HomeMy WebLinkAboutDeclaration City Center HPR
JLVENTERED rf''' · \.,
Jbject to final-: tnHlsi;
~f~ day of k~~~_, 20_Q.5
200500011280
Filed for Record in
HAMILTON COUNTY, INDIANA
JENNIFER.J HAYDEN
02-24-2005 At 03=22 PM.
DEe COV RES 92.00
.
RECEIVED
MAR 3 2005
DOCS
:~ 'hLJ7'0k Auditor of Harr:i~tcJr~ CCW'. DECLARATION
) "c""l :/f: OF
~L ..'~J Ii _.____.<..__._~_.._._..H CITY CENTER HORIZONTAL PROPERTY REGIME
This Declaration of City Center Horizontal Property Regime ("De . n"
and entered into as of the 10 day of n6l'v~2005, by Hoosier Realty In
LLC, an Indiana limited liability company (the "Decl nt") for Itself, and on behalf of Its
successors, grantees, and assigns, WITNESSETH THAT:
WHEREAS, Declarant is the fee simple owner of certain real estate located in
Hamilton County, Indiana and more particularly described on Exhibit A, attached hereto and
made a part hereof by this reference (the "Real Estate"); and
WHEREAS, Declarant, by execution of thi~ Declaration, hereby creates a
Horizontal Property Regime upon the Real Estate, subject to the provisions of the Horizontal
Property Law and in accordance with the terms and conditions of this Declaration.
NOW, THEREFORE, Declarant hereby makes this Declaration as follows:
1. Definitions. The following terms, as used in this Declaration, unless the
context clearly requires otherwise, shall mean the following:
(a) "Act" means the Horizontal Property Law of the State of Indiana,
I.C. 32-25-1-1 et sea., as amended. The Act is incorporated herein by this reference.
(b) "Applicable Date" means the date determined pursuant to Section
3.02 of the Bylaws.
(c) "Articles" or "Articles of Incorporation" means the Articles of
Incorporation of the Corporation, as hereinafter defined, as the same may be amended
from time to time. The Articles of Incorporation are incorporated herein by this
reference.
(d)
Assessments.
"Assessments" mean the Regular Assessments and Special
(e) "Board of Directors" or "Board" means the governing body of the
Corporation being the Initial Board referred to in the Bylaws or any subsequent Board of
Directors elected by the Members in accordance with the Bylaws.
(f) "Building" means the structure on the Real Estate in which the
Condominium Units are located. The Building is or will be more particularly described
and identified on the Plans and in this Declaration.
(g) "Bylaws" mean the Bylaws of the Corporation providing for the
administration and management of the Property and restrictions on its use, as required
by and in conformity with the Act, as the same may be amended from time to time. A
true copy of the existing Bylaws is attached to this Declaration as Exhibit Band
incorporated herein by this reference.
INIMAN2 837974v1
(h) "Common Areas" mean the common areas and facilities
appurtenant to the Property which are depicted and/or described as such in the Plans or
otherwise defined as such in Paragraph 6 of this Declaration, including, without
limitation, the Limited Areas.
(i) "Common Expenses" mean expenses for administration of the
Corporation and for the leasing, upkeep, maintenance, repair and replacement of the
Common Areas and the Limited Areas (to the extent provided herein), and all sums
lawfully assessed against the Members of the Corporation.
U) "Condominium Unit" means each one of the individual units in the
Building which are depicted and/or described in the Plans and in Paragraph 5 of this
Declaration, and each additional individual unit which may be submitted and subjected to
the Act and this Declaration by Supplemental Declaration as herein provided.
"Condominium Unit" includes the undivided interest in the Common Areas and any
Limited Areas appertaining to such unit.
(k) "Co-owners" means all of the Owners of all of the Condominium
Units.
(I) "Corporation" means City Center Owners Association, Inc., a
not-for-profit corporation, and its successors and assigns, whose Members shall be the
Owners of Condominium Units, such Corporation being more particularly described in
Paragraph 12 of this Declaration.
(m) "Declarant" means Hoosier Realty Investments, LLC, an Indiana
limited liability company, and its successors and assigns including, but not limited to, any
mortgagee acquiring title to any portion of the Real Estate pursuant to the exercise of
rights under, or foreclosure of, a mortgage executed by Declarant.
(n) "Limited Areas" mean those Common Areas, the use and
enjoyment of which are limited to certain Condominium Units, which are depicted and/or
described as such in the Plans or otherwise defined as such in Paragraph 7 of this
Declaration.
(0) "Member" means a member of the Corporation and "Members"
mean the members of the Corporation.
(p) "Mortgagee" means the holder of a first mortgage lien on a
Condominium Unit and "Mortgage" means a first mortgage lien on a Condominium Unit.
(q) "Owner" means a person, firm, corporation, partnership,
association, trust or other legal entity, or any combination thereof, owning fee simple title
to a Condominium Unit; provided that persons or entities owning a Condominium Unit as
tenants in common, joint tenants, tenants by the entities or any form of joint or divided
ownership shall be deemed one Owner for purposes of this Declaration.
(r) "Percentage Interest" means the percentage of undivided interest
in the fee simple title to the Common Areas appertaining to each Condominium Unit as
determined and/or expressed in Paragraph 8 of this Declaration.
-2-
INIMAN2837974v1
(s) "Percentage Vote" means that percentage of the total vote
accruing to all the Condominium Units which is appurtenant to each particular
Condominium Unit and accrues to the Owner thereof. The Percentage Vote to which
each Owner shall be entitled on any matter upon which the Owners are entitled to vote
shall be the same percentage as the Percentage Interest appurtenant to such Owner's
Condominium Unit.
(t) "Property" means the Real Estate and appurtenant easements,
the Condominium Units, the Building, leasehold interests of the Corporation in any real
estate located adjacent to the Real Estate, and the improvements and property of every
kind and nature whatsoever, real, personal and mixed, located upon the Real Estate and
used in connection with the operation, use and enjoyment thereof, but does not include
the personal property of any Owner.
(u) "Plans" means all floor, building and site plans and elevations of
the Building and Condominium Units prepared by T ~r E. 1J.svJf'b",.., ~e.o.Ac> E",~,Jcs..:.)
At fC~S1i?:4I;o ~\4 r.>J~6L. , 0 ro~iEt()ro€i ofoAit~ct, under date of J6.wuA"-' 2., ,200~
and filed in the Office of the Recorder of Hamilton County, Indiana, all of which are
incorporated herein by this reference, and any supplemental plans that are prepared and
filed in connection therewith.
(v) "Regular Assessment" means the regular assessment applicable
to all Owners as provided in Paragraph 13 of this Declaration and in the Bylaws.
(w) " City Center" or the" City Center Horizontal Property Regime"
means the name by which the Property, and the Horizontal Property Regime created
hereby, shall be known.
(x) "Special Assessment" means the special assessment applicable
to all Owners as provided in Paragraph 13 of this Declaration and in the Bylaws.
2. Declaration. Declarant hereby expressly subjects the Property to the Act
and declares that the Property shall be a Horizontal Property Regime in accordance therewith.
3. Description of Buildinas. There will be one (1) Building on the Real
Estate, which will be no more than two (2) stories in height, plus an attic and no more than one
(1) basement or underground level, and contain a total of not more than two (2) Condominium
Units, all as depicted and/or described on the Plans.
4. Leaal Description. Each Condominium Unit is identified on the Plans by a
Unit number. The legal description for each Condominium Unit shall consist of the Unit number
as shown on the Plans, and shall be stated as "Unit _ in City Center Horizontal Property
Regime."
5. Description of Condominium Units.
(a) Appurtenances. Each Condominium Unit shall consist of all space
within the boundaries thereof, as hereinafter defined, including but not limited to and
together with: (a) the drywall, wall paneling, wood, tile, paint, paper, carpeting, or any
other wall, ceiling, or floor covering, windows and window frames and glass, shutters,
awnings, doorsteps, stoops, and interior doors and door frames; (b) any fire place or
-3-
INIMAN2837974v1
stove hearth, facing brick, tile or firebox; (c) fixtures and hardware and all improvements
contained within the unfinished perimeter walls, ceilings, and floors; and (d) any heating
and refrigerating elements or related equipment, utility lines and outlets, electrical and
plumbing fixtures, pipes, and all other related equipment required to provide heating, air
conditioning, hot and cold water, electrical, or other utility services to the Condominium
Unit and located within the unfinished walls, ceilings, and floors; provided, however, that
a Condominium Unit shall not include any of the structural components of the Building or
utility or service lines located within the Condominium Unit but serving more than one
Condominium Unit.
(b) Boundaries. The boundaries of each Condominium Unit shall be
as shown on the Plans and shall consist of the enclosed rooms in the Building and
bounded by the unfinished perimeter walls, ceilings, floors, doors, and windows thereof.
An unfinished wall, ceiling and floor means the concrete slabs, framing or other
structural materials which constitute the wall, ceiling or floor, as the case may be, of a
Condominium Unit. In the event any horizontal or vertical or other boundary line as
shown on the Plans does not coincide with the actual location of the respective wall,
floor or ceiling surface of the Condominium Unit because of inexactness of construction,
settling after construction, or for any other reasons, the boundary lines of each
Condominium Unit shall be deemed to be and treated for purposes of ownership,
occupancy, possession, maintenance, decoration, use and enjoyment, as in accordance
with the actual location.
6. Common Areas. "Common Areas" mean (a) the Real Estate, (b) the
foundations, columns, girders, beams, supports and exterior surfaces of roofs of the Building,
(c) halls, corridors, fire exits, lobbies, vestibules, elevators, elevator lobbies, trash chutes, HVAC
and mechanical rooms, fitness rooms, stairs, stairways, entrances and exits of the Building, if
any (except those located within the interior of Condominium Units), (d) sidewalks, (e) central
electricity, gas, water, air conditioning and sanitary sewer serving the Building (including those
located in the interior of the Building), if any, (f) exterior lighting fixtures and electrical service
lighting the exterior of the Building unless separately metered to a particular Condominium Unit,
(g) pipes, ducts, electrical wiring and conduits and public utilities lines not located within any
Condominium Unit or which serve more than one Condominium Unit, (h) floors, roofs and
exterior perimeter walls of the Building, except to the extent the same are otherwise classified
and defined herein as part of the Condominium Unit, (i) all improvements, facilities and
appurtenances located outside of the boundary lines of the Condominium Units, and U) Limited
Areas, except those areas and facilities expressly classified and defined herein as part of any
Condominium Unit.
7. Limited Areas. Limited Areas and those Condominium Units to which use
thereof is limited are as follows:
(a) Balconies, decks, patios and porches attached or adjacent to a
particular Condominium Unit and designated by reference on the Plans, the deed to a
particular Condominium Unit or any other agreement between the Owner of the
Condominium Unit and the Declarant or the Corporation shall constitute Limited Areas
and be limited to the exclusive use of the Condominium Unit to which they are attached
or adjacent.
(b) Any vehicular parking spaces which are either (i) owned by the
Corporation or (ii) leased by the Corporation, which are designated by reference on the
-4-
INIMAN2 837974v1
Plans, the deed to a particular Condominium Unit or any other agreement between the
Owner of the Condominium Unit and the Declarant or the Corporation for use by the
Owner of a particular Condominium Unit (the "Parking Areas") shall constitute Limited
Areas and be limited to the exclusive use of the Condominium Unit to which such use is
designated.
(c) Any storage spaces or units located in the Building or on the Real
Estate which are designated by reference on the Plans, the deed to a particular
Condominium Unit or any other agreement between the Owner of the Condominium Unit
and the Declarant or the Corporation for use by the Owner of a particular Condominium
Unit shall constitute Limited Areas and be limited to the exclusive use of the
Condominium Unit to which such use is designated.
(d) The exterior sides and surfaces of doors, windows and frames
surrounding the same in the perimeter walls in each Condominium Unit shall constitute
Limited Areas and be limited to the exclusive use of the Condominium Unit to which they
appertain.
(e) Any other areas designated and shown on the Plans as Limited
Areas shall constitute Limited Areas and be limited to the Condominium Unit or
Condominium Units to which they appertain as shown on the Plans or as provided in an
agreement between the Owner of the Condominium Unit and the Declarant or the
Corporation.
8. Ownership of Common Areas and Percentaoe Interest. Each Owner
shall have an undivided interest in the Common Areas, as tenants in common with all other
Owners, equal to his Condominium Unit's Percentage Interest. The Percentage Interest of each
Condominium Unit shall be fifty percent (50oA,). The Percentage Interest appertaining to each
separate Condominium Unit in the Common Areas shall be of a permanent nature and shall not
be altered without the unanimous consent of all the Owners and Mortgagees and then only if in
compliance with all requirements of the Act.
The Percentage Interest appertaining to each Condominium Unit shall also be
the Percentage Vote allocable to the Owner thereof in all matters with respect to City Center
Horizontal Property Regime.
9. Encroachments and Easements for Common Areas. If, by reason of the
location, construction, settling or shifting of the Property or any other reason, any Common Area
now encroaches or shall hereafter encroach upon any Condominium Unit, then in such event,
an easement shall be deemed to exist and run to the Co-owners and the Corporation for the
maintenance, use and enjoyment of such Common Area.
Each Owner shall have an easement in common with all other similarly situated
Co-owners to use all pipes, wires, ducts, cables, conduits, utility lines and other common
facilities located in any of the other Condominium Units and serving his Condominium Unit.
Each Owner shall have the right of ingress and egress to and from such Owner's Condominium
Unit, with such right being perpetual and appurtenant to the ownership of the Condominium
Unit.
10. Real Estate Taxes. Real estate taxes are to be separately assessed and
taxed to each Condominium Unit as provided in the Act. In the event that for any year real
-5-
INIMAN2 837974v1
estate taxes are not separately assessed and taxed to each Condominium Unit, but are
assessed and taxed on the Property (or the Property and any other portions of the Real Estate)
as a whole, then each Owner shall pay his proportionate share of such taxes to the extent
attributable or allocated to the Property in accordance with his respective Percentage Interest.
11. Utilities. Each Owner shall pay for his own utilities which are separately
metered. Utilities which are not separately metered shall be treated as and paid as part of the
Common Expenses, unless otherwise agreed by a majority of the Percentage Vote of the
Co-owners.
12. Association of Owners. Subject to the rights of Declarant reserved in
Paragraph 25 hereof and the obligations of the Owners, the maintenance, repair, upkeep,
replacement, administration, management and operation of the Property exclusive of the
Condominium Units shall be the obligation of the Corporation. Each Owner of a Condominium
Unit shall, automatically upon becoming an Owner of a Condominium Unit, be and become a
Member of the Corporation and shall remain a Member of the Corporation until such time as his
ownership of a Condominium Unit ceases, and each Owner's membership shall terminate when
such person ceases to be the Owner of a Condominium Unit, and shall be transferred to the
new Owner.
The Corporation shall elect a Board of Directors annually (except for the Initial
Board, as defined in the Bylaws, which shall be appointed by Declarant) in accordance with and
as prescribed in the Bylaws. Each Owner shall be entitled to cast his Percentage Vote for the
election of the Board of Directors, except for such Initial Board who shall serve for the period
provided in the Bylaws. Each person serving on the Initial Board, whether as an original
member thereof or as a member thereof appointed by Declarant to fill a vacancy, shall be
deemed a member of the Corporation and an Owner solely for the purpose of qualifying to act
as a member of the Board of Directors and for no other purpose. No such person serving on
the Initial Board shall be deemed or considered a Member of the Corporation nor an Owner of a
Condominium Unit for any other purpose (unless he is actually the Owner of a Condominium
Unit and thereby a Member of the Corporation).
The Board of Directors shall be the governing body of the Corporation,
representing all of the Owners in providing for the management, administration, operation,
maintenance, repair, replacement and upkeep of the Property exclusive of the Condominium
Units. Subject to the provisions of Paragraph 25 of this Declaration and Section 3.06 of the
Bylaws, the Board of Directors may provide for professional management of the Property.
13. Maintenance, Repairs and Replacements.
(a) Each Owner shall, at his expense, be responsible for the
maintenance, repairs, decoration and replacement of his own Condominium Unit and, to
the extent provided in this Declaration or the Bylaws, for the Limited Areas reserved or
designated for the exclusive use of his Condominium Unit or the Owner thereof. Each
Owner shall repair any defect or condition in his Condominium Unit which, if not
repaired, might adversely affect any other Condominium Unit or Common Area.
Maintenance, repairs, replacements and upkeep of the Common Areas or that portion of
the Property covered by the Corporation's insurance as provided in Paragraph 15 shall
be furnished by the Corporation as part of the Common Expenses, except as otherwise
provided herein or in the Bylaws. The Board of Directors shall adopt rules and
regulations concerning maintenance, repairs, use and enjoyment of the Common Areas
-6-
INIMAN2837974v1
as it deems advisable, necessary or appropriate, and may amend and modify the same
from time to time as it deems advisable, necessary or appropriate. The Board of
Directors or their designated agent shall have the right at reasonable times and upon
reasonable prior notice (except in cases of emergency, in which case no notice shall be
required), to enter into each individual Condominium Unit for the purpose of inspection of
the Common Areas appurtenant thereto and replacement, repair and maintenance of
such Common Areas.
(b) As of the first day of the first month following the conveyance of
the first Condominium Unit located in the Building and the Percentage Interest
appurtenant thereto, each Condominium Unit located in the Building and the Percentage
Interest appurtenant thereto shall be subject to the Regular Assessments and Special
Assessments (as determined by Declarant and/or the Board of Directors, as applicable)
(collectively, the "Assessments"), as provided in this Paragraph 13 and Article V of the
Bylaws, and all such Assessments shall constitute liens upon each Condominium Unit
and appurtenant Percentage Interest as provided and described in this Declaration and
the Bylaws. The date(s) on which Assessments are due and payable shall be as
specified in this Declaration or the Bylaws, or if not so specified, then as determined by
the Board of Directors. In addition, each Owner shall be personally liable for the
amounts of any and all Assessments which become due and payable during the period
in which such Owner holds title to a Condominium Unit. No Owner shall be personally
liable for any Assessments which first became due and payable prior to the time such
Owner took title to a Condominium Unit unless he expressly assumes such liability, or
except as may otherwise be required by the Act. However, a conveyance by an Owner
of his Condominium Unit shall not operate to release or limit the liability of such Owner
for Assessments which became due and payable while such Owner held title to a
Condominium Unit. The lien of any Assessment shall be subordinate to the lien of any
Mortgage on any Condominium Unit which was recorded before the time when said
Assessment first became delinquent, and any sale or transfer of a Condominium Unit
pursuant to a foreclosure of a Mortgage shall extinguish such subordinate liens.
(c) Each Assessment shall be due and payable on the due date(s)
thereof as specified in this Declaration or the Bylaws, or if not so specified, then on the
due date(s) determined by the Board of Directors, and the date for the payment of such
Assessment is hereby termed the "Delinquency Date". Any Assessment which is not
paid in full by the Delinquency Date shall be deemed delinquent without further notice or
demand to the defaulting Owner, and such Owner shall be charged a fifty dollar ($50.00)
late fee plus an additional five dollars ($5.00) per day from the Delinquency Date until
paid in full. In the event that any costs or expenses, including, without limitation,
attorneys' fees, are incurred by or on behalf of the Association with respect to the
recovery or collection of any delinquent Assessment, all such costs and expenses shall
be due and payable immediately by such delinquent Owner and shall bear interest from
the dates incurred until paid in full, at a rate of interest equal to eighteen percent (180/0)
per annum. All interest, late fees, costs and expenses payable hereunder with respect
to a delinquent Assessment shall be added to and deemed a part of such delinquent
Assessment and shall constitute a lien on the delinquent Owner's Condominium Unit and
Percentage Interest as of the date on which such delinquent Assessment first became a
lien. In the event that any Assessment is not fully paid on or before the Delinquency
Date, the Association shall be entitled to accelerate and declare due and payable in full
all installments of Assessments due for the year in which such delinquency occurs, and
to enforce payment of the same by foreclosure of said lien and/or other appropriate legal
-7-
INIMAN2837974v1
proceedings in accordance with the laws of the State of Indiana. Any such lien against a
Condominium Unit and its Percentage Interest shall be subordinate to the lien of any
Mortgage encumbering such Condominium Unit and its Percentage Interest if and to the
extent the Mortgage creating such first mortgage lien was recorded prior to the due date
of the delinquent Assessments.
14. Alterations, Additions and Improvements. No Owner shall make any
alterations or additions to or which would affect the Common Areas without the prior written
approval of the Board of Directors, nor shall any Owner make any alteration in or to his
respective Condominium Unit which would affect the safety or structural integrity of the Building
in which the Condominium Unit is located nor shall any Owner change the color of any of the
Common Areas without the prior written approval of the Board of Directors.
15. Insurance. The Co-Owners, through the Corporation, shall purchase a
master casualty insurance policy, using generally acceptable insurance carriers, affording fire
and extended coverage insurance on all portions of the Building which are not part of a
Condominium Unit and comprise the Common Areas in an amount equal to the full replacement
value of such improvements. If the Board of Directors can obtain "all risk" coverage for
reasonable amounts, they shall also obtain "all risk" coverage. The Board of Directors shall be
responsible for reviewing at least annually the amount and type of such insurance and shall
purchase such additional insurance as is necessary to provide the insurance required above. If
deemed advisable by the Board of Directors, the Board of Directors may cause such full
replacement value to be determined by a qualified appraiser. The cost of any such appraisal
shall be a Common Expense. Such insurance coverage shall name each Owner and, if
applicable, the Mortgagee of each Owner, as insureds and shall be for the benefit of each such
Owner and Mortgagee in accordance with the following terms and conditions:
All proceeds payable as a result of casualty losses sustained, which are covered
by insurance purchased by the Corporation as hereinabove set forth, shall be paid to it or to the
Board of Directors, who shall act as the insurance trustees and hold such proceeds for the
benefit of the individual Owners and Mortgagees. The proceeds shall be used or disbursed by
the Corporation or Board of Directors, only in accordance with the provisions of this Declaration
and any surety bond or bonds obtained by the Board of Directors concerning the officers of the
Corporation, as provided in the Bylaws, shall specifically include protection for any insurance
proceeds so received.
The interest of each damaged Owner in the trust fund of insurance proceeds
shall be the ratio of the direct damage of each damaged Owner to the damages of all Owners
directly damaged by any event insured under the said master casualty insurance policy. No
Owner or any other party shall have priority over any rights of a Mortgagee pursuant to its
Mortgage in the case of distribution to such Owner of insurance proceeds or condemnation
awards for losses to or a taking of any Condominium Unit and/or Common Areas. The
Corporation shall have exclusive authority to negotiate losses under any policy providing
property or liability insurance and to perform such other functions as are necessary to
accomplish this purpose. Each Owner appoints the Corporation to act for and on behalf of the
Owners for the purpose of purchasing and maintaining such insurance, including the collection
and appropriate disposition of the proceeds thereof, the negotiation of losses and execution of
releases of liability and the performance of all other acts necessary to accomplish such
purposes.
-8-
INIMAN2837974v1
Such master casualty insurance policy, and "all risk" coverage if obtained, shall
(to the extent the same are obtainable) contain provisions that the insurer (a) waives its right to
subrogation as to any claim against the Corporation, the Board of Directors, its agents and
employees, Owners, their respective agents and guests, (b) waives any defense based on the
invalidity arising from the acts of the insured, and (c) contains an endorsement that such policy
shall not be terminated for non-payment of premiums without at least ten (10) days prior written
notice to Mortgagees and to the Corporation and providing further, if the Board of Directors is
able to obtain such insurance upon reasonable terms, (i) that the insurer shall not be entitled to
contribution against casualty insurance which may be purchased by individual Owners as
hereinafter permitted, (ii) that notwithstanding any provision thereof giving the insurer an
election to restore damage in lieu of a cash settlement, such option shall not be exercisable in
the event the Owners do not elect to restore pursuant to Paragraph 16 of this Declaration, and
(iii) an agreed amount endorsement or an inflation guard endorsement to the extent such are
commonly required by prudent institutional mortgage investors in the metropolitan Indianapolis
area.
The Co-owners, through the Corporation, shall also purchase a master
comprehensive public liability insurance policy in such amount or amounts as the Board of
Directors shall deem appropriate from time to time. Such comprehensive public liability
insurance policy shall cover the Corporation, the Board of Directors, any committee or
organization of the Corporation or Board of Directors, any managing agent appointed or
employed by the Corporation, all persons acting or who may come to act as agents or
employees of any of the foregoing with respect to City Center, all Owners of Condominium Units
and all other persons entitled to occupy any Condominium Unit or other portions of City Center.
Such policy shall provide that it may not be cancelled or substantially modified without at least
ten (10) days prior written notice to the Corporation and all Mortgagees.
The Co-owners, through the Corporation, shall also obtain any other insurance
required by law to be maintained, including but not limited to worker's compensation insurance,
and such other insurance as the Board of Directors shall from time to time deem necessary,
advisable or appropriate. Such insurance coverage shall also provide for and cover cross
liability claims of one insured party against another insured party. Such insurance shall inure to
the benefit of each Owner, the Corporation, the Board of Directors and any managing agent
acting on behalf of the Corporation.
The premiums for all such insurance hereinabove described shall be paid by the
Corporation as part of the Common Expenses. When any such policy of insurance hereinabove
described has been obtained by or on behalf of the Corporation, written notice of the obtainment
thereof and of any subsequent changes therein or termination thereof shall be promptly
furnished to each Owner or Mortgagee whose interest may be affected thereby, which notice
shall be furnished by the officer of the Corporation who is required to send notices of meetings
of the Corporation.
In no event shall any distribution of proceeds be made by the Board of Directors
directly to an Owner where there is a mortgagee endorsement on the certificate of insurance. In
such event any remittances shall be to the Owner and his Mortgagee jointly.
Each Owner shall be solely responsible for loss or damage to his Condominium
Unit and the contents thereof however caused (including, but not limited to, all floor, ceiling and
wall coverings and fixtures, light fixtures, appliances and betterments and improvements
installed by such Owner) and his personal property stored elsewhere on the Property, and the
-9-
INIMAN2837974v1
Corporation shall have no liability to the Owner for loss or damage to the contents of any
Condominium Unit. Each Owner shall be solely responsible for obtaining his own insurance to
cover any such loss and risk. Each Owner shall have the right to purchase such additional
insurance at his own expense as he may deem necessary, including but not limited to:
(1) personal liability insurance, provided that all such insurance shall contain the same
provisions for waiver of subrogation as referred to in the foregoing provisions for the master
casualty insurance policy to be obtained by the Corporation; and (2) casualty insurance upon
his Condominium Unit, but such insurance shall provide that it shall be without contribution as
against the casualty insurance purchased by the Corporation. If a casualty loss is sustained
and there is a reduction in the amount of the proceeds which would otherwise be payable on the
insurance purchased by the Corporation pursuant to this Paragraph due to proration of
insurance purchased by an Owner under this Paragraph, the Owner agrees to assign the
proceeds of this latter insurance, to the extent of the amount of such reduction, to the
Corporation to be distributed as herein provided.
The Corporation shall provide written notice to all Owners or Mortgagees (whose
interests may be affected) of obtainment of any insurance policy provided for herein or
subsequent revision or termination of the same.
16. Casualtv and Restoration.
(a) Except as provided in subparagraph 16(g) below, damage to or
destruction of any portions of the Building which are not part of a Condominium Unit due
to fire or any other casualty or disaster shall be promptly repaired and reconstructed by
the Corporation and the proceeds of insurance, if any, shall be applied for that purpose.
(b) If any insurance proceeds received by the Corporation as a result
of any such fire or any other casualty or disaster are not adequate to cover the cost of
repair and reconstruction, or in the event there are no insurance proceeds, the cost for
restoring the damage and repairing and reconstructing the Building so damaged or
destroyed (or the costs thereof in excess of insurance proceeds received, if any) shall be
a Common Expense and assessed as part of the Common Expenses.
(c) For purposes of subparagraph (a) and (b) above, repair,
reconstruction and restoration shall mean construction or rebuilding of those portions of
the Building which are not a Condominium Unit to as near as possible the same
condition as they existed immediately prior to the damage or destruction and with the
same type of architecture.
(d) Immediately after a fire or other casualty or disaster causing
damage to any property for which the Board of Directors or Corporation has the
responsibility of maintenance and repair, the Board of Directors shall obtain reliable and
detailed estimates of the cost to place the damaged property in condition as good as that
before the casualty. Such costs may include professional fees and premiums for such
bonds as the Board of Directors desire.
(e) The proceeds of insurance collected on account of any such
casualty, and the sums received by the Board of Directors from collections of
assessments against Owners on account of such casualty, shall constitute a
construction fund which shall be disbursed in payment of the costs of reconstruction and
repair in the following manner:
-10-
INIMAN2837974v1
(i) If the amount of the estimated cost of reconstruction and
repair is Twenty Thousand Dollars ($20,000.00) or less, then the
construction fund shall be disbursed in payment of such costs upon order
of the Board of Directors; provided, however, that upon request of a
Mortgagee which is a beneficiary of an insurance policy, the proceeds of
which are included in the construction fund, such fund shall be disbursed
in the manner hereinafter provided in the following Paragraph (ii).
(ii) If the estimated cost of reconstruction and repair of those
portions of the Building which are not a Condominium Unit is more than
Twenty Thousand Dollars ($20,000.00), then the construction fund shall
be disbursed in payment of such costs upon approval of an architect
qualified to practice in Indiana and employed by the Board of Directors to
supervise such work, payment to be made from time to time as the work
progresses. The architect shall be required to furnish a certificate giving
a brief description of the services and materials furnished by various
contractors, subcontractors, materialmen, the architect, or other persons
who have rendered services or furnished materials in connection with the
work, and certifying (1) that the sums requested by them in payment are
justly due and owing and that said sums do not exceed the value of the
services and materials furnished; (2) that there is no other outstanding
indebtedness known to the said architect for the services and materials
described; and (3) that the costs as estimated by said architect for the
work remaining to be done subsequent to the date of such certificate,
does not exceed the amount of the construction fund remaining after
payment of the sum so requested.
(iii) Encroachments upon or in favor of Condominium Units
which may be created as a result of such reconstruction or repair shall not
constitute a claim or basis of a proceeding or action by the Owner upon
whose property such encroachment exists, provided that such
reconstruction was either substantially in accordance with the plans and
specifications or as the Building was originally constructed. Such
encroachments shall be allowed to continue in existence for so long as
the Building stands.
(iv) In the event that there is any surplus of monies in the
construction fund after the reconstruction or repair of the damage has
been fully completed and all costs paid, such sums may be retained by
the Board of Directors as a reserve or may be used in the maintenance
and operation of the Common Areas. The action of the Board of
Directors in proceeding to repair or reconstruct damage shall not
constitute a waiver of any rights against another Owner for committing
willful or malicious damage.
(f) If any Condominium Unit or portion thereof or any of the Common
Areas is made the subject of a condemnation or eminent domain proceeding or is
otherwise sought to be acquired by a condemning authority, then the affected Mortgagee
or Mortgagees shall be given timely written notice of such proceeding or proposed
acquisition. The Corporation shall represent the Owners in any condemnation
proceeding or any negotiation settlements or agreements with the condemning authority
-11-
INIMAN2837974v1
for acquisition of the Common Areas or any part thereof. In the event of a taking or
acquisition of part or all of the Common Areas by a condemning authority, the award or
proceeds of settlement shall be payable to the Corporation to be held in trust for the
Owners and Mortgagees as their interests may appear and the provisions of the
Declaration relating to restoration and allocation of funds in the event of a casualty shall
be applicable in the event of a condemnation.
(g) In the event of complete destruction of the Building, the Building
shall not be repaired and reconstructed by the Corporation unless by a vote of two-thirds
(2/3) of all of the Co-owners a decision is made to rebuild the Building. A determination
of complete destruction of the Building shall be made by a vote of two-thirds (2/3) of all
Co-owners at a special meeting of the Corporation called for that purpose. If the
Building is not repaired and reconstructed, then (i) the insurance proceeds, if any, shall
be divided among the Co-owners in the percentage by which each owns an undivided
interest in the Common Areas, and (ii) the Property shall be considered as to be
removed from the Act under I.C. 932-25-8-16.
17. Covenants and Restrictions. Additional covenants and restrictions
applicable to the use and enjoyment of the Condominium Units and the Common Areas and
Limited Areas are set forth in the Bylaws. These covenants and restrictions are for the mutual
benefit and protection of the present and future Owners and shall run with the land and inure to
the benefit of and be enforceable by any Owner or by the Corporation. Present or future
Owners or the Corporation shall be entitled to injunctive relief against any violation or attempted
violation of these provisions and shall be entitled to damages for any injuries resulting from any
violations thereof, but there shall be no right of reversion or forfeiture of title resulting from such
violation.
Notwithstanding anything to the contrary contained herein or in the Bylaws,
including, but not limited to any covenants and restrictions set forth in the Bylaws, Declarant
shall have until the Applicable Date the right to use and maintain any Condominium Units
owned by Declarant and such other portions of the Property, as Declarant may deem advisable
or necessary in its sole discretion to aid in the construction and sale of Condominium Units, or
to promote or effect sales of Condominium Units or for the conducting of any business or activity
attendant thereto, including, but not limited to storage areas, signs, construction offices, sales
offices, management offices and business offices. Declarant shall have the right to relocate any
or all of the same from time to time as it desires. At no time shall any of such facilities so used
or maintained by Declarant be or become part of the Common Areas, unless so designated by
Declarant, and Declarant shall have the right to remove the same from the Property at any time.
18. Amendment of Declaration. Except as otherwise provided in this
Declaration, amendments to this Declaration shall be proposed and adopted in the following
manner:
(a) Notice. Notice of the subject matter of the proposed amendment
shall be included in the notice of any meeting at which the proposed amendment is
considered.
(b) Resolution. A resolution to adopt a proposed amendment may be
proposed by the Board of Directors or Owners having in the aggregate at least a majority
of the Percentage Vote.
-12-
INIMAN2 837974v1
(c) Meetina. The resolution concerning a proposed amendment must
be adopted by the designated vote at a meeting duly called and held in accordance with
the provisions of the Bylaws.
(d) Adoption. Any proposed amendment to this Declaration must be
approved by a vote of not less than sixty-seven percent (670/0) in the aggregate of the
Percentage Vote. In the event any Condominium Unit is subject to a first Mortgage, the
Mortgagee shall be notified of the meeting and the proposed amendment in the same
manner as an Owner if the Mortgagee has given prior notice of its Mortgage interest to
the Board of Directors in accordance with the provisions of the Bylaws.
(e) Special Amendments. No amendment to this Declaration shall be
adopted which changes (1) the Percentage Interest with respect to any Condominium
Unit or the applicable share of an Owner's liability for the Common Expenses, without
the approval of one hundred percent (1000/0) of the Co-owners and all Mortgagees
whose mortgage interests have been made known to the Board of Directors in
accordance with the provisions of the Bylaws except as otherwise provided or permitted
in Paragraph 14 or elsewhere herein, or (2) the provisions of Paragraph 16 of this
Declaration with respect to reconstruction or repair in the event of fire or any other
casualty or disaster, without the unanimous approval of all Mortgagees whose mortgage
interests have been made known to the Board of Directors in accordance with the
provisions of the Bylaws, or (3) the provisions of Paragraph 12 regarding the obligation
of the Board of Directors to provide professional management for City Center, or (4) the
provisions of Paragraph 15 providing for no priority of an Owner or other person over a
Mortgagee as to insurance or condemnation proceeds.
(f) Recordina. Each amendment to the Declaration shall be executed
by the President and Secretary of the Corporation and shall include an affidavit stating
that Owners representing sixty-seven percent (670/0) of the aggregate of Percentage
Vote or such other amount as required by this Declaration have approved the
amendment and shall be recorded in the Office of the Recorder of Hamilton County,
Indiana, and such amendment shall not become effective until so recorded.
(g) Special Reauirements. Notwithstanding anything to the contrary
contained herein, unless specifically controlled by a more restrictive provision under
Indiana law or contained herein, the Corporation shall not, without the prior written notice
to all Mortgagees and the prior written consent of at least sixty-seven percent (670A,) of
the Mortgagees (based upon one vote for each mortgage held on a Condominium Unit)
and of the Owners (other than Declarant) be entitled to:
(i) by act or omission, seek to abandon or terminate the
Horizontal Property Regime; or
(ii) except in connection with the expansion of the Property or
the subdivision or combining of Condominium Units owned by Declarant,
change the pro rata interest or obligations of any individual Condominium
Unit for the purpose of: (x) levying assessments or charges or allocating
distributions of hazard insurance proceeds or condemnation awards, or
(y) determining the pro rata share of ownership of each Condominium
Unit in the Common Areas; or
-13-
INIMAN2837974v1
(iii) by act or omission, seek to abandon, partition, subdivide,
encumber, sell or transfer the Common Areas (provided that the granting
of easements for public utilities or for other public purposes consistent
with the intended use of the Common Areas shall not be deemed
transfers within the meaning of this clause); or
(iv) use hazard insurance proceeds for losses to any part of
the Property (whether to Condominium Units or to Common Areas) for
other than the repair, replacement or reconstruction of such Property.
19. Acceptance and Ratification. All present and future Owners, Mortgagees,
tenants and occupants of the Condominium Units shall be subject to and shall comply with the
provisions of this Declaration, the Act, the Bylaws appended thereto, and the rules and
regulations as adopted by the Board of Directors as each may be amended or supplemented
from time to time. The acceptance of a deed of conveyance or the act of occupancy of any
Condominium Unit shall constitute an agreement that the provisions of this Declaration, the Act,
the Bylaws and rules and regulations as each may be amended or supplemented from time to
time are accepted and ratified by such Owner, tenant or occupant, and all such provisions shall
be covenants running with the land and shall bind any person having any interest or estate from
time to time in a Condominium Unit or the Property as though such provisions were recited and
stipulated at length in each and every deed, conveyance, mortgage or lease thereof. All
persons, corporations, partnerships, trusts, associations, or other legal entities who may
occupy, use, enjoy or control a Condominium Unit or Condominium Units or any part of the
Property in any manner shall be subject to the Declaration, the Act, the Bylaws, and the rules
and regulations applicable thereto as each may be amended or supplemented from time to time.
20. Neolioence. Each Owner shall be liable for the expense of any
maintenance, repair or replacement rendered necessary by his negligence or by that of any
member of his family or his or their invitees, licensees, guests, employees, agents or lessees,
(including but not limited to damage caused by any pet or any automobile) to the extent that
such expense is not covered by the proceeds of insurance received by the Corporation. An
Owner shall pay the amount of any increase in insurance premiums occasioned by his use,
misuse, occupancy or abandonment of his Condominium Unit or its appurtenances or of the
Common Areas or Limited Areas.
21. Waiver. No Owner may exempt himself from liability for his contribution
toward the Common Expenses by waiver of the use or enjoyment of any of the Common Areas
or Limited Areas or by abandonment of his Condominium Unit.
22. Grantino of Easements. The Corporation is granted the authority to grant
easements in and to the Common Areas to utility companies upon such terms and conditions
and for such consideration as it deems advisable, necessary or appropriate.
23. Reservation of Riohts to the Use of the Common Areas.
(a) Declarant shall have, and hereby reserves, the right and an
easement over, across, upon, along, in, through and under the Common Areas, for the
purposes of installing, maintaining, repairing, replacing, relocating and otherwise
servicing utility equipment, facilities and installations to serve the Property and any
portions of the Real Estate which are not part of the Property, to provide access to and
ingress and egress to and from the Property and to and from any such portions of the
-14-
INIMAN2837974v1
Real Estate which are not part of the Property, to make improvements to and within the
Property and any such portions of the Real Estate which are not part of the Property,
and to provide for the rendering of public and quasi-public services to the Property and
such portions of the Real Estate which are not part of the Property.
(b) Declarant reserves the right to use any of the Real Estate that is
not annexed to or made subject to the Declaration for any purposes.
24. Easement for Utilities and Public and Quasi Public Vehicles. All public
and quasi public vehicles, including, but not limited to police, fire and other emergency vehicles,
trash and garbage collection, post office vehicles and privately owned delivery vehicles, shall
have the right to enter upon the Common Areas and Limited Areas of City Center in the
performance of their duties. An easement is also granted to all utilities and their agents for
ingress, egress, installation, replacement, repairing and maintaining of such utilities, including,
but not limited to water, sewers, gas, telephones and electricity on the Property; provided,
however, nothing herein shall permit the installation of sewers, electric lines, water lines, or
other utilities, except as initially designed and approved by Declarant or as thereafter may be
approved by the Board of Directors and by the Corporation. By virtue of this easement, the
electric and telephone utilities companies are expressly permitted to erect and maintain the
necessary equipment on the Property and to affix and maintain electric and telephone wires,
circuits and conduits on, above, across and under the roofs and exterior walls of the Building.
25. Initial Manaaement. As set forth in the Bylaws, the initial Board of
Directors consists and will consist of persons selected by Declarant. Such initial Board of
Directors may enter into a management agreement with Declarant (or a corporation or other
entity affiliated with Declarant) or a third party for a term not to exceed one (1) year with either
party having the right to terminate upon ninety (90) days notice under which the management
company will provide supervision, fiscal and general management and maintenance of the
Common Areas and, in general, perform all of the duties and obligations of the Corporation.
Such management agreement may be renewed by the parties for additional terms of one (1)
year. In the event no management agreement exists because of termination or otherwise, the
Corporation shall thereupon and thereafter resume performance of all such management duties,
obligations and functions. Notwithstanding anything to the contrary contained herein prior to the
Applicable Date, Declarant shall have, and Declarant hereby reserves to itself (either through a
management company or otherwise), the exclusive right to manage the Property and to perform
all the functions of the Corporation.
26. Costs and Attornevs' Fees. In any proceeding arising because of failure
of an Owner to make any payments required by this Declaration, the Bylaws or the Act, or to
comply with any provision of the Declaration, the Bylaws or the Act, or the rules and regulations
adopted pursuant thereto, as each may be amended from time to time, the Corporation shall be
entitled to recover its costs and reasonable attorneys' fees incurred in connection with such
default or failure.
27. Severabilitv Clause. The invalidity of any covenant, restriction, condition,
limitation or other provisions of this Declaration or the Bylaws filed herewith shall not impair or
affect in any manner the validity, enforceability or affect the remaining provisions of this
Declaration or the attached Bylaws.
-15-
INIMAN2 837974v1
Section 3.11. Waiver of Notice.................................................................. .....................9
Section 3.12. Quorum and Votino................................................................................... 9
Section 3.13. Means of Communication..... .................................................................... 9
Section 3.14. Action By Written Consent........................................................................ 9
Section 3.15. Bonds..................................................................................................... 1 0
Section 3.16. Interest of Directors in Contracts............................................................. 10
ARTI C L E IV Officers................................................................................................................ 1 0
Section 4.01. Officers of the Corooration......................................................................10
Sect ion 4. 02. E Ie ct ion of Offi ce rs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., 1 0
Section 4.03. The President......................................................................................... 11
Section 4.04. The Vice President .................:...............................................................11
Section 4.05. The Secretary......................................................................................... 11
Sect ion 4.06. Th e T re as u re r . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Sect ion 4. 07. As s is ta nt Offi ce rs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V Assessments........................................................................................................ 11
Se ct ion 5.01. An n u a I Acco u nt i no . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11
Section 5.02. Proposed Annual Budaet........................................................................ 12
Sect ion 5.03. Reo u I a r As ses s m e nts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2
Section 5.04. Special Assessments............. ......... ........................................................ 13
Section 5. 05. Failure of Owner to Pay Assessments.................................................... 13
Section 5.06. Payment of Reaular Assessments.......................................................... 14
Section 5.07. Maintenance and Repairs....................................................................... 15
ARTICLE VI Restrictions, Entry and Rules and Regulations.................................................... 15
Section 6.01. Restrictions on Use................................................................................. 15
Section 6.02. Compliance with Covenants Conditions and Restrictions........................ 17
Section 6.03. Ria ht of Entry......................................................... ... ......... ... ... . . .... .... . . . . . 18
-11-
INIMAN2 837988v1
BYLAWS
OF
CITY CENTER HORIZONTAL PROPERTY REGIME
AND
CITY CENTER OWNERS ASSOCIATION, INC.
ARTICLE I
Identification and Applicabilitv
Section 1.01. Identification and Adoption. These Bylaws are adopted simultaneously
with the execution of a certain Declaration creating City Center Horizontal Property Regime
(hereinafter sometimes referred to as " City Center If) to which these Bylaws are attached and
made a part thereof. The Declaration is incorporated herein by reference, and all of the
covenants, rights, restrictions and liabilities therein contained shall apply to and govern the
interpretation of these Bylaws. The definitions and terms as defined and used in the Declaration
shall have the same meaning in these Bylaws and reference is specifically made to Paragraph 1
of the Declaration containing definitions of terms. The provisions of these Bylaws shall apply to
the Property and the administration and conduct of the affairs of the Corporation. These Bylaws
shall also constitute the Bylaws of the Corporation.
Section 1.02. Name. Principal Office I and Resident AQent. The name of the
Corporation is City Center Owners Association, Inc. (hereinafter referred to as the
"Corporation"). The initial post office address of the principal office of the Corporation is 433
West Carmel Drive, Carmel, Indiana 46032; and the name of its initial Resident Agent in charge
of such office is Christopher D. Reid. The location of the principal office of the Corporation or
the designation of its Resident Agent, or both, may be changed at any time or from time to time
when authorized by the Board of Directors.
Section 1.03. Individual Application. All Owners, tenants, guests, invitees and other
persons that might use or occupy a Condominium Unit or any part of the Property, shall be
subject to the restrictions, terms and conditions set forth in the Declaration, these Bylaws and
the Act, and to any rules and regulations adopted by the Board of Directors as herein provided.
ARTICLE II
Meetinas of Corporation
Section 2.01. Purpose of Meetinas. At least annually, and at such other times as may
be necessary, a meeting of the Owners shall be held for the purpose of electing the Board of
Directors (subject to the provisions of Section 3.02 hereof), presenting the annual budget, and
for such other purposes as may be necessary or required by the Declaration, these Bylaws or
the Act.
Section 2.02. Annual MeetinQs. The annual meeting of the Members of the Corporation
shall be held on the second (2nd) Tuesday of January in each calendar year. At the annual
meeting, the Owners shall (subject to the provisions of Section 3.02 hereof) elect the Board of
Directors of the Corporation in accordance with the provisions of these Bylaws and transact
such other business as may properly come before the meeting.
INIMAN2 837988v1
Section 2.03. Special MeetinQ. A special meeting of the Members of the Corporation
may be called by resolution of the Board of Directors or upon a written petition of Owners who
have not less than a majority of the Percentage Vote of all Co-owners (as defined in the
Declaration). The resolution or petition shall be presented to the President or Secretary of the
Corporation and shall state the purpose for which the meeting is to be called. No business shall
be transacted at a special meeting except as stated in the resolution or petition.
Section 2.04. Notice and Place of Meetinas. All meetings of the Members of the
Corporation shall be held at any suitable place in Hamilton or Marion Counties, Indiana, as may
be designated by the Board of Directors. Written notice stating the date, time and place of any
meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is
called, shall be delivered or mailed by the Secretary of the Corporation to each Member entitled
to vote thereat not less than ten (10) days prior to the date of such meeting. The notice shall be
mailed or delivered to the Owners at the addresses of their respective Condominium Units and
not otherwise. A copy of each such written notice shall also be delivered or mailed
simultaneously by the Secretary of the Corporation to each Mortgagee who (a) requests in
writing that such notices be delivered to it, and (b) has furnished the Corporation with its name
and address in accordance with Section 8.01 of these Bylaws. Such Mortgagee may designate
a representative to attend the meeting. Attendance at any meeting in person, by agent or by
proxy, shall constitute a waiver of notice of such meeting.
Section 2.05. Waiver of Notice. Notice may be waived in writing, signed by the
Member entitled to notice, and filed with the minutes or the corporate records.
Attendance at or participation in any meeting (a) waives objection to lack of notice
unless the Member at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting, and (b) waives objection to consideration of a
particular matter at the meeting that is not within the purposes described in the meeting
notice, unless the Member objects to considering the matter when the matter is
presented.
Section 2.06. Votino and Conduct of Meetinas.
(a) Number of Votes. On each matter coming before the meeting as
to which an Owner is entitled to vote, such Owner shall be entitled to cast a vote
equal to the Percentage Interest applicable to such Owner's Condominium Unit.
(b) Multiple Owner. Where the Owner of a Condominium Unit
constitutes or consists of more than one person, or is a partnership, there shall
be only one voting representative entitled to all of the Percentage Vote allocable
to that Condominium Unit. At the time of acquisition of title to a Condominium
Unit by more than one person or a partnership, those persons constituting such
Owner or the partners in such partnership shall file with the Secretary of the
Corporation an irrevocable proxy appointing one (1) of such persons or partners
as the voting representative for such Condominium Unit, which proxy shall
remain in effect until all of such persons constituting such Owner or the partners
in such partnership designate another voting representative in writing, such
appointed representative relinquishes such appointment in writing, becomes
incompetent, or dies, such appointment is otherwise rescinded by order of a
-2-
INIMAN2 837988v1
court of competent jurisdiction, or persons constituting such Owner no longer
own such Condominium Unit. Such appointed voting representative may grant a
proxy to another to vote in his place at a particular meeting or meetings pursuant
to paragraph (d) of this Section 2.06, which proxy shall not constitute a
permanent relinquishment of his right to act as voting representative for the
Condominium Unit.
(c) Votina by Corporation or Trust. Where a trust, corporation, limited
liability company or other entity is an Owner or is otherwise entitled to vote, the
trustee may cast the vote on behalf of the trust and the agent or other
representative of such corporation, limited liability company, or other entity duly
empowered by such entity may cast the vote to which such entity is entitled. The
trustee of the trust or the agent or representative of such corporation, limited
liability company, or other entity so entitled to vote shall deliver or cause to be
delivered prior to the commencement of the meeting a certificate signed by such
person to the Secretary or other officer of the Corporation stating who is
authorized to vote on behalf of said trust or entity. In the event that the Secretary
of the Corporation receives conflicting certificates, neither certificate shall be
effective or binding upon the Corporation.
(d) Proxy. An Owner may vote either in person or by his duly
authorized and designated attorney-in-fact. Where voting is by proxy, the Owner
shall duly designate his attorney-in-fact in writing, delivered to the Secretary or
other officer of the Corporation prior to the commencement of the meeting.
(e) Quorum. Except where otherwise expressly provided in the
Declaration, these Bylaws, the Act or the Indiana Nonprofit Corporation Act of
1991, as amended (hereinafter referred to as the "Statute"), the Owners
representing twenty-five percent (250/0) of the Percentage Vote of all Co-owners
shall constitute a quorum at all meetings. The term "250/0 of Owners" or "250/0 of
the Percentage Vote," as used in these Bylaws, shall mean the Owners entitled
to at least twenty-five percent (250/0) of the Percentage Vote of all Co-owners in
accordance with the applicable percentage set forth in the Declaration, as such
may be amended from time to time.
(f) Conduct of Annual MeetinQ. The President of the Corporation
shall act as the Chairman of all annual meetings of the Corporation if he is
present. At all annual meetings, the Chairman shall call the meeting to order at
the duly designated time and business will be conducted in the following order:
(1) Readino of Minutes. The Secretary shall read the
minutes of the last annual meeting and the minutes of any special
meeting held subsequent thereto, unless such reading is waived
by a majority of the Percentage Vote present at a meeting at
which a quorum is present or such minutes have been previously
approved.
(2) Treasurer's Report. The Treasurer shall report to
the Owners concerning the financial condition of the Corporation
and answer relevant questions of the Owners concerning the
-3-
INIMAN2 837988v1
(b) is filed with the Corporation's minutes.
Requests for written consents must be delivered to all Members.
Section 2.08. Action bv Written Ballot. Any action that may be taken at an annual,
regular, or special meeting of the Members may be taken without a meeting if the Corporation
delivers a written ballot to every Member. A written ballot must set forth each proposed action
and provide an opportunity to vote for or against each proposed action. Approval by written
ballot is valid only when the number of votes cast by ballot equals or exceeds the quorum
required to be present at a meeting authorizing the action and the number of approvals equals
or exceeds the number of votes that would be required to approve the matter at a meeting at
which the total number of votes cast was the same as the number of votes cast by ballot. A
solicitation for votes by written ballot must (a) indicate the number of responses needed to meet
the quorum requirements, (b) state the percentage of approvals necessary to approve each
matter other than the election of directors, and (c) specify the time by which a ballot must be
received by the Corporation to be counted. A written ballot may not be revoked.
Section 2.09 Means of Communication. The Corporation and the Board of Directors
may (a) permit a Member to participate in an annual, a regular, or a special meeting by or
(b) conduct an annual, a regular, or a special meeting through the use of any means of
communication by which all Members participating may simultaneously hear each other during
the meeting. A Member participating in a meeting by such means shall be considered present
in person at the meeting.
ARTICLE III
Board of Directors
Section 3.01. Manaaement. The affairs of the Corporation and City Center Horizontal
Property Regime shall be governed and managed by the Board of Directors (herein also
collectively called "Board" or "Directors" and individually called "Director"). The Board of
Directors shall be composed of three (3) persons. No person shall be eligible to serve as a
Director unless he is, or is deemed in accordance with the Declaration to be, an Owner,
including a person appointed by Declarant as provided in Section 3.02 hereof.
Section 3.02. Initial Board of Directors. The initial Board of Directors shall be
Christopher D. Reid, Richard L. Dilling, Jr. and James T. Kelliher (herein referred to as the
"Initial Board"), all of whom have been or shall be appointed by Declarant. Notwithstanding
anything to the contrary contained in, or any other provisions of, these Bylaws or the Declaration
or the Act or elsewhere: (a) the Initial Board shall hold office until the earlier of (i) thirty (30)
days after the date on which the first Condominium Unit is conveyed by Declarant, or (ii) the
date Declarant files for record in the Office of the Recorder of Hamilton County, Indiana, an
instrument waiving or releasing its right to appoint the Initial Board (such date when the Initial
Board shall no longer hold office being herein referred to as the "Applicable Date"); and (b) in
the event of any vacancy or vacancies occurring in the Initial Board for any reason or cause
whatsoever, prior to the Applicable Date determined as provided above, every such vacancy
shall be filled by a person appointed by Declarant, who shall thereafter be deemed a member of
the Initial Board. Each Owner, by acceptance of a deed to a Condominium Unit or by
-5-
INIMAN2 837988v1
acquisition of any interest in a Condominium Unit, shall be deemed to have appointed Declarant
as such Owner's agent, attorney-in-fact and proxy, which shall be deemed coupled with an
interest and irrevocable until the Applicable Date determined as provided above, to exercise all
of said Owner's right to vote and to vote as Declarant determines on all matters as to which
Members are entitled to vote under the Declaration, these Bylaws, the Act, or otherwise. This
appointment of Declarant as such Owner's agent, attorney-in-fact and proxy shall not be
affected by incompetence of the Owner granting the same.
Section 3.03. Additional Qualifications. Where an Owner consists of more than one
person or is a partnership, corporation, trust or other legal entity, then one of the persons
constituting the Owner (or a partner, officer, or trustee of such Owner), shall be eligible to serve
on the Board of Directors, except that no single Condominium Unit may be represented on the
Board of Directors by more than one person at a time. As long as MIFM, LLC has an ownership
interest in 630 3rd Ave SW, Carmel IN, MIFM the will have no less than one member on the
board of directors.
Section 3.04. Term of Office and Vacancy. Subject to the provisions of Section 3.02
hereof, one (1) Member of the Board of Directors shall be elected at each annual meeting of the
Corporation. The Initial Board shall be deemed to be elected and re-elected as the Board of
Directors at each annual meeting until the Applicable Date provided in Section 3.02 hereof.
After the Applicable Date, each Member of the Board of Directors shall be elected for a term of
three (3) years, except that at the first election after the Applicable Date one (1) Member of the
Board of Directors shall be elected for a three (3) year term, one (1) Member for a two (2) year
term, and one (1) Member for a one (1) year term, so that the terms of at least one-third (1/3) of
the Directors shall expire annually. There shall be separate nominations for the office of each
Director to be elected at the first meeting after the Applicable Date. Each Director elected shall
hold office throughout the term of his election and until his successor is elected and qualified.
Subject to the provisions of Section 3.02 hereof as to the Initial Board, any vacancy or
vacancies occurring in the Board shall be filled by a vote of a majority of the remaining Directors
or by vote of the Owners, if a Director is removed in accordance with Section 3.05 of this
Article III, such vote to occur at a special meeting of the Members of the Corporation to be
called in accordance with the provisions of these Bylaws for the designated purpose of electing
such person or persons to fill any vacancy and to serve until such time as the next annual
meeting, wherein Directors are elected or re-elected, as the case may be. The Director so filling
a vacancy shall serve until the next annual meeting of the Members of the Corporation and until
his successor is elected and qualified. At the first annual meeting following any such vacancy, a
Director shall be elected for the balance of the term of the Director so removed or with respect
to whom there has otherwise been a vacancy.
Section 3.05. Removal of Directors. A Director or Directors, except the Members of the
Initial Board, may be removed with or 'without cause by vote of a majority of the Percentage
Vote of all Co-owners at a special meeting of the Owners duly called and constituted for such
purpose. In such case, his successor shall be elected at the same meeting from eligible
Owners nominated at the meeting. A Director so elected shall serve until the next annual
meeting of the Owners and until his successor is duly elected and qualified. At the first annual
meeting following any such vacancy, a Director shall be elected for the balance of the term of
the Director so removed or with respect to whom there has otherwise been a vacancy.
Section 3.06. Duties of the Board of Directors. The Board of Directors shall provide for
the administration of City Center Horizontal Property Regime, the maintenance, upkeep and
-6-
INIMAN2 837988v1
Section 3.07. Powers of the Board of Directors. The Board of Directors shall have such
powers as are reasonable and necessary to accomplish the performance of their duties. These
powers include, but are not limited to, the power:
(a) to employ a Managing Agent to assist the Board of Directors in
performing its duties, including keeping a record and minutes of all meetings;
provided, however, except as otherwise provided in Paragraph 25 of the
Declaration, that any management agreement shall be terminable by the
Corporation for cause upon thirty (30) days written notice and any such
agreement may not exceed one (1) year, renewable by agreement of the parties
for successive one (1) year periods.
(b) to purchase, lease or otherwise obtain for the benefit of the
Owners or for the Corporation to perform its duties such parking facilities,
equipment, materials, labor and services as may be necessary in the judgment of
the Board of Directors;
(c) to employ legal counsel, architects, contractors, accountants and
others as in the judgment of the Board of Directors may be necessary or
desirable in connection with the business and affairs of City Center and of the
Corporation;
(d) to employ, designate, discharge and remove such personnel as in
the judgment of the Board of Directors may be necessary for the maintenance,
upkeep, repair and replacement of the Common Areas and, where applicable,
the Limited Areas and as otherwise necessary for the Board of Directors to
perform its duties;
(e) to include the costs of all of the above and foregoing as Common
Expenses and to pay all of such costs therefrom;
(f) to open and maintain a bank account or accounts in the name of
the Corporation;
(g) to promulgate, adopt, revise, amend and alter from time to time
such additional rules and regulations with respect to use, occupancy, operation
and enjoyment of the Property, including, without limitation, the Common Areas
(in addition to those set forth in this Declaration) as the Board, in its discretion,
deems necessary or advisable; provided, however, that copies of any such
additional rules and regulations so adopted by the Board of Directors shall be
promptly delivered or mailed to all Owners, and further provided that such rules
and regulations are not in conflict with any terms and provisions of the
Declaration; and
(h) to adopt an annual budget for each fiscal year for the purpose of
estimating the total amount of Common Expenses for such fiscal year.
Section 3.08. Limitation on Board Action. After the Applicable Date, the authority of the
Board of Directors to enter into contracts shall be limited to contracts involving a total
expenditure of less than Ten Thousand Dollars ($10,000.00) in any twelve (12) consecutive
-8-
INIMAN2 837988v1
calendar month period without the approval of a majority of the Percentage Vote present at a
meeting at which a quorum is present.
Section 3.09. Compensation. No Director shall receive any compensation for his
services as such except to such extent as may be expressly authorized by a majority of the
Percentage Vote present at a meeting at which a quorum is present. The Managing Agent shall
be entitled to reasonable compensation for its services, the cost of which shall be a Common
Expense.
Section 3.10. MeetinQs. Regular meetings of the Board of Directors may be held at such
time and place as shall be determined from time to time by a majority of the Directors.
Special meetings of the Board of Directors may be called by the President or any two (2)
Members of the Board of Directors. The person or persons calling such meeting shall give
written notice thereof to the Secretary who shall either personally or by mail, and at least two (2)
days prior to the date of such special meeting, give notice to all of the Board Members. The
notice of the meeting shall contain a statement of the purpose for which the meeting is called.
Such meeting shall be held at such place and at such time within Hamilton or Marion Counties,
Indiana, or any of the contiguous counties, as shall be designated in the notice.
Section 3.11. Waiver of Notice. Before any meeting of the Board of Directors, any
Director may, in writing, waive notice of such meeting and such waiver shall be deemed
equivalent to the giving of such notice. The presence of any Director at a meeting or his
subsequent consent to the actions taken thereat, shall, as to such Director, constitute a waiver
of notice of the time, place and purpose thereof. If all Directors are present at any meeting of
the Board of Directors, no notice shall be required and any business may be transacted at such
meeting.
Section 3.12. Quorum and Votina. At all meetings of the Board of Directors a majority
of the Directors shall constitute a quorum for the transaction of business, and the votes of the
majority of the Directors present at a meeting at which a quorum is present shall be the decision
of the Board of Directors.
Section 3.13. Means of Communication. The Board of Directors, or a committee
thereof, may (a) permit a director or a committee Member to participate in a meeting by or
(b) conduct a meeting through the use of any means of communication by which all directors or
committee Members participating may simultaneously hear each other during the meeting. A
director or a committee Member participating in a meeting by such means shall be considered
present in person at the meeting.
Section 3.14. Action Bv Written Consent. Any action required or permitted to be taken
at any meeting of the Board of Directors, or any committee thereof, may be taken without a
meeting if a written consent describing such action is signed by each director or committee
Member and such written consent is included in the minutes or filed with the corporate records
reflecting the action taken. Action taken by written consent shall be effective when the last
director or committee Member signs the consent, unless the consent specifies a prior or
subsequent effective date. A consent signed as described in this Section 3.14 shall have the
effect of a meeting vote and may be described as such in any document.
-9-
INIMAN2 837988v1
Section 3.15. Bonds. The Board of Directors shall require the Managing Agent,
Treasurer, employees, officers and agents handling or responsible for funds of or administered
on behalf of the Corporation to have surety bonds indemnifying the Corporation against larceny,
theft, embezzlement, forgery, misappropriation, willful misapplication and other acts of fraud or
dishonesty in a total amount not less than the estimated maximum amount of funds, including
reserve funds, in the custody of the Corporation or the Managing Agent, as the case may be, at
any given time, but in no event less than a sum equal to three (3) months aggregate
assessments on all Condominium Units, plus reserve funds. Such bonds shall also specifically
include protection for any insurance proceeds received for any reason by the Board of Directors.
The bonds shall contain waivers by the issuers of the bonds of all defenses based upon
the exclusion of persons serving without compensation from the definition of employees or
similar terms or expressions. The expense of any such bonds, except those maintained by the
Managing Agent, shall be a Common Expense. The bonds shall provide that they may not be
cancelled or substantially modified (including cancellation for non-payment of premium) without
at least ten (10) days prior written notice to the Corporation and to all Mortgagees.
Section 3.16. Interest of Directors in Contracts. Any contract or other transaction
between the Corporation and one or more of its directors, or between the Corporation and any
firm of which one or more of its directors are Members or employees, or in which they are
interested, or between the Corporation and any corporation, partnership, or association of which
one or more of its directors are shareholders, Members, directors, officers or employees, or in
which they are interested, or in which the Corporation is a Member, shareholder, or otherwise
interested, shall be valid for all purposes, notwithstanding the presence of such director or
directors at the meeting of the Board of Directors of the Corporation which acts upon, or in
reference to, such contract or transaction and notwithstanding his or their participation in such
action, if the fact of such interest shall be disclosed or known to the Board of Directors and the
Board of Directors shall, nevertheless, authorize, approve or ratify such contract or transaction,
by a vote of a majority of the disinterested directors present, notwithstanding the fact that such
majority of the disinterested directors present may not constitute a quorum, a majority of the
Board of Directors, or a majority of the directors present at the meeting at which the contract or
transaction is considered. This section shall not be construed to invalidate any contract or other
transaction which would otherwise be valid under the common and statutory law applicable
thereto.
ARTICLE IV
Officers
Section 4.01. Officers of the Corporation. The principal officers of the Corporation shall
be the President, Vice President, Secretary and Treasurer, all of whom shall be elected by the
Board of Directors. The Directors may appoint an Assistant Treasurer and an Assistant
Secretary and such other officers as in their judgment may be necessary. Any two (2) or more
offices may be held by the same person, except that the duties of the President and Secretary
shall not be performed by the same person.
Section 4.02. Election of Officers. The officers of the Corporation shall be elected
annually by the Board of Directors at the initial meeting of each new Board of Directors. Upon
an affirmative vote of a majority of all Members of the Board of Directors, any officer may be
removed either with or without cause and his successor elected at any regular meeting of the
-10-
INIMAN2 837988v1
Board of Directors or at any special meeting of the Board of Directors called for such purpose.
Any vacancy or vacancies occurring in the offices of the Corporation shall be filled by a vote of a
majority of the Board of Directors at any regular meeting of the Board of Directors or at any
special meeting of the Board of Directors called for such purpose.
Section 4.03. The President. The President shall be elected from among the Directors
and shall be the chief executive officer of the Corporation. He shall preside at all meetings of
the Corporation and of the Board of Directors, shall have and discharge all the general powers
and duties usually vested in the office of president or chief executive officer of an association
organized under the laws of Indiana, including but not limited to the power to appoint
committees from among the Owners as he may deem necessary to assist in the affairs of the
Corporation and to perform such other duties as the Board of Directors may from time to time
prescribe.
Section 4.04. The Vice President. The Vice President shall be elected from among the
Directors and shall perform all duties incumbent upon the President during the absence or
disability of the President. The Vice President shall also perform such other duties as these
Bylaws may prescribe or as shall, from time to time, be imposed upon him by the Board of
Directors or by the President.
Section 4.05. The Secretary. The Secretary shall be elected from among the Directors.
The Secretary shall attend all meetings of the Corporation and of the Board of Directors, shall
keep or cause to be kept a true and complete record of the proceedings of such meetings, and
shall perform all other duties as from time to time may be prescribed by the Board of Directors.
The Secretary shall specifically see that all notices of the Corporation or the Board of Directors
are duly given, mailed or delivered, in accordance with the provisions of these Bylaws.
Section 4.06. The Treasurer. The Board of Directors shall elect from among the
Directors a Treasurer who shall maintain a correct and complete record of account showing
accurately at all times the financial condition of the Corporation and who shall perform such
other duties incident to the office of Treasurer. He shall be the legal custodian of all monies,
notes, securities and other valuables which may from time to time come into possession of the
Corporation. He shall immediately deposit all funds of the Corporation coming into his hands in
some reliable bank or other depository to be designated by the Board of Directors and shall
keep such bank account or accounts in the name of the Corporation. The Treasurer may permit
the Managing Agent to handle and account for monies and other assets of the Association to
the extent appropriate as part of its duties.
Section 4.07. Assistant Officers. The Board of Directors may, from time to time,
designate and elect from among the Owners an Assistant Secretary and an Assistant Treasurer
who shall have such powers and duties as the officers whom they are elected to assist shall
delegate to them and such other powers and duties as these Bylaws or the Board of Directors
may prescribe.
ARTICLE V
Assessments
Section 5.01. Annual AccountinQ. Annually, after the close of each fiscal year of the
Corporation, the Board of Directors shall cause to be prepared and furnished to each Owner a
-11-
INIMAN2837988v1
financial statement prepared by a certified public accountant or firm of certified public
accountants, which statement shall show all receipts and expenses received, incurred and paid
during the preceding fiscal year.
Section 5.02. Proposed Annual Budaet. Annually, on or before the end of each fiscal
year, the Board of Directors shall adopt an annual budget for the next fiscal year estimating the
total amount of the Common Expenses for the next fiscal year. Such budget may not increase
by more than twenty percent (200/0) of the previous annual budget without the approval of a
majority of the Percentage Vote present at a meeting at which a quorum is present. A copy of
such budget shall be furnished to each Owner at or prior to December 15 of each year. The
annual budget as presented to the Owners at the annual meeting of the Corporation shall be the
basis for the Regular Assessment (hereinafter defined) during such fiscal year. The annual
budget, the Regular Assessment and all sums assessed by the Corporation shall be established
by using generally accepted accounting principles applied on a consistent basis. The annual
budget and the Regular Assessment shall, in addition, be established to include the
establishment and maintenance of an adequate replacement reserve fund for capital
expenditures and replacement and repair of the Common Areas, which replacement reserve
fund shall be used for those purposes and not for usual and ordinary repair expenses of the
Common Areas. Such replacement reserve fund for capital expenditures and replacement and
repair of the Common Areas shall be maintained by the Corporation in a separate interest
bearing account or accounts with one or more banks or savings and loan associations
authorized to conduct business in Marion or Hamilton Counties, Indiana, selected from time to
time by the Board of Directors. The failure or delay of the Board of Directors to prepare an
annual budget and to furnish a copy thereof to the Owners shall not constitute a waiver or
release in any manner of the obligations of the Owners to pay the Common Expenses as herein
provided, whenever determined.
Section 5.03. Reaular Assessments. The annual budget as adopted by the Board of
Directors shall, based on the estimated cash requirement for the Common Expenses in the
current fiscal year as set forth in said budget, contain an assessment against each
Condominium Unit and the Percentage Interest appurtenant thereto. Immediately following the
adoption of the annual budget, each Owner shall be given written notice of the assessment
against his respective Condominium Unit and the Percentage Interest appurtenant thereto
(herein called the "Regular Assessment"). The aggregate amount of the Regular Assessment
shall be equal to the total amount of expenses provided and included in the final annual budget,
including reserve funds as hereinabove provided. The Regular Assessment against each
Condominium Unit and the Percentage Interest appurtenant thereto shall be paid in advance in
twelve (12) equal monthly installments, commencing on the first day of the first month of each
fiscal year and monthly thereafter through and including the first day of the last month of each
fiscal year. In the event that the Board of Directors has not adopted an annual budget and
provided the Owners with notice of the current Regular Assessment prior to the first day of the
first month of any fiscal year, then the current Regular Assessment shall be the amount of the
Regular Assessment for the prior fiscal year until such time as the Board of Directors approves
the annual budget for the current fiscal year and provides the Owners with notice of the current
Regular Assessment. Payment of the monthly installments of the Regular Assessment shall be
made to the Board of Directors or the Managing Agent, as directed by the Board of Directors;
provided, however, Owners may elect to pay monthly assessments quarterly, semi-annually or
annually, in advance. The Regular Assessment for the current fiscal year of the Corporation
shall become a lien on each separate Condominium Unit and the Percentage Interest
appurtenant thereto as of the first day of each fiscal year of the Corporation, even though the
-12-
INIMAN2837988v1
final determination of the amount of such Regular Assessment may not have been made by that
date. The fact that an Owner has paid his Regular Assessment for the current fiscal year in
whole or in part based upon a previous budget and thereafter, before the annual budget and
Regular Assessment for the current fiscal year are finally determined and approved, sells,
conveys or transfers his Condo~inium Unit and Percentage Interest appurtenant thereto or any
interest therein, shall not relieve or release such Owner or his successor as owner of such
Condominium Unit and the Percentage Interest appurtenant thereto from payment of the
Regular Assessment for such Condominium Unit and the Percentage Interest appurtenant
thereto as finally determined, and such Owner and his successor as owner of such
Condominium Unit and Percentage Interest appurtenant thereto shall be jointly and severally
liable for the Regular Assessment as finally determined. Any statement of unpaid assessments
furnished by the Corporation pursuant to Section 8.02 hereof prior to the final determination and
adoption of the annual budget and Regular Assessment for the fiscal year in which such
statement is made shall state that the matters set forth therein are subject to adjustment upon
determination and adoption of the final budget and Regular Assessment for such fiscal year,
and all parties to whom any such statement may be delivered or who may rely thereon shall be
bound by such final determinations. Monthly installments of Regular Assessments shall be due
automatically on their respective due dates without any notice from the Board of Directors or the
Corporation, and neither the Board of Directors nor the Corporation shall be responsible for
providing any notice or statements to Owners for the same.
Section 5.04. Special Assessments. From time to time Common Expenses of an
unusual or extraordinary nature or not otherwise anticipated or budgeted for may arise. At such
time and without the approval of the Owners, unless otherwise provided in these Bylaws, the
Declaration or the Act, the Board of Directors shall have the full right, power and authority to
make special assessments which, upon resolution of the Board of Directors, shall become a lien
on each Condominium Unit and the Percentage Interest appurtenant thereto, prorated in
accordance with the Percentage Interest of each Condominium Unit (herein called "Special
Assessment"). Without limiting the generality of the foregoing provisions, Special Assessments
may be made by the Board of Directors from time to time to pay for capital expenditures, or to
pay for the cost of any repair or reconstruction of damage caused by fire or other casualty or
disaster to the extent insurance proceeds are insufficient therefor under the circumstances
described in the Declaration.
Section 5.05. Failure of Owner to Pay Assessments.
(a) No Owner may exempt himself from paying Regular Assessments
and Special Assessments, or from contributing toward the expenses of
administration and of maintenance and repair of the Common Areas and, in the
proper case, of the Limited Areas, of the Building, and toward any other expense
lawfully agreed upon, by waiver of the use or enjoyment of the Common Areas or
by abandonment of the Condominium Unit belonging to him. Each Owner shall
be personally liable for the payment of all Regular Assessments and Special
Assessments which become due and payable during the period in which such
Owner holds title to a Condominium Unit. Where the Owner constitutes more
than one person, the liability of such persons shall be joint and several. If any
Owner shall fail, refuse or neglect to make any payment of any Regular
Assessment or Special Assessment when due, the lien for such Assessment on
the Owner's Condominium Unit may be filed and foreclosed by the Board of
Directors for and on behalf of the Association as provided by law. Upon the
-13-
INIMAN2 837988v1
failure of an Owner to make payments of any Regular Assessment and/or
Special Assessment, within ten (10) days after any such Regular Assessment
and/or Special Assessment (as applicable) is due (with such due dates being set
forth in accordance with Sections 5.03 and 5.04 herein and Section 13 of the
Bylaws), the Board of Directors, in its discretion, may (1) impose a late fee as
provided in the Declaration, (2) accelerate the entire balance of the budgeted and
unpaid Regular Assessments and/or Special Assessments, and any and all fines,
charges and late fees, applicable to the current full calendar year and all previous
calendar years and declare the same immediately due and payable,
notwithstanding any other provisions hereof to the contrary, and (3) eliminate
such Owner's right to vote. In any action to foreclose the lien for any
Assessments, the Owner and any occupant of the Condominium Unit shall be
jointly and severally liable for the payment to the Corporation of reasonable rental
for such Condominium Unit, and the Board of Directors shall be entitled to the
appointment of a receiver for the purpose of preserving the Condominium Unit
and to collect the rentals and other profits therefrom for the benefit of the
Corporation to be applied to the unpaid Regular Assessments or Special
Assessments. The Board of Directors may, at its option, bring a suit to recover a
money judgment for any unpaid Regular Assessment or Special Assessment
without foreclosing or waiving the lien securing the same. In any action to
recover a Regular Assessment or Special Assessment, whether by foreclosure or
otherwise, the Board of Directors, for and on behalf of the Corporation, shall be
entitled to recover costs and expenses of such action incurred, including but not
limited to reasonable attorneys' fees, from the Owner of the respective
Condominium Unit.
(b) Notwithstanding anything contained in this Section or elsewhere in
the Declaration and these Bylaws, the lien for any Regular Assessment or
Special Assessment shall be subordinate to the lien of any Mortgage if and to the
extent the Mortgage was recorded prior to the due date of any Regular
Assessment or Special Assessment, and any sale or transfer of a Condominium
Unit to a Mortgagee pursuant to a foreclosure on its Mortgage or conveyance in
lieu thereof, or a conveyance to any person at a public sale in a manner provided
by law with respect to mortgage foreclosures, shall extinguish the lien of any
unpaid installment of any Regular Assessment or Special Assessment as to such
installments which became due after the recordation of such Mortgage; provided,
however, that the extinguishment of such lien shall not relieve the prior owner
from personal liability therefor. No such sale, transfer or conveyance shall
relieve the Condominium Unit, or the purchaser at such foreclosure sale, or
. grantee in the event of conveyance in lieu thereof, from liability for any
installments of Regular Assessments or Special Assessments thereafter
becoming due or from the lien therefor. Such unpaid share of any Regular
Assessments or Special Assessments, the lien for which has been divested as
aforesaid, shall be deemed to be a Common Expense, collectible from all
Owners (including the party acquiring the subject Condominium Unit from which
it arose), as provided in the Act.
Section 5.06. Payment of Reaular Assessments. Payment of the Regular Assessments
prior to the Applicable Date with respect to each Condominium Unit and the Percentage Interest
appurtenant thereto that has been subjected to the Declaration (excluding any unoccupied
-14-
INIMAN2 837988v1
Condominium Unit(s) offered for the first time for sale and owned by Declarant) shall commence
on the dates set forth in Paragraph 13 of the Declaration.
Section 5.07. Maintenance and Repairs. Every Owner shall promptly perform all
maintenance and repair within his own Condominium Unit which, if neglected, would affect the
value of the Property. In addition, each Owner shall furnish, and shall be responsible at his own
expense for, the maintenance, repairs and replacements of his Condominium Unit and all
equipment serving the same. Such maintenance, repairs and replacements which each Owner
is responsible to make personally and at his own expense include, but are not necessarily
limited to, water lines, gas lines, plumbing and electric lines which service the Owner's
Condominium Unit only and are located within exterior walls of the Condominium Unit, including
any lines in the area from below the floor to above the roof if they are within an extension of the
exterior walls of the Condominium Unit; all partitions' and interior walls, ceilings and floors;
appliances (whether located wholly or partially inside or outside the Condominium Unit); doors,
screens and windows (including exterior and interior of all glass and screen surfaces); lamps;
interior and exterior grouting and/or caulking; and all other accessories appurtenant to the
Condominium Unit or belonging to the Owner thereof.
If, due to the willful, intentional or negligent acts or omissions of an Owner, of a Member
of his family, of a guest, tenant or other occupant or visitor of such Owner, damage shall be
caused to the Common Areas or to a Condominium Unit or Limited Area owned by or reserved
for the use of others, or if maintenance, repairs or replacements shall be required thereby which
would otherwise be a Common Expense, then such Owner shall pay for such damage and such
maintenance, repairs and replacements as may be determined by the Corporation, unless such
loss is covered by the Corporation's insurance with such policy having a waiver of subrogation
clause. If not paid by such Owner upon demand by the Corporation, the cost of repairing such
damage shall be added to and become a part of the Assessment to which such Owner's
Condominium Unit is subject. Maintenance, repairs and replacements to the Common Areas or
the Condominium Units or Limited Areas shall be subject to the rules and regulations adopted
from time to time by the Board of Directors.
To the extent that equipment, facilities and fixtures within any Condominium Unit shall be
connected to similar equipment, facilities or fixtures affecting or serving other Condominium
Units or any Common Areas or Limited Areas, then the use thereof by the owner of such
Condominium Unit shall be subject to the rules and regulations adopted from time to time by the
Board of Directors. The authorized representatives of the Corporation or Board of Directors or
the Managing Agent for the Corporation shall be entitled to reasonable access to any
Condominium Unit as may be required in connection with maintenance, repairs or replacements
of or to the Common Areas or Limited Areas or any parts thereof, or any equipment, facilities or
fixtures affecting or serving other Condominium Units or any Common Areas or Limited Areas.
ARTICLE VI
Restrictions. Entrv and Rules and Reaulations
Section 6.01. Restrictions on Use. The following restrictions on the use and enjoyment
of the Condominium Units, Common Areas, Limited Areas and the Property shall be applicable
to City Center and are in addition to those set forth in the Declaration:
-15-
INIMAN2 837988v1
(a) No Condominium Units located on any floor of the Building may
be used for any use which is not a general office and related business use
without the prior written consent of the Board of Directors and, except as
provided in Paragraph 14 of the Declaration, no Condominium Unit located on
any floor of the Building may be partitioned or subdivided without the prior written
consent of the Board of Directors.
(b) No additional buildings shall be erected or located on the Real
Estate other than the Building designated in the Declaration or a supplement or
amendment to the Declaration, and shown on the Plans or plans filed with such
supplement or amendment to the Declaration, without the consent of the Board
of Directors.
(c) No Owner shall permit anything to be done or kept in his
Condominium Unit or in the Common Areas which will result in a cancellation of
insurance on any Building or any part of the Common Areas or contents thereof,
or which would be in violation of any law or ordinance or the requirements of any
insurance underwriting or rating bureau.
(d) No nuisance shall be permitted and no waste shall be committed
in any Condominium Unit or Common Areas.
(e) No Owner of a Condominium Unit shall cause or permit anything
to be hung or displayed on the outside of the windows or patio doors or placed
on the outside walls of any Building; and no sign, awning, canopy, shutter or
radio or television antenna or other attachment or thing shall be affixed to or
placed upon the exterior walls or roofs or any other parts of any Building without
the prior written consent of the Board of Directors; provided, however, that
nothing to the contrary contained in these Bylaws, the Articles of Incorporation or
the Declaration shall limit or prohibit the Declarant from placing or affixing or
maintaining any sign or other media on the Property in connection with the sale
of Condominium Units as provided for in this Section 6.01.
(f) No animals, livestock or poultry of any kind shall be raised, bred or
kept in any Condominium Unit or in the Common Areas or on the Property.
(g) Nothing shall be done or permitted in any Condominium Unit
which will impair the structural integrity of any Building or which would structurally
change any Building or which would affect the exterior appearance of any
Condominium Unit, except as otherwise provided in the Declaration or these
Bylaws. No Condominium Unit shall be used in any unlawful manner or in any
manner which might cause injury to the reputation of City Center.
(h) The Common Areas shall be kept free and clear of rubbish, debris
and other unsightly materials.
(i) All Owners and their guests, customers and invitees, or other
persons entitled to use the same and to use and enjoy the Common Areas or any
part thereof, shall observe and be governed by such rules and regulations as
-16-
INIMAN2 837988v1
may from time to time be promulgated and issued by the Board of Directors
governing the operation, use and enjoyment of the Common Areas.
U) Except for vehicles being used by Declarant or by persons
providing services to the Declarant or an Owner, no boats, campers, trailers of
any kind, buses or mobile homes shall be permitted, parked or stored anywhere
within the Real Estate; provided, however, that nothing herein shall prevent the
driving or using of such vehicles for ingress and egress to and from such Owner's
Condominium Unit provided the shortest route to and from a public road is used.
No repair work shall be done on the Real Estate on any vehicles, including
passenger automobiles.
(k) No Owner shall be allowed to plant trees, landscape or do any
gardening in any of the Common Areas, except with express written permission
from the Board of Directors, and if such permission is granted such Owner shall
be obligated to maintain any such trees or landscaping.
(I) Any Owner who leases a Condominium Unit shall lease the entire
Condominium Unit for at least a six (6) month period and shall have a written
lease, and such lease shall provide that the lease is subject to the provisions of
the Declaration, the Bylaws and the rules and regulations as adopted by the
Board of Directors, and any failure of the lessee to comply with the terms of such
documents shall be a default under the lease. A copy of each such lease shall
be delivered to the Corporation or Managing Agent.
Section 6.02. Compliance with Covenants, Conditions and Restrictions. Every Owner,
mortgagee, lessee or other occupant of a Condominium Unit shall comply strictly with the
covenants, conditions and restrictions set forth in this Declaration, with the Bylaws and with the
rules and regulations in relation to the use and operation of the Property. A violation committed
by any persons residing in, occupying or visiting a Condominium Unit at the invitation or with the
implied or express permission of the Owner or any other occupant of the Condominium Unit, or
committed by any agent, employee, business invitee, or contractor of the Owner or of any
person occupying a Condominium Unit, shall be attributed to that Condominium Unit and the
Owner thereof. Failure to comply with any of said covenants, conditions and/or restrictions shall
be grounds for withdrawal by the Board of Directors of privileges with respect to the use of any
of the Common Areas by any defaulting Owner and by his tenants, invitees, guests and
employees. An action seeking a declaratory judgment, the recovery of sums due for damages,
or injunctive relief, or any or all of them may be maintained by the Board of Directors or by an
interested party who has obtained the prior written consent of the Board of Directors against any
Owner or other person entitled to occupy a Condominium Unit who refuses to comply or
threatens to refuse to comply with any provisions of this Declaration, the Bylaws, the rules and
regulations, or any other document establishing ownership or control over any part of the Real
Estate. One or more Owners may bring a class action on behalf of all Owners.
Any action brought by the Corporation hereunder may be brought in its own name, in the
name of its Board of Directors or in the name of the Managing Agent. In any case of flagrant or
repeated violation by an Owner, he may be required by the Board of Directors to give sufficient
surety or sureties for his future compliance with the covenants, conditions and restrictions
contained in this Declaration and with the Bylaws and rules and regulations.
-17-
INIMAN2 837988v1
Section 6.03. Riaht of Entry. All Owners and occupants of a Condominium Unit shall be
deemed to have granted the right of entry thereto to the Managing Agent or any other person
authorized by the Board of Directors in case of any emergency originating in or threatening his
Condominium Unit or the Building in which it is located, whether the Owner is present at the
time or not. Any Owner shall permit other persons, or their representatives when so required, to
enter his Condominium Unit for the purpose of performing installations, alterations or repairs to
the mechanical or electrical services, or to make structural repairs provided that requests for
entry are made in advance and that such entry is at a time reasonably convenient to the Owner.
In case of emergencies, such right of entry shall be immediate.
Section 6.04. Riaht of Board to Adopt Rules and Reaulations. The Board of Directors
may promulgate and adopt such additional rules and regulations regarding the operating of the
Property, including but not limited to the use of the Common Areas, as it may deem necessary
from time to time, and such rules as are adopted may be amended by a vote of a majority of the
Board of Directors. The Board of Directors shall cause copies of such rules and regulations and
all amendments thereto to be delivered or mailed promptly to all Owners. Such rules may
further restrict the provisions contained in these Bylaws.
ARTICLE VII
Amendment to Bvlaws
Section 7.01. Amendment to Bvlaws. Subject to any contrary, overriding or superseding
provisions set forth herein or in the Declaration, these Bylaws may be amended in the same
manner, and subject to the same limitations and requirements, as amendments to the
Declaration, as set forth in paragraph 18 of the Declaration. Amendments to these Bylaws shall
be considered as amendments of the Declaration and shall be recorded in the office of the
Recorder of Hamilton County, Indiana, as required by the Declaration and the Act.
Notwithstanding anything to the contrary contained herein or in the Declaration, there shall be
no amendment of the Declaration or these Bylaws prior to the Applicable Date without the
consent and approval of Declarant.
ARTICLE VIII
Mortaaaes
Section 8.01. Notice to Corporation. Any Owner who places a first mortgage lien upon
his Condominium Unit or the Mortgagee shall notify the Secretary of the Corporation thereof and
provide the name and address of the Mortgagee. A record of such Mortgagee and name and
address shall be maintained by the Secretary, and any notice required to be given to the
Mortgagee pursuant to the terms of the Declaration, these Bylaws or the Act shall be deemed
effectively given if mailed to such Mortgagee at the address shown in such record in the time
provided. Unless notification of any such mortgage and the name and address of Mortgagee
are furnished to the Secretary, either by the Owner or the Mortgagee, no notice to any
Mortgagee as may be otherwise required by the Declaration, these Bylaws or the Act shall be
required and no Mortgagee shall be entitled to vote on any matter to which he otherwise may be
entitled by virtue of the Declaration, these Bylaws, the Act, or proxy granted to such Mortgagee
in connection with the mortgage.
-18-
INIMAN2 837988v1
The Corporation shall, upon request of a Mortgagee who has furnished the Corporation
with its name and address as hereinabove provided, furnish such Mortgagee with written notice
of any default in the performance by its borrower of any obligations of such borrower under the
Declaration or these Bylaws which is not cured within thirty (30) days. Any Mortgagee shall
have the right to inspect the books and records of the Corporation during normal business
hours.
A guarantor or insurer of a Mortgage may, upon written request to the Corporation giving
the Corporation its name and address, receive from the Corporation any notice that would be
given to a Mortgagee also be given to the applicable insurer or guarantor.
Section 8.02. Notice of Unpaid Assessments. The Corporation shall, upon request of a
Mortgagee, a proposed mortgagee, or a proposed purchaser who has a contractual right to
purchase a Condominium Unit, furnish to such Mortgagee or purchaser a statement setting forth
the amount of the unpaid Regular Assessments or Special Assessments against the
Condominium Unit, which statement shall be binding upon the Corporation and the Owners, and
any Mortgagee or grantee of the Condominium Unit shall not be liable for, nor shall the
Condominium Unit conveyed be subject to a lien for, any unpaid assessments in excess of the
amount set forth in such statement or as such assessme"nts may be adjusted upon adoption of
the final annual budget, as referred to in Section 5.03 hereof.
ARTICLE IX
Miscellaneous
Section 9.01. Fiscal Year. The fiscal year of the Corporation shall be the calendar year.
Section 9.02. Member Compensation. No Member of the Corporation shall have or
receive any earnings from the Corporation as a result of being an officer or director of the
Corporation, except a Member may receive principal and interest on monies loaned or
advanced to the Corporation as provided in the Statute.
Section 9.03. Contracts, Checks, Notes, Etc. All contracts and agreements entered into
by the Corporation and all checks, drafts and bills of exchange and orders for the payment of
money shall, in the conduct of the ordinary course of business of the Corporation, unless
otherwise directed by the Board of Directors, or unless otherwise required by law, be signed by
the President or, in his absence, the Treasurer. Anyone of the documents heretofore
mentioned in this section for use outside the ordinary course of business of the Corporation, or
any notes or bonds of the Corporation, shall be executed by and require the signature of the
President and Secretary.
Section 9.04. Financial Statement. Upon the written request of any entity that has an
interest or prospective interest in any Condominium Unit, the Corporation shall prepare and
furnish to such entity within a reasonable time a financial statement of the Corporation for the
immediately preceding fiscal year.
Section 9.05. Severability Clause. The invalidity of any covenant, restriction, condition,
limitation or other provisions of these Bylaws shall not impair or affect in any manner the validity,
enforceability or affect the rest of these Bylaws.
-19-
INIMAN2 837988v1