attributable to insuring the Townhomes buildings. The insurance
maintained by the Board does not cover any Owner's personal property, the contents of a
Townhome or .an Owner's personal liability. This amount is not guaranteed and will almost
certainly be increased over as actual expenses for operating and maintaining the Property are
incurred.
5.7. SPECIAL ASSESSMENTS. The Board may, from time to time, levy Special
Assessments against all Lots for the purpose of defraying, in whole or in part, Common Expenses not
anticipated by the annual budget or Reserve Fund. Special Assessments may be used for the same
purposes as Regular Assessments. Special Assessments do not require the approval of the Owners, except
that Special Assessments for the following,purposes must be approved by Owners of least a majority of
the Lots: (1) acquisition of real property, (2) construction of additional improvements to the Property
not repair or replacement of existing improvements, and (3) any expenditure that may reasonably be
expected to significantly increase the Association's responsibility and financial obligation for operations,
insurance, maintenance, repairs, or replacement.
5.8. INDIVIDUAL ASSESSMENTS. The Board may levy an Individual Assessment against
a Lot and its Owner. Individual Assessments may include, but are not limited to: interest, late charges,
and collection costs on delinquent Assessments; reimbursement for costs incurred in bringing an Owner
or his Lot into compliance with the Governing Documents; fines for violations of the Governing
Documents; fees for estoppel letters and copies of Governing Documents; insurance deductibles;
submetered utilities serving the Townhomes; reimbursement for damage or waste caused by willful or
negligent acts; Common Expenses that benefit fewer than all of the Townhomes, which may be assessed
according to :benefit received; fees or charges levied against the Association on a per -Lot basis; and "pass
through" expenses for services to Townhomes provided through the Association and which are equitably
paid by each Lot according to benefit received.
5.9. RESTORATION ASSESSMENTS. The Board may levy a Restoration Assessment
against Lots for the purpose of defraying, in whole or in part, the cost of repair or restoration if insurance
proceeds or condemnation awards prove insufficient.
5.10. DUE DATE. Initial Assessments are due upon the sale or transfer of a Lot. Regular
Assessments are payable in advance, are due on the first calendar day of each month, and are delinquent if
not received by the Association on or before the first day of the month. Special, Individual and
Restoration Assessments are due on the date stated in the notice of Assessment or, if no date is stated,
within 10 days after notice of the Special, Individual or Restoration Assessment is given.
5.11. RESERVE FUNDS. The Association may establish, maintain and accumulate a reserve
for operations. The Association will establish, maintain, and accumulate a reserve for replacement and
DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS
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64701.3
Page 15
repair. For all reserves established by the Association,. the Association will budget for reserves and may
fund reserves out of Initial Assessments or Regular Assessments. r`
5.11.1. Operations Reserves. The Association may maintain operations reserves at a
level determined by the Board to be sufficient to cover the cost of operational or maintenance
emergencies or contingencies, including deductibles on insurance policies maintained by the
Association.
5.11.2. Replacement Reserves. The Association will maintain replacement and repair
reserves at a level that anticipates the scheduled replacement or major repair of components of the
Common Area and Area of Common Responsibility.
5.12, ASSOCIATION'S RIGHT TO BORROW MONEY. The Association is granted the right
to borrow money, subject to the consent of Owners of at least a majority of Lots and the ability of the
Association to repay the borrowed funds from Assessments. To assist its ability to borrow, the
Association.is..granted the right to encumber, mortgage, pledge, or deed in trust any of its real or personal
property, and the right to assign its right to future income, as security for money borrowed or debts
incurred, provided that the rights of the lender in the pledged property are subordinate and inferior to the
rights of the Owners hereunder.
ARTICLE 6
ASSESSMENT•LIEN
6.1. ASSESSMENT LIEN. Each Owner, by accepting an interest in or title to a Lot, whether
or not it is so expressed in the instrument of conveyance, covenants and agrees to pay Assessments to the
Association. Each Assessment is a charge on the Lot and is secured by a lien on the Lot. Each Owner,
and each prospective Owner, is placed on notice that his title may be subject to the lien for Assessments
attributable to a period prior to the date the party purchased the Lot.
6.2. SUPERIORITY OF ASSESSMENT LIEN. The Assessment lien is superior to all other
liens and encumbrances on a Lot, except only for (1) real property taxes and assessments levied by
governmental and taxing authorities, (2) a mortgage, deed of trust or vendor's lien recorded before this
Declaration, (3) a recorded mortgage or deed of trust lien securing a loan for construction of the original
Townhome, and (4) a first or senior purchase money mortgage or vendor's lien recorded before the date
on which the delinquent Assessment became due. The Assessment lien is subordinate and inferior to a
recorded mortgage lien of any Underwriting Lender.
6.3. EFFECT OF MORTGAGEE'S FORECLOSURE. Foreclosure of a superior lien
extinguishes the Association's claim against the Lot for unpaid Assessments that became due before the
sale, but does not extinguish the Association's claim against the former Owner. The purchaser at the
foreclosure sale is liable for Assessments coming due from and after the date of the sale.
IF YOU FAIL TO PAY ASSESSMENTS TO THE
ASSOCIATION, THE ASSOCIATION MAY FORECLOSE
ITS ASSESSMENT LIEN AGAINST YOUR HOME.
6.4. FORECLOSURE OF LIEN. The Association may file and foreclose the lien for
Assessments as a mortgage on real property or as otherwise provided by law.
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ARTICLE 7
EFIi OF NONPAYMENT OF ASSESSMENTS
7.1. FAILURE TO PAY ASSESSMENTS. An Assessment is delinquent if the Association
does not receive payment in full by the Assessment's due date. The Association, acting through its Board,
is responsible for taking action to collect delinquent Assessments. The Association's exercise of its
remedies is subject to applicable laws, and pertinent provisions of the Bylaws. From time to time, the
Association may delegate some or all of the collection procedures and remedies, as the Board in its sole
discretion deems appropriate, to the Association's manager, management company, an attorney, or a debt
collector. Neither the Board nor the Association, however, is liable to an Owner or other person for its
failure or inability to collect or attempt to collect an Assessment. The following remedies outlined in this
Article 7 are in addition to and not in substitution for all other rights and remedies that the Association
has at law or by equity.
7.2. INTEREST. Delinquent Assessments are subject to interest from the due date until paid,
at a rate to be determined by the Board from time to time, not to exceed the lesser of 18% per annum or
the maximum permitted by law, If the Board fails to establish a rate, the rate is 12% per annum. The
Association, and its officers, directors, managers, and attorneys, intend to conform strictly to the
applicable usury laws of the State of Indiana. Notwithstanding anything to the contrary in the Governing
Documents or any other document or agreement executed or made in connection with the Association's
collection of Assessments, the Association will not be entitled to receive or collect, as interest, a sum
greater than the maximum amount permitted by applicable law., If the Association ever receives, collects,
or applies as interest a slim in excess of the maximum rate permitted by law, the excess amount will be
applied to the reduction of unpaid Special and Regular Assessments or, if those Assessments are paid in
full, reimbursed to the Owner.
7.3. LATE FEES. Delinquent Assessments are subject to reasonable late fees, at a rate to be
determined by the Board from time to time.
7.4. COI T F.CTION EXPENSES. The Owner of a Lot against which Assessments are
delinquent is liable to the Association for reimbursement of reasonable costs incurred by the Association
to collect the delinquent Assessments, including attorneys fees and processing fees charged by the
management company.
7.5. ACCELERATION.. If an Owner defaults in paying an Assessment that is payable in
installments, the Association may accelerate the remaining installments on 10 days' written notice to the
defaulting Owner. The entire unpaid balance of the Assessment becomes due on the date stated in the
notice.
7.6. SUSPENSION OF USE AND VOTE. If an Owner's account has been delinquent for at
least 30 days, the Association may suspend the right of the Owner and the Residents of the Owner's
Townhome to use Common Areas and common services during the period of delinquency. The
Association may not suspend an Owner or Resident's right of access to the Townhome. The Association
may also suspend the right to vote appurtenant to the Lot during the period of delinquency. Suspension
does not constitute a waiver or discharge of the Owner's obligation to pay Assessments.
7.7. MONEY JUDGMENT. The Association may file suit seeking a money judgment against
an Owner delinquent in the payment of Assessments, without foreclosing or waiving the Association lien
for Assessments.
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7.8. NOTICE TO MORTGAGEE. The Association may notify and communicate with an
Mortgagee for a Lot regarding the Owner's default in payment of Assessments.
7.9. APPLICATION OF PAYMENTS. The Association may adopt and amend policies
regarding the application of payments. The Association may refuse to accept partial payment, i.e., less
than the full amount due and payable. The Association may also refuse to accept payments to which the
payer attaches conditions or directions contrary to the Association's policy for applying payments.
ARTICLE 8
MAINTENANCE AND REPAIR OBLIGATIONS AND LIMITATIONS
8.1. ASSOCIATION MAINTENANCE. The Association's maintenance obligations. will be
discharged when and how the Board deems appropriate. The Association maintains; repairs, and replaces,
as a Common Expense, all Common Areas and any component of a Townhome or Lot delegated to the
Association by this Declaration as an Area of Common Responsibility. Certain aspects of this obligation
are more particularly described in this Article.
HOME OWNERSHIP IS NOT COMPLETELY
"MAINTENANCE FREE." AS AN OWNER, YOU WILL
HAVE SOME MAINTENANCE RESPONSIBILITIES.
8.2. OWNER RESPONSIBILITY. Every Owner has the following general responsibilities
and obligations for the maintenance, repair, and replacement of the Property:
a. To maintain, repair, and replace his Townhome, except for components expressly
designated as an Area of Common Responsibility and assigned to the Association
by this Declaration.
b. The routine cleaning of the windows, patio, balcony, porch, deck, sidewalk and
driveway area of his Townhome, keeping same in a neat, clean, odorless, orderly,
and attractive condition.
c.
To maintain, repair, and replace all portions of the Property for which he is
responsible under this Declaration or by agreement with the Association.
d. To not do any work or to fail to do any work which, in the reasonable opinion of
the Board, would materially jeopardize the soundness and safety of the Property,
reduce the value thereof, or impair any easement or real property right thereto.
e. To be responsible for his own willful or negligent acts and those of his or the
Resident's family, guests, agents, employees, or contractors when those acts
necessitate maintenance, repair, or replacement of the Area of Common
Responsibility, any Common Area, the property of another Owner, or any
component of the Property for which the Association has maintenance or
insurance responsibility.
f. To (i) keep any portion of the Lot that is subject to the Drainage, Sewer and
Utility Easement free from obstructions so that the storm water drainage will be
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unimpeded and (ii) not change or alter any drainage areas, including storm
sewers, pipe, and structures (including the wet retention area) without appropriate
permission of the Municipal Entity and prior written approval of the Association,
8.3. DISPUTES. If a dispute arises regarding the allocation of maintenance responsibilities
by this Declaration, the dispute will be resolved by allocating responsibility to the individual Owners.
Townhome and Lot maintenance responsibilities that are allocated to the Association are intended to be
interpreted narrowly to limit and confine the scope of Association responsibility. It is the intent of this
Article that all components and areas not expressly delegated to the Association are the responsibility of
the individual Owners.
8.4. CONCRETE AND ASPHALT, Minor cracks in concrete and asphalt, including
foundations, garage floors, driveways, streets, sidewalks, porches, and patio slabs, are inevitable as a
result of the natural movement of soil (expansion and contraction), shrinkage during the curing of the
concrete, and settling of the building. The Association's duty to maintain and repair foundations and
other concrete or asphalt of the Property does not extend to minor or cosmetic cracking. Generally, the
Association is responsible for repair of the following:conditions: (1) leakage.or.seepage through walls or
floors, (2) cracks in concrete, masonry walls, or 'masonry veneer that exceed 1/4 inch in width, and
(3) improper drainage of water from stoops and patios.
8.5. LAWNS AND LANDSCAPING. The Association will maintain the lawn and
landscaping throughout the Property, including the Lots, as set forth in the Zoning Commitments.
However, each Owner must keep the lawn located on its Lot clean and free of debris and free from animal
waste.
8.6. SNOW REMOVAL. The Association will hire a snow removal 'contractor to remove
snow from streets, driveways And sidewalks when warranted. However, the Association is not required to
cause snow to be removed unless at least 2" of snow has accumulated. No party may use any chemicals
to remove snow or ice from the Property.
8.7. PEST CONTROL. The Association will hire a pest control contractor to perform
spraying for pest control on the exterior perimeter of the foundation of the buildings once per year.
Owners will be responsible for any other pest control service the Owner deems necessary.
8.8. BALCONIES AND DECKS. Except for routine cleaning, which is the Owner's
responsibility, the Association is responsible for the maintenance, repair, and replacement of any
balconies and decks that are part of a Townhome. If the outside components of the Townhome are most
easily accessed through the Townhome, the Owner will cooperate in providing access to the outside
components to the Association's agents and contractors. If requested by the Association, the Owner will
remove all personal property from the outside components of his Townhome to facilitate the required
maintenance, repair, or replacement. The.Owner is liable to the Association for any additional expense
incurred by the Association due to an Owner's failure or refusal to cooperate with reasonable requests for
access or removal, This Section may not be construed to prevent an Owner at the Owner's sole expense,
without right of reimbursement from the Association, from maintaining, repairing, and replacing
components of his Townhome's balcony or deck, subject to the Association's architectural control.
8.9. WARRANTY CLAIMS. If Owner is the beneficiary of a warranty against defects in the
Area of Common Responsibility, Owner irrevocably appoints the Association, acting through the Board,
as his attorney -in -fact to file, negotiate, receive, administer, and distribute the proceeds of any claim
against the warranty that pertains to an Area of Common Responsibility.
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8.10. PARTY WALLS. A Townhome wall located on or near the dividing line between 2 Lots
and intended to benefit both Lots constitutes a Party Wall. To the extent not inconsistent with the,
provisions of this Section, the Party Wall is subject to the general rules of law regarding party walls and
liability for property damage due to negligence, willful acts, or omissions.
8.10.1. Encroachments and Easement. If the Party Wall is on one Lot or another due to
an error in construction, the midpoint of the Party Wall is 'nevertheless deemed to be on the
dividing line for purposes of this Section. Each Lot sharing a Party Wall is subject to the Owner's
Encroachment Easement (see above).
8.10.2. Right to Repair. If the Party Wall is damaged or destroyed from any cause, the
Owner of either Lot may repair or rebuild the Party Wall to its previous condition. The•Owners
of both Lots and their successors. and assigns will have the right to the full use of the repaired or
rebuilt Party Wall.
8.10.3. Maintenance Costs. The Owners of the adjoining Lots will share equally in the
costs of repair, reconstruction,, or replacement of the Party Wall, subject to the right of one Owner
to call for larger contribution from the other under any rule of law regarding liability for
negligence or willful acts or omissions, and subject to the two modifications below. If an Owner
is responsible for damage to or destruction of the Party Wall, that Owner will bear the entire cost
of repair, reconstruction, or replacement. If an Owner fails or refuses to pay his share of costs of
repair or replacement of the Party Wall, the Owner advancing monies has a right to file a claim of
lien for the monies advanced in the Office of the Recorder of Hamilton County, Indiana. The
right of an Owner to contribution from another Owner under this Section is appurtenant to the
land and passes to the Owner's successors in title.
8.10.4. Alterations. The Owner of a Lot sharing a Party Wall may not cut openings in
the Party Wall or alter or change the Party Wall in any manner. The Party Wall will always
remain in the same location as when originally erected.
8.11. OWNER'S DEFAULT IN MAINTENANCE. If the Board determines that an Owner has
failed to properly discharge his obligation to maintain, repair, and replace items for which the Owner is'
responsible, the Board may give the Owner written notice of the Association's intent to provide the
necessary maintenance at Owner's expense. The notice must state, with reasonable particularity, the
maintenance deemed necessary and a reasonable 'period of time in which to complete the work. If the
Owner fails or refuses to timely perform the maintenance, the Association may do so at Owner's expense,
which is an Individual Assessment against the Owner and his Lot. In case of an emergency, however, the
Board may, without giving the Owner written notice, take any action it deems necessary to protect
persons or property, the cost of the action being the Owner's expense.
ARTICLE 9
ARCHITECTURAL COVENANTS AND CONTROL
9.1. PURPOSE. Because the Lots are part of a single, unified community, this Declaration
creates rights to regulate the design, use, and appearance of the Lots and Common Areas in order to
preserve and enhance the Property's value and architectural harmony. One purpose of this Article is to
promote and ensure the level of taste, design, quality, and harmony by which the Property is developed
and maintained. Another purpose is to prevent improvements and modifications that may be generally
considered to be radical, curious, odd, bizarre, or peculiar in comparison to then existing improvements.
A third purpose is to regulate the appearance of every aspect of proposed or existing improvements on a
Lot, including but not limited to Townhomes, fences, landscaping, retaining walls, yard art, sidewalks and
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driveways, and further including replacements or modifications of original construction or installation..
During the Development Period, a primary purpose of this Article is to reserve and preserve Declarant's
right of architectural control.
9.2. PROHIBITION OF CONSTRUCTION. ALTERATION AND IMPROVEMENT.
Without the Architectural Reviewer's prior written approval, a person may not construct a Townhome or
make an addition, alteration, improvement, installation, modification, redecoration, or reconstruction of or
to the Property. However, an Owner may make non structural changes to the interior of a Townhome
(such as painting or installing wallpaper) without seeking the Architectural Reviewer's approval. The
Architectural Reviewer has the right but not the duty to evaluate every aspect of construction,
landscaping, and property use that may adversely affect the general value or appearance of the Property.
9.3. ARCHITECTURAL CONTROL DURING THE DEVELOPMENT PERIOD. During
the Development Period, all aspects of architectural control will be governed by Section B.3.3. of
Appendix B.
9.4. ARCHITECTURAL CONTROL BY ASSOCIATION. The Association has no
jurisdiction over architectural matters unless and until such time as Declarant delegates all or a portion of
its reserved rights to the Architectural Control Committee (the "ACC or the Development Period is
terminated or expires. On termination or expiration of the Development Period, or earlier if delegated in
writing by Declarant, the Association, acting through the ACC will assume jurisdiction over architectural
control.
9.4.1. ACC. The ACC will consist of at least 3 but not more than 7 persons appointed
by the Board, pursuant to the Bylaws. Members of the ACC serve at the pleasure of the Board
and may be removed and replaced at the Board's discretion. At the Board's 'option, the Board may
act as the ACC, in which case all references in the Governing Documents to the ACC are
construed to mean the Board. Members of the ACC need not be Owners or Residents, and may
but need not, include architects, engineers, and design professionals who may be paid for their
services, as determined from time to time by the Board.
9.4.2. Control for Variances. If the ACC is considering approval of an application that
seeks a variance or which, in the ACC's opinion, would constitute a variance of the Property's
established standards, the ACC must notify an Owner of each Lot of the nature of the proposed
variance at least 20 days before the ACC approves the application. The ACC may approve the
variance unless Owners of at least a majority of the Lots disapprove the proposed variance by
petition or at a meeting of the Association. This Section of the Declaration may not be amended
without the approval of Owners of at least 75% of the Lots.
9.4.3. Discretion; Limits on Liability for Decisions Made. The ACC has sole discretion
with respect to taste, design, and all standards specified by this Article. The members of the ACC
have no liability for the ACC's decisions made in good faith, and which are not arbitrary or
capricious. The ACC is not responsible for. (1) errors in or omissions from the plans and
specifications submitted to the ACC, (2) supervising construction for the Owner's compliance
with approved plans and specifications, or (3) the compliance of the Owner's plans and
specifications with Applicable Law.
BEFORE MAKING ANY IMPROVEMENT OR ALTERATION
TO A LOT OR TOWNHOME, A BUILDER OR OWNER
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MUST APPLY FOR WRITTEN APPROVAL.
I
9.5. ARCHITECTURAL APPROVAL: To request architectural approval, an Owner must
make written application and submit 2 identical sets of plans and specifications showing the nature, kind,
shape, color, size, materials, and locations of the work to be performed. The application must clearly
identify any requirement of this Declaration for which a variance is sought. The Architectural Reviewer
will return one set of'plans and specifications to the applicant marked with the Architectural Reviewer's
response, such as "Approved," "Denied," or "More Information Required." The Architectural Reviewer
will retain the other set of plans and specifications, together with the application, for the Architectural
Reviewer's files. The Architectural Reviewer's approval must be in writing to be effective. Verbal
approval by an Architectural Reviewer, the Declarant, an Association director or officer, a member of the
,ACC, or the Association's manager does not constitute architectural approval by the appropriate
Architectural Reviewer.
9.5.1. Deemed Approval. If the Architectural. Reviewer fails to respond in writing
negatively, affirmatively, or requesting information within 60 days after the Architectural
Reviewer's actual receipt of the Owner's application, the Owner may submit a second request for
processing of its original application. If the Board fails to respond within 45 days after the
Board's actual receipt of the Owner's second request, the Owner's application is deemed
approved. The Owner may then proceed with the improvement, provided the 'Owner adheres to
the plans and specifications that accompanied his application, and provided he initiates and
completes the improvement in a timely manner. In.exercising deemed approval, the burden is on
the Owner to document the Board's actual receipt of the Owner's initial application and second
request.
9.5.2. Building Permit. If the application is for work that requires a building permit
from the Municipal Entity, the Owner must obtain the appropriate permit. The Architectural
Reviewer's approval of plans and specifications does not mean that they comply with the
Municipal Entity's requirements. Alternatively, approval by governmental authorities does not
ensure Architectural Reviewer approval.
9.5.3. No Approval Required. No approval is required to rebuild a Townhome in
accordance with originally approved plans and specifications. Nor is approval required for an
Owner to remodel or repaint the interior of a Townhome, provided the work does not impair the
structural soundness of the building.
9.5.4. Declarant Approved. Notwithstanding anything to the contrary in this
Declaration, any improvement to the Property made by Declarant during the Development Period
is deemed to have been approved by the Architectural Reviewer.
9.6. ARCHITECTURAL GUIDELINES. Declarant (during the Development Period) and the
Association (thereafter) may publish architectural restrictions, guidelines, and standards, all of which may
be revised from time to time to reflect changes in technology, style, and taste.
9.7. PROHIBITED ACTS. The types of acts that may not be commenced without the
Architectural Reviewer's prior written approval include, but are not limited to, the following:
a. Installation of a receiving or transmitting tower, ornamental iron or burglar bars,
storm window or door, exterior lighting, storage shed, basketball goal, treehouse,
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free standing mailbox, trash can enclosure, patio cover, chimney, or skylight if
any are visible from another Townhome, Lot, or a street.
b. Installation of equipment that may create a noise annoyance, such as noise-
producing security devices, exterior pumps, and speakers.
c. Installation of walls, screens, awnings, fences, gates, or carports.
d. Enclosure of patios, balconies, yards, garages, or carports.
e. Installation of impermeable. decking or other improvement that may interfere
with established drainage patterns.
ARTICLE 10
USE RESTRICTIONS
10.1. VARIANCE. The use of the Property is subject to the restrictions contained in this
Article, and subject to Rules adopted pursuant to this Article. The Board or the Architectural Reviewer,
as the case may be, may grant a variance or waiver (either fully or with limits or conditions) of a
restriction or Rule on a case -by -case basis when unique circumstances dictate. To be effective, a variance
must be in writing. The grant of a variance does not become a waiver or estoppel of the Association's
right to deny a variance in other circumstances.
10.2. ASSOCIATION'S RIGHT TO PROMULGATE RULES. The Association, acting
through the Board, is granted the right to adopt, amend, repeal, and enforce reasonable Rules, and
penalties for infractions thereof, regarding the occupancy, use, disposition, maintenance, appearance, and
enjoyment of .the Property. Among other things, each Lot is owned and occupied subject to the right of
the Board to establish Rules, and penalties for infractions thereof, governing:
a. Use of Common Areas and Areas of Common Responsibility.
b. Hazardous, illegal, or annoying materials or activities on the Property.
c. The use of Property -wide services provided through the Association.
d. The consumption of utilities billed to the Association.
e. The use, maintenance,' and appearance of anything visible from the'street or other
Townhomes.
f. Landscaping and maintenance of yards.
g. The occupancy and leasing of Townhomes.
h. Animals.
i. Vehicles.
j. Disposition of trash and control of vermin, termites, and pests.
k. Anything that interferes with maintenance of the Property, operation of the
Association, administration of the Governing Documents, or _the quality of life
for Residents.
YES, THERE ARE LOTS OF RULES!
EVERY TRADITIONS ON THE MONON RESIDENT IS EXPECTED TO COMPLY
WITH THESE RULES AND WITH RULES ADOPTED BY THE BOARD OF
DIRECTORS.
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10,3, ANIMALS. No animal, bird, fish, reptile, or insect of any kind may be kept, maintained,
raised, or bred anywhere on the Property for food or for any commercial purpose. Customary
domesticated household pets may be kept subject to the Rules. The Board may adopt, amend, and repeal
Rules regulating the types, sizes, numbers, locations, and behavior of animals at the Property. If the
Rules fail to establish animal occupancy units, no more than 2 dogs, or 2 cats, or 1 dog and 1 cat (or such
lesser number as may be prescribed by the Municipal Entity) may be maintained in each Townhome.
Permission to maintain other types or additional numbers of household pets xiust be obtained in writing
from the Board. No pets may be left unattended outside of a Townhomne (including a deck or balcony),
The Board may require or cause the removal of any animal determined to be in violation the Rules. Each
Owner or Resident must clean any animal waste created by its pets anywhere on the Property.
BE COURTEOUS TO YOUR NEIGHBORS.
CLEAN UP AFTER YOUR PET.
10.4. ANNOYANCE. No Lot or Common Area may be used in any way that: (1) may
reasonably be considered annoying to neighbors; (2) may be calculated to reduce the desirability of the
Property as a residential neighborhood; (3) may endanger the health or safety of Residents of other
Townhomes; (4) may result in the cancellation of insurance on any portion of the Property; (5) violates
any law; or (6) creates noise or odor pollution. The Board has the sole authority to determine what
constitutes an annoyance.
CONTROL THE VOLUME.
Please be mindful of your neighbors' needs for quiet time at home.
10.5. APPEARANCE. Both the Lot and the Townhome must be maintained in a manner so as
not to be unsightly when viewed from the street or neighboring Lots. The Architectural Reviewer will
determine what constitutes acceptable appearance standards.
10.6. DECLARANT PRIVILEGES. In connection with the development and marketing of the
Property,. Declarant has reserved a number of rights and privileges to use the Property in ways that are not
available to other Owners and Residents, as provided in Appendix B of'this Declaration. DecIarant's
exercise of a Development Period right that appears to violate a Rule or a Use Restriction of this Article
does not constitute waiver or abandonment of the restriction by the Association.
10.7. DRAINAGE. Each Lot has a surface water drainage and grading pattern that relates to
the surface water drainage pattern for the entire Property. No person may interfere with the established
drainage pattern, systems and improvements over any part of the Property.
10.8. SIDEWALKS DRIVEWAYS. Sidewalks, driveways, and other passageways may not
be used for any purpose that interferes with their ongoing use as routes of vehicular or pedestrian access.
10.9. FIRE SAFETY. No person may use, misuse, cover, disconnect, tamper with, or modify
the fire and safety equipment of the Property, including fire hydrants, or interfere with the maintenance
and/or testing of same by persons authorized by the Association or by public officials.
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10.10. LANDSCAPING. No person or party (other than the Association) may perform,
landscaping, planting, or gardening anywhere upon the Property or any Lot.
10.11. LEASING OF TOWNHOMES. An Owner may lease his Townhome, but must do so
subject to the Governing Documents. Any lease must be for a minimum term of 12 months. An Owner is
responsible for providing his tenant with copies of the Governing Documents and notifying him of
changes thereto. The lease must provide that failure by the tenant or his invitees to comply with the
Governing Documents or applicable law is deemed to be a default under the lease. When the Association
notifies an Owner of his tenant's violation, the Owner will promptly obtain his tenant's compliance or
exercise his rights as a landlord for tenant's breach of lease. The Owner of a leased Townhome is liable to
the Association for any expenses incurred by the Association in connection with enforcement of the
Governing Documents against his tenant. The Association is not liable to the Owner for any damages,
including lost rents, suffered by the Owner in relation to the Association's enforcement of the Governing
Documents against the Owner's tenant.
NOT SOUNDPROOF
Although the Townhomes are constructed to reduce the
transmission of sound between adjoining Townhomes,
the Townhomes are not soundproofed. Some noise
transmission between adjoining Townhomes is possible.
10.12. NOISE AND ODOR, A Resident must exercise reasonable care to avoid making or
permitting to be made loud, disturbing, or objectionable noises or noxious odors that are likely to disturb
or annoy Residents of neighboring Townhomes. The Rules may limit, discourage, or prohibit noise or
odor producing activities and items in the Townhomes and on the Area of Common Responsibility.
NOT ODOR -PROOF
Do what you can, such as using kitchen vent fans or opening windows,
to reduce odors generated by your cooking.
10.13. OCCUPANCY. The Board may adopt Rules regarding the occupancy of Townhomes. If
the Rules fail to establish occupancy standards, no more than 2 persons per bedroom may occupy a
Townhome, subject to the exception for familial status. The Association's occupancy standard for
Residents who qualify for familial status protection under the fair housing .laws may not be more
restrictive than the minimum (i.e., the fewest people per Townhome) permitted by the U. S. Department
of Housing and Urban Development.
10.14. VEHICLES. This Section pertains to parking on streets and driveways: All vehicles on
the Property, whether owned or operated by the Residents or their families and guests, are subject to this
Section, the Section on "Parking below, and any Rules regulating the types, sizes, numbers, conditions,
uses, appearances, and locations of vehicles on the Property. Without prior written Board approval, the
following types of vehicles and vehicular equipment mobile or otherwise may not be kept, parked, or
stored anywhere on the Property: mobile homes, motor homes, buses, trailers, boats, snowmobiles,
trailers, aircraft, inoperable vehicles, commercial truck cabs, trucks with tonnage over one ton, vehicles
that are not customary personal passenger vehicles, and any vehicle that the Board deems to be a
nuisance, unsightly, or inappropriate. The Board may prohibit sales, storage, washing, repairs, or
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restorations of vehicles on the Property. This restriction does not apply to vehicles and equipment
temporarily on the Property in connection with the construction or maintenance of a Townhome.
Vehicles that transport inflammatory or explosive cargo are prohibited .from the Property at all times. No
vehicle may obstruct the flow of traffic, constitute a nuisance, or otherwise create a safety hazard on the
Property. The Association may cause the removal of any vehicle in violation of this Section, the Section
on "Parking below, or the Rules without liability to the owner or operator of the vehicle. The owner or
operator of the vehicle will be responsible for any towing charges.
10.15. GARAGES, The original garage area of a Townhome may not be enclosed or used for
any purpose that would prevent the parking of operable vehicles therein. The automatic garage door
opener is to be maintained by the Owner. Garage doors are to be kept closed at all times except when a
vehicle is entering or leaving.
YOU SHOULD PARK YOUR VEHICLES IN YOUR GARAGE;
10.16. PARKING. Residents are expected to park their vehicles in their garages, and use their
driveways only for temporary overflow parking. The Association has the right to prohibit or limit parking
on streets, and may impose different rules on different streets in the Property, or along sections or sides of
streets, and may change the street parking rules from time to time in response to changing conditions,
neighborhood standards, Municipal Entity recommendations, aesthetics, or any combination of these.
Unless and until the Board adopts different rules for street parking, no vehicle may be parked on any
street in the Property. The Board may authorize such vehicles and items parked in violation of this
provision to be towed away and the owner of the vehicle or operator will be responsible for any towing
charges.
10.17. RESIDENTIAL USE. The use of a Lot is limited exclusively to residential purposes or
any other use permitted by this Declaration. This residential restriction 'does not, however, prohibit a
Resident from using a Townhome for personal business or professional pursuits provided that: (1) the
uses are incidental to the use of the Townhome as a dwelling; (2) the uses conform to applicable
governmental ordinances; (3) there is no external evidence of the uses; (4) the uses do not entail visits to
the Townhome by employees or the public; and (5) the uses do not interfere with Residents' use and
enjoyment of neighboring Townhomes. Other than the completed Townhome itself, no thing or structure
on a Lot may be occupied as a residence at any time by any person. This provision applies, without
limitation, to the garage and campers.
10.18. SIGNS. No sign (other than a "For Sale" sign no larger than 24" high and 30" wide) or
unsightly object may be erected, placed, or permitted to remain on the Property or to be visible from
windows in the Townhome without the Board's prior written approval. The Board's approval may specify
the location, nature, appearance, dimensions, number, and time period of a sign or object. The
Association may effect the removal of any sign or object that violates this Section or which the Board
deems inconsistent with neighborhood standards without liability for trespass or any other liability
connected with the removal.
10.19. SPECIFIC USES. Except for ingress and egress, the front yards, sidewalks, and
driveways on the Property may not be used for any purpose that has not been authorized in writing by the
Board,
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10.20. STRUCTURAL INTEGRITY. No person may directly or indirectly impair the structural
soundness or integrity of a building or another Townhome (including by making modifications to a "party
wall nor do any work that will impair an easement or real property right.
10.21. TELEVISION RECEPTION. Each Resident of the Property will avoid doing or
permitting anything to be done that may unreasonably interfere with the television, radio, telephonic,
electronic, microwave, cable, or satellite reception on the Property. To the extent not inconsistent with
Applicable Law, no person may install exterior television or other antennae, including satellite dishes,
without the prior written consent of the Architectural Reviewer. To the extent allowed under Applicable
Law and approved by the Architectural Reviewer, such approved antennae or dish is referred to as the
"Antennae/Dish."
10.21.1.. Definitions. As used in this Section "Antenna/Dish Townhome" means the
Townhome served by a satellite dish or antenna, or the Townhome that is obviously intended to
be served, by a satellite dish or antenna, regardless of whether the service is operational.
"Antenna/Dish Owner" means the Owner of a Townhome served by a satellite dish or antenna,
regardless whether the Owner purchases, uses, or has actual knowledge of the satellite dish or
antenna.
10.21.2. Owner Responsibility. The installation of an Antenna/Dish on the Area of
Common Responsibility automatically subjects the Antenna/Dish Townhome and its Owner to
this Section, regardless of who installs the Antenna/Dish and regardless of whether the
Antenna/Dish Owner has actual notice of the installation. The Antenna/Dish Owner is solely
responsible for (1) the cost of maintaining, repairing, replacing, and removing, as necessary, the
Antenna/Dish, and (2) the cost of repairing Common Areas and/or the Area of Common
Responsibility if such repairs are necessitated by the Antenna/Dish or its installation,
maintenance, repair, or replacement, irrespective of whether the repairs are undertaken by the
Antenna/Dish Owner or the Association. If required by the Association, the Antenna/Dish Owner
will remove the Antenna/Dish, as necessary, to permit the Association to maintain, repair, or
replace Common Areas or the Area of Common Responsibility as the Association, in its sole
discretion, deems necessary or desirable.
10.21.3. Association Controls. To the extent permitted by Applicable Law, the
Association may adopt and amend reasonable standards for the color, appearance, location,
method of installation, maintenance, camouflaging, screening, and use of Antenna/Dishes. The
location and installation of an Antenna/Dish on the Area of Common Responsibility must have
the prior written approval of the Association, unless the location and installation comply with the
most current standards that have been adopted and published by the Association. No party will
have the right to install an Antenna/Dish on any portion of a building other than that party's own
Townhome.
10.21.4. Interference. An Antenna/Dish or the use of an Antenna/Dish may not
interfere with satellite or broadcast reception to other Townhomes or the Common Areas, or
otherwise be a nuisance to Residents of other Townhomes or to the Association. The Board of
Directors may determine what constitutes a nuisance to the Association.
10.21.5. Risk. An Antenna/Dish on the Area of Common Responsibility exists at the
sole risk of the Owner and/or occupant of the Antenna/Dish Townhome. The Association does
not insure the Antenna/Dish and is not liable to the Antenna/Dish Owner or any other person for
any loss or damage to the Antenna/Dish from any cause. The Antenna/Dish Owner will defend
and indenuzify the Association, its directors, officers, and Members, individually and collectively,
DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS
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against losses due to any and all claims for damages or lawsuits, by anyone, arising from his
Antenna/Dish,
10.22. WINDOW TREATMENTS. All window treatments within the Townhome that are
visible from the street or another Townhome must be maintained in good condition and must not detract
from the appearance of the Property. The Architectural Reviewer may require an Owner to change or
remove a window treatment that the Architectural Reviewer determines to be inappropriate or
unattractive. The Architectural Reviewer may prohibit the use of certain colors or materials for window
treatments.
10.23. BALCONIES AND DECKS. An Owner or Resident may not leave any item on his deck
or balcony, except as follows; Potted plants, deck or patio furniture (but not a patio umbrella) on
balconies and decks on the front of a Townhome; and potted plants, deck or patio furniture (but not a
patio umbrella) and a grill on balconies and decks on the back (the garage side) of a Townhome. The
Board may adopt Rules further limiting or describing what may be placed on decks and balconies.
ARTICLE 11
ASSOCIATION OPERATIONS
11.1. THE ASSOCIATION. The duties and powers of the Association are those set forth in the
Governing Documents, together with the general and implied powers of a property owners association
and a nonprofit corporation organized under the laws of the State of Indiana. Generally, the Association
may do any and all things that are lawful and necessary, proper, or desirable in operating for the peace,
health, comfort, and general benefit of its Members, subject only to the limitations on the exercise of such
powers as stated in the Governing Documents.
EVERY OWNER OF A TRADITIONS ON THE MONON TOWNHOME
AUTOMATICALLY BECOMES A MEMBER OF THE
TRADITIONS ON THE MONON HOMEOWNERS ASSOCIATION.
11.2, BOARD. The Association will be governed by a Board of Directors elected by- the
Members. Unless the Association's Bylaws or Articles of Incorporation provide otherwise, the Board will
consist of 5 persons elected at the annual meeting of the Association, or at a special meeting called for
that purpose. Unless the Governing Documents expressly reserve a right, action, or decision to the
Members /Owners, Declarant, or another party, the Board acts in all instances on behalf of the
Association. Unless the context indicates otherwise, references in the Governing Documents to the
"Association" may be construed to mean "the Association acting through its Board of Directors."
11.3. MEMBERSHIP. Each Owner is a Member of the Association, ownership of a Lot being
the sole qualification for membership. Membership is appurtenant to and may not..be separated from
ownership of the Lot. The Board may require satisfactory evidence of transfer of ownership before a
purported Owner is entitled to vote at meetings of the Association. If a Lot is owned by more than one
person or entity, each co -owner is a Member of the Association and may exercise the membership rights
appurtenant to the Lot; provided, however, that all co- owners may exercise only 1 vote per Lot, which
vote shall be exercised as such co- owners determine. A Member who sells his Lot under a land contract
may delegate his membership rights to the contract purchaser, provided a written assignment is delivered
to the Board. However, the contract seller remains liable for all Assessments attributable to his Lot until
fee title to the Lot is transferred.
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11.4. MANAGEMENT COMPANY. The Board may delegate the performance of certain,
functions to a manager or management company for the Association.
11.5. BOOKS AND RECORDS, The Association will maintain copies of the Governing
Documents and the Association's books, records, and financial statements, Books and records of the
Association will be made available for inspection and copying pursuant to the requirements of the Indiana
Nonprofit Corporation Act of '1991.
11.6. JNDBMNIFICATION. The Association indemnifies every officer, director, and
committee member (for purposes of this Section, "Leaders against expenses, including attorney's fees,
reasonably incurred by or imposed on the Leader in connection with any threatened or pending action,
suit, or proceeding to which the Leader is a party or respondent by reason of being or having been a
Leader. A Leader is not liable for a mistake of judgment. A Leader is liable only for his willful
misfeasance, malfeasance, misconduct, or actions taken in bad faith. This right to indemnification does
not exclude or limit any other rights to which present or former Leaders may be entitled as a matter of
law. As a Common Expense, the Association may maintain general liability and directors and officers
liability insurance to fund this obligation.
11.7. OBLIGATIONS OF OWNERS. Without limiting the obligations of Owners under the
Governing Documents, each Owner has the following obligations:
11.7.1. Information. Within 30 days after acquiring an interest in a Lot, within 30 days
after the Owner has notice of a change in any information required by this Subsection (such as a
change in Residents), and on request by the Association from time to time, an Owner will provide
the Association with the following information: (1) a copy of the recorded deed by which Owner
has title to the Lot; (2) the Owner's address, phone number, and driver's license number, if any;
(3) any Mortgagee's name, address, and loan number; (4) the name and phone number of any
Resident other than the Owner; and (5) the name, address, and phone number of Owner's
managing agent, if any.
11.7.2. Pay Assessments. Each Owner will pay Assessments properly levied by the
Association against the Owner or his Lot, and will pay Regular Assessments without demand by
the Association.
11.7.3. Comply. Each Owner will comply with the Governing Documents as amended
from time to time.
11.7.4. Reimburse. Each Owner will pay for damage to the Property caused by the
negligence or willful misconduct of the Owner, a Resident of the Owner's Lot, or the Owner or
Resident's family, guests, employees, contractors, agents, or invitees.
11.7.5. Liability. Each Owner is liable to the Association for violations of the Governing
Documents by the Owner, a Resident of the Owner's Lot, or the Owner or Resident's family,
guests, employees, agents, or invitees, and for costs incurred by the Association to obtain
compliance, including attorney's fees whether or not suit is filed.
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ARTICLE 12
ENFORCING THE GOVERNING DOCUMENTS
12,1. ENFORCEMENT. If an Owner violates the Governing Documents or damages the
Property, the Association may exercise all rights and remedies available under the Governing Documents
and Applicable Law.
12.2. REMEDIES. The remedies provided in this Article for breach of the Governing
Documents are cumulative and not exclusive. In addition to other rights and remedies provided by the
Governing Documents and by law, the Association has the following rights to enforce the Governing
Documents:
12.2.1. Nuisance. If an act or omission that violates any provision of the Governing
Documents is a nuisance, any remedy allowed by law against a nuisance is applicable against the
violation.
12.2.2. Fine. The Association may levy reasonable charges, as an Individual
Assessment, against an Owner and his Lot if the Owner or Resident, or the Owner or Resident's
family, guests, employees, agents, or contractors violate a provision of the Governing
Documents. Fines may be levied for each act of violation or for each day a violation continues.
The fact that Owner pays a fme for a violation does not give the Owner the right to continue the
violation. Payment of a fme does not constitute a waiver or discharge of the Owner's obligations
under the Governing Documents.'
12.2.3, Suspension. For any period during which the Owner or Resident, or the Owner
or Resident's family, guests, employees, agents, or contractors violate the Governing Documents,
the Association may suspend the right of Owners and Residents (i) to use Common Areas (except
rights of ingress and egress); and (ii) to vote on matters presented to the Owners. A suspension
does not constitute a waiver or discharge of the Owner's obligations under the Governing
Documents.
12.2.4. Self-Help. In certain limited circumstances, as limited by Applicable Law, the
Association may have the right to enter onto a Lot, but not inside a Townhome, to abate or
remove, any sign, structure, vehicle or condition that violates the Documents. Prior to exercising
such right,' the Board will give the violating Owner 5 days' notice of its its intent to exercise self
help. In exercising this right, the Board is not trespassing and is not liable for damages relating to
its actions, provide it acts reasonably. The Board may levy its costs of abatement against the Lot
and Owner as an Individual Assessment.
12.2.5. Suit. Failure to comply with the Governing Documents will be grounds for an
action to recover damages or for injunctive relief to cause any such violation to be remedied, or
both. Prior to commencing any legal proceeding, the Association will give the defaulting party
reasonable notice and an opportunity to cure the violation.
12.3. BOARD DISCRETION. The Board may use its sole discretion in determining whether
to pursue a violation of the Governing Documents, provided the Board does not act in an arbitrary or
capricious manner, In evaluating a particular violation, the Board may determine that under the particular
circumstances (1) the Association's position is not sufficiently strong to justify taking any or further
action; (2) the provision being enforced is or may be construed as inconsistent with applicable law;
(3) although a technical violation may exist, it is not of such a material nature as to be objectionable to a
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ARTICLE 13
INSURANCE
reasonable person or to justify expending the Association's resources; or (4) that enforcement is not hi the
Association's best interests, based on hardship, expense, or other reasonable criteria.
STATE LAW APPLIES
to many of the Association's enforcement rights and remedies.
12.4. NO WAIVER. The Association and every Owner has the right to enforce all restrictions,.
conditions, covenants, liens, and charges now or hereafter imposed by the Governing Documents. Failure
by the Association or by any Owner to enforce a provision of the Governing Documents is not a waiver of
the right to do so thereafter. If the Association does waive the right to enforce a provision, that waiver,
does not impair the Association's right to enforce any other part of the Governing Documents at any
future time. No officer, director, or Member of the Association is liable to any Owner for the failure to
enforce any of the Governing Documents at any time.
12.5. RECOVERY OF COSTS. The costs of curing or abating a violation are the expense of
the Owner or other person responsible for the violation. If legal assistance is obtained to enforce any
provision of the Governing Documents, or in any legal proceeding (whether or not suit is brought) for
damages or for the enforcement of the Governing Documents or the restraint of violations of the
Governing Documents, the prevailing party is entitled to recover from the non prevailing party all
reasonable and necessary costs incurred by it in such action, including reasonable attorneys' fees.
13.1. GENERAL PROVISIONS. The broad purpose of this Article is to require that the
Property be insured with the types and amounts of coverage that are customary for similar types of
properties and that are acceptable to mortgage lenders, guarantors, or insurers that finance the purchase or
improvement of Townhomes. Because the insurance requirements of mortgage underwriters are subject to
change, as are State promulgated insurance regulations and policies, this Article tries to balance the .need
for certain minimum insurance requirements with the desire to adapt to a periodically changing insurance
environment. The Board will make every reasonable effort to comply with the requirements of this
Article. The Association, and its directors, officers, and managers, will not be liable for failure to obtain
any coverage required by this Article or for any loss or damage resulting from such failure if the failure is
due to the unavailability of a particular coverage from reputable insurance companies, or if the coverage
is available only at a demonstrably unreasonable cost. The cost of insurance coverage and bonds
maintained by the Association is a Common Expense.
13.1.1. Requirements Applicable to All Coverage. Insurance policies and bonds
obtained and maintained by the Association must be issued by responsible insurance companies
authorized to do business in the State of Indiana. The Association must be the..nalned insured on
all policies obtained by the Association. The loss payee clause should show the Association as
trustee for each Owner and Mortgagee. Policies of property and general liability insurance
maintained by the Association must provide that the insurer waives its rights to subrogation under
the policy against an Owner. The Association's insurance policies should provide that such
policies will not be prejudiced by the act or omission of any Owner or Resident who is not under
the Association's control.
13.1.2. Association as Trustee. Each Owner hereby irrevocably appoints the
Association, acting through its Board, as trustee to deal With the Property in the event of damage,'
DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS
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destruction, obsolescence, condemnation, or termination of all or any part of the Property. As,
trustee, the Association will have full and complete authority, right, and power to do all things,
reasonable and necessary to effect the provisions of this Declaration, including, without
limitation, the right to receive, administer, and distribute funds, awards, and insurance proceeds;
and to make, execute, and deliver any contract, deed, or other instrument with respect to the
interest of an Owner.
13.1.3. Notice of Cancellation or Modification. Each insurance policy maintained by the
Association should contain a provision requiring the insurer to give prior written notice to the
Board before the policy may be canceled, terminated, materially modified, or allowed to expire,
by either the insurer or the insured. The Board will give to Eligible Mortgagees, and the insurer
will give to Mortgagees, prior notices of cancellation, termination, expiration, or material
modification.
13.1.4. Deductibles, An insurance policy obtained by the Association may contain a
reasonable deductible, and the amount thereof may not be subtracted from the face amount of the
policy in determining whether the policy limits satiefy the coverage limits required by this
Declaration or an Underwriting Lender. In the event of an insured loss, the deductible is treated
as a Common Expense of the Association in the same manner as the insurance premium.
However, if the Board reasonably determines that the loss is the result of the negligence or willful
misconduct of an Owner or Resident or their invitee, then the Board may levy an Individual
Assessment against the Owner and his Townhome for the amount of the deductible that is
attributable to the act or omission.
13.2. PROPERTY INSURANCE. The Association will obtain blanket all -risk insurance, if
reasonably available, for all improvements insurable by the Association. If blanket all -risk insurance is
not reasonably available, then at a minimum, the Association will obtain an insurance policy providing
fire and extended coverage. This insurance must be in an amount sufficient to cover 100% of the
replacement cost of any repair or reconstruction in event of damage or destruction from any insured
hazard.
13.2.1. Common Property Insured. The Association will insure Common Areas and
property owned by the Association, including any records, furniture, fixtures, equipment, and
supplies.
13.2.2. Townhomes Insured by Association. In addition to insuring the Common Areas
against casualty loss, the Association will maintain property insurance on the Townhomes as
originally constructed. The Association may insure betterments and improvements installed by
current or previous Owners. In insuring Townhomes, the Association may be guided by types of
policies customarily available for similar types of properties.
13.2.3. Endorsements. To the extent reasonably available, the Association will obtain
endorsements to its property insurance policy required by an Underwriting Lender.
13.3. LIABILITY INSURANCE. The Association will maintain a commercial general liability
insurance policy over the Common Areas expressly excluding the liability of each Owner and Resident
within his Townhome for bodily injury and property damage resulting from the operation, maintenance,
or use of the Common Area. To the extent reasonably available, the amount of coverage should be at
least that required by an Underwriting Lender. The purpose of this requirement is, in part, to assure
mortgage companies that the Association maintains at least minimum levels of insurance coverage. The
policy should contain a "severability of interest" provision. If that is not available, the policy should
DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS
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64701.3
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contain an endorsement to preclude the insurer's denial of an Owner's claim because of negligent acts of
the Association or other Owners.
13.4. WORKER'S COMPENSATION. The Association may maintain worker's compensation
insurance if and to the extent necessary to meet the requirements of State law or if the Board so chooses.
13.5. FIDELITY COVERAGE. The Association may maintain blanket fidelity coverage for
any person who handles or is responsible for funds held or administered by the Association, whether or
not the person is paid for his Services. The policy should be for an amount that exceeds the greater of
(1) the estimated maximum funds, including reserve funds, that will be in the Association's custody at any
time the policy is in force; or (2) an amount equal to 3 months of Regular Assessments on all Lots. A
management agent that handles Association funds should provide evidence of carrying its own .fidelity
insurance policy, with the same level of coverage.
13.6. DIRECTORS AND OFFICERS LIABILITY. The Association may maintain directors
and officers liability •insurance, errors and omissions insurance, indemnity. bonds; or other insurance the
Board deems advisable to insure the Association's directors, officers, committee members, and managers
against liability for an act or omission in carrying out their duties in those capacities.
13.7. OTHER POLICIES. The Association may maintain any insurance policies and bonds
deemed by the Board to be necessary or desirable for the benefit of the Association.
13.8. OWNER'S RESPONSIBILITY FOR INSURANCE.
13.8.1. Insurance by Owners. Notwithstanding the foregoing, the Board may establish
minimum insurance requirements, including types and minimum amounts of coverage, to be
individually obtained and maintained by Owners if the insurance is deemed necessary or
desirable by the Board to reduce potential risks to the Association or other Owners. If an Owner
fails to maintain required insurance, the Board may obtain it on behalf of the Owner who will be
obligated for the cost as an Individual Assessment.
13.8.2. Owners' Responsibilities. On request, an Owner will give the Board written
notification of any and all structural changes, additions, betterments, or improvements to his
Townhoie, and any other information the Board may require to maintain adequate levels of
insurance coverage. Each Owner will comply with reasonable requests by the Board for periodic
inspection of the Townhome for purposes of insurance appraisal. Each Owner, at his expense,
will maintain any insurance coverages required of Owners by the Association pursuant to this
Article. Each Owner, at his expense, must obtain additional insurance coverage of his real
property, improvements, and betterments thereto, or personal property.
13.8.3. Association Does Not Insure. The Association does not insure an Owner or
Resident's personal property. Each Owner and Resident is solely responsible for insuring his
personal property in his Townhome and on the Property, including furnishings, vehicles, and
stored items.
The 'Association strongly recommends that each Owner and Resident
purchase and maintain insurance on his personal belongings.
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TRADTl'IONS ON THE MONON
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ARTICLE 14
RECONSTRUCTION OR REPAIR AFTER LOSS
14.1. GENERAL. Any insured portion of the Townhomes that is damaged or destroyed will be
promptly repaired or replaced by the Association unless repair or replacement would be illegal under any
State or local health or safety statute or ordinance, or if Owners of at least 80% of the Lots, including each
Owner of a Lot that will not be rebuilt or repaired, vote to not rebuild. A vote to not rebuild should not
change an insurer's loss payment obligation under a policy, and the vote does not cause a presumption of
total loss. Except in specific circumstances set out in this Declaration, the cost of repair or replacement in
excess of the insurance proceeds and reserves is a Common Expense. If some but not all of the damaged
Townhomes are not repaired or replaced, the insurance proceeds attributable to Townhomes that are not
rebuilt will be distributed to the Owners of those Townhomes or to their Mortgagees, as their interests
may appear.
14.2. RESTORATION FUNDS. For purposes of this Article, "Restoration Funds" include
insurance proceeds, condemnation awards, Restoration Assessments, Individual Assessments, and other
funds received' on account of or arising .out of injury or damage to the Property. All funds paid to the
Association for purposes of repair or restoration will be deposited in a federally- insured account.
Withdrawal of Restoration Funds requires the signatures of at least 2 Association directors or that of an
agent duly authorized by the Board.
14.2.1. Sufficient Proceeds. If Restoration Funds obtained from insurance proceeds or
condemnation awards are sufficient to repair or restore the damaged or destroyed property, the
Association, as trustee for the Owners, will promptly apply the funds to the repair or restoration.
14.2.2. Insufficient Proceeds. If Restoration Funds are not 'sufficient to pay the
estimated or actual costs of restoration as determined by the Board, the Board will apply the
funds available to the repair or restoration and may levy a Restoration Assessment against certain
or all of the Owners, as appropriate, to fund the difference.
14.2.3. Loss Not Covered. Even if the Association and the Owner have adequate
amounts of recommended and required coverage, the Property may experience a loss that is not
covered by any insurance. (In this context, "not covered by any insurance" is not referring to the
portion of a loss that is not covered due to the operation of a deductible under the insurance
policy.) If that occurs, the cost of restoring the Common Areas will be share by Owners as a
Common Expense. The cost of restoring individual Townhomes will be borne by the Owners of
the affected Townhomes.
14.2.4. Surplus Funds. If the Association has a surplus of Restoration Funds after
payment of all costs of repair and restoration, the surplus will be applied as follows. If
Restoration Assessments were a source of Restoration Funds, the surplus will be paid to Owners
in proportion to their contributions resulting from the Restoration Assessment levied against
them. However, no Owner may receive a sum greater than that actually contributed by him, and
any delinquent Assessments owed by the Owner to the Association will first be deducted from the
surplus. Any surplus remaining after the disbursement described in this paragraph will be
common funds of the Association to be used as directed by the Board.
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14.3. COSTS AND PLANS.
14.3.1. Cost Estimates. Promptly after the loss, the Board' will obtain reliable and
detailed estimates of the cost of restoring the damaged Property. Costs may include premiums for
bonds and fees for the services of professionals, as the Board deems necessary, to assist in
estimating and supervising the repair.
14.3.2. Plans and Specifications. Common Areas will be repaired and restored
substantially as they existed immediately prior to the damage or destruction. Townhomes will be
repaired and restored substantially in accordance with original construction plans and
specifications, unless the Association insures betterments and improvements made by Owners, in
which case the Townhomes will be repaired and restored substantially as they existed
immediately prior to the damage or destruction. Alternate plans and specifications 'for repair and
restoration, of either Common Areas or Townhomes must be approved by the Architectural
Reviewer, by the Owners of at least 2/3 of the Lots and by certain Mortgagees if so required by
the "Mortgagee Protection" article of this Declaration.
14.4. DUTY TO REPAIR.
14.4.1. Damage to Common Area. After a casualty or condemnation affecting the
Common Area, the Association is responsible for restoring the Common Areas to its original
condition,.with the cost being borne by the Owners as a Common Expense.
14.4.2. Damage to a Townhome. After a casualty or condemnation to a Townhome, the
Owner of a damaged Townhome is responsible for repairing or restoring his Townhome to its
original condition. The Owner may be required to do so either with proceeds of the Association's
insurance coverage or at his own expense, as set forth elsewhere in this Article. The Association
has the right to supervise, approve, or disapprove the repair or restoration performed by an Owner
during the course thereof.
14.4.3. Association's Right to Coordinate Work. If the work of restoring a Townhome is
of such a nature that it requires the cooperation of more than one Owner (for example, because of
work to be performed to a Party Wall or to a roof structure) or if the Association otherwise deems
it in the best interest of the Property, the Association, at its option, may notify Owner that the
Association will coordinate the restoration work for the affected Townhome, in which case the
Owner will no longer have the right to perform the work. In assuming the coordination role for
the work, the Association may provide that it will coordinate only joint elements of the
construction (elements affecting more than one unit), only exterior elements or any other
reasonably divisible part of the work, leaving the remainder of the work to be: coordinated and
performed by the Owner. In any case, the cost of the repair or restoration will be borne and
allocated as set forth elsewhere in this Article.
14.4.4. Failure to Repair. If an Owner fails to repair or restore damage as required by
this Section, the Association may cause the necessary repairs to be made and levy an Individual
Assessment against the Owner and Lot for the cost thereof, after giving the Owner reasonable
notice of the Association's intent to do so.
14.4.5. Diligence in Performing Work. Regardless of who performs the ,repair or
restoration work, the work must commence within a reasonable time (less than 30 days) after
receipt of notice from the Association that the work must commence. (Generally speaking, this
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64701.3
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notice will not be given until the insurance company for the loss is prepared to pay out the.
proceeds.) The work must then be completed with reasonable diligence.
14.5. OWNER'S LIABILITY FOR INSURANCE DEDUCTIBLE. If repair or restoration of a
Townhome is required as a result of an insured loss, the Board may levy an Individual Assessment, in the
amount of the insurance deductible, against the Owner or Owners who would be responsible for the cost
of the repair or reconstruction in the absence of insurance.
ARTICLE 15
CONDEMNATION
15.1. CONDEMNATION. If any Townhome, Lot or portion thereof or any of the Common
Area is made the subject of a condemnation or eminent domain proceeding or is otherwise sought to be
acquired by a condemning authority, then the Association will give timely written notice of such
proceeding or proposed acquisition to the, affected Owners and Eligible Mortgagees. The Association
will represent the Owners in any condemnation proceeding or any negotiation settlements or agreements
with the condemning authority for acquisition of the Common Area or any part thereof. The
condemnation award or proceeds of settlement will be payable to the Association to be held in trust for
the Owners and Mortgagees as their interests may appear. The provisions of the Declaration relating to
restoration and application of funds in the event of a casualty will be applicable in the event of a
condemnation.
ARTICLE 16
MORTGAGEE PROTECTION
16.1. INTRODUCTION. This Article is supplemental to, not a substitution for, any other
provision of the Governing Documents. In case of conflict, this Article controls. Some sections of this
Article apply to "Mortgagees" and "Eligible Mortgages both as defined in Article 1.
16.2. AMENDMENT TO SATISFY REQUIREMENTS OF UNDERWRITING LENDERS.
This Article establishes certain standards for the benefit of Underwriting Lenders, and is written to
comply with their requirements and guidelines in effect at the time of drafting. If an Underwriting Lender
subsequently changes its requirements, the Board, without seeking approval of Owners or Mortgagees,
may amend this Article and other provisions of the Governing Documents, as necessary, to meet the
requirements of the Underwriting Lender.
16.3. NOTICE REGARDING EXISTENCE OF MORTGAGEE. An Owner who mortgages
his Lot should notify the Association, giving the complete name and address of his Mortgagee and the
loan number. A Mortgagee may also provide such information directly to the Association. In either case,
the Mortgagee will become an Eligible Mortgagee. The Association will treat the notice as the Eligible
Mortgagee's request to be notified of any proposed action requiring the consent of Eligible Mortgagees.
The Association's obligations to Mortgagees under the Governing Documents extend_ only to Eligible
Mortgagees. All actions and approvals required by Mortgagees will be conclusively satisfied by the
Eligible Mortgagees, without regard to other holders of mortgages on Lots not known to the Association.
A provision of the Governing Documents requiring the approval of a specified percentage of Eligible
Mortgagees will be based on the number of Lots subject to mortgages held by Eligible Mortgagees, For
example, "51% of Eligible Mortgagees" means Eligible Mortgagees of 51% of the Lots that are subject to
mortgages held by Eligible Mortgagees.
16.4. IMPLIED APPROVAL. The approval of an Eligible Mortgagee is implied when the
Eligible Mortgagee fails to respond within 30 days after receiving the Association's written request for
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approval of a proposed amendment, provided the Association's request is delivered by certified or.
registered mail, return receipt requested.
16.5. OTHER MORTGAGEE RIGHTS.
16.4.1. Inspection of Books. The Association will maintain current copies of the
Governing Documents and the Association's books, records, and financial statements.
Mortgagees may inspect the Governing Documents and records, by appointment, during normal
business hours.
16.4.2. Financial Statements. If the Property consists of 50 Lots or more, and if a
Eligible Mortgagee submits a written request, the Association will give the Mortgagee a reviewed
or audited statement for the preceding fiscal year within 120 days after the Association's fiscal
year -end. A Mortgagee may have an audited statement prepared at its own expense.
16.4,3. Attendance at Meetings, A representative of an Eligible Mortgagee may attend
and address any meeting that an Owner may
16.4.4. Management Contract. Any contract for professional management of the
Association may not require more than 30 days' notice to terminate the contract, nor payment of a
termination penalty.
16.6. INSURANCE .POLICIES. If an Underwriting Lender that holds a mortgage on a Lot or
desires to finance a Lot has requirements for insurance of planned unit developments, the Association
must try to obtain and maintain the required coverages, to the extent they are reasonably available, and
must try to comply with any notifications or processes required by the Underwriting Lender.
16.7. NOTICE OF ACTIONS. The Association will use its best efforts to send timely written
notice to Eligible Mortgagees of the following actions:
a. Any condemnation or casualty loss that affects a material portion of the Property
or the mortgaged Townhome.
b. Any 60 -day delinquency in the payment of Assessments or charges owed by the
Owner of the mortgaged Townhome.
c. A lapse, cancellation, expiration or material modification of any .insurance policy
maintained by the Association.
d. Any proposed action that requires the consent of a specified percentage of
Eligible Mortgagees.
e. Any proposed amendment of a material nature, as provided in this Article.
ARTICLE 17
AMENDMENTS
17.1. CONSENTS REOUIRED. As permitted by this Declaration, certain amendments of this
Declaration may be executed by Declarant alone, or by certain Owners alone, or by the Board alone.
Otherwise, amendments to this Declaration must be approved by Owners of at least 2/3 of the Lots.
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17.2. METHOD OF AMENDMENT. This Declaration may be amended by any method
selected by the Board from time to time, pursuant to the Bylaws, provided the method gives an Owner of,
each Lot the substance, if not exact wording, of the proposed amendment,, a description in layman's terms
of the effect of the proposed amendment, and an opportunity to vote for or against the proposed
amendment.
17.3. EFFECTIVE. To be effective, an amendment must be in the form ofa written instrument
(1) referencing the name of the Property, the name of the Association, and the .recording data of this
Declaration and its prior amendments; (2) signed and acknowledged by an officer of the Association,
certifying the requisite approval of Owners; and (3) recorded in the Office of the Recorder of Hamilton
County, Indiana.
17.4. DECLARANT PROVISIONS. No amendment may affect Declarant's rights under this
Declaration without Declarant's written and acknowledged consent, which must be part of the recorded
amendment instrument. This Section may not be amended without Declarant's written and acknowledged
consent.
ARTICLE 18
DISPUTE RESOLUTION
18.1. INTRODUCTION AND DEFINITIONS. The Association, the Owners, Declarant, all
persons subject to this Declaration, and any person not otherwise subject to this Declaration who agrees to
submit to this Article (collectively, the "Parties agree to encourage the amicable resolution of disputes
involving the Property and to avoid the emotional and financial costs of litigation if at all possible.
Accordingly, each Party hereby covenants and agrees that this Article applies to all claims as hereafter
defined. As used in this Article only, the following words, when capitalized, have the following specified
meanings:
18.1.1 "Claim" means any claim, grievance, or dispute between Parties involving the
Property, except Exempt Claims (as defined below). "Claims" include, without limitation:
a. Claims arising out of or relating to the interpretation, application, or
enforcement of the Governing Documents.
b. Claims relating to the rights and/or duties of Declarant as Declarant
under the Governing Documents.
c. Claims relating to the design, construction, or maintenance of the
Property.
18.1.2 "Claimant" means any Party having a Claim against any other Party.
18.1.3 "Exempt Claims" means the following claims or actions, which are exempt from
this Article (unless the Party having the Exempt Claim elects not to treat it as exempt from this
Article):
a. The Association's claim for Assessments, and any action by the
Association to collect Assessments.
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b. An action by a Party to obtain a temporary restraining order or equivalent
emergency equitable relief to maintain the status quo and preserve the
Party's ability to enforce the provisions of this Declaration.
c. Enforcement of the easements, architectural control, maintenance, and
use restrictions of this Declaration.
d. A suit to which an applicable statute of limitations would expire within
the notice period of this Article, unless a Party against whom the Claim
is made agrees to toll the statute of limitations as to the Claim for the
period reasonably necessary to comply with this Article,
e. A dispute that is subject to alternate dispute resolution such as
mediation or arbitration by the terms of Applicable Law or another
instrument, such as a contract or warranty agreement, in which case the
dispute is exempt from this Article, unless the Parties agree to have the
dispute governed by this Article.
18.1.4 "Respondent" means the Party against whom the Claimant has a Claim.
18.2. MANDATORY PROCEDURES. Claimant may not file suit in any court or initiate any
proceeding before any administrative tribunal seeking redress or resolution of its Claim until Claimant has
complied with the procedures of this Article.
18.3. NOTICE. Claimant must notify Respondent in writing of the Claim (the "Claim
Notice stating plainly and concisely: (1) the nature of the Claim, including date, time, location, persons
involved, and Respondent's role in the Claim; (2) the basis of the Claim (i.e., the provision of the
Governing Documents or other authority out of which the Claim arises); (3) what Claimant wants
Respondent to do or not do to resolve the Claim; and (4) that the Claim Notice is given pursuant to this
Section.
18.4. NEGOTIATION. Claimant and Respondent will make every reasonable effort to meet in
person to resolve the Claim by good faith negotiation. Within 30 days after Respondent's receipt of the
Claim Notice, Respondent and Claimant will meet at a mutually acceptable place and time to discuss the
Claim. At such meeting or at some other mutually- agreeable time, Respondent. and Respondent's
representatives will have full access to the property that is subject to the Claim for the purposes of
inspecting the property. If Respondent elects to take corrective action, Claimant will provide Respondent
and Respondent's representatives and agents with full access to the property to take and complete
corrective action.
18.5. MEDIATION. If the parties negotiate but do not resolve the Claim through negotiation
within 60 days from the date of the Claim Notice (or within such other period as may be_agreed on by the
parties), Claimant will have 30 additional days within which to submit the Claim to mediation under the
auspices of a mediation center or individual mediator on which the parties mutually agree. The mediator
must have at least 5 years of experience serving as a mediator and must have technical knowledge or
expertise appropriate to the subject matter of the Claim. If Claimant does not submit. the Claim to
mediation within the 30-day period, Claimant is deemed to have waived the Claim, and Respondent is
released and discharged from any and all liability to Claimant on account of the Claim.
18.6. TERMINATION OF MEDIATION. If the Parties do not settle the Claim within 30 days
after submission to mediation, or within a time deemed reasonable by the mediator, the mediator will
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issue a notice of termination of the mediation proceedings indicating that the Parties are at an impasse and
the date that mediation was terminated. Thereafter, Claimant may file suit or initiate administrative
proceedings on the Claim, as appropriate.
18.7. ALLOCATION OF COSTS. Except as otherwise provided in this Section, each Party
bears all of its own costs incurred prior to and during the proceedings described in the Claim Notice,
Negotiation, and Mediation sections above, including its attorneys fees. Respondent and Claimant will
equally divide all expenses and fees charged by the mediator.
18.8. ENFORCEMENT OF RESOLUTION. Any settlement of the Claim through negotiation
or mediation will be documented in writing and signed by the Parties. If any Party thereafter fails to
abide by the terms of the agreement, then the other Party may file suit or initiate administrative
proceedings to enforce the agreement without the need to again comply with the procedures set forth in
this Article. In that event, the Party taking action to enforce the agreement is entitled to recover from the
non complying Party all costs incurred in enforcing the agreement, including, without limitation,
attorneys fees and court costs.
18.9. GENERAL PROVISIONS. A release or discharge of Respondent from liability to
Claimant on account of the Claim does not.release Respondent from liability to persons who are not party
to Claimant's Claim.
18.10. LITIGATION APPROVAL AND SETTLEMENT. In addition to and notwithstanding
the above alternate dispute resolution procedures, the Association may not initiate any judicial or
administrative proceeding without the prior approval of Owners of at least 75% of the Lots, except that no
such approval is required (1) to enforce provisions of this Declaration, including collection of
assessments; ,(2) to challenge condemnation proceedings; (3) to enforce a contract against a contractor,
vendor, or supplier of goods or services to the Association; (4) to defend claims filed against the
Association or to assert counterclaims in a proceedings instituted against the Association; or (5) to obtain
a temporary restraining order or equivalent emergency equitable relief when circumstances do not provide
sufficient time to obtain the prior consents of Owners in order to preserve the status quo. Also, the
Association may not initiate any judicial or administrative proceeding against Declarant without the
approval of Owners of at least 75% of the Lots. The Board, on behalf of the Association and without the
consent of Owners, is hereby authorized to negotiate settlement of litigation, and may execute any
document related thereto, such as settlement agreements and waiver or release of claims.. This Section
may not be amended without the approval of Owners of at least 75% of the Lots and 51% of Eligible
Mortgagees, as described in Article 16 above,
ARTICLE 19
GENERAL PROVISIONS
19.1. COMPLIANCE WITH LAWS. The Owners hereby covenant and agree that the
administration of the Association will be in accordance with the provisions of the Governing Documents
and applicable laws, regulations, and ordinances, as same may be amended from time to time, of any
governmental or quasi governmental entity having jurisdiction over the Association or Property.
19.2. HIGHER AUTHORITY. The Governing Documents are subordinate to Applicable Law.
Generally, the terms of the Governing Documents are enforceable to the extent they do not violate or
conflict with Applicable Law.
19.3. NOTICE. All demands or other notices required to be sent to an Owner or Resident by
the terms of this Declaration will be sent by ordinary or certified mail, postage prepaid, to the party's last
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known address as it appears on the records of the Association at the time of mailing. If an Owner fails to
give the Association an address for mailing notices, all notices may be sent to the Owner's Lot, and the,
Owner is deemed to have been given notice whether or not the Owner actually receives it.
19.4. LIBERAL CONSTRUCTION. The terms and provision of each Document are to be
liberally construed to give effect to the purposes and intent of the Document.. All doubts regarding a
provision, including restrictions on the use or alienability of property, will be resolved in favor of the
operation of the Association and its enforcement of the Governing Documents, regardless of which party
seeks enforcement.
19.5. SEVERABILITY; ENUMERATED MATTERS. Invalidation of any provision of this
Declaration by judgment or court order does not affect any other provision, which remains in full force
and effect. The effect of a general statement is not limited by the enumeration of specific matters similar
to the general statement.
19.6. CAPTIONS. In all Governing Documents, the captions of articles and sections are
inserted only for convenience and are in no way to be construed as defining or modifying the text to
which they refer. Boxed notices are inserted to alert the reader to certain provisions and are not to be
construed as defining or modifying the text.
19.7. INTERPRETATION. Whenever used in the Governing Documents, unless the context
provides otherwise, a reference to a gender includes all genders. Similarly, a reference to the singular
includes the plural, the plural the singular, where the same would be appropriate.
19.8. DURATION. Unless terminated or amended by Owners as permitted herein, the
provisions of this Declaration run with and bind the Property, and will remain in effect perpetually to the
extent permitted by law.
19.9. CONTROLLING DOCUMENT. If there is a conflict between the provisions of this
Declaration and the Plat, the terms of this Declaration will control. "Conflict" means a. situation where
the application of the language in one document contradicts the language in another document. Conflict
does not occur where language in one document is simply more restrictive than language in another
document.
19.10. APPENDIXES. The following appendixes are attached to this Declaration and
incorporated herein by reference:
A Description of Property
B Declarant Reservations
C Commitments Concerning the Use or Development of Real Estate
D Cool Creek Trail Extension Easement
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SIGNED on this day of
My Commission Expires:
My County of Residence:
2005.
CENTEX HOMES,
a Nevada general partnership
By: Centex R state orpo ation,
a Nev
its
THE STATE OF INDIANA
SS:
COUNTY OF MARION
This instrument was acknowledged before me on the day of 2005, by
Timothy K. McMahon, Indianapolis Division President of Centex Real Estate orporation, a Nevada
corporation, on behalf of the corporation, in its capacity as managing general partner of Centex Homes, a
Nevada general partnership, on behalf of the general partnership.
IAA
Notary Pub l- Signatu
P rry U kV ql0 n s
Notary blic Printed
DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS
TRADITIONS ON THE MONON
64701.3
Timothy K. McMahon
Indianapolis Division President
t
„oink: t MERRY WIGGIN
t.i HancockCoun
3p; My Commfsston Expires
June5,2013
This document prepared by: Tanury K. Haney, Esquire, Bose McKinney Evans LLP, 600 East 96th
Street, Suite 500, Indianapolis, Indiana 46240.
Page 42
64701.3
APPENDIX A
DESCRIPTION OF PROPERTY
[TO BE INSERTF-D]
Appendix A
Part of the Southeast Quarter of Section 24, Township 18 North, Range 3 East in Hamilton County,
Indiana, described as follows:
Commencing at the Southeast comer of the Southeast Quarter of Section 24, Township 18 North, Range
3 East in Hamilton County, Indiana; thence South 88 degrees 23 minutes 47 seconds West (assumed
bearing) on and along the South Tine of said Southeast Quarter 307,68 feet to the Southwest corner of
real estateas described in a deed to Tolpygin In instrument Number 2002 -2496 as recorded In the Office
of the Hamilton County Recorder (Tolpygin parcel) and the POINT OF BEGINNING of this description;
thence continuing South 88 degrees 23 minutes 47 seconds West 501.26 feet to a point on the East
right -of -way line of the Monon Railroad as described In a Quitdalm deed to the City of Carmel per
Instrument Number 2000 016680 and Instrument Number 2000 016681 said and a point being on a non
tangent curve to the left having a radius of 1962.00 feet; thence northwesterly on and along said curve
and the said right -of -way line an arc distance of 956,29 feet to the extension of the South line of real
estate as described in a deed to the Carmel Cemetery Association (Cemetery Parcel) In Deed Book 278,
Page 370 as recorded in the Office of the Hamilton.County Recorder;. thence North 88 degrees 23.
minutes 47 seconds East on and along said extension and the South Tine of said Cemetery Parcel 367.90
feet to a point on the West line of The Ritter's H.P.R. recorded In the Office of the Hamilton County
Recorder In Plat Cabinet 2, Slide 562; thence South 00 degrees 11 minutes 45 seconds West on said
West line 145.77 feet to the Southwest corner of said Ritter's H.P.R.; thence the fdllowing six (6) calls on
and along the South line. of said Rider's H.P.R. 1,) North 79 degrees 59 minutes 29 seconds East 170.50
feet; 2.) South 81 degrees 08 minutes 47 seconds East 71,41 feet; 3.) North 67 degrees 57 minutes 12
seconds East 44.54 feet; 4.) North 87 degrees 51 minutes 05 seconds East 101.88 feet; 5.) North 57
degrees 13 minutes 24 seconds East 69.78 feet; 6.) South 60 degrees 35 minutes 56 seconds East 55.18
feet; thence South 00 degrees 21 minutes 44 seconds East 409.53 feet to the Southwest corner of real
estate as described In a deed to Leppert Hensley Mortuary Crematory, Inc. per Instrument Number
2002 -61980 as recorded In the Office of the Hamilton County Recorder (Mortuary Parcel); thence North
88 degrees 23 minutes 47 seconds East on and along the South line of said Mortuary Parcel 270.10 feet
to a point on the East line of said Southeast Quarter; thence South 00 degrees 21 minutes 44 seconds
East on and along said East line 50.00 feet; thence South 88 degrees 23 minutes 47 seconds West
175.80 feet to a point on the Northwest comer of real estate as described in a deed to P.S.I. per Deed
Record 231, Page 168 recorded in the Office of the Hamilton County Recorder and a point being on a
non- tangentcurve to the Left having a radius of 1903.08; thence southerly on and along said curve an arc
distance of 358.78 feet to the POINT OF BEGINNING, containing in p11 12.671 acres, more or Tess,
B.1. GENERAL PROVISIONS.
APPENDIX B
DECLARANT RESERVATIONS
B.1.1 Introduction. Declarant intends the Declaration to be perpetual and understands
that provisions pertaining to the initial development, construction, marketing, and control of the
Property will become obsolete when Declarant's role is complete. As a courtesy to future users of
the Declaration, who may be frustrated by then obsolete terms, Declarant is compiling the
Declarant- related provisions in this Appendix.
B.1.2 General Reservation and Construction. Notwithstanding other provisions of the
Governing Documents to the contrary, nothing contained therein may be construed to, nor may
any Mortgagee, other Owner, or the Association, prevent or interfere with the rights contained in
this Appendix that .Declarant hereby reserves exclusively unto itself and its successors and
assigns. In case of conflict between this Appendix and any other Document, this Appendix
controls. This Appendix may not be amended without the prior written consent of Declarant.
The terms and provisions of this Appendix must be construed liberally to give effect to
Declarant's intent to protect Declarant's interests in the Property.
B.1.3 Purpose of Development and Declarant Control Periods. This Appendix gives
Declarant certain rights during the Development Period and the Declarant Control Period to
ensure a complete and orderly buildout and sellout of the Property, which is ultimately for the
benefit and protection of Owners and Mortgagees. Declarant may not use its control of the
Association and the Property for an advantage over the Owners by way of retention of any
residual rights or interests in the Association or through the creation of any contractual
agreements that the Association may not terminate without cause with not more than 90 days'
notice.
B.2. DECLARANT CONTROL PERIOD RESERVATIONS. For the benefit and protection
of Owners and Mortgagees, and for the purpose of ensuring a complete and orderly buildout and sellout
of the Property, Declarant will retain control of the Association during the Declarant Control Period,
subject td the following:
B.2.1 Initial Board; Transition to Owners. During the Declarant Control Period, the
Board will consist of 3 persons. Within 60 days after the date 50% of the Lots in the Property or
the Additional Land have been conveyed to Owners other than Declarant, the Board will call or
hold an annual or special meeting of the Members. At that meeting, the Members must elect 2
additional directors. From and after that election, the Board will consist of 5 directors. Near the
end of the Declarant Control Period, Declarant or the Association will give written notice of an
annual or special meeting of the Members to an Owner of each Lot at least 10 days before the
meeting. For that meeting, Owners of 10% of the Lots constitute a quorum. ALthat meeting, the
terms of all 5 directors expire, and the Menibers must elect 5 directors. These directors will be
elected for staggered 3 -year terms. The Board elected at the organizational meeting will elect the
officers of the Association not later than 30 days after the end of the Declarant Control Period.
B.2.2 Officers and Directors. During the Declarant Control Period, Declarant may
appoint, remove, and replace any officer or director of the Association, none of whom need be
Members or Owners. Each of the individuals is indemnified by the Association, under
Section 11.6, as a "Leader."
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PN
B.2.3 Weighted Votes. During the Declarant Control Period, the vote appurtenant to
each Lot owned by Declarant is weighted 4 times that of the vote appurtenant to a Lot owned by 4
another Owner. In other words, during the Declarant Control Period, Declarant may cast the
equivalent of 4 votes for each Lot owned by Declarant on any issue before the Association. On
termination of the Declarant Control Period and thereafter, the vote appurtenant to Declarant's
Lots is weighted uniformly with all other votes.
B.2.4 Obligation for Assessments. For each Lot owned by Declarant, Declarant is
liable for Special Assessments, Individual Assessments, and Restoration Assessments in the same
manner as any Owner. Regarding Regular Assessments, during the Declarant Control Period
only, Declarant will provide any funds necessary to cover the difference between the
Association's actual cash outlays for Common Expenses and the Regular Assessments received
from Owners other than Declarant, and has no obligation to pay Regular Assessments or to
contribute to reserves. The accounting for Declarant's contribution must be construed in favor of
Declarant. At any time during the Declarant Control Period, Declarant may elect in writing
signed and acknowledged by Declarant to pay Regular Assessments on each Declarant owned
Lot in the same manner as any Owner, in which event Declarant will no longer have an obligation
to provide special funding for the Association. On termination of the Declarant Control Period,
Declarant must begin paying Assessments on each Declarant -owned Lot according to the Lot's
allocated interest for Assessments.
B.2.5 Expenses of Declarant. .Expenses related to the completion and marketing of the
Property will be paid by Declarant and are not expenses of the Association.
B.2.6 Budget Control. During the Declarant Control Period, the right of Owners to
veto Special Assessments or increases in Regular Assessments is not effective and may not be
exercised.
B.2.7 Management Contract. If Declarant enters into a professional management
contract on behalf of the Association during the Declarant Control Period, the Association has the
right to terminate the contract without cause or penalty, but with at least 90 days notice to the
manager, at any time after a Board elected by the Owners takes office.
B.3. DEVELOPMENT PERIOD RESERVATIONS. Declarant reserves the following
easements and special Declarant rights, exercisable at Declarant's sole discretion, at any time during the
Development Period:
B.3.1 Changes in Development Plan. Declarant may modify the initial development
plan to respond to perceived or actual changes and opportunities in the marketplace.
Modifications may include, without limitation, changes in the sizes, styles, configurations,
materials, and appearances of Townhomes, buildings, Lots, and Common Areas.
B.3.2 Expansion. The Property is subject to expansion. During the Development
Period, Declarant may but is not required to annex any real property that is' contiguous with,
adjacent to, or within 1,000 feet of any real property that is subject to this Declaration. Declarant
will annex real property by subjecting it to the Declaration and the jurisdiction of the Association
by recording a supplement or an amendment of this Declaration, executed by Declarant, in the
Office of the Recorder of Hamilton County, Indiana. The supplement or amendment of
annexation must include a description of the additional real property or a reference to the
recorded plat that describes the additional real property. Declarant's right to annex land is for a
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term of years and does not require that Declarant own land described in Appendix A at the time
Declarant exercises its right of annexation.
B.3.3 Architectural Control,
B.3.3.1. Declarant's Rights Reserved. During the Development Period,
Declarant has the absolute right to serve as or to appoint the Architectural Reviewer.
Declarant also has the unilateral right to exercise architectural control over vacant Lots
and new Townhome construction in the Property, Neither the Association, the Board, nor
a committee appointed by the Association or Board (no matter how the committee is
named) may involve itself with the approval of new Townhomes and related
improvements on vacant Lots. Each Owner, by accepting an interest in or title to a Lot,
whether or not it is so expressed in the instrument of conveyance, covenants and agrees
that Declarant has a substantial interest in ensuring that the improvements within the
Property enhance Declarant's reputation as a community developer and do not impair
Declarant's ability to market Townhomes in the Property. Accordingly, each Owner
agrees that during the Development Period no improvements will be started or
progressed on Owner's Lot without the prior written approval of Declarant, which
approval. May be granted or withheld at Declarant's sole discretion. In reviewing and
acting on an application for approval, Declarant may act in its self interest and owes no
duty to any other person or any organization. Declarant may designate one or more
persons (such as Declarant's own employees) from time to time to act on its behalf in
reviewing and responding to applications.
B.3.3.2. Delegation by Declarant. During the Development Period,
Declarant may from time to time, but is not obligated to, delegate all or a portion of its
reserved rights under this Article to any person or persons deemed by Declarant to be
qualified to exercise architectural control. Any such delegation is at all times subject to
the unilateral rights of Declarant (1) to revoke such delegation at any time and reassume
jurisdiction over the matters previously delegated and (2) to veto any decision which
Declarant in its sole discretion determines to be inappropriate or inadvisable for any
reason.
B.3.3.3. Modifications. By way of illustration, Declarant may delegate
architectural control over modifications. of completed Townhomes. oh Lots owned by
persons other than Declarant to a committee comprised of Owners appointed by
Declarant, by the Board, or by the Members. Such committee will serve at the pleasure
of Declarantduzing the Development Period, and may not involve itself with the approval
of new Townhomes on vacant Lots, which is exclusively the domain of Declarant.
B.3.4 Land Transfers. During the Development Period, any transfer of an interest in
the Property to or from Declarant is not subject to any transfer related provisionan the Governing
Documents. The application of this provision includes, without limitation, Declarant's Lot take-
downs, Declarant's sale of Lots to builders, and Declarant's sale of Lots to homebuyers.
B.3.5 Amendment. During the Development Period, Declarant may amend this
Declaration and the other Governing Documents, without consent of other Owners or any
Mortgagee, for the following limited purposes:
a. To add real property to the Property.
b. To withdraw real property from the Property.
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Page B -3
c. To create Lots, easements, and Common Areas within the Property.
d. To subdivide, combine, or reconfigure Lots.
e. To convert Lots into Common Areas.
f. To modify the construction and use restrictions of Article 10 of this Declaration.
g. To merge the Association with another property owners association.
h. To comply with requirements of an Underwriting Lender.
i. To resolve conflicts, clarify ambiguities, and to correct misstatements, errors, or
omissions in the Governing Documents.
j. To enable any reputable title insurance company to issue title insurance coverage
on the Lots.
k. To enable an institutional or governmental lender to make or purchase mortgage
loans on the Lots.
1. To change the name or entity of Declarant.
m. To change the name of the addition in which the Property is located.
n. To change the name of the Association.
o. For any other purpose, provided the amendment has no material adverse effect on
any right of any Owner.
B.3.6 Completion. During the Development Period, Declarant has (1) the right to
complete or make improvements indicated on the Plat; and (2) an easement and right to erect,
construct, and maintain on and in the Common Area, Area of Common Responsibility, and Lots
owned or leased by Declarant whatever Declarant determines to be necessary or advisable in
connection with the construction, completion, management, maintenance, leasing, and marketing
of the Property.
B.3.7 Sales. During the Development Period, Declarant reserves for itself the right to
sell or lease any Lot owned by Declarant. Lots owned by Declarant are not subject to leasing or
occupancy restrictions or prohibitions contained elsewhere in this Declaration or the other
Governing Documents.
DIFFERENT RULES
The Developer has rights and privileges to use the property in
ways that are not available to other owners and residents.
B.3.8 Promotion. During the Development Period, Declarant reserves for itself an
easement and right to place or install signs, banners, flags, display lighting, potted plants, exterior
decorative items, seasonal decorations, temporary window treatments, and seasonal landscaping
on the Property, including items and locations that are prohibited to other Owners and Residents.
Declarant reserves an easement and right to maintain, relocate, replace, or remove the same from
time to time within the Property. Declarant also reserves the right to sponsor-marketing events
such as open houses, MLS tours, and brokers parties at the Property to promote the sale of
Townhomes:
B.3.9 Offices. During the Development Period, Declarant reserves for itself the right to
use Townhomes (including any garages attached to such Townhomes) owned or leased by
Declarant or trailers parked on the Property as models, storage areas, and offices for the
marketing, management, maintenance, customer service, construction, and leasing of the Property
and/or Declarant's developments or other products located outside the Property. Also, Declarant
reserves for itself the easement and right to make structural changes and alterations on and to
APPENDIX B TO DECLARATION OF TRADITIONS ON THE MONON
GUIDE TO ASSOCIATION'S MAJOR MANAGEMENT GOVERNANCE FUNCTIONS
64701.3
Page B-4
Townhomes used by Declarant as models, storage areas, and offices, as may be necessary to y,
adapt them to. the uses permitted herein. Upon completing its use of such Townhomes, Declarant,.
at Declarant's sole expense, will restore altered Townhomes to conform to the architectural
standards of the Property. The restoration will be done within 120 days after termination of the
Development Period.
B.3.10 Access. During the Development Period, Declarant has an easement and right of
ingress and egress in and through the Property for purposes of constructing, maintaining,
managing, and marketing the Property and the Additional Land, and for discharging Declarant's
obligations under this Declaration. Additionally, Declarant has a right of entry and access to, all
Townhomes to perform warranty- related work, if any, for the benefit of the Townhome being
entered, adjoining Townhomes, or Areas of Common Responsibility. Requests for entry 'must be
made in advance for a time reasonably convenient for the Owner who may not unreasonably
withhold consent.
B.3.11 Controlled Access. This Section applies, if the Property has a controlled access
gate; During the Development Period, Declarant may require that the entry gate be left open to
the public during daylight hours (or from 6:30 a.m. to 7:00 p.m., whichever is longer) to ensure
access to Lots or to the Additional Land by prospective new home purchasers and contractors to
complete construction of townhomes.
B.3.12. Utility Easements. During the Development Period, Declarant may grant permits,
licenses, and easements over, in, on, under, and through the Property for utilities, roads, and other
purposes necessary for the proper development and operation of the Property. Declarant reserves
the right to make changes in and additions to the easements on any Lot, as shown on the Plat, to
more efficiently or economically install utilities or other improvements. Utilities may include,
but are not limited to, water, sewer, trash removal, electricity, gas, telephone, television, and
security.
B.4. COMMON AREAS. At or prior to termination of the Declarant Control Period,
Declarant will convey title to the Common Areas to the Association by deed with or without warranty.
At the time of conveyance, the Common Areas will be free of monetary encumbrances except for the
property taxes., if any, accruing for the year of conveyance. Declarant's conveyance of title or ownership
is a ministerial task that does not require and is not subject to inspection, evaluation, acceptance, or
approval by the Association or the Owners.
13.5. SUCCESSOR DECLARANT. Declarant may designate one or more Successor
Declarants for specified designated purposes and/or for specified portions of the Property, or for all
purposes and all of the Property. To be effective, the designation must be in writing, signed and
acknowledged by Declarant and Successor Declarant, and recorded in the Office of the Recorder of
Hamilton County. Declarant (or Successor Declarant) may subject the designation of Successor
Declarant to limitations and reservations. Unless the designation of Successor Declarant provides
otherwise, a Successor Declarant has the rights of Declarant under this Section and may designate further
Successor Declarants.
B.6. ANNEXATION During the Development Period, each Owner, by the acceptance of a
deed to a Lot, will be deemed to have waived such Owner's right to remonstrate against any permit,
application or request made by or to a Municipal Entity to annex the Property or any part of the Property
to become a part of the Municipal Entity. The Owner will also be deemed to have consented to such
annexation.
[End of Appendix B]
APPENDIX B TO DECLARATION OF TRADITIONS ON THE MONON
GUIDE TO ASSOCIATION'S I IAJOR MANAGEMENT GOVERNANCE FUNCTIONS
64701.3
Page B -5
APPENDIX C
COMMITMENTS CONCERNING THE USE
OR DEVELOPMENT OF REAL ESTATE
APPENDIX C TO DECLARATION OF TRADITIONS ON THE MONON
GUIDE TO ASSOCIATIONS MAJOR MANAGEMENT GOVERNANCE FUNCTIONS
64701.3
Page C -1
h
MAY -20 -2005 16:04 3179741238 P.02
COMMITMENTS CONCERNING Tab, USE
AND DEVELOPMENT OF REAL ESTATE
Buckingham Properties, Inc, (hereafter, "Buckingham"), the contract purchaser of the real
estate located in Hamilton County, Indiana, and described in what is attached hereto and
incorporated herein by referenced as Exhibit "A" (the "Real Estate makes the following
Commitments (the "Commitments to the plan Commission of the City of Carmel (the "Plan
Commission and the Common Council of the City of Cannel, Indiana (the "Council for the
Traditions 'n• the Monon Planned Unit Development Ordinance,
Section 1. Cross Reference. These Commiunents are made in connection with approvals
obtained under Docket Numbers 04070034Z PUD and Ordinance. No. Z- 46404.
Section 2, Exhibits, The following exhibits are attached hereto and incorporated herein by
reference:
Exhibit "A Attached hereto and incorporated herein by reference as Exhibit "A" is the
legal description of the real estate (the "Real Estate
Exhibit "B Attached hereto and incorporated herein by reference as 'Exhibit "B" is the
conceptual site plan (the "Site Plan
Exhibit "C Attached hereto and incorporated herein by reference as Exhibit "C" is the
Site Plan which depicts by a gray shaded area a portion of the Real Estate Buckingham
agrees and consents to dedicate to the City of Cannel to accommodate the Cool Creek
Trail Extension to the Monon Trail (the "Land Dedication
Section 3. Definitions. Different words and terms are defined throughout these
Commitments and, further, the following definitions shall apply throughout these Commitments:
1. Developer, The term "Developer" shall mean and refer to Buckingham and its successors
and assigns.
2. Cool Creek Trail Extension. The term "Cool Creek Trail Extension" shall mean and refer
to an extension shown on Exhibit "C" which depicts a trail extension which runs east to
west and adjoins the Monon Trail on its eastern border. The Cool Creek Trail Extension
does not currently exist. The City of Carmel intends to construct this Cool Creek Trail
Extension on the Real Estate as depicted on Exhibit "C" or, in the alternative, the City of
Carmel may decide to construct the Cool Creek Trail Extension north of the Real Estate.
APPENDIX C TO DECLARATION C -2
TRADITIONS ON WEE MONON
MAY -20 -2005 16:04 3179741238 P.0
Section 4. Commitments. The Developer agrees and commits to the following:
1. To pay to the City of Carmel a sum not to exceed Eight Thousand Dollars ($8,000.00)
toward participation in the cost the City of Carmel shall incur in constructing the Cool
Creek Trail Extension; and
2. To grant to the City of Carmel an access easement for construction of the Cool Creek
Trail Extension and a perpetual access easement for ingress and egress to the Cool Creek
Trail Extension, if the Cool Creek Trail Extension is constructed on the Real Estate_ The
Developer agrees and commits to execute the necessary documents in order to complete
the grant.of easements described herein; and
3. The City of Carmel Parks Department may request that the Developer dedicate, in fee
simple, to the Clty of Carmel the area crosshatched on Exhibit "C" and generally located
north of Cool Creek to the northern perimeter boundary of the Real Estate to be utilized
by the City of Carmel Parks Department for a public park area. The Developer agrees
and commits to execute the necessary documents in order to complete the Land
Dedication, as described above.
Section 5. Binding qn Successors
These Corninitments are binding on the Developer, the owner of the Real Estate, each
subsequent owner of the Real Estate, and each other person acquiring an interest in the Real
Estate, unless modified or 'terminated by the Commission. These Commitments may be modified
or terminated only by a decision of the Plan Commission after a public hearing wherein notice as
provided by the rules of the Plan Commission has been made. The provisions of this paragraph 5
notwithstanding, these Commitments shall terminate as to any part or parts of the Real Estate
hereafter reclassified (rezoned) from Ordinance No. Z -464-04 on the Town's Official Zone Map
to another zoning' classification.
Section 6. Effective Date
The Commitments contained herein shall be effective upon the occurrence of all of the following
events:
1. The adoption of an ordinance by the City Council of Carmel, Indiana,_assigning the
requested Traditions on Monon PUD classification to the Real Estate pursuant to
Ordinance No. Z- 464 -04;
2. The acquisition of the Real Estate by the Developer or its successors and assigns; and
2
APPENDIX C TO DECLARATION C -3
TRADITIONS ONTHU MONON
MAY -20 --2005 16:05
3. The commencement of the development of the Real Estate in accordance with the
assignment of the requested Traditions on Monon PUD classification pursuant to
Ordinance No. Z- 464 -04,
Section 7. Recording
The undersigned hereby authorizes the Secretary of the Commission to record these
Commitments in the Office of the Recorder of Hamilton County, Indiana.
Section 8. Enforcentent
These Commitments may be enforced by the Commission and the City Council of Carmel,
Indiana and any property owner within or immediately adjacent to the Real Estate.
IN WriNESS WHEREOF, TN& f...1.04. has caused these Commitments to be
executed as of the date first written above.
STATE OF INDIANA
SS:
COUNTY OF MARION
Before me the undersigned, a Notary Public in and for said County and State, personally
appeared David E. Leazenby, the Vice President of Buckingham Properties, Inc., and having
been sworn, acknowledged execution of the foregoing Commitments.
Witness my hand and Notarial Seal this day of Dectimbor 20Q4.
Igy Commission Expires:
1. 1 t 7.a i i-
Residing in MI. tm County
H: Uanc .ABScnlBnckiogham1Cortailtmentr 121$Q4.doc
BUCICINOHAM PROPERTIES, INC.
By:
David E. Leazenby, Vice President
Notry Pub1i
Printed Name
Prepared By: James E. Shinaver, Nelson Frankenberger, 3105 East 98 Street, Suite 170,
Indianapolis, IN 46280.
3
3179741238 P.04
APPENDIX C TO DECLARATION C-4
TRADITIONS ON THE MONON
MAY -20 -2005 16:05 3179741238 P.05
EXHIBIT "A"
Part of the Southeast Quarter of Section 24, Township 18 North, Range 3 East in Hamilton County, Indiana, more
particularly described as follows:
Commencing at the Southeast corner of the Southeast Quarter of Section 24, Township 18 North, Range 3 East in
Hamilton County. Indiana; thence South 88 degrees 23 minutes 47 seconds West (assumed bearing) on and along'
tiro South line of said Southeast Quarter 307.68 feet to the Southwest comer of real estate conveyed to Tolpygin per
deed recorded in the Office of the Hamilton County Recorder as Instrument Number 2002-2496 Tolpygin parcel)
and the POINT OF BEGINNING of this description; thence continuing South 88 degrees 23 minutes 47 seconds
West 480.21 feet to a point on the East right -of -way line of the Monon Railroad and the point of curvature of a
curve to .the left having a radius of 1983.00 feet; thence northwesterly on and along said curve an are distance of
957.33 feet to the'Southwosi corner of real estate conveyed to the Cannel Cemetery Association (Cemetery Parcel)
per deed recorded in the Office of the Hamilton County Recorder in Deed Book 278, Page 370; thence North 88
degrees 23 minutes 47 seconds East on and along the South line of said Cemetery Parcel 343.14 feet to a point on
the West lino of The Ritter's 13.P.1t, recorded In the Office of the Hamilton County Recorder in Plat Cabinet 2,
Slide 562; thence South 00 degrees 11 minutes 45 seconds West on said West line 145.77 feet to the Southwest
corner of said Ritter's H.P.1 thence the following six (6) calls un and along the South line of said Ritter's H.P.I..
1.) North 79 degrees 59 minutes 29 seconds Feast 170.0 feet; 2.) South 81 degrees 08 minutes 47 seconds East 71.41
feet; 3.) North 67 degrees 57 minutes 12 seuunds East 44.54 feet; 4.) North 88 degrees.12 minutes 49 seconds East
101.88 feet; 5,) North 57 degrees 13 minutes 24 secXlnds East 69.78 feet; 6.) South 60 degrees 35 minutes 56
seconds East 55.18 feet; thence South 00 degrees 21 minutes 44 seconds least 409.53 feet to the Southwest Corner
of real estate conveyed to Leppert Hensley Montreal Crematory, Inc. (Mortuary Parcel) per deed recorded in the
Office of the Hamilton County Recorder as Insixwnont Number 2002 61980; thence North 88 degrees 23 mineres
47 seconds East on and along the South line of said Mortuary ?stool 270.10 feet to a point onthe Bast line of said
Southeast Quarter; thence South 00 degrees 21 minutes 44 seconds least on' and along said Bast line 50.00 feet;
thence South 88 degrees 23 minutes 47 seconds Wost 175.87 feet to a point on the Northwest corner of real estate
conveyed to P.S.L per deed recorded in the Office of the Hamilton County Recorder as Deed Record 231, Page 168
and the point of curvature of a curve to the left having a radius of 1903.08; thence southerly on and along said
curve an arc distance of 358.64 feet to the POINT OP BEGINNING, containing in all 12.21acres. more or less.
Subject to the Right -of -way of 136 Street
11:U anet \EdenWucktngharn1CornmhmeAts 12150 doc
't
Subject to the Right -of- -way of Range Line Road
Subject to the Right -of -way of the Motion Railroad.
Subject to the Right -of -way of the Pollen Morrow Legal Drain Easement.
Subject to all legal easements, rights -of -way. covenants, and restrictions.
"Note: This description has been prepared based upon instructions from the client and limited field observations by
Mid- States Engineering, I.LC. A boundary survey has not been performed by Mid States Engineering, LLC on the
above described area per Indiana Survey Standards as defined in Title 865, Article 1, Rule 12 of the Indiana
Administrative Code. In no evemt will Mid States Engineering, LLC, its employees, agents, and/or assigns be
liable for any damages arising out of the furnishing and/or use of this description.
V.
1•
APPENDIX C TO DECLARATION C 5
TRADITIONS ON THE MONON
Sponsor: Councilor Rattermann
ORDINANCE NO. Z- 464 -04
AN ORDINANCE OF THE COMMON COUNCIL OF THE
CITY OF CARMEL, INDIANA
ESTABLISHING THE
Traditions on the Mono»
PLANNED UNIT DEVELOPMENT DISTRICT
WHEREAS, Section 31,6.4 of the Carmel /Clay Zoning Ordinance Z -289 (the
"Carmel/Clay Zoning Ordinance provides for the establishment of a Planned Unit
Development District in accordance with the requirements of LC. 36 -7 -4-1500 et seq.;.
WHEREAS, the Carmel /Clay Plan Commission (the "Commission has given a
unanimous favorable recommendation to the ordinance set forth herein (the "Traditions on the
Monon which establishes the Traditions on the Monon Planned Unit Development District (the
"District
NOW, THEREFORE, BE IT ORDAINED by the Common Council of the City of
Carmel, Indiana (the "Council that (i) pursuant to IC §36 -7 -4 -1500 et seq., it adopts this
Traditions on the Monon Ordinance, as an amendment to the Carmel/Clay Zoning Ordinance and
it shall be in full force and effect from and after its passage, (ii) all prior commitments shall be
null and void and replaced and superseded by this Traditions on the .Monon Ordinance, and
(iii) this Traditions on the Monon Ordinance shall be in full force and effect from and after its
passage and signing by the Mayor.
Section 1 Applicability of Ordinance
Section 1.1 The Official Zoning Map of the .City of. Carmel and Clay Township, a part
of the Carmel /Clay Zoning Ordinance, is hereby changed to designate the land described
in Exhibit "A" (the "Real Estate as a Planned Unit Development District to be known
as the Traditions on the Monon.
Section 1.2 Development in the District shall be governed entirely by (i) the,
provisions of this Traditions on the Monon Ordinance and its exhibits, and (ii) those
provisions of the Carmel /Clay Zoning Ordinance specifically referenced in this
Traditions on the Monon Ordinance. In the event of a conflict between this Traditions on
the Monon Ordinance and the Carmel/Clay Zoning Ordinance or the Sign Ordinance, the
provisions of this Traditions on the Monon Ordinance shall apply.
Section 1.3 Any capitalized term not defined herein shall have the meaning as set forth
in the Carmel/Clay Zoning Ordinance in effect on the date of the enactment of this
Traditions on the Monon Ordinance.
APPENDIX C TO DECLARATION C -8
TRADITIONS 'ON THE MONON
Section 2 Permitted Uses
Permitted uses are townhomes, condominiums and/or multi family dwelling units.
Section 3 Accessory Buildings and Uses
All Accessory Structures and Accessory Uses shall be permitted except that any detached
accessory building shown in any development plan shall have on all sides the same architectural
features or shall be architecturally compatible with the principal building(s) with which it is
associated.
Section 4 Communication Equinment. Cell towers shall not be permitted. Home satellite
dishes shall be permitted.
Section 5 Platting
The platting of the Real Estate into smaller tracts shall be permitted, so long as the proposed plat
complies with the area requirements set forth below in Section 6 and the creation of a new
property line within the Real Estate shall not impose or establish new development standards
beyond those specified below in Section 6 for the entirety of the Real Estate. However, the
development of any parcel shall conform to the requirements of Section 13 below, and all other
applicable requirements contained in this Traditions on the Monon Ordinance.
Section 6 Heiubt and Area Requirements
Section 6.1 Maximum Building Height: The maximum Building Height is thirty-eight
(38) feet.
Section 6.2 Minimum Building Set Back: The minimum Set Back from the perimeter
boundary line of the Real Estate contiguous with Smokey Row Road shall be fifteen.(15)
feet, and along the north property line of the Real Estate the minimum Set Back shall be
ten (10) feet, along the west property line of the Real Estate the minimum Set Back shall
be ten (10) feet, and along the east property line of the Real Estate, the Minimum Set
Back shall be ten (10) feet.
Section 6.3 Minimum Building Separation. The minimum building distance between
Buildings, measured from the exterior face of the foundation, shall be ten (10) feet.
Section 6.4 Density. There shall be a maximum of one hundred and forty (140) units
on approximately 12.21 acres.
Section 6.5 Square Footage of Townhome Units. The minimum square footage for an
individual Townhome unit shall be one thousand four hundred (1,400) square feet,
exclusive of any garages.
2
APPENDIX C TO DECLARATION C -9
TRADITIONS ON THE MONON
Section 7. Conceptual Building Types
Section 7.1 Architectural Design Requirements:
A. Roof design: All roofs, except for open porch roofs, shall have a
minimum slope of 12 horizontal to 8 vertical.
B. Building rendering and elevations: Attached hereto and incorporated
herein by reference as Exhibit "B" are conceptual building renderings of
the Buildings to be constructed upon the Real Estate. All Buildings
constructed upon the Real Estate shall include Masonry as the primary
building materials, excluding but not limited to doors, soffits, trim,
windows, gables and roofs.
Section 8 Landscaping
Attached hereto and incorporated herein by reference as Exhibit "C" is the conceptual landscape
plan (hereafter "Conceptual Landscape Plan
Section 8.1 Planting Standards. Landscaping shall be integrated with other functional
and ornamental site design elements, where appropriate, such as hardscape materials,
paths, sidewalks, or any water features. Deciduous trees planted to satisfy the landscaping
requirements of this Ordinance shall have at least a two and one -half inch (2 -1/2
Caliper and seven foot (7') height at the time of planting, unless otherwise specified
herein or otherwise indicated on the Conceptual Landscape Plan. Evergreen trees shall
be a minimum of six feet (6') in height at the time of planting. Shrubs shall be two (2)
feet in height at the time of planting. All trees, shrubs and ground covers shall be planted
according to accepted horticultural standards. Landscaping materials shall be appropriate
to local growing and climatic conditions. Plant suitability, maintenance and compatibility
with site construction features are critical factors that should be considered. Plantings
should be designed with repetition, structured patterns, and complementary textures and
colors, and should reinforce the overall character of the area.
Section 8.2 Maintenance. It shall be the responsibility of the owners and their agents
to insure proper maintenance of project landscaping approved in accordance with this
Traditions on the Monon Ordinance. This is to include, but is not limited to, irrigation
and mulching of planting areas, replacing dead, diseased, or overgrown plantings with
identical varieties or a suitable substitute, and keeping the area free of refuse, debris, rank
vegetation and weeds.
Section 8.3 Building Base Landscaping. The building base landscaping around the
buildings shall include a minimum of twelve (12) shrubs. Additionally, there shall be a
minimum of two (2) shade trees per unit between the unit and the sidewalk, if the
necessary area for planting is available. If a shade tree can not be planted between the
unit and the sidewalk, that shade tree will be planted at an alternate location on the site.
3
APPENDIX C TO DECLARATION C40
TRADITIONS ON THE MONON
Section 8,4 Perimeter Planting/Buffer Yard. The perimeter planting and buffer yard
planting shall be in accordance with Section 26.04 Perimeter Buffering Requirements of
the Zoning Ordinance.
Section 8.5 Interior Plantings. Adjacent to any entry drive, for each one hundred
(100) linear foot increment, there shall be a minimum of three (3) shade trees, two, (2)
ornamental trees and ten (10) shrubs, For any common areas adjacent to a parking area,
plantings shall be in accordance with Section 26.04 Perimeter Buffering' Requirements of
the Zoning Ordinance.
Section 8.6 Tree Conservation. Existing trees as identified on the Conceptual
Landscape Plan as "Tree Conservation Area" shall not be removed from the Real Estate
except as follows:
1. As is necessary to clear underbrush and dead trees;
2. As is necessary for the installation of access easements, rights way,
streets, paths, sidewalks, and utilities and drainage improvements and
infrastructure; and
3. As necessary for public health and safety.
Section 9 Lighting Requirements
A. Front of Townhome lighting: Each Townhome shall have one (1) light
fixture near the door.
Rear of Townhome lighting: Each Townhome shall have a minimum of
one (1) light fixture on the rear of each unit, however the light position(s)
shall be consistent among all units.
C. Street Lighting: Street lighting shall be provided near intersections of
streets and alleyways and along the Monon Trail and 136 Street.
D. Light Fixture Renderings: Attached as Exhibit "D" and Exhibit "E
respectively, and referred to herein as the Conceptual Wall Mounted
Luminaries and Conceptual Pole Mounted Luminaries are renderings
which depict the acceptable types of wall and pole mounted luminaries for
the District.
Section 10 Signs and Entry Way Wall
Section 101 Ground Signs and Entry Wall,
A. Type: At each entrance to the development, adjacent to both Smokey
Row Road and Rangeline Road, Two (2) Ground/Entryway Signs shall be
permitted, as is conceptually depicted on Exhibit "F which is attached
4
APPENDIX C TO DECLARATION C -11
TRADITIONS ON 'IKE MONON
hereto and incorporated herein by reference. One (1) entry wall is also
permitted, not to exceed fifteen (15) feet in length, as depicted on what is
attached hereto and incorporated herein by reference as Exhibit "F
B. Maximum Sign Area Twenty -four (24) square feet each.
C. Illumination of Sign: External.
D. Sign Permit: Required.
E. Fees: Required.
Section 11 Pa rkin
Section 11.1 Minimum Parking: Each Townhome shall contain a two (2) car garage
and, in addition, there shall be guest parking provided within on- street parking spaces and
other spaces to be provided on the site, as depicted on the Conceptual Plan and
incorporated herein by reference as Exhibit "G
Section 12 Homeowners Association and Declaration of Covenants
Section 12.1 Declaration of Covenants and Homeowners Association: The Developer
shall prepare and record a Declaration of Covenants which shall also contain various
provisions regarding the Real Estate as determined by the Developer, including, without
limitation, provisions for mandatory assessments and maintenance of common areas.
The Declaration of Covenants will also provide for the establishment of a Homeowners
Association in which membership shall be mandatory.
Section 13. Approval Process
Section 13.1. Approval or Denial bf the Primary Plat/Development Plan.
A. Exhibit "G which is attached hereto and incorporated herein by
reference, shall serve as the Conceptual Plan (the "CP However, the CP
does not constitute the approved Development Plan and primary plat for
the Real Estate, nor does it constitute the approved architecture, design,
lighting and landscaping for the Real Estate and the improvements
thereon, considered in connection with the Traditions on the Monon
Ordinance. .Traditions on the Monon shall require further (i) ADLS
approval and (ii) Development Plan/primary plat approval. The Final
Development Plan approval procedures are set forth below in this Section
13. If there is a Substantial Alteration in the approved ADLS and
Development Plan/primary plat, review and approval of the amended
plans shall be made by the Commission, or a Committee thereof, pursuant
to the Commission's rules of procedure. Minor Alterations may be
approved by the Director.
5
APPENDIX C TO DECLARATION C.1.2
TRADITIONS ON THE MONON
B. The Director shall have the sole and exclusive authority to approve
without conditions, approve with conditions, or disapprove the Final
Development Plans /Secondary Plats (collectively, the "FDP for the
Traditions on the Monon; provided, however, that the Director shall not
unreasonably withhold or delay the Director's approval of the FDP that is
in substantial conformance with the CP and is in conformance with the
Development Requirements and Development Standards of this Traditions
on the Monon Ordinance. If the Director disapproves any FDP, the
Director shall set forth in writing the basis for the disapproval and
schedule the request for approval of the FDP for a hearing before the full
Plan Commission.
C. An amendment to the FDP, which is not determined by the Director to be
a Substantial Alternation or Material Alteration from the approved CP,
may be reviewed and approved solely by the Director. However, in the
event the Director determines that there has been a Substantial Alteration
or Material Alteration between the approved CP and any proposed FDP,
the Director may, at the Director's discretion, refer the amended FDP to
the Commission, or a Committee thereof, for review and approval by the
Commission and/or a Committee thereof.
D. The FDP shall be a specific plan for the development of all or a portion of
the Real Estate that is submitted for approval to the Director, which shall
include reasonable detail regarding the facility and structures to be
constructed, as well as drainage, erosion control, utilities, and building
information.
Section.l4 Definitions and Rules of Construction
Section 14.1 General Rules of Construction. The following general rules of
construction and definitions shall apply to the regulations of this Ordinance:.
A. The singular number includes the plural and the plural the singular, unless
the context clearly indicates the contrary.
B. Words used in the present•tense include the past and future tenses, and the
future the present.
C. The word "shall" is a Mandatory requirement. The word "may" is a
permissive requirement. The word "should" is a preferred requirement,
Section 14.2 Definitions
A. Accessory Structure: A structure subordinate to a building or use located
on the Real Estate which is not used for permanent human occupancy.
6
APPENDIX C TO DECLARATION
TRADITIONS ON THE MONON
C -13
B. Accessory Use: A use subordinate to the main use, located on the Real
Estate or in the same building as the main use, and incidental to the main
use.
C. Building Height: The vertical distance from the lot ground level to the
highest point of the roof for a flat roof, to the deck line of a mansurd roof
and the mean height between eaves and ridges for gable, hip and gambrel
roofs.
D. CV: The City of Carmel, Indiana..
E. Commission: The Carmel/Clay Plan Commission.
F. Council: The City Council of the City of Carmel, Indiana.
G. County: Hamilton County, Indiana.
H. Declaration of Covenants: A Declaration of Covenants, Conditions and
Restrictions for the Real Estate which shall be recorded in the office of the
Recorder of. Hamilton County, Indiana, and which may, from time to time,
be amended.
Plan, Conceptual. A general plan for the development of the Real Estate
that is submitted for approval showing proposed facilities, buildings; and
structures. This plan generally shows landscape areas, parking areas, site
access, drainage features, and building locations and is depicted on Exhibit
"0", which is attached hereto and incorporated herein by reference.
J. Development Plan, Final. A specific plan for the development of the Real
Estate that is submitted for approval showing proposed facilities,
buildings, and structures. This plan review includes general landscaping,
parking, drainage, erosion control, signage, lighting, screening and
building information for the site.
K. Development Requirements. Development standards and any
requirements specified in this Traditions on the Monon Ordinance which
must be satisfied in connection with the approval of a Final Development
Plan.
L. Developer. Buckingham Properties, Inc. and its successors and assigns.
M. Director: Director, or Administrator, of the Department of Community
Services for the City of Carmel, Indiana. "Director" and "Administrator"
shall include his/her authorized representatives.
APPENDIX C TO DECLARATION C -14
TRADITIONS ON THE MONON
N. Homeowners Association: A nonprofit corporation established for the
promotion of the health, safety and welfare of the residents of the
Traditions on the Motion, and to manage, maintain, and repair the
common areas within the Real Estate and any improvements located
thereon.
0. Masonrv: Masonry shall include brick, stone and/or stucco.
Material Alteration: Any change to an approved plan of any type that
involves the substitution of one material, species, element, etc. for anther.
Q. Minor Alteration: Any change to an approved' plan ,of any type that
involves the revisionof less than ten.percent (10 of the plan's total,area
or approved materials.
R. Parcel Coverage: The total ground area, within the Real Estate, covered
by buildings and accessory structures which are greater than eighteen (18)
inches above grade level, excluding fences and walls not attached in any
way to a roof, divided by the total horizontal area within the Real Estate
boundaries.
S. )Zeal Estate. The Real Estate shall mean and refer to all of the Real Estate
described in Exhibit "A
T. Right -of -Way: An area of land permanently dedicated to provide light, air
and access.
U. Set Back: The least measured distance between a building or structure,
excluding, however, porches, patios, and the perimeter boundary of the
Real Estate. Por purposes of determining Set Back, the perimeter
boundary of the Real Estate (i) shall always mean and refer to the outside
perimeter boundary line of the Real Estate and (ii) shall not be changed or
reduced by reason of the platting or subdivision of the Real Estate into
smaller parcels.
V. Sign: Any type of sign as further defined and regulated by this Ordinance
and the Sign Ordinance for Carmel -Clay Township, Ordinance Z -196, as
amended,
W. Substantial Alteration: Any change to an approved plan of any type that
involves the revision of ten percent (10 or more of the plan's total area
or approved materials.
X. Townhome: An attached dwelling intended for occupancy by a single
family.
8
APPENDIX .0 TO DECLARATION C-15
TRADITIONS ON THE MONON
Y. Townhome Building: A structure containing attached dwellings.
Z. Trim: Soffits, architraves, wood reveals, and casement around doors and
windows.
Section 15. Violations
All violations of this Traditions on the Monon Ordinance shall be subject to Section 34.0
of the Carmel /Clay Zoning Ordinance.
PASSED by
the Common Council of the City of Carmel, Indiana this cp O day of
2004, by a vote of J' ayes and b nays.
COMMON COUNCIL FOR THE CITY OF CARMEL
P,'siding Officer
Ronald E. Carter, President Pro Tempore
ATTEST:
Diana L. Cordray, IAMC, Clerk rer
Mark Rattermann
d//
Richard L. Sh
Presented by me to the Mayor of the City of Carmel, Indiana the c.Q day of
.tg. 2004, at c j 1 C o'clock .M.
Diana L. Cordray, 'AMC, Cli reasurer
9 APPENDIX C TO DECLARATION C -16
TRADITIONS ON THE MONON
Approved by me, Mayor of the City of Carmel, Indiana, this 0- t day of
'r'- 2004, at 0 o'clock 4 .M.
ATTEST
Diana L. Corday, IAMC, Clerk
urer
o`••
es Brainard, Mayor
This Instrument prepared by: David E, Leazenby
Buckingham Properties, Inc.
333 N. Pennsylvania St., 10 Floor
Indianapolis, IN 46204
H:Uaneaden\Buckingham\PUD Council Draft I i20604:doc
This Instrument reviewed by: Charles D. Frankenberger James E. Shinaver
NELSON FRANKENBERGER
3021 East 98 Street, Suite 220
Indianapolis, IN 46280
10 APPENDIX C TO DECLARATION
TRADITIONS ON THE MONON
C -17
EXHIBIT "A"
Legal Description
Part of the Southeast Quarter of Section 24, Township 18 North, Range 3 East in Hamilton County, Indiana, more
particularly described as follows;
Commencing at the Southeast comer of the Southeast Quarter of Section 24, Township 18 North, Range 3 East in
Hamilton County, Indiana; thence South 88 degrees 23 minutes 47 seconds West (assumed bearing) on d along the
South line of said Southeast Quarter 307.68 feet to the Southwest corner of real estate conveyed to To) gin per
recorded in the Office of the Hamilton County Recorder as Instrument Number 2002 -2496 (Tolpygin parcel) and the
POINT OF BEGINNING of this description; thence continuing South 88 degrees 23 minutes 47 seconds West 480.21 feet
to a point on the East right -of -way line of the Monon Railroad and the point of curvature of a curve to the left having a
radius of 1983.00 feet; thence northwesterly on and along said curve an arc distance of 957.33 feat to the Southwest corner
of real estate conveyed to the Carmel Cemetery Association (Cemetery Parcel) per deed recorded in the Office of the
Hamilton County Recorder. in Deed Book 278, Page 370; thence North 88 degrees 23 minutes 47 seconds East on and
along the South line of said Cemetery Parcel 343.14 feet to a point on the West line of The.Ritter's H.P.R. recorded in the
Office of the Hamilton County Recorder in Plat Cabinet 2, Slide 562;
thence South 00 degrees 11 minutes 45 seconds
West on said West line 145.77 feet to the Southwest corner of said Ritter's H.P.R.; thence the following six (6) calls on
and along the South line of said Ritter's H.P.R. 1.) North 79 degrees 59 minutes 29 seconds East 170.0 feet; 2.) South 81
orth 88
degrees 08 minutes 47 seconds East 71.41 feet; 3.) North 67 degrees 57 minutes 24 seconds East 69. feet; 6.) N orth 60
degrees 12 minutes 49 seconds East 101.88 feet; 5.) North 57 degrees
degrees 35 minutes 56 seconds East 55.18 feet; thence South 00 degrees 21 minutes 44 seconds East 409.53 feet to the
Southwest comer of real estate conveyed to Leppert Hensley Mortuary Crematory, Inc. (Mortuary Parcel) per deed
recorded in the Office of the Hamilton County Recorder as Instrument Number 2002- 61980; thence North 88 degrees 23
minutes 47 seconds East on and along the South line of said Mortuary Parcel 270.10 feet to a point on the East line of said
Southeast Quarter; thence South 00 degrees 21 minutes 44 seconds East on and along said East line 50.00 feet; thence
South 88 degrees 23 minutes 47 seconds West 175.87 feet to a point on the Northwest comer of real estate conveyed 10
P.S.I. per deed recorded in the Office of the Hamilton County Recorder as Deed Record 231, Page 168 and the point of
curvature of a curve to the left having a radius of 1903.08; thence southerly on and along said curve an arc distance of
358.64 feet to the POINT OF BEGINNING, containing in all 12.21 acres, more or less.
Subject to the Right -of -way of 136 Street
Subject to the Right -of -way of Range Line Road
Subject to the Right -of -way of the Morton Railroad.
Subject to the Right -of -way of the Follett Morrow Legal Drain Easement.
Subject to all legal easements, rights -of -way, covenants, and restrictions,
*Note: This description has been prepared based upon instructions from the client and limited field observations by Mid
States Engineering, LLC. A boundary survey has not been performed by Mid States Engineering, LLC on the above
rative
described area per Indiana Survey Standards as defined in Title 865, Article 1,Rule a of h e I ndiana or any mi damages
Code. In no event will Mid States Engineering, LLC, Its employees, agents,
out of the furnishing and/or use of this description.
li
APPENDIX C TO DECLARATION C -18
TRADITIONS ON THE MONON