HomeMy WebLinkAboutDeclaration DRAFT 2012-12-03DRAF'I'
December 3, 2012 DECLARATION OF COVENANTS AND RESTRICTIONS
OF
HADLEY GROVE
This Declaration of Covenants and Restrictions of Hadley Grove "Community" is made
this day of , 2012 by M/I Homes of Indiana L.P., an Indiana limited partnership
(the "DECLARANT ").
WITNESSETH:
(RECITALS)
WHEREAS, DECLARANT is the Owner of real estate in Hamilton County, State of
Indiana, more particularly described in Exhibit "A" attached and made a part hereof, with
Exhibit "A" comprised of approximately 30.103 acres to be known as Hadley Grove and also
designated as "Initial Tract" and "Real Estate" in this Declaration.
WHEREAS, DECLARANT desires and intends to create on the Real Estate a residential
community with public streets, with possible identification signage, and complimentary
landscaping at the entranceway and landscaping with open spaces and amenities and with
detention ponds for surface water management while also serving as open space, all for the
benefit of such residential community, to be known as "Hadley Grove" (Exhibit "A ");
WHEREAS, DECLARANT desires to provide subject to this Declaration a common
interest community which addresses commonly owned real estate, their maintenance and other
maintenance obligations and the finances to honor these and other community obligations. To
this end, DECLARANT desires to subject the Initial Tract to certain rights, privileges,
covenants, restrictions, easements, assessments, charges and liens, each and all to the extent
herein provided, for the benefit of the Initial Tract and each Owner of all or part thereof; and
WHEREAS, DECLARANT deems it desirable, to accomplish these tasks in said Initial
Tract, to create an agency to which shall be delegated and assigned the powers of supervising,
maintaining and administering any common areas and maintenance expense areas detailed in the
Initial Tract, administering and enforcing the covenants and restrictions contained in this
Declaration, collecting and disbursing the assessments and charges imposed and created hereby
and hereunder, and promoting the common interest of the Owners of the Initial Tract, and all
parts thereof; and
WHEREAS, DECLARANT has caused, or will cause, to be incorporated under the
Indiana Code § 23 -17 -1, et seq., under the name "Hadley Grove Homeowners Association, Inc. ",
or a similar name, as such agency for the purpose of exercising such functions:
NOW THEREFORE, DECLARANT, as Owner of the Initial Tract hereby declares that
the Exhibit "A" Real Estate is and shall be held, transferred, sold, conveyed, hypothecated,
encumbered, leased, rented, used, improved and occupied subject to the provisions, agreements,
conditions, covenants, restrictions, easements, assessments, charges and liens hereinafter set
forth.
ARTICLE I
DEFINITIONS
Section 1. The following words and terms, when used herein or in any supplement or
amendment hereto, unless the context clearly requires otherwise, shall have the following
meanings:
(a) "Act" shall mean and refer to the Indiana Nonprofit Corporation Act of 1991, as
amended;
(b) "Applicable Date" or "Turnover Date" shall mean and refer to the date
determined pursuant to Article IV of this Declaration; and refers to the time at which the
DECLARANT relinquishes control of the governance of the Association as detailed on Article
IV;
(c) "Articles" shall mean and refer to the Articles of Incorporation of the Association,
as the same may be amended from time to time;
(d) "Association" (HOA) shall mean and refer to Hadley Grove Homeowners
Association, Inc., an Indiana corporation organized under Indiana Code 23 -17 -1, et seq., which
DECLARANT has caused, or will cause, to be incorporated under said name or a similar name,
its successors and assigns;
(e) "Board" or "Board of Directors" shall mean and refer to the governing body of
the Association elected, selected or appointed as provided for in the Articles, Bylaws and this
Declaration;
(f) "Bylaws" shall mean and refer to the Code of Bylaws of the Association, as the
same may be amended from time to time;
(g) "Committee" shall mean and refer to the "Hadley Grove Architectural Control
Committee ", the same being the committee or entity established pursuant to Article IX, of this
Declaration for the purposes therein stated;
(h) "Common Areas" denominated by such title on recorded plats of this community
and will ultimately be transferred in legal title to the HOA by the DECLARANT and thereafter
be commonly owned by the HOA Members. Common areas limited in use to less than all of the
owners, if any, are labeled "Limited Common Area." All common areas not labeled Limited
Common Area are General Common Areas available to all lot owners in the project.
The HOA at all times herein has rights as respects these common areas to regulate the use
thereof, to make and/or remove improvements thereon, including but not limited to landscaping,
to provide utilities thereto with the attendant responsibility to care for and maintain same.
The DECLARANT expects to convey legal title to Common Areas to the HOA as soon
after the Applicable Date as any mortgage thereon is satisfied in full but reserves the right to
transfer such title earlier in DECLARANT's sole discretion. The Board, after the initial Board
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is replaced, is empowered to accept title subject to a mortgage if it is satisfied with assurances of
payment thereof by DECLARANT;
(i) "Common Expenses" shall refer to expenses of administration of the HOA and for
their exercised rights and obligations detailed in the Definitions "Common Areas" and
Maintenance Expense Areas and shall also include the cost of overseeing areas designated on
recorded plats of the Community labeled "Common Area ";
(j) "Community or Project" refers to Hadley Grove as depicted on Exhibit B as it is
developed and as it continues to exist after the Applicable Date (also, referred to as the
Conceptual Site Plan Exhibit `B ");
(k) "Conceptual Site Plan" (Exhibit B), the Conceptual Site Plan, the Exhibit A real
estate for the initial and possible final Community. DECLARANT reserves the right to relocate
and/or reconfigure the detention ponds and open space or common areas as precise engineering
for the site may dictate. The Initial Tract shall be comprised of 38 Lots;
(1) "DECLARANT ", ALSO KNOWN AS "DEVELOPER" SHALL MEAN AND
REFER TO M/I Homes of Indiana L.P., AN INDIANA LIMITED PARTNERSHIP, AND ANY
SUCCESSORS AND THEIR ASSIGNS INCLUDING, BUT NOT LIMITED TO, ANY
MORTGAGEE ACQUIRING TITLE, TO ANY PORTION OF THE REAL ESTATE
PURSUANT TO THE EXERCISE OF RIGHTS UNDER, OR FORECLOSURE OF, A
MORTGAGE EXECUTED BY DECLARANT;
(m) "Dwelling Unit" shall refer to a single free - standing residential structure on an
individual or multiple lots;
(n) "Initial Tract" shall refer to the Exhibit A real estate to be platted as Hadley
Grove;
(o) "Lot" means any plot of ground designated as such upon the recorded Final Plat
of Hadley Grove, and upon which one (1) Dwelling Unit is constructed or is to be constructed.
When Lot is used it shall be deemed to include the Dwelling Unit, if any, located thereon;
(p) "Maintenance Expense Areas." Certain aesthetic, informational and other
amenities influenced by the natural features of the Real Estate have been used in the
development design to differentiate this community from other communities. As a consequence
thereof, easement areas or improvements in dedicated rights -of -ways have or will be created
shown on recorded plats that reserve to DECLARANT and after the applicable Date the HOA
certain rights and/or responsibilities. Illustrative of these areas are the following:
(1) The traffic and informational /directional signage throughout the public
streets subject to this Declaration.
(2) The identification walls at the Community entrance and complimentary
landscaping and possibly water and electric service for such identification
within easements designated on recorded plats. Grass within these areas
shall be the manicure responsibility of Lot owners directly affected with
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(3)
all other maintenance and utility cost being a common expense. The
initial identification wall will be located at the intersection of Olio Road
with the right but not the obligation to have some identification in
easements reserved as shown on the recorded plat.
If the DECLARANT or the HOA after the applicable Date contracts,
under lease, with an electric utility to install street lighting in the
Community the Lease payments shall be a common expense;
(q) "Member" means a Member of the Association;
(r) "Mortgagee" shall mean and refer to the holder of a recorded first mortgage lien
on a Lot or Dwelling Unit;
(s) "Open Space Areas /Common Areas." In addition to the detention ponds being
open space areas, other space labeled as noted is contemplated, some of which may be limited
common area;
(t) "Owner" shall mean and refer to the record Owner, whether one or more Persons,
of the fee simple title to any Lot, but in any event shall not include or mean or refer to a
mortgagee or tenant unless and until such mortgagee or tenant has acquired title to any Lot, but
upon so acquiring title to any Lot a mortgagee or tenant shall be an Owner;
(u) "Person" shall mean and refer to an individual, firm, corporation, partnership,
association, trust, or other legal entity, or any combination thereof;
(v) "The Real Estate" shall mean and refer to the parcel of real estate in Hamilton
County, Indiana, described in Exhibit A and B attached to this Declaration and subject thereto, as
referred to in the first recital clause of this Declaration, and defined therein as the Real Estate;
The description of Hadley Grove consists of 38 Lots numbered 1 through 38 inclusive.
Consequently, the legal description for each Lot in this subdivision shall be as follows:
Lot in Hadley Grove, a subdivision in Hamilton County,
Indiana, as per plat thereof, recorded January 2013 as
Instrument # in the Office of the Recorder of
Hamilton County, Indiana.
(w) "Restrictions" shall mean and refer to the agreements, conditions, covenants,
restrictions, easements, assessments, charges, liens and all other provisions set forth in this
Declaration, as the same may be amended from time to time (see Article X);
(x) "Rules and Regulations" - rules and regulations relative to the use, occupancy,
operation and enjoyment of the Real Estate, Common Areas and individual lots that are part of
this Development.
Section 2. Other terms and words defined elsewhere in this Declaration shall have
the meanings herein attributed to them.
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ARTICLE II
DECLARATION
Section 1. Declaration. DECLARANT hereby expressly declares that the Initial
Tract shall be held, transferred and occupied subject to the Restrictions as Covenants running
with the Real Estate. The Owners of any Lot subject to these Restrictions, and all other Persons,
by (i) acceptance of a deed conveying title thereto, or the execution of a contract for the purchase
thereof, whether from DECLARANT or a subsequent Owner of such Lot, or (ii) by the act of
occupancy of any Lot, shall conclusively be deemed to have accepted such deed, executed such
contract and undertaken such occupancy subject to each Restriction and agreement herein
contained. By acceptance of such deed, or execution of such contract, or undertaking such
occupancy, each Owner and all other Persons acknowledge the rights and powers of
DECLARANT, the Committee and of the Association with respect to these Restrictions, and
also for itself, its heirs, personal representatives, successors and assigns, covenant, agree and
consent to and with DECLARANT, the Committee, the Association, and the Owners and
subsequent Owners of each of the Lots affected by these Restrictions to keep, observe, comply
with and perform such Restrictions and agreement.
ARTICLE III
OBLIGATIONS OF DECLARANT
Section 1. Agreement to Construct. DECLARANT has constructed or provided
for, or will prior to the Applicable Date construct or provide for, the following:
(a) a storm drainage system for the Real Estate, which will include detention areas as
generally shown on Exhibit B, inlet pipes, open ditches, swales, pipes and other structures and
drainage courses;
(b) at the sole discretion of the DECLARANT, the installation in the designated
easements of the subdivision identification signage and landscaping at the Olio Road
entranceway to Hadley Grove and possible water and electric service to accommodate same;
ARTICLE IV
ASSOCIATION; MEMBERSHIP; VOTING; FUNCTIONS
Section 1. Membership in Association. DECLARANT and each Owner of a Lot
shall, automatically upon becoming an Owner, be and become a Member of the Association and
shall remain a Member until such time as his ownership of a Lot ceases, but membership shall
terminate when such Owner ceases to be an Owner, and membership will be transferred to the
new Owner of his Lot; provided, however, that any Person who holds the interest of an Owner in
a Lot merely as security for the performance of an obligation shall not be a Member until and
unless he realizes upon his security, at which time he shall automatically be and become an
Owner and a Member of the Association.
Section 2. Voting Rights. The Association shall have the following classes of
membership, with the following voting rights:
(a) 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 Association, but all of such Persons shall
have only one (1) vote for such Lot, which vote shall be exercised as they among themselves
determine and as amplified in the By Laws if such determination is unavailable, but in no event
shall more than one (1) vote be cast with respect to any such Lot. Attendance at properly called
Association meetings by one Member of a jointly titled Lot shall vest in such sole attending
Member the entire one (1) vote;
(b) Class B. Class B Members shall be DECLARANT and all successors and
assigns of DECLARANT designated herein as DECLARANT as Class B Members in a written
notice mailed or delivered to the resident agent of the Association. Each Class B Member shall
be entitled to four (4) votes for each Lot designated on the Conceptual Site Plan Exhibit B on all
matters requiring a vote of the Members of the Association. THE CLASS B MEMBERSHIP
SHALL CEASE AND TERMINATE UPON THE FIRST TO OCCUR OF
(i) THIRTY (30) DAYS AFTER THE DATE UPON WHICH THE
WRITTEN RESIGNATION OF THE CLASS B MEMBERS IS DELIVERED TO THE
RESIDENT AGENT OF THE ASSOCIATION; OR
(ii) THIRTY (30) DAYS AFTER THE DATE WHEN THE LOTS SUBJECT
TO THIS DECLARATION ARE TITLED IN NAMES OTHER THAN THE DECLARANT
OR AN ASSIGNEE OF THE DECLARANT;
(iii) TEN (10) YEARS AFTER THE DATE OF RECORDATION OF THIS
DECLARATION.
THE DATE APPLICABLE TO THE ABOVE IS HEREINAFTER REFERRED TO AS THE
"APPLICABLE DATE ".
After the Applicable Date, Class B memberships shall be converted to Class A
memberships, and each former Class B Member shall be entitled to one, (1) Class A membership
for each Lot owned.
Section 3. Functions. The Association has been (or will be) formed for the purpose
of providing for the maintenance, repair, replacement, administration, operation of the Article III
Section 1 matters and, to pay any other necessary expenses and costs related thereto, and to
perform such other functions as may be designated for it to perform under this Declaration.
ARTICLE V
BOARD OF DIRECTORS
Section 1. Management. The business and affairs of the Association shall be
governed and managed by the Board of Directors. No person shall be eligible to serve as a
Member of the Board of Directors unless he is, or is deemed in accordance with this Declaration
to be, an Owner, or a person appointed by DECLARANT as provided in Section 2 of this
Article V.
Section 2. Initial Board of Directors. The initial Board of Directors shall be
composed of the persons designated or to be designated, in the Articles (herein referred to as the
"Initial Board" or "Board "), who have been or shall be appointed by DECLARANT.
Notwithstanding anything to the contrary contained in, or any other provision of, this
Declaration, the Articles, the Bylaws or the Act (a) the Initial Board shall hold office until the
first annual meeting of the Members of the Association occurring on or after the Applicable
Date, and (b) in the event of any vacancy or vacancies occurring in the Initial Board for any
reason or cause whatsoever prior to such first annual meeting occurring on or after the
Applicable Date determined as provided above, every such vacancy shall be filled by a person
appointed by DECLARANT, who shall thereafter be deemed a Member of the Initial Board.
Each Owner, by acceptance of a deed to a Lot, or by acquisition of any interest in a Dwelling
Unit by any type of judicial acts inter vivos or causa mortis, or otherwise, shall be deemed to
have appointed DECLARANT as such Owner's agent, attorney -in -fact and proxy, which shall
be deemed coupled with an interest and irrevocable until the Applicable Date determined as
provided above, to exercise all of said Owner's right to vote, and to vote as DECLARANT
determines, on all matters as to which Members of the Association are entitled to vote under the
Declaration, the Articles, the Bylaws, the Act or otherwise. This appointment of DECLARANT
as such Owner's agent, attorney -in -fact and proxy shall not be affected by incompetence of the
Owner granting the same. Each Person serving on the Initial Board, whether as an original
Member thereof or as a Member thereof appointed by DECLARANT to fill a vacancy, shall be
deemed a Special Member of the Association and an Owner solely for the purpose of qualifying
to act as a Member of the Board of Directors and for no other purpose. No such person serving
on the Initial Board shall be deemed or considered a Member of the Association nor an Owner of
a Lot for any other purpose (unless he is actually the Owner of a Lot and thereby a Member of
the Association).
Section 3. Additional Qualifications. Where an Owner consists of more than one
Person or is a partnership, corporation, trust or other legal entity, then one of the Persons
constituting the multiple Owner, or a partner or an officer or trustee shall be eligible to serve on
the Board of Directors, except that no single Lot or Dwelling Unit may be represented on the
Board of Directors by more than one Person at a time.
Section 4. Term of Office, Vacancy and Number of Directors After the
Applicable Date.
(a) Term. Subject to the provisions of Section 2 of this Article V, the entire
membership of the Board of Directors shall be elected at each annual meeting of the Association.
The Initial Board shall be deemed to be elected and re- elected as the Board of Directors at each
annual meeting until the first annual meeting of the Members occurring on or after the
Applicable Date provided herein. After the Applicable Date, each Member of the Board of
Directors shall be elected for terms of 1 -3 years so that one third of terms expire annually.
Each Director shall hold office throughout the term of his election and until his successor is
elected and qualified.
(b) Number of Directors After Applicable Date. The number of Directors to serve on
the Board after the Applicable Date shall be a minimum of three (3) with a maximum of five (5).
(c) Vacancies. Subject to the provisions of Section 2 of this Article V as to the Initial
Board, any vacancy or vacancies occurring in the Board shall be filled by a vote of a majority of
the remaining Members of the Board or by vote of the Owners if a Director is removed in
accordance with Section 5 of this Article V. The Director so filling a vacancy shall serve until
the next annual meeting of the Members and until his successor is elected and qualified. At the
first annual meeting following any such vacancy, a Director shall be elected for the balance of
the term of the Director so removed or in respect to whom there has otherwise been a vacancy.
Any vacancy of Directorship held by a member of the DECLARANT must be replaced by a
person designated by DECLARANT.
Section 5. Removal of Directors. A Director or Directors, except the Members of
the Initial Board, may be removed with or without cause by vote of a majority of the votes
entitled to be cast at a special meeting of the Owners duly called and constituted for such
purpose. In such case, his successor shall be elected at the same meeting from eligible Owners
nominated at the meeting. A Director so elected shall serve until the next annual meeting of the
Owners or until his successor is duly elected and qualified. Any vacancy of Directorship held by
a member of the DECLARANT must be replaced by a person designated by DECLARANT.
Section 6. Duties of the Board of Directors. The Board of Directors shall be the
governing body of the Association representing all of the Owners and being responsible for the
functions and duties of the Association, including but not limited to providing for the
administration of the Real Estate, the management, maintenance, repair, upkeep and replacement
of the Common Areas (unless the same are otherwise the responsibility or duty of Owners), and
the collection and disbursement of the Common Expenses. The Board may employ a Managing
Agent upon such terms as the Board shall find, in its discretion, reasonable and customary. The
Managing Agent, if one is employed, shall assist the Board in carrying out its duties, which
include, but are not limited to:
(a) procuring of utilities used in connection with the Lots, Dwelling Units and
Common Areas (to the extent the same are not provided and billed directly to Owners of Lots
and Dwelling Units by utility companies);
(b) assessment and collection from the Owners of the Owners' respective shares of
the Common Expenses;
(c) preparation of the proposed annual budget, a copy of which will be made
available to each Owner at the same time as the notice of the annual or special meeting at which
the same is to be acted upon is mailed or delivered;
(d) preparing and making available annually to the Owners a full accounting of all
receipts and expenses incurred in the prior year; Such accounting shall be delivered to each
Owner within sixty (60) days of the closing of the fiscal year for the Association.
(e) keeping a current, accurate and detailed record of receipts and expenditures
affecting the Common Areas and the business and affairs of the Association, specifying and
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itemizing the Common Expenses; all records and vouchers shall be available for examination by
an Owner at any time during normal business hours by reasonable pre - arrangement;
(f) procuring and maintaining for the benefit of the Association, the Owners, any
Managing Agent and the Board the insurance coverage's required under this Declaration and
such other insurance coverage's as the Board, in its sole discretion, may deem necessary or
advisable;
(g) paying any other necessary expenses and costs in connection with the Common
Areas (including open space common areas) and including the overseeing of open space
preservation areas that are not common areas but instead are impositions by Easement within the
confines of lots; and
(h) all duties and obligations imposed upon the Association or the Board under this
Declaration, the Articles, the Bylaws or the Act.
Section 7. Powers of the Board of Directors. The Board of Directors shall have
such powers as are reasonable and necessary to accomplish the performance of their duties.
These powers include, but are not limited to, the power:
(a) to employ a Managing Agent to assist the Board in performing its duties;
(b) to purchase, lease or otherwise obtain for the Association, to enable it to perform
its functions and duties, such equipment, materials, labor and services as may be necessary in the
judgment of the Board of Directors;
(c) to employ legal counsel, architects, Contractors, accountants and others as in the
judgment of the Board of Directors may be necessary or desirable in connection with the
business and affairs of the Association;
(d) to employ, designate, discharge and remove such personnel as in the judgment of
the Board of Directors may be necessary for the maintenance, upkeep, repair and replacement of
the Common Areas, and to perform all other maintenance, upkeep, repair and replacement duties
of the Association and the Board;
(e) to include the costs of performing all of its functions, duties and obligations as
Common Expenses and to pay all of such costs therefrom;
(f) to open and maintain a bank account or accounts in the name of the Association;
(g) to promulgate, adopt, revise, amend and alter from time to time such additional
Rules and Regulations with respect to use, occupancy, operation and enjoyment of the Real
Estate (Lots) and the Common Areas (in addition to those set forth in this Declaration) including
but not limited to charging uniform fees for the use of Common Areas and to set and charge fees
for late payment of assessments and fines for violations of Restrictions and Covenants and Rules
and Regulations as the Board, as allowed by Indiana Law, that copies of any such additional
rules and regulations so adopted by the Board shall be promptly delivered to all Owners; any
elimination, modification, or addition of Rules & Regulations shall require the written approval
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of the DECLARANT so long as DECLARANT owns any lot which approved shall not be
unreasonably delayed, conditioned, or withheld.
(h) to grant to such public or private companies, entities or bodies as the Board may
approve, such easements as may be necessary to provide the Lots, and Dwelling Units and
Common Areas with facilities for utility and similar services, including but not limited to cable
television facilities and service, provided that such easements are located within or are
coextensive with any one or more utility easements, maintenance and access easement, landscape
and maintenance easements, shown upon, and identified as such on, or provided for in, any
subdivision plat of the Real Estate, whether such plat is heretofore or hereafter recorded;
(i) shall have the right to convey title of Common Area to Lot Owners to correct any
overlaps or encroachments; and
(j) to borrow funds to perform its duties for the benefit of the Association and
Owners and use the assessments as collateral, if collateral is required, to secure such financing.
Section 8. Limitation on Board Action. After the Applicable Date, the authority of
the Board to enter into contracts shall be limited to contracts involving a total expenditure of less
than $50,000.00 per year without obtaining the prior approval of a majority of the cumulative
vote of the Owners, except that in the following cases such approval shall not be necessary:
(a) contracts for replacing or restoring portions of the Common Areas damaged or
destroyed by fire or other casualty where the cost thereof is payable out of insurance proceeds
actually received or for which the insurance carrier as acknowledged coverage;
(b) proposed contracts and proposed expenditures expressly set forth in the proposed
annual budget as approved by the Owners at the annual meeting; and
(c) expenditures necessary to deal with emergency conditions in which the Board of
Directors reasonably believes there is insufficient time to call a meeting of the Owners.
Section 9. Compensation. No Director shall receive any compensation for his
services as such except to such extent as may be expressly authorized by a majority vote of the
Owners. The Managing Agent, if any is employed, shall be entitled to reasonable compensation
for its services, the cost of which shall be a Common Expense.
Section 10. Non - Liability of Directors. The Directors shall not be liable to the
Owners or any other Persons for any error or mistake of judgment exercised in carrying out their
duties and responsibilities as Directors, except for their own individual willful misconduct, bad
faith or gross negligence. The Association shall indemnify and hold harmless and defend each of
the Directors against any and all liability to any person, firm or corporation arising of contracts
made by the Board on behalf of the Association, unless any such contract shall have been made
in bad faith. It is intended that the Directors shall have no personal liability with respect to any
contract made by them on behalf of the Association.
Section 11. Additional Indemnity of Directors. The Association shall indemnify,
hold harmless and defend any Person, his heirs, assigns and legal representatives, made a party to
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any action, suit or proceeding by reason of the fact that he is or was a Director of the
Association, 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 relation
to matters as to which it shall be adjudged in such action, suit or proceeding that such Director is
liable for gross negligence or misconduct in the performance of his duties. The Association shall
also reimburse to 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 Association 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 Association 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.
Section 12. Bond. The Board of Directors may provide surety bonds and may require
the Managing Agent (if any), the treasurer of the Association, and such other officers as the
Board deems necessary, to provide surety bonds, indemnifying the Association against larceny,
theft, embezzlement, forgery, misappropriation, wrongful, abstraction, willful misapplication and
other acts of fraud or dishonesty, in such sums and with such sureties as may be approved by the
Board of Directors and any such bond shall specifically include protection for any insurance
proceeds received for any reason by the Board. The expense of any such bonds shall be a
Common Expense.
Section 13. Initial Management. Notwithstanding anything to the contrary contained
in this Declaration, DECLARANT shall have, and DECLARANT hereby reserves to
DECLARANT, the exclusive right to manage or designate a Managing Agent for the Real
Estate and Common Areas, and to perform all the functions of the Association, until the
Applicable Date. DECLARANT may, at its option, engage a Managing Agent affiliated with it
to perform such functions and, in either case, DECLARANT or such Managing Agent shall be
entitled to reasonable compensation for its services.
ARTICLE VI
REAL ESTATE TAXES; UTILITIES
Section 1. Real Estate Taxes. Real estate taxes on each Lot, and on any Dwelling
Unit or other improvements on each Lot, are to be separately assessed and taxed to each Lot and
shall be paid by the Owner of such Lot.
Section 2. Utilities. Each Owner shall pay for his own utilities which, to the extent
possible, shall be separately metered to each Lot and Dwelling Unit. Utilities which are not
separately metered to an Owner's Lot or Dwelling Unit including utilities (if any) to community
identification signage shall be treated as and paid as part of the Common Expense, unless
otherwise determined by the Association.
ARTICLE VII
ENCROACHMENTS AND EASEMENTS IN COMMON AREAS
If by reason of inexactness of construction, settling after construction, or for any other
reasons, any Common Areas encroach on any Lot, an easement shall be deemed to exist and run
to the Corporation for the maintenance, use and enjoyment of such Common Areas.
Each Owner shall have an easement in common with each other Owner to use all pipes,
wires, ducts, cables, conduits, utility lines and other common facilities, if any, in the Common
Areas and serving his Dwelling Unit.
ARTICLE VIII
DELINEATION OF HOMEOWNERS ASSOCIATION VERSUS LOT OWNERS'
MAINTENANCE, ETC. OBLIGATIONS
Section 1. Homeowners Association Obligations. Maintenance of the Common
Area, unless the same is otherwise the responsibility or duty of Owners of Lots shall be provided
by the Corporation, however, this duty shall not include or be deemed or interpreted as a
requirement that the Corporation, the Board or any Managing Agent must provide any on -site or
roving guards, security service or security system.
(a) Retention Ponds. Hadley Grove has retention ponds. These are common areas.
Other retention ponds that may be installed as the project develops will be likewise designated as
common area and maintained by the HOA.
Section 2. Maintenance of Individual Lots. Except as otherwise noted, each Owner
shall be responsible for maintaining and keeping his Lot and all improvements thereon not
provided by the Association in a good, clean and sanitary condition, with an appearance which is
complementary to the Subdivision. If any Owner shall fail to maintain and keep his property or
any part thereof in a good, clean and sanitary condition with an exterior appearance up to the
general standards of Hadley Grove Subdivision, the Corporation may perform any work
necessary and charge the Owner thereof for such cost which shall be immediately due, and shall
be secured by the Corporation's lien on the Owner's property in like manner to liens created for
Assessments hereunder. Each Owner, by his acceptance of a deed to any Lot, irrevocably grants
to the Corporation, its agents and employees, the right to enter upon, across and over the Lot
owned by such Owner under such conditions as are reasonably necessary to affect the
maintenance, cleaning, repair or other work permitted herein.
Section 3. Damage to or Abuse of Common Area. If, due to the willful, intentional
or negligent acts or omissions of an Owner, or of a member of the Owner's family, or of a guest,
tenant, or invitee or other occupant or visitor of the Owner, damage is caused to Common Areas
or repairs and maintenance are accelerated relative to the Association's obligations and some
maintenance or repairs are required, the Owner shall be required to pay for such damage. Upon
demand by the Board, the cost of such repairs shall be immediately due and payable, and if not
paid, a lien in like manner to the lien under Assessments may attach to the Owner's property, and
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costs of collection and reasonable attorney fees shall be added to any judgment entered on behalf
of the Corporation.
Section 4. Access to Lots and Easements. The authorized representatives of the
DECLARANT, the Association, the Board and the Managing Agent for the Association (if any)
shall be entitled to reasonable access to any Lot as may be required in connection with
maintenance, repairs or replacements of or to the Common Areas and items, including, but not
limited to, access to any easements reserved, granted or created by any subdivision plat or of any
portion of the Real Estate for such purposes.
ARTICLE IX
ARCHITECTURAL STANDARDS
Nothing, including any fence, deck, retaining walls, recreational equipment (including
basketball goals), or any structure, storage shed, doghouse or other improvements, shall be
erected on any Lot, and no construction, which term shall include within its definition staking,
clearing, excavation, grading, and other site work, no exterior alteration or modification of any
residence or existing improvements, and no plantings or removal of plants, trees, or shrubs shall
take place except in strict compliance with this Article, until the requirements below have been
fully met, and until the approval of the Committee has been obtained pursuant to Section 1
below.
THIS ARTICLE SHALL NOT APPLY TO THE ACTIVITIES OF THE DECLARANT,
NOR TO CONSTRUCTION OR IMPROVEMENTS OR MODIFICATIONS TO THE
COMMON AREAS BY OR ON BEHALF OF THE ASSOCIATION.
THIS ARTICLE MAY BE AMENDED BY DECLARANT, SO LONG AS THE
DECLARANT OWNS ANY LAND SUBJECT TO THIS DECLARATION.
This committee has the right to assign to the property manager to approve some or all
Architectural Control Requests that fall within the scope of the Architectural Standards,
Guidelines, Rules and Covenants. If the property manager determines the documents provide
inadequate direction the property manger should seek guidance from the Committee and the
Board of Directors.
Section 1. Architectural Control Committee. There shall be, and hereby is, created
and established the "Hadley Grove Architectural Control Committee" ( "Committee "), consisting
of DECLARANT, which shall have exclusive jurisdiction over all construction on any portion
of the Properties. UNTIL 100% OF THE PROPERTIES HAVE BEEN DEVELOPED AND
CONVEYED TO PURCHASERS in the normal course of development and sale, the
DECLARANT, or not more than five, nor less than three, persons designated by it, SHALL
CONSTITUTE THE COMMITTEE AND SHALL SERVE AT THE DISCRETION OF THE
DECLARANT. THERE SHALL BE NO SURRENDER OF THIS RIGHT PRIOR TO THAT
TIME EXCEPT IN A WRITTEN INSTRUMENT IN RECORDABLE FORM EXECUTED BY
THE DECLARANT. IN ALL INSTANCES, AT LEAST ONE MEMBER OF THIS
COMMITTEE WILL BE DESIGNATED BY DECLARANT. After the sale of 100% of the
Properties, the Committee shall be a standing committee of the Association, consisting of not
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more than five, nor less than three, persons as may, from time to time, be provided in the
Bylaws. If the Bylaws do not at any time provide for the Committee, then the Board shall be and
constitute the Committee.
Section 2. Approval Process. The Committee has prepared and promulgated, on
behalf of the Board of Directors, design and development guidelines and application and review
procedures. Copies are on file in the office of the DECLARANT (or the Association, as the
case may be) which are incorporated into this Declaration by reference. The guidelines and
procedures shall be those of the Association, and the Committee shall have sole and full
authority to prepare and to amend them. It shall make the guidelines and procedures available to
Owners, builders, and developers who seek to engage in development of or construction,
modification, addition or alteration made on or to any existing structure, upon all or any portion
of the Properties and such Owners and builders shall conduct their operations strictly in
accordance therewith. The Committee, or its designee, must give written approval for any
building contractor selected by the Lot Owner for construction.
Prior to any construction on any Lot, the approval of the Committee must be obtained
after written application has been made to the Committee by the Owner of the Lot requesting
authorization from the Committee. Such written application shall be made in the manner and
form prescribed from time to time by the Committee in its guidelines and procedures which will
contain requirements to promote the standard of quality of workmanship and design and
harmony of external design with existing structures, location in relation to surrounding
structures, topography and finish grade elevation as determined by the Committee.
Section 3. Power of Disapproval. The Committee may refuse to grant permission to
construct, place or make the requested improvement, when:
(a) the plans, specifications, drawings or other material submitted are, themselves,
inadequate or incomplete, or show the proposed improvement to be in violation of these
Declarations, the plat restrictions or any rules, regulations or guidelines adopted by the
Committee;
(b) the design or color scheme of a proposed improvement or the materials proposed
to be used are not in harmony with the general surroundings of the Lot or with adjacent buildings
or structures in the sole opinion of the Committee;
(c) the proposed improvement, or any part thereof, would, in the sole opinion of the
Committee, be contrary to the interest, welfare or rights of all or part of other Owners; or
(d) the removal or placement of landscaping or structures in the open space
preservation easements.
Section 4. Duties of Committee. The Committee shall approve or disapprove
proposed improvements within fifteen (15) calendar days after all required information shall
have been submitted to it. One copy of submitted material shall be retained by the Committee
for its permanent files. All notifications to applicants shall be in writing, and in the event that
such notification is one of disapproval, it shall specify the reason or reasons therefore. In the
event that the Committee fails to provide written notice of approval or to request written notice
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for additional information within 45 days after submission of all required or requested
information, the plans shall be deemed and presumed denied. MUST HAVE WRITTEN
APPROVAL BY COMMITTEE. NO VERBAL APPROVALS ALLOWED.
Section 5. No Waiver of Future Approvals. The approval of the Committee of any
proposals or plans and specifications or drawings for any work done or proposed, or in
connection with any other matter requiring the approval and consent of such Committee, shall
not be deemed to constitute a waiver of any right to withhold approval or consent as to any
similar proposals, plans and specifications, drawings, or matters whatever subsequently or
additionally submitted for approval or consent.
Section 6. Variance. The Committee may authorize variances from compliance with
any of its guidelines and procedures when circumstances such as topography, natural
obstructions, hardship, or aesthetic or environmental considerations require, but only in
accordance with duly adopted rules and applicable zoning laws, ordinances and regulations.
Such variances may only be granted, however, when unique circumstances dictate and no
variance shall (a) be effective unless in writing, (b) be contrary to the restrictions set forth in the
body of this Declaration, or (c) estop the Committee from denying a variance in other
circumstances. For purposes of this Section, the inability to obtain approval of any governmental
agency, the issuance of any permit, the terms of any financing, or the initiation of work without
the required approval of the Committee shall not be considered hardships warranting a variance.
Section 7. Compliance with Guidelines. Any contractor, subcontractor, agent,
employee, or other invitee of an Owner who fails to comply with the terms and provisions of the
guidelines and procedures promulgated by the Committee may be excluded by the Committee
from the Properties without liability to any person, subject to the notice and hearing procedures
contained in the Bylaws. Further, if any approval required by this Declaration is not granted in
writing with respect to any item prior to its installation, the respective Owner thereof shall
remove promptly the unapproved item or structure, upon request by DECLARANT or the
Association.
Section 8. Non - Liability of DECLARANT, Committee. Neither the
DECLARANT, nor the Committee shall be responsible in any way for any defect in any plans,
specifications or other materials submitted to it, nor for any defects in any work done according
thereto. Further, the Committee, or DECLARANT does not make, and shall not be deemed by
virtue of any action of approval or disapproval taken by it to have made, any representation or
warranty as to the suitability or advisability of the design, the engineering, the method of
construction involved, or the materials to be used or as to the compliance of any plans submitted
for approval with these Restrictions, any recorded plat governing the Real Estate or any
applicable code, regulation or law.
Section 9. Inspection. The Committee and the DECLARANT and/or any property
management organizations personnel may inspect work being performed to assure compliance
with these Restrictions, the plat restrictions and applicable regulations. However, neither the
Committee, nor any Member thereof, nor the DECLARANT, nor any agent or contractor
employed or engaged by the Committee, or DECLARANT, shall be liable or responsible for
defects, nonconformity or deficiencies in any work inspected or approved by it or them, or on its
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or their behalf. Further, no such inspection or approval given by or on behalf of the Committee,
or the DECLARANT shall be taken or deemed to be or constitute a warranty or guaranty of the
work so inspected or approved.
Section 10. No Compensation. Neither the Committee nor any of its Members shall
be entitled to any compensation for performing its duties or obligations set forth in this
Declaration.
ARTICLE X
USE RESTRICTIONS /COVENANTS AND REGULATIONS
The following covenants and restrictions contained below and made a part hereof
concerning the use and enjoyment of the Lots, Dwelling Units, Common Areas and (Article
VIII) are in addition to any other covenants or restrictions contained herein and in the Final
Plat(s) of Hadley Grove. All such covenants and restrictions are for the mutual benefit and
protection of the present and future Owners and shall run with the land and inure to the benefit of
and are enforceable by an Owner, or by the Association. In addition to any other remedies
herein provided, present or future Owners or the Association shall be entitled to injunctive relief
against any violation or attempted violation of any such covenants and restrictions, and shall, in
addition, be entitled to damages for any injuries or losses resulting from any violations thereof
including reasonable attorney fees, but there shall be no right or reversion or forfeiture resulting
from such violation.
Section 1. DECLARANT'S and the Association's Rights to Perform Certain
Maintenance and Removal. In the event that the Owner of a Lot shall fail to maintain his Lot
and any improvements, or remove any unauthorized item or structure, situated thereon in
accordance with the provisions of these Restrictions and the provisions of any recorded plat of
the Real Estate, the DECLARANT, until the Applicable date, and, thereafter, the Association
through its agents and employees or contractors, should have the right to enter upon said Lot and
repair, mow, clean, remove or perform such other acts as may be reasonable necessary, to make
such Lot and improvements situated thereon, if any, conform to the requirements of these
Restrictions and the provisions contained in any such plat. The cost thereof to the
DECLARANT or the Association shall be collected as a special assessment against such Owner
and his Lot in the manner provided for herein for the collection of Common Expenses. Neither
the DECLARANT nor the Association, nor any of its agents, employees or contractors, shall be
liable for any damage with may result from any maintenance work performed hereunder.
Section 2. Ditches and Swales and Erosion Control. It shall be the duty of the
Owner of any Lot on which any part of an open storm drainage ditch or swale is situated to keep
such portion thereof as may be situated upon his Lot continuously unobstructed (both by
improvements and plant material) and in good repair, and to provide for the installation of such
culverts upon said Lot as may be reasonable necessary. It shall be the duty of the Owner of any
Lot to establish as needed and to maintain all erosion control on his or her respective Lot.
Section 3. Drilling. No oil, gas or water drillings, oil or gas development operations,
oil or gas refining, quarries or mining operations of any kind shall be permitted upon or in any
Lot, nor shall oil wells, tanks, tunnels, mineral excavations or shafts be permitted upon or in any
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Lot. No derrick or other structure designed for use in boring for oil, water or natural gas shall be
erected, maintained or permitted on any Lot.
Section 4. Ground Elevations and Erosion Control. It shall be the Lot Owner's
responsibility to maintain and comply with all building and site finish ground elevations and
erosion control as finally required and approved by Hamilton County, the Town of Fishers or
other municipal government if the community is annexed to said municipal governments
department of planning and zoning as evidenced upon the final construction plan for the
development of this subdivision.
Section 5. Insurance Impact. Nothing shall be done or kept by and Owner in any
Dwelling Unit, or on any Lot, or on any of the Common Areas, which will cause an increase in
the rate of insurance on any Common Areas. No Owner shall permit anything to be done or kept
in his Dwelling Unit or on his Lot which will result in a cancellation of insurance on any part of
the Common Areas, or which would be in violation of any law or ordinance or the requirements
of any insurance underwriting or rating bureau.
Section 6. Landscape Easements. There are strips and areas of ground shown titled
as various easements on the Final Plat for the Real Estate which are hereby reserved for the use
of owners of lots to the extent and limited for the purposes set forth in the Declaration and for the
use of DECLARANT and Association for the installation, maintenance, repair and replacement
of the matters detailed in Item 1(i) requiring maintenance. Except as installed and maintained by
lot owners, pursuant to the requirements of the Declarations, or by DECLARANT and the
Association, no permanent or other structure (except walls, sidewalks and fences otherwise
permitted hereby or by the DECLARANT and approved by the Board) shall be erected or
maintained on said strips and areas by the owner of any lot subject to any such "Landscape
Easement ", and the owners of such lots affected by any such "Landscape Easement" shall take
and hold title to their lots subject to the foregoing rights of the DECLARANT and the
Association and shall not do or permit to be done anything which will obstruct or interfere with
or remove any installations or landscaping made by the DECLARANT or Association in any
such "Landscape Easement ". The foregoing grant of rights to the DECLARANT shall not
impose an obligation on the DECLARANT to undertake such maintenance unless it elects to do
SO.
Section 7. Maintenance of Lots and Improvements. It shall be the responsibility
of each Owner to prevent the occurrence of any unclean, unhealthy, unsightly, or unkempt
condition on his or her Lot. The pursuit of hobbies or other activities, including specifically,
without limiting the generality of the forgoing, the assembly and disassembly of motor vehicles
and other mechanical devices, which might tend to cause disorderly, unsightly, or unkempt
conditions, shall not be pursued or undertaken on any part of the Properties. No waste shall be
committed in any Dwelling or on any Lot. Each Owner shall:
(a) Remove all debris or rubbish;
(b) Prevent the existence of any other condition that reasonably tends to detract from
or diminish the aesthetic appearance of the Real Estate;
(c) Cut down and remove dead trees;
(d) Where applicable, prevent debris and foreign material from entering drainage
areas; and
(e) Keep the exterior of all improvements in such a state of repair or maintenance as
to avoid their becoming unsightly.
Section 8. Occupancy and Residential Use of Partially Completed Dwelling
House Prohibited. No Dwelling Unit constructed on any of the Lots shall be occupied or used
for residential purposes or human habitation until it shall have been substantially completed.
The determination of whether the Dwelling Unit shall have been substantially completed shall be
made by the Board and such decision shall be binding on all parties, however, if an Occupancy
Permit from government is involved the issuance thereof shall be deemed substantial completion.
Section 9. Occupants Bound. All provisions of the Declaration, Bylaws and of any
rules and regulations or use restrictions promulgated pursuant thereto which govern the conduct
of Owners and which provide for sanctions against Owners shall also apply to all occupants,
guests and invitees of any Owner. Every Owner shall cause all occupants of his or her Lot to
comply with the Declaration, Bylaws and the rules and regulations adopted pursuant thereto, and
shall be responsible for all violations and losses to the Common Areas caused by such occupants,
notwithstanding the fact that such occupants of a Lot are fully liable and may be sanctioned for
any violation of the Declaration, Bylaws and rules and regulations adopted pursuant thereto.
Section 10. Quiet Enjoyment. No portion of the Properties shall be used, in whole or
in part, for the storage of any property or thing that will cause it to appear to be in an unclean or
untidy condition or that will be obnoxious to the eye; nor shall any substance, thing, or material
be kept upon any portion of the Properties that will emit foul or obnoxious odors or that will
cause any noise or other condition that will or might disturb the peace, quiet, safety, comfort, or
serenity of the occupants or surrounding property. No noxious, illegal, or offensive activity shall
be carried on upon any portion of the Properties. For greater clarification, no Owner shall
knowingly or willfully make or create an unnecessary, excessive or offensive noise or
disturbance which destroys the peace, quiet and/or comfort of the Owners or allow any such
noise or disturbance to be made on his or her Lot, including any noise by the use of musical
instruments, radio, television, loud speakers, electrical equipment, amplifiers or other machines
or equipment. There shall not be maintained any plants or animals or device or thing of any sort
whose activities or existence in any way obnoxious, dangerous, unsightly, unpleasant, or of a
nature as may diminish or destroy the enjoyment of the Properties. No outside burning of wood,
leaves, trash, garbage or household refuse shall be permitted within the Properties. Also,
excessive grass clippings from the mowing of lawns or other lawn/tree rubbish will not be
allowed to be left on any street within the development.
Section 11. Residential Use. The Properties shall be used only for single family
residential purposes; provided, however, that such restriction shall not apply to any Lot or part
thereof or any other part of the Properties at any time owned by the Association which
constitutes a part of the Common Areas and upon which no Dwelling Unit is located.
Section 12. Business Use. No garage sale, moving sale, rummage sale or similar
activity and no trade or business may be conducted in or from any Lot, except that an Owner or
occupant of a Lot may conduct business activities within the Unit so long as: (a) the existence or
operation of the business activity is not apparent or detectable by sight, sound or smell from
outside the Unit; (b) the business activity conforms to all zoning requirements for the Properties,
(c) the business activity does not involve persons coming onto the Properties who do not reside
in the Properties or door to door solicitation of residents of the Properties; and (d) the business
activity is consistent with the residential character of the Properties and does not constitute a
nuisance, or a hazardous or offensive use, or threaten the security or safety of other residents of
the Properties, as may be determined in the sole discretion of the Board.
Section 13. Firearms. The discharge of firearms within the Properties is prohibited.
The term "Firearms" includes bows and arrows, slingshots, `B B" guns, pellet guns, paint ball
guns and other firearms of all types, regardless of size. Notwithstanding anything to the
contrary, contained herein or in the Bylaws, the Association shall not be obligated to take action
to enforce this Section.
Section 14. Tents, Trailers and Temporary Structures. Except as may be permitted
by the DECLARANT or the Board during initial construction within the Properties, no tent,
utility shed, shack, trailer, camper or other structure of a temporary nature shall be placed upon a
Lot or the Common Maintenance Areas. Notwithstanding the above, party tents or similar
temporary structures may be erected for special events for a period not longer than 48 hours
unless otherwise consented to by the DECLARANT.
Section 15. Model Homes. No Owner of any Lot shall build or permit the building
upon his Lot or any dwelling house that is to be used as a model home or exhibit house without
permission to do so from the DECLARANT.
The terms "business" and "trade ", as used in this provision, shall be construed to have
their ordinary, generally accepted meanings, and shall include, without limitation, any
occupation, work or activity undertaken on an ongoing basis which involves the provision of
goods or services to persons other than the provider's family and for which the provider receives
a fee, compensation, or other form of consideration, regardless of whether: (i) such activity is
engaged in full or part-time; (ii) such activity is intended to or does generate a profit; or (iii) a
license is required therefore. Notwithstanding the above, the leasing of a Lot shall not be
considered a trade or business within the meaning of this section. This section shall not apply to
any activity conducted by the DECLARANT with respect to its development and sale of the
Properties or its use of any Lots with such entity owns within the Properties.
Section 16. Non - Applicability to Association. Notwithstanding anything to the
contrary contained herein, the covenants and restrictions set forth, shall not apply to or be
binding upon the Association in its ownership, management, administration, operation,
maintenance, repair, replacement and upkeep of the Common Areas to the extent the application
thereof could or might hinder, delay or otherwise adversely affect the Association in the
performance of its duties, obligations and responsibilities as to the Common Areas.
Section 17. Sales Office. To the extent deemed necessary or desirable by
DECLARANT, they shall be permitted to place sales offices and construction and storage
facilities for uses attributable to the construction, development, marketing and maintenance of
the subdivision on any unsold lot or on any Common Area in the subdivision.
Section 18. Sanitary Waste Disposal.
(a) Nuisances. No outside toilets shall be permitted on any Lot (except during a
period of construction and then only with the consent of the Board), and no sanitary waste or
other wastes shall be permitted to be exposed.
(b) Construction of Sanitary Sewage Lines. All sanitary sewage lines on the Lots
shall be designed, constructed and installed in accordance with the provisions and requirements
of [County] County, Franklin Sanitation Department, and these Restrictions.
(c) Connection Requirements for Sanitary Sewers. All homes shall have sewers
directly connected by way of gravity except by the use of lift pumps and/or check valves or
connections shall be one foot above the lowest manhole in the Subdivision.
Notwithstanding anything to the contrary contained herein or in the Articles or Bylaws,
including, but not limited to, any covenants and restrictions set forth herein or otherwise,
DECLARANT shall have the right to use and maintain any Lots and Dwelling Units owned by
DECLARANT in and on the Real Estate (other than individual Dwelling Units and Lots owned
by persons other than DECLARANT), all of such number and size and at such locations as
DECLARANT in its sole discretion may determine, as DECLARANT may deem advisable or
necessary in its sole discretion to aid in the construction of Dwelling Units and the sale of Lots
and Dwelling Units or for the conducting of any business or activity attendant thereto, including,
but not limited to model Dwelling Units, storage areas, construction yards, signs, construction
offices, sales offices, management offices and business offices. DECLARANT shall have the
right to relocate any or all of the same from time to time as it desires. DECLARANT shall have
the right to remove the same from the Real Estate and Additional Property at any time.
ARTICLE XI
ASSESSMENTS
Section 1. Annual Accounting. Annually, after the close of each fiscal year of the
Association and prior to the date of the annual meeting of the Association next following the end
of such fiscal year, the Board shall cause to be prepared and furnish the Owners with a financial
statement of operations by the Association, which statement shall show all receipts and expenses
received, incurred and paid during the preceding fiscal year.
Section 2. Proposed Annual Budget. The initial Board of the HOA shall establish
the first annual budget and its resultant regular assessment and thereafter. Annually, on or before
the date of the annual or special meeting of the Association at which the budget is to be acted
upon, the Board of Directors shall cause to be prepared a proposed annual budget for the next
ensuing fiscal year estimating the total amount of the Common Expenses for such next ensuing
fiscal year and shall make available a copy of such proposed budget to each Owner at or prior to
the time the notice of such annual or special meeting is mailed or delivered to such Owners. The
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annual budget shall be submitted to the Owners at the annual or special meeting of the
Association for adoption and, if so adopted, shall be the basis for the Regular Assessments
(hereinafter defined) for the next ensuing fiscal year. At such annual or special meeting of the
Owners, the budget may be approved in whole or in part or may be amended in whole or in part
by a majority vote of the eligible Owners represented at such meeting; provided, however, that in
no event shall such annual or special meeting of the Owners be adjourned until an annual budget
is approved and adopted at such meeting, either the proposed annual budget or the proposed
annual budget as amended. The annual budget, the Regular Assessments and all sums assessed
by the Association shall be established by using generally accepted accounting principles applied
on a consistent basis. The annual budget and the Regular Assessments shall, in addition, be
established to include the establishment and maintenance of a replacement reserve fund for
capital expenditures and replacement and repair of the Common Areas, which replacement
reserve fund shall be used for those purposes and not for usual and ordinary repair expenses of
the Common Areas. Such replacement reserve fund for capital expenditures and replacement
repair of the Common Areas shall be maintained by the Association in a separate interest
bearing- account or accounts with one or more banks: or savings and loan associations authorized
to conduct business in Hamilton County or Marion County, Indiana selected from time to time
by the Board. The failure or delay of the Board of Directors to prepare a proposed annual budget
and to furnish a copy thereof to the Owners shall not constitute a waiver or release in any manner
of the obligations of the Owners to pay the Common Expenses as herein provided, whenever
determined. Whenever, whether before or after the annual or special meeting of the Association
at which the budget is to be acted upon, there is no annual budget approved by the Owners as
herein provided for the current fiscal year, the Owners shall continue to pay Regular
Assessments based upon the last approved budget or, at the option of the Board, based upon one
hundred and one hundred ten percent (110 %) of such last approved budget, as a temporary
budget.
Section 3. Regular Assessments. The annual budget as adopted by the Owners
shall, based on the estimated cash requirement for the Common Expenses in the fiscal year
covered thereby as set forth in said budget, contain a proposed assessment against each Lot,
which shall be the same amount for each Lot, provided, immediately following the adoption of
the annual budget, each Owner shall be given notice of the assessment against his respective Lot
(herein called the "Regular Assessment "). In the event the Regular Assessment for a particular
fiscal year is initially based upon a temporary budget, each Regular Assessment shall be revised,
within fifteen (15) days following adoption of the final annual budget by the Owners, to reflect
the assessment against each Lot based upon such annual budget as finally adopted by the
Owners. The aggregate amount of the Regular Assessments shall be equal to the total amount of
expenses provided and included in the final annual budget, including reserve funds as
hereinabove provided. The Regular Assessment against each Lot shall be paid in quarterly
installments payable in advance by a date specified by the Board which date shall not be earlier
than fifteen (15) days after the written notice of such Regular Assessment is given to the Owners.
Payment of the Regular Assessment, whether in one payment or in any other manner, shall be
made to the Board of Directors or the Managing Agent, as directed by the Board of Directors.
Payments received after the date indicated in the notice will be subject to a late fee in the
sum of twenty -five dollars ($25.00).
In the event the Regular Assessment for a particular fiscal year of the Association was
initially based upon a temporary budget,
(a) if the Regular Assessment based upon the final annual budget adopted by the
Owners exceeds the amount of the Regular Assessment based upon the temporary budget, that
portion of such excess applicable to the period from the first day of the current fiscal year to the
date of the next payment of the Regular Assessment which is due shall be paid with such next
payment and such next payment, and all payments thereafter during such fiscal year, whether
annual or quarterly, shall be increased so that the Regular Assessment as finally determined shall
be paid in full by the remaining payments due in such fiscal year, or
(b) if the total Regular Assessment based upon the temporary budget exceeds the
Regular Assessment based upon the final annual budget adopted by the Owners, such excess
shall be retained by the Association for Association expenses but shall be taken into account in
establishing the next regular assessments: provided, however, that if an Owner had paid his
Regular Assessment in full in advance, then the adjustments set forth under (a) above or (b) shall
be made by a cash payment by, or refund to, the Owner or the first day of the second month
following the determination of the Regular Assessment based upon the annual budget finally
adopted by the Owners. The Regular Assessment for each fiscal year of the Association shall
become a lien on each separate Lot as of the first day of each fiscal year of the Association, even
though the final determination of the amount of such Regular Assessment may not have been
made by that date. The fact that an Owner has paid his Regular Assessment for the current fiscal
year in whole or in part based upon a temporary budget and thereafter, before the annual budget
and Regular Assessment are finally determined, approved and adjusted as herein provided, sells,
conveys or transfer his Lot or any interest therein, shall not relieve or release such Owner or his
successor as Owner of such Lot from payment of the Regular Assessment for the Lot as finally
determined, and such Owner and his successor as Owner of such Lot shall be jointly and
severally liable for the Regular Assessment as finally determined. Any statement of unpaid
assessments furnished by the Association pursuant to Section 2 of Article XII hereof prior to the
final determination and adoption of the annual budget and Regular Assessment for the year with
respect to which such statement is made shall state that the matters set forth therein are subject to
adjustment upon determination and adoption of the final budget and Regular Assessment for
such year, and all parties to whom any such statement may be delivered or who may rely thereon
shall be bound by such final determinations. Annual or quarterly (if so determined by the Board)
installments of Regular Assessments shall be due and payable automatically on their respective
due dates without any notice from the Board or the Association, and neither the Board nor the
Association shall be responsible for providing any notice or statements to Owners for the same.
The initial and subsequent Regular Assessment shall be adopted by the Board based on the
annual expenses of the Community, including but not limited to, the cost of maintenance,
utilities, professional fees, general upkeep, etc. of the Community which includes the input of
DECLARANT. Of this annual Assessment no less than $70 shall be deposited in a separate
interest bearing RESERVE ACCOUNT only accessible for the upkeep of the streets in the
Community. If any initial Assessment is prorated this $70 allocation shall also be prorated.
(c) DECLARANT IS NOT OBLIGATED FOR REGULAR ASSESSMENT.
Section 4. Special Assessments. From time to time Common Expenses of an
unusual or extraordinary nature or not otherwise anticipated may arise. At such time and without
the approval of the Owners, unless otherwise provided in this Declaration, the Articles, the
Bylaws or the Act, the Board of Directors shall have the full right, power and authority to make
special assessments which, upon resolution of the Board, shall become a lien on each Lot, but
not on Lots owned by DECLARANT, prorated in equal shares (herein called "Special
Assessment "). Without limiting the generality of the foregoing provisions, Special Assessments
may be made by the Board of Directors from time to time to pay for capital expenditures and to
pay for the cost of any repair or reconstruction of damage caused by fire or other casualty or
disaster to the extent insurance proceeds are insufficient therefore under the circumstances
described in this Declaration. THE DECLARANT SHALL ONLY BE RESPONSIBLE FOR
SPECIAL ASSESSMENTS AFTER THE "APPLICABLE DATE" OCCASIONED BY
EXTRAORDINARY REPAIRS TO ORIGINALLY INSTALLED INFRASTRUCTURE, BUT
DECLARANT SHALL NOT BE RESPONSIBLE FOR NEW INFRASTRUCTURE OR
AMENITIES DESIRED BY OTHER OWNERS UNLESS DECLARANT FOR ITSELF
SPECIFICALLY AGREES OTHERWISE IN WRITING.
Section 5. Failure of Owner to Pay Assessments.
(a) No Owner may exempt himself from paying Regular Assessments and Special
Assessments, or from contributing toward the expenses of administration and of maintenance
and repair of the Common Areas and items deemed Maintenance Expense Areas for purposes of
maintenance, and toward any other expense lawfully agreed upon, by waiver of the use or
enjoyment of the Common Areas or by abandonment of the Lot belonging to him. Each Owner
shall be personally liable for the payment of all Regular and Special Assessments against his Lot.
Where the Owner constitutes or consists of more than one Person, the liability of such Persons
shall be joint and several. Regular and special assessments should constitute a lien against the
Lots and Dwelling Units thereon. If any Owner shall fail, refuse or neglect to make any payment
of any Regular Assessments or Special Assessments against his Lot when due, the lien for such
Assessment on the Owner's Lot and Dwelling Unit may be filed and foreclosed by the Board for
and on behalf of the Association as a mechanic's lien on real property and enforced in like
manner as mechanic liens. Upon the failure of an Owner to make timely payments of any such
Regular Assessments or Special Assessments, when due, the Board may, in its discretion,
accelerate the entire balance of the unpaid Assessments and declare the same immediately due
and payable, notwithstanding any other provisions hereof to the contrary. The Board may, at its
option, bring a suit to recover a money judgment for any unpaid Regular Assessment or Special
Assessment without foreclosing (and without thereby waiving) the lien securing the same. In
any action to recover a Regular Assessment or Special Assessment, or any other charges due the
Association, whether by foreclosure or otherwise, the Board, for and on behalf of the
Association, shall be entitled to recover from the Owner of the respective Lot and Dwelling Unit
all of the costs and expenses of such action incurred (including but not limited to reasonable
attorneys' fees) and interest from the date such Assessments or charges were due, until paid, at a
rate not to exceed eighteen percent (18 %) annually but in no event more than the maximum rate
allowable under applicable usury laws.
(b) Notwithstanding anything contained in this Section or elsewhere in this
Declaration, the Articles or the Bylaws, any sale or transfer of a Lot and Dwelling Unit to a
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Mortgagee pursuant to a foreclosure on its mortgage or conveyance in lieu thereof, or a
conveyance to any person at a public sale in the manner provided by law with respect to
mortgage foreclosures, shall extinguish the lien of any unpaid installment of any Regular
Assessment or Special Assessment or other changes as to such installments which became due
prior to such sale, transfer or conveyance; provided, however, that the extinguishment of such
lien shall not relieve the prior Owner from personal liability therefore. No such sale, transfer or
conveyance shall relieve the Lot and Dwelling Unit or the purchaser at such foreclosure sale, or
grantee in the event of conveyance in lieu thereof, from liability for any installments of Regular
Assessments or Special Assessments or other charges thereafter becoming due or from the lien
therefore. Such unpaid share of any Regular Assessments or Special Assessments or other
charges, the lien for which has been divested as aforesaid, shall, if not collected from the party
personally liable therefore, be deemed to be a Common Expense, collectible from all Owners
(including the party acquiring the subject Lot and Dwelling Unit from which it arose).
(c) In addition to the remedies above stated for failure to pay assessments, the
Association may disqualify a delinquent Owner from his right to vote and to hold office or
committee membership in the Association while Assessment are delinquent in addition to
charging a reasonable late fee, as allowed by Indiana Law, per day of delinquency to among
other things, cover the administrative expense of addressing the delinquency and also deny such
Member the use of the Common Areas During which time payments are delinquent to the
Association.
Section 6. Initial Budgets and Assessments. Notwithstanding anything to the
contrary contained herein, in the Articles, in the Bylaws, in the Act or otherwise, until the
Applicable Date the annual budget and all Regular Assessments and Special Assessments shall
be established by the Initial Board without meetings of or concurrence of the Owners. The
agency, power of attorney and proxy granted to the DECLARANT by each Owner pursuant to
Section 2 of Article V hereof shall be deemed to cover and include each Owner's right to vote on
and approve the annual budget and any Regular Assessments and Special Assessments until the
Applicable Date.
Further, until the Applicable Date and notwithstanding the foregoing or anything else
contained herein, no Regular Assessments, Special Assessments or other charges shall be owed
or payable by DECLARANT with respect to any Lot or other portion of the Real Estate owned
by DECLARANT while the same is owned by DECLARANT nor shall any such Assessments
or Charges become a lien on any such Lot or other portion of the Real Estate owned by
DECLARANT nor shall any such Assessments or charges become a lien on any such Lot or
other portion of the Real Estate owned by DECLARANT except as specifically detailed in the
last paragraph of subsection 3 herein. Assessments against a Lot shall commence to accrue from
the date each Lot is conveyed by DECLARANT to another Person and a prorated portion of the
Regular Assessment for the balance of the fiscal year of the Association against each Lot so
conveyed by DECLARANT shall be paid by each purchaser upon such conveyance.
Section 7. Initial Working Capital and Start -Up Fund. Upon the closing of the
initial conveyance of each Lot by DECLARANT, to another Person, the purchaser of such Lot
shall pay to the Association, in addition to any other amount then owed or due to the
Association, as a contribution to its working, capital and start-up fund, an amount equal to one-
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half (1/2) of the then current annual Regular Assessment against such Lot without diversion of
any sum to the RESERVE ACCOUNT, which payment shall be nonrefundable and shall not be
considered as an advance payment of any Assessment or other charge owed the Association with
respect to such Lot. Such working capital and start-up fund shall be held and used by the
Association for payment of, or reimbursement to DECLARANT for advances made to pay
expenses of the Association for its early period of operation of the Real Estate, to enable the
Association to have cash available to meet unforeseen expenditures, or to acquire additional
equipment or services deemed necessary by the Board. This start up fund shall also be
applicable from any successors in title to Lots and therefore is an obligation of successor title
owners to the HOA at the time of such title transfer.
ARTICLE XII
MORTGAGES
Section 1. Notice to Association. Any Owner, who places a first mortgage lien upon
his Lot, or the Mortgagee, may notify the Secretary of the Association thereof and provide the
name and address of the Mortgagee. A record of each such first mortgage, and name and address
of the Mortgagee, shall be maintained by the Secretary and any notice required to be given to the
Mortgagee pursuant to the terms of this Declaration, the Bylaws or otherwise shall be deemed
effectively given if mailed to such Mortgagee at the address shown in such record or in the time
provided. Unless notification of any such mortgage and the name and address of Mortgagee are
furnished to the Secretary, either by the Owner or the Mortgagee, no notice to any Mortgagee as
may be otherwise required by this Declaration, the Bylaws or otherwise shall be required and no
Mortgagee shall be entitled to vote on any matter to which he otherwise may be entitled by virtue
of this Declaration, the Bylaws, a proxy granted to such Mortgage in connection with the
mortgage, or otherwise.
The Association shall, upon written request of a Mortgagee who has furnished the
Association with its name and address as hereinabove provided, furnish such Mortgagee with
written notice of any default in the performance by its borrower of any obligations of such
borrower under this Declaration or the Bylaws which is not cured within sixty (60) days.
Section 2. Notice of Unpaid Assessments. The Association shall, upon request of a
Mortgagee, a proposed mortgagee, or a proposed purchaser who has a contractual right to
purchase a Lot, furnish to such Mortgagee or purchaser a statement setting forth the amount of
the unpaid Regular Assessments or Special Assessments or other charges against the Lot, which
statement shall be binding upon the Association and the Owners, and any Mortgagee or grantee
of the Lot shall not be liable for nor shall the Lot conveyed be subject to a lien for any unpaid
assessments or charges in excess of the amounts set forth in such statement except as such
assessments may be adjusted upon adoption of the final annual budget, as referred to in Section 3
of Article XI hereof.
ARTICLE XIII
INSURANCE
Preface
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
ARTICLE (INSURANCE), THE ASSOCIATION WILL SEEK TO OBTAIN
THE COVERAGES INDICATED SUBJECT HOWEVER TO THE
LIMITATION OF WHAT'S AVAILABLE FROM INSURANCE CARRIERS
FOR [SUBDIVISION NAME] COUPLED WITH CONSIDERATION AS TO
EXCEPTIONS AND EXCLUSIONS OF COVERAGE, AND DEDUCTIBLES
TO MAINTAIN CONTROL OF THIS ITEM OF COMMON EXPENSE.
THE ASSOCIATION WELCOMES THE OWNERS' INPUT REGARDING
THE BEST COVERAGE FOR THE BEST PRICE AND WILL SUPPLY
OWNERS WITH A SUMMARY FROM THE ASSOCIATION'S INSURANCE
PROFESSIONAL WHICH WE URGE OWNERS TO SHARE AND
CHALLENGE THEIR OWN INSURANCE PROFESSIONAL FOR
RECOMMENDATIONS AS TO THEIR REQUIRED INSURANCE AND ANY
ADVISABLE ADDITIONAL COVERAGE (GAP OR OTHERWISE) FOR
DIRECT PURCHASE BY OWNERS.
Section 1. Casualty Insurance. The Association shall purchase a master casualty
insurance policy affording fire and extended coverage insurance insuring the Common Areas in
an amount consonant with the full replacement value of the improvements, if any, which, in
whole or in part, comprise the Common Areas. If the Board of Directors can obtain such
coverage for reasonable amounts they shall also obtain "all risk" coverage. The Board of
Directors shall be responsible for reviewing at least annually the amount and type of such
insurance and shall purchase such additional insurance as is necessary to provide the insurance
required above. If deemed advisable by the Board, the Board may cause such full replacement
value to be determined by a qualified appraiser. The cost of any such appraisal shall be a
Common Expense. Such insurance coverage shall name the Association as the insured, for the
benefit of each Owner (to the extent, if any, that individual Owners have an independent interest
in the property covered thereby).
All proceeds payable as a result of casualty losses sustained which are covered by
insurance purchased by the Association as hereinabove set forth shall be paid to it or to the
Board of Directors. In the event that the Board of Directors has not posted surety bonds for the
faithful performance of their duties as such Directors or if such bonds do not exceed the funds
which will come into its hands, and there is damage to a part or all of the Common Areas
resulting in a loss, the Board of Directors shall obtain and post a bond for the faithful
performance of its duties in an amount to be determined by the Board, but not less than 150% of
the loss, before the Board shall be entitled to receive the proceeds of the insurance payable as a
result of such loss. The sole duty on the Board in connection with any such insurance proceeds
shall be to receive such proceeds as are paid and to hold the same for the purposes elsewhere
stated herein, and for the benefit of the Owners. The proceeds shall be used or distributed by the
Association or the Board, as appropriate, only in accordance with the provisions of this
Declaration.
Such master casualty insurance policy, and "all risk" coverage if obtained, shall (to the
extent the same are obtainable) contain provisions that the insurer (a) waives its right to
subrogation as to any claim against the Association, the Board of Directors, its agents and
employees, Owners, their respective agents and guests, and (b) waives any defense based on the
invalidity arising from the acts of the insured, and providing further, if the Board of Directors is
able to obtain such insurance upon reasonable terms (i) that the insurer shall not be entitled to
contribution against casualty insurance which may be purchased by individual Owners, and (ii)
that notwithstanding any provision thereof giving the insurer an election to restore damage in
lieu of a cash settlement, such option shall not be exercisable in the event the Association does
not elect to restore.
Section 2. Public Liability Insurance. The Association shall also purchase a master
comprehensive public liability insurance policy in such amount or amounts as the Board of
Directors shall deem appropriate from time to time, but in any event with a minimum combined
limit of $1,000,000.00 per occurrence. Such comprehensive public liability insurance policy
shall cover all of the Common Areas and shall insure the Association, the Board of Directors,
Officers, any committee or organ of the Association or Board, any Managing Agent appointed or
employed by the Association, the DECLARANT, and all persons acting or who may come to
act as agents or employees of any of the foregoing with respect to the Real Estate, all Owners of
Lots and all other persons entitled to occupy any Lot or Dwelling Unit. Such public liability
insurance policy shall contain a "severability of interest" clause or endorsement which shall
preclude the insurer from denying the claim of an Owner because of negligent acts of the
Association or other Owners.
Section 3. Other Insurance. The Association shall also obtain any other insurance
required by law to be maintained, including but not limited to workmen's compensation,
Directors and Officers liability coverage, and occupational disease insurance, and such other
insurance as the Board of Directors may from time to time deem necessary, advisable or
appropriate, including but not limited to, liability insurance on vehicles owned or leased by the
Association and officers, but shall secure directors, officer and architectural committee liability
policies in amounts deemed adequate in the Director's sole judgment. Such insurance coverage
shall also provide for and cover cross liability claims of one insured party against another insured
party. Such insurance shall inure to the benefit of each Owner, the Association, the Board of
Directors and any Managing Agent acting on behalf of the Association. Each Owner shall be
deemed to have delegated to the Board of Directors his right to adjust with the insurance
companies all losses under the policies purchased by the Board of Directors the proceeds of
which are payable to the Board or the Association.
Section 4. General Provisions. The premiums for all insurance hereinabove
described shall be paid by the Association as part of the Common Expenses. Upon request of
any Owner or Mortgagee whose interest may be affected thereby, the Association shall provide
such Owner or mortgagee with a description of the insurance coverage maintained by the
Association.
In no event shall any distribution of insurance proceeds be made by the Board of
Directors directly to an Owner where there is a mortgagee endorsement on the certificate of
insurance or insurance policy as it applies to such Owner's share of such proceeds. In such event
any remittances shall be to the Owner and his Mortgagee jointly. The same method of
distribution shall also apply to the distribution of any condemnation awards in connection with
any taking of any of the Common Areas. Notwithstanding the foregoing, under no
circumstances shall any distribution of insurance proceeds or condemnation awards be made by
the Association to any Owners or Mortgagees if to do so would be in violation of the Act or if
the same would constitute a distribution of earnings, profits or pecuniary gain to the Members of
the Association; in any such event, any such insurance proceeds or condemnation awards shall
be retained by the Association for use in the payment of its expenses of operation.
Section 5. Insurance by Owners. Each Owner shall be solely responsible for and
may obtain such additional insurance as he deems necessary or desirable, at his own expense,
affording coverage upon his personal property, his Lot, his Dwelling Unit, the contents of his
Dwelling Unit, his personal property stored anywhere on the Real Estate, and for his personal
liability, but all such insurance shall contain the same provisions for waiver of subrogation as
referred to in the foregoing provisions for the master casualty insurance policy to be obtained by
the Association.
ARTICLE XIV
CASUALTY AND RESTORATION
In the event of damage to or destruction of any of the Common Areas due to fire or any
other casualty or disaster, the Association shall promptly cause the same to be repaired and
reconstructed. The proceeds of insurance carried by the Association, if any, shall be applied to
the cost of such repair and reconstruction.
If the insurance proceeds, if any, received by the Association as a result of any such fire
or any other casualty or disaster are not adequate to cover the cost of repair and reconstruction of
these areas, or in the event there are no insurance proceeds, the cost for restoring the damage and
repairing and reconstructing these areas so damaged or destroyed (or the costs thereof in excess
of insurance proceeds received, if any) shall be assessed by the Association against all of the
Owners in equal shares. Any such amounts assessed against the Owners shall be assessed as part
of the Common Expenses and shall constitute a lien from the time of assessment as provided
herein.
For purposes of this Article, repair, reconstruction and restoration shall mean
construction or rebuilding the Common Areas and/or maintenance expense areas (if any) to as
near as possible the same condition as they existed immediately prior to the damage or
destruction and with the same architecture and materials.
Immediately after a fire or other casualty or disaster causing damage to any property for
which the Board of Directors or Association has the responsibility of maintenance and repair
hereunder, the Board shall obtain reliable and detailed estimates of the cost to replace the
damaged property in a condition as good as that before the casualty. Such costs may include
professional fees and premiums for such bonds as the Board of Directors desires or deems
necessary.
Encroachments upon any Lot which may be created as a result of such reconstruction or
repair of any of the Common Areas shall not constitute a claim or basis of a proceeding or action
by the Owner upon whose Lot such encroachment exists, provided that such reconstruction was
either substantially in accordance with the plans and specifications or as the Common Areas
were originally constructed.
ARTICLE XV
AMENDMENT OF DECLARATION
Section 1. Generally. Except as otherwise provided in this Declaration, amendments
to this Declaration shall be proposed and adopted in the following manner:
(a) Adoption. Any proposed amendment to this Declaration must be approved by a
vote of not less than sixty percent (60% in the aggregate of the votes of all Owners). In the event
any Lot or Dwelling Unit is subject to a first mortgage, the Mortgage shall be notified of the
meeting and the proposed amendment in the same manner as an Owner if the Mortgagee has
given prior notice of its mortgage interest to the Board of Directors in accordance with the
provisions hereof.
(b) Special Amendments. No amendment to this Declaration shall be adopted which
changes (1) the applicable share of an Owner's liability for the Common Expenses, or the
method of determining the same, or (2) the provisions of Article XIII of this Declaration with
respect to casualty insurance to be maintained by the Association, or (3) the provisions of Article
XIV of this Declaration with respect to reconstruction or repair of the Common Areas in the
event of fire or any other casualty or disaster, or (4) the provisions of this Declaration
establishing the Committee and providing for its functions, without, in each or any of such
circumstances, the unanimous approval of all Owners and of all Mortgagees whose mortgage
interests have been made known to the Board of Directors in accordance with the provisions of
the Declaration.
(c) Recording. Each amendment to the Declaration shall be executed by the
President and Secretary of the Association and shall be recorded in the office of the Recorder of
[County] County, Indiana, and such amendment shall not become effective until so recorded.
Section 2. Amendments by DECLARANT Only. Notwithstanding the foregoing
or anything else contained herein, the DECLARANT shall have and hereby reserves the right
and power acting alone and without the consent or approval of the Owners, the Association, the
Board of Directors, any Mortgagees or any other Person to amend or supplement this Declaration
at any time and from time to time if DECLARANT records the modification in the Office of the
Recorder of Hamilton County, Indiana, and if such amendment or supplement is made (a) to
comply with requirements of the Federal National Mortgage Association, the Government
National Mortgage Association, the Federal Home Loan Mortgage Association, the Department
of Housing and Urban Development, the Veterans Administration, or any other governmental
agency or any other public, quasi - public or private entity which performs (or may in the future
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perform) functions similar to those currently performed by such entities, (b) to induce any of
such agencies or entities to make, purchase, sell, insure or guarantee first mortgages covering
Lots and Dwelling Units, (c) to bring this Declaration into compliance with any governmental
requirements, (d) to comply with or satisfy the requirements of any insurance underwriters,
insurance rating bureaus or organizations which perform (or may in the future Perform) function
similar to those performed by such agencies or entities, to subject additional property to these
restrictions, (f) to correct clerical or typographical errors in this Declaration or any Exhibit hereto
or any supplement or amendment thereto, (g) to clarify, further define or limit any easement, or
otherwise exercise any rights reserved herein, or (h) change the substance of one or more
covenants, conditions, terms or provisions hereof but (A) does not materially increase the
obligation(s) of any Owner under any covenant, condition, term or provision without such
Owner's consent or (B) is necessary to comply with a bona fide governmental requirement,
including applicable laws, ordinances, regulations or orders of any municipality or court having
jurisdiction. In furtherance of the foregoing, a power coupled with an interest is hereby reserved
by (and granted by each Owner to) the DECLARANT to vote in favor of, make, or consent to
any amendments described in this Section 2 or behalf of each Owner as proxy or attorney -in -fact,
as the case may be. Each deed, mortgage, trust deed, other evidence of obligation, or other
instrument affecting a Lot or Dwelling Unit and the acceptance thereof shall be deemed to be a
grant and acknowledgment of, and a consent to the reservation of, the power to the
DECLARANT to vote in favor of, make, execute and record any such amendments. The right
of the DECLARANT to act pursuant to rights reserved or granted under this Section 2 shall
terminate at such time as the DECLARANT no longer holds or controls title to any part or
portion of the Real Estate.
ARTICLE XVI
ACCEPTANCE AND RATIFICATION
All present and future Owners, Mortgagees, tenants and occupants of the Lots and
Dwelling Units, and other Persons claiming by, through or under them, shall be subject to and
shall comply with the provisions of this Declaration, the Articles, the Bylaws and the rules,
regulations and guidelines as adopted by the Board of Directors and (to the extent of its
jurisdiction) the Committee, as each may be amended or supplemented from time to time. The
acceptance of a deed of conveyance of the act of occupancy of any Lot or Dwelling Unit shall
constitute an agreement that the provisions of this Declaration, the Articles, the Bylaws and
rules, regulations and guidelines, as each may be amended, or supplemented from time to time,
are accepted and ratified by such Owner, tenant or occupant, and all such provisions shall be
covenants running with the land and shall bind any Person having at any time any interest or
estate in an Lot or Dwelling Unit or the Real Estate, all as though such provisions were recited
and stipulated at length in each and every deed, conveyance, mortgage or lease thereof. All
Persons who may own, occupy, use, enjoy or control a Lot or Dwelling Unit or any part of the
Real Estate in any manner shall be subject to this Declaration, the Articles, the Bylaws, and the
rules, regulations and guidelines applicable thereto as each may be amended or supplemented
from time to time.
ARTICLE XVII
NEGLIGENCE
Each Owner shall be liable for the expense of any maintenance, repair or replacement
rendered necessary by his negligence or by that of any member of his family his or their guests,
employees, agents, invitees or lessees, to the extent that such expense is not covered by the
proceeds of insurance carried by the Association. An Owner shall pay the amount of any
increase in insurance premiums occasioned by his violation of any of the Restrictions or any
violation thereof by any member of his family or his or their guests, employees, agents, invitees
or tenants.
ARTICLE XVIII
BENEFIT AND ENFORCEMENT
Section 1. Covenants Appurtenant to Land. These covenants are to run with the
land, and shall be binding on all parties and all persons claiming under them for a period of
twenty -five (25) years from the date these covenants are recorded, at which time said covenants
shall be automatically extended for successive periods of ten (10) years each, unless at any time
after fifteen (15) years a majority of the then Owners of the Lots in this subdivision agree to
change (or terminate) said covenants in whole or in part and on the condition that an instrument
to that effect signed by the Lot Owners voting in favor of such change has been recorded;
provided, however, that no change or termination of said covenants shall affect any easement
hereby created or granted unless all persons entitled to the beneficial use of such easement shall
consent thereto.
Section 2. Prosecution of Violations. It shall be lawful for the Association, the
Committee (as to matters for which it has responsibility) or any other person owning any real
property situated in this subdivision to prosecute any proceedings at law or in equity against the
person or persons violating, or attempting to violate any covenant, conditions, provisions or
restrictions contained herein either to prevent such person or persons from doing so, or to recover
damages or other dues for such violation, or to require the removal of structures erected in
violation hereof. All costs of litigation and attorneys' fees resulting from violation of these
covenants and restrictions shall be the financial responsibility of the Lot Owner or Owners found
to be in violation. Invalidation of any one of these covenants by judgment or court order shall in
no way affect any of the other provisions which shall remain in full force and effect. Failure to
enforce any specific requirement of the covenant shall not be considered as a waiver of the right
to enforce any covenant herein, thereafter. Notwithstanding the foregoing, any violation of these
covenants or the Declaration may be waived by a majority of the then Owners of the Lots in this
subdivision.
The Association may as respects an Owner who violates these restrictions and/or Rules
and Regulations, after written notice to the Owner detailing the nature of the violation with a
time period established by the Association to cure or conform, disqualify the voting rights and
right to hold office while the violation continues and may further in the Board's sole discretion,
an additional charge shall be fined, as allowed by Indiana Law. This fine, if not paid when
required, will be processed in the same manner as assessments.
ARTICLE XIX
NON - LIABILITY OF HAMILTON COUNTY DRAINAGE AUTHORITY AND
COVENANT
The Hamilton County Drainage Authority shall not be responsible in any way for, and
disclaims any liability for, any defect in any plans, specifications or other materials approved by
it in connection with the storm drainage system for the Community, or for any defects in the
construction thereof.
Storm Drainage Covenant: It shall be the responsibility of the owner of any lot or parcel
of land within the area of this plat to comply at all times with the provisions of the drainage plan
as approved for this plat by the Hamilton County Drainage Authority and the requirements of all
drainage permits for this plat issued by said Department.
ARTICLE XX
MISCELLANEOUS
Section 1. Costs and Attorneys' Fees. In any proceeding arising because of failure
of an Owner to make any payments required by this Declaration, the Articles or the Bylaws, or to
comply with any provision of this Declaration, the Articles, the Bylaws, or the rules, regulations
and guidelines adopted pursuant thereto, as each may be amended from time to time, the
Association shall be entitled to recover its costs, administrative and other expenses and
reasonable attorneys' fees incurred in connection with such default or failure.
Section 2. Waiver. No Owner may exempt himself from liability for his
contribution toward the Common Expenses by waiver of the use of enjoyment of any of the
Common Areas or by abandonment of his Lot or Dwelling Unit.
Section 3. Severability Clause. The invalidity of any covenant, restriction,
condition, limitation or other provision of this Declaration, the Articles or the Bylaws shall not
impair or affect in any manner the validity, enforceability or effect of the rest of this Declaration,
the Articles or the Bylaws and each shall be enforceable to the greatest extent permitted by law.
Non enforcement of one provision does not affect the enforcement of another.
Section 4. Pronouns. Any reference to the masculine, feminine or neuter gender
herein shall, unless the context clearly requires the contrary, be deemed to refer to and include all
genders. Words in the singular shall include and refer to the plural, and vice versa, as
appropriate.
Section 5. Interpretation. The captions and titles of the various articles, sections,
sub - sections, paragraphs and subparagraphs of this Declaration are inserted herein for ease and
convenience of reference only and shall not be used as an aid in interpreting or construing this
Declaration or any provision hereof.
Section 6. Delegation of Use of the Common Areas. Any Member may delegate, in
accordance with provisions of this Declaration and the rules or regulations promulgated by the
Corporation, his right of enjoyment, and use of the Common Areas to members of his family, his
tenants or contract purchasers who reside on any Lot
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Section 7. The Plat. The Final Plat of the Exhibit A realty of Hadley Grove, that is
the Initial Tract in this Declaration, has been recorded as Instrument # in
the Office of the Recorder of Hamilton County, Indiana.
IN WITNESS WHEREOF, M/I Homes of Indiana, L.P., by its duly authorized general
partner herein, has executed this Declaration on the day and year first hereinabove set forth.
M/I Homes of Indiana, L.P., an Indiana limited
partnership
By: M/I Homes First Indiana, LLC, an Indiana
limited liability company, its general partner
By
Cliff White, Indianapolis Area President
STATE OF INDIANA )
) SS:
COUNTY OF )
Before me, a Notary Public in and for said County and State, personally appeared Cliff
White, Indianapolis Area President of M/I Homes First Indiana, LLC, an Indiana limited liability
company, General Partner of M/I Homes of Indiana, L.P., an Indiana limited partnership who
acknowledged the execution of the above and foregoing instrument for and on behalf of said
limited liability company, and, who having been duly sworn, stated that any representations
contained therein are true.
WITNESS my hand and Notarial Seal this day of January, 2012.
My Commission Expires:
Notary Public
Printed
Resident of County
This instrument prepared by: Bryan D. Stumpf, PLA, AICP, 11th Street Development LLC, 7378
N 550 E, Lebanon, IN 46052.
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social
Security number in this document, unless required by law. (Bryan D. Stumpf)
Exhibit "A"
Part of the Southeast Quarter of the Northeast Quarter of Section 29, Township 18 North, Range 3 East,
Second Principal Meridian, Clay Township, Hamilton County, Indiana, described as follows:
BEGINNING at the Southeast corner of the Southeast Quarter of the Northeast Quarter of Section 29,
Township 18 North, Range 3 East, Second Principal Meridian, Clay Township, Hamilton County, Indiana;
thence South 89 degrees 36 minutes 49 seconds West (basis of bearing is North 00 degrees 26 minutes
00 seconds East [NAD83 Indiana State Plane Coordinates — East Zone] on the East line of said Northeast
Quarter) a distance of 1328.16 feet on the South line of the Southeast Quarter of said Northeast Quarter
to the Southwest corner of the Southeast Quarter of said Northeast Quarter; thence North 00 degrees 10
minutes 12 seconds East 985.66 feet on the West line of the Southeast Quarter of said Northeast Quarter
to the North Tine of the real estate described in Instrument No. 2012017794 in the Office of the Recorder
of Hamilton County; thence North 89 degrees 36 minutes 47 seconds East 1332.68 feet on the North line
of the real estate described in said Instrument No 2012017794 to the East Tine of said Northeast Quarter;
thence South 00 degrees 26 minutes 00 seconds West 985/2 feet on the East line of said Northeast
Quarter to the BEGINNING POINT, containing 30.103 acres, more or Tess.
Exhibit "B"
(attach a copy of the final plat for Hadley Grove)