HomeMy WebLinkAboutCovenants,Condition,Restriction
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DECLARATION OF
COVENANTS, CONDITIONS & RESTRICTIONS
FOR
TRADITIONS ON THE MONON
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS ..................................................................................................................1
ARTICLE 2 PROPERTY SUBJECT TO THE DECLARATION AND OTHER
2.1.
2.2.
2.3.
2.4.
ARTICLE 3
3.1.
3.2.
3.3.
3.4.
3.5.
3.6.
3.7.
3.8.
3.9.
3.10.
3.11.
3.12.
ARTICLE 4
4.1.
4.2.
4.3.
4.4.
ARTICLE 5
5.1.
5.2.
5.3.
5.4.
5.5.
5.6.
5.7.
5.8.
GO VE RN"IN G DOCUMENTS ....... .... ... ... ... ........ ........... .......... ..... ..... ..... .......... ............... 4
SUBJECT TO GOVERNING DOCUMENTS.............................'-..................................... 4
NO OTHER DECLARATION OR MASTER RESTRICTIONS....................................... 4
AD D ITI 0 N AL LAND .............................................................. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . · . · · . · · 4
MERGER WITH ANOTHER ASSOCIATION ....................... .......................................... 4
PROPERTY EASEMENTS AND RIGHTS ...................................................................5
GENERAL; RECORDED EASEMENTS ...... .... ... ... ..... ........ ... ....... ..... .......... ............... .....5
DRAINAGE, SEWER AND UTILITY EASEMENTS...................................................... 5
LANDSCAPE EASEMENTS............................................................................................. 5
ACCESS AND P ARKrnG EASEMENT ...... ..... ... ........... ... ....... ... ....... ... ....... ..... ..... ..... .....6
PEDESTRIAN ACCESS EASEMENTS. ........... ............ ..... ....... ..... ... ..... ....... ..... ............... 7
OWNER'S EASEMENT OF ENJOYMENT...................................................................... 7
OWNER'S MAINTENANCE AND TOWNHOME UTILITY EASEMENTS ................. 7
OWNER'S ENCROACHMENT EASEMENT................................................................... 8
ASSOCIATION'S ACCESS EASEMENT .... .......... ....... ............ .......... ..............................8
UTILITY EASEMENT....................................................................................................... 8
SECURITY ......................................................................................................................... 8
DECLARANT'S EASEMENT TO INSPECT AND RIGHT TO CORRECT ...................9
LOTS't TOWNHOMES AND AREA OF COMMON RESPONSffiILITY.................9
LOTS......................................................................................... .......... ........................... ..... 9
ALLOCATION OF INTERESTS .. ... ....... ... ........ ..... ..... ......... ... ....... ..... ... ......... ........ ..... .....9
TO WNH 0 MES ......................................................................... ............... ...................... ..... 9
AREA OF COMMON RESPONSffiILITY .............................. ..................................... ... 10
COVENANT FOR ASSESSMENTS .............................................................................11
P"URPOSE OF ASSESSMENTS ......................................................................................11
PERSONAL OBLIGATION.......... ..... ..... ... ........ ... ......... ....... ..... ..... ........ ....... ..... ..... ........ 12
AS SES SMENT IN" CREASES........ ........................................... ..................................... ... 12
TYPES OF AS SES SMENTS .............................................................. ................. .......... ... 12
INITIAL AS S E S S MENT S ............................................................................................... 12
REGULAR ASSESSMENTS........ ....... ...... ... ..... ..... ... ........... ... ....... ..... ..... ....... ... ............. 12
SPECIAL ASSESSMENTS.. ......... ....... ...... ... ..... ..... ... ........... ... ......... ....... ........ ............. ... 14
INDIVIDUAL ASSESSMENTS..... ..... ...... .... ....... ........ ... ..... ... ....... ................................. 14
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5.9.
5.10.
5.11.
5.12.
ARTICLE 6
6.1.
6.2.
6.3.
6.4.
ARTICLE 7
7.1.
7.2.
7.3.
7.4.
7.5.
7.6.
7.7.
7.8.
7.9.
ARTICLE 8
8.1.
8.2.
8.3.
8.4.
8.5.
8.6.
8.7.
8.8.
8.9.
8.10.
8.11.
ARTICLE 9
9.1.
9.2.
9.3.
9.4.
9.5.
9.6.
9.7.
ARTICLE 10
10.1.
RESTORATION ASSESSMENTS ..... ... ... ... ... ............ ..... ... ...... ... ........ .......... ................. .14
D DE DATE ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14
RE S ER VE FUND S ........................................................................................................... 15
ASSOCIATION'S RIGHT TO BORROW MONEY........................................................ 15
AS S E S S MENT LIEN .... ... .................. ....... ...... ............ ....... ....... ......... ........... .......... ....... .15
AS SESSMENT LIEN .......................... ....................... ...................................................... 15
SUPERIORITY OF ASSESSMENT LIEN ......................................................................15
EFFECT OF MORTGAGEE'S FORECLOSURE .......,....................................................15
FORECLOSURE OF LIEN. ........... ..... ................... ... ...... .......... ... .......... ..... ..... ...... ......... .16
EFFECT OF NONPAYMENT OF ASSESSMENTS ..................................................16
FAILURE TO PAY ASSESSMENTS ..............................................................................16
INTEREST...................................................................................................... .................. 16
LATE FEES ...................................................................................................................... 16
COLLECTION EXPENSES..........~...................................... ............................................ 16
ACCELERATION ............................................................................................................ 16
SUSPENSION OF USE AND VOTE................................................... .......... ........... .......16
MONEY JUDGMENT.................................. .......... ...................... .................................... 17
NOTICE TO MORTGAGEE ........ .............. ..... ..... ..... ..... ................. ....... ..... ..... ................ 17
APPLICATION OF PAYMENTS .... ......................................... ... .................................... 1 7
MAINTENANCE AND REPAIR OBLIGATIONS AND LIMITATIONS............... 17
AS SOCIA TION MAINTENANCE...................... ............................................................ 17
OWNER RESPONSffiILITY ................ .............................. ........... .............. ..................... 17
DISPUTES................. ........................................................................... .. ........ .......... ........ 18
CON CRE TE AND AS P HAL T ......................................................................................... 18
LAWNS AND LANDSCAPING .. ....... ..... .... .......... ... ........... .... .............. ..... ... ... .............. .18
SNOW REMOVAL.......................................................................................................... 18
PEST CONTROL.............................................................................................................. 18
BALCONIES AND DECKS ........... ... .... .......... ..... ..... ................ ... ........ ....... ... ... .... ....... ... .18
WARRANTY CLAIMS.................................................................................................... 19
PARTY WALLS............................................................................................................... 19
OWNER'S DEFAULT rn MAmTENANCE...................................................................19
ARCIDTECTURAL COVENANTS AND CONTROL ..............................................19
P"URPOS E ......................................................................................................................... 19
PROHffiITION OF CONSTRUCTION, ALTERATION AND IMPROVEMENT ........20
ARCHITECTURAL CONTROL DURING THE DEVELOPMENT PERIOD............... 20
ARCHITECTURAL CONTROL BY ASSOCIATION.................................................... 20
ARCHITECTURAL APPROVAL ............. ....... ..... ............... ....... ... ....... ..... ........ .............21
ARCHITECTURAL GUIDELIN'ES.. ......... ..... ..... ..... ...... ... ....... ...... ....... ..... ...... ........... ....21
PRO Hill ITE D ACT S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
USE RESTRICTIONS ....................................................................................................22
VARIAN CE ...................................................................................................................... 22
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10.2. ASSOCIATION'S RIGHT TO PROMULGATE RULES................................................22
1 0 . 3 . ANIMAL S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · . . · · . 23
10.4. ANNOY AN CE ................................................................................................................. 23
10.5 . APPEARANCE.................................................................................... ............................. 23
10.6. DECLARANT PRIVILEGES........ .............. .......... ........................................................... 23
10.7. DRAIN" AGE......... ....... ................ .. ........... ... ........ ........... ....... ... .. .......... .......... ....... .. . ... ... . · · 23
1 0.8. SIDEWALKS & DRIVEWAYS... ........... ........ ... ............. ........ ....... ... ....... ................ ........ 24
1 0.9 . FIRE SAFETY .................................................................................................................. 24
10.10. LANDSCAPING............................................................................................................... 24
10.11. LEASING OF TOWNHOMES......................................................................................... 24
10.12. NOISE AND ODOR......................................................................................................... 24
10.13 . OCCUPANCy.................................................... ........... ................................................... 24
10.14. VEHICLES...................................................................................................................... · 24
10.15 . GARAGES.... ....... .................... ..... ........... ........... ........... ... .... .. . ... .............. . ...... ..... .. · ... .. . .. · 25
10.16. P ARKrn G ......................................................................................................................... 25
10.17. RES ill ENTIAL USE ........................................................................................................ 25
10.18 . SIGNS........... .. . .. ................ ... ...... ... .......... ........... ....... .... .. ..... ... ..... ..... .. ..... .......... .. .. ..... . . .. . 25
10.19 . SPECIFIC USES............................................................................................................... 26
10.20. STRUCTURAL INTEGRITY. ...... ............. ..... ........ ... ... ... ......... ..... ..... ..... ....... ................. 26
10.21. TELEVISION RECEPTION............................................................................................. 26
1 0 . 22. WIND 0 W TREATMENTS ........................................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . · · . · · . . . . . . . 27
10.23. BALCONIES AND DECKS .... ..... ........... ............. .... ..... .... ...... ... ......... ..... ............ ............ 27
ARTICLE 11 ASSOCIATION OPERATIONS ...................................................................................27
11.1. THE AS SOCIA TI ON........ ... . ....... .......... . ..... ... ... ...... ... .. .. ..... ..... .. . ............ ..... . .. .. .. .. · . .. .. . . . · 27
11.2. BO ARD ........ ........ ... ... ........ ... ........ ...... .......... ............ . .. .. ............ ... .. . ......... ... .. ....... .. .. .. · . . .. · 27
11.3 . MEMBERSHIP ................................................................................................................. 27
11.4. MANAGEMENT COMPANY ..... ........... ..... ........... ... ... ....... ..... .......... ......... ....................28
11.5 . BOOKS AND RECORDS ................................................................................................ 28
11.6. IND EMN'IF'I CA TIO N ........ ... ........ . . . ........ ........ .......... . . .. ... .... ... .. ..... . . . .. ... . . ... .. .. ..... .. · · ..... . . · 28
11.7. OBLIGATIONS OF OWNERS .... ........... ............. ... ...... ....... ..... ..... ....... ........................... 28
ARTICLE 12 ENFORCING THE DOCUMENTS ..............................................................................29
12 .1. ENFORCEMENT ............................................................................................................. 29
12.2. REMED lES ........................................................................................................... ............29
12.3. BOARD DISCRETION ........................ ................. ........................................................... 29
12.4. NO WAIVER.................................................................................................................... 30
12.5 . RECOVERY OF COSTS.................................................................................................. 30
AR TI CLE 13 IN S URAN CE ......... ....................................................................................................... ...30
13.1. GENERAL PROVISIONS..............................................................................................:. 30
13 .2. PROPERTY IN"SURANCE... ...... ...... ....... .................. ................ ...... ... ........ ... ...................31
13.3. LIAB ILITY INSURANCE ............................................................................................... 31
13.4. WORKER'S COMPENSATION ...... ........ .... ..... ... ......... ..................... ........ ..... ................. 32
13 .5 . FIDELITY COVERAGE .................................................................................................. 3 2
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13 .6. DIRECTORS AND OFFICERS LIABILITy............................................ ....................... 32
13.7. OTHER POLICIES........................................................................................................... 32
13.8. OWNER'S RESPONSIBILITY FOR INSURANCE........................................................ 32
ARTICLE 14 RECONSTRUCTION OR REPAIR AFTER LOSS....................................................33
14 .1. GENERAL... . ............................................................... .. ...... ... .. .. ...... ... .......... . .. ..... ... ... ... . . 33
14 .2. RE S TO RA TI 0 N FUND S ................................................................................................. 3 3
14.3 . COSTS AND PLANS....................................................................................................... 34
14.4. DUTY TO REPAIR.......................................................................................................... 34
14.5. OWNER'S LIABILITY FOR INSURANCE DEDUCTffiLE..........................................35
AR TI CLE 15 CO ND EMN A TI 0 N .........................................................................................................35
15 .1. CONDEMNATION .......................................................................................................... 35
AR TI CLE 16 M 0 R TGA GEE PR OTECTI 0 N ....................................................................................35
16 .1. INTRODUCTION... ........ .................................... ...... ............... . ...... .... . .. ..... ... . ..... .... .. . . . . .. . 35
16.2. AMENDMENT TO SATISFY REQUIREMENTS OF UNDERWRITING
LEND ERS . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
16.3. NOTICE REGARDING EXISTENCE OF MORTGAGEE.............................................35
16.4. IMPLIED APPROVAL ...... ...... ... ..... .......... ..................... .... ..... .... ....... ........... ... .... ...........35
16.5. OTHER MORTGAGEE RIGHTS .. ............. ....... ............. ......... ... ..... .............. ..... .............36
16 .6. INSURANCE POLl C IE S ................................................................................................. 3 6
16.7. NOTICE OF ACTIONS ....... ..... ........... ..... ... ... ...... ......... ........... ........... ..... ........... .............36
AR TI CLE 17 AMENDMENTS ............................................................................................................. 36
17.1. CONSENTS REQUIRED. ................ .......... ........ ......... ........ ..... ........ ........ ...... ..................36
17.2. METHOD OF AMENDMENT......... ... ......... ...... ........... ............. ... ... ..... ...... ..... ................37
1 7.3. EFFECTIVE............. ......................................................................................................... 37
1 7.4 . DECLARANT PRO VIS IONS .......................................................................................... 37
AR TI CLE 18 DISPUTE RESOLUTION ..............................................................................................37
18.1. INTRODUCTION AND DEFINITIONS......................................................................... 37
18.2. MANDATORY PROCEDURES ... .... ... ........ ...... ....... .... ... ........ ........ ... ... ........... ... ............38
18 .3 . NOTICE ............................................................................................................................ 3 8
18.4. NEGOTIATION...... .... ... .... ...... ... ........ .... ... . .............. ...... ...... . ............ . .. ...... .. . ...... . .... .... ... 38
18 .5 . MEDIATION .................................................................................................................... 3 8
18.6. TERMIN"A TION OF MEDIATION .... ..... ... ... ........ .................... ...... ........ ...... ...... ............38
18 .7. ALLOCATION OF CO S T S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 9
18.8. ENFORCEMENT OF RESOLUTION .... ... ...... ........ ..... ............. ........... ... ... ...... ...............39
18.9. GENERAL PROVISIONS.. ... ........ ... .... ...... ...... ......... ... .................... ..... ... ....... ..... ............39
18.10. LITIGATION APPROVAL AND SETTLEMENT.......................................................... 39
AR TI CLE 19 GENERAL PRO VISIONS .............................................................................................39
19.1. COMPLIANCE WITH LAWS. ..... ........... .... ...... ......................... ..... ..... .... .... .... ...............39
19 .2. HIGHER AUTHORITY ....................................... ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 9
19.3 . NOTICE ............................................................................................................................ 39
19 .4. LIBERAL CONS TRue TI ON. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
TABLE OF CONTENTS TO DECLARATION FOR TRADITIONS ON THE MONON
64701.1
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DECLARATION OF
COVENANTS, CONDITIONS & RESTRICTIONS
FOR TRADITIONS ON THE MONON
This DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS FOR
TRADITIONS ON THE MONON is made by Centex Homes, a Nevada general partnership
("Declarant"), on the date signed below.
Declarant owns the land described in Appendix A of this Declaration, together with all
improvements, easements, rights, and appurtenances to the land (collectively, the "Property"). Declarant
desires to establish a general plan of development for the Property for a planned community to be known
as "Traditions on the Monon". Declarant also desires to provide a reasonable and flexible procedure by
which Declarant may expand the Property to include additional real property, and to maintain certain
development rights that are essential for the successful completion and marketing of the Property.
Declarant further desires to provide for the preservation, administration, and maintenance of
portions. of the Property, and to protect the value, desirability, and attractiveness of the Property. As an
integral part of the development plan, Declarant deems it advisable to create a homeowners association to
perform.these functions and activities more fully described in this Declaration and the other Governing
Documents described below.
Accordingly, Declarant declares that the Property and any additional property made subject to
this Declaration by recording of an amendment of or supplement to this Declaration, will be owned, held,
transferred, sold, conveyed, leased, occupied, used, insured, and encumbered subject to the terms,
covenants, conditions, restrictions, and easements of this Declaration, including Declarant's reservations
in the attached Appendix B. All of these terms, covenants, conditions, restrictions and easements run
with the real property and bind all parties having or acquiring any right, title, or interest in any part of the
Property, their heirs, successors, and assigns, and inure to the benefit of each Owner of any part of the
Property .
ARTICLE 1
DEFINITIONS
DEFINITIONS. The following words and phrases, whether or not capitalized, have specified
meanings when used in the Governing Documents, unless a different meaning is apparent from the
context in which the word or phrase is used.
1.1. "Additional Land" means real property which may be added to the Property and
subjected to this Declaration by Declarant and the owner of such property, as described in Section B.3.2
of Appendix B of this Declaration.
1.2. "Applicable Law" means the statutes and public laws and ordinances in effect at the time
a provision of the Governing Documents is applied that pertain to the subj ect matter of the Document
provision, regardless of whether such Applicable Law is specifically or correctly cited in the Governing
Documents.
1.3. "Architectural Reviewer" means the entity having jurisdiction over a particular
application for architectural approval. During the Development Period, the Architectural Reviewer is
Declarant or its designee. Thereafter, the Board-appointed Architectural Control Committee is the
Architectural Reviewer.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS
TRADITIONS ON THE MONON
64701.1
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1.15. "Eligible Mortgagee" means a Mortgagee who has submitted to the Association a
written notice containing its name and address, the loan number, and the identifying number and street
address of the mortgaged Lot.
1.16. "Governing Documents" means, singly or collectively as the case may be, this
Declaration, the Plat, the Bylaws, the Association's Articles of Incorporation, and the Rules of the
Association, as any of these may be amended from time to time. An appendix, exhibit, schedule, or
certification accompanying a Document is a part of that Document.
1.17. "Lot" means a portion of the Property intended for independent ownership, as shown on
the Plat, on which there is or will be constructed a Townhome. Where the context indicates or requires,
"Lot" includes all improvements thereon. A lot without a Townhome that is owned by the Association as
a Common Area is not included within the meaning of "Lot."
1.18. "Majority" means more than half.
1.19. "Member" means a member of the Association, each Member being an Owner of a Lot,
unless the context indicates that member means a member of the Board or a member of a committee of
the Association.
1.20. "Mortgagee" means a holder, insurer, or guarantor of a purchase money mortgage
secured by a recorded senior or first mortgage or deed of trust lien against a Lot.
1.21. "Municipal Entity" means any town, city, township, county, political subdivision or
public or private utility, as the context shall require.
1.22. "Owner" means a holder of recorded fee simple title to a Lot. Declarant is the initial
Owner of all Lots. Sellers under land contracts are Owners. Mortgagees who acquire title to a Lot
through a deed in lieu of foreclosure or through foreclosure are Owners. Persons or entities having
ownership interests merely as security for the performance of an obligation are not Owners. Every Owner
is a Member of the Association.
1.23. "Plat" means the plat of Traditions on the Monon, recorded on
2004, as Instrument No. , in the Office of the Recorder of Hamilton County, Indiana,
including all dedications, limitations, restrictions, easements, notes, and reservations shown on the Plat, as
it may be amended from time to time.
1.24. "Property" has the meaning given to it in the introductory paragraphs of this Declaration.
The Property includes every Lot and all Common Area.
1.25. "Resident" means an occupant of a Townhome, regardless of whether the person owns
the Lot.
1.26. "Resident Agent" means the person or entity designated as Resident Agent in the
Association's articles of incorporation.
1.27. "Rules" means rules and regulations of the Association adopted in accordance with the
Governing Documents. The initial Rules may be adopted by Declarant for the benefit of the Association.
1.28. "State" means the State of Indiana.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS
TRADITIONS ON THE MONON
64701.1
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1.29. "Townhome" means the attached single-family dwelling constructed on a Lot. Where
the context indicates or requires, "Townhome" includes the exterior appurtenances of the dwelling, such
as balconies and porches. In some contexts, such as Townhome Owner, "Townhome" has the same
meaning as "Lot."
1.30. "Underwriting Lender" means Federal Home Loan Mortgage Corporation (Freddie
Mac), Federal National Mortgage Association (Fannie Mae), Government National Mortgage Association
(Ginnie Mae), Federal Housing Administration (HUD/FHA), or U. S. Department of Veterans Affairs
(VA), singly or collectively. The use of this term and these institutions may not be construed as a
limitation on an Owner's financing options nor as a representation that the Property is approved by any
institution.
ARTICLE 2
PROPERTY THAT IS SUBJECT TO THE DECLARATION
AND OTHER GOVERN"ING DOCUMENTS
2.1. SUBJECT TO GOVERNING DOCUMENTS. The Property is held, transferred, sold,
conveyed, leased, occupied, used, insured, and encumbered subject to the terms, covenants, conditions,
restrictions, liens, and easements of this Declaration, including Declarant's reservations in the attached
Appendix B, which run with the Property, bind all parties having or acquiring any right, title, or interest
in the Property, their heirs, successors, and assigns, and inure to the benefit of each Owner of the
Property .
2.2. NO OTHER DECLARATION OR MASTER RESTRICTIONS. The Property is not
subject to any other set of declarations or restrictions, other than this Declaration.
2.3. ADDITIONAL LAND. Additional real property, which is referred to as Additional
Land, may be added to the Property and subjected to this Declaration and the jurisdiction of the
Association (i) on approval of Owners representing at least 2/3 of the Lots in the Property, or (ii) during
the Development Period, by Declarant as permitted in Appendix B. Additional Land may be added to the
Property by recording a supplemental declaration, including an amendment of Appendix A, in the Office
of the Recorder of Hamilton County.
2.4. MERGER WITH ANOTHER ASSOCIATION. Merger or consolidation of the
Association with another association must be evidenced by an amendment to this Declaration. The
amendment must be approved by Owners of at least 2/3 of the Lots. On merger or consolidation of the
Association with another association, the property, rights, and obligations of another association may, by
operation of law, be added to the properties, rights, and obligations of the Association as a surviving
corporation pursuant to the merger. The surviving or consolidated association may administer the
provisions of the Governing Documents within the Property, together with the covenants and restrictions
established on any other property under its jurisdiction. No merger or consolidation, however, will have
the effect of revoking, changing, or adding to the covenants established by this Declaration within the
Property.
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS
TRADITIONS ON THE MONON
64701.1
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ARTICLE 3
PROPERTY EASEMENTS AND RIGHTS
3.1. GENERAL: RECORDED EASEMENTS.
3.1.1. General. In addition to other easements and rights established by the Governing
Documents, the Property is subject to the easements and rights contained in this Article. The
Property also is subject to any easements, licenses, leases, dedications, limitations, restrictions,
reservations, and encumbrances of record, including but not limited to those shown or cited on
the Plat, which is incorporated herein by reference. Each Owner, by accepting an interest in or
title to a Lot, covenants and agrees to be bound by the Other Easements and other prior-recorded
instruments affecting the Property.
3.1.2. Easements Shown on the Plat. As shown on the Plat, portions of the Property are
burdened with and benefited by (i) Drainage, Sewer, Utility, Landscape and Pedestrian Access
Easements, and (ii) an Access, Parking, Drainage, Sewer, Utility and Landscape Easement.
These easements are more particularly described in this Article.
3.1.3. Other Easements. The Property (including the Lots) is burdened with and
benefited by the following:
(i)
(ii)
; and
(iii)
3.2. DRAINAGE~ SEWER AND UTILITY EASEMENTS. The Drainage, Sewer and Utility
Easements (shown on the Plat as part of the Drainage, Sewer, Utility, Landscape and Pedestrian Access
Easements and the Access, Parking, Drainage, Sewer, Utility and Landscape Easement) are created and
reserved by the Plat and this Declaration as non-exclusive, perpetual easements over the Property
(including portions of the Lots) for the use of all public utility companies (not including transportation
companies), governmental agencies, Declarant and the Association for access to and installation,
maintenance, repair or removal of poles, mains, ducts, drains, lines, wires, cables and other equipment
and facilities for the furnishing of utility services, including cable television services. The Drainage,
Sewer and Utility Easements are also created and reserved by the Plat and this Declaration for the use of
Declarant and the Association for access to and construction, maintenance, operation, repair and control
of any retention and detention ponds and improvements comprising and/or related to the storm water
drainage system, either by surface drainage or appropriate underground installations, and the use of the
Association for access to and maintenance, repair and replacement of such drainage system. The
delineation of the Drainage, Sewer and Utility Easement areas on the Plat will not be deemed a limitation
on the rights of any entity for whose use any such easement is created and reserved to go on any portion
of the Property subject to such easement (including the Lots) temporarily to the extent reasonably
necessary for the exercise of the rights granted to it by this Section. Except as installed by Declarant or
by third party public utility companies as provided above, no structures or improvements, including
without limitation decks, patios, fences, walkways or landscaping, may be erected or maintained upon the
Drainage, Sewer and Utility Easements. The water lines and the storm sewer facilities situated on the
Property are private.
3.3. LANDSCAPE EASEMENTS The Landscape Easements (shown on the Plat as part of
(i) the Drainage, Sewer, Utility, Landscape and Pedestrian Access Easements and (ii) the Access, Parking,
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Drainage, Sewer, Utility and Landscape Easement) are created and reserved by the Plat and this
Declaration as non-exclusive, perpetual easements over the Property (including portions of the Lots) for
the use of the Declarant and the Association for installation, maintenance and removal of trees, shrubbery,
flowers and other plantings, entryway and street signage and additional similar landscape improvements.
These easements include a right of ingress and egress on and over the areas adjacent thereto for the
purpose of this maintenance obligation.
NOTICE
Although the Property is platted into individually owned Lots and
Townhomes, portions of the Lots and Townhomes are maintained by
the Association. Any portion of the Lots that is part of streets,
sidewalks, and pathways may be used by Residents of other Lots.
3.4. ACCESS AND PARKrnG EASEMENT.
3.4.1. Access and Parkin~ Easement. An Access and Parking Easement (shown on the
Plat as part of the Access, Parking, Drainage, Sewer, Utility and Landscape Easement) is created
and reserved by the Plat and this Declaration over Block 1 (as shown on the Plat), which is part of
the Common Area, as a perpetual easement for the use of Declarant and the Association for the
maintenance, use, governance, and control of all streets, sidewalks and parking areas in the
Property. Declarant also grants to the Owners and Residents, and their invitees, the right to use
the streets and sidewalks for vehicular and pedestrian ingress to and egress from their Lots. The
Association has the right,. from time to time, to use as much as the surface of each Lot as may be
reasonably necessary for the Association to perform work on the improvements in the Access and
Parking Easement. The Association may assign this easement, or any portion thereof, to a
Municipal Entity if the Municipal Entity agrees to accept the assignment.
3.4.3. Private Streets. All streets on the Property will be constructed and used as
private streets.
3.4.3. Control. In exercising this Access and Parking Easement, the Association may
do anything reasonably related to the use, maintenance, operation, and governance of the streets,
sidewalks, and parking areas. To the extent not prohibited by public law, the Association is
specifically authorized to adopt, amend, repeal, and enforce Rules for use of the streets,
sidewalks, and parking areas.
3.4.4. Municipal Entity Access. Declarant hereby reserves and grants to the Municipal
Entity a non-exclusive easement across the private streets for access and all governmental
purposes, including, but not limited to, police and fire protection, garbage collection, mail
delivery, building inspection, and any similar purpose. The Association must maintain adequate
access in and to the private streets to enable the Municipal Entity (or any entity providing service
on behalf of the Municipal Entity) to provide such services.
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PRIVATE STREETS
The streets, sidewalks, and parking areas on the Property are subject
to Association control, even if they are located on individual Lots.
3.5. PEDESTRIAN ACCESS EASEMENTS. The Pedestrian Access Easements (shown on
the Plat as part of the Drainage, Sewer, Utility, Landscape and Pedestrian Access Easements) are created
and reserved by the Plat and this Declaration over the Property and certain portions of the Lots as non-
exclusive, perpetual easements for the use of Declarant and the Association for the construction,
maintenance, use, governance, and control of sidewalks, lighting, landscaping, and similar improvements.
Declarant also grants to the Owners and Residents, and their invitees, the right to use the sidewalks for
ingress and egress to the Common Areas. In connection with these Pedestrian Access Easements, the
Association has the temporary right, from time to time, to use as much as the surface of each Lot as may
be reasonably necessary for the Association to perform its work on the improvements in the Pedestrian
Access Easements.
3.6. OWNER'S EASEMENT OF ENJOYMENT. Each Owner and his invitees are granted a
right and easement of use and of enjoyment over the Access and Parking Easement, the Pedestrian Access
Easement, and any Common Areas, and to use of improvements therein, subject to other rights and
easements contained in the Governing Documents. An Owner who does not occupy a Townhome
delegates this right of enjoyment to the Residents of his Townhome, in which case the Owner is no longer
entitled to use the Common Areas. If a portion of the Common Area, such as a recreational feature, is
designed for private use, the Association may temporarily reserve the use of such area for certain persons
and purposes.
3.7. OWNER'S MAINTENANCE AND TOWNHOME UTILITY EASEMENTS.
3.7.1. Maintenance Easement. Every Owner is granted an easement over adjoining
Lots and the Area of Common Responsibility for the maintenance or reconstruction of his
Townhome and other improvements on his Lot.
3.7.2. Townhome Utility Easement. Every Owner of a Lot is granted an easement over,
under, and through every other Townhome in the same building in which his Townhome is
located for the limited purpose of installing, maintaining, and replacing wires, cables, conduit,
and pipes, that serve his Townhome, but only to the extent that use of this easement is reasonable
and necessary. The Owner of a Townhome that contains wire, cables, conduit, or pipes that serve
one or more other Townhomes has a duty to refrain from interfering with or damaging those
items.
3.7.3. Use of Maintenance Easement and Townhome Utility Easement. An Owner's
right to use the Maintenance Easement or the Townhome Utility Easement is subject to the
consent of the Owner of the adjoining Townhome or, in the case of the Area of Common
Responsibility, the Association. Such consent may not be unreasonably withheld. Any dispute as
to whether or not a requested entry by an Owner is appropriate, and whether or not the
withholding of consent is reasonable, will be resolved by the Board. An Owner's use of the
easement may not damage or materially interfere with the use of the adjoining Townhome or
Area of Common Responsibility. If an Owner damages an adjoining Lot, Townhome, or Area of
Common Responsibility in exercising its rights under this easement, the Owner is obligated to
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restore the damaged property to its original condition, at his expense, within a reasonable period
of time.
3.8. OWNER'S ENCROACHMENT EASEMENT. Every Owner is granted an easement for
the existence and continuance of any encroachment by his Townhome (including a Party Wall, as
described is Section 8.10) on any adjoining Lot or Common Area now existing or which may come into
existence hereafter, as a result of construction, repair, shifting, settlement, or movement of any portion of
a building, or as a result of condemnation or eminent domain proceedings, so that the encroachment may
remain undisturbed.
3.9. ASSOCIATION'S ACCESS EASEMENT. Each Owner, by accepting an interest in or
title to a Lot, whether or not it is so expressed in the instrument of conveyance, grants to the Association
an easement of access and entry over, across, under, and through the Property, including without
limitation all Common Areas and the Owner's Lot and all improvements thereon, for the below-described
purposes. In exercising this easement on an Owner's Lot, the Association is not liable to the Owner for
trespass.
a. To perform inspections and/or maintenance that is permitted or required of the
Association by the Governing Documents or by applicable law.
b. To perform maintenance that is permitted or required of the Owner by the
Governing Documents or by applicable law, if the Owner fails or refuses to
perform such maintenance.
c. To enforce the Governing Documents, including without limitation the
architectural standards and use restrictions.
d. To exercise self help remedies (if any) permitted by the Documents and by
Applicable Law.
e. To respond to emergencies.
f. To grant such easements to utility providers as may be necessary to install,
maintain, and inspect utilities serving any portion of the Property.
g. To perform any and all functions or duties of the Association as permitted or
required by the Governing Documents or by applicable law.
3.10. UTILITY EASEMENT. The Association may grant permits, licenses, and easements
over the Common Area and the Area of Common Responsibility for utilities, roads, and other purposes
necessary for the proper operation of the Property.
THE DECLARANT AND ASSOCIATION ARE NOT
RESPONSffiLE FOR YOUR PHYSICAL SECURITY.
3.11. SECURITY. The Association may, but is not obligated to, maintain or support certain
activities within the Property designed, either directly or indirectly, to improve safety in or on the
Property. Each Owner and Resident acknowledges and agrees, for himself and his guests, that Declarant,
the Association, and their respective directors, officers, committees, agents, and employees are not
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providers, insurers, or guarantors of security within the Property. Each Owner and Resident
acknowledges and accepts his sole responsibility to provide security for his own person and property, and
assumes all risks for loss or damage to same. Each Owner and Resident further acknowledges that
Declarant, the Association, and their respective directors, officers, committees, agents, and employees
have made no representations or warranties, nor has the Owner or Resident relied on any representation or
warranty, express or implied, including any warranty of merchantability or fitness for any particular
purpose, relating to any fire, burglary, and/or intrusion systems recommended or installed, or any security
measures undertaken within the Property. Each Owner and Resident acknowledges and agrees that
Declarant, the Association, and their respective directors, officers, committees, agents, and employees
may not be held liable for any loss or damage by reason of failure to provide security or ineffectiveness of
security measures which may be undertaken.
3.12. DECLARANT'S EASEMENT TO INSPECT AND RIGHT TO CORRECT. For a
period of 10 years after the last closing of a sale of a Townhome from Declarant to an Owner, Declarant
reserves for itself and for Declarant's architect, engineer, other design professionals, builder, and general
contractor the right, but not the duty, to inspect, monitor, test, redesign, correct, and relocate any
structure, improvement, or condition that may exist on any portion of the Property, including the
Townhomes, and a perpetual nonexclusive easement of access throughout the Property to the extent
reasonably necessary to exercise this right. Declarant will promptly repair, at its sole expense, any
damage resulting from the exercise of this right. This Section should not be construed to create a duty for
Declarant or the Association, and may not be amended without Declarant's written and acknowledged
consent. In support of this reservation, each Owner, by accepting an interest in or title to a Lot, hereby
grants to Declarant an easement of access and entry over, across, under, and through the Property,
including without limitation all Common Areas and the Owner's Lot and all improvements thereon for the
purposes contained in this Section.
ARTICLE 4
LOTS't TOWNHOMES AND AREA OF COMMON RESPONSmILITY
4.1. LOTS. The Property is platted into Lots, the boundaries of which are shown on the Plat,
and which may not be obvious on visual inspection of the Property. Portions of the Lots are designated
by this Declaration to be Areas of Common Responsibility, and are burdened with easements for the use
and benefit of the Association, Owners, and Residents. The legal description for each Lot on the Property
will be as follows:
Lot _ in Traditions on the Monon, a subdivision in Hamilton County, Indiana as
per plat thereof recorded as Instrument Number _, in the Office of the
Recorder of Hamilton County, Indiana.
4.2. ALLOCATION OF INTERESTS. The interests allocated to each Lot are calculated by
the following formulas.
4.2.1. Common Expense Liabilities. The percentage of liability for Common Expenses
allocated to each Lot is uniform for all Lots, regardless of the value, size, or location of the Lot or
Townhome.
4.2.2. Votes. The one vote appurtenant to each Lot is weighted equally for all votes,
regardless of any other allocation appurtenant to the Lot.
4.3. TOWNHOMES. Each residential Lot is to be improved with a Townhome. The Owner
of a Lot owns every component of the Lot and Townhome, including all the structural components and
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5.2. PERSONAL OBLIGATION. An Owner is obligated to pay Assessments levied by the
Board against the Owner or his Lot. Payments are made to the Association at its principal office or at any
other place (including to the management company) the Board directs. Payments must be made in full
regardless of whether an Owner has a dispute with the Association, another Owner, or any other person or
entity regarding any matter to which this Declaration pertains. No Owner may exempt himself from his
Assessment liability by waiver of the use or enjoyment of the Common Area or by abandonment of his
Townhome. An Owner's obligation is not subject to offset by the Owner, nor is it contingent on the
Association's performance of the Association's duties. Payment of Assessments is both a continuing
affirmative covenant personal to the Owner and a continuing covenant running with the Lot.
5.3. ASSESSMENT INCREASES. In addition to other'rights granted to Owners by this
Declaration, Owners have the following powers and controls over the Association's budget. At least 30
days prior to the effective date of a Special Assessment or increase in Regular Assessments, the Board
will notify an Owner of each Lot of the amount of, the budgetary basis for, and the effective date of the
Special Assessment or increase. The Special Assessment or increase will automatically become effective
unless Owners representing at least a majority of the Lots disapprove the Special Assessment or increase
in Regular Assessment by petition or at a meeting of the Association. In that event, the last-approved
budget will continue in effect until a revised budget is approved by the Board. This Section of the
Declaration may not be amended without the approval of Owners of at least 75% of the Lots.
5.4. TYPES OF ASSESSMENTS. There are 5 types of Assessments: Initial, Regular,
Special, Individual, and Restoration.
IF YOU BUY A TRADITIONS ON THE MONON TOWNHOME
(OTHER THAN FROM DECLARANT), YOU MUST PAY INITIAL
ASSESSMENTS TO THE ASSOCIATION.
5.5. INITIAL ASSESSMENTS. Upon the purchase or transfer of a Lot to an Owner other
than the. Owner purchasing the Lot from Declarant, each new Owner (other than Declarant, a Successor
Declarant or a Declarant-affiliate) will pay to the Association an Initial Assessment equal to 2 months of
the Regular Assessment established from time to time by the Association, as initial working capital to be
deposited with the general funds of the Association and to be used by the Association. If the funds are
collected by the Declarant, on or before termination of the Declarant Control Period, Declarant will
provide the Association with an accounting of any contributions collected and will transfer the balance of
such fund to the Association. The Initial Assessment is not an advance payment of the Regular
Assessment, but is, instead, in addition to the Regular Assessments that will otherwise become due with
respect to the Lot. The payment will be deemed to be the property of the Association and will not be
refundable or applied as a credit against any subsequent assessments. No Owner will have any vested or
other rights with respect to any such payments. If an Owner's contribution is not collected at time of
closing on the Lot, for any reason or no reason, the Owner of the Lot (but not Declarant) is thereafter
liable for the contribution, which may be collected by the Association.
5.6. REGULAR ASSESSMENTS.
5.6.1. Purpose of Regular Assessments. Regular Assessments are used for Common
Expenses related to the reoccurring, periodic, and anticipated responsibilities of the Association,
including but not limited to:
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5.6.3. Basis of Regular Assessments. Regular Assessments will be based on the annual
budget, minus estimated income from sources other than Regular Assessments. Each Lot will be
liable for its allocated share of the annual budget. If the Board does not approve an annual budget
or fails to determine new Regular Assessments for any year, or delays in doing so, Owners will
continue to pay the Regular Assessment as last determined. Regular Assessments will be paid in
monthly installments.
5.6.4. Supplemental Increases. If during the course of a year the Board determines that
Regular Assessments are insufficient to cover the estimated Common Expenses for the remainder
of the year, the Board may increase Regular Assessments for the remainder of the fiscal year in
an amount that covers the estimated restoration.
5.6.5. Initial Regular Assessments. Declarant estimates that the Regular Assessment
payable for each Lot will initially be $ per month. Of this amount, approximately $_
per month is attributable to cost of water and sanitary sewer utility service for the Townhomes,
and approximately $_ per month is attributable to insuring the Townhomes. This amount is
not guaranteed and will almost certainly be increased over time as actual expenses for operating
and maintaining the Property are incurred.
5.7. SPECIAL ASSESSMENTS. The Board may, from time to time, levy Special
Assessments against all Lots for the purpose of defraying, in whole or in part, Common Expenses not
anticipated by the annual budget or Reserve Fund. Special Assessments may be used for the same
purposes as Regular Assessments. Special Assessments do not require the approval of the Owners, except
that Special Assessments for the following purposes must be approved by Owners of least a majority of
the Lots: (1) acquisition of real property, (2) construction of additional improvements to the Property --
not repair or replacement of existing improvements, and (3) any expenditure that may reasonably be
expected to significantly increase the Association's responsibility and financial obligation for operations,
insurance, maintenance, repairs, or replacement.
5.8. INDIVIDUAL ASSESSMENTS. The Board may levy an Individual Assessment against
a Lot and its Owner. Individual Assessments may include, but are not limited to: interest, late charges,
and collection costs on delinquent Assessments; reimbursement for costs incurred in bringing an Owner
or his Lot into compliance with the Governing Documents; fines for violations of the Governing
Documents; fees for estoppel letters and copies of Governing Documents; insurance deductibles;
submetered utilities serving the Townhomes; reimbursement for damage or waste caused by willful or
negligent acts; Common Expenses that benefit fewer than all of the Townhomes, which may be assessed
according to benefit received; fees or charges levied against the Association on a per-Lot basis; and "pass
through" expenses for services to Townhomes provided through the Association and which are equitably
paid by each Lot according to benefit received.
5.9. RESTORATION ASSESSMENTS. The Board may levy a Restoration Assessment
against Lots for the purpose of defraying, in whole or in part, the cost of repair or restoration if insurance
proceeds or condemnation awards prove insufficient.
5.10. DUE DATE. Initial Assessments are due upon the sale or transfer of a Lot. Regular
Assessments are payable in advance, are due on the first calendar day of each month, and are delinquent if
not received by the Association on or before the first day of the month. Special, Individual and
Restoration Assessments are due on the date stated in the notice of Assessment or, if no date is stated,
within 10 days after notice of the Special, Individual or Restoration Assessment is given.
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5.11. RESERVE FUNDS. The Association may establish, maintain and accumulate a reserve
for operations. The Association will establish, maintain, and accumulate a reserve for replacement and
repair. For all reserves established by the Association, the Association will budget for reserves and may
fund reserves out of Initial Assessments or Regular Assessments.
5.11.1. Operations Reserves. The Association may maintain operations reserves at a
level determined by the Board to be sufficient to cover the cost of operational or maintenance
emergencies or contingencies, including deductibles on in~urance policies maintained by the
Association.
5.11.2. Replacement Reserves. The Association will maintain replacement and 'repair
reserves at a level that anticipates the scheduled replacement or major repair of components of the
Common Area and Area of Common Responsibility.
5.12. ASSOCIATION'S RIGHT TO BORROW MONEY. The Association is granted the right
to borrow money, subject to the consent of Owners of at least a majority of Lots and the ability of the
Association to repay the borrowed funds from Assessments. To assist its ability to borrow, the
Association is granted the right to encumber, mortgage, pledge, or deed in trust any of its real or personal
property, and the right to assign its right to future income, as security for money borrowed or debts
incurred, provided that the rights of the lender in the pledged property are subordinate and inferior to the
rights of the Owners hereunder.
ARTICLE 6
ASSESSMENT LIEN
6.1. ASSESSMENT LIEN. Each Owner, by accepting an interest in or title to a Lot, whether
or not it is so expressed in the instrument of conveyance, covenants and agrees to pay Assessments to the
Association. Each Assessment is a charge on the Lot and is secured by a lien on the Lot. Each Owner,
and each prospective Owner, is placed on notice that his title may be subject to the lien for Assessments
attributable to a period prior to the date the party purchased the Lot.
6.2. SUPERIORITY OF ASSESSMENT LIEN. The Assessment lien is superior to all other
liens and encumbrances on a Lot, except only for (1) real property taxes and assessments levied by
governmental and taxing authorities, (2) a mortgage, deed of trust or vendor's lien recorded before this
Declaration, (3) a recorded mortgage or deed of trust lien securing a loan for construction of the original
Townhome, and (4) a first or senior purchase money mortgage or vendor's lien recorded before the date
on which the delinquent Assessment became due. The Assessment lien is subordinate and inferior to a
recorded mortgage lien of any Underwriting Lender.
6.3. EFFECT OF MORTGAGEE'S FORECLOSURE. Foreclosure of a superior lien
extinguishes the Association's claim against the Lot for unpaid Assessments that became due before the
sale, but does not extinguish the Association's claim against the former Owner. The purchaser at the
foreclosure sale is liable for Assessments coming due from and after the date of the sale.
IF YOU FAIL TO PAY ASSESSMENTS TO THE
ASSOCIATION, THE ASSOCIATION MAY FORECLOSE
ITS ASSESSMENT LIEN AGAINST YOUR HOME.
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6.4. FORECLOSURE OF LIEN. The Association may file and foreclose the lien for
Assessments as a mortgage on real property or as otherwise provided by law.
ARTICLE 7
EFFECT OF NONPAYMENT OF ASSESSMENTS
7.1. FAILURE TO PAY ASSESSMENTS. An Assessment is delinquent if the Association
does not receive payment in full by the Assessment's due date. The Association, acting through its Board,
is responsible for taking action to collect delinquent Assessments. The Association's exercise of its
remedies is subject to applicable laws, and pertinent provisions of the Bylaws. From time to time, the
Association may delegate some or all of the collection procedures and remedies, as the Board in its sole
discretion deems appropriate, to the Association's manager, management company, an attorney, or a debt
collector. Neither the Board nor the Association, however, is liable to an Owner or other person for its
failure or inability to collect or attempt to collect an Assessment. The following remedies outlined in this
Article 7 are in addition to and not in substitution for all other rights and remedies that the Association
has at law or by equity.
7.2. INTEREST. Delinquent Assessments are subject to interest from the due date until paid,
at a rate to be determined by the Board from time to time, not to exceed the lesser of 18% per annum or
the maximum permitted by law. If the Board fails to establish a rate, the rate is 12% per annum. The
Association, and its officers, directors, managers, and attorneys, intend to conform strictly to the
applicable usury laws of the State of Indiana. Notwithstanding anything to the contrary in the Governing
Documents or any other document or agreement executed or made in connection with the Association's
collection of Assessments, the Association will not be entitled to receive or collect, as interest, a sum
greater than the maximum amount permitted by applicable law. If the Association ever receives, collects,
or applies as interest a sum in excess of the maximum rate permitted by law, the excess amount will be
applied to the reduction of unpaid Special and Regular Assessments or, if those Assessments are paid in
full, reimbursed to the Owner.
7.3. LATE FEES. Delinquent Assessments are subject to reasonable late fees, at a rate to be
determined by the Board from time to time.
7.4. COLLECTION EXPENSES. The Owner of a Lot against which Assessments are
delinquent is liable to the Association for reimbursement of reasonable costs incurred by the Association
to collect the delinquent Assessments, including attorneys fees and processing fees charged by the
management company.
7.5. ACCELERATION. If an Owner defaults in paying an Assessment that is payable in
installments, the Association may accelerate the remaining installments on 10 days' written notice to the
defaulting Owner. The entire unpaid balance of the Assessment becomes due on the date stated in the
notice.
7.6. SUSPENSION OF USE AND VOTE. If an Owner's account has been delinquent for at
least 30 days, the Association may suspend the right of the Owner and the Residents of the Owner's
Townhome to use Common Areas and common services during the period of delinquency. The
Association may not suspend an Owner or Resident's right of access to the Townhome. The Association
may also suspend the right to vote appurtenant to the Lot during the period of delinquency. Suspension
does not constitute a waiver or discharge of the Owner's obligation to pay Assessments.
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component of the Property for which the Association has maintenance or
insurance responsibility.
f. To (i) keep any portion of the Lot that is subject to the Drainage, Sewer and
Utility Easement free from obstructions so that the storm water drainage will be
unimpeded and (ii) not change or alter any drainage areas, including storm
sewers, pipe, and structures (including the wet retention area) without appropriate
permission of the Municipal Entity and prior written approval of the Association,
8.3. DISPUTES. If a dispute arises regarding the allocation of maintenance responsibilities
by this Declaration, the dispute will be resolved by allocating responsibility to the individual Owners.
Townhome and Lot maintenance responsibilities that are allocated to the Association are intended to be
interpreted narrowly to limit and confine the scope of Association responsibility. It is the intent of this
Article that all components and areas not expressly delegated to the Association are the responsibility of
the individual Owners.
8.4. CONCRETE AND ASPHALT. Minor cracks in concrete and asphalt, including
foundations, garage floors, driveways, streets, sidewalks, porches, and patio slabs, are inevitable as a
result of the natural movement of soil (expansion and contraction), shrinkage during the curing of the
concrete, and settling of the building. The Association's duty to maintain and repair foundations and
other concrete or asphalt of the Property does not extend to minor or cosmetic cracking. Generally, the
Association is responsible for repair of the following conditions: (1) leakage or seepage through walls or
floors, (2) cracks in concrete, masonry walls, or masonry veneer that exceed 1/4 inch in width, and
(3) improper drainage of water from stoops and patios.
8.5. LAWNS AND LANDSCAPING. The Association will maintain the lawn and
landscaping throughout the Property, including the Lots. However, each Owner must keep the lawn
located on its Lot clean and free of debris and free from animal waste.
8.6. SNOW REMOVAL. The Association will hire a snow removal contractor to remove
snow from streets, driveways and sidewalks when warranted. However, the Association is not required to
cause snow to be removed unless at least 2" of snow has accumulated. No party may use any chemicals
to remove snow or ice from the Property.
8.7. PEST CONTROL. The Association will hire a pest control contractor to perform
spraying for pest control on the exterior perimeter of the foundation of the buildings once per year.
Owners will be responsible for any other pest control service the Owner deems necessary.
8.8. BALCONIES AND DECKS. Except for routine cleaning, which is the Owner's
responsibility, the Association is responsible for the maintenance, repair, and replacement of any
balconies and decks that are part of a Townhome. If the outside components of the Townhome are most
easily accessed through the Townhome, the Owner will cooperate in providing access to the outside
components to the Association's agents and contractors. If requested by the Association, the Owner will
remove all personal property from the outside components of his Townhome to facilitate the required
maintenance, repair, or replacement. The Owner is liable to the Association for any additional expense
incurred by the Association due to an Owner's failure or refusal to cooperate with reasonable requests for
access or removal. This Section may not be construed to prevent an Owner at the Owner's sole expense,
without right of reimbursement from the Association, from maintaining, repairing, and replacing
components of his Townhome's balcony or deck, subject to the Association's architectural control.
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8.9. WARRANTY CLAIMS. If Owner is the beneficiary of a warranty against defects in the
Area of Common Responsibility, Owner irrevocably appoints the Association, acting through the Board,
as his attorney-in-fact to file, negotiate, receive, administer, and distribute the proceeds of any claim
against the warranty that pertains to an Area of Common Responsibility.
8.10. PARTY WALLS. A Townhome wall located on or near the dividing line between 2 Lots
and intended to benefit both Lots constitutes a Party Wall. To the extent not inconsistent with the
provisions of this Section, the Party Wall is subject to the general rules of law regarding party walls and
liability for property damage due to negligence, willful acts, or omissions.
8.10.1. Encroachments and Easement. If the Party Wall is on one Lot or another due to
an error in construction, the midpoint of the Party Wall is nevertheless deemed to be on the
dividing line for purposes of this Section. Each Lot sharing a Party Wall is subject to the Owner's
Encroachment Easement (see above).
8.10.2. Right to Repair. If the Party Wall is damaged or destroyed from any cause, the
Owner of either Lot may repair or rebuild the Party Wall to its previous condition. The Owners
of both Lots and their successors and assigns will have the right to the full use of the repaired or
rebuilt Party Wall.
8.10.3. Maintenance Costs. The Owners of the adjoining Lots will share equally in the
costs of repair, reconstruction, or replacement of the Party Wall, subject to the right of one Owner
to call for larger contribution from the other under any rule of law regarding liability for
negligence or willful acts or omissions, and subject to the two modifications below. If an Owner
is responsible for damage to or destruction of the Party Wall, that Owner will bear the entire cost
of repair, reconstruction, or replacement. If an Owner fails or refuses to pay his share of costs of
repair or replacement of the Party Wall, the Owner advancing monies has a right to file a claim of
lien for the monies advanced in the Office of the Recorder of Hamilton County, Indiana. The
right of an Owner to contribution from another Owner under this Section is appurtenant to the
land and passes to the Owner's successors in title.
8.10.4. Alterations. The Owner of a Lot sharing a Party Wall may not cut openings in
the Party Wallar alter or change the Party Wall in any manner. The Party Wall will always
remain in the same location as when originally erected.
8.11. OWNER'S DEFAULT IN MAINTENANCE. If the Board determines that an Owner has
failed to properly discharge his obligation to maintain, repair, and replace items for which the Owner is
responsible, the Board may give the Owner written notice of the Association's intent to provide the
necessary maintenance at Owner's expense. The notice must state, with reasonable particularity, the
maintenance deemed necessary and a reasonable period of time in which to complete the work. If the
Owner fails or refuses to timely perform the maintenance, the Association may do so at Owner's expense,
which is an Individual Assessment against the Owner and his Lot. In case of an emergency, however, the
Board may, without giving the Owner written notice, take any action it deems necessary to protect
persons or property, the cost of the action being the Owner's expense.
ARTICLE 9
ARCBITECTURALCOVENANTS AND CONTROL
9.1. P"URPOSE. Because the Lots are part of a single, unified community, this Declaration
creates rights to regulate the design, use, and appearance of the Lots and Common Areas in order to
preserve and enhance the Property's value and architectural harmony. One purpose of this Article is to
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promote and ensure the level of taste, design, quality, and harmony by which the Property is developed
and maintained. Another purpose is to prevent improvements and modifications that may be generally
considered to be radical, curious, odd, bizarre, or peculiar in comparison to then existing improvements.
A third purpose is to regulate the appearance of every aspect of proposed or existing improvements on a
Lot, including but not limited to Townhomes, fences, landscaping, retaining walls, yard art, sidewalks and
driveways, and further including replacements or modifications of original construction or installation.
During the Development Period, a primary purpose of this Article is to reserve and preserve Declarant's
right of architectural control.
9.2. PROHffiITION OF CONSTRUCTION4 ALTERATION AND IMPROVEMENT.
Without the Architectural Reviewer's prior written approval, a person may not construct a Townhome or
make an addition, alteration, improvement, installation, modification, redecoration, or reconstruction of or
to the Property. However, an Owner may make non-structural changes to the interior of a Townhome
(such as painting or installing wallpaper) without seeking the Architectural Reviewer's approval. The
Architectural Reviewer has the right but not the duty to evaluate every aspect of construction,
landscaping, and property use that may adversely affect the general value or appearance of the Property.
- 9.3. ARCHITECTURAL CONTROL DURING THE DEVELOPMENT PERIOD. During
the Development Period, all aspects of architectural control will be governed by Section B.3.3. of
Appendix B.
9.4. ARCHITECTURAL CONTROL BY ASSOCIATION. The Association has no
jurisdiction over architectural matters unless and until such time as Declarant delegates all or a portion of
its reserved rights to the Architectural Control Committee (the "ACe"), or the Development Period is
terminated or expires. On termination or expiration of the Development Period, or earlier if delegated in
writing 'by Declarant, the Association, acting through the ACC will assume jurisdiction over architectural
control.
9.4.1. ACC. The ACC will consist of at least 3 but not more than 7 persons appointed
by the Board, pursuant to the Bylaws. Members of the ACC serve at the pleasure of the Board
and may be removed and replaced at the Board's discretion. At the Board's option, the Board may
act as the ACe, in which case all references in the Governing Documents to the ACe are
construed to mean the Board. Members of the Ace need not be Owners or Residents, and may
but need not, include architects, engineers, and design professionals who may be paid for their
services, as determined from time to time by the Board.
9.4.2. Control for Variances. If the ACe is considering approval of an application that
seeks a variance or which, in the ACC's opinion, would constitute a variance of the Property's
established standards, the ACC must notify an Owner of each Lot of the nature of the proposed
variance at least 20 days before the ACe approves the application. The ACC may approve the
variance unless Owners of at least a majority of the Lots disapprove the proposed variance by
petition or at a meeting of the Association. This Section of the Declaration may not be amended
without the approval of Owners of at least 75% of the Lots.
9.4.3. Discretion: Limits on Liabilitv for Decisions Made. The ACC has sole discretion
with respect to taste, design, and all standards specified by this Article. The members of the ACC
have no liability for the ACC's decisions made in good faith, and which are not arbitrary or
capricious. The ACC is not responsible for: (1) errors in or omissions from the plans and
specifications submitted to the ACC, (2) supervising construction for the Owner's compliance
with approved plans and specifications, or (3) the compliance of the Owner's plans and
specifications with Applicable Law.
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BEFORE MAKING ANY IMPROVEMENT OR ALTERATION
TO A LOT OR TOWNHOME, A BUILDER OR OWNER
MUST APPLY FOR WRITTEN APPROVAL.
9.5. ARCHITECTURAL APPROVAL. To request architectural approval, an Owner must
make written application and submit 2 identical sets of plans and specifications showing the nature, kind,
shape, color, size, materials, and locations of the work to be performed. The application must clearly
identify any requirement of this Declaration for which a variance is sought. The Architectural Reviewer
will return one set of plans and specifications to the applicant marked with the Architectural Reviewer's
response, such as "Approved," "Denied," or "More Information Required." The Architectural Reviewer
will retain the other set of plans and specifications, together with the application, for the Architectural
Reviewer's files. The Architectural Reviewer's approval must be in writing to be effective. Verbal
approval by an Architectural Reviewer, the Declarant, an Association director or officer, a member of the
ACC, or the Association's manager does not constitute architectural approval by the appropriate
Architectural Reviewer.
9.5.1. Deemed Approval. If the Architectural Reviewer fails to respond in writing --
negatively, affirmatively, or requesting information -- within 60 days after the Architectural
Reviewer's actual receipt of the Owner's application, the Owner may submit a second request for
processing of its original application. If the Board fails to respond within 45 days after the
Board's actual receipt of the Owner's second request, the Owner's application is deemed
approved. The Owner may then proceed with the improvement, provided the Owner adheres to
the plans and specifications that accompanied his application, and provided he initiates and
completes the improvement in a timely manner. In exercising deemed approval, the burden is on
the Owner to document the Board's actual receipt of the Owner's initial application and second
request.
9.5.2. Building Permit. If the application is for work that requires a building permit
from the Municipal Entity, the Owner must obtain the appropriate permit. The Architectural
Reviewer's approval of plans and specifications does not mean that they comply with the
Municipal Entity's requirements. Alternatively, approval by governmental authorities does not
ensure Architectural Reviewer approval.
9.5.3. No Approval Required. No approval is required to rebuild a Townhome in
accordance with originally approved plans and specifications. Nor is approval required for an
Owner to remodel or repaint the interior of a Townhome, provided the work does not impair the
structural soundness of the building.
9.5.4. Declarant Approved. Notwithstanding anything to the contrary in this
Declaration, any improvement to the Property made by Declarant during the Development Period
is deemed to have been approved by the Architectural Reviewer.
9.6. ARCHITECTURAL GUIDELINES. Declarant (during the Development Period) and the
Association (thereafter) may publish architectural restrictions, guidelines, and standards, all of which may
be revised from time to time to reflect changes in technology, style, and taste.
9.7. PROHIBITED ACTS. The types of acts that may not be commenced without the
Architectural Reviewer's prior written approval include, but are not limited to, the following:
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YES, THERE ARE LOTS OF RULES!
EVERY TRADITIONS ON THE MONON RESIDENT IS EXPECTED TO COMPLY
WITH THESE RULES AND WITH RULES ADOPTED BY THE BOARD OF
. DIRECTORS.
10.3. ANIMALS. No animal, bird, fish, reptile, or insect of any kind may be kept, maintained,
raised, or bred anywhere on the Property for food or for any commercial purpose. Customary
domesticated household pets may be kept subject to the Rules. The Board may adopt, amend, and repeal
Rules regulating the types, sizes, numbers, locations, and behavior of animals at the Property. If the
Rules fail to establish animal occupancy units, no more than 2 dogs, or 2 cats, or 1 dog and 1 cat (or such
lesser number as may be prescribed by the Municipal Entity) may be maintained in each Townhome.
Permission to maintain other types or additional numbers of household pets must be obtained in writing
from the Board. No pets may be left unattended outside of a Townhome (including a deck or balcony).
The Board may require or cause the removal of any animal determined to be in violation the Rules. Each
Owner or Resident must clean any animal waste created by its pets anywhere on the Property.
BE COURTEOUS TO YOUR NEIGHBORS.
CLEAN UP AFTER YOUR PET.
10.4. ANNOYANCE. No Lot or Common Area may be used in any way that: (1) may
reasonably be considered annoying to neighbors; (2) may be calculated to reduce the desirability of the
Property as a residential neighborhood; (3) may endanger the health or safety of Residents of other
Townhomes; (4) may result in the cancellation of insurance on any portion of the Property; (5) violates
any law; or (6) creates noise or odor pollution. The Board has the sole authority to determine what
constitutes an annoyance.
CONTROL THE VOLUME.
Please be mindful of your neighbors' needs for quiet time at home.
10.5. APPEARANCE. Both the Lot and the Townhome must be maintained in a manner so as
not to be unsightly when viewed from the street or neighboring Lots. The Architectural.Reviewer will
determine what constitutes acceptable appearance standards.
10.6. DECLARANT PRIVILEGES. In connection with the development and marketing of the
Property, Declarant has reserved a number of rights and privileges to use the Property in ways that are not
available to other Owners and Residents, as provided in Appendix B of this Declaration. Declarant's
exercise of a Development Period right that appears to violate a Rule or a Use Restriction of this Article
does not constitute waiver or abandonment of the restriction by the Association.
10.7. DRAINAGE. Each Lot has a surface water drainage and grading pattern that relates to
the surface water drainage pattern for the entire Property. No person may interfere with the established
drainage pattern, systems and improvements over any part of the Property.
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10.8. SIDEWALKS & DRIVEWAYS. Sidewalks, driveways, and other passageways may not
be used for any purpose that interferes with their ongoing use as routes of vehicular or pedestrian access.
10.9. FIRE SAFETY. No person may use, misuse, cover, disconnect, tamper with, or modify
the fire and safety equipment of the Property, including fire hydrants, or interfere with the maintenance
andlor testing of same by persons authorized by the Association or by public officials.
10.10. LANDSCAPING. No person or party (other than the Association) may perform
landscaping, planting, or gardening anywhere upon the Property or any Lot.
10.11. LEASING OF TOWNHOMES. An Owner may lease his Townhome, but must do so
subject to the Governing Documents. Any lease must be for a minimum term of 12 months. An Owner is
responsible for providing his tenant with copies of the Governing Documents and notifying him of
changes thereto. The lease must provide that failure by the tenant or his invitees to comply with the
Governing Documents or applicable law is deemed to be a default under the lease. When the Association
notifies an Owner of his tenant's violation, the Owner will promptly obtain his tenant's compliance or
exercise his rights as a landlord for tenant's breach of lease. The Owner of a leased Townhome is liable to
the Association for any expenses incurred by the Association in connection with enforcement of the
Governing Documents against his tenant. The Association is not liable to the Owner for any damages,
including lost rents, suffered by the Owner in relation to the Association's enforcement of the Governing
Documents against the Owner's tenant.
NOT SOUNDPROOF
Although the Townhomes are constructed to reduce the
transmission of sound between adjoining Townhomes,
the Townhomes are not soundproofed. Some noise
transmission between adjoining Townhomes, is possible.
10.12. NOISE AND ODOR. A Resident must exercise reasonable care to avoid making or
permitting to be made loud, disturbing, or objectionable noises or noxious odors that are likely to disturb
or annoy Residents of neighboring Townhomes. The Rules may limit, discourage, or prohibit noise or
odor producing activities and items in the Townhomes and on the Area of Common Responsibility.
NOT ODOR-PROOF
Do what you can, such as using kitchen vent fans or opening windows,
to reduce odors generated by your cooking.
10.13. OCCUPANCY. The Board may adopt Rules regarding the occupancy of Townhomes. If
the Rules fail to establish occupancy standards, no more than 2 persons per bedroom may occupy a
Townhome, subject to the exception for familial status. The Association's occupancy standard for
Residents who qualify for familial status protection under the fair housing laws may not be more
restrictive than the minimum (i.e., the fewest people per Townhome) permitted by the U. S. Department
of Housing and Urban Development.
10.14. VEHICLES. This Section pertains to parking on streets and driveways. All vehicles on
the Property, whether owned or operated by the Residents or their families and guests, are subject to this
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Section, the Section on "Parking", below, and any Rules regulating the types, sizes, numbers, conditions,
uses, appearances, and locations of vehicles on the Property. Without prior written Board approval, the
following types of vehicles and vehicular equipment - mobile or otherwise - may not be kept, parked, or
stored anywhere on the Property: mobile homes, motor homes, buses, trailers, boats, snowmobiles,
trailers, aircraft, inoperable vehicles, commercial truck cabs, trucks with tonnage over one ton, vehicles
that are not customary personal passenger vehicles, and any vehicle that the Board deems to be a
nuisance, unsightly, or inappropriate. The Board may prohibit sales, storage, washing, repairs, or
restorations of vehicles on the Property. This restriction does not apply to vehicles and equipment
temporarily on the Property in connection with the construction or maintenance of a Townhome.
Vehicles that transport inflammatory or explosive cargo are prohibited from the Property at all times. No
vehicle may obstruct the flow of traffic, constitute a nuisance, or otherwise create a safety hazard on the
Property. The Association may cause the removal of any vehicle in violation of this Section, the Section
on "Parking", below, or the Rules without liability to the owner or operator of the vehicle. The owner or
operator of the vehicle will be responsible for any towing charges.
10.15. GARAGES. The original garage area of a Townhome may not be enclosed or used for
any purpose that would prevent the parking of operable vehicles therein. The automatic garage door
opener is to be maintained by the Owner. Garage doors are to be kept closed at all times except when a
vehicle is entering or leaving.
YOU SHOULD PARK YOUR VEHICLES IN YOUR GARAGE.
10.16. PARKrnG. Residents are expected to park their vehicles in their garages, and use their
driveways only for temporary overflow parking. The Association has the right to prohibit or limit parking
on streets, and may impose different rules on different streets in the Property, or along sections or sides of
streets, and may change the street parking rules from time to time in response to changing conditions,
neighborhood standards, Municipal Entity recommendations, aesthetics, or any combination of these.
Unless and until the Board adopts different rules for street parking, no vehicle may be parked on any
street in the Property. The Board may authorize such vehicles and items parked in violation of this
provision to be towed away and the owner of the vehicle or operator will be responsible for any towing
charges.
10.17. RESIDENTIAL USE. The use of a Lot "is limited exclusively to residential purposes or
any other use permitted by this Declaration. This residential restriction does not, however, prohibit a
Resident from using a Townhome for personal business or professional pursuits provided that: (1) the
uses are incidental to the use of the Townhome as a dwelling; (2) the uses conform to applicable
governmental ordinances; (3) there is no external evidence of the uses; (4) the uses do not entail visits to
the Townhome by employees or the public; and (5) the uses do not interfere with Residents' use and
enjoyment of neighboring Townhomes. Other than the completed Townhome itself, no thing or structure
on a Lot may be occupied as a residence at any time by any person. This provision applies, without
limitation, to the garage and campers.
10.18. SIGNS. No sign (other than a "For Sale" sign no larger than 24" high and 30" wide) or
unsightly object may be erected, placed, or permitted to remain on the Property or to be visible from
windows in the Townhome without the Board's prior written approval. The Board's approval may specify
the location, nature, appearance, dimensions, number, and time period of a sign or object. The
Association may effect the removal of any sign or object that violates this Section or which the Board
deems inconsistent with neighborhood standards without liability for trespass or any other liability
connected with the removal.
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10.19. SPECIFIC USES. Except for ingress and egress, the front yards, sidewalks, and
driveways on the Property may not be used for any purpose that has not been authorized in writing by the
Board.
10.20. STRUCTURAL INTEGRITY. No person may directly or indirectly impair the structural
soundness or integrity of a building or another Townhome (including by -making modifications to a "party
wall"), nor do any work that will impair an easement or real property right.
10.21. TELEVISION RECEPTION. Each Resident of the Property will avoid doing or
permitting anything to be done that may unreasonably interfere with the television, radio, telephonic,
electronic, microwave, cable, or satellite reception on the Property. To the extent not inconsistent with
Applicable Law, no person may install exterior television or other antennae, including satellite dishes,
without the prior written consent of the Architectural Reviewer. To the extent allowed under Applicable
Law and approved by the Architectural Reviewer, such approved antennae or dish is referred to as the
"AntennaelDish. "
10.21.1. Definitions. As used in this Section "AntennalDish Townhome" means the
Townhome served by a satellite dish or antenna, or the Townhome that is obviously intended to
be served by a satellite dish or antenna, regardless of whether the service is operational.
"AntennaIDish Owner" means the Owner of a Townhome served by a satellite dish or antenna,
regardless of whether the Owner purchases, uses, or has actual knowledge of the satellite dish or
antenna.
10.21.2. Owner Responsibility. The installation of an AntennalDish on the Area of
Common Responsibility automatically subjects the Antenna/Dish Townhome and its Owner to
this Section, regardless of who installs the AntennalDish and regardless of whether the
AntennaIDish Owner has actual notice of the installation. The AntennaIDish Owner is solely
responsible for (1) the cost of maintaining, repairing, replacing, and removing, as necessary, the
AntennalDish, and (2) the cost of repairing Common Areas and/or the Area of Common
Responsibility if such repairs are necessitated by the Antenna/Dish or its installation,
maintenance, repair, or replacement, irrespective of whether the repairs are undertaken by the
AntennalDish Owner or the Association. If required by the Association, the AntennalDish Owner
will remove the AntennalDish, as necessary, to permit the Association to maintain, repair, or
replace Common Areas or the Area of Common Responsibility as the Association, in its sole
discretion, deems necessary or desirable.
10.21.3. Association Controls. To the extent permitted by Applicable Law, the
Association may adopt and amend reasonable standards for the color, appearance, location,
method of installation, maintenance, camouflaging, screening, and use of AntennalDishes. The
location and installation of an Antenna/Dish on the Area of Common Responsibility must have
the prior written approval of the Association, unless the location and installation comply with the
most current standards that have been adopted and published by the Association. No party will
have the right to install an AntennaIDish on any portion of a building other than that party's own
Townhome.
10.21.4. Interference. An Antenna/Dish or the use of an AntennalDish may not
interfere with satellite or broadcast reception to other Townhomes or the Common Areas, or
otherwise be a nuisance to Residents of other Townhomes or to the Association. The Board of
Directors may determine what constitutes a nuisance to the Association.
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10.21.5. Risk. An AntennalDish on the Area of Common Responsibility exists at the
sole risk of the Owner and/or occupant of the AntennaIDish Townhome. The Association does
not insure the AntennaIDish and is not liable to the AntennalDish Owner or any other person for
any loss or damage to the AntennalDish from any cause. The AntennalDish Owner will defend
and indemnify the Association, its directors, officers, and Members, individually and collectively,
against losses due to any and all claims for damages or lawsuits, by anyone, arising from his
AntennalDish.
10.22. WINDOW TREATMENTS. All window treatments within the Townhome that are
visible from the street or another Townhome must be maintained in good condition and must not detract
from the appearance of the Property. The Architectural Reviewer may require an Owner to change or
remove a window treatment that the Architectural Reviewer determines to be inappropriate or
unattractive. The Architectural Reviewer may prohibit the use of certain colors or materials for window
treatments.
10.23. BALCONIES AND DECKS. An Owner or Resident may not leave any item on his deck
or balcony, except as follows: Potted plants, deck or patio furniture (but not a patio umbrella) on
balconies and decks on the front of a Townhome; and potted plants, deck or patio furniture (but not a
patio unabrella) and a grill on balconies and decks on the back (the garage side) of a Townhome. The
Board may adopt Rules further limiting or describing what may be placed on decks and balconies.
ARTICLE 11
ASSOCIATION OPERATIONS
11.1. THE ASSOCIATION. The duties and powers of the Association are those set forth in the
Governing Documents, together with the general and implied powers of a property owners association
and a nonprofit corporation organized under the laws of the State of Indiana. Generally, the Association
may do any and all things that are lawful and necessary, proper, or desirable in operating for the peace,
health, comfort, and general benefit of its Members, subject only to the limitations on the exercise of such
powers as stated in the Governing Documents.
EVERY OWNER OF A TRADITIONS ON THE MONON TOWNHOME
AUTOMATICALLY BECOMES A MEMBER OF THE
TRADITIONS ON THE MONON HOMEOWNERS ASSOCIATION.
11.2. BOARD. The Association will be governed by a Board of Directors elected by the
Members. Unless the Association's Bylaws or Articles of Incorporation provide otherwise, the Board will
consist of 5 persons elected at the annual meeting of the Association, or at a special meeting called for
that purpose. Unless the Governing Documents expressly reserve a right, action, or decision to the
Members/Owners, Declarant, or another party, the Board acts in all instances on behalf of the
Association. Unless the context indicates otherwise, references in the Governing Documents to the
"'Association" may be construed to mean "the Association acting through its Board of Directors. "
11.3. MEMBERSHIP. Each Owner is a Member of the Association, ownership of a Lot being
the sole qualification for membership. Membership is appurtenant to and may not be separated from
ownership of the Lot. The Board may require satisfactory evidence of transfer of ownership before a
purported Owner is entitled to vote at meetings of the Association. If a Lot is owned by more than one
person or entity, each co-owner is a Member of the Association and may exercise the membership rights
appurtenant to the Lot; provided, however, that all co-owners may exercise only 1 vote per Lot, which
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vote shall be exercised as such co-owners determine. A Member who sells his Lot under a land contract
may delegate his membership rights to the contract purchaser, provided a written assignment is delivered
to the Board. However, the contract seller remains liable for all Assessments attributable to his Lot until
fee title to the Lot is transferred.
11.4. MANAGEMENT COMPANY. The Board may delegate the performance of certain
functions to a manager or management company for the Association.
11.5. BOOKS AND RECORDS. The Association will maintain copies of the Governing
Documents and the Association's books, records, and financial statements. Books and records of the
Association will be made available for inspection and copying pursuant to the requirements of the Indiana
Nonprofit Corporation Act of 1991.
11.6. INDEMNIFICATION. The Association indemnifies every officer, director, and
committee member (for purposes of this Section, "Leaders") against expenses, including attorney's fees,
reasonably incurred by or imposed on the Leader in connection with any threatened or pending action,
suit, or proceeding to which the Leader is a party or respondent by reason of being or having been a
Leader. A Leader is not liable f<:lr a mistake of judgment. A Leader is liable ,only for his .willful
misfeasance, malfeasance, misconduct, or actions taken in bad faith. This right to indemnification does
not exclude or limit any other rights to which present or former Leaders may be entitled as a matter of
law. As a Common Expense, the Association may maintain general liability and directors and officers
liability insurance to fund this obligation.
11.7. OBLIGATIONS OF OWNERS. Without limiting the obligations of Owners under the
Governing Documents, each Owner has the following obligations:
11.7.1. Information. Within 30 days aft~r acquiring an interest in a Lot, within 30 days
after the Owner has notice of a change in any information required by this Subsection (such as a
change in Residents), and on request by the Association from time to time, an Owner will provide
the Association with the following information: (1) a copy of the recorded deed by which Owner
has title to the Lot; (2) the Owner's address, phone number, and driver's license number, if any;
(3) any Mortgagee's name, address, and loan number; (4) the name and phone number of any
Resident other than the Owner; and (5) the name, address, and phone number of Owner's
managing agent, if any.
11.7.2. Pay Assessments. Each Owner will pay Assessments properly levied by the
Association against the Owner or his Lot, and will pay Regular Assessments without demand by
the Association.
11.7.3. Comply. Each Owner will comply with the Governing Documents as amended
from time to time.
11.7.4. Reimburse. Each Owner will pay for damage to the Property caused by the
negligence or willful misconduct of the Owner, a Resident of the Owner's Lot, or the Owner or
Resident's family, guests, employees, contractors, agents, or invitees.
11.7.5. Liability. Each Owner is liable to the Association for violations of the Governing
Documents by the Owner, a Resident of the Owner's Lot, or the Owner or Resident's family,
guests, employees, agents, or invitees, and for costs incurred by the Association to obtain
compliance, including attorney's fees whether or not suit is filed.
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ARTICLE 12
ENFORCING THE GOVERNING DOCUMENTS
12.1. ENFORCEMENT. If an Owner violates the Governing Documents or damages the
Property, the Association may exercise all rights and remedies available under the Governing Documents
and Applicable Law.
12.2. REMEDIES. The remedies provided in this Article for breach of the Governing
Documents are cumulative and not exclusive. In addition to other rights and remedies provided by the
Governing Documents and by law, the Association has the following rights to enforce the Governing
Documents:
12.2.1. Nuisance. If an act or omission that violates any provision of the Governing
Documents is a nuisance, any remedy allowed by law against a nuisance is applicable against the
violation.
12.2.2. Fine. The Association may levy reasonable charges, as an Individual
Assessment, against an Owner and his Lot if the Owner or Resident, or the Owner or Resident's
family, guests, employees, agents, or contractors violate a provision of the Governing
Documents. Fines may be levied for each act of violation or for each day a violation continues.
The fact that Owner pays a fine for a violation does not give the Owner the right to continue the
violation. Payment of a fine does not constitute a waiver or discharge of the Owner's obligations
under the Governing Documents.
12.2.3. Suspension. For any period during which the Owner or Resident, or the Owner
or Resident's family, guests, employees, agents, or contractors violate the Governing Documents,
the Association may suspend the right of Owners and Residents (i) to use Common Areas (except
rights of ingress and egress); and (ii) to vote on matters presented to the Owners. A suspension
does not constitute a waiver or discharge of the Owner's obligations under the Governing
Documents.
12.2.4. Self-Help. In certain limited circumstances, as limited by Applicable Law, the
Association may have the right to enter onto a Lot, but not inside a Townhome, to abate or
remove, any sign, structure, vehicle or condition that violates the Documents. Prior to exercising
such right, the Board will give the violating Owner 5 days' notice of its its intent to exercise self-
help. In exercising this right, the Board is not trespassing and is not liable for damages relating to
its actions, provide it acts reasonably. The Board may levy its costs of abatement against the Lot
and Owner as an Individual Assessment.
12.2.5. Suit. Failure to comply with the Governing Documents will be grounds for an
action to recover damages or for injunctive relief to cause any such violation to be remedied, or
bo~h. Prior to commencing any legal proceeding, the Association will give the defaulting party
reasonable notice and an opportunity to cure the violation.
12.3. BOARD DISCRETION. The Board may use its sole discretion in determining whether
to pursue a violation of the Governing Documents, provided the Board does not act in an arbitrary or
capricious manner. In evaluating a particular violation, the Board may determine that under the particular
circumstances (1) the Association's position is not sufficiently strong to justify taking any or further
action; (2) the provision being enforced is or may be construed as inconsistent with applicable law;
(3) although a technical violation may exist, it is not of such a material nature as to be objectionable to a
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reasonable person or to justify expending the Association's resources; or (4) that enforcement is not in the
Association's best interests, based on hardship, expense, or other reasonable criteria.
STATE LAW APPLIES
to many of the Association's enforcement rights and remedies.
12.4. NO WAIVER. The Association and every Owner has the right to enforce all restrictions,
conditions, covenants, liens, and charges now or hereafter imposed by the Governing Documents. Failure
by the Association or by any Owner to enforce a provision of the Governing Documents is not a waiver of
the right to do so thereafter. If the Association does waive the right to enforce a provision, that waiver
does not impair the Association's right to enforce any other part of the Governing Documents at any
fu~re time. No officer, director, or Member of the Association is liable to any Owner for the failure to
enforce any of the Governing Documents at any time.
12.5. RECOVERY OF COSTS. The costs of curing or abating a violation are the expense of
the Owner or other person responsible for the violation. If legal assistance is obtained to enforce any
provision of the Governing Documents, or in any legal proceeding (whether or not suit is brought) for
damages or for the enforcement of the Governing Documents or the restraint of violations of the
Governing Documents, the prevailing party is entitled to recover from the non-prevailing party all
reasonable arid necessary costs incurred by it in such action, including reasonable attorneys' fees.
ARTICLE 13
INSURANCE
13.1. GENERAL PROVISIONS. The broad purpose of this Article is to require that the
Property be insured with the types and amounts of coverage that are customary for similar types of
properties and that are acceptable to mortgage lenders, guarantors, or insurers that finance the purchase or
improvement of Townhomes. Because the insurance requirements of mortgage underwriters are subject to
change, as are State-promulgated insurance regulations and policies, this Article tries to balance the need
for certain minimum insurance requirements with the desire to adapt to a periodically changing insurance
environment. The Board will make every reasonable effort to comply with the requirements of this
Article. The Association, and its directors, officers, and managers, will not be liable for failure to obtain
any coverage required by this Article or for any loss or damage resulting from such failure if the failure is
due to the unavailability of a particular coverage from reputable insurance companies, or if the coverage
is available only at a demonstrably unreasonable cost. The cost of insurance coverage and bonds
maintained by the Association is a Common Expense.
13.1.1. Requirements Applicable to All Coverage. Insurance policies and bonds
obtained and maintained by the Association must be issued by responsible insurance companies
authorized to do business in the State of Indiana. Th~ Association must be the named insured on
all policies obtained by the Association. The loss payee clause should show the Association as
trustee for each Owner and Mortgagee. Policies of property and general liability insurance
maintained by the Association must provide that the insurer waives its rights to subrogation under
the policy against an Owner. The Association's insurance policies should provide that such
policies will not be prejudiced by the act or omission of any Owner or Resident who is not under
the Association's control.
13.1.2. Association as Trustee. Each Owner hereby irrevocably appoints the
Association, acting through its Board, as trustee to deal with the Property in the event of damage,
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destruction, obsolescence, condemnation, or termination of all or any part of the Property. As
trustee, the Association will have full and complete authority, right, and power to do all things
reasonable and necessary to effect the provisions of this Declaration, including, without
limitation, the right to receive, administer, and distribute funds, awards, and insurance proceeds;
and to make, execute, and deliver any contract, deed, or other instrument with resp'ect to the
interest of an Owner.
13.1.3. Notice of Cancellation or Modification. Each insurance policy maintained by the
Association should contain a provision requiring the insurer to give prior written notice to the
Board before the policy may be canceled, terminated, materially modified, or allowed to expire,
by either the insurer or the insured. The Board will give to Eligible Mortgagees, and the insurer
':ViII give to Mortgagees, prior notices of cancellation, termination, expiration, or material
modification.
13.1.4. Deductibles. An insurance policy obtained by the Association may contain a
reasonable deductible, and the amount thereof may not be subtracted from the face amount of the
policy in determining whether the policy limits satisfy the coverage limits required by this
Declaration or an Underwriting Lender. In the event of an insured loss, the deductible is treated
as a Common Expense of the Association in the same manner as the insurance premium.
However, if the Board reasonably determines that the loss is the result of the negligence or willful
misconduct of an Owner or Resident or their invitee, then the Board may levy an Individual
Assessment against the Owner and his Townhome for the amount of the deductible that is
attributable to the act or omission.
13.2. PROPERTY INSURANCE. The Association will obtain blanket all-risk insurance, if
reasonably available, for all improvements insurable by the Association. If blanket all-risk insurance is
not reasonably available, then at a minimum, the Association will obtain an insurance policy providing
fire and extended coverage. This insurance must be in an amount sufficient to cover 100% of the
replacement cost of any repair or reconstruction in event of damage or destruction from any insured
hazard.
13.2.1. Common Property Insured. The Association will insure Common Areas and
property owned by the Association, including any records, furniture, flXtures, equipment, and
supplies.
13.2.2. Townhomes Insured by Association. In addition to insuring the Common Areas
against casualty loss, the Association will maintain property insurance on the Townhomes as
originally constructed. The Association may insure betterments and improvements installed by
current or previous Owners. In insuring Townhomes, the Association may be guided by types of
policies customarily available for similar types of properties.
13.2.3. Endorsements. To the extent reasonably available, the Association will obtain
endorsements to its property insurance policy required by an Underwriting Lender.
13.3. LIABILITY INSURANCE. The Association will maintain a commercial general liability
insurance policy over the Common Areas - expressly excluding the liability of each Owner and Resident
within his Townhome - for bodily injury and property damage resulting from the operation, maintenance,
or use of the Common Area. To the extent reasonably available, the amount of coverage should be at
least that required by an Underwriting Lender. The purpose of this requirement is, in part, to assure
mortgage companies that the Association maintains at least minimum levels of insurance coverage. The
policy should contain a "severability of interest" provision. If that is not available, the policy should
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contain an endorsement to preclude the insurer's denial of an Owner's claim because of negligent acts of
the Association or other Owners.
13.4. WORKER'S COMPENSATION. The Association may maintain worker's compensation
insurance if and to the extent necessary to meet the requirements of State law or if the Board so chooses.
13.5. FIDELITY COVERAGE. The Association may maintain blanket fidelity coverage for
any person who handles or is responsible for funds held or administered by the Association, whether or
not the person is paid for his services. The policy should be for an amount that exceeds the greater of
(1) the estimated maximum funds, including reserve funds, that will be in the Association's custody at any
time the policy is in force; or (2) an amount equal to 3 months of Regular Assessments on all Lots. A
management agent that handles Association funds should provide evidence of carrying its own fidelity
insurance policy, with the same level of coverage.
13.6. DIRECTORS AND OFFICERS LIABILITY. The Association may maintain directors
and officers liability insurance, errors and omissions insurance, indemnity bonds, or other insurance the
Board deems advisable to insure the Association's directors, officers, committee members, and managers
against liability for an act or omission in carrying out their duties in those capacities.
13.7. OTHER POLICIES. The Association may maintain any insurance policies and bonds
deemed by the Board to be necessary or desirable for the benefit of the Association.
13.8. OWNER'S RESPONSIBILITY FOR INSURANCE.
13.8.1. Insurance by Owners. Notwithstanding the foregoing, the Board may establish
minimum insurance requirements, including types and minimum amounts of coverage, to be
individually obtained and maintained by Owners if the insurance is deemed necessary or
desirable by the Board to reduce potential risks to the Association or other Owners. If an Owner
fails to maintain required insurance, the Board may obtain it on behalf of the Owner who will be
obligated for the cost as an Individual Assessment.
13.8.2. Owners' Responsibilities. On request, an Owner will g~ve the Board written
notification of any and all structural changes, additions, betterments, or improvements to his
Townhome, and any other information the Board may require to maintain adequate levels of
insurance coverage. Each Owner will comply with reasonable requests by the Board for periodic
inspection of the Townhome for purposes of insurance appraisal. Each Owner, at his expense,
will maintain any insurance coverages required of Owners by the Association pursuant to this
Article. Each Owner, at his expense, must obtain additional insurance coverage of his real
property, improvements, and betterments thereto, or personal property. .
13.8.3. Association Does Not Insure. The Association does not insure an Owner or
Resident's personal property. Each Owner and Resident is solely responsible for insuring his
personal property in his Townhome and on the Property, including furnishings, vehicles, and
stored items.
The Association strongly recommends that each Owner and Resident
purchase and maintain insurance on his personal belongings.
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ARTICLE 14
RECONSTRUCTION OR REPAIR AFTER LOSS
14.1. GENERAL. Any insured portion of the Townhomes that is damaged or destroyed will be
promptly repaired or replaced by the Association unless repair or replacement would be illegal under any
State or local health or safety statute or ordinance, or if Owners of at least 800/0 of the Lots, including each
Owner of a Lot that will not be rebuilt or repaired, vote to not rebuild. A vote to not rebuild should not
change an insurer's loss payment obligation under a policy, and the vote does not cause a presumption of
total loss. Except in specific circumstances set out in this Declaration, the cost of repair or replacement in
excess of the insurance proceeds and reserves is a Common Expense. If some but not all of the damaged
Townhomes are not repaired or replaced, the insurance proceeds attributable to Townhomes that are not
rebuilt will be distributed to the Owners of those Townhomes or to their Mortgagees, as their interests
may appear.
14.2. RESTORATION FUNDS. For purposes of this Article, "Restoration Funds" include
insurance proceeds, condemnation awards, Restoration Assessments, Individual Assessments, and other
funds received on account of or arising out of injury or damage to the Property. All funds paid to the
Association for purposes of repair or restoration will be deposited in a federally-insured account.
Withdrawal of Restoration Funds requires the signatures of at least 2 Association directors or that of an
agent duly authorized by the Board.
14.2.1. Sufficient Proceeds. If Restoration Funds obtained from insurance proceeds or
condemnation awards are sufficient to repair or restore the damaged or destroyed property, the
Association, as trustee for the Owners, will promptly apply the funds to the repair or restoration.
14.2.2. Insufficient Proceeds. If Restoration Funds are not sufficient to pay the
estimated or actual costs of restoration as determined by the Board, th,e Board will apply the
funds available to the repair or restoration and may levy a Restoration Assessment against certain
or all of the Owners; as appropriate, to fund the difference.
14.2.3. Loss Not Covered. Even if the Association and the Owner have adequate
amounts of recommended and required coverage, the Property may experience a loss that is not
covered by any insurance. (In this context, "not covered by any insurance" is not referring to the
portion of a loss that is not covered due to the operation of a deductible under the insurance
policy.) If that occurs, the cost of restoring the Common Areas will be share by Owners as a
Common Expense. The cost of restoring individual Townhomes will be borne by the Owners of
the affected Townhomes.
14.2.4. Surplus Funds. If the Association has a surplus of Restoration Funds after
payment of all costs of repair and restoration, the surplus will be applied as follows. If
Restoration Assessments were a source of Restoration Funds, the surplus will be paid to Owners
in proportion to their contributions resulting from the Restoration Assessment levied against
them. However, no Owner may receive a sum greater than that actually contributed by him, and
any delinquent Assessments owed by the Owner to the Association will first be deducted from the
surplus. Any surplus remaining after the disbursement described in this paragraph will be
common funds of the Association to be used as directed by the Board.
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14.3. COSTS AND PLANS.
14.3.1. Cost Estimates. Promptly after the loss, the Board will obtain reliable and
detailed estimates of the cost of restoring the damaged Property. Costs may include premiums for
bonds and fees for the services of professionals, as the Board deems necessary, to assist in
estimating and supervising the repair.
14.3.2. Plans and Specifications. Common Areas will be repaired and restored
substantially as they existed immediately prior to the damage or destruction. Townhomes will be
repaired and restored substantially in accordance with original construction plans and
specifications, unless the Association insures betterments and improvements made by Owners, in
which case the Townhomes will be repaired and restored substantially as they existed
immediately prior to the damage or destruction. Alternate plans and specifications for repair and
restoration of either Common Areas or Townhomes must be approved by the Architectural
Reviewer, by the Owners of at least 2/3 of the Lots and by certain Mortgagees if so required by
the "Mortgagee Protection" article of this Declaration.
14.4. DUTY TO REPAIR.
14.4.1. Damage to Common Area. After a casualty or condemnation affecting the
Common Area, the Association is responsible for restoring the Common Areas to its original
condition, with the cost being borne by the Owners as a Common Expense.
14.4.2. Damage to a Townhome. After a casualty or condemnation to a Townhome, the
Owner of a damaged Townhome is responsible for repairing or restoring his Townhome to its
original condition. The Owner may be required to do so either with proceeds of the Association's
insurance coverage or at his own expense, as set forth elsewhere in this Article. The Association
has the right to supervise, approve, or disapprove the repair or restoration performed by an Owner
during the course thereof.
14.4.3. Association's Right to Coordinate Work. If the work of restoring a Townhome is
of such a nature that it requires the cooperation of more than one Owner (for example, because of
work to be performed to a Party Wall or to a roof structure) or if the Association otherwise deems
it in the best interest of the Property, the Association, at its option, may notify Owner that the
Association will coordinate the restoration work for the affected Townhome, in which case the
Owner will no longer have the right to perform the work. In assuming the coordination role for
the work, the Association may provide that it will coordinate only joint elements of the
construction (elements affecting more than one unit), only exterior elements or any other
reasonably divisible part of the work, leaving the remainder of the work to be coordinated and
performed by the Owner. In any.case, the cost of the repair or restoration will be borne and
allocated as set forth elsewhere in this Article.
14.4.4. Failure to Repair. If an Owner fails to repair or restore damage as required by
this Section, the Association may cause the necessary repairs to be made and levy an Individual
Assessment against the Owner and Lot for the cost thereof, after giving the Owner reasonable
notice of the Association's intent to do so.
14.4.5. Diligence in Performing Work. Regardless of who performs the repair or
. restoration work, the work must commence within a reasonable time (less than 30 days) after
receipt of notice from the Association that the work must commence. (Generally speaking, this
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notice will not be given until the insurance company for the loss is prepared to payout the
proceeds.) The work must then be completed with reasonable diligence.
14.5. OWNER'S LIABILITY FOR INSURANCE DEDUCTIBLE. If repair or restoration ofa
Townhome is required as a result of an insured loss, the Board may levy an Individual Assessment, in the
amount of the insurance deductible, against the Owner or Owners who would be responsible for the cost
of the repair or reconstruction in the absence of insurance.
ARTICLE 15
CONDEMNATION
15.1. CONDEMNATION. If any Townhome, Lot or portion thereof or any of the Common
Area is made the subject of a condemnation or eminent domain proceeding or is otherwise sought to be
acquired by a condemning authority, then the Association will give timely written notice of such
proceeding or proposed acquisition to the affected Owners and Eligible Mortgagees. The Association
will represent the Owners in any condemnation proceeding or any negotiation settlements or agreements
with the condemning authority for acquisition of the Common Area or any part thereof. The
condemnation award or proceeds of settlement will be payable to the Association to be held in trust for
the Owners and Mortgagees as their interests may appear. The provisions of the Declaration relating to
restoration and application of funds in the event of a casualty will be applicable in the event of a
condemnation.
ARTICLE 16
MORTGAGEE PROTECTION
16.1. INTRODUCTION. This Article is supplemental to, not a substitution for, any other
provision of the Governing Documents. In case of conflict, this Article controls. Some sections of this
Article apply to "Mortgagees" and "Eligible Mortgages", both as defined in Article 1.
16.2. AMENDMENT TO SATISFY REOUIREMENTS OF UNDERWRITING LENDERS.
This Article establishes certain standards for the benefit of Underwriting Lenders, and is written to
comply with their requirements and guidelines in effect at the time of drafting. If an Underwriting Lender
subsequently changes its requirements, the Board, without seeking approval of Owners or Mortgagees,
may amend this Article and other provisions of the Governing Documents, as necessary, to meet the
requirements of the Underwriting Lender.
16.3. NOTICE REGARDING EXISTENCE OF MORTGAGEE. An Owner who mortgages
his Lot should notify the Association, giving the complete name and address of his Mortgagee and the
loan number. A Mortgagee may also provide such information directly to the Association. In either case,
the Mortgagee will become an Eligible Mortgagee. The Association will treat the notice as the Eligible
Mortgagee's request to be notified of any proposed action requiring the consent of Eligible Mortgagees.
The Association's obligations to Mortgagees under the Governing Documents extend only to Eligible
Mortgagees. All actions and approvals required by Mortgagees will be conclusively satisfied by the
Eligible Mortgagees, without regard to other holders of mortgages on Lots not known to the Association.
A provision of the Governing Documents requiring the approval of a specified percentage of Eligible
Mortgagees will be based on the number of Lots subject to mortgages held by Eligible Mortgagees. For
example, "51 % of Eligible Mortgagees" means Eligible Mortgagees of 51 % of the Lots that are subject to
mortgages held by Eligible Mortgagees.
16.4. Th1PLIED APPROVAL. The approval of an Eligible Mortgagee is implied when the
Eligible Mortgagee fails to respond within 30 days after receiving the Association's written request for
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approval of a proposed amendment, provided the Association's request is delivered by certified or
registered mail, return receipt requested.
16.5. OTHER MORTGAGEE RIGHTS.
16.4.1. Inspection of Books. The Association will maintain current copies of the
Governing Documents and the Association's books, records, and financial statements.
Mortgagees may inspect the Governing Documents and records, by appointment, during normal
business hours.
16.4.2. Financial Statements. If the Property consists of 50 Lots or more, and if a
Eligible Mortgagee submits a written request, the Association will give the Mortgagee a reviewed
or audited statement for the preceding fiscal year within 120 days after the Association's fiscal
year-end. A Mortgagee may have an audited statement prepared at its own expense.
16.4.3. Attendance at Meetings. A representative of an Eligible Mortgagee may attend
and address any meeting that an Owner may attend.
16.4.4. Management Contract. Any contract for professional management of the
Association may not require more than 30 days' notice to terminate the contract, nor payment of a
termination penalty.
16.6. INSURANCE POLICIES. If an Underwriting Lender that holds a mortgage on a Lot or
desires to finance a Lot has requirements for insurance of planned unit developments, the Association
must try to obtain and maintain the required coverages, to the extent they' are reasonably available, and
must try to comply with any notifications or processes required by the Underwriting Lender.
16.7. NOTICE OF ACTIONS. The Association will use its best .efforts to send timely written
notice to Eligible Mortgagees of the following actions:
a. Any condemnation or casualty loss that affects a material portion of the Property
or the mortgaged Townhome.
b. Any 60-day delinquency in the payment of Assessments or charges owed by the
Owner of the mortgaged Townhome.
c. A lapse, cancellation, expiration or material modification of any insurance policy
maintained by the Association.
d. Any proposed action that requires the consent of a specified percentage of
Eligible Mortgagees.
e. Any proposed amendment of a material nature, as provided in this Article.
ARTICLE 17
AMENDMENTS
17.1. CONSENTS REQUIRED. As perrrlitted by this Declaration, certain amendments of this
Declaration may be executed by Declarant alone, or by certain Owners alone, or by the Board alone.
Otherwise, amendments to this Declaration must be approved by Owners of at least 2/3 of the Lots.
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17.2. METHOD OF AMENDMENT. This Declaration may be amended by any method
selected by the Board from time to time, pursuant to the Bylaws, provided the method gives an Owner of
each Lot the substance, if not exact wording, of the proposed amendment, a description in layman's terms
of the effect of the proposed amendment, and an opportunity to vote for or against the proposed
amendment.
17.3. EFFECTIVE. To be effective, an amendment must be in the form ofa written instrument
(1) referencing the name of the Property, the name of the Association, and the recording data of this
Declaration and its prior amendments; (2) signed and acknowledged by an officer of the Association,
certifying the requisite approval of Owners; and (3) recorded in the Office of the Recorder of Hamilton
County, Indiana.
17.4. DECLARANT PROVISIONS. No amendment may affect Declarant's rights under this
Declaration without Declarant's written and acknowledged consent, which must be part of the recorded
amendment instrument. This Section may not be amended without Declarant's written and acknowledged
consent.
ARTICLE 18
DISPUTE RESOLUTION
18.1. INTRODUCTION AND DEFINITIONS. The Association, the Owners, Declarant, all
persons subject to this Declaration, and any person not otherwise subject to this Declaration who agrees to
submit to this Article (collectively, the "Parties") agree to encourage the amicable resolution of disputes
involving the Property and to avoid the emotional and financial costs of litigation if at all possible.
Accordingly, each Party hereby covenants and agrees that this Article applies to all claims as hereafter
defined. As used in this Article only, the following words, when capitalized, have the following specified
meanIngs:
18.1.1 "Claim" means any claim, grievance, or dispute between Parties involving the
Property, except Exempt Claims (as defined below). "Claims" include, without limitation:
a. Claims arising out of or relating to the interpretation, application, or
enforcement of the Governing Documents.
b. Claims relating to the rights and/or duties of Declarant as Declarant
under the Governing Documents.
c. Claims relating to the design, construction, or maintenance of the
Property .
18.1.2 "Claimant" means any Party having a Claim against any other Party.
18.1.3 "Exempt Claims" means the following claims or actions, which are exempt from
this Article (unless the Party having the Exempt Claim elects not to treat it as exempt from this
Article ):
a. The Association's claim for Assessments, and any action by the
Association to collect Assessments.
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b. An action by a Party to obtain a temporary restraining order or equivalent
emergency equitable relief to maintain the status quo and preserve the
Party's ability to enforce the provisions of this Declaration.
c. Enforcement of the easements, architectural control, maintenance, and
use restrictions of this Declaration.
d. A suit to which an applicable statute of limitations would expire within
the notice period of this Article, unless a Party against whom the Claim
is made agrees to toll the statute of limitations as to the Claim for the
period reasonably necessary to comply with this Article.
e. A dispute, that is subject to alternate dispute resolution - such as
mediation or arbitration - by the terms of Applicable Law or another
instrument, such as a contract or warranty agreement, in which case the
dispute is exempt from this Article, unless the Parties agree to have the
dispute governed by this Article.,
18.1.4 "Respondent" means the Party against whom the Claimant has a Claim.
18.2. MANDATORY PROCEDURES. Claimant may not file suit in any court or initiate any
proceeding before any administrative tribunal seeking redress or resolution of its Claim until Claimant has
complied with the procedures of this Article.
18.3. NOTICE. Claimant must notify Respondent in writing of the Claim (the "Claim
Notice"), stating plainly and concisely: (1) the nature of the Claim, including date, time, location, persons
involved, and Respondent's role in the Claim; (2) the basis of the Claim (i.e., the provision of the
Governing Documents or other authority out of which the Claim arises); (3) what Claimant wants
Respondent to do or not do to resolve the Claim; and (4) that the Claim Notice is given pursuant to this
Section.
18.4. NEGOTIATION. Claimant and Respondent will make every reasonable effort to meet in
person to resolve the Claim by good faith negotiation. Within 30 days after Respondent's receipt of the
Claim Notice, Respondent and Claimant will meet at a mutually-ac~eptable place and time to discuss the
Claim. At such meeting or at some other mutually-agreeable time, Respondent and Respondent's
representatives will have full access to the property that is subject to the Claim for the purposes of
inspecting the property. If Respondent elects to take corrective action, Claimant will provide Respondent
and Respondent's representatives and agents with full access to the property to take and complete
corrective action.
18.5. MEDIATION. If the parties negotiate but do not resolve the Claim through negotiation
within 60 days from the date of the Claim Notice (or within such other period as may be agreed on by the
parties), Claimant will have 30 additional days within which to submit the Claim to mediation under the
auspices of a mediation center or individual mediator on which the parties mutually agree. The mediator
must have at least 5 years of experience serving as a mediator and must have technical knowledge or
expertise appropriate to the subject matter of the Claim. If Claimant does not submit the Claim to
mediation within the 3D-day period, Claimant is deemed to have waived the Claim, and Respondent is
released and discharged from any and all liability to Claimant on account of the Claim.
18.6. TERMINATION OF MEDIATION. If the Parties do not settle the Claim within 30 days
after submission to mediation, or within a time deemed reasonable by the mediator, the mediator will
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issue a notice of termination of the mediation proceedings indicating that the Parties are at an impasse and
the date that mediation was terminated. Thereafter, Claimant may file suit or initiate administrative
proceedings on the Claim, as appropria~e.
18.7. ALLOCATION OF COSTS. Except as otherwise provided in this Section, each Party
bears all of its own costs incurred prior to and during the proceedings described in the Claim Notice,
Negotiation, and Mediation sections above, including its attorneys fees. Respondent and Claimant will
equally divide all expenses and fees charged by the mediator.
18.8. ENFORCEMENT OF RESOLUTION. Any settlement of the Claim through negotiation
or mediation will be documented in writing and signed by the Parties. If any Party thereafter fails to
abide by the terms of the agreement, then the other Party may file suit or initiate administrative
proceedings to enforce the agreement without the need to again comply with the procedures set forth in
this Article. In that event, the Party taking action to enforce the agreement is entitled to recover from the
non-complying Party all costs incurred in enforcing the agreement, including, without limitation,
attorneys fees and court costs.
18.9. GENERAL PROVISIONS. A release or discharge of Respondent from liability to
Claimant on account of the Claim does not release Respondent from liability to persons who are not party
to Claimant's Claim.
18.10. LITIGATION APPROVAL AND SETTLEMENT. In addition to and notwithstanding
the above alternate dispute resolution procedures, the Association may not initiate any judicial or
administrative proceeding without the prior approval of Owners of at least 75% of the Lots, except that no
such approval is required (1) to enforce provisions of this Declaration, including collection of
assessments; (2) to challenge condemnation proceedings; (3) to enforce a contract against a contractor,
vendor, or supplier of goods or services to the Association; (4) to defend claims filed against the
Association or to assert counterclaims in a proceedings instituted against the Association; or (5) to obtain
a temporary restraining order or equivalent emergency equitable relief when circumstances do not provide
sufficient time to obtain the prior consents of Owners in order to preserve the status quo. Also, the
Association may not initiate any judicial or administrative proceeding against Declarant without the
approval of Owners of at least 75% of the Lots. The Board, on behalf of the Association and without the
consent .of Owners, is hereby authorized to negotiate settlement of litigation, and may execute any
document related thereto, such as settlement agreements and waiver or release of claims. This Section
may not be amended without the approval of Owners of at least 75% of the Lots and 51 % of Eligible
Mortgagees, as described in Article 16 above.
ARTICLE 19
GENERAL PROVISIONS
19.1. COMPLIANCE WITH LAWS. The Owners hereby covenant and agree that the
administration of the Association will be in accordance with the provisions of the Governing Documents
and applicable laws, regulations, and ordinances, as same may be amended from time to time, of any
governmental or quasi-governmental entity having jurisdiction over the Association or Property.
19.2. HIGHER AUTHORITY. The Governing Documents are subordinate to Applicable Law.
Generally, the terms of the Governing Documents are enforceable to the extent they do not violate or
conflict with Applicable Law.
19.3. NOTICE. All demands or other notices required to be sent to an Owner or Resident by
the terms of this Declaration will be sent by ordinary or certified mail, postage prepaid, to the party's last
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS
TRADITIONS ON THE MONON
64701.1
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APPENDIX B
DECLARANT RESERVATIONS
B.1. GENERAL PROVISIONS.
B.1.1 Introduction. Declarant intends the Declaration to be perpetual and understands
that provisions pertaining to the initial development, construction, marketing, and control of the
Property will become obsolete when Declarant's role is complete. As a courtesy to future users of
the Declaration, who may be frustrated by then-obsolete terms, Declarant is compiling the
Declarant-related provisions in this Appendix.
B.1.2 General Reservation and Construction. Notwithstanding other provisions of the
Governing Documents to the contrary, nothing contained therein may be construed to, nor may
any Mortgagee, other Owner, or the Association, prevent or interfere with the rights contained in
this Appendix that Declarant hereby reserves exclusively unto itself and its successors and
assigns. In case of conflict between this Appendix and any other Document, this Appendix
controls. This Appendix may not be amended without the prior written consent of Declarant.
The terms and provisions of this Appendix must be construed liberally to give effect to
Declarant's intent to protect Declarant's interests in the Property.
B.1.3 Purpose of Development and Declarant Control Periods. This Appendix gives
Declarant certain rights during the Development Period and the Declarant Control Period to
ensure a complete and orderly buildout and sellout of the Property, which is ultimately for the
benefit and protection of Owners and Mortgagees. Declarant may not use its control of the
Association and the Property for an advantage over the Owners by way of retention of any
residual rights or interests in the Association or through the creation of any contractual
agreements that the Association may not terminate without cause with not more than 90 days'
notice.
B.2. DECLARANT CONTROL PERIOD RESERVATIONS. For the benefit and protection
of Owners and Mortgagees, and for the purpose of ensuring a complete and orderly buildout and sellout
of the Property, Declarant will retain control of the Association during the Declarant Control Period,
subject to the following:
B.2.1 Initial Board: Transition to Owners. During the Declarant Control Period, the
Board will consist of 3 persons. Within 60 days after the date 50% of the Lots in the Property or
the Additional Land have been conveyed to Owners other than Declarant, the Board will call or
hold an annual or special meeting of the Members. At that meeting, the Members must elect 2
additional directors. From and after that election, the Board will consist of 5 directors. Near the
end of the Declarant Control Period, Declarant or the Association will give written notice of an
annual or special meeting of the Members to an Owner of each Lot at least 10 days before the
meeting. For that meeting, Owners of 10% of the Lots constitute a quorum. At that meeting, the
terms of all 5 directors expire, and the Members must ~lect 5 directors. These directors will be
elected for staggered 3-year terms. The Board elected at the organizational meeting will elect the
officers of the Association not later than 30 days after the end of the Declarant Control Period.
B.2.2 Officers and Directors. During the Declarant Control Period, Declarant may
appoint, remove, and replace any officer or director of the Association, none of whom need be
Members or Owners. Each of the individuals is indemnified by the Association, under
Section 11.6, as a "Leader."
APPENDIX B TO DECLARATION OF TRADITIONS ON THE MONON
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B.2.3 W eighted Votes. During the Declarant Control Period, the vote appurtenant to
each Lot owned by Declarant is weighted 4 times that of the vote appurtenant to a Lot owned by
another Owner. In other words, during the Declarant Control Period, Declarant may cast the
equivalent of 4 votes for each Lot owned by Declarant on any issue before the Association. On
termination of the Declarant Control Period and thereafter, the vote appurtenant to Declarant's
Lots is weighted uniformly with all other votes.
B.Z.4 Obligation for Assessments. For each Lot owned by Declarant, Declarant is
liable for Special Assessments, Individual Assessments, and Restoration Assessments in the same
manner as any Owner. Regarding Regular Assessments, during the Declarant Control Period
only, Declarant will provide any funds necessary to cover the difference between the
Association's actual cash outlays for Common Expenses and the Regular Assessments received
from Owners other than Declarant, and has no obligation to pay Regular Assessments to
contribute to reserves. The accounting for Declarant's contribution must be construed in favor of
Declarant. At any time during the Declarant Control Period, Declarant may elect in writing -
signed and acknowledged by Declarant - to pay Regular Assessments on each Declarant owned
Lot in the same manner as any Owner, in which event Declarant will no longer have an obligation
to provide special funding for the Association. On termination of the Declarant Control Period,
Declarant must begin paying Assessments on each Declarant-owned Lot according to the Lot's
allocated interest for Assessments.
B.2.5 Expenses of Declarant. Expenses related to the completion and marketing of the
Property will be paid by Declarant and are not expenses of the Association.
B.2.6 Budget Control. During the Declarant Control Period, the right of Owners to
veto Special Assessments or increases in Regular Assessments is not effective and may not be
exercised.
B.2.7 Management Contract. If Declarant enters into a professional management
contract on behalf of the Association during the Declarant Control Period, the Association has the
right to terminate the contract without cause or penalty, but with at least 90 days notice to the
manager, at any time after a Board elected by the Owners takes office.
B.3. DEVELOPMENT PERIOD RESERVATIONS. Declarant reserves the following
easements and special Declarant rights, exercisable at Declarant's sole discretion, at any time during the
Development Period:
B.3.! Changes in Development Plan. Declarant may modify the initial development
plan to respond to perceived or actual changes and opportunities in the marketplace.
Modifications may include, without limitation, changes in the sizes, styles, configurations,
materials, and appearances ofTownhomes, buildings, Lots, and Common Areas.
B.3.2 Expansion. The Property is subject to expansion. During the Development
Period, Declarant may - but is not required to - annex any real property that is contiguous with,
adjacent to, or within 1,000 feet of any real property that is subject to this Declaration. Declarant
will annex real property by subjecting it to the Declaration and the jurisdiction of the Association
by recording a supplement or an amendment of this Declaration, executed by Declarant, in the
Office of the Recorder 'of Hamilton County, Indiana. The supplement or amendment of
annexation must include a description of the additional real property or a reference to the
recorded plat that describes the additional real property. Declarant's right to annex land is for a
APPENDIX B TO DECLARATION OF TRADITIONS ON THE MONON
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term of years and does not require that Declarant own land described in Appendix A at the time
Declarant exercises its right of annexation.
B.3.3 Architectural Control.
B.3.3.!. Declarant's Rights Reserved. During the Development Period,
Declarant has the absolute right to serve as or to appoint the Architectural Reviewer.
Declarant also has the unilateral right to exercise architectural control over vacant Lots
and new Townhome construction in the Property. Neither the Association, the Board, nor
a committee appointed by the Association or Board (no matter how the committee is
named) may involve itself with the approval of new Townhomes and related
improvements on vacant Lots. Each Owner, by accepting an interest in or title to a Lot,
whether or not it is so expressed in the instrument of conveyance, covenants and agrees
that Declarant has a substantial interest in ensuring that the improvements within the
Property enhance Declarant's reputation as a community developer and do not impair
Declarant's ability to market Townhomes in the Property. Accordingly, each Owner
agrees that - during the Development Period - no improvements will be started or
progressed on Owner's Lot without the prior written approval of Declarant, which
approval may be granted or withheld at Declarant's sole discretion. In reviewing and
acting on an application for approval, Declarant may act in its self-interest and owes no
duty to any other person or any organization. Declarant may designate one or more
persons (such as Declarant's own employees) from time to time to act on its behalf in
reviewing and responding to applications. .
B.3.3.2. Delegation bv Declarant. During the Development Period,
Declarant may from time to time, but is not obligated to, delegate all or a portion of its
reserved rights under this Article to any person or persons deemed by Declarant to be
qualified to exercise architectural control. Any such delegation is at all times subject to
the unilateral rights of Declarant (1) to revoke such delegation at any time and reassume
jurisdiction over the matters previously delegated and (2) to veto any decision which
Declarant in its sole discretion determines to be inappropriate or inadvisable for any
reason.
B.3.3.3. Modifications. By way of illustration, Declarant may delegate
architectural control over modifications of completed Townhomes on Lots owned by
persons other than Declarant to a committee comprised of Owners appointed by
Declarant, by the Board, or by the Members. Such committee will serve at the pleasure
of Declarant during the Development Period, and may not involve itself with the approval
of new Townhomes on vacant Lots, which is exclusively the domain of Declarant.
B.3.4 Land Transfers. During the Development Period, any transfer of an interest in
the Property to or from Declarant is not subject to any transfer-related provision in the Governing
Documents. The application of this provision includes, without limitation, Declarant's Lot take-
downs, Declarant's sale of Lots to builders, and Declarant's sale of Lots to homebuyers.
B.3.5 Amendment. During the Development Period, Declarant may amend this
Declaration and the other Governing Documents, without consent of other Owners or any
Mortgagee, for the following limited purposes:
a. To add real property to the Property.
b. To withdraw real property from the Property.
APPENDIX B TO DECLARATION OF TRADITIONS ON THE MaNON
GUIDE TO ASSOCIATION'S MAJOR MANAGEMENT & GOVERNANCE FUNCTIONS
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To create Lots, easements, and Common Areas within the Property.
To subdivide, combine, or reconfigure Lots.
To convert Lots into Common Areas.
To modify the construction and use restrictions of Article 10 of this Declaration.
To merge the Association with another property owners association.
To comply with requirements of an Underwriting Lender.
To resolve conflicts, clarify ambiguities, and to correct misstatements, errors, or
omissions in the Governing Documents.
To enable any reputable title insurance company to issue title insurance coverage
on the Lots.
To enable an institutional or governmental lender to make or purchase mortgage
loans on the Lots.
To change the name or entity of Declarant.
To change the name of the addition in which the Property is located.
To change the name of the Association.
For any other purpose, provided the amendment has no material adverse effect on
any right of any Owner.
B.3.6 Completion. During the Development Period, Declarant has (1) the right to
complete or make improvements indicated on the Plat; and (2) an easement and right to erect,
construct, and maintain on and in the Common Area, Area of Common Responsibility, and Lots
owned or leased by Declarant whatever Declarant determines to be necessary or advisable in
connection with the construction, completion, management, maintenance, leasing, and marketing
of the Property.
B.3.7 Sales. During the Development Period, Declarant reseryes for itself the right to
sell or lease any Lot owned by Declarant. Lots owned by Declarant are not subject to leasing or
occupancy restrictions or prohibitions contained elsewhere in this Declaration or the other
Governing Documents.
DIFFERENT RULES
The Developer has rights and privileges to use the property in
ways that are not available to other owners and residents.
B.3.8 Promotion. During the Development Period, Declarant reserves for itself an
easement and right to place or install signs, banners, flags, display lighting, potted plants, exterior
decorative items, seasonal decorations, temporary window treatments, and seasonal landscaping
on the Property, including items and locations that are prohibited to other Owners and Residents.
Declarant reserves an easement and right to maintain, relocate, replace, or remove the same from
time to time within the Property. Declarant also reserves the right to sponsor marketing events -
such as open houses, MLS tours, and brokers parties - at the Property to promote the sale of
Townhomes.
B.3.9 Offices. During the Development Period, Declarant reserves for itself the right to
use Townhomes (including any garages attached to such Townhomes) owned or leased by
Declarant or trailers parked on the Property as models, storage areas, and offices for the
marketing, management, maintenance, customer service, construction, and leasing of the Property
and/or Declarant's developments or other products located outside the Property. Also, Declarant
reserves for itself the easement and right to make structural changes and alterations on and to
APPENDIX B TO DECLARATION OF TRADITIONS ON THE MONON
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Townhomes used by Declarant as models, storage areas, and offices, as may be necessary to
adapt them to the uses permitted herein. Upon completing its use of such Townhomes, Declarant,
at Declarant's sole expense, will restore altered Townhomes to conform to the architectural
standards of the Property. The restoration will be done within 120 days after termination of the
Development Period.
B.3.10 Access. During the Development Period, Declarant has an easement and right of
ingress and egress in and through the Property for purposes of constructing, maintaining,
managing, and marketing the Property and the Additional Land, and for discharging Declarant's
obligations under this Declaration. Additionally, Declarant has a right of entry and access to all
Townhomes to perform warranty-related work, if any, for the benefit of the Townhome being
entered, adjoining Townhomes, or Areas of Common Responsibility. Requests for entry must be
made in advance for a time reasonably convenient for the Owner who may not unreasonably
withhold consent. .
B.3.11 Controlled Access. This Section applies if the Property has a controlled access
gate. During the Development Period, Declarant may require that the entry gate be left open to
the public during daylight hours (or from 6:30 a.m. to 7:00 p.m., whichever is longer) to ensure
access to Lots or to the Additional .Land by prospective new home purchasers and contractors to
complete construction of townhomes.
B.3.12. Utility Easements. During the Development Period, Declarant may grant permits,
licenses, and easements over, in, on, under, and through the Property for utilities, roads, and other
purposes necessary for the proper development and operation of the Property. Declarant reserves
the right to make changes in and additions to the easements on any Lot, as shown on the Plat, to
more efficiently or economically install utilities or other improvements. Utilities may include,
but are not limited to, water, sewer, trash removal, electricity, gas, telephone, television, and
security .
B.4. COMMON AREAS. At or prior to termination of the Declarant Control Period,
Declarant will convey title to the Common Areas to the Association by deed - with or without warranty.
At the time of conveyance, the Common Areas will be free of monetary encumbrances except for the
property taxes, if any, accruing for the year of conveyance. Declarant's conveyance o~ title or ownership
is a ministerial task that does not require and is not subject to inspection, evaluation, acceptance, or
approval by the Association or the Owners.
B.S. SUCCESSOR DECLARANT. Declarant may designate one or more Successor
Declarants for specified designated purposes and/or for specified portions of the Property, or for all
purposes and all of the Property. To be effective, the designation must be in writing, signed and
acknowledged by Declarant and Successor Declarant, and recorded in the Office of the Recorder of
Hamilton County. Declarant (or Successor Declarant) may subject the designation of Successor
Declarant to limitations and reservations. Unless the designation of Successor Declarant provides
otherwise, a Successor Declarant has the rights of Declarant under this Section and may designate further
Successor Declarants.
B.6. ANNEXATION. During the Development Period, each Owner, by the acceptance of a
deed to a Lot, will be deemed to have waived such Owner's right to remonstrate against any permit,
application or request made by or to a Municipal Entity to annex the Property or any part of the Property
to become a part of the Municipal Entity. The Owner will also be deemed to have consented to such
annexation.
[End of Appendix BJ
APPENDIX B TO DECLARATION OF TRADITIONS ON THE MONON
GUIDE TO ASSOCIATION'S MAJOR MANAGEMENT & GOVERNANCE FUNCTIONS
6470 1.1
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