HomeMy WebLinkAboutMaster Declaration of CCRS for Woodside of West Clay_09_20_20171 of 23
MASTER DECLARATION
OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
WOODSIDE AT WEST CLAY
A RESIDENTIAL DEVELOPMENT
IN CLAY TOWNSHIP, HAMILTON COUNTY, INDIANA
This MASTER DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS (hereinafter referred to as this “Declaration”) is made this day of
, 2017 by SNAP II Properties, LLC (hereinafter referred to as "Developer").
Recitals
WHEREAS, Developer is the owner and developer of that certain real property described
on Exhibit A attached hereto (hereinafter referred to as the “Real Estate”);
WHEREAS, Developer desires to develop, or cause to be developed, the Real Estate into
that certain single family residential subdivision to be known as Woodside at West Clay
(hereinafter referred to as “the Development”), comprised of forty (40) single family residential
lots, as depicted on that certain Woodside at West Clay Secondary Plat, recorded on
, 2017 in the office of the Recorder of Hamilton County Indiana as Instrument #
] (hereinafter referred to as the “Plat”);
WHEREAS, Developer wishes to impose the following development standards,
restrictions, covenants, conditions and assessments on the Real Estate (hereinafter referred to as
a "Lot" and collectively, the "Lots"), for the benefit of all present and future Owners (as
hereinafter defined) of any Lot in the Subdivision (as hereinafter defined) and Developer.
DECLARATIONS
Developer hereby declares that the Development and all of the Lots in the Development,
( hereinafter referred to as the "Subdivision"), as they are held and shall be held, conveyed,
hypothecated or encumbered, leased, rented, used, occupied and improved, shall be subject to the
following development standards, restrictions, covenants, conditions and assessments, which are
in furtherance of a plan of the improvement and sale of the Subdivision and each Lot and
Residence (as hereinafter defined) situated therein and in accordance with the Woodside at West
Clay Preliminary Plan, Covenants and Development Standards, Ordinance No. Z-618-16, dated
as of October 17, 2016 (hereinafter referred to as the “PUD”), and are established and agreed
upon for the purpose of enhancing and protecting the values, desirability and attractiveness of
the Subdivision as a whole, each of the Lots situated therein and the homes constructed thereon.
Comment [N 1]: Ed, we typically record
the Covenants first and then the plat,
referencing the instrument number for
the recorded covenants on the plat
itself. Are you ok with removing the
recording date and instrument number
cross reference from this section?
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This Declaration shall be for the benefit of Developer and all Owners and occupants within the
Subdivision and shall run with the property and shall be binding on Developer and all Owners
and all persons claiming under them for a period of ten (10) years from the date these covenants
are recorded, at which time said covenants shall be automatically extended for successive
periods of ten (10) years each, unless at any time after expiration or sooner termination of the
Development Period (as hereinafter defined) and the turnover of the Master Association (as
hereinafter defined) to the Owners pursuant to the terms hereof, a majority of the Owners in the
Subdivision agree to change or terminate said covenants in whole or in part and on the condition
that an instrument to that effect signed by the Owners voting in favor of such change has been
recorded; provided, however, that Developer may, in its sole and absolute discretion, terminate
said covenants in whole or in part before the expiration or sooner termination of the
Development Period for any portion of the Subdivision upon recordation of an instrument to that
effect signed by Developer. In no event shall any change or termination of said covenants affect
any easement hereby created or granted unless all persons entitled to the beneficial use of such
easement shall consent thereto. If any of the development standards, restrictions, covenants,
conditions and assessments or other provisions of this Declaration shall be unlawful, void, or
voidable for violation of the rule against perpetuities, then such provisions shall continue until
twenty-one (21) years after the death of the last survivor of the now-living descendants of
Elizabeth II, Queen of England.
The Owner of any Lots subject to these development standards, restrictions , covenants,
conditions and assessments contained in this Declaration, by (i) acceptance of a deed conveying
title thereto, or the execution of a contract for the purchase thereof, whether from Developer, any
third party builder, or a subsequent Owner of such Lot or (ii) the active occupancy of any Lot,
shall accept such deed, execute such contract and/or actively occupy such Lot subject to each
development standard, restriction, covenant, condition, assessment and agreement herein
contained.
Developer shall have the right, and hereby reserves on to itself the right, from time to
time at any time prior to the expiration or sooner termination of the Development Period, to add
to the Subdivision and subject all or any part of the Additional Real Estate to this Declaration.
Any portion of the Additional Real Estate shall become a part of the Subdivision and subject in
all respects to this Declaration and all rights, obligations, and privileges herein when Developer
places of record in Hamilton County, Indiana an instrument so declaring the same to be part of
the Subdivision and subject to this Declaration (hereinafter referred to as a “Supplementary
Declaration”). Such Supplementary Declaration may contain modifications hereto and
additional terms, conditions, restrictions, maintenance obligations, and assessments as may be
necessary to reflect the different character, if any, of the Additional Real Estate or improvements
to be located thereon.
Upon recording of any such Supplementary Declaration on or before the expiration or
sooner termination of the Development Period, unless later removed by Developer during the
Development Period as provided for herein, the real estate described therein shall, for all
purposes, thereafter be deemed a part of the Subdivision and Developer and the Owners of any
Lots within such real estate shall be deemed for all purposes, to have and be subject to all of the
rights, duties, privileges, and obligations of Developer and Owners of Lots within the
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Subdivision. No single exercise of Developer’s right and option to add and expand the
Subdivision as to any part or parts of the Additional Real Estate or to contract the Subdivision,
shall preclude Developer from thereafter from time to time further expanding and adding to the
Subdivision other portions of the Additional Real Estate or further contracting the Subdivision,
and such right and option of expansion may be exercised by Developer from time to time as to
all or any portions of the Additional Real Estate and such right and option of contraction may be
exercised by Developer from time to time as to all or any portions of the Real Estate so long as
such expansion or contraction is accomplished on or before the expiration or sooner termination
of the Development Period. Such expansion or contraction of the Subdivision is entirely at the
sole discretion of Developer and nothing contained in this Declaration or otherwise shall require
Developer to contract the Subdivision or expand the Subdivision beyond the Real Estate or to
any portions of the Additional Real Estate which Developer may voluntarily and in its sole
discretion from time to time subject to this Declaration.
The “Development Period” shall be the period commencing on the date hereof and
expiring on the date which is the sooner to occur of (a) ninety (90) days after 100% of all Lots
within the Subdivision are sold to third party Owners, or (b) Developer elects, in its sole and
absolute discretion, to turn over control of the Master Association to the Owners.
Article 1. Use Restrictions
1.01 Each Lot shall be used for single family residential purposes only. However,
Developer, its agents or assignees may use the Lots for construction and sales purposes during
the Development Period. “Residence” shall mean a single family detached residence located on
a Lot. An “Owner” shall mean and refer to the record title Owner of a Lot in the Subdivision
other than Developer, and shall be all Owners, jointly and severally, if there is more than one
Owner of record.
1.02 Except as expressly provided for herein, no Residence, building, shed, fence,
flagpole, mailbox, light pole or fixture, swimming pool, tennis court, pavement, driveway,
awning, wall or structure of any kind shall be erected, placed or altered on any Lot without first
obtaining the written consent of the Committee (as hereinafter defined) subsequently described
herein. Except as expressly provided for herein, all requests for approvals from the Committee
shall be in writing, shall be dated, shall specifically request approval of the contemplated
improvement(s) and shall be accompanied by two (2) copies of detailed plans and specifications
and site plan for the proposed improvements showing, where applicable, the size, location, type,
architectural design and details, spacing, quality, use, construction materials, color scheme,
grading plan, finished grade elevation and landscaping plans for said improvements.
1.03 Residences within the Subdivision shall have the following minimum square
footage of two thousand (2000) square feet exclusive of basements, open porches, garages and
other unheated areas. Each Residence shall have an attached garage with space for not less than
two (2) automobiles.
1.04 All structures or improvements commenced by an Owner and/or building within
the Subdivision must be completed within nine (9) months from the date of construction
commencement.
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1.05 Two (2) carriage light(s) and additional exterior lighting shall be installed on the
front of each Residence at the time of construction in accordance with the plans and
specifications approved by the Committee. The Owner shall maintain such lights in operating
condition at all times and shall not alter or modify the exterior lighting without the prior written
approval of the Committee.
1.06 No detached storage buildings shall be permitted on any Lot.
1.07 No towers of any description or satellite dish antennas greater than thirty-nine
(39) inches in diameter will be permitted on any Lot without the prior written approval of the
Committee. Said Committee may deny any such request in its sole and absolute discretion or
may attach such conditions as it deems necessary or appropriate. Any satellite dish antenna less
than thirty-nine (39) inches in diameter and as otherwise approved pursuant to this Section 1.07
shall require Committee approval as to location, color and other aesthetic conditions; provided,
however, that any satellite dish antenna permitted hereunder shall be situated on a lot and
installed and maintained with sufficient landscaping screening to minimize visibility from
adjacent Residences, sidewalks, streets and the Common Areas (as hereinafter defined).
1.08 No Residence shall have a sump pump which discharges directly into the street
through a curb.
1.09 No building shall be located closer to any street than the building setback lines
shown on the Plat. The setback areas designated on the Plat shall be used for lawn and
landscaping purposes only in accordance with the conditions and restrictions contained in this
Declaration. This covenant shall not be construed to prevent the use of the setback areas for
mailboxes, walks, drives, trees, shrubbery, flowers, or ornamental plants used for the purpose of
beautification in accordance with the conditions and restrictions contained in this Declaration.
1.10 No structures or materials shall be placed or permitted within the utility or
drainage easement areas as designated on the Plat. Plantings placed and maintained within said
utility or drainage easement areas shall be placed and maintained at the Owner's sole risk of loss
if such plantings, as determined solely by the applicable utility authority or the Committee,
would damage or interfere with the installation or maintenance of utilities or would change or
retard the flow of surface water from its proper course. Each Owner shall maintain such portion
of any utility or drainage easement area as is located upon such Owner’s Lot in accordance with
the conditions and restrictions contained in this Declaration.
1.11 No business activities of any kind shall be conducted on any Lot or open space in
the Subdivision without the approval of the Master Association; provided, however, that the
foregoing shall not apply to (a) the business activities of Developer or the construction, sale or
maintenance of the Lots or Residences located thereon by authorized builders or by Developer,
its agents or assigns, during the Development Period, (b) the maintenance or sale of a Residence
and/or Lot conducted by authorized contractors, agents or assigns of an Owner or (c) a home
occupation or home based business that (i) satisfies all applicable zoning ordinances, (ii) does
not constitute a nuisance, a hazardous or offensive use, or threaten the security or safety of other
residences in the Subdivision, (iii) is conducted entirely within a Residence by an Owner or by
an immediate family member of an Owner residing in said Residence, (iv) is clearly incidental
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and secondary to the use of the Residence for single family residential dwelling purposes and
does not change the character thereof, (v) utilizes no sign or display visible from a Lot or the
exterior of a Residence that a Residence is being utilized in whole or in part for any purpose
other than that of a single family residential dwelling, (vi) does not involve the sale of any
commodity, (vii) does not employ persons other than members of the immediate family of an
Owner residing in the Residence; (viii) does not involve any activity that generates a significant
number of client, customer or other visits related to the business or unreasonable parking
demands (each as determined by the Master Association in its sole and absolute discretion), or
(ix) does not involve manufacturing or assembly operations on a Lot or in a Residence.
Notwithstanding the foregoing, in no event shall the following activities, or similar activities, be
conducted or considered to be permitted on any Lot or within any Residence: child day care,
barber shop, styling salon, animal hospital, or any form of animal care or treatment such as dog
trimming, or any other similar activities.
1.12 No clothesline shall be located on any Lot. No laundry articles shall be left
outdoors overnight or any time on Saturdays or Sundays.
1.13 No automobile, commercial vehicle, bus, camper, motor home, trailer, boat, other
watercraft, snowmobile, motorcycle, all-terrain vehicle or other similar vehicle shall be stored on
any Lot unless completely enclosed within a Residence’s garage. For purposes of this section, a
vehicle shall be considered “stored” if inoperable, put up on blocks or covered with a tarpaulin
and it remains in such condition for a period of seven (7) consecutive days or more than fourteen
(14) non-consecutive days during any calendar year.
1.14 No Lot shall be used as a dumping ground or storage area for rubbish, machinery,
scrap, paper, glass or other such materials. Garbage or other waste shall be kept in trash
containers approved by the Master Association. All containers used for the storage or disposal
of trash or recyclable materials shall be kept in a clean and sanitary condition and kept in a
Residence’s garage or otherwise screened from public view. Building materials to be used in the
construction of approved structures may be stored on or within a Lot, provided such building
materials are incorporated into the approved improvement within ninety (90) days after their
delivery to such Lot.
1.15 No sod, dirt or gravel, other than incidental to the construction of an approved
structure or the normal maintenance of lawn areas, shall be removed from any Lot without the
written approval of the Committee.
1.16 No weeds, underbrush or unsightly growths or objects of any kind shall be
permitted to remain on any Lot. All lawn areas shall be maintained in a neat and orderly manner
and shall be mowed on a regular basis. The Master Association may regulate and control the
maintenance of lawn areas by publishing rules and regulations as it deems necessary from time
to time.
1.17 It shall be the duty and obligation of the Owner of any vacant Lot to maintain
such Lot and mow the lawn thereof. Developer, during the Development Period, and the Master
Association thereafter shall have the right, but not the duty, to enter upon each vacant Lot and to
maintain the appearance thereof by cutting weeds, mowing grass, trimming trees, removing
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debris, installing erosion control devices, and performing any other act reasonable under the
circumstances. The Owner shall be responsible for payment of all such expenses upon demand
and Developer or the Master Association, as the case may be, shall have a lien on such Lot for
the payment of such expenses, together with attorneys’ fees and all other costs and expenses of
litigation and collection which may be incurred in connection therewith.
1.18 No geothermal or solar heating system shall be installed on any Lot or on any
Residence thereon without the prior approval of all applicable agencies and the Committee.
1.19 No animals or livestock of any kind shall be raised, bred or kept on any Lot or in
any Residence, except that a reasonable number of dogs, cats or other usual domesticated
household pets may be kept on a Lot or in a Residence, so long as such pets are not kept, bred or
maintained for any commercial purpose. No animal shall be permitted to run loose or become a
nuisance. The Master Association may regulate and control the maintenance of such household
pets by publishing such rules and regulations as it deems necessary from time to time.
1.20 Permitted signs shall include only those professionally constructed signs which
advertise a home on any Lot for sale, and which are non-illuminated and less than or equal to six
(6) square feet in size (hereinafter referred to as “Permitted Signs”). With the exception of
Permitted Signs, all signs including, but not limited to those advertising a garage sale or a
Residence “For Lease”, must be approved by the Committee before being placed upon any Lot
or Common Area, or displayed from a Residence. No more than one sign (including Permitted
Signs) may be displayed on a Lot or from a Residence at any one time. All Permitted Signs
advertising a Residence or Lot for sale shall be removed within three (3) business days of the
conveyance of the Residence or Lot. Signs advertising a Residence for “Rent to Own”, or
something similar, are expressly prohibited and may not be placed on a Lot or displayed from a
Residence constructed thereon. Developer and designated builder(s) are expressly exempt from
the requirements of this Section 1.20 and may post any signs in the Common Areas and Lots
owned by Developer and/or designated builder(s) during the Development Period, as approved
by Developer.
1.21 All tanks for the storage of propane gas, fuel or oil shall be located beneath
ground level, except that propane tanks for service to the entire Subdivision or, on a temporary
basis, for construction of an approved structure may be located above ground. Notwithstanding
the foregoing, nothing in this section shall prohibit an Owner from storing propane gas tanks, as
reasonably necessary to operate residential outdoor grills for personal use, in a Residence’s
garage or otherwise screened from public view.
1.22 No well for the production of gas, water or oil, whether intended for temporary or
permanent purposes, shall be drilled or maintained on any Lot without the written consent of the
Committee.
1.23 No chain link fence will be permitted on any Lot. Acceptable fence styles and
materials shall be established by the Committee in its sole and absolute discretion from time to
time. Any fence to be installed on a Lot and the location thereof shall be submitted to the
Committee for its review and approval prior to installation.
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1.24 No above ground swimming pools in place for more than forty eight (48)
consecutive hours will be permitted on any Lot.
1.25 Nothing shall be done, placed or stored on any Lot which may endanger the
health or unreasonably disturb the occupants of any neighboring Residence or any Lot or
Residence within the Subdivision.
1.26 Except as otherwise approved by Developer in connection with a builder’s model
home sales center, all outside lighting contained in or with respect to the Subdivision shall be of
an ornamental nature compatible with the overall architectural design of the Subdivision, shall
provide for projection of light so as to not create a glare, distraction or nuisance to the other
Owners and shall be consistent with the outside lighting depicted in the plans and specifications
approved by the Committee.
1.27 No fence, wall, mound, hedge, landscape screening or shrub planting which
obstructs sight lines at elevations between two (2) and nine (9) feet above the street shall be
placed or permitted to remain on any corner Lot within the triangular area formed by the street
right of way and a line connecting points twenty-five (25) feet from the intersection of the street
right of way extended or in the case of a rounded property corner, from the intersection of the
street rights of way extended. The same sight line limitations shall apply to any Lot within ten
(10) feet from the intersection of a street right of way with the edge of a driveway or alley line.
No tree shall be permitted to remain within such distances of such areas unless the foliage line is
maintained at a sufficient height to prevent obstruction of such sight lines.
Article 2. Easement Restrictions
2.01 There are hereby reserved unto Developer, during the Development Period, and
thereafter, the Master Association, and the designees of each (which may include, without
limitation, any private or public utility provider or governmental authority) (collectively, the
“Infrastructure Easement Holder”), access, maintenance and utility easements upon, across,
over and under the Subdivision to the extent reasonably necessary for the purposes of replacing,
repairing and maintaining security and similar systems, landscaping, landscaping mounding and
screening, roadways, sidewalks, bicycle pathways, lakes, ponds, drainage systems, street lights,
signage and all utilities, including, but not limited to, water, sewer, meter boxes, telephone, gas
and electricity infrastructure, and for the purpose of installing any of the foregoing on property
which it owns or within easements designated for such purposes on the Plat. Notwithstanding
anything to the contrary herein, this easement shall not entitle the Infrastructure Easement
Holder to construct or install any of the foregoing systems, facilities, infrastructure or utilities
over, under or through any existing Residence on a Lot or in such a manner as to unreasonably
and adversely affect any Residence or portion thereof located upon such Lot or Developer’s or
the Owner’s use and enjoyment thereof or unreasonably restrict the rights of ingress and egress
to such Lot, except in an emergency. Entry onto any Lot shall be made only after reasonable
notice to the Owner or occupant.
2.02 Subject to the restrictions, covenants and easements contained in the Plat and this
Declaration, there are hereby reserved unto each Owner, Developer, during the Development
Period, and thereafter, the Master Association, and their agents, contractors or employees (each,
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a “Maintenance Easement Holder”), non-exclusive maintenance access easements upon,
across, over and under that portion of each Lot or the Common Areas adjacent to an Owner’s
Lot, as applicable, and that portion of the each Lot adjacent to the Common Areas, as applicable,
extending a distance of not more than three (3) feet from each side of the common boundary line
between adjacent Lots or between each Lot and adjacent Common Areas, as applicable, as
measured from any point on the common boundary line and extending perpendicular to such
common boundary line at such point (the “Maintenance Access Easement”). Subject to the
restrictions, covenants and easements contained in the Plat and this Declaration, the Maintenance
Access Easement shall be used by the Maintenance Easement Holder thereof on a non-exclusive
basis for the sole purpose of allowing for convenient and minimally invasive access to inspect,
construct, maintain, replace or restore that portion of any structures or improvements constructed
on a Maintenance Easement Holder’s Lot or the Common Areas, as applicable, in accordance
with this Declaration within three (3) feet of the common boundary line, as measured from any
point on the common boundary line extending perpendicular to such boundary at such point,
only to the extent such inspection, construction, maintenance, replacement or restoration
activities cannot be reasonably performed within the boundaries of a Maintenance Easement
Holder’s Lot or the Common Areas without utilizing the Maintenance Access Easement.
Notwithstanding anything to the contrary herein, (a) in no event shall such Maintenance Access
Easement exist with respect to a Maintenance Easement Holder if the Maintenance Easement
Holder’s landscaping, structures or improvements otherwise benefitting from the Maintenance
Access Easement were constructed in violation of the restrictions, covenants and easements
contained in the Plat or this Declaration or encroach upon an adjacent Lot or the Common Areas
due to the willful and knowing conduct on the part of, or with the knowledge and consent of, the
Maintenance Easement Holder or occupant, (b) the Maintenance Access Easement shall not
entitle a Maintenance Easement Holder to construct or install any landscaping, structures or
improvements on an adjacent Lot or the Common Areas, (c) the Maintenance Access Easement
shall not entitle a Maintenance Easement Holder to relocate or unnecessarily disturb any
landscaping, structures or improvements on an adjacent Lot or Common Areas, without first
obtaining such Owner’s, Developer’s or the Master Association’s, as applicable, prior written
consent, (d) use of the Maintenance Access Easement shall be limited to such location and
duration as minimally necessary to complete inspection, construction, maintenance or restoration
activities during such times and on such days as established for such activities by Developer or
the Master Association, as applicable, from time to time, and (e) upon completion of the
inspection, construction, maintenance, replacement or restoration activities within the
Maintenance Access Easement, any damage or destruction to landscaping, structures or
improvements located within the Maintenance Access Easement shall be immediately repaired
and restored to the same condition as existed immediately prior to the Maintenance Easement
Holder’s use of the Maintenance Access Easement or better, at the Maintenance Easement
Holder’s sole cost and expense.
2.03 No Owner shall do or permit to be done any action or activity which would result
in (a) the pollution or contamination of any retained water, (b) the diversion of water, (c) a
change in the elevation of the water level, (d) silting or (e) an adverse effect on water quality,
drainage or proper water management, or which would otherwise impair or interfere with the use
of easement areas for drainage and related purposes for the benefit of all Owners.
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2.04 No boating, fishing, swimming, ice skating or other recreational activity shall be
conducted in, on or above any easement areas.
2.05 The Master Association shall have the right to establish from time to time rules
regarding the use of any easement areas, provided such rules are not in conflict with any other
provision contained herein, and are reasonably established to protect the safety and welfare of
Developer, the Owners and their guests and the general public, or are established to ensure the
continued service of the areas for the purposes for which they were designed.
Article 3. Master Association
3.01 Formation. Within sixty (60) days after the recording of this Declaration,
Developer shall form and incorporate the Woodside at West Clay Homeowners' Association,
Inc., an Indiana nonprofit corporation (hereinafter referred to as the “Master Association”) to
promote the common interest of Developer and all Owners, to handle maintenance of certain
areas within the Subdivision as set forth in this Declaration and to promote compliance with the
development standards, restrictions, covenants, conditions and assessments set forth in this
Declaration and the PUD. The Master Association shall be comprised of Developer and all
Owners in the Subdivision, as provided for herein.
3.02 Owner Votes and Records. The Master Association shall have two (2) classes of
membership as provided for in this Section 3.02. Developer shall be the Class A Member of the
Master Association created in accordance with Section 3.01 hereof and shall be entitled to ten
(10) votes for each Lot owned during the Development Period and one (1) vote for each Lot
owned after expiration or sooner termination of the Development Period. For purposes of
determining the number of aggregate votes possessed by Developer, it shall be assumed that
Developer owns all Lots within the Subdivision, with such number of Lots being reduced as Lots
are conveyed to an Owner. Each Owner within the Subdivision, upon acquisition of title to a
Lot, shall automatically become a Class B Member of the Master Association. Each such Owner
shall be entitled to one (1) vote for each Lot owned during the Development Period and one (1)
vote for each Lot owned after expiration or sooner termination of the Development Period.
When more than one person holds an interest in any Lot, all such persons shall be members;
provided, however, in no event shall more than one (1) vote be cast with respect to any Lot. The
membership rights of a Lot owned by a corporation, partnership or limited liability company
shall be exercised by the individual designated from time to time by Developer or the Owner in a
written instrument provided to the Master Association as more fully set forth in the Articles of
Incorporation and By Laws for the Master Association. Such membership shall be appurtenant
to and shall not be separated from ownership of the Lot and such membership shall terminate
upon the sale or other disposition by such member of such Lot ownership. The Master
Association shall maintain a current roster of each Owner within the Subdivision and the mailing
address of each Owner and legal description for each Lot within the Subdivision. To the extent
provided to the Master Association by an Owner, the Master Association shall also maintain an
electronic mail address for those Owners who have consented to receive notice from the Master
Association by electronic mail. Electronic mail addresses approved by an Owner to receive
notice by electronic mail shall be removed from the Master Association’s records when the
Owner revokes consent to receive notice by electronic mail; provided, however, the Master
Association shall not be liable for an erroneous disclosure of an electronic mail address for
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receiving notices. The mailing addresses and legal descriptions maintained by the Master
Association shall be available to Developer and an Owner upon request, may be used by
Developer or an Owner only for purposes related to the operation of the Master Association and
may not be used by Developer or an Owner for personal reasons unrelated to the operation of the
Master Association.
3.03 (a) “Common Areas” means (i) all portions of the Subdivision (including
improvements thereto) so designated on the Plat which are not located on a Lot and which are
not dedicated to the public, (ii) all facilities, structures, buildings, improvements and personal
property owned or leased by the Master Association from time to time and (iii) all alleys shown
on the Plat. Common Areas may be located within a public right-of-way or in an easement area
as shown on the Plat.
(b) “Common Expenses” means (i) the costs and expenses incurred in connection
with the maintenance, operation, repair or replacement of the Common Areas and related
improvements thereon and the costs and expenses related to the performance of the
responsibilities and duties of the Master Association, including, without limitation, costs and
expenses for the improvement, operation, maintenance, replacement or repair of the
improvements, lawn, foliage and landscaping not located on a Lot, including adequate reserves
for replacement of buildings, improvements, furniture, fixtures or equipment, except for lawn
maintenance as described herein (unless located on an easement located on a Lot to the extent
the Master Association deems, in its sole and absolute discretion, it necessary to maintain such
easement), (ii) costs and expenses incurred in connection with the maintenance, repair or
continuation of the drainage facilities located within and upon the easements, (iii) all judgments,
liens and valid claims against the Master Association, (iv) all expenses incurred in the
administration of the Master Association and (v) if applicable, costs and expenses associated
with trash pick-up within the Subdivision.
3.04 Master Association Insurance. The Master Association shall purchase the
following coverage:
(a) Liability Insurance. The Master Association shall purchase and pay the costs of
the policy or policies of insurance in the form generally known as public liability and/or owners
policies insuring the Master Association against any and all claims and demands made by any
person or persons whomsoever for injuries received in connection with the fulfillment by the
Master Association of its obligations specified in this Declaration, or for any other risk insured
against by such policies which the Master Association, in its sole and absolute discretion,
determines to insure against, including, without limitation, claims arising out of the Common
Areas. Each policy purchased by the Master Association shall have limits of not less than Two
Million Dollars ($2,000,000.00) covering all claims for personal injury and Two Hundred Fifty
Thousand Dollars ($250,000.00) for property damage arising out of a single occurrence. The
coverage of the liability insurance policies purchased by the Master Association shall include
protection against liability for property damage, bodily injuries and deaths of persons in
connection with the fulfillment by the Master Association of its obligations specified in this
Declaration, liability for non-owned and hired automobiles, liability for property of others and
liability arising out of the Common Areas. All such policies will name the Master Association as
the insured under such policy or policies. The insurance purchased shall contain a “severability
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of interest endorsement”, or equivalent coverage, which would preclude the insurer from (i)
denying the claims of an Owner because of the negligent acts of either the Master Association,
Developer or any other Owners or (ii) denying the claims of either Developer or the Master
Association because of the negligent acts of an Owner.
(b) Casualty Insurance. The Master Association may purchase and pay the costs of a
policy or policies of insurance to allow the Master Association to insure from the fulfillment by
the Master Association of its obligations specified in this Declaration. Such casualty insurance
may insure, without limitation, any improvements located within the Common Areas.
(c) Errors and Omissions Coverage. The Master Association shall purchase adequate
errors and omissions insurance in an amount reasonably determined by the Board of Directors to
protect and insure the Master Association and its officers and directors against liability for
negligence in the fulfillment of their obligations and duties.
3.05 Board of Directors. The management and control of the affairs of the Master
Association shall be vested in its Board of Directors. The Board of Directors shall be composed
of between three (3) and nine (9) members. The initial members of the Board of Directors shall
be selected by Developer. The three (3) initial members of the Board of Directors shall serve
until the expiration or sooner termination of the Development Period. Upon the incapacity,
resignation or death of any initial director, a successor, who shall serve the remaining term of the
departed director, shall be appointed by the remaining members of the Board of Directors within
three (3) months after the incapacity, resignation or death of the departed director. Upon
expiration or sooner termination of the Development Period, the Board of Directors shall be
elected by a majority vote of Developer and the Owners as more fully set forth in the Articles of
Incorporation and By Laws for the Master Association.
3.06 Special Meetings. In addition to any other meetings held by the Board of
Directors as permitted or required in the Articles of Incorporation or By Laws for the Master
Association, the Board of Directors shall hold a special meeting of the Owners and, if applicable,
Developer, if Developer submits a written demand to the Board of Directors, or the Owners
submit to the Board of Directors a written demand signed by at least twenty five percent (25%)
of the Owners, for a special meeting that describes the purpose for which the meeting is to be
held. If the Board of Directors does not send out a notice of the date, time and place for a special
meeting as required in the Articles of Incorporation and By Laws for the Master Association
within thirty (30) days after the date the Board of Directors receives such valid written demand
therefore, Developer, if Developer submitted the written demand, or an Owner who signed the
written demand, may set the date, time and place for the special meeting and send out the notice
for the special meeting to the Owners and Developer, as applicable.
3.07 Other Matters Concerning the Master Association. The Articles of Incorporation
of the Master Association as filed with the Indiana Secretary of State and the By Laws of the
Master Association, both as may be amended from time to time, are incorporated herein by
reference.
3.08 Master Association Common Area Rights. The Master Association, or its agents,
assigns or third party contractors, shall have the right to enter onto the Common Areas, open
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space, public right of way, tree preservation easement areas or landscape easement areas as
shown on the Plat, if any, or other easement area as it from time to time deems necessary for the
purpose of maintaining the same. Such maintenance may include, but shall not be limited to:
(a) regular mowing, trimming and fertilizing of grassy areas;
(b) periodic mulching of flower beds and landscaped areas within the
Subdivision as well as the tree preservation easement along the northern property
line of the Subdivision;
(c) regular weeding of flower beds, landscaped areas, and the tree
preservation easement along the northern property line of the Subdivision;
(d) flower planting and landscaping installation within the Subdivision as well
as the tree preservation easement along the northern property line of the
Subdivision;
(e) maintenance of street lighting, if any, and associated electric service
billings;
(f) repair, maintenance and replacement of any permanent signs;
(g) repair, maintenance and replacement of any Common Area wall,
monument or fencing;
(h) operation, maintenance, repair and replacement of any community pools,
buildings, playgrounds, pathways or other Common Area amenities;
(i) plowing and/or removal of snow from private streets and alleys located
within Common Areas and community walkways located within Common Areas;
(j) treatment of water in any detention or retention areas to limit algae and
grassy growth; and
(k) maintaining, trimming, pruning, irrigating, fertilizing, removing and
replacing flowers, plants, trees and bushes within Common Areas as well as Tree
Preservation Easements as necessary.
3.09 Master Association Annual Budget. Without any approval or vote by the Owners,
but subject to the approval of the Developer during the Development Period, the Board of
Directors shall prepare, or cause to be prepared, a proposed annual budget (herein after referred
to as the “Proposed Budget”) for the subsequent calendar year which shall be the basis for any
amounts collected from the Owners in the Subdivision, estimates of Common Expenses and
other costs and expenses to be incurred by the Master Association in the subsequent calendar
year and shall provide for the allocation of expenses in such a manner that the obligations
imposed by this Declaration and all Supplemental Declarations can effectively be met. The
Proposed Budget shall provide the Board of Directors’ estimate of revenues and expenses for the
subsequent budget calendar year and the estimated surplus or deficit as of the end of the then
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current budget calendar year. The Master Association shall provide Developer and each Owner
with a copy of the Proposed Budget or written notice that the Proposed Budget is available upon
request at no charge to the Developer or Owner and a written notice of any increases or decrease
in annual assessments paid by the Owners if the Proposed Budget is approved. The Board of
Directors during any calendar year prior to the effective date of the Proposed Budget shall be
entitled to increase any assessments for the year in which the Proposed Budget is to be in effect
if the Board of Directors should determine that the estimate or current assessment is insufficient
for that year, provided that the Board of Directors shall give at least thirty (30) days advance
notice thereof to Developer and the Owners. After all of the foregoing take place, the
Association shall hold a meeting pursuant to the following Section 3.10.
3.10 Master Association Meeting to Approve the Budget. The Master Association
Proposed Budget must be approved by a majority vote of the Developer and Owners in
attendance at a meeting called and conducted in accordance with the requirements of this
Declaration, the Articles of Incorporation and the By-Laws (the “Approved Budget”). For
purposes of this meeting, Developer or an Owner is considered to be in attendance at the meeting
if the Developer or Owner attends: (1) in person; (2) by proxy; or (3) by any other means
allowed under Indiana law or under this Declaration, the Articles of Incorporation or the By-
Laws.
3.11 Power of the Board of Directors to Adopt a Proposed Budget in the Absence of a
Quorum. If the number of votes possessed by Developer and the Owners in attendance at the
meeting held under Section 3.10 above does not constitute a quorum as defined in the By-Laws
of the Association, the Board of Directors may adopt an annual budget for the Master
Association for the ensuing year in an amount that does not exceed one hundred ten percent
(110%) of the amount of the last approved Master Association annual budget and such annual
budget adopted by the Board of Directors shall be deemed to be the Approved Budget for the
ensuing year.
3.12 Amounts. Each Owner of any Lot, except as otherwise provided for herein, by
acceptance of a deed therefore, whether or not it shall be solely expressed in such deed, is
deemed to covenant and agree to pay to the Master Association assessments as provided for
herein for the purpose of providing funds to carry out the responsibilities of the Master
Association hereunder. The assessments provided for herein shall be per calendar year and shall
commence for each Lot on the date of closing of the sale of a Lot to an Owner based on the
Approved Budget for the applicable calendar year. The obligation to pay the assessments
provided for herein shall commence for each Lot on the date it is conveyed to an Owner. The
assessments for the calendar year shall be pro-rated to year-end. The Board of Directors shall fix
any increase in the amount of the any amounts assessed hereunder at least thirty (30) days in
advance of the effective date of such increase. The initial due date for annual assessments shall
be January 1st
, and such assessment shall be subject to collection and late charges beginning on
January 31st
. The Board of Directors may provide for reasonable interest and late charges on past
due installments of assessments.
3.13 Notice and Due Date. Written notice of special assessments and such other
assessment notices as the Board of Directors shall deem appropriate shall be delivered to every
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Owner subject thereto. The due dates for special assessments shall be established by the Board
of Directors.
3.14 Annual Assessment. The annual assessments levied by the Association shall be
used in the reasonable discretion of the Board of Directors in accordance with the Approved
Budget to fulfill the duties and obligations of the Association specified in or reasonably inferred
by this Declaration, including, without limitation, the Common Expenses, as well as the costs
and expenses of insurance, and professional property management, if applicable (the “Annual
Assessment”).
For the purpose of providing funds to carry out the responsibilities of the Master
Association hereunder, the Master Association shall be empowered to levy, assess and
collect from each Owner in the Subdivision an amount up to _____ Hundred Dollars
($______) per year, irrespective of whether the Subdivision has been completed.
Provided, however, that such limit of _____ Hundred Dollars ($________) per Lot per
year may be increased or decreased in proportion to any increase or decrease in the
Consumer Price Index of the U.S. Bureau of Labor Statistics from the base period of
December 2016. If the Master Association elects to provide trash pick-up service
through the Master Association as provided for in Section 3.02 (b) (vi) hereof, the cost of
trash pick-up shall be assessed in addition to the ____ Hundred Dollars ($_________)
described herein. Any fees assessed by the Master Association in excess of _____
Hundred Dollars ($___________), plus the cost of trash pick-up if applicable per Lot per
year, or its adjusted equivalent, must be approved by a majority of the Owners.
3.15 Initial Operating/Reserve Fund Assessment. In addition to the Annual
Assessment set forth above, upon the closing of the initial conveyance of each Lot to the first
Owner of the respective Lot, the Owner shall pay to the Master Association, in addition to any
other amount then owed or due to the Master Association, as a contribution to the working
capital of the Master Association and its start-up fund, an amount equal to $500.00 Dollars,
which payment shall be non-refundable and shall not be considered as an advance payment of
any other assessments or other charges owed to the Master Association with respect to such Lot .
The working capital and start-up fund shall be held and used by the Master Association for
payment of, or reimbursement to, Developer for advances made to pay expenses of the Master
Association for its early period of operation to enable the Master Association to have cash
available to meet unforeseen expenditures or to acquire additional equipment or services deemed
necessary by the Board of Directors. In the event the start-up fund is insufficient to reimburse
Developer for the advances made to pay expenses of the Master Association for its early period
of operation to enable the Master Association to have cash available to meet unforeseen
expenditures or to acquire additional equipment or services deemed necessary by the Board of
Directors, Developer will be reimbursed through a Special Assessment at the end of the
Development Period from the Reserve Fund.
3.16 Special Assessments. In addition to Annual Assessment and the Initial
Operating/Reserve Fund Assessment set forth above, the Board of Directors of the Master
Association may make special assessments against each Lot (a “Special Assessment”) for the
purpose of defraying, in whole or in part, the cost of constructing, reconstructing, repairing or
replacing any capital improvement which the Master Association is required to maintain or the
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cost of special maintenance and repairs or to recover any deficits (whether from operations or
any other loss including the reimbursement of the Developer for advances made to pay expenses
of the Master Association for its early period of operation to enable the Master Association to
have cash available to meet unforeseen expenditures or to acquire additional equipment or
services deemed necessary by the Board of Directors) which the Master Association may from
time to time incur, but only with the assent of one-third (1/3) of the Developer or members of the
Owners who cast votes in person or by proxy at a duly constituted meeting of the members of the
Master Association called for such purpose.
3.17 Exemption. In no event shall Developer, or any related entity expressly exempted
by Developer, be assessed or levied any portion of an Annual Assessment, an Initial
Operating/Reserve Fund Assessment or a Special Assessment during the Development Period of
the Subdivision or any time thereafter. During the period commencing upon the closing of the
conveyance of a Lot from Developer to Weekley Homes of Indiana, LLC, an Indiana limited
liability company (“Weekley Homes”) (each, a “Weekley Closing”), and ending on the earlier
of (a) Weekley Homes’ sale of that Lot to a third party Owner or (b) twelve (12) months after the
Weekley Closing, Weekly Homes shall be exempted from being assessed or levied any portion of
an Annual Assessment, an Initial Operating/Reserve Fund Assessment or a Special Assessment
for that Lot. For avoidance of doubt, Weekley Homes shall be responsible for an Initial
Operating/Reserve Fund Assessment and all Annual Assessments and Special Assessments
commencing on the twelve (12) month anniversary of each Weekley Closing, if such Lot is not
sooner sold to a third party Owner. Weekley Homes shall be responsible for all maintenance
associated with the Lots it owns until the twelve (12) month anniversary of each Weekley
Closing, if such Lot is not sooner sold to a third party Owner. In addition, Weekley Homes shall
be exempted from being assessed or levied any portion of an Annual Assessment, an Initial
Operating/Reserve Fund Assessment or a Special Assessment for a Lot on which Weekley
Homes maintains a model home or show home, as designated by Developer in writing prior to
the closing of the conveyance of such Lot from Developer to Weekley Homes. Upon Weekley
Homes’ sale of a Lot to a third party Owner, each third party Owner shall be responsible for an
Initial Operating/Reserve Fund Assessment and all Annual Assessments and Special
Assessments commencing upon the closing of the conveyance of the Lot from Weekley Homes
to each such third party Owner.
3.18 Unpaid Assessments. Any amount assessed or levied hereunder by the Master
Association against an Owner shall become a lien on each Lot until paid. Any assessments
which are not paid within thirty (30) day of the due date shall be delinquent. As long as an
assessment remains delinquent, a late fee of twenty-five dollars ($25.00) will be charged per
month until the assessment is paid in full. In the event any amount so assessed or levied is not
paid when due and remains in arrears for more than sixty (60) days, the Master Association may
file with the Hamilton County Recorder a Notice of Lien. The Notice of Lien shall contain a
description of the Lot against which the lien exists, the name or names of the Owner or Owners
thereof, and the amount of the unpaid portion of the assessment or assessments. The lien
provided for herein shall remain valid for a period of five (5) years from the date a Notice of
Lien is duly filed, unless sooner released or satisfied in the same manner provided for by Indiana
law for the release and satisfaction of mortgages on real property or until discharged by the final
judgment or order of the Court in an action brought to discharge the lien. The lien shall secure
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not only the amount of the unpaid assessments and late fees, but also the costs incurred in
collection of any amount assessed or levied hereunder, including, but not limited to interest,
attorney's fees and court costs. The lien of the assessment provided for herein shall be subject
and subordinate to the lien of any duly executed mortgage on any Lot recorded prior to the
recording of the Notice of Lien. The holder of any such mortgage which comes into possession
of a Lot pursuant to the remedies provided in the mortgage, foreclosure of the mortgage, or deed
or assignment in lieu of foreclosure shall take the property free of claims for unpaid installments
of assessments or charges against the Lot which become due and payable prior to the time such
holder or purchaser takes title to the Lot. In the event an Owner does not pay any assessment
within six (6) months of the due date, the Master Association shall have the right to suspend that
Owner’s voting rights pursuant to this Declaration, the Articles of Association and the By Laws
until any assessments and past due amounts are paid in full.
3.19 Director Liability. No member of the Board of Directors shall be liable to
Developer, the Owner(s) or any other person for any error or mistake of judgment exercised in
carrying out his duties and responsibilities as a director, except in the case of willful misconduct
or gross negligence. Further the Master Association shall indemnify and hold harmless and
defend each of the directors against any and all liability to any person, firm or corporation
arising out of any contract made by the Board of Directors on behalf of the Master Association,
unless any such contract shall have been made fraudulently. It is intended that no director shall
have personal liability with respect to any contract made by any board member on behalf of the
Master Association.
3.20 Indemnification. The Master Association shall indemnify, hold harmless and
defend any person, his heirs, assigns and legal representatives, made a party to any action, suit or
proceeding by reason of the fact that he or she is or was a director of the Master Association,
against the reasonable expenses, including attorney’s fees, actually and necessarily incurred by
him or her in connection with the defense of such action, suit or proceeding, or in connection
with any appeal therein, except as otherwise specifically provided herein in relation to matters as
to which it shall be adjudged in such action, suit or proceeding that such director is liable for
gross negligence or willful misconduct in the performance of his duties. The Master Association
shall also reimburse to any such director the reasonable costs of settlement of, or judgment
rendered in, any action, suit or proceeding, if it shall be found by a majority vote of Developer
and the Owners that such director was not guilty of gross negligence or willful misconduct. In
making such findings and notwithstanding the adjudication in any action, suit or proceeding
against a director, no director shall be considered or deemed to be guilty of or liable for
negligence or misconduct in the performance of his or her duties where, acting in good faith,
such director relied on the books and records of the Master Association or statements or advice
made by or prepared by the managing agent (if any) or any officer or employee thereof, or any
accountant, attorney or other person, firm or corporation employed by the Master Association to
render advice or service, unless such director had actual knowledge of the falsity or incorrectness
thereof; nor shall a director be deemed guilty of, or liable for, negligence or misconduct by virtue
of the fact that he or she failed or neglected to attend a meeting or meetings of the Board of
Directors.
3.21 Developer Rights. Any and all of the rights, powers, duties and obligations
assumed by, reserved to, created in or given to the Master Association may be exercised by
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Developer until such time as the Master Association is formed and control thereof transferred to
the Owners. At such time as control of the Master Association is transferred to the Owners,
Developer may reserve the exclusive right to approve the plot plan, construction plans, color
scheme and landscape plan associated with any structure on any Lot on which a Residence has
not yet been completed and occupied, so long as Developer clearly identifies the Lots for which
it is retaining such right at the time of the turnover. Developer shall maintain said right of
approval for each Lot until such time as a Residence has been completed on that Lot and
occupied by the homebuyer.
3.22 Rubbish Disposal. The community shall not contain dumpsters or other forms of
general or common trash accumulation except to facilitate development and Residence
construction. No Lot shall be used or maintained as a dumping ground for trash. Rubbish,
garbage and other waste shall be kept in sanitary containers. All equipment for storage or
disposal of such materials shall be kept clean and shall not be stored on any Lot in open public
view. No rubbish, garbage or other waste shall be allowed to accumulate on any Lot. No
homeowner or occupant of a Lot shall burn or bury any garbage or refuse.
Article 4. Architectural Control Committee
An Architectural Control Committee (the "Committee") is hereby established as a
standing committee of the Master Association to carry out the functions set forth for it in this
Declaration. The Committee's procedures and duties shall be as follows:
4.01 The Committee shall be composed of between four (4) and eight (8) members.
Developer shall appoint the initial members of the Committee.
4.02 Membership. The initial members of the Committee shall serve until expiration
or sooner termination of the Development Period. Any subsequent members shall be appointed
by the Master Association and shall serve for terms of four (4) years, except that the first
appointed members of the Committee shall serve for staggered terms of two (2), three (3), and
four (4) years as directed by the Board of Directors of the Master Association. All members of
said Committee shall serve until the expiration of their terms or until their incapacity, resignation
or death. Upon the incapacity, resignation or death of a member of the Committee, a successor,
who shall serve the remaining term of the departed Committee member, shall be appointed by
the Board of Directors of the Master Association within three (3) months after the incapacity,
death or resignation of the departed member. After expiration or sooner termination of the
Development Period, the Committee shall be comprised of three (3) lot Owners at all times.
4.03 Plans and Specifications. Section 1.02 hereof requires that detailed plans and
specifications be submitted to the Committee for the Committee’s review and written approval
prior to the erection of, placement on, or alteration of any structure or improvement on any Lot.
The intent is to achieve an architecturally harmonious, artistic and desirable residential
subdivision and ensure compliance with PUD conditions and requirements. Therefore, while
considering the approval or disapproval of any plans and specifications submitted, the
Committee is directed to consider the zoning commitments for the Subdivision, appropriateness
of the improvement contemplated in relation to the improvements on contiguous or adjacent lots,
the artistic and architectural merits of the proposed improvement, the adaptability of the
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proposed improvement to the Lot on which it is proposed to be made, the PUD conditions and
requirements, and such other matters as may be deemed by the Committee members to be in the
interest and benefit of the Owners in the Subdivision as a whole and consistent with PUD
conditions and requirements. Notwithstanding anything herein to the contrary, during the
Development Period, a third party builder shall not be required to obtain the Committee’s prior
approval of detailed plans and specifications for the initial construction of a Residence on a Lot
on which no Residence previously existed if (a) the third party builder shall have obtained the
Architectural Review Commission for Woodside at West Clay, or its successor’s (the “ARC”),
written approval of the detailed plans and specifications in accordance with the PUD conditions
and requirements prior to the erection of such Residence or placement of such Residence on any
Lot and (b) the third party builder shall have delivered to the Committee, prior to the erection of
such Residence or placement of such Residence on any Lot, copies of the plans and
specifications for such Residence as previously approved by the ARC, together with the ARC’s
written approval thereof.
4.04 Special Requirements. To assist it in making its determinations, the Committee
may require that any plans and specifications submitted to the Committee be prepared by a
registered architect or civil engineer. The Committee shall also have the right to require any
other reasonable data including, but not limited to, grading or elevation plans, material lists,
landscape plans and color scheme designations.
4.05 Binding Decision. The Committee's decisions shall be in writing and shall be
binding upon all parties in interest. The Committee shall approve, disapprove or request
additional information with respect to any submitted request for approval within thirty (30) days
after said request shall have been properly submitted to the Committee for approval. A properly
submitted request shall be in writing and shall comply with the provisions of Section 1.02 hereto.
The failure of the Committee to approve, disapprove or request additional information within
said time period shall be deemed an approval of any properly submitted request.
4.06 No Representations and Warranties. The approval of any plans and specifications
by the Committee shall not constitute a representation or warranty by it as to the quality of the
workmanship, materials or architectural or engineering design covered thereunder, or the
proposed work’s feasibility or compliance with any applicable laws.
4.07 Variance. If, in the opinion of the Committee, the enforcement of these
restrictions would constitute a hardship due to the shape, dimension or topography of a particular
Lot in the Subdivision, the Committee may permit a variation which will, in its judgment, be in
keeping with the maintenance of the standards of the Subdivision.
4.08 Committee Deadlock. In the case of a tie vote by Members of the Committee on
any matter, the matter shall be referred to the Board of Directors of the Master Association for
final determination.
Article 5. Other Conditions
5.01 All transfers and conveyances of each and every Lot in the Subdivision shall be
made subject to these covenants and restrictions.
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5.02 Any failure to enforce these restrictions shall not be deemed a waiver thereof or
an acquiescence in, or consent to, any continuing, further or succeeding violation hereof.
5.03 If any covenant, condition or restriction hereinabove contained, or any portion
thereof, is invalid, such invalidity shall in no way affect any other covenant, condition or
restriction.
5.04 All costs of litigation and attorney's fees resulting from violation of this
Declaration shall be the financial responsibility of the Owner or Owners found to be in violation.
5.05 Developer reserves the right to amend this Declaration to the extent necessary to
conform to any requirements imposed or requested by any federal agencies, local governing
authorities, governmental agency, public authority or financial institution (including, but not
limited to, the U.S. Department of Housing and Urban Development, the U.S. Veterans
Administration, Federal National Mortgage Association, Federal Home Loan Mortgage
Corporation, or similar entity) as a condition of the approval of this Declaration, by the
execution and recordation of such amendment following notice to all Owners.
5.06 It shall be lawful for Developer, the City of Carmel, Hamilton County, the Master
Association or any Owner within the Subdivision to prosecute any proceedings at law or in
equity against a person or persons violating or attempting to violate any covenant or restriction
contained herein. The proceeding may seek to prevent such person or persons from violating or
continuing to violate the restrictions or to recover damages for such violation, seek restraining
orders or other mandatory relief for the correction of any interference with or damage to the
drainage and detention or retention system within the Subdivision, together with the costs
incurred in enforcement of the restrictions.
5.07 Notwithstanding anything herein to the contrary, so long as Developer maintains
control of the Master Association during the Development Period as set forth in Article 3 hereof,
Developer hereby reserves the right unilaterally to amend, revise or clarify the standards,
covenants and restrictions contained in this Declaration for any reason. No such amendment,
however, shall restrict or diminish materially the rights or increase or expand materially 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. Developer shall give notice in writing to such Owners and mortgagees of
any amendments. Developer shall not have the right at any time by amendment of this
Declaration to grant or establish any easement through, across or over any Lot which Developer
has previously conveyed without the consent of the Owner of such Lot. All amendments to this
Declaration shall be in writing and recorded among the appropriate land records.
5.08 Upon expiration or sooner termination of the Development Period as set forth in
Article 3 hereof, this Declaration may be amended by a majority vote of Developer and the
Owners in the Subdivision so long as such amendment does not materially increase the
obligation(s) of Developer or any Owner under any covenant, condition, term or provision
without Developer’s or such Owner’s consent.
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5.09 Only the Lots contained in the Subdivision shall be subject to and bound by the
restrictions, covenants and conditions set out in this Declaration and none of said provisions
shall in any manner affect or be operative in respect to any other land of Developer or its
successors or assigns.
Article 6. Property Rights
6.01 Owners’ Easement of Enjoyment of Common Areas. Developer hereby declares,
creates and grants a non-exclusive easement in favor of each Owner and Developer for the use
and enjoyment of the Common Areas. Such easements shall run with and be appurtenant to each
Owner’s and Developer’s Lots, subject to the following provisions:
(i) the right of the Master Association to charge reasonable admission and
other fees for the use of the recreational facilities, if any, situated upon the Common
Areas;
(ii) the right of the Master Association to fine any Owner or make a special
assessment against any Lot in the event a person permitted to use the Common Areas by
the Owner violates any rules or regulations of the Master Association as long as such
rules and regulations are applied on a reasonable and nondiscriminatory basis;
(iii) the right of the Master Association to make reasonable regular
assessments for use and maintenance of the Common Areas and any services provided by
the Master Association such as trash collection (at the Master Association’s option),
snow removal, grass mowing or like service;
(iv) the right of the Master Association to dedicate or transfer all or any part of
the Common Areas or to grant easements to any public agency, authority or utility for
such purposes and subject to such conditions as may be set forth in the instrument of
dedication or transfer;
(v) the right of the Master Association to enforce collection of any fines or
regular or special assessments through the imposition of a lien;
(vi) the rights of Developer as provided in this Declaration and in the Plat;
(vii) the terms and provisions of this Declaration;
(viii) the easements reserved elsewhere in this Declaration and in the Plat; and
(ix) the right of the Master Association to limit the use of Common Areas in a
reasonable nondiscriminatory manner for the common good.
6.02 Permissive Use. Any Owner and Developer may permit his or her family
members, guests, tenants or contract purchasers who reside in the Lot to use his or her right of
enjoyment of the Common Areas. Such permissive use shall be subject to the By-Laws of the
Master Association and any reasonable nondiscriminatory rules and regulations promulgated by
the Master Association from time to time.
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6.03 Conveyance of the Common Areas. Developer shall convey all of its right, title,
interest in and to the Common Areas to the Master Association by quitclaim deed, and such
Common Areas so conveyed shall then be the property of the Master Association. Such
conveyance shall be deemed to have been accepted by the Master Association and those persons
who shall from time to time be members thereof upon the recording of a deed or deeds
conveying such Common Areas to the Master Association.
Article 7. Maintenance
7.01 Maintenance of Lots and Improvements. Except to the extent such maintenance
shall be the responsibility of the Master Association under any of the foregoing provisions of this
Declaration, it shall be the duty of each Owner, including any builder during the Development
Period, to at all times maintain each Owner’s respective Lot and any improvements situated
thereon in such a manner as to prevent the Lot or improvements from becoming unsightly; and,
specifically, such Owner shall:
(i) Keep the grass on the Lot properly cut with such regularity as may be
reasonably required in order to prevent unsightly growth of vegetation and noxious
weeds.
(ii) Keep the Lot, including any drainage utility and sewer easements located
on the Lot, free of weeds, trash or construction debris and otherwise neat and attractive in
appearance, including, without limitation, the property maintenance of the exterior of any
structures on such Lot.
(iii) Prevent the existence of any other condition that reasonably tends to
detract from or diminish the aesthetic appearance of the Subdivision.
(iv) Cut down and remove dead trees.
(v) Keep the exterior of all improvements in such a state of repair or
maintenance to avoid becoming unsightly.
In the event that the Owner of any Lot in the Subdivision shall fail to maintain such Lot
and any improvements thereon in accordance with the provisions set forth herein, the Master
Association, after approval by a majority vote of the Board of Directors, shall have the right (but
not the obligation), by and through its agents, employees and contractors, to enter upon said Lot
and clean, repair, mow, maintain or perform such other acts as may be reasonably necessary to
make such Lot and improvements situated thereon, if any, conform to the requirements of this
Declaration. The cost of any such work shall be and constitute a Special Assessment against
such Lot and the Owner thereof, whether or not a builder, and may be collected and enforced in
the manner provided in this Declaration for the collection and enforcement of assessments in
general. Neither the Master Association nor any of its agents, employees or contractors shall be
liable for any damage which may result from any maintenance work performed hereunder.
7.02 Damage to Common Areas. In the event of damage to or destruction of any part
of the Common Areas or any improvements which the Master Association is required to
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maintain hereunder, the Master Association shall repair or replace the same to the extent of the
availability of insurance proceeds. If such insurance proceeds are insufficient to cover the costs
of repair or replacement of the property damaged or destroyed, the Master Association may
make a Special Assessment against all Owners to cover the additional cost of repair or
replacement not covered by the insurance proceeds or against such Owners who benefit by the
Special Assessments if less than all benefit. Notwithstanding any obligation or duty of the
Master Association hereunder to repair or maintain the Common Areas, if, due to the willful,
intentional or negligent acts or omissions of any Owner (including any builder) or of a member
of the Owner’s family or of a guest, tenant, invitee or other occupant of visitor of such Owner,
damage shall be caused to the Common Areas, or if maintenance, repairs or replacements shall
be required thereby which would otherwise be a Common Expense, then the Master Association
shall cause such repairs to be made and such Owner shall pay for such damage and such
maintenance, repairs and replacements, unless such loss is covered by the Master Association’s
insurance with such policy having a waiver of subrogation clause. If not paid by such Owner
upon demand by the Master Association, the cost of repairing such damage shall be added to and
constitute a Special Assessment against such Owner, whether or not a builder, and its Residence,
to be collected and enforced in the manner provided in this Declaration for the collection and
enforcement of assessments in general.
7.03 Maintenance of the Pollinator Habitat and Native Plantings. The area
surrounding the retention pond in the Subdivision has been designed and installed as a pollinator
habitat with native plantings. These improvements were done to improve the ecology of the
Subdivision and the surrounding community as well as reduce maintenance costs to the Master
Association over time. The existence of this pollinator habitat and native plantings in the
Subdivision was a material part of the City of Carmel’s approval of the PUD and as such shall
remain and be maintained according to the Pollinator Habitat Maintenance Plan on file with the
Master Association, the City of Carmel Department of Community Services and the Developer.
The pollinator habitat and native plantings shall be maintained as designed with a minimum area
of fourteen thousand (14,000) square feet. The Pollinator Habitat Maintenance Plan shall be
provided to the landscape maintenance contractor to the Subdivision and shall be followed as a
part of the overall landscape maintenance of the Subdivision. Mowing shall be done only in
accordance with the Pollinator Habitat Maintenance Plan. Enhancement or expansion of the
pollinator habitat area utilizing native, pollinator friendly species and techniques is expressly
permitted.
Article 8. Mortgages
8.01 Notice to Association. Any holder of a recorded first mortgage lien on any Lot
(hereinafter referred to as a “Mortgagee”) may notify the secretary of the Master Association of
the existence of such mortgage and provide the name and address of such Mortgagee. A record
such mortgage and name and address shall be maintained by the secretary of the Master
Association and any notice required to be given to the Mortgagee pursuant to the terms of this
Declaration, the By-Laws or Articles of Incorporation of the Master Association or otherwise
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, as herein provided, no notice to any Mortgagee as
may be otherwise required by this Declaration, the By-Laws or Articles of Incorporation of the
23 of 23
Master Association or otherwise shall be required, and no Mortgagee shall be entitled to vote on
any matter to which it otherwise may be entitled by virtue of this Declaration, the By-Laws or
the Articles of Incorporation of the Master Association, a proxy granted to such Mortgagee in
connection with the mortgage, or otherwise.
8.02 Notice to Mortgagees. The Master Association, upon request, shall provide to
any Mortgagee a written certificate or notice specifying unpaid assessments and defaults of the
Owner of such Lot, if any, in the performance of such Owner’s obligation under this Declaration
or any other applicable documents, which defaults have not been cured within sixty (60) days.
Article 9. Litigation and Arbitration
9.01 Litigation. No judicial or administrative proceeding shall be commenced or
prosecuted by the Master Association unless approved by a vote of at least seventy-five percent
(75%) of the Class A Members and the Class B Members which approval must be accompanied
by the approval of a reasonable litigation budget and the approval of a Special Assessment in an
amount equal to the litigation budget to be levied equally among the Units and collected before
commencement of any action at a special meeting of the Owners and, if applicable, Developer,
held in accordance with the terms of this Declaration, the Articles of Incorporation or By Laws
for the Master Association. This section, however, shall not apply to (a) actions brought by the
Master Association against Owners to enforce the provisions of this Declaration (including,
without limitation, the foreclosure of liens), (b) the imposition or collection of assessments, (c)
proceedings involving challenges to ad valorem taxation, or (d) counterclaims brought by the
Master Association in proceedings instituted against it.
[SIGNATURE PAGE FOLLOWS.]
IN WITNESS WHEREOF, Developer has caused this Master Declaration of
Covenants, Conditions and Restrictions to be executed as of the date first written above.
SNAP II PROPERTIES, LLC
By:
Printed Name: Steve A. Pittman
Its: Manager
STATE OF INDIANA)
) SS:
COUNTY OF )
Before me, a Notary Public in and for the County and State referenced above, personally
appeared __________________________________, who, having been first duly sworn,
acknowledged the execution of the foregoing Master Declaration of Covenants, Conditions and
Restrictions in such capacity and stated that the representations contained therein are true.
Witness my hand and notarial seal this this day of
, 2017, by ________________________________________________________.
Notary Public
County of Residence:
My Commission Expires:
EXHIBIT A
A part of the Southwest Quarter of Section 21, Township 18 North, Range 3 East located in Clay
Township, Hamilton County, Indiana, being bounded as follows:
Commencing at the northwest corner of the Southwest Quarter of Section 21, Township 18
North, Range 3 East; thence South 00°05’53” West (assumed bearing) 1,297.22 feet along the
west line of said Southwest Quarter to the southwest corner of a 40 acre tract of land described in
Instrument Number 5938 and recorded in Deed Record 300, page 505 in the record of Hamilton
County, Indiana; thence South 89°58’53” East 672.44 feet along the south line of said 40 acre
tract of land to the point of beginning of this description; thence South 00°10’27” East 1,335.15
feet to the south line of said Southwest Quarter; thence North 89°59’21” East 658.75 feet along
the south line of said Southwest Quarter to the Southeast corner of the west half of said
Southwest Quarter; thence North 00°15’40” East 1,334.82 feet along the East line of the West
Half of said Southwest Quarter to the Southeast corner of said 40 acre tract of land; thence North
89°58’53” West 668.89 feet along the south line of said 40 acre tract of land to the point of
beginning, containing 20.344 acres, more or less.
I\4234637.6