HomeMy WebLinkAboutCovenants & Amendments: RECORDED
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19.
13.
Entry Ways, Landscape Easements and Planting Areas ....................... -15-
(a) Entry Ways · · · · · · · .. · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -15-
(b) Landscape Easements ........................................... -15-
(c) Planting Areas ................................................. -15-
14.
Site Furniture and Facilities · · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -15-
15.
Round-Abouts and Street Trees · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ". . . . . .. -15-
(a) Round-Abouts. · · · · '. · · · · . . . . ." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -15-
(b) Street Trees ................................................... -16-
(c) Maintenance of Street Trees ...................................... -16-
16.
Common Parkirig Lots · · · · · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -16-
Open Space ......................................................... -16-
17.
18.
Village of WestClay Owners Association, Inc. .......... . . . . . . . . . . . . . . . . . . . .
( a) Membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b.) Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . .
( c ) Classes of Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) V oting and Other Rights of Members .............................. _..
( e ) Reserve for Replacements .........................................
(f) Debt Service Account ...........................................
(g) Maintenance Standards ..........................................
(h) Insurance, Taxes and Utilities .....................................
(i) Limitations on Action by the Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . .
G) . Mergers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . .
(a) Creation of the Lien and Personal Obligation of Assessments. . . . . . . . . . . .
(b) General Assessment . . .. . . . . . . . . . . . . . . . .'. . . . . . . . . . . . . . . . . . . . . . . . .
(i) Purpose of Assessment ..............................
(ii) Basis for Assessment ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) Residential Lots .................................. . . .
(2) Commercial Lots ...................................
(3) Lots Owned by Declarant or Permitted Title Holder. . . . . . . .
( 4) Condominiums . . . . . . . . . . . . . . . . . . . . . . .". . . . . . . . . . . . . .
( 5) Chan.ge in Basis ....................................
(iii) Method of Assessment . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . .
(iv) Allocation of Assessment ............................
( c ) Community Area Initial Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) Community Area Debt Service Assessment ..........................
(e) Parcel Assessments .............................................
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(i) Purpose of Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -25-
(ii) Method of Assessment · . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -25-
(iii) Special Assessments ................................ -26-
(f) Architectural Control Assessment ...... . . . . . . . . . . . . . . . . . . . . . . . . . . .. -26-
(g) Special Assessment ............................................. -26-
(h) Date of Commencement of Assessments ............................. -27-
(i) Effect of Nonpayment of Assessments; Remedies of the Corporation.. . . . .. -27-
G) Subordination of the Lien to Mortgages ............................. -27-
(k) Certificates · · · · · · · · · · · · · · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -28-
(I) Annual Budget · · · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -28-
(1) Adoption of Budget .......................... . . . . . .. -28-
(2) Certification of Village Center Maintenance Costs. . . . . . . .. -28-
(3) Village Center Budget ................ . . . . . . . . . . . . . .. -28-
20. Architectural Control · · · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -29-
( a) The Architectural Review Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -29-
(b ) PtlrpO se · · · · · · · · · · · · · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . .. - 29-
(c) Building Activity · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -29-
(d) Procedmes. · · · · · · · · · · . . . . .'. . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .. _ 30-
( e ) Guidelines and Standards · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. - 30-
(t) Application of Guidelines and Standards ............................ -31-
(g) Design Consultants ............................................. -31-
(h) Existing Violations of Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -31-
(i) Exercise of Discretion ....................................-....... -31-
G) Liability of Board · · · · · · · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -32-
(k) Inspection · · · · · · · · · · · .. · · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. - 32-
21. Community Area and Common Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -32-
( a) Ownershi. p .................................................... _ 3 2-
(b ) Density 0 f Use ............................................. . . .. - 32-
(c) Obligations of the Corporation .................................... -32-
(d) Easements of Enjoym~nt ................................. . . . . . . . .. -33-
(i) Owners · · · · · · · · · . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -33-
(ii) Occupants · · · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . .. -33-
(e) Extent of Easements · · · · · . · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. _ 34-
(f) Additional Rights of Use --. · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -35-
(g) Damage or Destruction by/Owner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -35-
(h) Conveyance of Title · · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -36-
22. Use of Tract ..................................................... . . .. _ 3'6-
(a) Protective Covenants ............................................. _ 36-
(i) Land Use ............................................... - 36-
(ii ) Nuisances · · · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. _ 36-
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(iii) Other Restri cti ons ........................................ - 36-
(iv) Exceptions. · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. - 37-
(b ) Maintenance ofT mCt · · · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. - 3 7-
23 · Easements. · · · · · · · · · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. _ 37 _
(a) Plat Easements · · · · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. - 37-
(i) Drainage Easements · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -38-
(ii) Sewer Easements ............ . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -38-
(iii) Utility Easements · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -38-
(iv) Entry Way Easements ..................... '. . . . . . . . . . . . . . .. -38-
(v) Landscape Easements ..................................... -3 8-
(vi) Water Access Easements ................................. .. - 39-
(vii) Community Area Access Easements........... . .. .. . . . . . . . . .. -39-
(viii) Pathway Easements ....................................... -39-
(ix) Non-Access Easements .................................... -39-
(x) Alley Easements · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. - 3 9-
(b) General Easement .............................................. - 39-
( c) Public Health and Safety Easements ................................ -40-
(d) Drainage Board Easement .................................... . . .. -40-
( e) Crossing Underground Easements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -40-
(f) Declarant's Easement to Correct Drainage ........................... -40-
(g) Water Retention · · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -41-
24. Use of Lots During Development ........................................ -41-
(a) By Declarant .................................................. -41-
(b) By Builders ................................................... -41-
25 · Enforcement · · · · · · · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -41-
26. Limitations on Rights of the Corporation ................................... -42-
27. Approvals by Declarant · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -42-
28. Mortgages. · · · · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -42-
(a) Notice to Corporation ........................................;... -42-
(b) Notices to Mortgagees .. · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -42-
(c) Notice of Unpaid Assessments .................................... -43-
(d) Financial Statements ................................ ~ . . . . . . . . . . .. -43-
(e). . Payments by Mortgagees · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -43-
29. Am.endm.ents. · · · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -43-
( a) Generally. · · · · · · · · · · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -43-
(b) By Declarant .................................................. -44-
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DECLARA nON OF COVENANTS AND RESTRICTIONS
THE VILLAGE OF WESTCLA Y
This Declaration, made as of the 9th day of Au~ust , 19E,by
BRENWICK 'IND. COMMUNITIES, LLC, an Indiana limited liability company ("Declarant"),
WITNESSETH:
WHEREAS, the following facts are true:
A. Declarant owns, or has the right to acquire the real estate located in Hamilton County,
Indiana, described in Exhibjt A and depicted on Exhibit B, upon which Declarant intends, but is not
obligated, to develop a traditional neighborhood to be lmown as The Village of West Clay.
B. The Development Area has been designated as the Planned Unit Development District
and development thereof is subject to the development standards set forth in the Zoning Ordinance.
C. Declarant intends, but is not obligated, to construct certain improvements and
amenities in WestClay which shall constitute Community Area.
D. Declarant desires to provide for the preservation and enhancement of the property
values, amenities and opportunities in WestClay and for the maintenance of the Tract and the
improvements thereon, and to this end desires to subject the Tract together with such additions as
may hereafter be made thereto (as provided in Paragraph 3) to the covenants, restrictions, easements,
charges and liens hereinafter set forth, each of which is for the benefit of the Lots and lands in the
Tract and the future owners thereof.
E. Declarant deems it desirable, for the efficient preservation of the values and amenities
in W estClay, to create agencies to which may be delegated and assigned the powers of owning,
maintaining and administering the Community Area, administering and enforcing the Restrictions,
collecting and disbursing the Assessments and charges hereinafter created, and promoting the
recreation, health, safety and welfare of the Owners of Lots in WestClay.
F. Declarant has incorporated under the laws of the State of Indiana nonprofit
corporations lmown as The Village ofWestClay Owners Association, Inc. andWestClay Village
Owners Association, Inc. for the purpose 'of exercising such functions. .
NOW, THEREFORE, Declarant hereby declares that all of the Lots and lands in the Tract
and such additions thereto as may hereafter be made pursuant to Paragraph 3 hereof, as they are held
and shall be held, conveyed, hypothecated or encumbered, leased, rented, used, occupied and
improved, are subject to the following Restrictions, all of which are declared to be in furtherance of
a plan for the improvement and sale of Lots in the Tract, and are established and agreed upon for the
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"Villaie Center Supplemental Declaration" means the Supplemental
Declaration relating to the Village Center Parcel.
"Village Community Buildings" means the Meeting House, the Trustees Hall,
the Chapel, the buildings constituting a part of or located in or on the Recreation
Centers and such other civic or recreational buildings as may be constructed in
W estClay by Declarant principally for the use of the Owners as a benefit of
ownership of a Lot, title to which is, or is intended ultimately to .be, vested in a
Permitted Title Holder. .
"Warranty Period" means, with respect to Street Trees, a period of one (1)
year following the date a Street Tree is planted in a Planting Area.
"Water Access Easement" means the area designated on a Plat as a means of
access to the Lake or a Pond.
"WestClay" means the name by which the Tract shall be commonly known.
"Zoning Authority" with respect to any action means the Director of the
Department of Community Services of the City of Carmel or, where he lacks the
capacity to take action, or fails to take such action, the governmental body or bodies,
administrative or judicial, in which authority is vested under applicable law to hear
appeals from, or review the action, or the failure to act, of the Director.
"Zoning Ordinance" means the ordinance adopted by the Common Council
of the City of Carmel, Indiana, establishing the WestClay Village Planned Unit
Development District.
2. Declaration. Declarant hereby expressly declares that the Tract and any additions
thereto pursuant to Paragraph 3 hereof shall be held, transferred, and occupied subject to the
Restrictions. The Owner of any Lot" or Parcel subject to these Restrictions, by (i) acceptance of a
deed conveying title thereto, or the execution of a contract for the purchase thereof, whether from
Declarant or a subsequent Owner of such Lot or Parcel, or (ii) by the act of occupancy of any Lot or
Parcel, shall accept such deed and execute such contract subject to each Restriction and agreement
herein contained. By acceptance of such deed or execution of such contract, each Owner
acknowledges the rights and powers of Declarant and of the Corporation with respect to these
Restrictions, and also for itself, its heirs, personal representatives, successors and assigns, covenants,
agrees and consents to and with Declarant, the Corporation, and the Owners and subsequent Owners
of each of the Lots and Parcels affected by these Restrictions to keep, observe, comply with and
perform such Restrictions and agreement
3. Additions to the Tract. Declarant shall have the right to bring within the scheme of
this Declaration and add to the Tract real estate that is a Part of the Development Area or that is
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contiguous to the Development Area. In determining contiguity,' public rights of way shall not be
considered.
The additions authorized under this Paragraph 3 shall be made by the filing of record of one
or more Supplemental Declarations with respect to the additional real estate and by filing with the
Corporation any revisions to the General Plan of Development necessary to reflect the scheme of
development of the additional real estate. Unless otherwise stated therein, such revisions to the
General Plan of Development shall not bind Declarant to make the proposed additions. For purposes
of this Paragraph 3, a Plat depicting a portion of the Development Area shall be deemed a
Supplemental Declaration.
4. The Lake.
(a) Development. Declarant intends, but is not obligated, to acquire title
to the Lake. Declarant reserves the right, subsequent to acquisition of the Lake, to
alter the size and configuration thereof (as a result of which, the Lake may vary from
that depicted on the General Plan of Development attached as Exhibit B hereto).
(b ) Title and Maintenance. If Declarant acquires title to the Lake, it shall
subsequently convey such title to a Permitted. Title Holder. Unless otherwise
specified in the instrument of conveyance, the Corporation shall be responsible for
maintaining the Lake. The Maintenance Costs of the Lake shall be assessed as a
General Assessment against all Lots subject to assessment. Each Owner of a Lot that
abuts the Lake shall be responsible at all times for maintaining so much of the bank
of the Lake above the pool level as constitutes a part of, or abuts, his Lot (exclusive
of the Lake Liner and apy Path) and shall keep that portion of the Lake abutting his
Lot free of debris and otherwise in reasonably clean condition.
(c) lls.c. No boats shall be permitted upon any part of the Lake except if
and to the extent authorized by the Board of Directors and then subject to such roles
and regulations as may be adopted by the B~ard of Directors. No dock, pier, wall or
other structure may be extended into the Lake without the prior written consent of the
Architectural Review Board and such governmental authority as may have
jurisdiction thereover. No swimming will be permitted in the Lake except if and to
the extent authorized by the Board of Directors. Each Owner of a Lot abutting the
Lake shall indemnify and hold harmless Declarant, the Corporation and each other
Owner against all loss or damage incurred as a result of injury to any Person or
damage to any property, or as a re~lt of any other cause or thing, arising from or
related to use of, or access to, the L8ke by any Person who gains access thereto from,
over or across the Owner's Lot with the knowledge or acquiescence of such Owner.
Declarant shall have no liability to any Person with respect to the Lake, the use
thereof or access thereto, or with respect to any damage to any Lot resulting from the
Lake or the proximity of a Lot thereto, including loss or damage from erosion.
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5. The Ponds.
(a) . Development. Declarant intends, but is not obligated, to develop the
Ponds. Declarant reserves the right, subsequent to commencement of development
of the Ponds, to determine the size and configuration thereof (which may vary from
that depicted on the General Plan of Development attached as Exhibit B hereto).
(b ) Title and Maintenance. Declarant shall convey title to the Ponds to
a Permitted Title Holder. Unless otherwise specified in the instrument of conveyance,
the Corporation shall be responsible for maintaining the Ponds. The Maintenance
Costs of the Ponds shall be assessed as a General Assessment against all Lots subject
to assessment. Each Owner of a Lot that abuts a Pond shall be responsible at all
times for maintaining so much of the bank of the Pond above the pool level as
constitutes a part of, or abuts, his Lot (exclusive of any Path) and shall keep that
portion of the Pond abutting his Lot :free of debris and otherwise in reasonably clean
condition.
(c) ~. No boats shall be permitted upon any part of a Pond. No dock,
pier, wall or other structure may be extended into a Pond without the prior written
consent ~f the Architectural Review Board and such governmental authority as may
have juIisdiction thereover. No swimming will be permitted in any Pond except if
and to the extent authorized by the Board of Directors. Each Owner of a Lot abutting
a Pond shall indemnify and hold harmless Declarant, the Corporation and each other
Owner against all loss or damage in~urred as a result of injury to any Person or
damage to any property, or as a result of any other cause or thing, arising from or
related to use of, or access to, a Pond by any Person who gains access thereto from,
over or across such Owner's Lot with the knowledge or acquiescence of such Owner.
Declarant shall have no liability to any Person with respect to a Pond, the use thereof
or access thereto, or with respect to any damage to any Lot resulting from a Pond or
the proximity of a Lot thereto, including loss or damage from erosion.
6. The Commons. Declarant shall convey title to the Commons to a Permitted Title
Holder. Unless otherwise specified in the instrument of conveyance, the Corporation shall be
responsible for maintaining the Commons and the Maintenance Costs thereof shall be assessed as
a General Assessment against all Lots subject to assessment. Unless approved by the Architectural
Review Board and the Zoning Authority, no permanent improvements shall be made to or installed
on the Commons (excepting University Green) . other than Village Community Buildings, Education
Facilities, underground utility facilities, Site Furniture and Facilities, walkways, planting structures,
and .fountains or other nonrecreational water features. University Green may be improved with
-recreational facilities, including but not limited to Founder's Comer and a croquet court. The use
of the Commons shall be subject to rules and regulations adopted by the Board of Directors which
are not inconsistent with the provisions of this Declaration or any Supplemental Declaration.
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7. fmts. Declarant shall convey title to the Parks to a Permitted Title Holder. Unless
the instrument of conveyance provides otherwise, the Corporation shall be responsible for
maintaining the Parks and the Maintenance Costs thereof, together with any costs incurred by the
Corporation in connection with the further improvement thereof, shall be assessed as a General
Assessment against all Lots subject to assessment. The Parks may be improved as appropriate for
recreational and open space areas. The use of the Parks shall be subject to rules and regulations
adopted by the Board of Directors which are not inconsistent with the provisions of this Declaration
or any Supplemental Declaration.
8. Village Community Buildings. Declarant may, but is not obligated to, construct in
the area designated on the General Plan of Development as the contemplated location thereof the
Meeting House, the Trustees Hall, the Chapel and one or more Recreation Center (which may
include a bath house, sWimming pool, tennis courts and other recreational facilities) and such other
recreational and community facilities as Declarant in its sole discretion believes are justified by the
progress of development of the Development Area. If Declarant undertakes the development of one
or more Village Community Buildings, Declarant intends upon completion of construction to convey
the same to a Permitted Title Holder prior to the Applicable Date free and clear of all financial
encumbrances and other liens securing indebtedness of Declarant except Community Area Secured
Indebtedness, but subject to the right of Declarant to use the Village Community Buildings as
provided in Paragraph 24(a). Unless the instrument of conveyance provides otherwise, the
Corporation shall be responsible for maintenance of the Village Community Buildings and the
Maintenance Costs thereof shall be assessed as a General Assessment against all Lots subject to
assessment The Board of Directors may adopt such mles and regulations with respect to the use of
the Village Community Buildings as it deems appropriate and may charge reasonable fees for the
use thereof, but no rule" regulation or charge shall be inconsistent with the provisions of this
Declarati<?n or any Supplemental Declaration.
Any Education Facility, including the Education Center, shall be constructed by and be the
sole property of the public or private educational institution which operates the Education Facility
and none of the Corporation, the Association or any Owner shall have any interest therein except as
otherwise specifically provided herein, in a Supplemental Declaration or in an instrument of
conveyance from' Declarant to such educational institution.
Declarant may secure indebtedness incurred to finance construction of the Village
Community Buildings and the Common Facilities, or parts thereof, with a mortgage lien(s) on all
or some of the Village Community Buildings; provided that the aggregate original principal amount
of the indebtedness secured by such lien(s) shall not exceed Two Million Dollars ($2,00Q,000.00).
9. Dra.ina~e System. The Drainage System has or will be constructed for the purpose
of controlling drainage within and adjacent to the Development Area and maintaining the water level
in the Lake and the Ponds. The Corporation shall maintain the Drainage System to the extent not
maintained by the Drainage Board and the Maintenance Costs thereof shall be assessed against all
Lots_'subject to assessment serviced by that part of the Drainage System with respect to which
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Maintenance Costs are incurred. Each Owner shall be individually liable for the cost of maintenance
of any drainage system located entirely upon his Lot and which is devoted exclusively to drainage
of his Lot and is not maintained by the Drainage Board.
10. Common Liihtini. Declarant may, but is not obligated to, install Common Lighting
in WestClay and may reserve easements for such purpose over and across Lots. If installed, the
Corporation shall operate.and maintain the Common Lighting and, unless otherwise provided in a
Supple~ental Declaration, the Maintenance Costs thereof shall be assessed as a General or Parcel
Assessment against all Lots subject to assessment. .
11. Paths and Path Li~ts. Declarant may, but is not obligated to, install the Paths and
Path Lights at the approximate locations depicted on the General Plan of Development and may
reserve easements for such purpose over and across Lots. If installed, the Corporation shall operate
and maintain the Paths and Path Lights and the Maintenance Costs thereof shall be assessed as a
General Assessment against all Lots subject to assessment. The Board of Directors may adopt such
rules and regulations with respect to the use of the Paths as it may deem appropriate including but
not limited to the prohibition of the use of all or some of the Paths by bicycles, skateboards and/or
motorized or non-motorized vehicles.
12. Private Drives and Private Gates.
(a) Maintenance of Private Drives (Exclusive of Alleys). Unless
otherwise provided in a Supplemental Declaration, each Private Drive (exclusive of
alleys) shall be owned by the Corporation and maintained by the Corporation in good
condition satisfactory for the purpose for which it was constructed. The Maintenance
Costs incurred by the Corporation in maintaining a Private Drive shall be assessed
against all Lots whose principal means of vehicular access to a public right-of-way
or to the Village Center is over and across such Private Drive. Estimated
Maintenance Costs, including a contribution to a reserve fund for future maintenance,
repair and replacement of Private Drives, shall be included in each annual budget of
the Corporation adopted pursuant to Paragraph 19(1).
(b) Maintenance of Alleys. Unless otherwise provided in a Supplemental
Declaration, the Corporation shall maintain all alleys and the Maintenance Costs
incurred for such maintenance shall be assessed against all Lots served by alleys.
(c) Maintenance of Private Gates. Private Gates shall be maintained by
the Corporation. The Maintenance Costs incurred by the Corporation in maintaining
Private Gates shall be assessed against all Lots whose principal access to a public
right-of-way or to the Village Center is through a Private' Gate.
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13. Entry Ways. Landscape Easements and Plantin~ Areas.
(a) Entry Ways. The Corporation shall maintain the Entry Ways
and all improvements and plantings thereon, and the Maintenance Costs
thereof shall be assessed as a General Assessment against all Lots subject to
assessment Grass, trees, shrubs and other plantings located on an Entry Way
shall be kept neatly cut, cultivated or trimmed as reasonably required to
maintain an attractive entranceto WestClay or a part thereof. All entrance
signs located on an Entry Way shall be maintained at all times in good and
sightly condition appropriate to a first-class residential community.
(b ) Landscape Easements. Unless the Board of Directors (of the
Corporation or the Association, as applicable) determines that all or some of
the Landscape Easements shall be maintained by the Corporation and/or the
Association and the Maintenance Costs thereof assessed as a General or
Parcel Assessment, the Owner of each Lot upon which a Landscape Easement
is located shall at hislher expense keep the grass, trees, shrubs and other
plantings located on a Landscape Easement properly irrigated and neatly cut,
cultivated or trimmed as reasonably necessary to maintain the same at all
times in a good and sightly condition appropriate to a first-class residential
subdivision and, if such Owner fails to do so, the Corporation or the
Association, as applicable, may undertake such maintenance and assess the
Maintenance Costs thereof as a Special Assessment against such Lot.
(c) Planting AreaS. Following the expiration of the Warranty
Period, the Corporation (or, if the Village Center Supplemental Declaration
so provides with respect to Planting Areas in the Village Center Parcel, the
Association) shall maintain the Planting Areas and the Maintenance Costs
thereof shall be assessed as a General or Parcel Assessment.
14. Site Furniture and Facilities. Declarant may, but is not obligated to, construct, install
or place Site Furniture and Facilities in WestClay. Ifit does so, title thereto shall be conveyed to a
Permitted Title Holder. After conveyance to a Permitted Title Holder, unless otherwise specified
in the instrument of conveyance, the Corporation (or, if the Village Center Supplemental Declaration
so provides with respect to Site Furniture and Facilities in the Village Center Parcel, the Association)
shall maintain the Site Furniture and Facilities and the Maintenance Costs thereof shall be assessed
as a General or Parcel Assessment.
15. Round~Abouts.and Street Trees.
(a) Round-Abouts. The Corporation shall maintain the Round-Abouts
(exclusive of the street pavement, curbs and drainage structures and tiles unless they
constitute a part of a Private Drive), and the Maintenance Costs thereof shall be
assessed as a General Qr Parcel Assessment.
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(b ) Street Trees. Declarant shall plant Stree~ Trees within Planting Areas
adjacent to such of the Principal Streets as are constructed by Declarant and in
Community Areas adjacent to other streets constructed in WestClay. Each Owner
shall, within the time specified in the Building Guidelines, plant within a Planting
Area adjacent to the Owner's Lot that number of Street Trees as are depicted on such
Lot on the Development Plan, such Street Trees to be of a size and species designated
by the Architectural Review Board or the Design Review Board, as applicable, and
to be planted at locations specified on the landscaping plan submitted by the Owner
to and approved by the applicable Board. Declarant, the Corporation or the
Association may plant additional Street Trees on any Lot.
(c) . Maintenance of Street Trees. During the Warranty Period, all dead
or dying Street Trees, installed new, transplanted, or designated on the Lot
Development Plan as existing trees to be retained, shall be replaced by the person.
responsible for causing such Street Trees to be planted. Following the expiration of
the Warranty Period for a Street Tree, unless otherwise provided in a Supplemental
Declaration, the Corporation shall maintain and, if necessary, replace the Street Tree,
and the Maintenance Cost thereof shall be assessed as a General Assessment against
all Lots subject to Assessment.
16. Common Parkin~ Lots. Declarant shall construct such Common Parking Lots as it
deems desirable. The Association shall maintain the Common Parking Lots located in the'Village
Center, including the exterior and interior landscaping required by the Zoning Ordinance, and the
Maintenance Costs thereof shall be assessed as a Parcel Assessment as provided in the Village
Center Supplemental Declaration. The Corporation shall maintain all other Common Parking Lots,
including the exterior and interior landscaping required by the Zoning Ordinance, and the
Maintenance Costs thereof shall be assessed against all Lots which derive a substantial benefit from
the availability of parking in such other Common Parking Lots, as determined in the reasonable
discretion of the Board of Directors of the Corporation. The Association may allocate to the
Corporation a portion of the Maintenance Costs of Common Parking Lots in the Village Center
which serve a Village Community Building as provided in the Village Center Supplemental
. Declaration and the amount so allocated shall be included in the General Assessment against all
Residential Lots subject to assessment
17. Open Space. A Permitted Title Holder shall not change the use of any Park,
Commons or other area designated by Declarant as open space conveyed to the Permitted Title
Holder by Declarant from the use being made thereof at the time of conveyance without the prior
, consent or approval of the Zoning Authority.
18. Villag-e of We stC1 a:y Owners Association. In~.
(a) Membership. Each Owner shall automatically be a Member and shall
enjoy the privileges and be bound by the obligations contained in the Articles and
By-Laws. If a Person ~ou1d realize upon his security and become an Owner, he shall
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then be subject to all the requirements and limitations imposed by this Declaration
on other Owners, including those provisions with respect to the payment of
Assessments.
(b ) Powers. The Corporation shall have such powers as are set forth in
this Declaration, all Supplemental Declarations and in the Articles, together with all
other powers that belong to it by law.
(c)
Members.
Classes of Members. The Corporation shall have a single class of
(d) yotini and Other Ri~hts of Members. The voting and other rights of
Members shall be as specified in the Articles and By-Laws; provided, however, that
the Owners of Lots in each Electoral Parcel shall be entitled to elect a Person to serve
as a Director representing such Electoral Parcel on the Board of Directors in the
manner specified in the Code of By-Laws of the Corporation.
(e) Reserve for ReJ'lacements. The Board of Directors shall establish and
maintain the Reserve for Replacements by the allocation and payment to such reserve
fund of an amount determined annually by the Board to be sufficient to meet the cost
of periodic maintenance, repair, renewal and replacement of the Community Area
and the Common Facilities to the extent the Corporation is responsible for the
maintenance thereof. In determining the amount, the Board shall take into
consideration the expected useful life of the Community Area and the Common
Facilities, projected increases in the cost of materials and labor, interest to be earned
by such fund and the advice of Declarant or such consultants as the Board may
employ. The Reserve for Replacements shall be deposited in a special account with
a lending institution the accounts of which are insured by an agency of the United
States of America or may, in the discretion of the Board, be invested in obligations
of, or fully guaranteed as to principal by, the United States of ' America. Prior to the
Applicable Date, funds from the Reserve for Replacements may be ~thdrawn and
applied at the direction of Declarant to meet the costs of periodic maintenance,
repairs, renewal or replacement of the Community Area and the Common Facilities.
(f) Debt Service Account. The Board of Directors shall establish and
maintain a separate account for the payment of principal, interest and other charges
on account of Community Area Secured Indebtedness. Community Area Debt
Service Assessments shall be deposited to said account and disbursed solely for the
purpose of payments on account of Community Area Secured Indebtedness. The
debt service account shall be maintained in a lending institution the accounts of
which are insured by an ag~ncy of the United States of America or may, in the
discretion of the Board, be invested in obligations of, or fully guaranteed as to
principal by, the United States of America Prior to the Applicable Date, funds from
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the debt service account may be withdrawn and applied at the direction of Declarant
to make payments on account of Community Area Secured Indebtedness.
(g) Maintenance Standards. In each instance in which this Declaration
or a Supplemental Declaration imposes on the Corporation a maintenance obligation
with respect to the Community Area or the Common Facilities or a part thereof, the
Corporation shall maintain the Community Area., Commc;>n Facilities or designated
part thereof in good condition, order and repair substantially comparable to its
condition when originally constructed, installed or planted and compatible in
appearance and utility with a first-class residential community. Grass, trees, shrubs
and other plantings located on the Community Area for which the Corporation has
maintenance responsibility shall be kept properly irrigated and neatly cut, cultivated
or trimmed as reasonably required and otherwise maintained at all times in good and
sightly condition appropriate to a first-class residential community. In each fiscal
year subsequent to the Applicable Date the Corporation shall make expenditures to
Maintain the Community Area and Common Facilities located in the Village Center
in an amount not less than the Village Center Maintenance Amount established
pursuant to Paragraph 19(1)(3). .
(h) Insurance. Taxes and Utilities. The Corporation shall maintain public
liability and casualty insurance in prudent amo~ts insuring against risk of loss to the
Corporation on account of injury to person or property and damage to property
owned by the Corporation and shall pay all taxes assessed against such property and
all utility charges incurred with respect to Community Area for which the
Corporation has maintenance responsibility .
(i) Limitations on Action by the Co(poration. Unless at least two-thirds
(2/3) of the Mortgagees (based on one vote for each first mortgage owned) or two-
thirds (2/3) of the Members have given their prior written approval, a Permitted Title
Holder, the Board of Directors and the Owners may not: (i) except as authorized by
Paragraph 21(a) (but subject to the limitations of Paragraph 17), by act or omission
seek to abandon, partition, subdivide, encumber, sell or transfer the Community Area
(but the granting of easements for public utilities or other public purposes consistent
with the intended use of the Community Area shall not be deemed a transfer for the
purposes of this clause); (ii) fail to maintain fire and extended coverage insurance on
insurable Community Area and Comm9n Facilities on a current replacement cost
basis in the amount of one hundred percent (100%) of the insurable value (based on
current replacement cost); (iii) use hazard insurance proceeds for losses to. any
Community Area or Common Facilities for other than the repair, replacement- or
reconstruction of the Community Area or Common Facilities; (iv) 'subject to
Paragraph 19(b)(ii)(5), the last sentence of Paragraph 19(b)(iv) and 19(1)(iii), change
the method of determining the obligations, Assessments, dues or other charges that
may be levied against the Owner of a Unit; (v) by act or omission change, waive or
abandon any scheme_ of regulations or their enforcement pertaining to the
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architectural design or the exterior appearance of Units, or the maintenance and
upkeep of the Community Area and Common Facilities; or (vi) fail to maintairi the
Reserve for Replacements in the amount required by this Declaration or any
Supplemental Declaration.
G) Met:iers. Upon a merger or consolidation of another corporation with
the Corporation, its properties, rights and obligations may, as provided in its articles
of incorporation, by operation of law be transferred to another surviving or
consolidated corporation or, alternatively, the properties, rights and obligations of
another corporation may by operation of law be added to the properties, rights and
obligations of the Corporation as a surviving corporation pursuant to a merger. The
surviving or consolidated corporation may administer the covenants and restrictions
established by this Declaration within the Tract together with the covenants and
restrictions established upon any other properties as one scheme. No merger or
consolidation, however, shall effect any revocation, change or addition to the
covenants established by this Declaration within the Tract except as hereinafter
provided.
19. Assessments.
(a) Creation of the Lien and Personal Obliiation of Assessments.
Declarant hereby covenants, and each Owner of any 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 to the Corporation the following: (1) General Assessments, (2) the
Community Area Initial Assessment, (3) Community Area Debt Service
Assessments, (4) annual and special Parcel Assessments, (5) Architectural Control
Assessments (to the extent levied) and (6) Special Assessments, such Assessments
to be established and collected as hereinafter provided.
If two (2) or more Lots originally shown on a Plat are consolidated as a single
Lot by virtue of partial vacation of a Plat, or if a Lot is divided by conveyance of
portions thereof to owners of adjacent Lots, then, in either such event, so long as the
consolidated or divided Lot is used in its entirety by one or more Owners of
contiguous Lots, the vacated or divided Lot(s) shall cease to be Lot(s) for purposes
of Assessments under this Paragraph 19.
All Assessments, together with interest thereon and costs of collection
thereof, shall be a charge on the land and shall be a continuing lien upon the Lot
against which each Assessment is made until paid in full. Each Assessment, together
with interest thereon and costs of collection thereof, shall also be the personal
obligation of the Person who was the Owner of the Lot at the time when the
Assessment became due. \
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incurred in satisfying any requirements imposed on the Corporation
by a Supplemental Declaration relating to a Parcel. Any Special
Assessment pursuant to this clause (ill) shall be allocated equally
among all Lots in the Parcel except those exempt from the General
Assessment
(f) Archit~cturaI COl\trol Asses$IIlent If any Owner or Person acting for
or on behalf o~ or pursuant to the authorization or acquiescence of, an Owner fails
to comply with Building Guidelines or other requirements for construction of
improvements, landscaping and other Building Activities or maintenance' of a Lot
(including but not limited to installation of required Street Trees or the filing of a Lot
Development Plan) or any restrictive covenant or condition specified in a
Supplemental Declaration for the Parcel in which such Owner's Lot is located
(exclusive of the Village Center Parcel) and/or the provisions of Paragraphs 20 or 22
of this Declaration, then the Corporation may levy against the Lot owned by such
Owner an Assessment in an amount determined by the Board of Directors which does
not exceed the greater of (i) Five Hundred Dollars ($500.00) for each day that such
failure continues after written notice thereof is given by Declarant or the Corporation
to such Owner or (ii) One Hundred Thousand Dollars ($100,000.00). Such
Assessment shall constitute a lien upon the Lot of such Owner and may be enforced
in the manner provided in subparagraph (i) below. The levy of an Architectural
Control Assessment shall be in addition to, and not in lieu of, any other remedies
available to Declarant and/or the Corporation provided in this Declaration, at law or
in equity in the case of the failure of an Owner to comply with the provisions of this
Declaration and all applicable Supplemental Declarations (exclusive of the Village
Center Supplemental Declaratio~).
(g) Special Asse~sment In addition to such other Special Assessments
as may be authorized herein, the Corporation may levy in any fiscal year a Special
Assessment applicable to that year and not more than the next four (4) succeeding
fiscal years for the purpose of defraying, in whole or in part, the cost of any
construction, repair, or replacement of a capital improvement upon the Community
Area, .including fixtures and personal property relating thereto or any Common
Facilities, provided that any such Assessment shall have the assent of a majority of
the votes of the Members whose Lots are subject to assessment with respect to the
capital improvement who are voting in person or by proxy.at a meeting of Members
duly called for this purpose. Any Special Assessment pursuant to this subparagraph
(g) shall be allocated equally among all Lots in the Tract except those exempt from
the General Assessment
(h) Date ofComm~nceIIl~n~ ofAssessmen~. The General Assessment
and Parcel Assessments (exclusive of Parcel Assessments applicable to Commercial
Lots in the Village Center Parcel) shall commence with respect to assessable Lots
within a Parcel on the first day of the month following conveyance of the first Lot in
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the Parcel to an Owner who is not Declarant The initial Assessment on any
assessable Lot shall be adjusted according to the days remaining in the month in
which the Lot became subject to assessment. Notwithstanding the foregoing, if an
Owner owns more than two (2) unimproved Residential Lots or one (1) or more
unimproved Commercial Lots, the General Assessment shall not commence with
respect to such unimproved Lot(s) until the earlier of (i) the date the Owner
completes construction of a Unit, Multifamily Structure or Multiuse Structure
thereon or (ll) the first day of the ninth month following the date the Owner acquired
title to the Lot(s).
(i) Effect of~onpayment of Asse.ssments: Remedies of the Coworatjon.
Any ASsessment not paid within thirty (30) days after the due date may upon
resolution of the Board of Directors bear interest from the due date at a percentage
rate no greater than the current statutory maximum annual interest rate, to be set by
the Board of Directors for each assessment year. The Corporation shall be entitled
to institute in any court of competent jurisdiction any lawful action to collect a
delinquent Assessment plus any expenses or costs, including attorneys' fees, incUITed
by the Corporation in collecting such Assessment. If the Corporation has provided
for collection of any Assessment in installments, upon default in the payment of any
one or more installments, the Corporation may accelerate payment and declare the
entire balance of said Assessment due and payable in full. No Owner may waive or
otherwise escape liability for the Assessments provided for herein by nonuse of the
Community Area or the Common Facilities or abandonment of his Lot.
G) SqbordinatjOll of the Lien to MortiDi~s. To the extent specified
herein, the lien of the Assessments provided for herein against a Lot shall be
subordinate to the lien of any recorded :first mortgage covering such Lot and to any
valid tax or special assessment lien on such Lot in favor of any governmental taxing
or assessing authority. Sale or transfer of any Lot shall not affect the assessment lien.
The sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding
. in lieu thereof shall, however, extinguish the lien of such Assessments as to payments
which became due more than six (6) months prior to such sale or transfer. No sale
or transfer shall relieve such Lot from liability for any Assessments thereafter
becoming due or from the lien thereof:
(k) Certificates. The Corporation shall, upon demand by an Owner, at any
time, furnish a certificate in writing signed by an officer of the Corporation that the
Assessments on a Lot have been paid or that certain Assessments remain unpaid, as
the case ~ay be.
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20. Architectural Control.
(a) The Architectural Review Board. An Architectural Review Board
consisting of three (3) or more Persons as specified in the By-Laws shall, prior to the
Applicable Date, be appointed by Declarant Thereafter, the Architectural Review
Board shall be appointed by the Board of Directors of the Corporation.
(b) Ptu:poSC. The Architectural Review Board shall regulate the external
design, appearance, use, location and maintenance of the Tract (exclusive of the
Village Center Parcel) and of all improvements thereon in such manner as to preserve
and enhance values, to maintain a harmonious relationship among structures,
improvements and the natural vegetation and topography, to implement the
development standards and guidelines set forth in the Zoning Ordinance and to assure
compliance with the Building Guidelines established 'by Declarant or the
Architectural Review Board for WestClay (exclusive of the Village Center Parcel).
(c) Buildini Activity. Except as otherwise expressly provided in this
Declaration or a Supplemental Declaration, and excluding from the provisions of this
Paragraph 20 all Commercial Lots located in the Village Center Parcel, no
improvements, alterations, repairs, chan.ge of colors, excavations, changes in grade,
planting, installation or modification of signage or other work that in any way alters
any Lot or the exterior of the improvements located thereon from its natural or
improved state existing on the date such Lot was first conveyed in fee by Declarant
to another Owner (including, but not limited to, (i) construction, erection or alteration
of any Unit, Multifamily Structure, Multiuse Structure, other building, fixture,
equipment, fence, wall, deck, swimming pool, ball court, patio, parking area, or other
structure on a Lot, or (ii) any plantings, other landscaping or exterior lighting on a
Lot, (Hi) the installation or alteration of any signage on any Lot, Unit, Multifamily
Structure or Multiuse Structure, or (iv) the removal of any Significant Tree from a
Lot, shall be made or done without the prior approval of the Architectural Review
Board of a Lot Development Plan therefor. Prior to commencement by any Owner
other than Declarant of any Building Activity a Lot Development Plan with respect
thereto shall be submitted to the Architectural Review Board, and no Building
Activity shall be commenced or continued by any Person other than Declarant
without the prior written approval of the Architectural Review Board of a Lot
Development Plan relating to such Building Activity. Such approval shall be in
addition to, and not in lieu ot: all approvals, consents, permits and/or variances
required by law from governmental authorities. having jurisdiction over WestClay,
and no Owner shall undertake any construction activity within WestClay unless all
legal requirements have been satisfied. Approval by the Architectural Review Board
of a Lot Development Plan shall not be deemed to imply compliance with approvals,
consents, permits and/or variances required by law from governmental authorities
having jurisdiction over the Tract Each Owner shall complete all improvements to
a Lot strictly in accordance with the Lot Development Plan approved by the
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Architectural Review Board As used in this subparagraph (c), "plantings" does not
include flowers, bushes, shrubs or other plants having a height of less than eighteen
(18) inches.
(d) Procedures. In the event the Architectural Review Board fails to
approve, modify or disapprove in writing a Lot Development Plan within sixty (60)
days after notice of such plan has been duly filed with the Architectural Review
Board in accordance with procedures established by Declarant or, subsequent to the
Applicable Date, the Board of Directors, approval will be deemed denied. A decision
of the Architectural Review Board (including a denial resulting from the failure of
such Board to act on the plan within the specified period) may be appealed to the
Board of Directors which may reverse or modify such decision (including approve
a Lot Development Plan deemed denied by the failure of the Architectural Review
Board to act on such plan within the specified period) by a two-thirds (213) vote of
the Directors then serving.
(e) Guidelines and Standards. The Architectural Review Board shall have
the power to establish and modify from time to time such written architectural,
landscaping, lighting, fencing, recreational facility and signage design guidelines and
standards as it may deem appropriate to achieve the purpose set forth in subparagraph
(b) to the extent that such design ~delines and standards are not in conflict with the
specific provisions of this Declaration, the Zoning Ordinance or, prior to the
Applicable Date, the Building Guidelines established by Declarant. Any such
guideline or standard may be appealed to the Board of Directors which may terminate
or modify such guideline or standard by a two-thirds (2/3) vote of the Directors then
serving. The Building Guidelines may establish different standards and requirements
for various Lots within WestClay based on the size, location and use of such Lots and
the improvements to be located thereon.
(f) J\pJ'lication of Guidelines and Standards. The Architectural Review
Board shall apply the Building Guidelines in a fair, uniform and reasonable manner
consistent with the discretion inherent in the design review process. In disapproving
any Lot Development Plan, the Architectural Review Board shall furnish the
applicant with specific reasons for such disapproval and may suggest modifications
in such plan which would render the plan acceptable to the Board if resubmitted.
(g) Design Consultants. The Architectwal Review Board may utilize the
services of architects, engineers and other Persons possessing design expertise and
experience in evaluating Lot Development Plans. No presumption of any conflict of
interest or impropriety shall be drawn or assumed by virtue of the fact that any of
such consultants are affiliated with Declarant or a Designated Builder or may, from
time to time, represent Persons filing Lot Development Plans with the Architectural
Review Board.
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(h) Existing Violations of Declaration. The Architectural Review Board
shall not be required to consider any Lot Development Plan submitted by an Owner
who is, at the time of submission o.f such Lot Development Plan, in violation of the
requirements of a Supplemental Declaration relating to the Parcel in which such
Owner's Lot is located and/or the provisions of the Zoning Ordinance or this
Paragraph 20, unless such Owner submits to the Architectural Review Board with
such Lot Development Plan an irrevocable agreement and undertaking (with such
surety as the Board may reasonably require) to remove from the Owner's Lot any
improvements, landscaping, exterior lighting or signage constructed and/or installed
prior to the submission of a Lot Development Plan (or constructed and/or installed
in violation of a previously approved Lot Development Plan) to the extent any such
previously const:mcted and/or installed improvement, landscaping, exterior lighting
or signage is not subsequently approved by the Architectural Review Board. The
Architectural Review Board shall have the power to recommend to the Board of
Directors that the Corporation assess an Architectural Control Assessment against
any Owner who fails to comply with the requirements of a Supplemental Declaration
(other than the Village Center Supplemental Declaration), Paragraph 20 of this
Declaration or the provisions of the Zoning Ordinance. Under no circumstances shall
any action or inaction of the Architectural Review Board be deemed to be
unreasonable, arbitrary or capricious if: at the time, of such decision, the Person
having submitted a Lot Development Plan for approval by the Architectural Review
Board has violated a Supplemental Declaration, Paragraph 20 of this Declaration or
the provisions of the Zoning Ordinance and such violation remains uncured.
(i) Exercise of Discretion. Declarant intends that the members of the
Architectural Review Board exercise discretion in the performance of their duties
consistent with the provisions of subparagraph (f), and every Owner by the purchase
of a Lot shall be conclusively presumed to have consented to the exercise of
discretion by such Inembers. In any judicial proceeding challenging a detennination
by the Architectural Review Board and in any action initiated to enforce this
Declaration in. which an abuse of discretion by the Architectural Review Board is
raised as a defense, abuse of discretion may be established only if a reasonable
Person, weighing the evidence and drawing all inferences in favor of the Board,
could only conclude that such determination constituted an abuse of discretion.
G) Liability of Boarq. Neither the Architectural Review Board or any
member or agent thereof, nor Declarant shall be responsible in any way for any
defects in any plans, specifications or other materials submitted to it, nor for any
defects in any work done according thereto. Further, the Board does not make, and
shall not be deemed by virtue of any action of approval or disapproval taken by it to
have made, any representation or warranty as to the suitability or advisability of the
design, the engineering, the method of construction involved, or the materials to be
used.
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(k) Ins.pection. Members of the Architectural Review Board may inspect
work being performed to assure compliance with these Restrictions and applicable
regulations.
21. Community Area and Common Facilities.
(a) Ownership. The Community Area and the Common Facilities shall
re~ain private, and neither Declarant's execution or recording of an instrument
portraying the Community Area, nor the doing of any other act by Declarant is, or is
intended to be, or shall be construed as, a dedication to the public of the Community
Area or the Common Facilities. Declarant, the Corporation or the Association may,
however, dedica~e or transfer all or any part of the Community Area or the Common
Facilities to any Permitted Title Holder for parks or other public purposes, to the City
of Carmel or the County of Hamilton for use as public rights-of-way or to a public
utility for public utility purposes, and Declarant may transfer all or any part of the
Community Area to a Permitted Title Holder as contemplated by this Declaration.
(b) Density of Use. Declarant expressly disclaims any warranties or
representations regat"ding the density of use of the Community Area or any facilities
located thereon or constituting a part thereof.
(c) Obligations of the COlj)oration. The Corporation, subject to the rights
of Declarant, the Association and the Owners set forth in this Declaration and the
rights of any Permitted Title Holder established in an instrument conveying title to
any part of the Common Area, shall be responsible for the exclusive management and
control of the Community Area and all improvements thereon (including Common
Facilities and other furnishings and equipment related thereto), and, except as
otherwise provided herein, in a Supplemental Declaration, or in an instrument of
conveyance to a Permitted Title Holder, shall keep the Community Area and
Common Facilities in good, clean, attractive and sanitary condition, order and repair.
The Corporation may, with the consent of the Board of Directors of the Association,
transfer to the Association responsibility for management, control andlor
maintenance of Community Area and Common Facilities located in the Village
Center.
(d) Easements ofEnioyment.
(i) Owners. No Person shall have any right or easement
of enjoyment in - or to the Community Area' except to the extent
granted by, and subject to the terms and provisions of, this
Declaration or a Supplemental Declaration. Such rights and
easements'. as are thus granted shall be appurtenant to and shall pass
with the title to every Lot for whose benefit they are granted. Unless
otherwise provided in a Supplemental Declaration or a Plat, all
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Owners may use the Paths, the Village Community Buildings, the
Parks and the Commons and the Site Furniture and Facilities located
thereon or therein, subject to the reserved rights of Declarant, the
Corporation and the Association. The Owners of Lots abutting the
Lake or a Pond may use the Lake or Pond which abuts such Owner's
Lot, but such use shall be limited to fishing and such other uses as
may be authorized by resolution adopted by the Board' of Directors.
Subject to restrictions on points of access, the Lake and the Ponds ·
may be used by all Owners, but only for fishing and such other
purposes as may be authorized by the Board of Directors. No Owner
whose Lot does not abut the Lake or a Pond shall have any right of
access to the Lake or a Pond over any Lot, but only such right of
access over the C,ommunity Area as may be designated on a Plat or
by the Board of Directors for such purpose.
(ll) OCCllp{lUtS. Occupants who are not also Owners may
use and enjoy the Community Area only to the extent specified in
subparagraph (f) or as explicitly authorized elsewhere in this
Declaration, in a Supplemental Declaration or by the Board of
Directors. Occupants shall have the same rights as Owners to the use
of the Paths, the Village Community Buildings, the Parks and the
Commons except that the Board of Directors may restrict or preclude
the use of the Recreation Centers by Occupants of Commercial Units
and Multifamily Structures if no part of the Maintenance Costs of the
Recreation Centers are assessed to Owners of Commercial Units or
Multifamily Structures. To the extent Owners of Lots that do not
abut the Lake or a Pond are granted rights of access to the Lake or a
Pond over Community Area designated for that purpose, Occupants
(other than Occupants of Commercial Units) shall enjoy the same
rights. In the adoption of rules and regulations relating to the use of
Community Area and Common Faciliti~s, the Board of Directors of
the Corporation or Association, as applicable, shall not discriminate
against Occupants of Multifamily Structures or of Living Units
located in Multiuse Structures but may restrict or preclude use of the
Recreation Centers by such Occupants as heretofore provided.
(e) Extent of Easements. The easements of enjoyment created hereby
shall be subject to the following:
(i) the right of the Corporation and/or the Association to
establish reasonable rules for the use of the Community Area
(including but not limited to use of identification cards) and to charge
reasonable fees for the use of any meeting or banquet facilities (but
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and voting at a duly constituted meeting of the Members, agreeing to
such dedication or transfer, has been recorded; and
(vii) the right of Declarant in any Supplemental
Declaration or Plat to restrict the use of Community Area and/or
Common Facilities located in a Section or Parcel to (a) Owners
and/or Occupants of Units, Multifamily Structures or Multiuse
Structures located in such Section or Parcel or (b) to other Owners of
less than all of the Lots in the Tract
(f) Adgitional Riihts of Use. The members of the family of every Person
who has a right C?f enjoyment to all or part of the Community Area and the Common
Facilities may use the Community Area and the Common Facilities (or part thereof)
on the same terms and subjectto the same limitations as such Person subject to the
terms of any instrument of conveyance of such Community Area or Common
Facilities to a Permitted Title Holder and to such general regulations consistent with
the provisions of this Declaration and all Supplemental Declarations as may be
established from time to time by the Corporation and/or the Association and included
within the Register of Regulations. Except as otherwise provided herein or in a
Supplemental Declaration, the Corporation or the Association may restrict use of the
Community Area and Common Facilities by' guests of Persons whose use thereof is
authorized herein.
(g) paIl\8.ge or DestructiQtl by Qwner. In the event the Community Area
or any Common Facility is damaged or destroyed by an Owner or any of his guests,
tenants, licensees, agents, or member of his family, such Owner authorizes the
Corporation to repair said damaged area and the Corporation shall repair said
damaged area in a good workmanlike manner in conformance with the original plans
and specifications of the area involved, or as the area may have been modified or
altered subsequently by the Corporation in the discretion of the Corporation. An
amount equal to the costs incurred to effect such repairs shall be assessed against
such Owner as a Special Assessment and shall constitute a lien upon the Lot of said
Owner.
(h) CQDveY311ce of Title. Declarant may retain the legal title to the
Community Area and the Common Facilities until the Applicable Date, but
notwithstanding any provision herein, the Declarant hereby covenants that it shall
convey such of the Lake, the Ponds, the Private Drives (exclusive of alleys), the
Village Community Buildings, the Parks, the Commons and the ,Common Facilities
which Declarant acquires, develops or constructs and such other of the Community
Area to which Declarant holds title to a Permitted Title Holder, free and clear of all
liens and other financial encumbrances exclusive of liens securing Community Area
Secured Indebtedness and the lien for taxes not yet due and payable, not later than the
Applicable Date.
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and repair and free of debris including, but not limited to, the seeding, watering, and
mowing of all lawns, the pruning and cutting of all trees and shrubbery and the
painting (or other appropriate external care) of all buildings and other improvements,
all in a manner and with such frequency as is consistent with good property
management as determined by the Architectural Review Board. In the event an
OWner of any Residential Lot in the Tract shall fail to maintain the premises and the
improvements situated thereon, as provided herein, the Corporation, after notice to
the Owner as provided by the By-Laws and approval by two-thirds {213) vote of the
Board of Directors, shall have the right to enter upon said Lot to correct drainage and
to repair, maintain and restore the Lot and the exterior of the buildings and any other
improvements erected thereon. All costs related to such correction, repair or
restoration shall, become a Special Assessment upon such Lot.
23. Easements.
(a) Plat Easements. In addition to such easements as are created
elsewhere in this Declaration or in a Supplemental Declaration and as may be created
by Declarant pursuant.to other written instruments recorded in the office of the
Recorder of Hamilton County, Indiana, Lots are subject to drainage easements, sewer
easements, utility easements, entry way easements, landscape easements, water
access easements, community area access easements, pathway easements and
nonaccess easements, either separately or in any combination thereof, as shown on
the Plats, which are reserved for the use of Declarant, Owners, the Corporation, the
Architectural Review Board, public utility companies and governmental agencies as
follows:
(i) Drainage Easements (DE) are created to provide paths
and courses for area and local storm drainage, either overland or in
adequate underground conduit, to serve.the needs of We stC lay and
adjoining ground and/or public drainage systems; and it shall be the
individual responsibility of each Owner to maintain the drainage
across his own Lot. Under no circumstance shall said easement be
blocked in any manner by the construction or reconstruction of any
improvement, nor shall any grading restrict,' in any manner, the
waterflow. Said areas are subject to construction or reconstruction to
any extent necessary to obtain adequate drainage at any time by any
governmental authority having jurisdiction over drainage, by
Declarant, and by the Architectural Review Board, but neither
Declarant nor the Architectural Review Board shall have any duty to
undertake any such construction or reconstruction. Said easements
are for the mutual use and benefit of the Owners.
(ii) Sewer Easements (SE) are created for the use of the
local governmental agency having jurisdiction over any storm and
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(x) Alley E~ements (AE) are created to afford public
access over Private Drives to the rear or side of Lots and for all uses
specified in the case of utility easements.
All easements mentioned herein include the right of reasonable ingress and egress for
the exercise of other rights reserved. No structure, including fences, shall be built on
any drainage, sewer or utility easement if such structure would interfere with the
utilization of such easement for the. purpose intended or violate any applicable legal
requirement or the terms and conditions of any easement specifically granted to a
Person who is not an Owner by an instrument recorded in the Office of the Recorder
of Hamilton County, Indiana, but a paved driveway necessary to provide access to
a Lot from a public street or Private Drive and a sidewalk installed by or at the
direction of Declarant (and replacements thereof) shall not be deemed a "structure"
for the purpose of this Restriction.
(b) General Easement There is hereby created a blanket easement over,
across, through and under the Tract for ingress, egress, installation, replacement,
repair and maintenance of underground utility and service lines and systems,
including but not limited to water, sewers, gas, telephones, electricity, television,
cable or communication lines and systems. By virtue of this easement it shall be
expressly permissible for Declarant or the providing utility or service company to
install and maintain facilities and equipment on the Tract and to excavate for such
purposes if Declarant or such company restores the disturbed area as nearly as is
practicable to the condition in which it was found. No sewers, electrical lines, water
lines, or other utility service lines or facilities for such utilities may be installed or
relocated in a Section or Parcel except as proposed and approved by Declarant prior
to the Applicable Date or by the Architectural Review Board thereafter. Should any
utility furnishing a service covered by the general easement herein provided request
a specific easement by separate recordable document, Declarant or the Corporation
shall have the right to grant such easement on the Tract without conflicting with the
terms hereof. This blanket easement shall in no way affect any other recorded
easements on the Tract, shall be limited to improvements as originally constructed,
and shall not cover any portion of a Lot upon which a Unit, Multifamily Structure or .
Multiuse Structure has been constructed or is proposed for construction pursuant to
a Lot Development Plan which has been approved by the Architectural Review Board
or the Design Review Board.
(c) Pqblic Health and Safety ~eIDents. An easement is hereby created
. for the benefit of, and granted to, all police, fIre protection, ambulance, delivery
vehicles, and all similar Persons to enter upon the Community Area in the
performance of their duties.
(d) Drainage Bo~d Easemeut. An easement is hereby created for the
benefit of, and granted to, the Drainage Board to enter the Tract and all Lots therein
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to the extent necessary to exercise its rights with respect to any legal drain
constituting a part of the Drainage System.
(e) Crossini Underground Easements. Easements utilized for
underground service may be crossed by driveways, walkways, Paths, Water Access
Easements and Community Area Access Easements provided prior arrangements are
made with the utility company furnishing service. Such easements as are actually
utilized for underground service shall be kept clear of all other improvements,
including buildings, decks, patios, or other pavings, other than crossings, driveways,
walkways, Paths, Water Access Easements or Community Area Access Easements,
and neither Declarant nor any utility company using the easements shall be liable for
any damage done by either of them or their assigns, agents, employees, or servants
to shrubbery, trees, flowers or other improvements of the Owner located on the land
covered by said easements.
(f) D~claI'aIlfs Easement to Correct Drain~e. For a period often (10)
years from the date of conveyance of the first Lot in a Section or Parcel, Declarant
reserves a blanket easement and right on, over and under the ground within that
Section or Parcel to maintain and to correct drainage of surface water in order to
maintain reasonable standards of health, safety and appearance. Such right expressly
includes the right to cut any trees, bushes or shrubbery, make any gradings of the soil,
or to take any other similar action reasonably necessary, following which Declarant
shall restore the affected property to its original condition as nearly as practicable.
Declarant shall give reasonable notice of its intention to take such action to all
affected Owners, unless in the opinion of Declarant an emergency exists which
precludes such notice.
(g) Water R.,etentiQn. The Owner of each Lot, by acceptance of a deed
thereto, consents to the temporary storage (detention) of storm water within the
drainage easements (DE) on such Owner's Lot.
24. Use of Lots Durin~ Development.
(a) By Declarant. Notwithstanding any provisions to the contrary
contained herein or in any other instrument or agreement, Declarant or its sales
agents or contractors, or any Designated Builder, may maintain during the period of
construction and sale or rental of Lots and Units in the Tract or the Development
Area, upon such portion thereof as is owned or leased by Declarant or any Designated
Builder, such facilities as in the sole opinion of Declarant may be reasonably
required, convenient or incidental to the construction, sale or rental of Lots and Units,
including, but without limiting the generality thereof, a business office, storage area,
construction yards, signs, model Units and sales or leasing offices. Declarant
specifically reserves the right to maintain a sales office in, and make other use of, the
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Village Community Buildings during the period that it is engaged in the sale of Lots
in WestClay.
(b) By auilden:;. Notwithstanding any prOVISIOns to the contrary
contained herein, a builder who has constructed a Living Unit in W estClay may, with
the prior consent of the Board of Directors, use such Living Unit as a "model" home
and may hold such home open to the public, either individually or as part of a "home
show" approved by the Board of Directors for such reasonable period as the Board
of Directors may specify. With the approval of DeClarant and the consent of the
Owner thereof, undeveloped Lots adjacent to or in proximity to such model home
may be used for parking by visitors to such model home.
25. Enfoq(CIUent.. The Corporation, any Owner or Declarant shall have the right to
enforce, by proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens
and charges now or hereafter imposed by the provisions of this Declaration and of any Supplemental
Declarations, but neither Declarant nor the Corporation shall be liable for damage of any kind to any
Person for failure either to abide by, enforce or carry out any of the Restrictions. No delay or failure
by any Person to enforc~ any of the Restrictions or to invoke any available remedy with respect to
a violation or violations thereof shall under any circumstances be deemed or held to be a waiver by
that Person of the right to do so thereafter, or an estoppel of that Person to assert any right available
to him upon the occurrence, recurrence or continuation of any violation or violations of the
Restrictions. In any action to enforce this Declaration, the Person seeking enforcement shall be
entitled to recover all costs of enforcement, including attorneys' fees, if it substantially prevails in
such action.
26. LimiUltio~ on Ri~hts of the COl:PoratiQn. Prior to the Applicable Date, the
Corporation may not use its resources nor take a public position in opposition to the General Plan
of Development or to changes thereto proposed by Declarant. Nothing in this paragraph shall be
construed to limit the rights of the Members acting as individuals or in affiliation with other
Members or groups as long as they do not employ the resources of the Corporation or identify
themselves as acting in the name, or on the behalf: of the Corporation.
27. Awroval~ by Qeclaran.:t. Notwithstanding any other provisions hereof, prior to the
Applicable Date, the following actions shall require the prior approval of Declarant: the addition
of real estate to the Tract; dedication or transfer of the Community Area; mergers and consolidations
of Sections or Parcels within the Tract or of the Tract with other real estate; mortgaging of the
Community Area; amendment of this Declaration or any Supplemental Declaration; changes in the
basis for assessment or the amount, use and time of payment of the Community Area Initial
Assessment; and the adoption or modification of Building Guidelines.
28. Mortgages.
(a) Notice to Col:P orati on. Any Owner who places a first mortgage lien
upon his Unit, Multifamily Structure or Multiuse Structure or the Mortgagee shall
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notify the Secretary of the Board of Directors of such mortgage and provide the name
and address of the Mortgagee. A record of such Mortgagee's name and address shall
be maintained by the Secretary and any notice required to be given to the Mortgagee
pursuant to the tenns of the Declaration, any Supplemental Declaration, the Articles
or the By-Laws (the "Organizational Documents") 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 Organizational Documents shall be
required and no Mortgagee shall be entitled to vote by virtue of the Organizational
Documents or a proxy granted to such Mortgagee in connection with the mortgage.
(b) Notice~ to Mortllagees. The Corporation shall promptly provide to
any Mortgagee of whom the Corporation has been provided notice under
subparagraph (a) above notice of any of the following:
(i) Any condemnation or casualty loss that affects a
material portion of the Community Area;
(ii) Any delinquency in the payment of any Assessment
owed by the Owner of any Unit, Multifamily Structure or Multiuse
Structure on which said Mortgagee holds a mortgage or any default
by an Owner under the Organizational Documents, if said
delinquency or default continues for more than sixty (60) days;
(iii) Any lapse, cancellation or material modification of any
insurance policy or fidelity bond maintained by the Corporation;
(iv) Any proposed action that requires the consent of a
specified percentage of Mortgagees; and,
(v) Any proposed amendment of the Organizational
Documents effecting a change in (A) the interests in the Community
Area appertaining to any Lot or the liability for Maintenance Costs
appertaining thereto, (B) the vote appertaining to a Lot or (C) the
purposes for which any Lot or the Community Area are restricted.
(c) Notice oiUI)paid Assessments. The Corporation shall, upon request
of a Mortgagee, a proposed mortgagee, or a proposed purchaser who has a
contractual right to purchase a Lot, furnish to such mortgagee or purchaser a
statement setting forth the amount of the unpaid Assessments against the Lot and the
Owners, and any Mortgagee or grantee of the Lot shall not be liable for, nor shall the
Lot conveyed be subject to a lien for, any unpaid Assessments in excess of the
amount set forth in such statement.
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(d) Financi'll Statemen~. Upon the request of any Mortgagee, the
Corporation shall provide to said Mortgagee the most recent financial statement
prep~edonbehmfoffueCo~omtioa
( e) Paymen~ by M:.ortg~ees. Any Mortgagee may (i) pay taxes or other
charges that are in default and that mayor have become a lien upon the Community
Area or any part thereof and (ii) pay overdue premiums on hazard insurance policies
or secure new hazard insurance coverage for the Community Area in case of a lapse
of a policy. A Mortgagee making such payments shall be entitled to immediate
reimbursement from the CoIporation.
29. Amendments.
(a) Qep.era1ly. Subject to subparagraphs (c) and (d), this Declaration may
be amended at any time by an instrument signed by (i) the appropriate officers of the
Corporation acting pursuant to the authority granted by not less than two-thirds (2/3)
of the votes of the Members cast at a meeting duly called for the purpose of
amending this Declaration and (ii), to the extent required by Paragraph 27, Declarant
(b) By peclarant. Subject to subparagraph (c) but without regard to
subparagraphs (a) and (d), Declarant hereby reserves the right prior to the Applicable
Date unilaterally to amend and revise the standards, covenants and restrictions
contained in this Declaration or any Supplemental Declaration. Such amendments
shall be in writing, executed by Declarant, and recorded with the Recorder of
Hamilton County, Indiana No such amendment, however, shall restrict or diminish
the rights or increase or expand the obligations of Owners with respect to Lots
conveyed to such Owners prior to the amendment or adversely affect the rights and
interests of Mortgagees holding first mortgages on Lots at the time of such
amendment Declarant shall give notice in writing to such Owners and Mortgagees
of any amendments. Except to the extent authorized in Paragraph 23(b), Declarant
shall not have the right at any time by amendment of this Declaration or any
Supplemental Declaration to grant or establish any easement through, across or over
any Lot which Declarant has previously conveyed without the consent of the Owner
of such Lot.
(c) Approval by Z9ninll' Authority. No amendment which would
eliminate, waive or qualify a requirement set forth herein for the consent of or
approval by the Zoning Authority shall be effective unless approved in writing by the
Zoning Authority.
(d) Clas$ AJ!proval. No amendment which would limit or impair the
rights granted herein or in any Supplemental Declaration to, or add to the burdens
imposed by this Declaration or any Supplemental Declaration on, the Owners of
Commercial Units, M~tifamily Structures or Multiuse Structures (or any Units
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therein) and no amendment to Paragraphs 18, 19, 21 (d), (e) or (f) or this Paragraph
29 shall be effective unless approved by not less than fifty-one percent (51 %) of the
Owners of Commercial Units, Multifamily Structures and Multiuse Structures (and
all Units therein).
(e) Effective Date. Any amendment shall become effective upon its
recordation in the Office of the Recorder of Hamilton County, Indiana.
30. Intex:pretation. The underlined titles preceding the various paragraphs and
subparagraphs of this Declaration are for convenience of reference only, and none of them shall be
used as an aid to the construction of any provision of this Declaration. Wherever and whenever
applicable, the singular form of any word shall be taken to mean or apply to the plural, and the
masculine form shall be taken to mean or apply to the feminine or to the neuter.
31. Pura,tion. The foregoing covenants and restrictions are for the mutual benefit and
protection of the present and future Owners, the Corporation, and Declarant, and shall run with the
land and shall be binding on all parties and all Persons claiming under them until January 1, 2030,
at which time said covenants and restrictions shall be automatically extended for successive periods
of ten (10) years, unless chan.ged in whole or in part by vote of those Persons who are then the
Owners of a majority of the Lots in the Tract.
32. Severability. Every one of the Restrictions is hereby declared to be independent of,
and severable from., the rest of the Restrictions and of and from every other one of the Restrictions,
and of and from every combination of the Restrictions. Therefore, if any of the Restrictions shall
be held to be invalid or to be unenforceable, or to lack the quality of running with the land, that
holding shall be without effect upon the validity, enforceability or "nmning" quality of any other one
of the Restrictions.
33. Non-Liability of De!;!laran.t. Declarant shall not have any liability to an Owner,
Occupant or any other Person with respect to drainage on, over or under a Lot or erosion of a Lot.
Such drainage and erosion control shall be the responsibility of the Owner of the Lot upon which a
Unit, Multifamily Structure or Multiuse siructure is constructed and of the builder of such Unit,
Multifamily Structure or Multiuse Structure and an Owner, by an acceptance of a deed to a Lot, shall
be deemed to agree to indemnify and hold Declarant free and harmless from and against any and all
liability arising from, related to, or in connection with the erosion of or drainage on, over and under
the Lot described in such deed. Declarant shall have no duties, obligations or liabilities hereunder
except such as are expressly assumed by Declarant, and no duty of, or warranty by, Declarant shall
be implied by or inferred from any term or provision of this Declaration.
34. CQmpljance with tlte Soil ErQsion Control Plan.
(a) The Plan. Declarant .has established and implemented an erosion
control plan pursuant to the requirements and conditions of Rule 5 of327 lAC 15,
Storm Water Run-Off Associated with Construction Activity. In connection with any
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EXHIBIT A
n~$tti'PtiQn of tht: DeveJonment ~_
The Southwest quarter of Section 28, part of the Southeast quarter of Section 29 and part of the
Northwest and Southwest quarters of Section 33 all in Township 18 North, Range 3 East of
Hamilton County, Indiana, and being described as follows :
Beginning at the Northeast comer of the Southwest quarter of said Section 28; thence on an
assumed bearing of South 00 degrees 01 minutes 09 seconds West along the East line of said
Southwest quarter a distance of 503.75 feet; thence North 89 degrees 29 minutes 11 seconds East
a distance of 605.93 feet; thence North 00 degrees l5 minutes 45 seconds East a distance of
506.25 feet to a point of the North line of the Southeast Quarter of said Section 28 distant 608.1l
feet east of the Northwest comer thereof; thence North 89 degrees 15 minutes 12 seconds East
along said North line a distance of2069.03 feet to the Northeast comer ~fsaid Southeast
Quarter; thence South 00 degrees 07 minUtes 17 seconds West along the East line of said
Southeast Quarter a distance of2630.92 feet to the Southeast comer of said Southeast Quarter;
thence South 89 degrees 23 minutes 24 seconds West along the South line of said Southeast
Quarter a distance of2672.37 feet to the Northeast comer of the Northwest Quarter of said
Section 33; thence South 00 degrees 20 minutes 16 seconds East along the East line of the
Northwest quarter of Section 33 a distance of2632.10 feet to the Southeast comer thereof; thence
South 00 degrees 23 minutes 56 seconds East along the East line of the Southwest quarter of said
Section 33 a distance of 490.67 feet; thence South 89 degrees 20 minutes 46 seconds West
parallel with the North line of said Southwest quarter a distance of 1331.44 feet to the West line
of the East half of said Southwest quarter; thence North 00 degrees 25 minutes 30 seconds West
along said West line a distance of 442.67 feet to a point distant 48.00 feet South from the
Northwest comer of said half-quarter; thence South 89 degrees 20 minutes 46 seconds West
parallel with the North line of said Southwest quarter a distance of 1331.64 feet to the West line
of said Southwest quarter; thence North 00 degrees 27 minutes 03 seconds West along said West
line a distance of 48.00 feet to the Northwest comer of said Southwest quarter; thence North 00
degrees 27 nlinutes 13 seconds West along the West line of the Northwest quarter of Section 33 a
distance of 1281.55 feet; thence North 89 degrees 20 minutes 46 seconds East parallel with the
South line of said Northwest quarter a distance of 1332.95 feet to the West line of the East half of
said Northwest quarter; thence North 00 degrees 23 minutes 44 seconds West along said West
line a distance of 1348.18 feet to the Northwest comer thereof; thence South 89 degrees 14
minutes 42 seconds West along the South line of the Southwest quarter of Section 28 a distance
of 1334.33 feet to the southwest comer thereof; thence South 88 degrees 51 minutes 10 seconds
West along the South line of the Southeast quarter of Section 29 a distance of 1351.40 feet to a
point hereinafter referred to. as Point A; thence North 01 degrees 08 minutes 50 seconds West a
distance of 8.00 feet; thence North 52 degrees 30 minutes 24 seconds East a distance of 14.45
feet; thence North 22 degrees 52 minutes 44 seconds East a distance of27.27 feet; thence North
00 degrees 36 minutes 26 seconds West a distance of 1453.10 feet; thence South 89 degrees 13
minutes 03 seconds West a distance of 107.69 feet; thence North 00 degrees 00 minutes 53
seconds West a distance of 1138.44 feet to the North line: of said Southeast q~er; thence North
89 degrees 13 minutes 03 seconds East along said North line a distance of 1443.58 feet to the
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Northeast comer thereof; thence North 89 degrees 14 minutes 59 seconds East along the North
line of the Southwest quarter of Section 28 a distance of2678.68 feet to the Point of Beginning.
Containing 534.984 acres, more or less. ,
Also, Part of the Northwest and the Northeast Quarters of Section 28, Township 18 North, Range
3 East of the Second Principal Meridian, Hamilton County described as follows:
Beginning at a railroad spike at the southwest comer of the east half of the northwest quarter;
thence North 00 degrees 00 minutes 08 seconds West along the west line of said half quarter
2631.74 to the northwest comer thereof; thence North 89 degrees 15 minutes 26 seconds East
along the north line of the Northwest Quarter 693.79 feet to a railroad spike at the northwest
comer of a tract of land described in a deed to Stumm, et al, and recorded as instrument number
9601331 in the Office of the Recorder of Hamilton County; thence South 00 degrees 02 minutes
24 seconds East along the west line thereof and along the west line of a tract of land described in
a deed to Smith, recorded in Deed Book 154 page 17 a distance of 660.00 feet to a 5/8"x30"
rebar with yellow plastic cap marked "SCHNEIDER ENG FIRM #0001" (hereinafter referred to
as "REBAR/CAP") at the southwest comer of said Smith tract; thence North 89 degrees l5
minutes 26 seconds East along the south line thereof and along the south line of a tract of land
described in a deed to Toll, recorded in Deed Book 310 page 838 a distance of 594.00 to a
REBAR/CAP at the southeast comer of said Toll tract; thence North 00 degrees 02 minutes 24
seconds West along the east line thereof 329.99 feet to a REBAR/CAP on the westerly extension
of the south line ofa tract ofland described in a deed to Sullivan, recorded in Deed Book 327
page 646; thence North 89 degrees 14 minutes 34 seconds East along said extension and said
south line 211.43 to a REBAR/CAP at the southeast comer thereof; thence North 00 degrees 03
minutes 50 seconds West along the east line thereof 330.00 feet to a railroad spike on the north
line of the Northeast Quarter; thence North 89 degrees 14 minutes 34 seconds East along said
north line 120.00 feet to a railroad spike at the northwest comer ofa tract ofland described in a
deed to Stumm, recorded in Deed Book 281 page 412; thence South 00 degrees 03 minutes 50
seconds East along the west line thereof 330.00 feet to a REBAR/CAP at the southwest comer
thereof; thence North 89 degrees 14 minutes 34 seconds East parallel with the north line of the
Northeast Quarter 1056.00 feet to the southeast comer of a tract of land described in a deed to
Frederick, recorded as instrument number 9545201, and on the east line of the west haIf of the
Northeast Quarter; thence South 00 degrees 03 minutes 50 seconds East along said east line
2030.77 feet to the northeast comer of a tract of land described in a deed to Lasher, recorded as
instrument number 9213826; thence South 89 degrees 15 minutes 12 seconds West along the
north line thereof 130.00 feet to a REBAR/CAP at the northwest comer thereof; thence South 00
degrees 03 minutes 50 seconds East along the west line of said Lasher tract 271.00 feet to a
railroad spike on the south line of the Northeast Quarter; thence South 89 degrees 15 minutes 12
seconds West along the south line of said quarter 365.00 feet to the a railroad spike at the
southeast comer of a tract of land described in a deed to Frank, recorded in Deed Book 163 page
280; thence North 00 degrees 04 minutes 33 seconds West 330.00 feet to the southeast comer of
a tract ofland described in a deed to Pierson, recorded as instrument number 93649l8; thence
North 01 degrees 13 minutes 35 seconds East along the east line thereof 60.44 feet to a
REBAR/CAP, thence the following thirteen (13) courses along the lines of said tract, nine (9) of
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which are also along Elliott Creek; (1) North 27 degrees 36 minutes 44 seconds West 177.33
feet; (2) North 17 degrees 26 minutes 49 seconds West 57.75 feet; (3}North 06 degrees 33
minutes 38 seconds East 59.39 feet; (4) North 88 degrees 53 minutes 52 seconds West 380.61
feet; (5) North 54 degrees 23 minutes l8 seconds West 158.25 feet; (6) North 32 degrees 36
minutes 31 seconds West 96.43 feet; (7) North 08 degrees 48 minutes 39 seconds West l59.88
feet; (8) North 36 degrees 36 minutes 53 seconds West 43.86 feet; (9) North 56 degrees 59
minutes 39 seconds West 141.03 feet; (10) South 00 degrees 49 minutes 57 seconds East 725.49
feet; (11) South 73 degrees 29 minutes 19 seconds East 139.54 feet; (12) North 89 degrees 15
minutes 15 seconds East 50.00 feet; (13) South 01 degrees 00 minutes 58 seconds East 356.12
feet to a railroad spike on the south line of the Northeast Quarter; thence South 89 degrees 15
minutes 12 seconds West along the south line thereof222.21 feet to a Stone in two boxes 1.2 feet
down at the southwest comer of the Northeast Quarter; thence South 89 degrees 14 minutes 59
seconds West along the south line of the Northwest Quarter 1339.34 feet to the Point of
Beginning. Containing 130.021 acres, more or less.
Also, part of the Southeast Quarter of said Section 29 being described as follows:
Commencing at the aforesaid Point A on the South line of said Southeast quarter; thence South
88 degrees 51 minutes 10 seconds West along said South line a distance of 627.23 feet to the
Point of Beginning at the Southwest comer of the land described in a deed to Wendy Fortune
(Instrument Number 89l5090, Office of the Recorder of Hamilton County, Indiana); thence
continuing South 88 degrees 51 minutes 10 seconds West along said South line a distance of
668.05 feet to the Southwest comer of said Southeast quarter; thence North 00 degrees 24
minutes 33 seconds West along the West line of said Southeast quarter a distance of 1437.39 feet
to a point distant 1203.96 feet South of the Northeast comer thereof; thence North 88 degrees 29
minutes 35 seconds East a distance of 658.94 feet to a westerly comer of the aforesaid Fortune
tract; thence South 00 degrees 46 minutes 26 seconds East along the West line thereof a distance
of 1441.43 feet to the Point of Beginning. Containing 21.923 acres, more or less.
Containing, in all, 686.928 acres, more or less.
\\S EC_' NDY\DA TA UOBS\1238\O01 \DOCS\OAOPT A.doc
Page 3 of 3
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EXHIBIT C
DESCRIPTION OF THE TRACT
(Griffin, Rice, Perez and Szynal Land)
The Southwest quarter of Section 28, part of the Southeast quarter of Section 28 and part of the
Northwest and Southwest quarters of Section 33 all in Township 18 North, Range 3 East of Clay
Township, Hamilton County, Indiana, and being described as follows:
Beginning at the Northeast comer of the Southwest quarter of said Section 28; thence on an
assumed bearing of South 00 degrees 01 minutes 09 seconds West along the East line of said
Southwest quarter a distance of 503.75 feet; thence North 89 degrees 29 minutes 11 seconds East
a distance of605.93 feet; thence North 00 degrees 15 minutes 45 seconds East a distance of
506.25 feet to a point of the North line of the Southeast Quarter of said Section 28 distant 608.11
feet east of the Northwest comer thereof; thence North 89 degrees 15 minutes 12 seconds East
along said North line a distance of 2069.03 feet to the Northeast comer of said Southeast
Quarter; thence South 00 degrees 07 minutes 17 seconds West along the East line of said
Southeast Quarter a distance of 2630.92 feet to the Southeast comer of said Southeast Quarter;
thence South 89 degrees 23 minutes 24 seconds West along the South line of said Southeast
Quarter a distance of2672.37 feet to the Northeast comer of the Northwest Quarter of said
Section 33; thence South 00 degrees 20 minutes 16 seconds East along the East line of the
Northwest quarter of Section 33 a distance of2632.1O feet to the Southeast comer thereof; thence
South 00 degrees 23 minutes 56 seconds East along the East line of the Southwest quarter of said
Section 33 a distance of 490.67 feet; thence South 89 degrees 20 minutes 46 seconds West
parallel with the North line of said Southwest quarter a distance of 1331.44 feet to the West line
of the East half of said Southwest quarter; thence North 00 degrees 25 minutes 30 seconds West
along said West line a distance of 442.67 feet to a point distant 48.00 feet South from the
Northwest comer of said half-quarter; thence South 89 degrees 20 minutes 46 seconds West
parallel with the North line of said Southwest quarter a distance of 1331.64 feet to the West line
of said Southwest quarter; thence North 00 degrees 27 minutes 03 seconds West along said West
line a distance of 48.00 feet to the Northwest comer of said Southwest quarter; thence North 00
degrees 27 minutes 13 seconds West along the West line of the Northwest quarter of Section 33 a
distance of 1281.55 feet; thence North 89 degrees 20 minutes 46 seconds East parallel with the
South line of said Northwest quarter a-distance of 1332.95 feet to the West line of the East half of
said Northwest quarter; thence North 00 degrees 23 minutes 44 seconds West along said West
line a distance of 1348.18 feet to the Northwest comer thereof; thence South 89 degrees 14
minutes 42 seconds West along the South line of the Southwest quarter of Section 28 a distance
of 1334.33 feet to the southwest comer thereof; thence North 00 degrees 32 minutes 45 seconds
East along the West line of the Southwest quarter of Section 28a distance of2624.94 feet to the
Northwest comer of the Southwest quarter of Section 28; thence North 89 degrees 14 minutes 59
seconds East along the North line of the Southwest quarter of Section 28 a distance of2678.68
feet to the Point of Begioning. Containing 451.608 acres, more or less.
(J . Kreutz 08-09-99)
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which the meeting is called and the time and place of the meeting. Attendance at any meeting shall
constitute a waiver of notice of that meeting.
Section 2 05. Voting Lists. After fixing a record date for a notice of a meeting, the Secretary
shall prepare a complete list of Members entitled to notice of a meeting of Members, containing the
address and number of votes each Member is entitled to cast at the meeting. The Secretary shall
prepare on a current basis through the time of the membership meeting a list of Members, if any, who
are entitled to vote at the meeting, but are not entitled to notice of the meeting. Such lists may be
inspected by any Member, for any proper purpose, at any reasonable time.
Section 2.06. Quorum. At any meeting of the Members twenty-five percent (25%) of the
Members entitled to vote at such meeting, present in person or by proxy executed in writing, shall
constitute a quorum for the transaction of business, except as otherwise provided by law. In the
absence of a quorum, the Members present in person or by proxy, by a majority vote and without
notice, may adjourn the meeting from time to time until a quorum is present. At any such adjourned
meeting at which a quorum is present, any business may be transacted for which notice was originally
given. The Members present at a duly. organized meeting may continue to do business until
adjournment notwithstanding the withdrawal of enough Members to leave less than a quorum.
Section 2.07. Voting Rights. The voting rights of the Members shall be as prescribed in the
Articles. In any election of Directors, no Member shall have the right to multiply the number of votes
to which such Member may be entitled by the number of Directors to be elected. A majority of the
votes cast at a meeting of the Members, duly called and at which a quorum is present, shall be
sufficient to take or authorize action upon any matter that may properly come before the meeting
unless more than a majority of votes cast is required by law, the Declaration, any Supplemental
Declaration, the Articles or these By-Laws.
Section 2.08. Multiple Owner. Where the Owner of a Lot constitutes more than one person,
or is a partnership, there shall be only one voting representative entitled to cast the vote allocated to
that Lot. Those persons constituting such Owner or the partners shall determine among themselves
who shall be the voting representative for such Lot. In the event agreement is not reached the vote
attributable to such Lot shall not be cast.
Section 2.09. Voting by Cor:poration.,. LLC or Trust. Where a corporation, a limited liability
company or trust 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 the corporation or limited liability company duly
empowered by the board of directors of such corporation or the managers or members of the limited
liability company shall cast the vote to which the corporation or limited liability cqmpany is entitled.
Section 2 10. Proxies. A Member may vote either in person or by his duly authorized and
designated attorney-in-fact. Where voting is by proxy, the Member shall designate his attorney-in-fact
in writing, delivered to an officer of the Corporation prior to the_commencement of the meeting. No
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proxy shall be valid after eleven (II) months from the date of its execution unless a longer time is
expressly provided in the proxy.
Section 2 11. Action Without a Meeting. Any action required by the Act to be taken at a
meeting of the Members, or any action which may be taken at a meeting of the Members, may be
taken without a meeting it: prior to the action, a consent in writing setting forth the action so taken
is signed by all of the Members entitled to vote with respect to the subject matter thereot: and such
written consent is filed with the minutes of the proceedings of the Members. Such consent shall have
the same effect as a unanimous vote of the Members.
Section 2.12. Meeting by TeleJ>honer etc. Any or all of the Members may participate in a
meeting by or through t~e use of any means of communication by which all Members participating
may simultaneously hear each other during the meeting. Participation in a meeting using these means
constitutes presence in person at the meeting.
ARTICLE 3
Board of Directors
Section 3 .01. Functions. The business, property and affairs of the Corporation shall be
managed and controlled by a Board of Directors as fro'm time to time constituted (herein collectively
called "Board" or "Directors" and individually called "Director").
Section 3 02. Eligibility. No person shall be a Director who is not a Member, a designee of
a Member or a designee of Developer, nor shall any person be a Director representing a Parcel who
is not the Owner or Occupant of a Lot in such Parcel or the designee of an Owner.
Section 3 03. Number. Prior to the Applicable Date, the number of Directors comprising the
Board shall be three (3), which number may from time to time be increased by resolution adopted by
not less than a majority of the Board of Directors. In no event shall the number of Directors prior
to the Applicable Date be less than three (3) nor more than seven (7) and no reduction in the number
of Directors shall have the effect of removing a Director from office prior to the expiration of his
term. In the event the number of Directors is increased prior to the Applicable Date, the additional
Director or Directors shall be appointed by Developer as provided in Section 5.03 of the Articles.
Subsequent to the Applicable Date, the number of Directors comprising the Board shall be
nine (9), which number may from time to time be.increased or decreased by resolution adopted by
not less than a majority of the Board of Directors, provided that all times the number shall not be less
than a number divisible by three (3). In no event shall the number of Directors subsequent to the
Applicable Date be less than three (3) nor more than fifteen (15) and no reduction in the number of
Directors shall have the effect of removing a Director from office prior to the expiration of his term.
In the event the number of Directors is increased subsequen{'to the Applicable Date as providedh
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herein, the election of the additional Director or Directors shall be by a vote of the Members entitled
to elect such additional Director or Directors according to a procedure established by the Board by
resolution.
" Section 3 .04. Classes. Subsequent to the Applicable Date, the membership of the Board shall
be divided into classes consisting of (i) Directors each of whom shall represent an Electoral Parcel
and (ii) Directors not representing Electoral Parcels. The class of Directors representing Electoral
Parcels shall consist of that number of Directors which is equal to the number of Electoral Parcels
within the Tract.
Section 3 05. Appointment. Prior to the Applicable Date, Directors shall be appointed by
Developer as provided ~ Section 5.03 of the Articles.
Section 3 .06. Nomination. Subsequent to the Applicable Date, candidates for election to the
Board of Directors as Directors not representing Electoral Parcels shall file a notice of candidacy,
,signed by not less than five (5) Members, with the Elections Committee at least three (3) weeks prior
to the annual meeting. The Elections Committee shall provide all Members with' a ballot containing
the names of all bona fide candidates not less than ten (10) days before the annual meeting.
Subsequent to the Applicable Date, the Board of Directors shall by resolution establish such
procedure as it deems appropriate governing nominations for election to the Board of Directors as
Directors representing Electoral Parcels.
Section 3 07. Election. Subsequent to the Applicable Date, Directors shall be elected at the
annual meeting provided in Article 2. If the Board of Directors is divided into classes pursuant to
section 3.04, the Directors representing an Electoral Parcel shall be elected by those Members who
are Owners of Lots in the Electoral Parcel to be represented by such Director. A Member who owns
a Lot in more than one Electoral Parcel shall be entitled to vote for all Directors representing
Electoral Parcels in which he owns a Lot. Anything to the contrary in this Section 3.07
notwithstanding, the Board of Directors shall have the power to authorize that Directors representing
Electoral Parcels be elected at the annual meeting of the owners association of each such Electoral
. Parce~ ifany, rather than at the annual meeting of the Corporation. The Board may, by resolution,
establish such election procedures as it deems appropriate.
V oting for the Board of Directors shall be by secret written ballot. The ballot shall be
prepared by the Elections Committee and shall contain the name of each person nominated for
election. Those" persons receiving the highest number of votes shall be elected.
Section 3.08. Imn. Each Director, other than a Director appointed by Developer, shall
serve for a term of one (1) year or until his successor is elected and qualified or until he has resigned
or been removed. Incumbent Directors shall be eligible for re-election and the number of years a
person may serve as a Director is not limited. A "Director appointed by Developer, including the
initial Directors identified in Section 5.02 of the Articles, shall s~rve until such Director dies, resigns
or is removed by Developer. -
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Section 3.09. Resignation. Any Director may resign at any time by giving written notice of
such resignation to the President or the Secretary of the Corporation. Such resignation shall take
effect when the notice is effective unless the notice specifies a later effective date. The acceptance
of a resignation shall not be necessary to make it effective.
Section 3 10. Removal. Subsequent to the Applicable Date, any Director may be removed,
with or without cause, in accordance with the provisions of the Act. Prior to the Applicable Date,
any Director may be removed by Developer for any reason.
Section 3 11. Vacancies. Any vacancy occurring on the Board of Directors caused by death,
resignation, removal or othetwise, shall (a) prior to the 'Applicable Date be filled by Developer and
(b) subsequent to the Applicable Date be filled until the next annual meeting through a vote of a
majority of the remaining members of the Board. If: subsequent to the Applicable Date, a majority
of the remaining members of the Board cannot agree on a Person to fill any such vacancy, a special
meeting of the Members shall be called to elect a Person to fill such vacancy. A Director elected to
fill a vacancy shall hold office until the expiration of the term of the Director causing the vacancy or
until his successor has been elected and qualified.
Section 3.12. Meetings. The Board of Directors shall meet each year immediately after the
annual meeting of the Members, at the place where such meeting of the Members has been held, for
the purpose of organization, election of officers, and consideration of any other business which may
properly be brought before the meeting. No notice shall be necessary for the holding of this annual
meeting. If such meeting is not held as above provided, the election of officers may be held at any
subsequent meeting of the Board specifically called in the manner provided in Section 3.13. The
Board of Directors may provide by resolution the time and the place, either within or without the
State of Indiana, for the holding of additional regular meetings of the Board without other notice than
such resolution. Special meetings of the Board may be called by the President and shall be called by
order thereofupon the written request of not less than two (2) Directors, which request shall set forth
the business to be conducted at such meeting.
Section 3.13. Notice of Meetings. Notice of all meetings of the Board of Directors, except
as herein otherwise provided, shall be given by mailing, telephoning, telegraphing or delivering
personally the same at least two (2) days before the meeting to the usual- business or residence address
of the Director as shown upon the records of the Corporation. Notice of any meeting of the Board
may be waived in a document filed with the Secretary by any Director if the waiver sets forth in
reasonable detail the purpose or purposes for which the meeting is called and the time and place of
the meeting. Attendance at any meeting of the Board shall constitute a waiver of notice of that
me~ting, except where a Director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or convened. Any meeting of
the Board may adjourn from time to time to reconvene at the same place or some other place. No
notice need be given of any such adjourned meeting.
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Section 3.14. Quorum. A quorum of the Board of Directors at any annual or special meeting
of the Board shall be a majority of the duly qualified members of the Board the~ occupying office,
but in no event less than two (2) Directors, except that, subsequent to the Applicable Date, in filling
vacancies a majority of the remaining Directors (but not less than two (2) Directors) shall constitute
a quorum. The act of a majority of the Directors present at a meeting, who constitute a quorum, shall
be the act of the Board unles~ otherwise provided by the Act, the Declaration, any Supplemental .
Declaration, the Articles, or these By-Laws. In the absence of a quorum, the Directors present may,
by majority vote,adjoum the meeting from time to time until a quorum is present. At any such
adjourned meeting at which a quorum is present, any business may be transacted which might have
been transacted at the meeting for which notice was originally given.
Section 3 15. Action Without a Meeting. Any action required or pennitted to be taken at any
meeting of the Board of Directors or any committee thereof may be taken without a meeting if the
action is taken by all members of the Board of Directors or such committee. The action must be
evidenced by at least one (1) written consent describing the action taken signed by each member of
the Board of Directors or of such committee, and included in the minutes or filed with the corporate
records reflecting the action taken.
Section 3.16. Meeting by Telephoner etc Any or all of the members of the Board or of any
committee designated by the Board may participate in a meeting by or through the use of any means
of communication by which all persons participating may simultaneously hear each other during the
meeting. Participation in a meeting using these means constitutes presence in person at the meeting.
Section 3 17. Committees. The Board of Directors, by resolution adopted by a majority of
the Board, may designate one or more committees, each of which shall consist of two (2) or more
Directors, which committees, to the extent provided in said resolution, shall have and exercise the
authority of the Board in the management of the Corporation. Other committees not having and
exercising the authority of the Board in the management of the Corporation may be designated by a
resolution adopted by a majority of the Directors present at a meeting at which a quorum is present.
The designation of any such committee and the delegation thereto of authority shall not operate to
relieve the Board, or any individual Director, of any responsibility imposed upon it or him by law.
Subsequent to the Applicable Date, the Board shall annually establish an Elections Committee which
shall be responsible for the conduct of the election of the Board of Directors pursuant to Sections
3.06 and 3.07.
Section 3 18. Powers. All of the corporate powers, except as otherwise provided herein or
by law, shall be vested in and shall be exercised by the Board of Directors. Said powers shall include,
but not be limited to:
(a) The power to adopt, publish, and enforce rules and regulations
governing the use of the Community Areas not inconsistent with the provisions of the
Declaration or any Supplemental Declaration;
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( q) exercise their powers and duties in good faith, with a view to the
. interests of the Corporation and the Members.
Section 3.20. Non-Liability of Directors. No Director shall be liable to any Person for any
error or mistake of judgment exercised in carrying out his duties and responsibilities ,as a Director,
unless (a) the Director has breached or failed to perform the duties of his office in compliance with
the Act and (b) the breach or failure to perform constitutes willful misconduct or recklessness. The
Members shall indemnify and hold harmless each of the Directors against any and all liability to any
Person arising out of contracts made by the Board on behalf of the Corporation, unless any such
contract shall have been made in bad faith or is contrary to the provisions of the Act, the Articles or
these By-Laws. It is intended that the Directors shall have no personal liability with respect to any
contract made by them. on behalf of the Members and as their agent. The liability of any Member
arising out of any contract made by the Board or out of the aforesaid indemnity in favor of the
Directors shall be limited to such percentage of the total liability or obligation thereunder as is equal
to a fraction, the numerator of which is the number of Lots owned by him and the denominator of
which is the total number of Lots in the Tract.
Section 3.21. Indemnity of Officers and Directors. To the extent not inconsistent with the
laws of the State of Indiana, every Person (and the heirs, assigns and legal representatives of such
Person) who is or was a Director or an officer of the Corporation shall be indemnified by the
Corporation as provided in the Act. To the extent the assets of the Corporation are insufficient to
satisfy its indemnification obligations hereunder, the Board of Directors may levy a Special
Assessment in the manner specified in the Declaration to obtain such funds as may be required to
satisfy such obligation.
Section 3 .22. Transactions lrivolvini Affiliates. No contract or other transaction between
the Corporation and one or more of its Directors, or between the Corporation and any Person
(including the Developer) in which one or more of the Directors are directors, officers, partners, or
employees or ,are pecuniarily or otherwise interested, shall be void or voidable because such Director
or Directors are present at the meeting of the Board or any committee thereof which authorizes,
approves or ratifies the contract or transaction, or because his or their votes are counted for such
purpose if:
(a) the fact of the relationship or interest is disclosed or known to the
Board or committee, and the Board or committee authorizes, approves, or ratifies
such contract or transaction by a vote or consent sufficient for the purpose without
counting the vote or consents of the interested Director(s); or
(b) the fact of the relationship or interest is disclosed or known to the
Members, and they authorize, approve or ratify the contract or transaction by a vote
or written consent; or
( c) the contract or transaction is fair and reasonable to the Corporation.
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Affiliated or interested Directors may be counted in determining the presence of a quorum of any
meeting of the Board or committee thereofwhich authorizes, approves or ratifies any contract or
transaction.
Section 3 .23. Insurance. The Board of Directors, or its duly authorized agent, shall have the
authority to and shall obtain insurance for all of the Common Facilities and all of the structures
located in the Community Area, whether owned or leased by the Corporation, against loss or damage
by fire or other'hazards commonly insured against in similar properties. in an amount sufficient to
cover the full replacement cost of any repair or reconstruction work in the event of damage or
destruction from any insured hazard, and shall also obtain a broad form public liability policy covering
all damage or injury caused by the negligence of the Corporation or any of its agents. All such
insurance policies shall contain a provision that all Members shall, in appropriate circumstances, be
able to recover damages as claimants under such insurance. Premiums for all such insurance shall be
included in the General Assessment.
Section 3 .24. Insured Lossr Damage or Destruction. In the event of loss, damage or
destruction by fire or other peril, the Board of Directors shall (unless otherwise agreed by two-thirds
(2/3) of the Directors then serving), upon receipt of the insurance proceeds, contract to rebuild or
repair damaged or destroyed portions of the insured property to its condition before such damage.
All such insurance proceeds (if the amount of such proceeds exceeds $5,000.00) shall be deposited
in a bank or other financial institution, the accounts of which are insured by a federal governmental
agency, with the provision agreed to by said bank or institution that such funds may be withdrawn
only by signatures of at least one-third (1/3) of the members of the Board of Directors, or by their duly
authorized agent. In such event, the Board of Directors shall advertise for sealed bids with any
licensed contractors, and then may negotiate with any contractor, who may be required to provide
a full performance and payment bond for the repair, reconstruction or rebuilding of such destroyed
structure or structures. In the ~vent that the insurance proceeds are insufficient to pay all the costs
of repairing and/or rebuilding to the same condition as previously existed, the Board of Directors may
levy a Special Assessment in the manner specified in the Declaration to make up any deficiency.
Excess insurance proceeds, if any, shall become a part of the Corporation's reserve for replacements.
Section 3 25. Uninsured Lossr Damage or Destruction. In the event of loss, damage or
destruction to the Property caused by perils not covered by standard insurance described in Section
2.04(d) of the Articles, the Board of Directors may levy a Special Assessment in the manner specified
in the Declaration to make up any deficiency created by such uninsured loss.
Section 3.25. Compensation. No Director shall receive any compensation for any service he
may render to the Corporation. He may, however, be reimbursed for his actual expenses incurred in
the performance afhis duties.
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ARTICLE 4
The Officers of the Corporation
Section 4.01. Officers and Agents. The officers of the Corporation shall consist of a
President, one or more Vice Presidents, a Secretary, a Treasurer, and such other officers as the Board
of Directors may, by resolution, designate from time to time. Any two or more offices may be held
by the same person The Board of Directors may, by resolution, create, appoint and define the duties
and fix the compensation of such officers and/or agents as, in its discretion, is deemed necessary,
convenient or expedient for carrying out the purposes for which the Corporation is formed; but such
officers and agents shall be compensated only for actual services performed on behalf of the
Corporation.
Section 4.02. Electionj Term of Office and Qualifications.
The officers shall be chosen annually by the Board of Directors. Each officer shall hold office (unless
he resigns, is removed or dies) until the next annual meeting of the Board of Directors or until his
successor is chosen and qualified.
Section 4.03. Vacancies. In the event an office of the Corporation becomes vacant by death,
resignation, retirement, disqualification or any other caus~, the Board of Directors shall elect a person
to ful such vacancy, and the person so elected shall hold office and serve '(unless he resigns, is
removed or dies) until the next annual meeting of the Board or until the election and qualification of
his successor.
Section 4.04. President. The President, who shall be chosen from among the membership
of the Board of Directors, shall preside at all meetings of the Board, if present; shall appoint the
chainnan and members ofall standing and temporary committees, subject to the review of the Board
of Directors; shall be the executive officer of the Corporation; shall have and exercise general charge
and supervision of the affairs of the Corporation; and shall do and perform such other duties as these
By-Laws provide or as may be assigned to him by the Board of Directors.
Section 4 05. Vice President. Any Vice President may perform all duties incumbent upon
the President during the absence or disability of the President and shall p"erform other duties as these
By-Laws may require or as may be assigned to him by the President or the Board of Directors.
Section 4.06. Secretary. The Secretary shall have the custody and care of the corporate
records and the minute book of the Corporation. He shall attend all of the meetings of the Board of
Directors and the Members, and shall keep, or cause to be kept in a book provided for the purpose,
a true and complete record of the proceedings of such meetings; and shall perform a like _duty for all
standing committees of the Board of Directors when required. He shall attend to the giving and
serving of all notices of the Corporation, shall file and take care of all papers and documents
belonging to the Corporation, shall authenticate records of the _Corporation, as necessary, and shall
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ARTICLE 8
Financial Affairs
Section 8.01. Contracts. The Board of Directors may authorize any officer or agent to enter
into any contract or execute and deliver any instrument in the name of and on behalf of the
Corporation, and such authority may be general or confined to a specific instance; and unless so
authorized by the Board of Directors, no officer, agent or employee shall have any power or authority
to bind the Corporation by any contract or engagement, or'to pledge its credit or render it ,liable
pecuniarily for any purpose or to any amount.
Section 8.02. Checksr Etc. All checks, drafts, notes, bonds, bills of exchange, and orders for
the payment of money' and other evidence of indebtedness in excess of One Thousand Dollars
($1,000.00), shall, unless otherwise directed by the Board of Directors or required by law, be signed
by any two of the following officers, who are different persons: President, a Vice President,
Secretary or Treasurer. Any such obligation equal to or less than One Thousand Dollars ($1,000.00)
may be signed by anyone (1) of such preceding officers. The Board of Directors may, however,
designate officers or employees of the Corporation, other than those named above, who may, in the
name of the Corporation, execute drafts, checks and orders for the payment of money on its behalf.
Section 8.03. Investments. The Corporation shall have'the right to retain all or any part of
any securities or property acquired by it in whatever manner, and to invest and reinvest any funds held
by it, according to the judgment of the Board of Directors.
Section 8 04. Reserve for Replacements. The Board of Directors shall establish and maintain
a reserve fund for replacements by the allocation and payment to such reserve fund of the Community
Area Initial Assessment and an amount determined annually by the Board to be sufficient to meet the
cost of periodic maintenance, repairs, renewal and replacement of the Property. In determining the
amount, the Board shall take into consideration the expected useful life of the' Property, projected
increases in the cost of materials and labor, interest to be earned by such fund and the advice of the
Developer, managing agent or any consultants the Board may employ. Such fund shall be deposited
in a special account with a lending institution the accounts of which are insured by an agency of the
United States of America or may, in the discretion of the Board, be invested in obligations of: or fully
guaranteed as, to principal by, the United States of America.
Section 8.05. Community Area Debt Service Assessment. The Board of Directors shall
establish and maintain an account for the deposits of Community Area Debt Service Assessments.
,The funds in ,such account shall be held and disbursed in accordance with Paragraph 18(f) of the
Declaration.
Section 8.06. Fiscal Year. The fiscal year of the Corporation shall be commence on January
1 in each year.
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