HomeMy WebLinkAboutCondominium DeclarationTHE COMMONS AT CITY CENTRE CONDOMINIUM DECLARATION
~his is the Declaration of The Commons at City Centre Condominiums made on or as of
the°~'2 day of October, 2004, pursuant to the provisions of the Indiana Condominium Law,
((I.C. 32-25-1-1, the "Act" or "Condominium Act").
Recitals
A. Kosene Investments, LLC, an Indiana limited liability company qualified to do
business in the Sate of Indiana, "Declarant", is the owner in fee simple of all of the real property
described in Exhibit "A" attached hereto and the improvements thereon and appurtenances
thereto.
B. The Declarant desires to create on this property a site of individually owned units, and
commonly owned areas and facilities, and to these ends to submit'this property to condominium
ownership under the provisions of the Condominium Act.
Definitions
The terms used in this document shall have these meanings, unless the context requires
otherwise:
1. "Articles" and "Articles of Incorporation" mean the articles, filed with the Secretary of
State of Indiana, incorporating The Commons at City Centre Condominium Association, Inc. as
a non-profit corporation under the provisions of Indiana Code, as the same may be lawfully
amended from time to time.
2. "Association" and "The Commons at City Centre Condominium Association, Inc."
means the non-profit corporation created by the filing of the Articles and is also one and the
same as the association created for the Condominium pursuant to the provisions of the
Condominium Act.
3. "Board" and "Board of Directors" mean those persons who, as a group, serve as the
board of directors of the Association and are also one and the sa_me as the board of directors of
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the Condominium established for the Condominium pursuant to the provisions of the
Condominium Act.
4. "Building" means a structure containing one or more Condominium Units, which may
also include a garage and which may be shown on Exhibit "A-I", as constructed from time to
time.
5. "By-Laws" means the by-laws of the Association, as the same may be lawfully
amended from time to time, created under and pursuant to the provisions of the condominium
law for the Condominium. A true copy of the By-Laws is attached hereto as Exhibit "C" and
made a part hereof.
6. "Common Areas" means all of the Condominium Property, except that portion thereof
described in this Declaration as constituting a Unit or Units, and is that portion of the
Condominium Property constituting "common areas and facilities" of the Condominium under
the provisions of the Condominium Act, including, but not limited to, mailboxes, master
television antenna, if any, walks and streets shown on the Plans constructed by Declarant on the
Property for the benefit of all Unit owners.
7. "Common Expenses" means the proposed or actual expenses affecting the
Condominium Property, including reserves, if any, lawfully assessed by the Board, including,
without limitation, the items described in Section 3 (a) (1) of Article XV.
8. "Condominium" and" The Commons at City Centre Condominium" mean the
condominium regime for the Condominium Property created under and pursuant to the
provisions of the Condominium Act.
9. "Condominium Act" means the statutory law of the State of Indiana regulating the
creation and operations of condominiums and is presently the Indiana Horizontal Property Law,
(I.C. 32-1-6-1 as amended).
10. "Condominium organizational documents" means the Articles, the By-Laws, the
Plans, and this Declaration, as the same may lawfully be amended from time to time.
11. "Condominium Property" or "Property" means the tract of land hereinafter described
as being submitted to the Condominium Act, all Buildings, structures and improvements situated
thereon, and all easements, rights and appurtenances belonging thereto.
12. "Declarant" means Kosene Investments, LLC, a limited liability company formed
under the laws of the State of Indiana, and its successors and assigns, provided the rights
specifically reserved to Declarant under the Condominium organizational documents shall accrue
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to such successors and assigns as are designated in writing by Declarant as successors and
assigns of such fights.
13. "Declaration" means this instrument by which the Condominium Property is
submitted to the Condominium Act, as this insmmaent may be lawfully amended fi.om time to
time.
14. "Director" and "Directors" means that person or those persons serving, at the time
pertinent, as a trustee or trustees of the Association, and mean that same person or those persons
serving in the capacity of a member of the board of directors of the Association, as defined in the
Condominium Act.
Area.
15. "Future Expansion Area" means that area shown on the Plans as Future Expansion
16. "Limited Common Areas" means those Common Areas serving exclusively one Unit
or more than one but less than all Units, the enjoyment, benefit or use of which are reserved to
the lawful occupants of that Unit or Units either in this Declaration, by the conveyance
documents conveying a unit to a Unit Owner, or by the Board, and is that portion of the
Condominium Property constituting "limited common areas and facilities" of the Condominium
under the provisions of the Condominium Act.
17. "Occupant" means a person lawfully residing in a Unit, regardless of whether that
person is a Unit owner.
18. "Person" means a natural individual, corporation, partnership, trustee, or other legal
entity capable of holding title to real property.
19. "Plans" means the floor plans and other information of the Units as filed in the office
of the Recorder of Hamilton County, Indiana as Instrument # , recorded
on ,2004, which plans are incorporated herein by this reference.
20. "Unit" and "Units" means that portion or portions of the Condominium Property
described as a unit or units in this Declaration, and is that portion of the Condominium
constituting a "mt" or "units" of the Condominium under the provisions of the Condominium
Act. The total number of Units, shall not exceed 200.
21. "Unit owner" and "Unit owners" mean that person or those persons owning a fee-
simple interest in a Unit or Units, each of whom is also a "member" of the Association, as
defined in Indiana's non-profit corporation statutory act.
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22. "Townhouse unit" shall mean those condominium units that are more in the style of
townhouses as reflected on the Plans, or as otherwise described or designated as such by the
Developer, but it shall be treated the same as a Unit, except for any specific cost sharing
provisions relating to these units as fiu'ther described in this Declaration.
The Plan
NOW, THEREFORE, Declarant hereby makes the establishes the following plan for
Condominium ownership of this property under and pursuant to the Condominium Act:
ARTICLE I.
THE LAND
A legal description and a site plan of the land constituting the Condominium Property,
located in Hamilton County, Indiana, is attached hereto and marked Exhibit "A" (Legal
Description) and Exhibit "A-I" (Site Plan), respectively.
ARTICLE II.
NAME
The name by which the Condominium shall be known is "The Commons at City Centre
Condominium."
ARTICLE III.
PURPOSE; RESTRICTIONS
Section 1. Purposes. This Declaration is being made to establish separate individual
parcels fi.om the Condominium Property, to which fee simple interests may be conveyed; to
establish a Unit owners' association to administer the Condominium; to provide for the
preservation of the values of Units and the Common Areas; to provide for and promote the
benefit, enjoyment and well being of Unit owners and occupants; to administer and enforce the
covenants, easements, charges and restrictions hereinafter set forth; and to raise fimds through
assessments to accomplish these purposes.
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Section 2. Restrictions. The Condominium property shall be subject to the following
restrictions:
(a) Unit Uses. No garage sale, moving sale, rummage sale or similar activity shall be
conducted by an Owner within the Condominium Property without approval of the Association.
No trade or business may be conducted in or from any Unit, except that an Owner or occupant
residing in a Unit 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 the
Unit; (b) the business activity conforms to all zoning requirements for the Condominium
Property; (c) the business activity does not involve persons coming onto the Condominium
Property or door-to-door solicitation of residents of the Condominium Property; and (d) the
business activity is consistent with the residential character for the Condominium Property and
does not constitute a nuisance, or a hazardous or offensive use, or threaten the security of safety
of the other residents of the Condominium Property, as may be determined in the sole discretion
of the Board. The terms "business" and "trade", as used in this pi'ovision, shall be construed to
have their ordinary, generally accepted meanings, and shall include, without limitation, any
occupation of 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 therefor. Notwithstanding the above, the leasing of a Unit shall not
be considered a trade of 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
Condominium Property or its use of any Units which it owns within the Condominium Property.
(b) Common Areas Uses. The Common Areas (except the Limited Common Areas)
shall be used in common by Unit owners and occupants and their agents, servants, customers,
invitees and licensees, in accordance with the purpose for which they are intended, and as may be
required for the purpose of access, ingress to, egress fi'om, use, occupancy and enjoyment of
Units, provided, however, that unless expressly provided otherwise herein, no Common Areas
shall be used for any purpose other than the health, safety, welfare, convenience, comfort,
recreation or enjoyment of Unit owners and occupants, subject to such rules and regulations as
may from time to time be promulgated by the Board.
(c) Limited Common Areas Uses. Except as specifically provided otherwise herein,
those portions of the Common Areas described herein and shown on the Plans as Limited
Common Areas shall be used and possessed exclusively by the Unit owners and occupants of the
Unit or Units served by the same, subject to the restrictions on use of Common Areas and
Limited Common Areas set forth in this Declaration and such rules and regulations as may from
time to time be promulgated by the Board. The Unit owner shall maintain the Limited Common
Area adjoining its unit. However, in the event that the Unit Owner fails to maintain such area,
then the Association shall maintain such area and shall be entitled to recover the cost of such
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maintenance from the Unit Owner in the same manner that it is entitled to recover any other
amounts owed by a Unit Owner.
(d) Visible Areas. Nothing shall be caused or permitted to be hung or displayed on the
outside or inside of windows (except inoffensive drapes or curtains) or placed on the outside
walls of a Building or otherwise outside of a Unit, or any part thereof, and no sign (except those
of the Declarant), awning, canopy, shutter or television or citizens' band or other radio antenna or
transmitter, satellite dish or any other device or ornament shall be affixed to or placed upon the
exterior walls or roof or any part thereof, or in or on a patio or balcony unless authorized in
writing by the Board, and subject to such roles and regulations as the Board may adopt from time
to time. Unit owners by acquiring a unit subject to this Declaration consent and agree that any
consent, authorization or approval that is not in writing shall be void and unenforceable. The
Unit owners expressly agree that unless otherwise approved in writing by the Developer or the
Board that all window coverings, including but not limited to drapes or blinds, shall have a white
backing.
(e) Nuisances. No portion of the Condominium Property shall be used, in whole or in
part, for the storage of any property or thing that will cause it to appear to be in an unclean or
untidy condition or that will be visibly obnoxious; nor shall any substance, thing, or material be
kept upon any portion of the Condominium Property that will emit foul or obnoxious odors or
that will cause any noise or other condition that will or might disturb the peace, quiet, safety,
comfort or serenity of other Unit owners. No noxious, illegal or offensive activity shall be
carded on upon any portion of the Condominium Property. There shall not be maintained any
plants or animals or device or thing of any sort whose activities or existence in any way is
noxious, dangerous, unsightly, unpleasant or of a nature as many diminish or destroy the
enjoyment of the Condominium Property. No outside burning of wood, leaves, trash, garbage or
household refuse shall be permitted within the Condominium Property. It shall be the
responsibility of each Unit owner to prevent the development of any unclean, unhealthy,
unsightly or unkept condition in his or her Limited Common Areas. The pursuit of hobbies or
other activities, specifically, without limiting the generality of the foregoing, the assembly and
disassembly of motor vehicles and other mechanical devices, which might tend to cause
disorderly, unsightly or unkept conditions shall not be pursued or undertaken on any part of the
Condominium Property
(f) Vehicles. Commercial vehicles, vehicles with commercial writing on their exteriors,
vehicles primarily used or designed for commercial purposes, tractors, mobile homes,
recreational vehicles, trailers (either with or without wheels), campers, camper trailers, boats and
other watercraft, and boat trailers shall be parked only in enclosed garages. Stored vehicles and
vehicles which are either obviously inoperable or do not have operating licenses shall not be
permitted on the Condominium Property except within enclosed garages. For purposes of this
Section, a vehicle shall be considered "stored" if it is put up on blocks or covered with tarpaulin
for two (2) consecutive days without the prior written approval of the Board. Notwithstanding
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the foregoing, service and delivery vehicles may be parked in the Condominium Property during
daylight hours for such period of time as is reasonably necessary to provide service or to make a
delivery to a Unit or the Common Areas. Any vehicles parked in violation of this Section or
parking roles promulgated by the Board may be towed. Except for vehicles parked in garages,
no vehicle shall be parked anywhere on the Condominium Property overnight for more than 2
days in a row, without the prior written consent of the Board of Directors of the Association and
any vehicle in violation of this covenant or restriction may be towed.
If so requested by the Board of Directors of the Association, the Unit owners shall
provide to the Board the license numbers of vehicles owned by Unit owners.
(g) Renting and Leasing. Units may only be rented in their entirety; no fraction or
portion may be rented. There shall be no subleasing of Units or assignments of leases unless
prior written approval is obtained from the Board. No transient tenants may be accommodated in
a Unit. All leases shall be in writing and shall be for an initial term of no less than 6 months,
except with the prior written consent of the Board. Prior to the commencement of any such
lease, the Unit owner shall provide the Secretary of the Association and the managing agent of
the Association, if any, with copies of such lease, together with such additional information as
may be required by the Board. If the Association has not yet been formed, then the Lease shall
be provided to David II. Kosene at 4495 Saguaro Trail, Indianapolis, Indiana 46268. The
Unit owner must make available to the lessee copies of the Declaration, By-Laws, and the roles
and regulations. The Board may adopt reasonable roles regulating leasing and subleasing. Each
Unit owner shall cause all occupants of his or her Unit to comply with the Declaration, By-Laws,
and roles and regulations adopted pursuant thereto, and shall be responsible for all violations and
losses to the Common Areas caused by such occupants. Notwithstanding the foregoing, such
occupants of a Unit are fully bound and liable for any violation of the Declaration, By-Laws and
roles and regulations adopted pursuant thereto. Notwithstanding anything to the contrary in this
Declaration, not more than 20% of the Units shall be rental units and the Developer or the
Association may refuse to approve the Lease of a Unit if it will cause the number of Units
approved for leasing to exceed the 20% limitation.
(h) Signs. No sign of any kind shall be displayed to the public view on the
Condominium Property except: (a) on the Common Areas, signs regarding and regulating the
use of the Common Areas, provided they are approved by the Declarant or Board; Co) on the
interior side of the window of a Unit, one professionally prepared sign advertising the Unit for
sale or rent provided the use is approved by the Board; and (c) on the Common Areas and model
Units, signs advertising the sale of Units by the Declarant during the initial sales/rental period,
which shall continue until all Units have been sold to parties unrelated to the Declarant.
(i) Structural Integrity. Nothing shall be done in any Unit, or in, on or to the Common
Areas, which may impair the structural integrity of any improvement.
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(j) Building on Easements. Within the easements for the installation and maintenance
of utilities and drainage facilities no structure, planting or other material (except such as exist at
the time of this Declaration) shall be placed or permitted to remain which may damage or
interfere with the installation and maintenance of utility lines or which may change the direction
of the flow or drainage channels in the easements or which may obstruct or retard the flow of
water through drainage channels in the easement areas. The utility facilities within the easement
areas shall be subject to the right of the Association to maintain the same, and its right to
delegate that right to a public authority or utility.
(k) Animals. Except as hereinafter provided, no animals, livestock or poultry of any
kind shall be raised, bred or kept in any Unit or on the Common Areas. Notwithstanding the
foregoing, household domestic pets, not bred or maintained for commercial purposes, may be
maintained in a Unit, provided that: (i) no animals shall be permitted in any portion of the
Common Areas except on a leash (not longer than six feet in len~h) maintained by a responsible
person, (ii) the permitting of animals on the Common Areas shall be subject to such roles and
regulations as the Board may from time to time promulgate, including, without limitation, the
fight to place limitations on the size, number and type of such pets, and the right to levy fines and
enforcement charges against persons who do not clean up after their pets; and (iii) the right of an
occupant to maintain an animal in a Unit shall be subject to termination if the Board, in its full
and complete discretion, determines that maintenance of the animal constitutes a nuisance or
creates a detrimental effect on the Condominium or other Units or occupants.
(1) Conveyances. Each Unit shall be conveyed in fee simple as a separately designated
and legally described freehold estate subject to the terms, conditions and provisions hereof. The
legal description of each Unit shall consist of the identifying number of symbol of such Units, as
shown on the Site Plan and the building number. The undivided interest of a Unit in the
Common Areas shall be deemed to be conveyed or encumbered with the Unit even though that
interest is not expressly mentioned or described in the deed, mortgage or other instrument of
conveyance or encumbrance. The fight of a Unit owner to sell, transfer or otherwise convey that
owner's Unit is not subject to any right of first refusal or similar restriction, and any Unit owner
may transfer that owner's Unit fi'ce of any such limitation. To enable the Association to maintain
accurate records of the names and addresses of Unit owners, each Unit owner agrees to notify the
Association, in writing, within five days after an interest in that Unit owner's Unit has been
transferred to another person. In addition, each Unit owner agrees to provide to a purchaser of
that owner's Unit a copy of the Condominium organizational documents and all effective roles
and regulations.
(m) Discrimination. No action shall at any time be taken by the Association or its
Board which in any manner would discriminate against any Unit owner in favor of another.
(n) Architectural Control. Except as hereinafter specifically provided, no fence, wall,
sign or other structure shall be commenced, erected or maintained upon the Condominium
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Property, or any part thereof, nor shall any exterior addition to or change or alteration therein be
made, until the plans and specifications showing the nature, kind, shape, height, materials, color
and location of the same shall have been submitted to and approved in writing by the Declarant
or by the the Board in the event that the Declarant is no longer in control of the Property_, or its
designated representative, as to lawfulness and appropriateness, and as to harmony of external
design, color and location in relation to surrounding structures and topography.
(o) Decorating. Each Unit owner, at his own expense, shall fia'nish and be responsible
for all decorating within his own Unit and Limited Common Areas serving his Unit, as may be
required from time to time, including painting, wall papering, washing, cleaning, paneling, floor
covering, draperies, window shades, curtains, lighting and other furnishings and decorating.
Each Unit owner shall be entitled to the exclusive use of the interior surfaces of the perimeter
walls, doors, floor and ceilings, and such Unit owner shall maintain said interior surfaces in good
condition at his sole expense. All blinds, draperies or other window covetings shall have a white
backing or other backing approved in writing prior to their installation by the Developer or Board
when the window covetings ("Window Covetings") are visible outside the Unit. Decorating of
the Common Areas (other than interior surfaces within the Units as above provided and other
than interior surfaces of Limited Common Areas), and expressly including without limitation, the
exterior surfaces of all outside doors (including garage doors) to each of the Buildings, and any
redecorating of Units, to the extent such redecorating of Units is made necessary by damage to
Units caused by maintenance, repair or replacement of the Common Areas by the Association,
shall be furnished by the Association as part of the Common Expenses. The interiors and
exteriors of all windows forming part of the perimeter wall of a Unit shall be cleaned and washed
at the expense of the Unit owner of that Unit.
Unless the Developer has allowed wood or other hard surface floors, each Unit owner
shall maintain a floor covering upon all floor areas within his Unit with the exception of those
floor areas utilized as a kitchen, bathroom or closet so as to provide an insulation from sound
transmission in accordance with standards set forth by the Board.
(p) Water Discharge. No clear water sources, including but not limited to foundation
drains, stop pumps and road drains shall be permitted to be discharged into the sanitary sewers.
(q) Arbitration. In the event of any dispute between Unit owners as to the application
of these restrictions or any role or regulation promulgated by the Board, the party aggrieved shall
submit a complaint in writing to the Board specifying the dispute. The Board shall set a time,
date and place for a hearing thereon within sixty (60) days thereafter, and give written notice to
each party thereof no less than three days in advance. The Board shall thereupon hear such
evidence on the dispute as the Board deems proper and render a written decision on the matter to
each party within thirty (30) days thereafter. No action at law may be instituted by either party to
such a dispute unless arbitration pursuant hereto has first been had. The decision of the Board
shall be binding on all parties.
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(r) Occupants. All provisions of the Declaration, By-Laws and of any roles and
regulations or use restrictions promulgated pursuant thereto which govern the conduct of Unit
owners and which provided for sanctions against Unit owners shall also apply to all occupants,
guests and invitees of any Unit. Every Unit owner shall cause all occupants of his or her Unit to
comply with the Declaration, By-Laws, and the roles 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 Unit are fully liable and may be
sanctioned for any violation of the Declaration, By-Laws and roles and regulations adopted
pursuant thereto.
ARTICLE IV.
IMPROVEMENT DESCRIPTIONS
The residential Buildings of the Condominium may contain multiple units. The
Buildings are tentatively located as shown on the Plans.
ARTICLE V.
UNITS
Section 1. Unit Designations. Each of the Units is designated on the Plans by a number.
Information concerning the Units, with a listing of proper Unit designations, is shown on
Exhibits "A-l" and "B" attached hereto.
Section 2. Composition of Units.
(a) Unit Composition. Each Unit consists of the space in the Building designated by
that Unit's designation on the Plans that is bounded by the undecorated interior surfaces of the
perimeter walls, the unfinished surface of the first floor slab, basement floor or garage floor, and
the unfinished interior surface of the ceiling, all projected, if necessary by reason of structural
divisions such as interior walls and partitions, to constitute a complete enclosure of space, and all
improvements within that space. Without limiting the generality of the foregoing, each Unit
shall include:
(1) the decorated surfaces, including paint, lacquer, varnish, wallpaper, tile and
other finishing material applied to floors, roof decks, and interior and perimeter
walls and carpets, and the drywall, paneling and other filfishing material attached
to the perimeter walls;
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(2) all windows, screens and doors, including storm doors and windows, if any,
and including the frames, sashes and jambs and the space occupied thereby, and
the hardware therefor;
(3) all fixtures and appliances installed for the exclusive use of that Unit,
commencing at the point of disconnection fi.om the structural body of the
Building and from utility pipes, lines or systems serving the entire Building or
more than one Unit thereof, including, without limiting the generality hereof,
built-in cabinets, dishwashers, garbage disposal units, refrigerators, stoves and
hoods, televisions antennas and cables, furnaces, hot water heaters, heat pumps,
and air-conditioning units, and components thereof, if any, (even if located
outside of the bounds of the Unit), serving only that Unit;
(4) all control knobs, switches, thermostats and electrical outlets and connections
affixed to or projecting from the walls, floors and'roof decks which service either
the Unit or the fixtures located therein, together with the space occupied thereby;
(5) all interior walls, that are not necessary for support of the structure, and all
components thereof and all space encompassed thereby;
(6) all plumbing, electric, heating, cooling and other utility or service lines, pipes,
wires, ducts or conduits which serve either the Unit or the fixtures located therein,
and which are located within the bounds of the Unit, or within the exterior walls
of that Unit; excluding therefrom, however, all of the following items located
within the bounds of that Unit:
(a) any structural element of the Building contained in interior walls; and
(b) all plumbing, electric, heating, cooling and other utility or service
lines, pipes, sump pumps and accessories thereto, wires, ducts and
conduits which serve any other Unit.
(7) All porches, patios, and decks, unless otherwise indicated on the Plans or this
Declaration.
(8) Any finished area in basements shall be included in the square footage of a
Unit in determining the Common Area ownership percentages.
Co) Unit Sizes: Locations and Components. The location of each part of each Unit, the
approximate size of each Unit's interior, and the number of rooms in each Unit are shown on the
Plans.
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(c) Storage Units. Any storage units are separately identified on Exhibit A-1 accord~g
to building in which the storage unit is located. The storage unit will be identified in the deed to
a unit owner by building number and storage unit number as identified on Exhibit A-1. For
example, if the Building Number were 1 and the Storage trait number were 5, the the storage trait
would be identified as Building 1, Storage Unit 5 as shown on this recorded declaration. The
floor area of the storage units shall not be included in determining a unit owner's percentage
interest as shown on Exhibit B. The storage units shall be maintained in good condition and
repair by the owner of the storage unit.
(d) Garages. In some instances there may be garages that do not immediately adjoin a
Unit but which is still part of such Unit and in such a case the garage which is part of the Unit
shall be designated on Exhibit A-1 with a specific identification for the garage, which garage
may be part of the conveyance of a unit as so identified in the deed of conveyance. The square
footage of a garage shall be included in calculating a Unit owner's percentage of the Common
Areas, whether it is finished or unfinished.
ARTICLE VI.
COMMON AND LIMITED COMMON AREAS
Section 1. Common Areas - Description. All of the Condominium Property, including
all of the land and all improvements thereon and appurtenances thereto, including the streets and
roadways and water distribution system, except those portions labeled or described herein or in
the Plans as a part of a Unit, are Common Areas.
Section 2. Limited Common Areas - Description. Those portions of the areas that are
labeled or designated "LCA" or "limited common areas" on Exhibit "A-1", are Limited Common
Areas. All such Limited Common Area is a reserved for the exclusive use of the owners and
occupants of the Unit(s) designated to be served by the same, subject to any rules promulgated
by the Association.
Section 3. Undivided Interest. The initial undivided interest in the Common Areas of
each Unit is based upon the size of the Unit as described on Exhibit "B". The Common Areas
shall be owned by the Unit owners as tenants in common, and ownership thereof shall remain
undivided. No Unit owner may waive or release any rights in the Common Areas. Further, the
undivided interest in the Common Areas of a Unit shall not be separated from the Unit to which
it appertains. Any attempted conveyance, encumbrance, judicial sale or other transfer of a Unit
Owner's fee interest in Common Areas will be void unless the Unit to which such interest is
allocated is also transferred.
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If at a later time the Condominium is expanded, as hereinafter provided, the undivided
interests of Units in the Common Areas shall be uniformly reallocated so that all Units, whether
originally in the Condominium or added at a later date, will have a pro rata percentage interest in
the Common Areas based upon the size of the Unit.
Section 4. Dedication Rights Reserved. In addition to all easements and rights
previously granted by recorded documents against the Property, Declarant hereby reserves the
right at its sole discretion, without the consent of any Unit owners being necessary, to dedicate or
otherwise convey portions of the Property (but not those portions on which a Unit is situated) to
any public agency or governmental authority or quasi-public utility, or to otherwise dedicate
portions of the Property for purposes of streets, roads, roadways, utilities, recreation areas, storm
detention basins, storm outfall, storm trunk piping, water, sidewalks and other benefits and
improvements, and fights-of-way and easements therefor. Such fight to make such dedications
or conveyances shall not require the consent, approval or signatu?es of either the Board or any
Unit owner, and such dedication or conveyance shall be considered fully accomplished and
conclusively binding upon each of said Unit owners and upon the Association when set forth in
writing or in a Plat of Dedication executed by the Declarant which has been recorded in the
Office of the Recorder of Hamilton County, Indiana, provided, however, that nothing in this
paragraph shall be construed to in any manner require or obligate Declarant to make any such
conveyance or dedication.
In furtherance of the foregoing, an irrevocable power coupled with an interest is hereby
granted to the Declarant and the Board as agent and attorney-in-fact, to grant such easements or
make such dedications or conveyances. Each deed, mortgage, trust deed or other instrument with
respect to a Unit and the acceptance thereof shall be deemed a grant and acknowledgment of the
consent to such power to each of said attorney-in-fact and shall be deemed to reserve to
Declarant and the Board the foregoing powers and rights.
Section 5. Parking Spaces. The Declarant may designate specific parking spaces
located in or on the common areas for exclusive use by specific Unit owners and may convey
title to such spaces to Unit owners.
ARTICLE VII.
UNIT OWNERS' ASSOCIATION
Section 1. Establishment of Association. The Association has been formed or will be
formed to be and to serve as the Unit owners' association of the Condominium. The Declarant is
presently the sole member of the Association or will be the sole member until the Association is
turned over to the Unit owners. The Association shall be managed in accordance with the By-
Laws.
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Section 2. Membership. Membership in the Unit Owners' Association shall be limited
to the Unit owners, and every person or entity who is or becomes a record owner of a fee or
undivided fee-simple interest in a Unit is a Unit owner and shall be a member of the Association.
The foregoing is not intended to include persons or entities who hold an interest merely as
security for the performance of an obligation. Membership shall be appurtenant to and may not
be separated from ownership of any Unit, and transfer of a Unit shall automatically transfer
membership to the transferee.
Section 3. Votine Riehts. Each Unit owner shall be entitled to vote its undivided
interest in the Common Areas for each Unit owned in fee simple, and a proportionate part of a
vote for ownership of an undivided fee simple interest in a Unit, provided, that unless timely
challenged by an owner of a fee simple interest in a Unit, any owner of a fee simple interest in
that Unit may cast the entire vote with respect to that Unit and a trustee of a voting trust and an
officer of a corporation owning a Unit shall have the right to vote with respect to a Unit.
Section 4. Board of Directors. The Board initially shall be those three (3) persons
named as the initial Directors pursuant to the provisions of the Articles, or such other person or
persons as may from time to time be substituted by Declarant. The Board shall serve in
accordance with the provisions of the By-Laws. The fiscal year of the Association shall be
determined by the Board, and may be changed from time to time as the Board deems advisable.
Notwithstanding the foregoing, Declarant shall have the right to any time to waive its fight to
select one or more Directors or to vote in an election of Directors.
Section 5. Authority. The Board shall have all authority to manage, maintain, repair,
replace, alter and improve the Common Areas, negotiate agreements and contracts with public or
private utilities, including cable companies, and assess and collect funds for the payment thereof,
and do all things, and exercise all rights provided by the Condominium organizational
documents, or the Condominium act, that are not specifically reserved to Unit owners.
In the event of any dispute or disagreement between any Unit owners relating to the
Property, or any questions of interpretation or application of the provisions of the Declaration of
By-Laws, the determination thereof by the Board shall be final and binding on each Unit owner.
Section 6. Delegation of Authority; Professional Management. The Board may
delegate all or any portion of its authority to discharge its responsibilities to a managing agent.
This delegation of authority and responsibility to a managing agent may be evidenced by one or
more management contracts which may provide for the payment of reasonable compensation to
such managing agent as a common expense, provided, however, that any agreement for
professional management shall be terminable by the Association for cause on thirty (30) days'
written notice; shall be terminable by either party, without penalty, on ninety (90) days' written
notice; shall not exceed one year unless renewed by agreement of the parties for successive one-
year periods; and shall be bona fide and commercially reasonable at the time entered into under
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the circumstances then prevailing. Subject to the foregoing, nothing contained herein shall
preclude Declarant, or any other entity designated by Declarant, from being employed as
managing agent. The managing agent, or the Board, if there is no managing agent, shall have the
authority to enter into contracts with Declarant, as defined by an institutional fn'st mortgagee or
agency or organization which purchases or insures first mortgages, for goods, services, or for any
other thing, including without limiting the generality of the foregoing, contracts for the providing
of management, maintenance and repair services, provided the same are bona fide and
commercially reasonable to the Unit owners at the time entered into under the circumstances then
prevailing and are terminable by the Association, without cause and without penalty, on ninety
(90) days' written notice.
Section 7. Records and Financial Statements. The Owners' Association shall have
copies of the Declaration, Articles of Incorporation, By-Laws, and other rules concerning the
Condominium as well as its own books, records, and financial statements available for inspection
by Unit owners or by holders, insurers, and guarantors of first mortgages that are secured by
Units in the Project, which documents shall be available during normal business hours.
Section 8. Financial Statements. The Owners' Association shall obtain an audited
financial statement for the preceding fiscal year (if the Condominium has been established for a
full fiscal year) available to the holder, insurer, or guarantor of any first mortgage that are
secured by a Unit in the Condominium or submission of a written request for it. The audited
financial statement shall be available within 120 days of the Owners' Association's fiscal year-
end. If a financial statement is not prepared as required, a mortgage holder may have an audited
statement prepared at its own expense.
ARTICLE VIII.
AGENT FOR SERVICE
The name of the person to receive service of process for the Association, and that person's
residence or place of business, is:
David H. Kosene
Kosene & Kosene Development &
Management Company, Inc.
4495 Saguaro Trail
Indianapolis, Indiana 46268-2555
In the event this individual for any reason ceases to be registered with the Secretary of State of
Indiana as Statutory Agent for the Association, the person so registered shall be the person to
receive service of process for the Association.
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ARTICLE IX.
MAINTENANCE AND REPAIR
Section 1. Association Responsibility. The Association shall maintain and repair the
Common Areas, including and not limited to the water distribution system, utility facilities
serving more than one Unit, utility lines in the Common Areas, laterals serving one or more
Units to the connection into the gravity main, including any requirements of insmuncnts of
record, streets including cul-de-sac necks, lawns, shrubs, trees, walkways, thc exterior and
structure, including but not limited to roof structure and roof of all buildings which are a part of
the Common Area and which may be located within a sanitary sewer or utility easement, and,
provided, however, that the Association shall not be required to provide routine maintenance or
cleaning or snow removal with respect to the driveways, nor shall it repair or maintain any
improvements within Limited Common Areas, unless the Unit Owner fails to maintain. Any
damage caused to the Common Areas, or the exterior of any building, including garage doors,
caused by a Unit owner shall be the responsibility of the Unit owner to repair or replace.
Section 2. Individual Responsibility. Each Unit owner shall repair and maintain the
Unit or Units, and all components thereof, owned by that Unit owner, and the Limited Common
Area, if any, adjacent to thc Unit, and shall provide routine maintenance and cleaning and snow
removal with respect to the driveways (unless responsibility is undertaken by the Association
through the Board), sidewalks, decks, balconies and patios, appurtenant to that Owner's Unit.
Without limiting the generality of the foregoing, the repair and maintenance responsibility shall
include repair and maintenance of all windows, screens and doors, including the frames, sashes
and jambs, and the hardware therefor; and repair and maintenance of the garages, garage doors
(whether the damage is interior or exterior), patios, porches, and decks and any improvements
therein. The Board shall have the right and authority at its discretion to assess the costs for the
repair, maintenance or replacement of Limited Common Areas (including, without limitation,
garages within a Building, parking spaces or patios, in whole or in part to the Unit or Units
within the Building where so located or assigned) or to require the Unit Owners to pay for, or
cause the repair, maintenance and replacement to be performed by the Unit owners. In thc event
a Unit owner shall fail to make any such repair or perform such maintenance, or in the event the
need for maintenance or repair of any part of the Common Areas or Limited Common Areas is
caused by the negligent or intentional act of any Unit owner or occupant, or its agent, invitee,
licensee or pet, or is as a result of the failure of any Unit owner or his, her or its predecessors in
title to timely pursue to conclusion a claim under any warranty, express, implied, or imposed by
law, and the cost of repair is not covered by insurance, the cost of such maintenance and repair
shall constitute a special individual Unit assessment, as hereinafter defined, on the Unit owner by
such Unit owner. Thc determination that such maintenance or repair is necessary, or has been so
caused, shall be made by the Board and shall be final and binding on thc Unit owners.
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ARTICLE X.
UTILITY SERVICES
Each Unit owner by acceptance of a deed to a Unit agrees to pay for utility services
separately metered or separately charged by the utility company to that Unit. In the event any
utility service is not separately metered the cost thereof shall be a Common Expense and paid by
the Association, except that, with respect to any meters measuring the use of light or heat or
water on the basis of the consumption thereof for one or more Units in a Building, at the option
of the Board and its sole discretion, the expenses therefor may be allocated to and assessed
against the Unit or Units located within that Building. In such an event, all of the Units in each
said Building shall be responsible for the total cost of said metered expense for said Building,
and among themselves each of said Units shall be responsible for that proportion of said cost
equal to the proportion which the Percentage Ownership of Common Areas of said Unit bears to
the total Percentage Ownership of Common Areas of all of the units in the Building.
ARTICLE XI.
INSURANCE; LOSSES BONDS
Section 1. Fire and Extended Coverage Insurance. The Board shall have the authority
to and shall obtain insurance for all Buildings, structures, supplies, machinery, fixtures and
equipment and common personal property and supplies now or at any time hereafter constituting
a part of thc Common Areas or common property of the Association, against loss or damage by
fire, lightning, and such other perils as are ordinarily insured against by standard extended
coverage endorsements, and all other perils which are customarily covered with respect to
projects similar in construction, location and use, including all perils normally covered by the
standard "all risk" endorsement, where such is available, policies issued in the locale of the
Condominium Property, in amounts at all times sufficient to prevent the Unit owners from
becoming co-insurers under the terms of any applicable co-insurance clause or provision and not
less than one hundred (100%) of the current replacement cost of such items (exclusive of land,
foundations, footings, excavations, and other items normally excluded from coverage), as
determined from time to time by the insurer, with a deductible not greater than the lesser of $
10,000 or 1% of the face amount of the policy. This insurance:
(a) shall provide coverage for improvements, alterations, fixtures and equipment located
within Units; interior walls, windows and doors and the frames, sashes, jambs and hardware
therefor, even through these improvements may be parts of Units but shall not include and
interior decorating of the Units by the Unit owners; and any other items of personal property for
which coverage is required by The Mortgage Corporation, Federal National Mortgage
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Association, or any similar holder, insurer or guarantor of first mortgage loans upon Units in the
Condominium;
Co) shall provide that no assessment may be made against a first mortgage lender, or its
insurer or guarantor, and that any assessment under such policy made against others may not
become a lien on a Unit and its appurtenant interests superior to a first mortgage;
(c) shall be obtained from a insurance company authorized to write such insurance in the
State of Indiana which has a current rating of Class B/111, or better, or, if such company has a
financial rating of Class 11, then such company must have a general policy holder's rating of at
least A, all as determined by the then latest edition of Best's Insurance Reports, or its successor
guide, or such higher rating as may, from time to time, be required by The Mortgage
Corporation, Federal National Mortgage Association, or any similar holder, insurer or guarantor
of first mortgage loans upon Units in the Condominium; or, if the insurer does not satisfy these
rating requirements, that insurer is reinsured by a company that has a B/111 or better rating;
(d) shall provide that its coverage is primary, and be written in the name of Association
for the use and benefit of the individual Unit owners and their mortgage holders, or its authorized
representative, including any insurance trustee with whom the Association has entered into an
insurance trust agreement, or any successor to such trustee, for the use and benefit of the
individual Unit Owners and their mortgage holders.
(e) shall contain or have attached the standard mortgage clause commonly accepted by
institutional mortgage investors in the area in which the Condominium Property is located,
naming the holder, insurer, guarantor or servicer of first mortgages on Units, which must provide
that the insurance carrier shall notify all holders of first mortgages named at lease ten (10) days
in advance of the effective date of any reduction in, cancellation of, or substantial change in the
policy, and which standard mortgagee clause must fimher be endorsed to provide that any loss
shall be paid to the Association (or its insurance trustee), as a trustee for each Unit owner and
each such Unit owner's mortgagee;
(f) shall contain a waiver of subrogation of rights by the carder as to the Association, its
officers and Directors, and all Unit owners, and the rights of the various parties to collect
pursuant to such insurance shall not be prejudiced by the acts or failure to act of any Unit owner
or person under the control of the Association; and
(g) shall contain such other endorsements and meet such other requirements as are, from
time to time, required by The Mortgage Corporation, Federal National Mortgage Association, or
any similar holder, insurer or guarantor of first mortgage loans upon Units in the Condominium;
The cost of this insurance and all insurance described in this Article XI (excluding
Section 6) shall be a Common Expense, payable by the Association; however, if there is a cost of
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insurance which is applicable to some but not all of the Units, the Board, in its discretion, may
charge an additional assessment to each Unit owner the amount of the additional insurance
premium charged.
Section 2. Liability Insurance. The Association shall obtain and maintain a
comprehensive policy of general liability insurance covering all of the Common Areas, insuring
the Association, the Board, and the Unit owners and occupants, with such limits as the Board
may determine, but no less than the greater of (a) the amounts generally required by private
institutional mortgage investors for projects similar in construction, location and use, and Co) one
million dollars, ($1,000,000), for bodily injury, including deaths of persons, and property
damage, arising out of a single occurrence. This insurance shall contain a "severability of
interest" endorsement which shall preclude the insurer fi.om denying the claim of a Unit owner
because of negligent acts of the Association, the Board, or other Unit owners and shall include,
without limitation, coverage for legal liability of the insureds for property damage, bodily
injuries and deaths of persons in connection with the operation, maintenance or use of the
Common Areas, legal liability arising out of lawsuits related to employment contracts of the
Association' and additional coverages as are ordinarily obtained with respect to projects similar
in construction, location and use. Each such policy must provide that it may not be canceled or
substantially modified by any party, without at least 10 days' prior written notice to the
Association and to each Eligible holder of a first mortgage lien upon any Unit.
Section 3. Fidelity Coverage. The Board shall obtain and maintain, or cause to be
obtained and maintained, fidelity coverage for the Association against dishonest or fraudulent
acts on the part of the Board, managers, employees, agents, or volunteers responsible for
handling funds belonging to or administered by the Association. The fidelity bond or insurance
shall name the Association as the named obligee or insured and shall be written in an amount
sufficient to provide protection, which is in no event less than the greater of: (i) 150% of the
estimated annual operating expense of the Association, including reserves, (ii) the maximum
fimds that will be in the custody of the Association or its agent at any time; or (iii) the sum of
three months worth of assessments plus the Association's reserves. In connection with such
coverage, an appropriate endorsement to the policy to cover any persons who serve without
compensation shall be added if the policy would not otherwise cover volunteers. The bond or
policy shall provide that it shall not be canceled or substantially modified (including cancellation
for not-payment of premium) without at least 10 days' prior written notice to the association, any
insurance trustee, and any holder, insurer, guarantor or servicer on behalf of any holder of any
mortgage on a Unit who requires such fights. Any managing agent that handles funds for the
Association shall be required to obtain its own fidelity bond providing similar coverage.
Section 4. Other Association Insurance. In addition, the Board may purchase and
maintain contractual liability insurance, directors' and officers' liability insurance, and such other
insurance as the Board may determine.
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Section 5. Insurance Representative~ Power of Attorney. Notwithstanding any of the
foregoing provisions of this Article, or any requirement relating to property or liability insurance
herein, there may be named, under any policy obtained by the Association, as an insured on
behalf of the Association, its authorized representative, including any trustee with whom the
Association may enter into an insurance trust agreement, or any successor to such trustee, who
shall have exclusive authority to negotiate losses under any such policy. Each Unit owner, by
acceptance of a deed to a Unit, irrevocably appoims the Association or such designated
representative, or such successor, as attorney-in-fact for the purpose of purchasing and
maintaining such insurance, including: the collection and appropriate disposition of the proceeds
thereof; the negotiation of losses and execution of releases of liability; the execution of all
documents; and the performance of all other acts necessary to accomplish such purpose. The
Association, or such designated representative, or such successor, shall receive, hold or otherwise
properly dispose of any proceeds of insurance, in trust, for Unit owners and their first mortgage
holders, as their imerests may appear. This power is for the benefit of each and every Unit
owner, and their respective first mortgage holders, and the Association, and the Condominium,
runs with the land, and is coupled with an interest.
Section 6. Unit Owners' Insurance. Any Unit owner or occupant may carry such
insurance in addition to that provided by the Association pursuant hereto as the Unit owner or
occupant may determine, subject to the provisions hereof, and provided that no Unit owner of
occupant may at any time purchase individual policies of insurance against loss by fire or other
casualty covered by the insurance carried pursuant hereto by the Association. In the event any
Unit owner or occupant violates this provision, any diminution in insurance proceeds resulting
from the existence of such other insurance shall be chargeable to the Unit owner who acquired or
whose occupant acquired such other insurance, who shall be liable to the Association to the
extent of any diminution and/or loss of proceeds. Without limiting the foregoing, a Unit owner
or occupant may obtain insurance against liability for events occurring within a Unit, losses with
respect to personal property and fumis~gs, and losses to improvements owned by the Unit
owner or occupant, provided that if the Association obtains insurance for permanent
improvements and built-in fixtures and equipment, then the insurance obtained by the Unit
owner with respect to improvements within the Unit shall be limited to the type and nature of
coverage commonly referred to as "tenants' improvements and betterments". All such insurance
separately carried shall contain a waiver of subrogation rights by the carrier as to the Association,
its officers, Directors and Trustees, and all other Unit owners and occupants.
Section 7. Sufficient Insurance. In the event the improvements forming a part of the
Common Areas or any portion thereof shall suffer damage or destruction from any cause of peril
insured against and the proceeds of any policy or policies insuring against such loss or damage
and payable by reason thereof shall be sufficient to pay the cost of repair or restoration or
reconstruction, then such repair, restoration or reconstruction shall be undertaken by the
Association and the insurance proceeds shall be applied by the Board in payment therefor;
provided, however, that in the event of complete destruction of all of the Buildings such as
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causes the termination of the Condominium pursuant to Article XII, Section 1, below, the
Condominium shall be terminated, in which event such repair, restoration or reconstruction shall
not be undertaken.
Section 8. Insufficient Insurance. In the event the improvements forming a part of the
Common Areas or any portion thereof shall suffer damage or destruction from any cause or peril
which is not insured against, or, if insured against, the insurance proceeds from which shall not
be sufficient to pay the cost of repair, restoration or reconstruction, then, unless there is complete
destruction of all Buildings such as causes the termination of the Condominium pursuant to
Article XII, Section 1, below, the Association shall make repairs, restoration or reconstruction of
the Common Areas so damaged or destroyed at the expense (to the extent not covered by
insurance) of all Unit owners in proportion to their respective undivided interests in the Common
Areas. Should any Unit owner refuse or fail after reasonable notice to pay that Unit owner's
share for such cost in excess of available insurance proceeds, the amount so advanced by the
Association shall be assessed against the Unit of such Unit owner and that assessment shall have
the same force and effect, and, if not paid, may be enforced in the same manner as herein
provided for the nonpayment of assessments.
ARTICLE XII.
DAMAGE; RECONSTRUCTION
Section 1. Complete Destruction. In the event of the complete destruction of all of the
Buildings containing Condominium Units [as determined by a vote of Unit owners holding two-
thirds (2/3) of the voting power held by all Unit owners] the Buildings shall not be reconstructed,
and the insurance proceeds, if any, shall be divided among the Unit owners and their respective
mortgages in the percentage by which each Unit owner owns an undivided interest in the
Common Areas and facilities, and the property shall be considered as removed from the
Condominium under section 32-1-6-28 of the Indiana Code, unless, by a vote of two-thirds (2/3)
of the voting power held by all Unit owners, a decision is made to rebuild the Building, in which
case the insurance proceeds shall be applied and any excess of construction costs over insurance
proceeds shall be contributed as provided herein for capital contributions.
Section 2. Reconstruction. In case of fire or any other casualty or disaster, other than
complete destruction of all Buildings containing the Condominium Units, unless the Unit owners
elect for reconstruction as provided above, the improvements shall be promptly reconstructed
and the insurance proceeds applied to reconstruct the improvements.
Section 3. Failure to Reconstruct. If it is determined by the Unit owners to not rebuild
after casualty or disaster has occurred, then in that event:
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(a) The Property shall be deemed to the owned in common by the Unit owners;
(b) The undivided interest in the Property owned in common which shall appertain to
each Unit owner shall be the percentage of undivided interest previously owned by such Unit
owner in the Common Areas;
(c) Any liens affecting any of the Units shall be deemed to be transferred in accordance
with the existing priorities to the percentage of the undivided interest of the Unit owner in the
Property; and
(d) The Property shall be subject to an action for partition at the suit of any Unit owner,
in which event the net proceeds of sale, together with the net proceeds of the insurance on the
Property, if any, shall be considered as one fund and shall be divided among all the Unit owners
in a percentage equal to the percentage of undivided interest owned by each Unit owner in the
Property, after first paying out of the respective shares of the Unit owners, to the extent sufficient
for the purpose, all liens on the undivided interest in the Property owned by each Unit owner.
ARTICLE XIII.
CONDEMNATION
Section 1. Standing. Except as hereinafter provided, the Association, or its designated
representative, or authorized successor, as trustee, shall represent the Unit owners in any
condemnation or eminent domain proceedings or in negotiations, settlements and agreements
with the condemning authority for acquisition of all or any part of the Condominium Property,
and shall have the sole and exclusive right to settle the loss with the condemning authority and to
receive the award or proceeds of settlement, for the use and benefit of the Unit owners and their
mortgagees as their interests may appear except that any award or proceeds of settlement for the
withdrawal of a Limited Common Area will be for the use and benefit of the Unit owners entitled
to their use. Notwithstanding the foregoing, in the event that a Unit owner may lawfully
separately pursue and realize upon a claim for incidental and consequential losses or damage to
that Unit owner resulting fi.om a taking under the power of eminent domain, such as for
relocation and moving expenses, loss of favorable mortgage terms, and other such individual
incidental or Consequential loss, that Unit owner may, at his, her or its election, separately pursue
such claim, provided, that the pursuing of the same, or the realization of an award thereof, neither
jeopardizes, in any way, an action by the Association to recoup the losses incurred by it, any
other Unit owner, or the direct loss with respect to the Unit itself, or with regard to the usability
thereof, nor diminishes any award for any such loss.
Section 2. Use of Proceeds. The award of proceeds of settlement in any such
proceedings, after reduction by the cost, if any, incurred in obtaining the same, shall be applied
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first to the cost of restoring or replacing all damaged improvements on the remaining
Condominium Property in accordance with the Plans, or n accordance with any new plans and
specifications therefor approved by Unit owners exercising no less than seventy-five percent
(75%) of the voting power of Unit owners, and the Eligible holders of first mortgages on Units to
which at least fifty-one percent (51%) of the votes of Units subject to mortgages held by Eligible
holders of first mortgages appertain. If the award of proceeds are insufficient for such purpose,
the excess cost shall be paid by the Association and, to the extent funds of the Association are
insufficient therefor, in the judgment of the Board, such excess cost shall be a Common Expense
and assessed among the Units in the same manner as special assessments for capital
improvements are assessed. Except as hereinafter provided, the balance of any such award or
proceeds of settlement, if there is an excess, shall be allocated and distributed to the Unit owners,
and their first mortgages, as their interests may appear, in proportion to the relative undivided
interests of the Units in the Common Areas. Notwithstanding the foregoing, in the event that as
a result of any such taking, and consequent restoration or replacement, any Unit could not
reasonably be restored to condition comparable to that which existed prior to the taking, or could
not be replaced, prior to the allocation and disbursement of any sum to any other Unit owner or
his, her or its mortgagee, there shall be allocated and disbursed from such award or proceeds, to
each Unit owner whose Unit cannot be so restored or replaced, and his, her or its respective first
mortgagee, as their interests may appear, such amount as is equal to the then fair market value of
the Unit that cannot be so restored or replaced. Thereupon, such Unit or Units, and the owners
thereof, shall be immediately and automatically divested of any interest in the Condominium, the
Condominium Property, and the Association, including, without limiting the generality of the
foregoing, divestment of an undivided interest, vote, membership in the Association, and future
liability for Common Expenses. All such fights and interests shall be reallocated among all other
Units and Unit owners in the same relative proportions as those rights and interests were prior to
such taking. To illustrate, upon a Unit being divested from the Condominium, (a) the voting
right of that Unit will be equally allocated among all other Units, since each Unit prior thereto
had an equal vote, and Co) the undivided interest of that Unit will be reallocated among all other
Units in the proportions of their relative undivided interests prior to such taking.
Section 3. Power of Attorney. Each Unit owner, by acceptance of a deed to a Unit,
appoints the Association, or its designated representative, or authorized successor, as his, her or
its attorney-in-fact to represent that Unit owner, settle losses, receive and utilize the award or
proceeds of settlement, and do all things necessary or desirable for such attorney-in-fact to
exercise the rights and fulfill the responsibilities of the Association set forth in this Article with
respect to condemnation or eminent domain proceedings. This power is for the benefit of each
and every Unit owner, each holder of a first mortgage on a Unit, the Association, and the real
estate to which it is applicable, runs with the land, is coupled with an interest, and is irrevocable.
ARTICLE XIV.
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GRANTS AND RESERVATIONS OF RIGHTS AND EASEMENTS
Section 1. Easements of En|oyment; Limitations. Every Unit owner shall have a right
and easement of enjoyment in, over and upon the Common Areas and a right of access to and
from his, her or its Unit, which rights and easements shall be appurtenant to and shall pass with
the title to a Unit, subject to the right of thc Board to make reasonable rules and regulations
concerning the use and management of the Common Areas, provided that no such rule or
regulation shall limit or prohibit the right of ingress and egress to a Unit, or any part thereof, or
to that Unit's Limited Common Areas. Any Unit owner may delegate that Unit owner's right to
enjoyment to the Common Areas and to ingress and egress to the members of that Unit owner's
family and to occupants. Each Unit Owner shall have an casement for the installation, use,
repair, replacement and relocation of a sprinkler system in the common area adjacent to such
Owner's Unit, provided that the construction of any such sprinkler system be approved by thc
Declarant or, aider the sale of all Units in the Condominium Property, by the Board of Directors
of the Association.
Section 2. Right of Entry for Repair, Maintenance and Restoration. The Association
shall have a right of entry and access to, over, upon and through all of the Condominium
Property, including each Unit, to enable the Association to perform its obligations, rights and
duties pursuant hereto with regard to maintenance, repair, restoration and/or servicing of any
items, things or areas of or in the Condominium Property. In the event of an emergency, the
Association's right of entry to a Unit and its appurtenant Limited Common Areas may be
exercised without notice; otherwise, the Association shall give the Owners or occupants of a Unit
no less than 24-hours advance notice prior to entering a Unit or its appurtenant Limited Common
Areas.
Section 3. Easement for Encroachments. Each Unit and the Common Areas shall be
subject to easements for encroachments on any other Unit and upon the Common Areas created
or arising by reason of overhangs; or by reason of deviations in construction, reconstruction, or
repair; or by reason of shifting, settlement, or movement of the structures; or by reason of errors
in the Plans. Valid easements for these encroachments and for the maintenance of the same, so
long as the encroaching structures remain, shall and do exist. However, no easement shall be
permitted and no pavement or concrete, including driveways and sidewalks, if installed, shall be
constructed on or within one foot horizontal distance of any sanitary sewer manhole or cleanout
casting.
Section 4. Easement for Support. Every portion of a Building or utility line or any
improvement on any portion of the Condominium Property contributing to the support of another
Building, utility line or improvement on another portion of the Condominium Property shall be
burdened with an easement of support for the benefit of all other such Buildings, utility lines,
improvements and other portions of the Condominium Property.
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Section 5. Easements for Utilities. There is hereby created upon, over and under all of
the Condominium Property easements to the Association, the Declarant, and all public agencies,
governmental authorities and quasi-public utilities, including, without limitation, the water
Company, AES, PSI or other power or utility companies, for ingress and egress to, and the
constructing, installation, extending, operating, inspecting, reconstructing, replacing, removing,
repairing and maintaining of all utilities, including, but not limited to, water, sanitary sewer,
storm sewer, gas, telephone, electricity, security systems, master television antennas and cable
television. By this easement it shall be expressly permissible for such beneficiaries or companies
to construct and maintain the necessary poles and equipment, wires, circuits and conduits on,
above, across and under the Condominium Property, so long as such poles, equipment, wires,
circuits and conduits do not unreasonably interfere with the use and enjoyment of the
Condominium Property. Should any such company furnishing a service request a specific
easement by separate recordable document, the Board shall have the right to grant such easement
without conflicting with the terms hereof and without the approval of any mortgagee, which
consent is hereby given.
Section 6. Easement for Services. A non-exclusive easement is hereby granted to all
police, fireman, ambulance operators, mailmen, deliverymen, garbage and trash removal
personnel, and all similar persons, and to the local governmental authorities and the Association,
but not to the public in general, to enter upon the Common Areas in the performance of their
duties.
Section 7. Easements Reserved to Declarant. Non-exclusive easements are hereby
reserved to the Declarant, its contractors, subcontractors, agents, successors and assigns, over and
upon the Common Areas (a) for access for and for the purpose of completing improvements for
which provision is made in this Declaration, provided that such right of access shall be to the
extent, but only to the extent, that access thereto is not otherwise reasonably available, (b) for the
periods for warranties hereunder, for purposes of making repairs required pursuant to those
warranties or pursuant to contracts of sale made with Unit purchasers, and (c) until the Declarant
has sold and completed construction of all Units, to maintain one or more Units for sales and
management offices and for storage and maintenance, and model Units, parking areas for sales
and rental purposes, and advertising signs. Notwithstanding any provisions or restrictions
contained in this Declaration to the contrary, it shall be expressly permissible for the Declarant
and its agents, employees, successors and assigns to maintain and carry on such facilities and
activities as may be reasonably required, convenient or incidental to the completion,
improvement and sale of Units or the developing of Units and Common Areas (as hereafter
defined), including, without limitation, the installation and operation of sales and construction
trailers and offices, signs and model dwellings. The right to maintain and carry on such facilities
and activities shall include specifically the right to use Units as model residences and to use any
Units as an office for the sale of Units and for related activities and to use any Unit as a
construction office.
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In addition, a non-exclusive perpetual easement is hereby reserved to Declarant, its
successors and assigns, for their benefits and the benefit of future owners and occupants of the
area into which the Condominium may be expanded, hereinafter described, for pedestrian and
vehicular access over roadways and footpaths within the Condominium Property, and each part
thereof. Additionally, Declarant, for itself and its successors and assigns, reserves an easement
across the Common Areas to reach, and fight to extend and tie into, utility lines in the Common
Areas, as permitted by public authority and the utility company involved.
Section 8. Power of Attorney. Each Unit owner, by acceptance of a deed to a Unit,
hereby irrevocably appoints the President of the Association, his, her or its attorney-in-fact, to
execute, deliver, acknowledge and record, for and in the same of such Unit owner, such deeds of
easement and other instruments as may be necessary or desirable, in the sole discretion of the
Board, to further establish or effectuate the foregoing easements. This power is for the benefit of
each and every Unit owner, the Association, and the real estate to which it is applicable, runs
with the land, is coupled with an interest, and is irrevocable.
Section 9. General. The easements and grants provided herein shall in no way affect
any other recorded grant or easement.
ARTICLE XV.
ASSESSMENTS AND ASSESSMENT LIENS
Section 1. Twes of Assessments. The Declarant for each Unit within the
Condominium hereby covenants (except for item (4) below), and each Unit owner by acceptance
of a deed to a Unit (whether or not it shall be so expressed in such deed), is deemed to covenant
and agree to pay to the Association or the Developer in the absence of an Association having
been formed: (1) annual operating assessments, (2) special assessments for capital
improvements, (3) special individual Unit assessments, and (4) working capital assessments, all
of such assessments to be established and collected as hereinafter provided.
Section 2. purpose of Assessments.
The assessments levied by the Association shall be used exclusively to promote the
health, safety and welfare of Unit owners and occupants and the best interests of the
Condominium Property.
Section 3. Elements-Apportionment: Due Dates.
(a) Annual Operating Assessments.
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(1) At such time prior to the closing by Declarant of the sale of the first Unit, and
prior to the beginning of each fiscal year of the Association thereafter, the Board
or the Developer, in the absence of the formation of an Association, shall
estimate, and prorate among the Units on the basis of the undivided interest of
each Unit in the Common Areas, Common Expenses of the Association consisting
of the following:
(a) the estimated next fiscal year's cost of the maintenance, repair, and
other services to be provided by the Association;
(b) the estimated next fiscal year's costs for insurance and bond premiums
to be provided and paid for by the Association;
(c) the estimated next fiscal year's costs for utility services not separately
metered;
(d) an amount deemed adequate by the Board to maintain a reserve for the
cost of unexpected repairs and replacements and usual and ordinary repair
expenses, and for the fimding of insurance deductibles in the event of
casualty loss;
(e) a replacement reserve fund for capital expenditures and replacement
and repair of the common areas and facilities, which funds shall be used
for the purpose and not for usual and ordinary repair expenses of the
common areas and facilities. This fund for capital expenditures and
replacement and repair of common areas and facilities shall be maintained
in a separate interest bearing account with a bank or savings and loan
association. Assessments collected for contributions to this fund may not
be subject to Indiana gross income tax or adjusted gross income tax.
(f) the estimated next fiscal year's costs for the operation, management
and administration of the Association, including, but not limited to, fees
for property management, fees for legal and accounting services, costs of
mailing, postage, supplies and materials for operating the Association, and
the salaries, wages, payroll charges and other costs to perform these
services, and any other costs constituting Common Expenses not
otherwise herein specifically excluded.
(g) The Board, or the Developer in the absence of the formation of an
Association, shall have the right to prepare and enforce separate budgets
for different parts of the development to reflect expenses that may not be
beneficial to owners of all of the Units or all of the parts of the
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development and make special assessments for the costs of these types of
items.
(2) The Board shall thereupon allocate to each Unit that Unit's share of all of
these items, prorated in accordance with each respective Unit's undivided interest
in the Common Areas, or as reflected in a separate budget as provided under
Article XV, Section 3(a)(1)(g) above and thereby establish the annual operating
assessment for each separate Unit. For administrative convenience, any such
assessment may be rounded so that monthly installments will be in whole dollars.
(3) The annual operating assessment shall be payable in advance, in equal
monthly installments, provided that nothing contained herein shall prohibit any
Unit owner from prepaying assessments in annual, semi-annual, quarterly or
monthly increments. The due dates of any such installments shall be established
by the Board, and, unless otherwise provided, the Association shall collect on or
before the first day of each month fi'om those who own the Unit an equal monthly
pro-rata share of the annual operating assessment for that Unit.
(4) If the amounts so collected are, at any time, insufficient to meet all
obligations for which those funds are to be used, the deficiency shall be assessed
by the Board among the Units on the same basis as heretofore set forth.
(5) If assessments collected during any fiscal year are in excess of the funds
necessary to meet the anticipated expenses for which the same have been
collected, the excess shall be retained by the Association, and shall in no event be
deemed profits nor available, except on dissolution of the Association, for
distribution to Unit owners.
(6) Except for its responsibilities as a Unit owner as provided in this Declaration,
the Declarant shall not have any responsibility for the maintenance, repair or
replacement of any part of the Common Areas.
(b) Special Assessments for Capital Improvements.
(1) In addition to the annual operating assessments, the Board may levy, in any
fiscal year, special assessments to construct, reconstruct or replace capital
improvements on the Common Areas to the extent reserves therefor are
insufficient, provided that new capital improvements not replacing existing
improvements shall not be constructed nor funds assessed therefor, if the cost
thereof in any fiscal year would exceed an amount equal to five percent of that
fiscal year's budget, without the prior consent of Unit owners exercising no less
than seventy-five percent (75%) of the voting power of Unit owners and the
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consent of Eligible holders of first mortgages on Units to which at least fifty-one
percent (51%) of the votes of Units subject to mortgages held by Eligible holders
of first mortgages appertain.
(2) Any such assessment shall be prorated among all Units in proportion to their
respective undivided interests in the Common Areas, and shall become due and
payable on such date or dates as the Board determines following written notice to
the Unit owners.
(c) Special Individual Unit Assessments. The Board may levy an assessment against
an individual Unit, or Units, to reimburse the Association for those costs incurred in connection
with that Unit or Units properly chargeable by the terms hereof to a particular Unit (such as, but
not limited to, the cost of making repairs the responsibility of a Unit owner, the cost of insurance
premiums separately billed to a Unit owner, and a Unit owner's enforcement and arbitration
charges). Any such assessment shall become due and payable on' such date as the Board
determines, and gives written notice to the Unit owners subject thereto.
The developer, Declarant shall fund the initial working capital fund in an amount equal to
two months of estimates of Common Expenses times the number of Units completed. The
developer, Declarant shall not use the working capital funds to defray any of its expenses, as
reserve contributions, or for construction costs or to make up any budget deficits while it is in
control of the Owners' Association. When Units are sold, however, the developer, Declarant
may reimburse itself for funds it paid the Owners' Association for an unsold Unit's share of the
working capital fund by using fimds collected at closing when the Unit is sold.
Section 4. Effective Date of Assessments. Any assessment created pursuant hereto
shall be effective, provided it is created as provided herein, on the date approved by the Board
(with respect to assessments described in Section 3 of this Article X~, and upon the date that
any installment of such assessment becomes delinquent (with respect to late charges and
interest), and/or the date costs are incurred by the Association (with respect to costs of
collection). Written notice of the amount of the assessments established pursuant to Section 3 of
this Article XV shall be sent by the Board to the Unit owner subject thereto prior to the due date
thereof, or the due date of the first installment thereof, if to be paid in installments. Written
notice mailed or delivered to a Unit owner's Unit shall constitute notice to that Unit owner,
unless the Unit owner has delivered written notice to the Board of a different address for such
notices, in which event the mailing of the same to that last designated address shall constitute
notice to that Unit owner. Failure of the Board to deliver such notice in accordance with the
foregoing shall not invalidate the assessment, nor constitute a defense by any party to the
collection of the assessment or enforcement of the lien therefor. Notwithstanding anything to the
contrary contained herein, Declarant shall be excused from paying any of the assessments
described in this Article XV for any Units owned by Declarant and offered for the first time for
sale for a period of time that begins on the day this Declaration is recorded and terminates on the
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first day of the twenty-fourth calendar month following the month in which the closing of the
sale of the first Condominium Unit of the Building added in each mended Declaration occurs.
Section 5. Effect of Nonpayment of Assessment; Remedies of the Association.
(a) If any assessment or any installment of any assessment is not paid when due, the
Board, at its option, without demand or notice, may (i) declare the entire unpaid balance of the
assessment immediately due and payable, (ii) charge interest on the entire unpaid balance at the
rate of interest of ten percent (10%) per annum, or at such rate as the Board may from time to
time determine, and (iii) charge a reasonable, uniform late fee, as determined from time to time
by the Board, as well as the cost of collection, including, without limitation, reasonable attorney's
fees to the extent not prohibited by Indiana law. The interest, late fees, and costs of collection
shall be considered to be part of the "Assessment" for all purposes herein.
(b) Annual operating and both types of special assessments, together with interest, late
charges and costs, shall be a charge and a continuing lien in favor of the Association upon the
Unit against which each such assessment is made, from the effective date thereof.
(c) At any time after an installment of an assessment levied pursuant hereto remains
unpaid after the same has become due and payable, a certificate of lien for all or any part of the
unpaid balance of that assessment, and interest and costs, (including attorneys fees), may be filed
with the Recorder of Hamilton County, Indiana, pursuant to authorization given by the Board.
The certificate shall contain a description of the Unit against which the lien exists, the name or
names of the record owner or owners thereof, and the then current amount of the unpaid portion
of the assessment. The failure to include current interest, fees, and costs of collection, in such
certificate shall not invalidate the Association's right to collect such interest, fees, and costs of
collection accruing before or after the filing of such certificate.
(d) Any Unit owner who believes that an assessment chargeable to his, her or its Unit
(for which a certificate of lien has been filed by the Association) has been improperly charged
against that Unit, may bring an action in the Hamilton County, Indiana, courts for the discharge
of that lien. In any such action, if it is finally determined that all or a portion of the assessment
has been improperly charged to that Unit, the court shall make such order as is just, which may
provide for a discharge of record of all or a portion of that lien.
(e) Each such assessment together with interest, fees, and costs of collection, (including,
without limitation, reasonable attorney's fees to the extent not prohibited by Indiana law), shall
also be the joint and several personal obligation of the Unit owners who owned the Unit at the
time when the assessment fell due. In a voluntary conveyance of the Unit, the grantee of a Unit
shall be jointly and severally liable with the grantor for all unpaid assessments against the Unit
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and/or grantor for such Unit's or grantor's share of the Common Expenses up to the time of the
grant or conveyance, without prejudice to the grantee's fight to recover fi.om the grantor the
mounts paid by the grantee therefor.
(f) Any grantee of an interest in a Condominium Unit shall be entitled to a statement
from the Board setting forth the amount of the unpaid installments of the assessments against the
grantor, and such grantee shall not be liable for, nor shall the Condominim Unit conveyed be
subject to a lien for, any unpaid assessments against the grantor in excess of the amount set forth
in such certificate.
(g) The Association, as authorized by the Board, may file a lien or liens to secure
payment of delinquent assessments, interest, late fees and costs, (including attorneys fees), bring
an action at law against the owner or owners personally obligated to pay the same, and an action
to foreclose a lien, or any one or more of these. In any foreclos~e action, the Unit owner or
owners affected shall be required to pay a reasonable rental for that Unit during the pendency of
such action, and the Association as plaintiff in any such action shall be entitled to the
appointment of receiver to collect such rent, and to become a purchaser at the foreclosure sale,
and acquire, hold, lease, mortgage and convey the same. Suit to recover a money judgment for
unpaid Common Expenses shall be maintainable without foreclosing or having the lien securing
the same. In any such action, interest and costs of such action (including attorneys fees) shall be
added to the amount of any such assessment, to the extent not prohibited by the Indiana law.
(h) No owner may waive or otherwise escape liability for the assessments provided for in
this Declaration by non-use of the Common Areas, or any part thereof, or by abandonment of his,
her or its Unit.
Section 6. Subordination of the Lien to First Mortgages. The lien of the assessments
and charges provided for herein shall be subject and subordinate to the tax liens on the Unit in
favor of any assessing unit and special district, and the lien of any duly executed first mortgage
on a Unit recorded prior to the effective date of such assessment.
ARTICLE XVI.
NOTICE TO MORTGAGEES
Any holder, insurer or guarantor of a first mortgage, upon written request to the
Association (which request states the name and address of such holder, insurer or guarantor and
the Unit designation or address), shall be entitled to timely written notice, (delivered by certified
or registered mail, return receipt requested], by the Association off
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1. any proposed addition or amendment of the Condominium organizational documents
effecting a change or addition in provisions establishing, providing for, governing or regulating
(a) voting, (b) assessments, assessment liens or subordination of such liens, (c) reserves for
maintenance, repair and replacement of Condominium Property, (d) insurance or fidelity bonds,
(e) fights to use of the Common Areas, (f) responsibility for maintenance and repair, (g)
expansion or contraction of the Condominium or the addition, annexation or withdrawal of
property to or fi.om the Condominium, (h) the boundaries or composition of any Unit, (i) the
interests in the Common or Limited Common Areas, (j) the convertibility of Units into Common
Areas or of Common Areas into Units, (k) the leasing of any Unit or part thereof, (1) the
imposition of any fight of first refusal or similar restriction on the fight of a Unit owner to sell,
transfer, or otherwise convey his or her Unit, (m) the management of the Condominium, (n) the
restoration or repair of the Condominium, or (o) any provisions which are for the express benefit
of the holder, insurer or guarantor of any first mortgage on a Unit.
2. any proposed termination of the Condominium as a Condominium regime;
3. any condemnation, eminent domain proceeding, or casualty loss which may affect a
material portion of the Condominium Property or any Unit on which there is a first mortgage
held, insured or guaranteed by such Eligible holder;
4. any decision by the Association not to restore or repair any portion of the
Condominium Property (after damage or destruction or partial condemnation), or not to restore
or repair such property in a manner specified by the Condominium Organizational Documents;
5. any lapse, cancellation or material modification of any insurance policy or fidelity
bond maintained by the Association, (The Secretary of the Association shall fimfish each Unit
owner and each Eligible holder of first mortgages whose interest may be affected, prompt notice
of the obtaining, change or termination of any insurance policy.);
6. any decision by the Association to reconstruct the Condominium Buildings where all
Buildings containing Units have been destroyed;
7. any decision by the Association to construct significant new capital improvements not
replacing existing improvements;
8. times and places of Unit owners' meetings;
9. any default under the Condominium organizational documents which gives rise to a
cause of action against a Unit owner whose Unit is subject to the mortgage of such holder or
insurer, where the default has not been cured in sixty (60) days;
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10. any decision by the Association to establish self-management when professional
management had been required previously by an Eligible holder of a first mortgage lien; and
11. any proposed action which requires the consent of a specified percentage of Eligible
holders of first mortgage liens.
No notice shall be required for any addition or amendment of the Condominium
organizational documents made for the purpose of correcting technical errors or for clarification
only.
ARTICLE XVII.
AMENDMENTS
Section 1. Power to Amend. Except as hereinafter provided, amendment of this
Declaration (or the other Condominium organizational documents), after the Declarant has
turned control of the Association over to the Unit owners, shall require (a) the consent of Unit
owners exercising not less than seventy-five percent (75%) of the voting power of Unit owners,
and Co) notice to all Eligible holders of first mortgages on Units. Prior to such turn over, the
Declarant may amend the Declaration so long as it does not materially, adversely affect the Unit
owners. Notwithstanding the foregoing:
(a) the prior written consent of all Unit owners shall be required for any amendment
effecting a change in:
i) the boundaries of any Unit;
ii) the undivided interest in the Common Areas appertaining to a Unit or the
liability for Common Expenses appertaining thereto except as permitted by the
expansion provisions in this Declaration;
iii) the number of votes in the Association appertaining to any Unit; or
iv) to terminate the Condominium or remove any interest from the Property; or
v) the fundamental purposes to which any Unit or the Common Areas are
restricted;
(b) Unless at least seventy-five percent (75%) of the Eligible holders of a first mortgage
lien (based upon one vote for each mortgage owned), and sixty-seven percent (67%) of Unit
owners (other than the Declarant) have given their prior written approval (except in some cases a
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greater majority or unanimous approval may be needed as provided herein or in the Act) the
Association shall not be entitled to (a) take any action, or (b) make any change, which materially
affects the operation of the Association, or the Condominium, as follows:
(i) Voting fights;
(ii)
Increases in assessments that raise the previously assessed amount by
115%, or more, changes the fights regarding assessment liens, or changes
the priority of assessment liens;
(iii)
Reductions in reserves for maintenance, repair and replacement of
Common Areas;
(iv)
Responsibility for maintenance and repairs;
(v)
Reallocation of interest in the general or Limited Common Areas, or rights
to their use, except as permitted by the expansion provisions in this
Declaration;
(vi)
Boundaries of any Units;
(vii) Convertibility of Units into Common Areas or visa versa;
(viii)
Expansion or contraction of the Property, or the addition, annexation or
withdrawal of property to or from the Property, except as permitted by the
expansion provisions in this Declaration;
(ix)
Hazard or fidelity insurance requirements;
(x)
Imposition of any restrictions on a Unit owner's right to sell or transfer his
or her Unit, or fight to lease a Unit;
(xi)
A decision by the Association to establish self-management when
professional management had existed previously;
(xii)
Restoration or repair of the Property (after a hazard damage or partial
condemnation) in a manner other than that specified in the documents;
(xiii)
Any action to terminate the legal stares of the Property after substantial
destruction or condemnation occurs;
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(xiv)
Provisions that specifically and explicitly expressly benefit Eligible
holders of a first mortgage lien, mortgage holders, insurers or guarantors;
(xv)
The prorata interest or obligations of any individual Unit for the purpose
of: a) levying assessments or charges or allocating distributions or hazard
insurance proceeds or condemnation awards or b) determining the prorata
share of the ownership of each Unit in the Common Areas, except as
provided in the expansion provisions;
(xvi) Dimensions of any Unit by partition or subdivision;
(xvii)
By act or omission, seek to abandon, partition, subdivide, encumber, sell
or transfer the Common Areas;
(xviii) Use hazard insurance proceeds for losses to any Condominium Property
(whether to Units or to Common Areas) for other than repair, replacement
or reconstruction of such Condominium Property, except as provided by
statute in case of substantial loss to the Units and/or Common Areas;
(xix)
Any action to terminate the legal status of the Project after substantial
destruction or condemnation, or for any other reason.
In the event that an Eligible first mortgage holder fails to submit a response to any written
proposal for amendment within thirty (30) days after it receives proper notice of the proposal,
which was delivered by certified or registered mail, return receipt requested, then it shall be
assumed that it consents to such action.
Notwithstanding the above, the granting of easements for public utilities or for other
pubic purposes consistent with the intended use of the Common Areas by the Condominium
Property shall not be deemed a transfer within the meaning of this clause.
(c) Eligible holders of the first mortgage lien shall have the right to examine the books
and records of the Association or the Condominium project.
(d) The consent of Eligible holders of first mortgages on Units to additions or
amendments to the Condominium organizational documents shall not be required except in those
instances, previously described, in which the Eligible holders of first mortgages on Units are
entitled to written notice of such proposed addition or amendment;
(e) Any Eligible holders of first mortgages who obtain title to a Unit pursuant to the
remedies provided in the mortgage or foreclosure of the mortgage will not be liable for such
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Unit's unpaid dues or charges which accrue prior to the acquisition of title to such Unit by the
Mortgagee.
(f) In any event, Declarant reserves the fight and power, and each Unit owner by
acceptance of a deed to a Unit is deemed, to and does give and grant to Declarant a power of
attorney, which right and power is coupled with an interest and runs with the title to a Unit and is
irrevocable (except by Declarant), without the consent, approval or signature of each Unit owner,
to (i) amend the Condominium organizational documents, to the extent necessary to confirm to
the requirements then governing the purchases or insurance of mortgages by The Mortgage
Corporation, Federal National Mortgages Association, Governmental National Mortgages
Association, Federal Home Loan Mortgage Corporation, Mortgage Guaranty Insurance
Corporation, Department of Housing and Urban Development, the Federal Housing
Administration, the Veterans Administration, or any other similar agency or organization,
provided that the appropriate percentage (as described elsewhere herein) of Eligible holders of
first mortgage liens is obtained, (ii) induce any such agencies or entities to make, purchase, sell,
insurance or guarantee first mortgages covering Unit ownership, (iii) to correct typographical
errors, surveyor errors in descriptions or otherwise or obvious factual errors the correction of
which would not impair the interest of any Unit owner or mortgagee, (iv) bring this Declaration
into compliance with the Act or (v) to amend Exhibits to this Declaration for each expansion; and
further provided that if there is a Unit owner other than the Declarant, the Declaration shall not
be amended to increase the scope or the period of control of the Declarant. Each deed, mortgage,
other evidence of obligation, or other instnunent affecting a Unit and the acceptance thereof shall
be deemed to be a grant and acknowledgment of, and consent to the reservation of, the power of
Declarant to vote in favor of, make, execute and record any of the foregoing amendments. The
rights of Declarant under his Section shall terminate at such time as Declarant no longer holds or
controls title to a Unit.
An Eligible holder of a first mortgage on a Unit who receives a written request to approve
additions or amendments who does not deliver or post to the requesting party a negative
response with in thirty (30) days after it receives such written notice, (provided that notice was
delivered by certified or registered mail, remm receipt requested), shall be deemed to have
approved such request. The fights of Declarant shall terminate at such time as Declarant no
longer holds or controls title to a Unit and the fight to expand the Condominium has expired.
Section 2. Method to Amend. An amendment to this Declaration (or the Plans or the
By-Laws), adopted with the consents hereinbefore provided, shall be executed with the same
formalities as this Declaration by the Declarant Any amendment adopted by the Declarant or a
duly empowered successor Declarant pursuant to authority granted it pursuant to the Declaration
shall be duly executed by it with the same formalities as to execution as this Declaration and
shall contain the certification of such signor or signors that such amendment is made pursuant to
authority vested in the Declarant or any duly empowered successor Declarant by the Declaration.
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Any amendment duly adopted and executed in accordance with the foregoing provisions shall be
effective upon the filling of the same with the Recorder of Hamilton County, Indiana.
ARTICLE XVIII.
EXPANSIONS/WITHDRAWAL
Section 1. Expansion. The Declarant reserves the right, in its discretion, to expand the
construction of condominiums into the area described as "Future Expansion Area" in the Plans.
Section 2. Withdrawal. The Declarant reserves the right to withdraw the "Future
Expansion Area" from the Condominium. ..
ARTICLE XIX.
GENERAL PROVISIONS
Section 1. Covenants Running With the Land. The covenants, conditions,
restrictions, easements, reservations, liens and charges created hereunder or hereby shall mn with
and the bind the land, and each part thereof, and shall be binding upon and inure to the benefit of
all parties having any fight, title or interest in or to all or any part of the Condominium Property,
and the Association, and their respective heirs, executors, administrators, successors and assigns.
Section 2. Enforcement. In addition to any other remedies provided in this Declaration,
Declarant, (only with respect to those rights directly benefitting the Declarant), the Association,
and each Unit owner, shall have the fight to enforce, by any proceeding at law or in equity, all
restrictions, conditions, covenants, easements, reservations, liens and charges set forth herein or
in the By-Laws or now or hereafter imposed by or through the Association's roles and
regulations. Failure by Declarant, the Association or by any Unit owner to proceed with such
enforcement shall in no event be deemed a waiver of the fight to enforce at a later date the
original violation or a subsequent violation, nor shall the doctrine of laches nor any statute of
limitations bar the enforcement of any such restriction, condition, covenant, reservation,
easement, lien or change. Further, the Association and each Unit owner shall have rights of
action against each other for failure to comply with the provisions of the Condominium
organizational documents, rules and regulations, and applicable law, and with respect to
decisions made pursuant to authority granted thereunder, and the Association shall have the right
to assess reasonable charges against a Unit owner who fails to comply with the same, including
the right to assess charges for the costs of enforcement and arbitration.
FAAPPS\CDOCXKOSENE~<~osene Investmentskleclaration for condos RV7 101104.wpd
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Section 3. Severability. Invalidation of any one or more of these covenants, conditions,
restrictions or easements by judgment or court order shall in no way affect any other provisions,
which provisions shall remain in full force and effect. In the event any language of this
Declaration conflicts with mandatory provisions of the Condominium Act, the lattcr's
requirements shall prevail and the conflicting language shall be deemed to be invalid and void,
provided that such invalidity shall in no wise affect any other provisions of this Declaration,
which provisions shall remain in full force and effect.
Section 4. Gender and Grammar. The singular wherever used herein shall be
construed to mean the plural when applicable, and the necessary grammatical changes required to
make the provisions hereof apply either to corporations, partnerships, men or women, shall in all
cases be assumed as though in such case fully expressed.
Section 5 Captions. The captions of the various provisions of this Declaration are not
part of the context hereof, but are merely labels to assist in locating the various provisions hereof.
Section 6. Perpetuities and Restraints on Alienation. If any of the options, privileges,
covenants or rights created by this Declaration shall be unlawful, void or voidable for violation
of the rule against perpetuities, then such provision shall continue only until twenty-one (21)
years after the death of the survivor of the now living lawful descendants of the incumbent
President of the United Sates and the Governor of Indiana.
Section 7. Notices. Notices provided for in the Act, Declaration or By-Laws shall be in
writing and shall be addressed to the Association or Board, as the case may be, at 4495 Saguaro
Trail, Indianapolis, Indiana 46268, or to the Unit owner at the address of his Unit, or at such
other address as hereinafter provided. The Association or Board may designate a different
address or addressees for notices to them, respectively, by giving written notice of such change
of address to all Unit owners. Any Unit owner may designate a different address for notices to
him by giving written notice to the Association. Notices addressed as above shall be deemed
delivered when mailed by United States registered or certified mail, or when delivered in person
with written acknowledgment of the receipt thereof.
Section 8. Litigation. No judicial or administrative proceeding shall be commenced or
prosecuted by the Association unless approved by a vote of seventy-five percent (75%) of the
voting power of Unit owners. However, this Section shall not apply to (a) actions brought by the
Association to enforce the provisions of this Declaration (including, without limitation, the
foreclosure of liens), (b) actions brought for collection of assessments or proceedings involving
challenges to ad valorem taxes, or (c) counterclaims brought by the Association in proceedings
initiated against it. This section shall not be amended unless such amendment is made by the
Declarant or is approved by the percentage vote, and pursuant to the same procedures, necessary
to institute proceedings as provided above.
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Section 9. Exculpation. Notwithstanding anything contained in this Declaration, if at
any time Declarant shall fail to perform or pay any covenant or obligation to be performed or
paid under this Declaration or any other agreement, and as a consequence thereof a Unit owner or
third party claiming by, through or under a Unit owner, shall recover a money judgment against
Declarant, such judgment shall be enforced against and satisfied out of only the proceeds of sale
produced upon execution of such judgment and levy thereon against Declarant's interest in the
Condominium Property, the rents, issues or other income receivable from the Condominium
Property after such judgment is obtained, or the consideration received by Declarant from the
sale of other disposition of'the Condominium Property after such judgment is obtained. The
provisions of this Section 9 are not intended to relieve Declarant from the performance of any of'
its obligations hereunder, but rather to limit Declarant's liability as aforesaid.
Section 10. Non-Liability of the Board, Officers and Declarant. Neither the Board,
Officers of thc Association nor Declarant shall be personally liable to thc Unit owners for any
mistake of judgment or for any other acts or omissions of any nature whatsoever of such Board,
Officers or Declarant, except for any acts or omissions found by a court to constitute gross
negligence, fraud or criminal intent. The Unit owners shall indemnify and hold harmless each
member of thc Board, Officers and Declarant, and their respective members, heirs, executors,
administrators, successors and assigns in accordance with the provisions of the By-Laws.
Section 11. Fire Extinguishers.
fire extinguisher.
All Unit owners shall maintain in the unit at least one
Section 12. Advertisine Sii~n. The Declarant shall have the right to maintain an
advertising sign or signs in the common areas or limited common areas in such places as the
Declarant deems desirable until such time that all the units in the condominium have been sold,
including any units in any expansion area.
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IN WITNESS WHEREOF, the undersigned have executed this instrument thisc~L~, day
of October, 2004.
Kosene Investments, LLC, an
Indiana limited liability company
David H. Kosen~, authorized member
STATE OF INDIANA
COUNTY OF Hamilton
)
) SS:
)
My Commission Expires:
Before me, a notary public, personally appeared David H. Kosene, a member of Kosene
Investments, LLC, an Indiana limited liability company, the Declarant in the foregoing
instrument, who acknowledged the execution of this instrument to be the signatory's free act and
deed, on behalf of the Declarant, for the uses and purposes set forth herein.
In Witness whereof, I have hereunto set my names this ~"~day of October, 2004.
~^. x~_~. (___ (O_x~.t,/x~ , Notary Public
Coun/B~Residence:
This instrument prepared by: Richard J. Dick, Mitchell Hurst Jacobs & Dick, LLP, 152 East
Washington Street, P.O. Box 44911, Indianapolis, Indiana 46244-0911.
F:L~PPS\CDOCXKOSENE~;~osene InvestmentsXdeclaration for condos RV7 101104.wpd
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CONSENT AND SUBORDINATION
WHEREAS, the undersigned, Geneva Leasing Associates, Inc, an Illinois corporation, is
the holder and owner of that certain Promissory Note in the principal amount of $6,581,250.00,
which Note is secured by that certain Mortgage, Assignment of Rents, Security Agreement and
Financing Statement recorded in the office of the Recorder of Hamilton County, Indiana on
October 22, 2003 as Instrument #2003-00110034.
NOW, THEREFORE, for One Dollar ($1.00) and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the undersigned does hereby
subject the lien of said Security Documents, shown on said Security Documents to exist upon the
land described in the foregoing The Commons at City Centre Condominium Declaration
("Declaration") and to all of the terms, conditions and easements thereunder. It is understood
and agreed that the lien of the Security Documents shall be subordinate and inferior to the
Declaration and to the easements and rights created thereunder as to the property described in
said Security Documents and that in any foreclosure or other proceedings to enforce the lien of
the Security Documents, the Declaration, the Declaration and the terms, conditions and
easements shall survive and shall remain unaffected thereby.
IN WITNESS WHEREOF, the undersigned has executed this Consent and Subordination
as of the 29th day of October, 2004.
GENEVA LEASING ASSOCIATES, INC.
By:
Its: ExeCutive Vice President
declaration for condos RV7 101104.doc
4O
STATE OF ILLINOIS
COUNTY OF DUPAGE
)
) SS:
)
Before me, a Notary Public in and for said County and State, personally appeared John F.
Slade the Executive Vice President of GENEVA LEASING ASSOCIATES, INC., who
acknowledged the execution of the above and foregoing Consent and Subordination for and on
behalf of said Bank for the uses and purposes contained therein.
Wimess my hand and Notarial Seal this 29th day of
My Commission Expires: 7-15-06
My County of Residence: Kane
~,004'
Tany~. Bumidge, ~eublic .vv~vw~
"J ~ OFFICIAL SEAL
~ TANYA M BORNIDGE
~ NOTARY PUBLIC. ~ATE OF I~
This instrument prepared by Richard J. Dick, Mitchell Hurst Jacobs & Dick, LLP, 152 East
Washington Street, P.O. Box 44911, Indianapolis, Indiana 46244-0911.
declaration for condos RV7 101104.doc
41
LAND DESCRIPTION
Part of the Northeast quarter of Section 36, Township 18 North, Range 3 East, in Hamilton County,
Indiana, more particularly described as follows:
Commencing at the Northeast comer of the Northeast Quarter of said Section 36; THENCE South 89
degrees 12 minutes 13 seconds West (an assumed bearing) 1177.71 feet along the North line of said quarter
to the eenterline of 3ra Avenue as shown on the Carmel City Center Drive Road Plans Project No. 97-10A,
the following two (2) courses are along the centerline of 3~d Avenue; 1) THENCE South 00 degrees:'12
minutes 13 seconds West 26.53 feet; 2) THENCE South 00 degrees 46 minutes 33 seconds East 784.74
feet; THENCE South 89 degrees 48 minutes 03 seconds West 60.05 feet to the western right-of-way line
of Third Avenue and the POINT OF BEGINNING of this description, the following two (2) courses are
along the western right-of-way line of Third Avenue; 1) THENCE South 00 degrees 46 minutes 33 seconds
East 59.70 feet; 2) THENCE South 00 degrees 21 minutes 43 seconds Ea~ 317.60 feet to the southern
boundary line of the tract of land described in the Affidavit subscribed and sworn to by Helen Moffitt
Mueller as recorded in Miscellaneous Record 48, pages 462 and 463, in the Office of the Recorder of
Hamilton County; THENCE South 89 degrees 12 minutes 13 seconds West 581.01 feet along the southern
boundary line of Mueller Tract; THENCE North 00 degrees 11 minutes 57 seconds West 383.36 feet;
THENCE North 89 degrees 48 minutes 03 seconds East 579.48 feet to the Point of Beginning. Containing
5.068 acres, more or less.
Ii
,IL ,,,&g, TT,O0 #
~ w,¥ WEST
!i
m
" 'il' "-[ ~ ....
City Centre Unit Percentage Breakdowns
Unit Building Unit Description
Numbers Number
American Way South
453 Big 5 C2
461 Big 5 B2
469 Big 5 D 1
477 Big 6 B3
485 Blg 6 Al
493 Big 6 B3
448 Big 9 C2
456 Big 9 B2
464 Big 9 B4
472 Big 8 B3
American Way West
887 Big 8 A1
883 Big 8 D2
879 Big 7 C2
875 Blg 7 B2
871 Big 7 B4
PHASE I TOWNHOME TOTALS
451 American Way North
3I Big 11 BR
3H Big 11 AR
3F Big 11 CR
3D Blg 11 C
3B Big 11 A
3A Big 11 B
2I Big 11 BR
2H Big 11 AR
2G Blg 11 F
2F Big 11 CR
2E Big ll E
2D Big 11 C
2C Big 11 D
2B Blg 11 A
2A Big 11 B
II Blg 11 BR
lS Big 11 AR
1G Blg 11 F
IF Blg 11 CR
IE Big 11 E
ID Blg 11 C
lC Big 11 D
lB Blg 11 A
lA Big 11 B
PHASE I coNDo TOTALS
PHASE I TOTALS
Squ~re
Footage
1,595
1,760
3,006
1,751
2,763
1,751
1,595
1,760
1,768
1,751
2,763
2,989
1,595
1,760
1,768
30,375
1,480
1,212
1,764
1,764
1,212
1,480
1,4S0
1,212
1,201
1,764
1,297
1,764
1,212
1,480
1,469
1,201
1,190
1,617
1,288
1,617
1,197
1,2Ol
1,469
33,780
64,155
Phase !
Shared
Percentages
2.49%
2.74%
4.69%
2.73%
431%
2.73%
2.49%
2.74%
2.76%
2.73%
431%
4.66%
2.49%
2.74%
2.76%
2.31%
1.89%
2.75%
2.75%
1.89%
231%
2.31%
1.89%
' 1.87%
2.75%
2.02%
2.75%
1.88%
1.89%
2.31%
2.29%
1.87%
1.85%
2.$2%
2.01%
2.52%
1.87%
1.87%
2.29%
EXHIBIT C
BY-LAWS
OF
THE COMMONS AT CITY CENTRE CONDOMINIUM ASSOCIATION, INC.
ARTICLE I
Members
(UNIT OWNERS)
SECTION 1. Eligibility. There shall be one class of Members of The Commons at City
Centre Condominium Association. The Members shall consist of thc respective Unit owners of
the Property known as The Commons at City Centre Condominium located within the City of
Carmel, Indiana (called "Property"), in accordance with the respective percentages of ownership
interest in the Common Areas of the Property owned by the respective Unit owners (these and
other terms are used in these By-Laws as they are defined in The Commons at City Centre
Condominium Declaration for The Commons at City Centre Condominium Association, which
Declaration is recorded in the office of the Recorder of Hamilton County, Indiana. The words
"member" or "members" as used in these By-Laws means and shall refer to "Unit owner" or
"Unit owners", as the case may be, as defined in the Declaration). If a Unit owner is a trust, then
the member shall be a beneficiary of such trust, and if a Unit owner or such a beneficiary is a
corporation or partnership, the member may be an officer, partner, or employee of such Unit
owner or beneficiary.
SECTION 2. Succession. The membership of each Unit owner shall terminate when he
ceases to be a Unit owner, and upon the sale, transfer or other disposition of his ownership
interest in the Property, his membership in the Association shall automatically be transferred to
the new Unit owner succeeding to such ownership interests.
SECTION 3. Regular Meetings. The first regular annual meeting of Unit owners (the
"First Meeting") may be held within the limits of the City of Carmel, subject to the terms hereof,
on any date, at the option of the Board, provided, however, that said First Meeting shall be held
not later than either (a) sixty (60) days after Kosene Investments, LLC ("Declarant) has sold and
delivered its deed for 75% of the Units. Subsequent to the First Meeting, there shall be a regular
annual meeting of the Unit owners held each year within limits of the City of Carmel, within
fifteen (15) days of the anniversary of the First Meeting, one of the purposes of which shall be to
elect members of the Board. All such meetings of Unit owners shall be held at such place in
Hamilton County, Indiana, and at such time, and for purposes as specified in the written notice of
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such meeting which shall be mailed to all Unit owners at least ten (10) days and not more than
sixty (60) days prior to the date of such meeting, except that notice of the First Meeting shall be
given at least twenty-one (21) days prior to the date of such Meeting. Regarding the First
Meeting, the Declarant shall provide to any Unit owner the names, addresses, telephone numbers
(if available), and weighted vote of each Unit owner entitled to vote at the Meeting within three
(3) working days of the request. Unit owners shall receive this same information with three (3)
working days of request for each subsequent meeting to elect members of the Board. The
method of calling meetings shall be by the aforesaid written notice sent by the Board, copies of
which notice may also be either delivered personally to the Unit owners or to the entry door of
their Unit or posted conspicuously in the hallways, lobbies, or on bulletin boards or other parts of
the Common Areas, at the discretion of the Board.
SECTION 4. Special Meetings. Special meetings of the Unit owners may be called by
the President or by a majority of the directors of the Board, or by twenty percent (20%) of the
Unit owners. Said special meetings shall be called by delivering written notice to all Unit
owners not less than ten (10) days nor more than sixty (60) days prior to the date of said meeting,
stating the date, time and place of said special meeting within the limits of the City of Carmel
and the matters to be considered. Matters to be submitted by the Unit owners shall first be
submitted to the Board, at least five (5) days prior to the special meeting, who shall then submit
such matters to the special meeting.
SECTION 5. Voting Member. There shall be one person with respect to each Unit who
shall be entitled to vote at any meeting of the Unit owners. Such Voting Members shall be the
Unit owner or one of the group composed of all the Unit owners of a Unit or may be some person
designated by such Unit owners to act as proxy of his or their behalf and who need not be a Unit
owner. The proxies shall give the Unit owner the fight to express a preference from among the
known candidates or to write in a name. Such designations shall be dated, shall be made in
writing to the Board prior to the meeting, shall be executed by the Unit owner or his duly
authorized attorney in fact or by any of multiple owners of a Unit as set forth below, and shall be
revocable at any time by actual notice to the Board of the death or judicially declared
incompetence of any designator, or by written notice to the Board by the Unit owner or Unit
owners, and such designations shall be invalid atler 11 months fi.om their date unless provided
otherwise therein. Any or all Unit owners of a Unit, and their designee, if any, may be present at
any meeting of the Voting Members, but only the Voting members of the Unit may vote or take
any other action as a Voting Member either in person or by proxy. The Declarant shall designate
the voting member with respect to any Unit owned by the Declarant. In the absence of any
written designation with respect to a particular Unit, the Board shall be entitled to conclusively
relay on a vote cast by anyone of the group composed of all Unit owners of that particular Unit.
SECTION 6. Voting. The aggregate number of votes for all Unit owners shall be one
hundred (100), and shall be divided among the respective Unit owners in accordance with their
respective percentage of ownership interest in the Common Areas. If any Unit owner consist of
F:XAPPS\CDOC~KOSENE~Koscn¢ InvestmentsXdeclamtion for condos RV7 101104.wpd
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more than one person, and if only one of the multiple owners of a Unit is present at a meeting of
the Association, he is entitled to east all the votes allocated to that Unit, if more than one of the
multiple owners are present, the votes allocated to that Unit may be east only in accordance with
the agreement of a majority in interest of the multiple owners; there is majority agreement if any
one of the multiple owners cast the votes allocated to that Unit without protest being made
promptly to the person presiding over the meeting by any of the other owners of the Unit.
SECTION 7. Quorum. A quorum of Unit owners for any meeting shall be constituted by
Unit owners represented in person or by proxy and holding an aggregate of at least twenty
percent (20%) of the total ownership interest in the Common Areas.
SECTION 8. Miscellaneous.
(a) No merger or consolidation of the Association; sale, lease, exchange, mortgage,
pledge or other disposition of all, or substantially all of the Property and assets of the
Association; and the purchase or sale of property of Units on behalf of all Unit owners shall be
effectuated unless there is an affirmative vote of two-thirds (2/3) of the votes of Unit owners, or
such greater percentage as may be provided for in the Declaration and an affirmative vote of
three-fourths (3/4) of the eligible holder of a first mortgage lien.
(b) When thirty percent (30%) or fewer of the Unit owners, by number, possess over fifty
percent (50%) in the aggregate of the votes in the Association, any percentage of vote of
members specified in the Declaration, or the Act, shall require instead the specified percentage
of number of Units, rather than by percentage of interest in the Common Areas allocated to Units
that would otherwise be applicable.
(c) In the event of a resale of a Unit from other than the Declarant under an installment
contract, while the purchaser resides in the Unit he shall be counted toward a quorum for the
election of Board members at any meeting of the Unit owners called for the purposes of such
election, shall have the right to vote for election of Board members and shall have the right to be
elected and serve on the Board unless the Seller expressly retains in writing all or any of such
rights. In no event may both the Purchaser and Seller be counted toward a quorum, permitted to
vote, elected or permitted to serve on the Board. Satisfactory evidence of the installment
contract shall be given to the Board or its agents.
ARTICLE II
Board of Directors
SECTION 1. Number, Election and Term of Office. The Board of Directors of the
Association (referred to in the Condominium Declaration as Directors of the Association shall
consist of three (3) members (hereinafter referred to as "directors"). Directors shall be elected at
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48
large at the regular annual meeting of Association members by the vote of Unit owners, except
that, until the election of directors at the first regular annual meeting of Members, the directors
and number thereof (hereinafter called "members of the First Board") shall be appointed by the
Declarant. (The first annual meeting will not be held until the Declarant or Developer of the
Project has sold 75% of the units unless prior to that time the Declarant or Developer give notice
in writing to the members that it has waived such requirement, at which time the first annual
meeting shall be scheduled. At such annual meetings, directors, or their representatives shall
have the fight to be present at the counting of the ballots cast during such annual meetings. The
Board may, but shall not be obligated to, distribute to Unit owners, biographical and background
information about candidates for election to the Board provided that (1) no preference is
expressed in favor of any candidate, and (2) reasonable efforts are made to identify all candidates
and (3) all candidates are given an oppommity to include biographical and background
information in the information to be distributed. Those candidates for election as director
receiving the greatest number of votes cast either in person or by.proxy at the meeting shall be
elected. At the initial election held at the first regular meeting of Members, the director receiving
the greatest number of votes shall hold office for a term of three (3) years, the director receiving
the next greatest number of votes shall hold office for a term of two (2) years, and the remaining
director shall hold office for a term of one (1) year. Thereafter, every director shall hold office
for a term of two (2) years and until his or her successor shall be elected and qualified. Members
of the Board may succeed themselves.
SECTION 2. Qualifications. Except for members of the First Board, each director shall
be a resident of a Unit and shall be a Unit owner (or, if a Unit owner is a trustee of a trust, a
director may be a beneficiary of such trust, and if a Unit owner or such a beneficiary is a
corporation or parmership, a director may be an officer, parmer or employee of such Unit owner
or beneficiary). If a Director shall cease to meet such qualifications during his term, he shall
thereupon cease to be a director and his place of the Board shall be deemed vacant.
SECTION 3. Vacancies. Any vacancies occurring in the Board shall be filled by a two-
thirds (2/3) vote of the remaining members thereof, except that a vacant position of the Board
which was last filled by a member of the First Board may be filled by a person appointed by the
Declarant. Any director so elected or appointed to fill a vacancy shall hold office for a term
equal to the time until the next meeting of Unit owners or thirty (30) days following the filing of
a petition signed by Unit owners holding 20% of the Association's votes requesting a meeting of
the Unit owners to fill the vacancy for the balance of its unexpired tenn. Such a meeting shall be
called no later than sixty (60) days following the filing of such a petition signed by Unit owners
holding 20% of the Association's votes.
SECTION 4. Meetings. A regular annual meeting of the Board shall be held within ten
(10) days following the regular annual meeting of Unit owners. Special meetings of the Board
shall be held upon a call by the President or by a majority of the Board on not less than forty-
eight (48) hours notice in writing to each director, delivered personally or by mail or telegram.
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Any director may waive notice of a meeting, or consent to the holding of meeting without
notice, or consent to any action proposed to be taken by the Board without a meeting. A
director's attendance at a meeting shall constitute his waiver of notice of said meeting. The
Board shall meet at least four (4) times annually, and at such other times as the Board deems
necessary. Meetings of the Board shall be open to any Unit owner, except for the portion of any
meeting held (i) to discuss litigation when an action against or on behalf of the particular
association has been filed and is pending in a court or administrative tribunal, or when the Board
finds that such action is probable or imminent, (ii) to consider information regarding
appointment, employment or dismissal of an employee, or (iii) to discuss violations of rules and
regulations of the Association or a Unit owner's unpaid share of Common Expenses; however,
any vote on these matters shall be taken at a meeting or portion thereof open to any Unit owner.
Any Unit owner may record the proceedings at meetings required to be open by this Act by tape,
film or other means. The Board may prescribe reasonable rules and regulations to govern the
right to make such recordings. Notice of any such meeting shall be mailed or delivered at least
forty-eight (48) hours prior thereto, unless a written waiver of such notice is signed by the person
or persons entitled to such notice pursuant to the Declaration, By-Laws, or provision of law
before the meeting is convened. Copies of notices of any such meetings shall be posted
conspicuously in hallways, lobbies or bulletin boards at least 48 hours prior to such meeting,
except if there is no common lobby for seven (7) or more Units, the Board may designate
locations near said Units.
SECTION 5. Removal. Any director may be removed from office for cause by the vote
of two-thirds (2/3) of the total undivided ownership of the Common Areas.
SECTION 6. Compensation. Directors shall receive no compensation for their services
as directors, unless expressly provided for in resolutions adopted by the Unit owners.
SECTION 7. Quorum. Two (2) Directors shall constitute a quorum.
SECTION 8. General Powers and Duties of the Board. The powers and duties of the
Board shall include, but shall not be limited to, the following matters:
(a) operation, care, upkeep, maintenance, replacement and improvement of the Common
(b) preparation, adoption and distribution of the annual budget for the Property;
(c) levying of assessments;
(d) collection of assessments from Unit owners;
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(e) employment and dismissal of the personnel necessary to advisable for the
maintenance and operation of the Common Areas;
(f) obtaining adequate and appropriate kinds of insurance;
(g) owning, conveying, encumbering, leasing and otherwise dealing with Units conveyed
to or purchased by it;
(h) adoption and amendment of rules and regulations covering the details of the operation
and use of the Property;
(i) keeping of detailed accurate records of the receipts and expenditures affecting the use
and operation of the Property;
(j) having access to each Unit from time to time as may be necessary for the maintenance,
repair or replacement of any Common Areas therein or accessible therefrom, or for making
emergency repairs therein necessary to prevent damage to the Common Areas or to any other
Unit.
SECTION 9. Other Powers and Duties. The Board shall also have the following powers
and duties:
(a) to elect and remove the officers of the Association as hereinafter provided;
(b) to administer the affairs of the Association and the Property;
(c) to engage, if the Board deems desirable, the services of an agent (hereinafter
sometimes called the "Managing Agent") to maintain, repair, replace, administer and operate the
Property or any part thereof for all of the Unit owners, upon such terms and for such
compensation and with such authority as the Board may approve;
(d) to formulate policies for the administration, management and operation of the
Property and the Common Areas thereof;
(e) to provide for payments for all debts, obligations, and contracts of the Association and
to approve payment vouchers or to delegate such approval to the officers or the manager or
Managing Agent;
(f) to provide for the designation, hiring and removal of employees and other personnel,
including accountants and attorneys, and to engage or contract for the services of others, and to
make purchases for the maintenance, repair, replacement, administration, management and
operation of the Property and the Common Areas and to delegate any such powers to the
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Managing Agent (and any such employees or other personnel who may be the employees of a
Managing Agent:
(g) to appoint committees of the Board and to delegate to such committees the Board's
authority to carry out certain duties of the Board:
(h) to determine the fiscal year of the Association and to change said fiscal year from
time to time as the Board deems advisable;
(i) to acquire such furnishing, equipment, and other personal property for the Common
Areas as the Board shall determine are necessary and proper;
(j) to maintain and repair any Unit if such maintenance and repair is necessary, in the
discretion of the Board, to protect the Common Areas or any other portion of the Building, and,
if a Unit owner or any Unit has failed or refused to perform said maintenance or repair within a
reasonable time after written notice of the necessity of said maintenance or repair mailed or
delivered by the Board to said Unit owner, the Board may levy a special assessment against such
Unit owner for the cost of said maintenance or repair.
(k) the Board or its agent upon reasonable notice, may enter any Unit when necessary in
connection with any maintenance or construction for which the Board is responsible. Such entry
shall be made with as little inconvenience to the Unit owner as practicable and any damage
caused thereby shall be repaired by the Board as a common expense.
(1) the Board may, in accordance with the Act, adopt such reasonable roles and
regulations not consistent herewith, as it may deem advisable for the maintenance,
administration, management, operation, use, conservation and beautification of the Property, and
for the health, comfort, safety and general welfare of the Unit owners and Occupants of the
Property. Written notice of such roles and regulations shall be given to all Unit owners and
Occupants and the entire Property shall at all times be maintained subject to such roles and
regulations.
(m) upon authorization by a two-thirds (2/3) vote of the members of the Board or by the
affirmative votes of not less than a majority of the voting members at a meeting duly called for
such purposes, the Board, acting on behalf of all Unit owners, shall have the power to seek relief
from or in connection with the assessment or levy of any real property taxes, special assessments
and any other special taxes or charges of the State of Indiana or any political subdivision thereof,
or any other lawful taxing or assessing body, which are authorized by law to be assessed and
levied on real property and to charge and collect all expenses incurred in connection therewith as
common expenses.
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(n) Unless otherwise provided herein or in the Declaration, to comply with the
instructions of a majority (51%) of the undivided interest in the Common Areas, Unit owners as
expressed in a resolution duly adopted at any annual or special meeting of the Unit owners;
(o) to exercise all other power and duties of the board or Unit owners as group referred to
in the Act, and all powers and duties of a board or a board of directors referred to in the
Declaration of these By-Laws or as permitted by law.
SECTION 10. Non-Delegation. Nothing in this Article or elsewhere in these By-Laws
shall be considered to grant to the Board, the Association or to the officers of the Association any
powers or duties which, by law, have been delegated to the Unit owners.
SECTION 11. Action Taken Without a Meeting. The directors shall have the fight to
take any action in the absence of a meeting at which time they could take at a meeting by
obtaining the written approval of all of the directors. Any action so taken shall have the same
effect as though taken at a meeting of the directors.
ARTICLE III
Officers
SECTION 1. Designation. At each regular annual meeting, the directors present at said
meeting shall elect the following officers of the Association by a majority vote:
(a) a President, who shall be a director and who shall preside over the meetings of the
Board and the Unit owners, and who shall be the chief executive of the Association;
(b) a Secretary, who shall keep the minutes of all meetings of the Board and the Unit,
owners, and who shall, in general, perform all the duties incident to the office of
Secretary, and who may be a representative of the Managing Agent;
(c) a Treasurer, who shall be responsible for financial records and books of account and
the manner in which such records and books are kept and reported;
(d) such additional officers as the Board sees fit to elect.
SECTION 2. Powers. The respective officers shall have the general powers usually
vested in such officers, provided that the Board may delegate any specific powers to any other
officer or impose such limitations or restrictions upon the powers of any officer as the Board may
see fit. Either the President or the Secretary may mail and receive notices and execute
amendments to the Declaration as provided for in the Act and in the Declaration.
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SECTION 3. Term of Office. Each officer shall hold office for the term of one (1) year
and until his successor shall have been appointed or elected and qualified.
SECTION 4. Vacancies. Vacancies in any office shall be filled by the Board by a two-
thirds (2/3) vote of the remaining members thereof, at a special meeting of said Board. Any
officer so elected to fill a vacancy shall hold office for a term equal to the time until the next
meeting of Unit owners or thirty (30) days following the filing of a petition signed by Unit
owners holding 20% of the Association's votes requesting a meeting of the Unit owners to fill the
vacancy for the balance of its unexpired term. Such a meeting shall be called no later than sixty
(60) days following the filing of such petition signed by Unit owners holding 20% of the
Association's votes. Any officer may be removed for cause at any time by vote of two thirds
(2/3) of the total membership of the Board at a special meeting thereof.
SECTION 5. Compensation. The officers shall receive no compensation for their
services as officers, unless expressly provided for in a resolution duly adopted by the Unit
owners.
ARTICLE IV
Assessments
SECTION 1. Annual Budget. The Board shall cause to be prepared an estimated annual
budget for each fiscal year of the Association. Such budget shall take into account the estimated
Common Expenses and cash requirements for the year, including but not limited to salaries,
wages, payroll taxes, legal and accounting fees, working capital fund, supplies, materials, parts,
services, maintenance, repairs, replacements, landscaping, insurance, fuel, power, real estate
taxes, and all other Common Expenses. To the extent that the assessments and other cash
income collected fi.om the Unit owners during the preceding year shall be more or less than the
expenditures for such preceding year, the surplus or deficit, as the case may be, shall also be
taken into account. The annual budget shall also take into account the estimated net available
cash income for the year fi.om the lease, operation or use of the Common Areas. The annual
budget shall provide for a reserve for contingencies for the year and a reserve for capital
expenditures, in reasonable amounts as determined by the Board. The reserve for capital
expenditures shall be held in a segregated account in the name of the Association.
SECTION 2. Assessments. The estimated annual budget for each fiscal year shall be
approved by the Board, and copies of the proposed annual budget, together with an indication of
which portions are intended for capital expenditures or repairs or payment of real estate taxes,
shall be furnished by the Board to each Unit owner, not later than thirty (30) days prior to the
adoption thereof. If an adopted budget requires assessment against the Unit owners in any fiscal
or calendar year exceeding 115% of the assessments for the preceding year, the Board, upon
written petition by Unit owners with 20 percent (20%) of the votes of the Association filed with
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fourteen (14) days of the Board action, shall call a meeting of the Unit owners within thirty (30)
days of the date of filing of the petition to consider the budget. Unless a majority of the votes of
the Unit owners are cast at a meeting to reject the budget, it is ratified, whether or not a quorum
is present. In determining whether assessments exceed 115% of similar assessments in prior
years, any authorized provisions for reasonable reserves for repair or replacement of the
Condominium Property, and anticipated expenses by the Association which are not anticipated to
be incurred on a regular basis, shall be excluded from the computation. On or before the first day
of the first month and of each succeeding month of the year covered by the annual budget, each
Unit owner shall pay, as his respective monthly assessment for the Common Expenses, on
twelfth (1/12) of his proportionate share of the Common Expenses for such year as shown by the
annual budget. Unless otherwise provided in the Declaration, such proportionate share for each
Unit owner shall be in accordance with his respective ownership interest in the Common Areas
as set forth in Exhibit "B" of the Declaration. In the event that the Board shall not approve an
estimated annual budget or shall fail to determine new monthly assessments for any year, or shall
be delayed in doing so, each Unit owner shall continue to pay each month the amount of his
respective monthly assessment as last determined. Each Unit owner shall pay his monthly
assessment on or before the first day of each month to the Managing Agent or as may be
otherwise directed by the Board. No Unit owner shall be relieved of his obligation to pay his
assessment by abandoning or not using his Unit, the Common Areas, or the Limited Common
Areas. Each Unit owner shall receive notice, in the same manner as is provided herein for
membership meetings, of any meeting of the Board concerning the adoption of the proposed
annul budget or any increase or establishment of an assessment.
SECTION 3. Partial Year or Month. For the first fiscal year, the annual budget shall be
as approved by the First Board. If such first fiscal year, or any succeeding fiscal year, shall be
less than a full year, then the monthly assessments for each Unit owner shall be proportionate to
the number of months and days in such period covered by such budget. Commencing with the
date of occupancy of his Unit, each Unit owner shall pay his assessment for the following month
or fraction of a month, which assessment shall be in proportion to his respective ownership
interest in the Common Areas and the number of months and days remaining of the period
covered by the Current annual budget, and which assessment shall be as computed by the Board.
SECTION 4. Annual Report. Within ninety (90) days after the end of each fiscal year
covered by an annual budget, or as soon thereafter as shall be practicable, the Board shall cause
to be fixmished to each Unit owner an audited statement for such year so ended, showing an
itemized accounting of the Common Expenses for the preceding year actually incurred and paid
including capital expenditures or repairs and real estate taxes, together with an indication of
which portions were for capital expenditures or payment of real estate taxes and with a tabulation
of the amounts collected pursuant to the budget or assessments, and showing the net excess or
deficit of income over expenditures plus reserves, and such other information as the Board may
deem desirable. The audited statement shall be prepared by a CPA firm selected by the Board.
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SECTION 5. Supplement Budget, In the event that during the course of a year, it shall
appear to the Board that the monthly assessments, determined in accordance with the estimated
annual budget for such year, are insufficient or inadequate to cover the estimated Common
Expenses for the remainder of such year, then the Board shall prepare and approve a
supplemental budget coveting the estimated deficiency for the remainder of such year, copies of
which supplemental budget shall be fimfished to each Unit owner, and thereupon a supplemental
assessment shall be made to each Unit owner for his proportionate share of such supplemental
budget.
SECTION 6. Expenditures. Except with respect to such expenditures with (i) are
specifically authorized by the Declaration or By-Laws, or (ii) are required by law, or (iii) can be
paid from the proceeds of insurance received by or for the account of the Board, or (iv) are
immediately necessary for the emergency repair, preservation, safety or protection of the Unit
owners or the Common Areas, the Board shall have no authority to approve or authorize any
structural alterations, capital additions to, or capital improvements of the Common Areas
requiting an expenditure in excess of the Ten Thousand Dollars ($10,000.00) or any contract for
a term of more than four (4) years, unless such expenditure or contract shall have been approved
by two-thirds (2/3) of the total votes cast at a meeting called for that purpose.
Any non-recurring Common Expense not set forth in the budget as adopted, and any
increase in assessment over the amount adopted shall be separately assessed against all Unit
owners. Any such separate assessment shall be subject to the approval by the affirmative votes
of at least two-thirds (2/3) of the Unit owners voting at a meeting of Unit owners duly called for
the purpose of approving the assessment if it involves proposed expenditures resulting in a total
payment assessed to a Unit equal to the greater of five (5) times a Unit's most recent Common
Expense assessment calculated on a monthly basis or $300.00.
SECTION 7. Lien. It shall be the duty of every Unit owner to pay his proportionate
share of the Common Expenses, as provided in the Declaration, and as assessed in the manner
herein provided.
If any Unit owner shall fail or refuse to make any such payment of the Common
Expenses, when due, the amount thereof together with interest thereof at the rate of 10% per
annum or such greater percentage as may then be permitted under the laws of the State of Indiana
after said Common Expenses become due and payable, late charges, reasonable attorneys' fees
and cost of collection or amount of any unpaid fine shall constitute a lien, as provided in the Act,
enforceable by the Board, on the interest of such Unit owner in the Property, provided, however,
that such lien shall be subordinate to the lien of a prior recorded first mortgage held by an
insurance company, bank, savings, and loan, mortgage broker and FNMA or other lending
institution on the interest of such Unit owner, except for the amount of the proportionate share of
Common Expenses which are due and payable from and after the date on which such mortgage
owner or holder either takes possession of the Unit, accepts a conveyance of any interest therein
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(other that as security), or accepts a deed in lieu of foreclosure for its mortgage and causes a
receiver to be appointed, in suit to foreclosure its mortgage, all as provided in the Declaration.
The provisions of this paragraph of this Section 7 shall not be amended, changed, modified or
rescinded in any way without the prior written consent of all such lien holders of record. The
Association or its successors and assigns, or the Board or its agents, shall have the right to
maintain a suit to foreclose any such lien, and there shall be added to the amount due the costs of
said suit and other fees and expenses, together with legal interest and reasonable attorneys' fees
to be fixed by the Court. Furthermore, if any Unit owner shall fail or refuse to pay when due his
proportionate share of the Common Expenses and such Unit owner withholds possession of his
Unit after demand by the Board or the Association in writing setting forth the amount claimed,
the Board or the Association shall have the fight to possession of such Unit. The Board and the
Association shall have the authority to exercise and enforce any and all fights and remedies as
provided for in the Act, the Declaration or these By-Laws, or as are otherwise available at law or
in equity, for the collection of all unpaid assessments.
SECTION 8. Records and Statement of Accounts. The Board shall cause to be kept
detailed and accurate records in chronological order of the receipts and expenditures affecting the
Common Areas, and Limited Common Areas, specifying and itemizing the Common Expenses
and limited Common Expenses incurred. Payment vouchers may be approved in such manner as
the Board may determine.
The Board shall, upon receipt of ten (10) day written notice to it or the Association and
upon payments of a reasonable fee, furnish to any Unit owner a statement of his account setting
forth the amount of any unpaid assessments of other charges due and owing from such owner.
SECTION 9. Discharge of Liens. The Board may cause the Association to discharge any
mechanic's lien or other encumbrance which in the opinion of the Board may constitute a lien
against the property of the Common Areas, rather than a lien against only a particular Unit.
When less than all the Unit owners are responsible for the existence of any such lien, the Unit
owners responsible shall be jointly and severally liable for the amount necessary to discharge the
same and for all costs and expenses, including attorneys' fees, incurred by reason of such lien.
SECTION 10. Holding of Funds. All fimds collected hereunder shall be held and
expended for the purpose designated herein, and (except for such special assessments as may be
levied hereunder against less than all the Unit owners and for such adjustments as may be
required to reflect delinquent or prepaid assessments) shall be deemed to be held for the benefit,
use and account of all the Unit owners in the percentage set forth in Exhibit "B" to the
Condominium Declaration.
SECTION 11. Forbearance. The Association shall have no authority to forebear the
payment of assessments by any Unit owner.
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ARTICLE V
Contractual Powers
No contract or other transaction between the Association and one or more of its Directors
or between the Association and any corporation, firm or association in which one or more of the
Directors of the Association are directors, or are financially interested, is void or voidable
because such director or directors are present at the meeting of the Board or a committee thereof
which authorizes or approves the contract or transaction or because his or their votes are counted,
if the circumstances specified in either of the following subparagraphs exists:
(a) the fact of the common directorship or financial interest is disclosed or known to the
Board or committee and noted in the minutes and the Board or committee authorizes, approves or
ratifies the contract or transaction in good faith by a vote sufficient for the purpose without
counting the vote or votes of such director or directors; or
(b) the contract or transaction is just and reasonable as to the Association at the time it is
authorized or approved.
Common or interested directors may be counted in determining the presence of a quorum at a
meeting of the Board or a committee thereof which authorizes, approves or ratifies a contract or
transaction.
ARTICLE VI
Amendments
These By-Laws may be amended or modified from time to time by action or approval of
seventy-five percent (75%) of the total ownership and first mortgage holders of the Common
Areas, and such amendment shall be effective upon the recording, in the Office of the Recorder
of Hamilton County, Indiana, of a certificate of the Secretary of the Association setting forth the
amendment and certifying the requisite percentage vote of the total ownership; provided,
however, that no change, modification or amendment which affects the fights, privileges, or
obligations of the Declarant, shall be effective without the prior written consent of the Declarant.
ARTICLE VII
Indemnification
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SECTION 1. General. The Association shall indemnify and hold harmless each of its
directors and officers, each member of any committee appointed pursuant to the By-Laws of the
Association, and the Board and Declarant, and each of its members, against all contractual and
other liabilities to others arising out of contracts made by or other act of such directors, Board,
officers, committee members, Declarant or its members, on behalf of the Unit owners, or arising
out of their status as directors, Board, officers, committee members, Declarant or its members
unless any such contract or act is contrary to the provisions of the Declaration or these By-Laws
or shall have been made fraudulently or with gross negligence or criminal intent. It is intended
that the foregoing indemnification shall include indemnification against all cost and expenses
(including, but not limited to, counsel fees, amounts of judgment paid and amounts paid in
settlement) reasonably incurred in connection with the defense of any claim, action, suit, or
proceeding, whether civil, criminal, administrative or other, in which any such director, officer,
Board, Committee member, Declarant or its members may be involved by virtue of such persons
being or having been such directors, officer, Board, committee member, Declarant or its
members; provided, however, that such indemnity shall not be operative with respect to (a) any
matter as to which such person shall have been finally adjudged in such action, suit or
proceeding to be liable for gross negligence or fraud in the performance of his duties as such
director, officer, Board, committee member, Declarant or its members; of (b) any matter settled
or compromised, unless, in the opinion of independent counsel selected by or in a manner
determined by the Board, there is not reasonable ground for such persons being adjudged liable
for gross negligence or fraud in the performance of his duties as such director, Board, officer,
committee member, Declarant or its members.
SECTION 2. Success on Merits. To the extent that the Declarant or its members or a
member of the Board of directors or an officer of the Association or a member of any committee
appointed pursuant to the By-Laws of the Association has been successful on the merits or
otherwise in defense of any action, claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonable incurred by him in connection
therewith.
SECTION 3. Advance Payment. Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the Association in advance of the final disposition of
such action, suit or proceeding as authorized by the Board of Directors in the specific case upon
receipt of any undertaking by or on behalf of the person or entity seeking such indemnification or
payment in advance to repay such amount unless it shall ultimately be determined that he is
entitled to be indenmified by the Association as authorized in this Article VII.
SECTION 4. Miscellaneous. The Association and the Board shall have the power to
raise and the responsibility for raising by special assessment or otherwise, any sums required to
discharge its obligations under this Article, provided, however, that the liability of any Unit
owner arising out of any contract made by or other acts of the directors, Board, officers, members
of such committees, Declarant or its member, or out of the aforesaid indemnity in favor of the
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directors, Board, officers, members of such committees, Declarant or its members, shall be
limited to such proportion of the total liability hereunder as said Unit owner's percentage of
interest in the Common Areas bears to the total percentage interest of all the Unit owners in the
Common Areas. Every agreement made by the directors, Board, officers, members of such
committees, Declarant or its members or by the Managing Agent on behalf of the Unit owners
shall provide that the directors, Board, officers, members of such committees, Declarant or its
members or the Managing Agent, as the case may be, are acting only as agents for the Unit
owners and shall have no personal liability thereunder (except as Unit owners), and that each
Unit owner's liability thereunder shall be limited to such proportion of the total liability
thereunder as his percentage of interest in the Common Areas bears to the total percentage
interest of all Unit owners in the Common Areas. The indemnification provided by this Article
VII shall not be deemed exclusive of any other fights to which those seeking indemnification
may be entitled under any statute, agreement, vote of members of the Association or disinterested
members of the Board of Directors or otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office. Such right to indemnification shall
continue as to a person or entity who has ceased to be the Declarant or its members or a member
of the Board of Directors, officer of the Association or a member of such committee, and shall
inure to the benefit of the heirs, executors, administrators, successors and assigns of such person
or entity.
ARTICLE VIII
Definition of Terms
The terms used in these By-Laws, to the extent they are defined therein, shall have the
same defmition as set forth in The Commons at City Centre Condominium Declaration, which
Declaration is recorded in the office of the Recorder of Hamilton County, Indiana.
The term "member", as used in these By-Laws, means "Unit owner" as defined in the
Declaration.
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