Link to Printable Copy of Covenants
Daniel's Crossing Homeowner's Association, Inc. does by this
indenture, and by these restrictive covenants and requirements to be entered
for record, in the Office of the Recorder of Boone County, Indiana (the
Declaration), amends and restates the Restrictive Covenants recorded on July
23, 1996, in the Office of the Recorder of Boone County, Indiana, under
Instrument No. 9606780 (the 'Original covenants") in their entirety, and
thereafter amended by the ·'Declaration Of Amended And Restated Restrictive
Covenants Pertaining To Sections One Through Five'' recorded on November 6,
1996 in the Office of The Recorder of Boone County, Indiana, under Instrument
No. 96 l 03 l 0, and does by this Declaration restrict and covenant the Lots
and other areas within the boundary of Daniel's Crossing Unit Development,
Sections One. Two. Three. Four and five, the legal description of which real
estate is set forth on Exhibit A., (the Subdivision), to itself and its
grantees, assigns: successors> legal representatives, and to any person,
persons, corporations. banks and associations and anyone who may acquire title
to any of said Lots or other areas described in Exhibit "A" and
graphically depicted by Exhibit "B" both of which area attached
thereto the said Amended Declaration recorded on November 6. 1996 as Instrument
No. 96103 J 0, as to the following terms, stipulations, conditions.
restrictions, easements and covenants which shall apply in their entirety to
all of said Subdivision superseding and replacing the Original Covenants, which
are void and of no legal effect as of the date or recordation of the
Declaration. which is hereby made for the purpose of protecting the value and
desirability of the Subdivision and which shall run with the real property and
be binding on all pa11ics: There having been pursuant to Paragraph 40 (iv) of
the Declaration of Amended and Restated Restrictive Covenants Pertaining to
Sections One Through Five, mentioned above, the method for Adoption of any
Amendments to said Restrictive Covenants, an Affirmative vote of not less than
ninety per cent (90%) in the aggregate of all votes to be cast by all owners,
the said Declaration is Amended as follows:
I. DEFINITIONS
(a)Committee·' shall mean ··Board'. 10 be composed of seven
(7) persons. namely: President_ Vice-President, Secretary, Treasurer and three
(3) Members-at-large from current homeowners. All seven (7) to be elected by
property owners, from among the Owners of the Lots of Daniel's Crossings.
A majority of the Committee members shall constitute a
quorum for the conducting of business so long as all Committee members shall
have received written notice of a meeting at least forty-eight (48) hours in
advance. Committee members shall perform services on behalf of the Committee
without compensation.
(b) Association shall mean the Daniel's Crossing Homeowners
Association, Inc., its successors and assigns referred to in paragraph JS.
(c) Developer shall mean Daniel's Crossings Corporation, as
well as its agents, officers, successors and assigns.
(d) Owner shall mean and refer to the record owner, whether
one or more persons or entitles, of a fee simple title to any Lot which is a
part of Properties, including contract sellers and Developer, but excluding
those having such interest merely as security for the performance of an
obligation.
(e) Properties
shall mean and refer to the Subdivision here in fore described, and such
additions hereto as may hereafter be brought within the jurisdiction of the
Association.
(f) Common Area shall mean all real property (including the
improvements thereto) to he owned or maintained by the Association,
specifically including the private easements for the private streets commonly
referred to as Sierra Drive and Lakeshore Court, for the common use and
enjoyment of the Owners. The Common Area to be owned and maintained by the
Association at the time of the conveyance of the first Lot is described on
Exhibit “C”.
(g) Lot shall mean and refer to any Lot shown upon any
recorded Plat with the exception of the Common area.
(h) Section __. shall mean and refer to the areas identified
as such on the Plate.
(i) Plat
shall mean and refer to the maps identifying the location and boundaries of the
Properties separately recorded with the Office of the Recorder of Boone County.
Indiana.
2. LAND USE. Lots shall be used only for residential
purposed, and no Lot shall be subdivided unless said division creates two
building sites on three adjoining Lots, which building sites comply with the
City of Lebanon's zoning and subdivision control. ordinances and with the
Declaration. Where an Owner acquires adjoining Lots for the purpose of building
one dwelling across the common Lot line, the side Lot line setback restrictions
specified in paragraph 5 below shall not apply to said common Lot Line.
Drainage easements and utility easements coinciding with Lot lines may not be built
across.
3. DWELLING SIZE. No dwelling shall be erected, altered,
placed or permitted to remain on any Lot other than one single-family residence
not to exceed three stories in height. Dwellings on all Lots shall have at
minimum, attached two-car garages. The ground floor area of the main structure
of any dwelling, excluding garages and one-story porches, shall be as follows:
(j) ln
Sections Four and five. not less than 1,850 square feet of finished floor space
for a single-story residence. The ground floor area of the main structure of
any two-story dwelling shall be not less than I, 100 square feet, which n9 less
than total of at least 2.200 square feet of finished floor space in the
dwelling.
(k) In Sections Two and Three, not less than I ,600 square
feet of finished floor.
Space for a single-story dwelling. The ground floor of the main structure of
any two-story dwelling shall be not less than 1,000 square feet, with a total
of at least 2,000 square feet of finished floor space in the dwelling.
(l) In section One, except for lots numbered
31,34,40,42,44,46, and 47 at lease 1,200 square feet of finished floor space
for a single-story dwelling. The ground floor area of the main structure of any
two-story dwelling shall be not less than 750 square feet, with a total of at
least J ,500 square feet of finished floor space in the dwelling;
(m) In Section One, Lots 31,34,40,42,44,46 and 47 only, the
ground floor of a single-story dwelling shall contain at least J, l 00 square
feet of finished floor space. The ground floor of a two-story dwelling shall be
not less than 715 square feet of ground floor space with a total of at least I
,430 square feet for the dwelling itself.
4. UTILITY BUILDING AND/OR BARN. A utility building. barn or
other accessory building will not be allowed on any Lot, except one gazebo-type
structure and one in-ground pool with accessory building/bath house located in
the rear yard only. Said accessory building1bath house must be erected as a
part of and in conjunction with a privacy fence surrounding an in-ground pool
as provided for in paragraph 26 below. Prior to commencement of its
construction, any building allowed by this paragraph 4 must be approved as to
location and design by the Committee as described in paragraph 7 below.
5. BUILDING SETBACK DISTANCES. Except in Section One between
the front Lot lines and the building lines shown on the Plat, no buildings
shall be erected, placed, altered, or be permitted to remain. nor shall any
building be erected nearer than ten (10) feet to any sideline of a Lot. As to
buildings in Section, One, there shall be a total aggregate allowable side yard
setback of at least fifteen (15) feet so Jong as each side has at least five
(5) feet of clearance. Architectural appurtenances projecting not more than 24
inches, stairways projecting not more than four (4) feet, unenclosed and
unroofed porch slabs on the front sides of buildings, steps, and walks and bay
windows and attached fireplaces are exceptions to these setback requirements.
No house shall be built until the location and grade elevation of said house is
physically checked on the Lot and certified by a licensed professional engineer
or licensed land surveyor confirming compliance herewith.
6. OCCUPANCY OF STRUCTURES. No dwelling shall be occupied or
used for residential purposes or human habitation until it has been fully
completed on {he outside, substantially completed on the inside and a
Certificate of Occupancy has been issued therefore by the Building Inspector
for the City of Lebanon. No other structure or mobile home shall be used at any
time as a residence, either temporarily or permanently.
7.ARCHITECTURAL DESIGN No building, wall. fence, or other
structure shall be constructed, erected, placed or altered in this Subdivision
until the location plan, building plans. and specifications have been first
submitted to. and approved by. the Committee as to harmony with the exterior
design, quality, and aesthetic appearance of structures already existing, and
as to conformity with grading plans, floors elevations. destruction of trees
and other vegetation, and any other such matter as may affect the environment
or ecology of the Subdivision. The Committee approval or disapproval as
required in this Declaration shall be in writing. In the event the Committee.
or its designated representative, fails to approve or disapprove any plans and
specifications within thirty (30) days after such plans and specifications have
been submitted to it, or in any event, if no suit to enjoin the construction
has been commenced prior to the completion thereof. approval will not be
required, and the related covenants shall be deemed to have been fully complied
with.
8.IMPROVEMENT LOCATION PERMIT. In addition to the approval
required in paragraph 7 above, an Improvement Location Permit must be issued by
the Building Inspector for the City of Lebanon before any structure,
improvement or land use may be altered, changed, placed. erected, or located in
this Subdivision. A development plan showing house locations and floor
elevations, with slopes for positive surface drainage. must be provided. It is
an obligation of each Owner to develop his Lot in a way that assures that
finished slopes, grades, and erosion control measures comply with soil. water
and development plans previously approved by the Committee after completion of
all improvements and landscaping.
9.GARAGE OPENINGS. All garages must have automatic garage
equipment (to open and close the garage door except within Section One.
I 0. FENCES. Fences require Committee approval before
erection as provided in paragraph 7 above. No fence shall be placed on any Lot
or boundary thereof that will obstruct reasonable light. air, or view, or will otherwise
hinder of damage the aesthetics of the Subdivision. No fence shall be erected
in the front yard of a dwelling. Swimming pools shall be properly fenced to
protect the safety of others as required by paragraph 26 below. Fences are
allowed in easements but are erected at Owner's risk as such fences may be
partially or completely tom down by others if they interfere with the
installation, operation, and/or maintenance of the facilities for which the
easement has been reserved.
11. CONSTRUCTION TIME. All Owners, except the Developer,
shall begin construction of a residential dwelling on any vacant Lot purchased
within one (I) year from the date of closing on the Lot. Any dwelling, water
line. sewer. ditch, or any structure excepting sidewalks, once approved and
under construction, must be completed one (I) year from the
date construction starts.
12. Shark Tanks. Storage tanks for the retention of oil, gas
or similar materials, whether above or below grade, shall not be permitted in
the Subdivision.
13. SIGNS. The only signs permitted to be erected or
displayed in this Subdivision are: those required by law a single sign placed
by a builder or financial institution to advertise a property during the
construction and sales period, a single yard sale or garage sale sign placed by
the Owner no more frequently than one day twice each year_ a single sign placed
by an Owner to advertise the property for sale or rent. No sign shall exceed
nine (9) square feet in size, except signs approved by the Committee or the
signs of Davis Homes, LLC or other residential home builders may be larger.
14. Hunting and Trapping.
Hunting and Trapping are prohibited in this subdivision. Fishing is permitted for homeowners only and
their accompanied guest.
15. Sight Distances.
At driveways no one may place. Construct, plant, maintain, allow. or
suffer any improvements􀊖
landscaping, or other obstructions to vision ( excepting mailboxes mounted on
simple posts) between two (2) and eight (8) feet above the finished grade with
the purpose that at least 150 feet of sight distance will be provided in both
directions along streets from points in the driveway of twenty-five (25) feet
from the street curb. Where the Committee determines that this rule for a
driveway is impracticable or unreasonable. it may allow an alternative that
offers the lease hazard and interference with traffic.
l 6. ANIMALS. No animals or poultry shall be kept or
maintained in this Subdivision except household pets such as cats and dogs, but
no pet shall be kept. bred. or maintained for commercial purposes. Household
pets kept shall be confined by fence or leash and kept quiet so as not to
disturb the peace and tranquility of the neighborhood. Should an animal be
walked by leash, any debris or animal waste resulting therefrom shall be
cleaned up, removed. and disposed of by the Owner of said animal. Developer
shall have no obligation to enforce this paragraph; rather any complaining
Owner shall have the right to do so.
17.VEHICLE PARKJNG. No trucks larger than pickup trucks,
disabled vehicles, unused vehicles. campers. trailers, recreational vehicles,
boats, or similar vehicles shall be parked on any street, private driveway or
Lot in this Subdivision unless it is screened in such a way that it is not
visible to the occupants of the other Lots in the Subdivision. Motorcycles must
be parked on a private driveway. Street parking is for temporary guest or
visitors. This does not include the occupant During snow removal, all vehicles
must be removed, and NO PARKING will be strictly enforced. No vehicle of any
kind shall park on any street in this Subdivision excepting for a reasonable
length of time. The Board shall determine what constitutes adequate screening
and reasonable length of time.
18. Landscaping. The
Lot Owner shall landscape the Lot within sixty (60) days · following completion of a house thereon,
weather permitting, at least in a manner lo satisfy the minimum requirements of
the Department of housing and Urban Development (HUD) a copy of the HUD
requirements are available from the Developer or the Committee. Landscaping
required for sidewalk construction shall be in accordance with paragraph 3 I
below.
19. MAINTENANCE
OF LOTS AND IMPROVEMENTS. Each Lot Owner shall at all times maintain the Lot
and any improvements thereon to prevent the same from becoming unsightly by
removing all debris, rubbish, dead trees, and other materials or conditions
that reasonably tend to detract from or diminish the aesthetic appearances of
the Subdivision, and by keeping the exterior of all improvements in a good
state of repair. Garbage, trash, and other wastes shall be kept in odorless and
sanitary containers which shall be emptied weekly by a refuse collection
service. All Lots, whether improved, shall be mowed by the Lot Owners or their
designated representatives at least twice during each of the months of April
through September.
20. NUISANCES.
No noxious or offensive activity shall be carried out or allowed to be carried
out on any Lot, nor shall anything be done or allowed to be done thereon which
may become or be an annoyance or nuisance to the neighborhood.
21. BUSINESSES.
No mercantile building shall be erected. nor shall any manufacturing,
wholesaling, or retailing business be carried on in this Subdivision. except
certain residential dwellings may be used for a limited time as model homes for
the purpose of facilitat1ng the sale of Lots or the homes to be built thereon.
Model home use requires the approval of the Committee after January 1, 1999. No
day care or childcare centers will be permitted.
22. Home Occupations.
No home occupation shall be conducted or maintained on any Lot other
than one incidental to a business, profession, or occupation of the Owner or
occupant of any such Lot and which is generally or regularly conducted in
another location away from such Lot.
23. DEDICATED EASEMENTS. The Owners of the Lots in this
Subdivision will take their titles subject to the rights of the utility
companies, the Boone County Drainage Board, and the Commissions of Lebanon and
Boone County, and the Association in those certain strips of ground designated
utility easements; drainage easements, slope easements, and private streets
easements· which are identified as such in this Declaration or a Plat. No
permanent or other structures may be erected or constructed on said easements
excepting fences and the facilities for which the easements if necessary, to
the proper operation and maintenance of the facilities for which the easements
have been reserved.
24 Lot Grading. Lots shall be graded so as not to restrict
the surface water. runoff or cause
ponding, or stoppage of said runoff over any Lot in this Subdivision. See
paragraph 8 above.
25. DRIVEWAYS. Residential driveways shall be constructed of
Portland cement concrete. Pavement shall be a minimum of four (4) inches thick
excluding sub-base material.
26. Swimming Pools.
No swimming pools where the water is either partially or completely
above ground level shall be permitted. Any in-ground swimming pool shall be
properly fenced to protect the safety of others. Prior to erection, such fence
shall be approved by the Committee as required by paragraph 10 above.
27. Crawl space and Foundation Drains. No crawl spaces, eave troughs, gutters,
downspouts, or foundation drains shall be constructed to discharge water
directly onto <1 street or into a sanitary sewer.
28. SIGNAL
RECEIVER. No signal receiver in the form of a satellite dish, or other similar
device, shall be permitted unless such equipment shall be no larger than two
feet in diameter and its location and screening are approved by the Committee
prior to installation. No electronic or other type of receiving or transmit1al
equipment. including exterior antennas, shall be placed on any Lot without
approval of the Committee.
29. SANITARY SEWER CONNECTION. A check valve to prevent
backflow shall be installed in every pipe connecting between a dwelling and a
public sanitary sewer.
30.
UTILITIES CONNECTION INSPECTION. All materials and workmanship in the
installation of connections between dwellings and utility facilities shall he
subject to access and inspection by the utility companies having jurisdiction.
or by their duly authorized representatives or successors, who shall have the
right to require correction of any defects discovered.
31. SIDEWALKS.
Each initial Lot Owner taking his title from the Developer, by acceptance of a
deed for said Lot, even if not expressed in said deed, is deemed lo covenant
and agree to build and maintain in good condition a concrete walk at the sides
of all streets upon which his abuts. Said walks shall conform with the lines
and grades as established by the Committee. Each said Owner shall be
responsible for slope modifications, erosion control. and decorative
landscaping as required by the Committee for sidewalk construction. Said walks
shall conform to the development plans for the Subdivision on file in the
office of the City of Lebanon Commission and shall be placed on a 4-inch
aggregate sub-base. Sidewalks shall be constructed within one (I) year of the
date of the completion of the residential dwelling.
32. ENFORCEMENT.
If the Owner of any Lot in Daniel's Crossing shall violate or attempt to
violate any of the covenants herein, it shall be lawful for another Owner. the
Association or the building inspector of the City of Lebanon to prosecute by
any proceeding at law or equity the person or persons violating or attempting
to violate any such covenant, and either prevent him or them from so doing or
to recover damages or other dues for such violation. A violation of any
restriction herein will not result in reversion or forfeiture of title. If any
Owner of a Lot in this Subdivision shall fail to maintain his Lot and/or any
improvements situated thereon, or to keep sight distances clear, or to
construct and/or maintain sidewalks in accordance with this Declaration, the
Committee shall have the right. but not the obligation. by and through its
agents and employees or contractors: to enter upon said Lot and repair, mow,
clean. or perform such other acts as may be reasonably necessary to make said
Lot. and/or improvements situated thereon, conform to the requirements of these
restrictions. The cost thereof to the Committee shall be collected in any
reasonable manner from the Owner. Neither the Committee nor any of its agents,
employees, or contractors shall be liable for any damage that may result from
any maintenance or other work performed hereunder. Any fine so assessed against
any Lot together with interest and other charges or cost as hereinafter
provided. shall become and remain a lien upon that Lot subordinate only to the
lien of a first mortgage until paid in full and shall also be a personal
obligation of the Owner or Owners of that Lot. Such charge shall bear interest
at the maximum legal rate per annum until paid in full. If, in the opinion of
the Committee, such charge has remained due and payable for an unreasonably
long period of time. the Committee may institute such procedures, either at law
or in equity by foreclosure or otherwise, to collect the amount owing. in any
court of competent jurisdiction. The Owner of the Lot or Lots subject to the
charge shall. in addition to the amount of the charge due at the time legal
action is instituted. be obligated to pay any expenses or costs, including
attorney's fees. incurred by, the Committee in collection the same. Every,
Owner of a Lot in this Subdivision. and any person who may acquire any interest
in such Lot, whether as an Owner or otherwise, is hereby notified. and by
acquisition of such interest agrees, that any such liens which may exist upon
said Lot at the time of the acquisition of such interest are valid liens and shall
be paid. Every person who shall become an Owner of a Lot in this Subdivision is
hereby notified that the act of acquiring, making such purchase, or acquiring
such title, such person shall he conclusively held to have covenanted to pay
the Committee all fines that shall be made pursuant to this paragraph.
33. Zoning Code. To
the extent these covenants are silent on any other matters. The requirements
for residential development and construction applicable in the AAA Residential
zoning district under the Zoning Code of the City of Lebanon in effect at the
time of issuance of an improvement location permit shall control.
34. Private Streets Easements. By way of this Declaration.
Daniel’s Crossing Corporation, as Developer and Grantor for purposes of chis
paragraph. hereby grants and conveys to all Owners of Lots and members of the
Association (collectively referred to in this paragraph ·'Grantees'') a
right-of-way and nonexclusive easement to the two private streets commonly
referred to as Sierra Drive and Lakeshore Court (the two "Private
Streets") owned by Grantor and located within the Subdivision as more
particularly shown on a Plat. This right-of way and nonexclusive casement
entitles Grantees the nonexclusive use of the two Private Streets for ingress
and egress. Grantor intends that the two Private Streets he used in a fashion like
the use or publicly or municipally dedicated streets within Lebanon, Indiana.
This easement shall exist in perpetuity and shall run appurtenant to the
Subdivision. The Association, at its expense. shall maintain and repair the two
Private Streets as if owned in fee simple by the Association, which said
obligation to maintain and repair the two Private Streets shall I be the same
as the Association's obligation to maintain the Common Area owned by it. As
used herein the term '"Lakeshore Court'' shall include the extension
thereof to Lakeshore Drive across and as more particularly described in the
plat for Brighton
13ay, Section I, recorded in the Office of the Recorder of Boone County as
Misc. Record 123, pages 917- 940.as amended to date. Developer also hereby
grants to public and quasi-public utility companies and reserves unto itself
drainage. storm and sanitary sewer. gas, electric and other utility easements
across and within the two Private Streets for such purposes.
35. Homeowner Association.
(a) A nonprofit incorporated association of the Owners of
the one hundred nine (109) Lots comprising Daniel's Crossing shall be
established by Developer in order to provide for the continuing maintenance and
administration of the Common Area of Daniel's Crossing. including. the private
streets (to be known as Lakeshore Cou11, Sierra Drive) the lake. any of its
related drainage and sewer facilities. and any other expenses related to the
operation and maintenance of the Common Area within Daniels Crossing, including
the front entrance to Daniel's Crossing located at County Road 250N. Membership
in the Association shall commence immediately upon becoming an Owner and
continue for as Jong as
ownership of a Lot or Lots continues. At such time as an
Owner conveys title and ceases to be an Owner, membership in the Association
shall terminate. The new Owner of a Lot shall automatically become a member.
Although an Owner need not participate in the administration of Daniel's
Crossing. all Owners and the ownership or any Lot or Lots shall be subject to
an and all rules and regulations duly established by the Association and shall
be liable for the payment of all assessments levied by the Association. Every
Owner shall have a right of enjoyment in and to the Common Area which shall
pass with the title to every Lot. subject to the right of the Association to
charge reasonable admission and other fees for the use of any recreational
facility situated upon the Common Area; the right of the Association to suspend
the voting rights and rights to use of the recreational facilities by an Owner
for any period during which any assessment against the Owner1 s Lot remains
unpaid and for a period not to exceed sixty days for any infraction of the
Association's published rules and regulations; the right of the Association to
dedicate or transfer all or any part of the Common Area to any public agency,
authority, or utility for such purposes and subject to such conditions as may be
agreed to by the members. No such dedication or transfer shall be effective
unless an instrument agreeing to such dedication or transfer is signed by
two-thirds of each class of members has been recorded. Any Owner may delegate
in accordance with the by-laws, his right of enjoyment to the Common Area and
facilities to the members of the Owner's family, his tenants. or contract
purchasers who may reside on the property.
(b) Eve1y Owner of a Lot which is subject to assessment
shall be a member of the Association. Membership shall be appurtenant to and
may not be separated from ownership of any Lot which is subject to assessment.
The Associat1on shall have two classes of voting me1nbership: Class A members
shall be all Owners, with the exception of the Developer, and shall be entitled
to one vote for each Lot owned. When more than one person holds an interest in
any Lot, all such persons shall be members. The vole for such Lot shall be
exercised as they dctem1ine. but in no event shall more than one vote be cast
with respect to any Lot. The Class B member(s) shall be ·the Developer and
shall be entitled to three (3) votes for each Lot owned. "the Class B
membership shall cease and be converted to a Class A membership on the
happening of either of the following events, whichever occurs earlier: (a) when
the total votes outstanding in the Class A membership equal the total votes
outstanding in the Class B membership, or (b) on January I. 2004.
(c) The Association shall be responsible for the following:
(i) maintenance and repair of Lakeshore Court, Sierra Drive and the common
entry way off of County Road 250N, the lake and any related drainage
facilities, and such other facilities and improvements otherwise determined by
the Association to be for the common good of the Owners and/or Lots and
appropriate for Association maintenance provided that the same is part of the
private streets easement or Common Area; (ii) payment of insurance, if any and
any real estate taxes assessed against the Common Areas of Daniel's Crossing:
(iii) determination of general and special assessments levied against the
Owners: (iv) promulgation and enforcement of the rules and regulations in the
Declaration or as other as duly promulgated by the Owners; and (v) exercise of
the rights vested in the Association by the Declaration.
(d) Business of the Association shall be conducted at
meetings of the Association. Meetings of the Association may be called by the
then-current president or secretary-treasurer of the Association or upon
request of the Owners of at least one quarter (1/4) of the Lots. Written notice
of any meeting of the Lot Owners shall be personally delivered or mailed by
first class United States mail by the secretary-treasurer to all Owners at
least twenty (20) days prior to any proposed meeting. Owners shall be entitled
to one (1) vote for each Lot owned. All matters before the Association. except
as otherwise specified by this Declaration shall be decided by a vote, in
person or by written proxy, of the Owner(s) of a majority of u1e Lots. In cases
of joint ownership, any joint Owner may cast the votes, corresponding to the
Lot or Lots so owned., and once any such vote is case, it shall be conclusive
and binding on all joint Owners of any such Lot.
(e) The Association shall have the power to levy uniform,
general and special assessments against each Owner and each Lot, without regard
to the size thereof relative 10 any other Lot in Daniel's Crossing.
(I) Developer hereby covenants and each Owner of each Lot by
acceptance of a deed thereto. whether or not it shall be so expressed in such
deed. is deemed to covenant and agree, to pay the Association general and
special assessments, such assessments to he established and collected as
provided in this Article. Until paid in full, an assessment not paid when due,
together with interest thereon (at a percentage rate per annum equal to the
then-current Indiana statutory maximum annual interest rate) and costs of
collection (including reasonable attorneys' fees and court costs) shall be a
continuing lien upon the Lot against which such assessment is made. Each
assessment. together with interest and costs of collection as aforesaid, shall
also become and remain, until paid in full, the personal obligation of the
Owner of the Lot at the time when assessment first became due and payable. The
personal obligation for delinquent assessments shall not pass to successors in
title unless assumed. If any Owner fails, refuses or neglects to make payment
of an assessment when due, the lien for such assessment on such Owner's Lot
may, at any time following notice thereof by first-class United States mail of
the amount thereof to an Owner and the expiration of ten (10) days from the
date such notice is sent, be foreclosed from time to time under Indiana law. or
in any other manner otherwise from time to time permissible or provided by law.
The Association may at its option, bring a suite against the Owner (and if more
than one, either jointly or severally) to recover a money judgment for any
unpaid assessment without foreclosing the lien for such assessment or waiving
the lien securing the same. In any action to recover an assessment. whether by
foreclosure or othe1wise, the Association shall be entitled to recover interest
as aforesaid and the costs and expenses of such action, including. but not
limited to, reasonable attorneys· lees and court costs.
(g) General or special assessments levied by the Association
shall be used exclusively to exercise those powers and advance use purposes for
which the Association has been formed by this Declaration and. until Dedication
and Acceptance by the applicable governmental or quasi-governmental agency to
provide for snow removal from the insuring, maintenance, repair, replacement or
reconstruction of the Common Area. including the private streets and the
payment of real estate taxes assessed against Common Area.
(h) Until January 1 of the year immediately following the
conveyance of the first Lot to an Owner, the maximum annual assessment shall be
One Hundred Dollars ($100.00) per Lot.
(i) From and after January 1 of the year immediately
following the conveyance of the first Lot to an Owner, the maximum annual
assessment may be increased each year not more than 5% above the maximum
assessment for the previous year without a vote of the membership.
(ji) From and after January 1 of the year immediately
following the conveyance of the first Lot to an Owner, the maximum annual assessment
may be increased above 5% by a vote of two-thirds (2/3) of each class members
who are voting in person or by proxy. at a meeting duly called for this
purpose.
(iii) The Board of Directors may fix the annual assessment
at an amount not in excess of the maximum.
(i) In addition to the annual assessments authorized above,
the Association may levy, in any assessment year, a special assessment
applicable to that year only for the purpose of defraying, in whole or in part.
the cost of any construction, reconstruction. repair or replacement of a
capital improvement upon the Common Area, including fixtures and personal
property related thereto) provided that any such assessment shall have the
assent of two-thirds (2/3) of the votes of each class of members who are voting
in person or by proxy at a meeting duly called for this purpose.
(k) Written notice of any meeting called for the purpose of
taking any action authorized under subsection (h) and U) shall be sent to all
members not Jess than 20 days in advance of the meeting. At the first such
meeting called, the presence or members or of proxies entitled to cast sixty
percent (60%) of all the votes of each class of membership shall const1tute a
quorum. If the required quorum is not present. another meeting may be called
subject to the same notice requirement, and the required quorum at the
subsequent meeting shall be one-half (1/2) of the required quorum at the
preceding meeting. No such subsequent meeting shall be held more than 60 days
following the preceding meeting.
(I) The annual assessments provided for herein shall
commence as to all Lots on the first day of the month following the conveyance
of the Common Area to the Association. The first annual assessment shall be
adjusted according to the number of months remaining in the calendar year. The
Board or Directors of the Association shall fix the amount of the annual
assessment against each Lot at least thirty (30) days in advance of each annual
assessment period. Written notice of the annual assessment shall be sent to
every Owner subject thereto. The due dates shall be established by the Board of
Directors of the Association. The Association shall, upon demand, and for a
reasonable charge, furnish a certificate signed by an officer of the
Association setting forth whether the assessments on a specified Lot have been
paid. A properly executed certificate of the Association as to the status of
assessments on a Lot is binding upon the Association as of date of its
issuance.
(m) Between May 1st and July 10th each
year, the Owner shall hold an annual meeting with notice to all Owners in the
manner required by subparagraph 35 (k) above. At the annual meeting, the Owners
shall elect a president, vice-president, secretary, treasurer and three
at-large Board members to coordinate and handle the day-to-day affairs of the
Association and shall adopt a proposed budget to cover, the period from
September I to August 31 next succeeding. The at-large Board members shall be
elected to serve for a one-year term and may be re-elected annually with no
term limits. The officers shall be elected to two (2) year staggered terms. The
staggered term shall be implemented as follows. At the 2009 Annual Meeting the
President and Secretary shall be elected for a one (I) year term. The
Vice-President and Treasurer shall be elected to a two (2) year term. Therefore,
all officers shall be elected for two (2) year terms with the President and
Secretary elected in even numbered years and the Vice-President and Treasurer
shall be elected in odd numbered years. Should a vacancy occur in any office
the Board will appoint a replacement if necessary. The budget adopted by the
Association shall provide for allocation of anticipated expense in such a
manner that the obligations imposed by this Declaration will be met and shall
further outline all anticipated expenses and obligations for the period covered
thereby. Following approval of the budget. the Board of Directors shall fix a
uniform general assessment against each Lot (and the Owner(s) thereof) in an
amount necessary to defray the expenses and obligations budge(ed) together with
an amount, if any, approved by the Owners to permit contribution into a reserve
account in order to defray anticipated future capital expenditures. Notice of
the uniform general assessment shall be sent by the Board to each Lot Owner as
soon as practicable following the annual meeting. Unless otherwise determined
by majority vote of the Owners, the general assessment established shall be
paid in full to the secretary-treasurer of the Association in one (I)
installment on or before August 31 next succeeding. Upon receipt of payment,
the Board shall deposit the amount involved in an account opened and maintained
in the name of the Association at a state or national bank having its principal
banking offices in Lebanon, Zionsville, or Indianapolis, Indiana. Withdrawals
from such account shall be made only upon the approval of the president or two
officers and secretary signing jointly and only for a purpose or purposes set forth
in this covenant.
(n) The lien of the assessments provided for herein against
a Lot shall be subordinate to the lien of a recorded bona fide first mortgage
covering such Lot and subordinate to any tax or special assessment lien on such
Lot in favor of any governmental taxing or assessing authority. The sale or
transfer of a Lot shall not affect the assessment lien. The sale or transfer of
a Lot pursuant to bona fide mortgage foreclosure proceedings or any other bona
fide proceeding in lieu thereof shall, however. extinguish the lien of such
assessment as to any payment which became due prior to such sale or transfer.
No such sale or transfer shall release a Lot from liability for any assessments
thereafter becoming due or from the lien thereof.
(o) The Board shall have the duties set forth in this
Declaration and shall attend to and handle the day-to-day affairs of the
Association and shall attend to handle such other duties delegated to them by
the Owners. All acts taken and things done shall be measured by a standard of
reasonableness and the Board shall not have any liability to an Owner, Owners,
or the Association unless acting in bad faith in a manner inconsistent with the
terms and provisions of this covenant. Notwithstanding the foregoing. in no event
(except in the case of a bona find emergency involving a total expenditure not
exceeding Seven Hundred Fifty Dollars ($750.00) or such other amount from time
to time established by the Owners), shall either the president or
secretary-treasurer have any right, privilege or authority to contract for,
solicit, hire or other obtain services or materials which are not included
within and covered by the budget then applicable or which are otherwise funded
by a special assessment levied in accordance with subparagraph 35 (i) above.
36. NON-LIABILITY
OF DEVELOPER. Daniel's Crossing Corporation and its agents, successors and
assigns shall not have any liability to an Owner or to any person or entity
with respect to drainage on, over. under or through a Lot so long as Developer
has constructed the same in accordance with the applicable plans and
specifications therefore as approved by the applicable governmental agency and
if the same are constructed in a good and workmanlike manner. Upon the
improvement and development of a Lot. the proper handling of storm and surface
water drainage shall be the responsibility of the Owner of such Lol, and each
Owner by the acceptance of a deed to a Lot. shall be deemed to and does thereby
IMDEMNIFY AND HOLD HARMLESS Developer against. and all liability arising out of
or in connection with the handling discharge, transmission. accumulation or
control of storm or surface water draina2.e to. from. over. under or -
through the Lot described in such deed respecting work
performed and actions taken by such Owner.
37. TERM. This
Declaration will run with the land and shall be binding on all parties, and all
persons claiming under them. for a period of twenty-five (25) years from the
date this Declaration is recorded. after which twenty-five (25) years they
shall be automatically extended for successive ten (10) year periods, unless a
written instrument amending the same is signed by majority of the then Owners
of the Lots and has been recorded agreeing to change this Declaration in whole or
in part so long as same does not unreasonably increase the burden on any Lot or
Owner.
38. SEVERABILITY.
Invalidation of any one of these covenants by cour1 order shall not affect any
of the other provisions, which shall remain in full force and effect.
39. ANNEXATIN,
Additional residential property and common area may be annexed to the
Properties with the consent of two-thirds (2/3) of each class of members.
40. AMENDMENTS. Except as otherwise provided in this
Declaration, amendments to this Declaration shall be proposed adopted in the
following manner:
(i) Notice. Notice of the subject matter of any proposed
amendment shall be included in the notice of the meeting of the members of the
Association at which the proposed amendment is to be considered.
(ii) 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 votes of all Owners.
(iii) Meeting. The resolution concerning a proposed
amendment must be adopted by the vote required by subparagraph (iv) below at a
duly called meeting of the members of the Association.
(iv) Adoption. Any proposed amendment to this Declaration
must be approved by a vote of not less than ninety percent (90%) in the
aggregate of all votes entitled to be cast by all Owners if the proposed
amendment is considered and voted upon on or before twenty-five (25) years
after the date hereof, and not less than seventy-five percent (75%) of such
votes if the proposed amendment is considered and voted on after twenty-five
(25) years from the date hereof. In any case1 provided, however. that any such
amendment shall require the prior written approval of Developer so long as
Developer or any entity related to Developer owns any Lot within the Subdivision.
In the event any Lot 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 provided the Mortgagee has given prior notice of its mortgage interest to
the Board of Directors of the Association. As long as there is a Class B
membership, the following actions will require the prior approval of the
Federal Housing Administration or the Veterans Administration: annexation or
additional properties, dedication or mortgaging of Common Area, and amendment
of this Declaration.
(v) Mortgagees' Vote on Special Amendments. No amendments to
this Declaration shall be adopted which changes any provision of this
Declaration ,which would be deemed to be of a material nature by the Federal
National Mortgage Association under Section 601.02 of Part V, Chapter 4, of the
Fannie Mae Selling Guide, or similar provision of any subsequent guidelines
published in lieu of or in substitution for the Selling Guide, or which would
be deemed to require the first mortgagee· s consent under the Freddie Mae
Seller's and Servicers' Guide, Vol. I, Section 2103(d), without the written
approval or at least sixty-seven percent (67%) of the Mortgagees who had given
prior notice of their mortgage interest to the Board of Directors of the
Association.
Any Mortgagee which has been duly notified of the nature of
any proposed amendment shall be deemed to have approved the same if the
Mortgagee or a representative thereof fails to appear at the meeting in which
such amendment is to be considered (if proper notice of such meeting was timely
given to such Mortgagee) or if the Mortgagee does not send its written
objection to the proposed amendment prior to such meeting. In the event that a
proposed amendment is deemed by the Board of Directors of the Association to be
one which is not of a material nature, the Board of Directors shall notify all
Mortgagees whose interest have been made known to the Board of Directors of the
nature of such proposed amendment, and such amendment shall be conclusively
deemed not material if no Mortgagee so notified objects to such proposed
amendment within ten ( 10) days after the date such notices are mailed and if
such notice advises are mailed and if such notice advises the Mortgagee of the
time limitation contained in this sentence.
41. AMENDMENTS BY THE DEVELOPER. Developer hereby reserves
the right, so long as Developer or any entity related to Developer owns any Lot
within the Subdivision. to make any technical amendments to this Declaration or
the Plat. without the approval of any other person or entity: for any purpose
reasonably deemed necessary or appropriate by the Developer, including without
limitation: to bring Developer or this Declaration or Plat into compliance with
the requirements of any stature, ordinance, regulation or order of any public
agency having jurisdiction thereof; to conform with zoning covenants and
conditions; to comply with the requirements of the Federal National Mortgage
Association, the Government National Mortgage Association, the Federal Home
Loan Mortgage Corporation, the Department of Housing and Urban Development, the
Veterans Administration, the Federal Housing Administration, or any other
governmental agency or to induce any of such agencies to make, purchase. sell,
insure or guarantee first mortgages: or to correct clerical or typographical
errors in this Declaration or any amendment or supplement hereto; provided,
however: that in no event shall Developer be entitled to make any amendment
which has a material adverse effect on the rights of any Mortgagee, or which
substantially impairs the rights granted by this Declaration to any Owner or
substantially increases the obligations imposed by this Declaration on any
Owner.
Each amendment to this Declaration or Plat need be executed
only by Developer in any case where Developer has the right to amend this
Declaration and, otherwise, by the president and vice-president and secretary
of the Association; provided. however. that any amendment requiring the consent
of Developer shall contain Developer's signed consent. All amendments shall be
recorded in the office of the Recorder of Boone County, Indiana, and no
amendment shall become effective until so recorded.
IN WITNESS WHEREOF, the undersigned has caused this
declaration of amended covenants to be executed this 15th day of May, 2010.
