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HomeMy WebLinkAboutApplication ~ 6 APPLICATION FOR DATE: DOCKET NO. ~ ~ RECEIVED gEP 21 2001 DOCS PRIMARY PLAT OR REPLAT Fee: $500.00 plus $25.00 per lot The undersigned agrees that any construction, reconstruction, enlargement, relocation or alteration of structure, or any change in the use of land or structures requested by this application will comply with, and conform to, all applicable laws of the State of Indiana, and the "Zoning Ordinance of Carmel, Indiana - 1980", adopted under the authority of Acts of 1979, Public Law 178 Sec. 1, et seq, General Assembly of the State of Indiana, and all Acts amendatory thereto. Name of Applicant: Boomerang Developnent, LLC Phone No. 849-7607 Address of Applicant: 11911 Lakes; c1P- Dr; vP-, Pi shprs, TN 4hO iA Name of Owner: Boomerang Developuent, LLC Phone No. 849-7607 Name of Subdivision: Claybourne Legal Description: (To be typewritten on separate sheet and attached) Area (in acres): 198.58 Number of Lots: 259 to be dedicated to public use: 3.66 Length (in miles) of new streets Surveyor certifying plat: Edward D. Giacoletti Address: 8901 Otis Ave., Indianapolis, IN 46216 Phone No. 826-7]00 .. ...I.......~........ _......**'**'*....ol............ .......1....010."'......... "". .1;,......................... ...*******....1.1..1,.1........01....... "..........4...**ST ATE OF INDIANA, COUNTY OF /Y}a-ri 1Y1J ' 5S: The undersigned having been duly sworn, upon oath says that the above information is true and correct as he or she is inform~a d believes. SIGNATURE OF APPUCANT: Lt:. Print.j.CCI2.-T Cao~'1' III f A6-f€~} Subscribed and sworn to before me this ~~day of .h.u-, ~,,(CJO f. My Comm ission Expires: 7/;1J /t!J7 . ~4~. _ _.....__4.........6~A~~4 ~~~~~A~. ~A6................._.A~~~~~ . 5.1.10 Application for Primary Plat. Two (2) copies, or more if necessary, of the primary plat and of the construction plans together with supporting documents shall be submitted to the Director of Current Planning with this application. These plans to be distributed to all Technical Advisory Committee authorities bv applicant. Received by: ! \. , \ I ---- FEE: $9,765.00 --.-- dorms' primp iaLapp re~;~ Oli07,97 ,,- ~ ~~ Schneider Q LEGAL DESCRIPTION ~ ~ RECEIVED _SEP 21 2001 DOCS 8 The Northeast Quarter of Section 30, Township 18 North, Range 3 East together with the West Half of the North Half of the Southeast Quarter of Section 30, Township 18 North, Range 3 East, in Clay Township, Hamilton County, Indiana, being more particularly described as follows: BEGINNING at a P.K. nail marking the Northeast Comer of the said Northeast Quarter Section; thence South 00 degrees 25 minutes 34 seconds West (Assumed Bearing) along the East Line of the said Northeast Quarter Section a distance of 2635.32 feet to the Southeast Comer of the said Northeast Quarter Section; thence South 89 degrees 18 minutes 18 seconds West along the South Line of the said Northeast Quarter Section a distance of 1312.24 feet to Northeast Comer of the West Half of the North Half of the said Southeast Quarter Section; thence South 00 degrees 29 minutes 09 seconds East along the East Line of the West Half of the North Half of the said Southeast Quarter Section a distance of 1313.81 feet to the Southeast Comer of the West Half of the North Half of the said Southeast Quarter Section; thence South 89 degrees 20 minutes 29 seconds West along the South Line of the West Half of the North Half of the said Southeast Quarter Section a distance of 1312.25 feet to the Southwest Comer of the West Half of the North Half of the said Southeast Quarter Section; thence North 00 degrees 29 minutes 07 seconds West along the West Line of the said Southeast Quarter Section a distance of 1312.98 feet to the Southwest Comer of the said Northeast Quarter Section; thence North 00 degrees 26 minutes 36 seconds West along the West Line of the said Northeast Quarter Section a distance of 2642.46 feet to the Northwest Comer of the said Northeast Quarter Section; thence North 89 degrees 27 minutes 39 seconds East along the North Line of the said Northeast Quarter Section a distance of 2625.24 feet to the BEGINNING POINT, containing 198.58 acres, more or less. R:\3k\3690\00 1 \docs\OVERALL LEGAL September 20, 2001 THE SCHNEIDER CORPORATION Historic Fort Harrison 8901 Otis Avenue Indianapolis. Indiana 46216-1037 317-826-7100 Toll free 800-898-0332 Fax 317-826-7200 www.schneidercorp.com .~ DEC-17-2001 14:58 .'-J NELSON FRANKENBERGER (;,) 3178468782 P.02/04 . . COMMITMENTS CONCEBNJNG THE USE AND DEVELOPMENT OF REAL ESTATE The undersigned. Boomerang Development. ILCt (hereafter "Owner"), the Contract Purchaser of the following described real estate located in Hamilton County, Indiana (hereafter "Real Estate"), makes the following Commitments Concerning the Use and Development of Real Estate to the CarmeVClay Plan Commission ("Commission"). I. 13' "'k .L:._ d Description oCReal Estate. See Exhibit "A" hereto. ("Real Estat ~ / ! .,iJ'\ Docket # 1 J 9..o1PP ~ RECEIVED \-1 ~! DEe 11 2001 i.",mj Statement of Commitmentl. - DOCS il A Owuer oollllllils to __ madway illlpJOWllleDll III ~ orIS OfVi~ 1311& Street and Sbelboume Road adjacent to the Real ~~ either of the following at its diaetion: Q 2. 3. 1. a ~ roadway (including exilting pavement) of two (2) 12 tOot Janes with curb and gutter ("Ordinance Improvements") or 2. a ~ roadway with an addition of three (3) feet of paveD1eat and three (3) foot stODe shoulder to the existing pavement ("Required Improvements")t together with other roadway. improvements detennined by the Department of Community Services, Carmel, Indiana (l1)OCS"), (Other Roadway Improvements) or at the option of Owner in lieu of the Other Roadway Improvements a cash contribution payable to the City of CarmeJt Indiana, in an amount determined by DOCS, but not to exceed the difference between the costs of the Ordinance Improvements and the cOsts of the Required Improvements. The cuh contribution, if elected by Owner, shall be paid at the time of the approval of a Secondary Plat for a Section(s) in an amount equal to the total cash contribution divided by 258 times the number of lots shown on the Secondary Plat for which approval wu received. The roadway improvements provided fOf. and contemplated by these commitments require and are subject to the approval oftbe Hamilton County Highway DepartmentlHamilton County Commissioners. The Other Roadway Improvements shall be within a one mile radius of the perimeter boundaries of the Real Estate. if made. 4. Binding on Successors and A3$j,sDs. These commitments are binding on the Owner of the Real Estate, each subsequent Owner of the Real Estate, and each other person acquiring an interest in the Real Estate from Owner. These commitments may be modified or terminated only by a decision of the Commission made at a public hearing after notice as provided by the rules of the Commission. The foregoing notwithstanding, these comJJ)itments shall terminate 1 DEC-17-212l12l1 14:59 U NELSON FRANKENBERGER (j 3178468782 P.12l3/12l4 . ~ upon the recordation of a Secondary Plat as to the parteS) of the Real Estate described therein. s. Eff~ve Date. These commitments contained herein shall be effective upon lethe approval by the Commission of the Primary Plat filed under Dooket # 119-01PP" (primary Plat) and the approval of a Secondary Plat for all or part of the Real Estate, pursuant to the Primary Plat. ("Effective Date"). Recording_ The undersigned hereby authorizes the Secreta1'y of the Commission or the Director of the DepartPlent of Community Services to record these commitments in the Office of the :Kecorder of Hamilton County, Indiana, following the Effective Date. 6. Enforcement. These commitments may be enforced by the Commission and City of Carmel, Indiana. Executed this 12m day of December. 2001. 7. BOOMERANG DEVELOPMENT. LLC. By:~ Corby ThonlJ*on, Managjns Mgl.Llu~1 ~ STATE OF INDIANA ) J A - )S8: COUNTY OF rV\ CU'\. Of\ ) Subscribed and sworn to before me, a Member Notary Public, in and for said County and State, appeared Corby Thompson, the Managing Member of Boomerang Development, LLC, and acknowledged the execution of the foregoing Commitments Conceming the Use and Development of Rea1 Estate. - WITNESS my hand and Notarial Seal this 12th day of December, 2001. 1 ,i' My Commission Expires: Residing in County This Document Prepared By: lames I. Nelson NELSON" FIlANKE.NBERGER 3021 East 98* Street, Suite 220 Indianapolis IN 46280 Rl\1a!LLY\mi(~llOC 2 ...... ~ ~ . ii I =1 -i a -i. "P "'tl Cil A ," ; . .--,"".- '" .- . \.5. - ~.~ : ~ .. I _ . -.:~': -. . '1::1 m (") I ~ ~ I ~ ~ '. ... . . ..~_. ....-:r. . "- ~:. ~. .. .1.. . ;.\i~:".." . , ... :,..- .'.. <; .t~ ~ ~'. .~.: r'.~ 'I' ..:" '; ,':-- ..... 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".;,~_:._",:._.,..,.__.~._..~.:,.:,::.,,~,:.:.;..'~.~,'::~:.~'.'_.'.,~:::.~_:i:~_':,~_~.;:".:.:'~~.r.'~_..... .... -'::'~ ~.:':: ,::. .. . . :,;.~~;'~ "'tl i! "- i! ~ l>. VI lJ) c ~ en a z II :;u D Z ^ m z tIJ m :;u G) m :;u c t.I ~ ai A en (Xl ~ (Xl I\) DEC-17-2001 14:58 U NELSON FRFlNKENBERGER o 3178468782 P.01/04 * NELSON &; FRANKENBERGER A PROFESSIONAL CORPORATION ATTORNEYS AT LAW JAMES J. NELSON CHARLHS D; FRANKENBERGER lAMES E. SHINA VER LAWRENCE J. KEMPER JOHN B FlATT FREDRIC LAWRENCE Of'Couasel IANE B. MERRIll 3011 BASi 98TH STRBBT surm 220 INDIANAPOLIS.1NDIANA 46280 317.1144-0106 FAX: 317-846-8782 :EAX TRANSMISSlQN COVER SHEET Date: December 17.2001 To; Sue Ellen Johnson Company: Carmel Depanment of Community Services Fax: (317) 571-2426 From: Kelly @ Nelson &. Frankenberger Pages: ~ (including cover sheet) Phone: 317/844-0106 Notes: Please let me know if you need anything elsel Thanks I Kelly ....***....................................................................... 'lbe iD1brma11on c:ontamed in tbill taCSimile message is intended only for the use of the individual or eutity named above. If the reader or recipient of this message is not the intended recipient or an employee or apnt of the intended teci.pieu.t who is re$pODSib1e for deliveriDg it to the intended reciptem, you ale hereby notified that BDY diJsemilCltion, distribution or copying of this communica11on is strictly prohibited. If you bave rec:eived tbi5 communication in error. please notity us by telephone (collect) and retum the ori&inal JbeIIIa8e to us at the above indicated addres8 via the U.S. Postal Service. Receipt by anyone other than the inteacled recipient is not a waiver of an attomey.client or w01k product privilege. ! o u CODE OF BY-LAWS OF CLAYBOURNE PROPERTY OWNERS ASSOCIATION, INC. ARTICLE I NAME AND LOCATION The name of the Corporation is Claybourne Property Owners Association, Inc. (hereinafter referred to as the "Corporation"). The principal office of the Corporation shall be located at Fishers, Indiana, until and unless changed by the Board of Directors. Meetings of members and/or directors may be held at such places either within or without the State of Indiana as may be designated by the Board of Directors. ARTICLE II DEFINITIONS Section 1. "Declarant" shall mean Boomerang Development, LLC, an Indiana Limited Liability Company, and any successors and assigns of it whom it designates in one or more written recorded instruments to have the rights of Declarant under the Declaration, including, but not limited to, any mortgagee acquiring title to any portion of the Property pursuant to the exercise of rights under, or foreclosure of, a mortgage executed by Declarant. Section 2. "Community Facilities" shall mean such of the following, if any, as are, at any time, located or constructed on any part of the Common Area, to-wit: the walks, paths, landscaping, open spaces, entryway, monumentation, swimming pool, bathhouse, fencing, deck, and such other improvements or structures from time to time or at any time located or constructed on any part of the Common Area, other than such portions of the foregoing, if any, which are dedicated to the public (such as streets). Section 3. Restrictions for record in the "Declaration" shall mean and refer to the Declaration of Claybourne Property Owners Association, Inc. filed for office of the Recorder of Hamilton County, Indiana on 2001, as Instrument No. said being incorporated herein by reference as if set forth at length Declaration herein. Section 4. "Corporation" shall mean and refer to this corporation, which is also referred to as the "Association" in said Declaration. Section 5. "Applicable Date" shall mean the date when the Declarant transfers control of the Association to the Class A Members. On this date, the Class B membership shall cease. Section 6. All of the definitions and terms as defined and used in the Declaration shall have the same meanings in these By-Laws. 1 u Q ARTICLE III MEMBERSHIP AND VOTING RIGHTS Section 1. Membership, Transfer, Votinq Riqhts, Suspension of Votinq Riqhts. Reference is hereby made to Paragraph 11 of the Declaration which sets forth terms, provisions and conditions governing and relating to membership in the Corporation, transfer of membership, voting rights of classes of members and suspension of voting rights, all of which terms, provisions and conditions are incorporated herein by reference. Section 2. Quorum. The presence in person or by proxy at any meeting of the membership of persons entitled to vote fifty one percent (51%) of the votes of the membership shall constitute a quorum for any action except as otherwise provided in or required by the Articles of Incorporation of the Corporation, the Declaration, these By-Laws, or by statute. If, however, such quorum shall not be present or represented at any meeting, the members entitled to vote thereat shall have power to adjourn the meeting from time to time, without notice other than announcement of the meeting, until a quorum as aforesaid shall be present or represented. Section 3. must be filed with of each meeting of not be permitted. Proxies. Votes may be cast in person or by proxy. Proxies the Secretary of the Corporation before the appointed time the members of the Corporation. Cumulative voting shall Section 4. Ma-;ority Required. A majority of the votes of members present (in person or by proxy) at a meeting at which a quorum is present shall be sufficient for the transaction of all business of the Corporation except on matters where a greater vote is required by the Declaration, the Articles of Incorporation, the By-Laws or by statute. Section 5. Meetinqs. Meetings of the Corporation shall be in accordance with the following provisions. A. Annual Meetings. The first annual meeting of the members of the Corporation shall be held within one (1) year from the Applicable Date, the exact date to be decided by the Board of Directors. At such first annual meeting of the members, the members may designate a regular day or date for successive annual meetings. If the members fail to designate such a regular day or date, the Board of Directors may continue to designate the day or date of the next annual meeting until such a designation is made by the members. If any designated day or date falls upon a legal holiday, it shall be understood that the actual date of the meeting shall be the next business day succeeding such designated day or date. B. Special Meetings. Special meeting of the members may be called at any time by the President. It shall be the duty of the President to call a special meeting of the members when requested in writing by a majority of the members of the Board of Directors or upon a petition signed by members of the Corporation who are entitled to vote sixty percent (60%) of all of the votes of the membership. Notice of any special meeting shall state the time and place of suc~ meeting and the purpose thereof. No business shall be transacted at a special meeting except as stated in the notice unless by consent of two-thirds (2/3rds) of the votes present in person or by proxy at such meeting. 2 o Q C. Notice of Meetings. It shall be the duty of the Secretary to serve a notice of each annual or special meeting, stating the purposes thereof as well as the time and place where it is to be held, upon each member of record, at least ten (10) days prior to such meeting. The mailing of a notice to each member at the then known address for such member shall be deemed notice served. D. Order of Business. The order of business at all meetings of the members shall, to the extent applicable, be as follows: (1) Roll call. (2) Proof of notice of meeting or waiver of notice. (3) Reading of minutes of preceding meeting. (4) Reports of officers. (5) Report of committees. (6) Election of directors. (7) Unfinished business. (8) New business. ARTICLE IV BOARD OF DIRECTORS Section 1. Number and Qualification. Subj ect to amendment of this Section, the affairs of the Corporation shall be governed by a Board of Directors composed of three persons. Directors need not be members of the Corporation. Section 2. First Board of Directors. The first Board of Directors named in the Articles of Incorporation shall maintain, manage and administer the affairs, the real estate and other property of the Corporation, until the first annual meeting of the members and until their successors have been duly elected or appointed and qualified, unless said directors sooner resign, be removed or otherwise disqualified to serve. Section 3. Powers. The Board of Directors shall have such powers as are reasonable and necessary to accomplish the performance of their duties, which powers include, but are not limited to, the power: A. To adopt and publish rules and regulations governing the use of the facilities of the Corporation, and the personal conduct of the members and their guests thereon, and to establish penalties for the infraction thereof; B. To suspend the voting rights, but not rights of access and easements necessary for the use of his Lot, during any period in which such member shall be in default for a period of thirty (30) days in the payment of any assessment levied by the Corporation, or the payment of any other amount or the performance of any other term of the Declaration or these By-Laws. Such rights may also be suspended after notice and hearing, for a period not to exceed 60 days for infraction of published rules and regulations; C. To exercise for the Corporation all powers, duties and authority vested in or delegated to this Corporation and not reserved to the membership by other provisions of these By-Laws, or the Articles, the Declaration, or by statute; 3 Q Q D. To declare the office of a member of the Board of vacant in the event such member shall be absent from three regular meetings of the Board of Directors; Directors to be (3) consecutive E. To employ a manager, an independent contractor, or employees as they deem necessary, and to prescribe their duties, the limitations set forth in the Declaration; and such other subj ect to F. To do and take all such action as is or may be necessary, desirable, or appropriate to perform the duties, obligations and responsibilities of the Board as required by the Declaration, other provisions of these By-Laws, or the Articles, or by statute. The Board of Directors shall have the following Section 4. duties: Duties. A. To cause to be kept a complete record of all its acts and corporate affairs and to present a statement thereof to the members at the annual meeting of the members, or at any special meeting when such statement is requested in writing by members holding one-fourth (1/4) of the total votes of the membership entitled to vote; B. To supervise all officers, agents and employees of this Corporation, and to see that their duties are properly performed; C. To establish the annual assessment period and fix the amount of the annual assessment against each member for each Lot owned for the following fiscal year by December 31 preceding the start of such fiscal year, all in accordance with the terms of the Declaration and these By-Laws; D. To fix the amount of any special assessment against each member for each Lot owned, in accordance with the terms of the Declaration and these By- Laws; E. To send written notice to all members of any meeting of the members called for the purpose of voting upon increases in annual assessments above the maximum set by the Declaration or for voting upon a proposed "special assessment"; F. To foreclose by action in the same manner as a mortgage the lien against any property for which assessments are not paid within thirty (30) days after due date or to bring an action at law against the Owner or other person personally obligated to pay the same; G. To issue, or to cause an appropriate officer to issue, upon demand by any person, a certificate setting forth whether or not any assessment has been paid. A reasonable charge may be made by the Board for issuance of these certificates. If a certificate states an assessment has been paid, such certificate shall be conclusive evidence of such payment; 4 r Q o H. To procure and maintain liability and other hazard insurance on property owned by the Corporation which shall include fire and extended coverage on insurable common property on a current replacement cost basis in an amount not less than 100% of the insurable value (based on current replacement only); and to use the proceeds of such hazard insurance solely for the repair, replacement or reconstruction of such insurable common property including insured improvements and to procure and maintain other insurance as required or authorized by the Declaration; I. To cause any officers or employees having fiscal responsibilities to be bonded, as it may deem appropriate, but not less than required by the Declaration; J. To cause all the Common Area and Community Facilities to be maintained. Section 5. Term of Office. At the first annual meeting, the members shall elect one-third (1/3rd) of the total number of directors to be elected to a term of one year, one-third (1/3rd) of such total to a term of two years, and one-third (1/3rd) of such total to a term of three years; and at each annual meeting thereafter the members shall elect directors for a term of three years to fill the vacancies created by expiring terms. There shall be no limit on the number of terms a director may serve. Section 6. Vacancies. Any vacancy in the Board of Directors shall be filled by vote of the majority of remaining Directors, even though they may constitute less than a quorum. Each person so elected shall be a Director for the unexpired term of his predecessor, or until his successor is elected. Section 7. Compensation. No director shall receive compensation for any service he may render to the corporation as such director. However, any director may be reimbursed for his actual expenses incurred in the performance of his duties, and any director may be paid and compensated for services to the Corporation in a capacity other than as a director. Section 8. Removal of Directors. At any regular or special meeting of the Corporation duly called, any Director may be removed with or without cause by a maj ori ty of the members and a successor may then and there by elected to fill the vacancy thus created. Section 9. Orqanization Meetinq. The first meeting of a newly elected Board of Directors shall be held within ten (10) days of its election at such place as shall be fixed by the Directors at the meeting at which such Directors were elected, and no notice shall be necessary to the newly elected Directors in order legally to constitute such meeting, provided a majority of the whole Board shall be present. Section 10. Meetinqs of Directors. Meetings of the Directors of the corporation shall be held at such place within the State of Indiana, as may be specified in the respective notices or waivers of notice thereof. Any action required or permitted to be taken at any meeting of the Board of Directors or of any Committee thereof, may be taken wi thout a meeting, if prior to such action a written consent thereto is signed by all members of the Board of Directors or a subsequent ratification of a written consent by all of the then members of the Board of Directors, and such written consent 5 Q w is filed with the minutes or proceedings of the Board or Committee. Section 11. Special Meetinqs. Special meetings of the Board of Directors may be called by the President on three (3) days I notice to each Director, given personally, by mail, telephone or telegraph, which notice shall state the time, place and purpose of the meeting. Special meetings of the Board of Directors shall be called by the President or Secretary in like manner and on like notice on the written request of at least 2/3 of the Directors. Section 12. Waiver of Notice. Before or at any meeting of the Board of Directors, any Director may, in writing, waive notice of such meeting and such waiver shall be deemed equivalent to the giving of such notice. Attendance by a Director at any meeting of the Board shall be deemed a waiver of notice by him of the time and place thereof. If all the Directors are present at any meeting of the Board, no notice shall be required and any business may be transacted at such meeting. Section 13. Quorum. At all meetings of the Board of Directors, a majority of the Directors shall constitute a quorum for the transaction of business, and the acts of the majority of the Directors present at a meeting at which quorum is present shall be the acts of the Board of Directors except as otherwise provided in or required by the Declaration, Articles, these By- Laws or by statute. If, at any meeting of the Board of Directors, there be less than a quorum present, the majority of those present may adjourn the meeting from time to time. At any such adjourned meeting, any business which might have been transacted at the meeting as originally called may be transacted without further notice. Section 14. Action Taken Without a Meetinq. The directors shall have the right to take any action in the absence of a meeting, which they could take at a meeting by obtaining the written approval of all the directors. Any action so approved shall have the same effect as though taken at a meeting of the directors. 6 , o o ARTICLE V OFFICERS AND THEIR DUTIES Section 1. Enumeration of Officers. The officers of this Corporation shall be a president and vice-president, who shall at all times be members of the Board of Directors, a secretary and a treasurer, and such other officers as the Board may from time to time by resolution create. , ~ Section 2. Election of Officers. The election of officers shall take place at the first meeting of the Board of Directors following each annual meeting of the members, Aafter the Applicable Date. Section 3. Term. Th~ officers of this Corporation shall be elected annually by the Board and each shall hold office until the next election or unless they shall sooner resign, be removed or otherwise be disqualified to serve. Section 4. Special Appointments. officers as the affairs of the Corporation hold office for period, have such authority, Board may, from time to time, determine. The Board may elect such other may require, each of whom shall and perform such duties as the Section 5. Resiqnation and Removal. Any officer may be removed from office with or without cause by the Board. Any officer may resign at any time by giving written notice to the Board, the president or the secretary. Such resignation shall take effect on the date of receipt of such notice or at any time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 6. Vacancies. A vacancy in any office may be filled by appointment by the Board. The officer appointed to such vacancy shall serve for the remainder of the term of the officer replaced. Section 7. Multiple Offices. The offices of secretary and treasurer may be held by the same person. No person shall simultaneously hold more than one of any of the other offices except in the case of special offices created pursuant to Section 4 of this Article. Section 8. Duties. The duties of the Officers are as follows: President A. The president shall preside at all meetings of the Board of Directors; he shall see that orders and resolutions of the Board are carried out; shall sign all leases, mortgages, deeds and other written instruments and shall co-sign all checks and promissory notes. He shall have the power to appoint committees from among the members of the Corporation from time to time as he may in his discretion deem appropriate to assist in conducting the affairs of the Corporation. The president shall have and discharge all the general powers and duties usually vested in the office of the president or chief executive officer of an association or a stock corporation organized under the laws of the State of Indiana. 7 u o Vice-President B. The vice-president shall act in the place and president in the event of the President's absence, inability act, and shall exercise and discharge such other duties as may him by the Board or as are delegated to him by the president. stead of the or refusal to be required of Secretary C. The secretary shall record the votes and keep the minutes of all meetings and proceedings of the Board and of the members; keep the corporate seal of the Corporation (if any is adopted) and affix it on all papers requiring said seal; serve notice of meetings of the Board and of the members; keep appropriate current records showing the members of the Corporation together with their addresses, and shall perform such other duties as required by the Board. Treasurer D. The treasurer shall receive and deposit in appropriate bank accounts all monies of the Corporation and shall disburse such funds as directed by resolution of the Board of Directors; shall sign all checks and promissory notes of the Corporation; keep proper books of account; and shall prepare an annual budget and a statement of income and expenditures to be presented to the membership at its regular annual meeting, and deliver a copy of each to the members. ARTICLE VI COMMITTEES The Corporation shall appoint a Development Control Committee, as provided in the Declaration, and a Nominating Committee, as provided in these By-Laws. In addition, the Board of Directors or the president shall appoint other committees as deemed appropriate in carrying out the purposes of the Corporation. ARTICLE VII BOOKS OF ACCOUNT: FISCAL YEAR Section 1. Books of Account. The Corporation shall keep detailed books of account showing all expenditures and receipts of administration, which shall specify the maintenance and repair expenses of the Common Area and Community Facilities and any other expenses incurred by or on behalf of the Corporation and the members. Such accounts, books, records, financial statements and other papers of the Corporation shall be open for inspection by the members and other persons having an interest in any Lot, including any Owner, any lender and any holder, insurer or guarantor of a first mortgage on any Lot or Living Unit, during reasonable business hours or under other reasonable circumstances and shall be audited annually by qualified auditors. The cost of such audits shall be a common expense. Any holder, insurer or guarantor of a first mortgage on a Lot or Living Unit shall be entitled upon written request to receive an audited financial statement for the immediately preceding fiscal year free of charge to the requesting party and within a reasonable time of such request. Current copies of the Declaration, the Articles of Incorporation, the By-Laws of the Corporation, and other rules 8 w Q concerning the Property, shall be available for inspection by any Owner and lender, and to holders, insurers or guarantors of any first mortgage at the principal office of the corporation during normal business hours or under other reasonable circumstances. Copies of said corporate records and of audits may be purchased at reasonable costs. Section 2. Fiscal Year. The fiscal year of the Corporation shall commence January 1 and end the following December 31 each year; provided, however, that the fiscal year for purposes of assessments may be different than the general fiscal year of the Corporation. ARTICLE VIII ASSESSMENTS As more fully provided in the Declaration, each member is obligated to pay to the Corporation annual and special assessments, which are secured by a continuing lien upon the Lot against which the assessment is made. Any assessments which are not paid when due shall be delinquent. If the assessment is not paid wi thin thirty (30) days after the due date, the assessment shall bear interest from the date of delinquency at the rate of twelve percent (12%) per annum, and the Corporation may bring an action at law against the Owner personally obligated to pay same or foreclose the lien against the property by action in the same manner as a mortgage or as otherwise provided for by law. Interest, costs, and reasonable attorneys I fees of any such action shall be added to the amount of such closeout assessment. No owner may waive or otherwise escape liability for the assessments provided for in the Declaration or herein by nonuse of the Common Area or Community Facilities or abandonment of the assessed Lot. ARTICLE IX AMENDMENTS Section 1. These By-Laws may be amended by the Board of Directors; provided, however, that no amendment shall be adopted by the Board of Directors which conflicts with the terms and provisions of the Declaration unless the same is adopted by and approved by the members of the Corporation and others entitled by the terms of the Declaration to vote on amendments to the Declaration as provided in, and in accordance with the requirements of, the Declaration, provided further, there shall be no amendment of these By- Laws prior to the Applicable Date without the consent and approval of Declarant. Section 2. In the case of any conflict between the Articles of Incorporation and these By-Laws, the Articles shall control; and in the case of any conflict between the Declaration and these By-Laws, the Declaration shall control. Section 3. As long as there is Class B membership, the Federa~ Housing Administration, Department of Housing and Urban Development or the Department of Veterans Affairs shall have the right to veto any amendments. 9 u Q IN WITNESS WHEREOF, I, being the Registered Agent and Incorporator of the Claybourne Property Owners Association, Inc., have hereunto set my hand this _____ day of , 2001. Corby D. Thompson CERTIFICATION I, the undersigned, do hereby certify: THAT, I am the duly elected and acting Secretary of the Claybourne Property Owners Association, Inc., an Indiana not-for-profit corporation, and, THAT, the foregoing By-Laws constitute the original By-Laws of said Corporation, as duly adopted at a meeting of the Board of Directors thereof, held on the _____ day of 2001. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal of said Corporation this _____ day of 2001. Secretary 10 I _ po- '\. .. ~ Q DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS THIS DECLARATION made this 1st day of October 2001 by Boomerang Development, LLC (hereinafter referred to as the "Developer" as the term applies solely to the subdivision to be known as Claybourne Estates) . WITNESSETH: WHEREAS, Boomerang Development, LLC is the owner of the lands contained in the area shown on Exhibit "A" at such time that this Declaration shall be recorded. Said Exhibit "A" attached hereto and made a part hereof, which lands will be subdivided and known collectively as ~laybourne Estates (hereinafter referred to as the "Development"), and will be more particularly described on the plats of the various sections thereof recorded and to be recorded in the office of the Recorder of Hamilton County, Indiana and WHEREAS, the Developer is about to sell and convey the residential lots situated within the platted areas of the Development and before doing so desires to subject and impose upon all real estate within the platted areas of the Development mutual and beneficial restrictions, covenants, conditions, and charges (hereinafter referred to as the "Restrictions") under a general plan or scheme of improvement for the benefit and complement of the lots and lands in the Development and the future owners thereof: NOW, THEREFORE, the Developer hereby declares that all of the platted lots and lands located within the Development as they become platted are held and shall be held, conveyed, hypothecated or encumbered, leased, rented, used, occupied and.improved, subject to the following Restrictions, all of which are declared and agreed to be in furtherance of a plan for the improvement and sale of said lots and lands in the Development, and are established and agreed upon for the purpose of enhancing and protecting the value, desirability and attractiveness of the Development as a whole and of each of said lots situated therein. All of the Restrictions shall run with the land and shall be binding upon the Developer and upon the parties having or acquiring any right, title or interest, legal or equitable, in and to the real property of .any part or parts thereof subject to such Restrictions, and shall inure to the benefit of the Developer and everyone of the Developer'S successors in title to any real estate in the Development. The Developer specifically reserves unto itself the right and privilege, prior to the recording of the plat by the Developer of a particular lot or tract within the Development as shown on Exhibit "A", to exclude any real 9/20/01 C:\My Documents\Word Files\Covenants\Clayboume Estates Restrictions.doc CD Q estate so shown from the Development, or to include additional real estate. 1. Definitions. The following are definitions of the terms as they are used in this Declaration: A. "Committee" shall mean the Claybourne Estates Development Control Committee composed of three members appointed by the Developer who shall be subject to removal by the Developer at any time with or without cause. Any vacancies from time to time existing shall be filled by appointment of the Developer. The Developer may, at its sole option, at any time hereafter relinquish to the Association the power to appoint and remove one or more members of the committee. B. "Association" shall mean the Claybourne Estates Property Owners Association, Inc. a not-for-profit corporation, the membership and powers of which are more fully described in Paragraph 11 of t~is Declaration. C. "Lot" shall mean any parcel of real estate excluding "Blocks", whether residential or otherwise, described by one of the plats of the Development which is recorded in the Office of the Recorder of Hamilton County, Indiana. D. Approvals, determinations, permissions, or consents required herein shall be deemed given if they are given in writing, signed with respect to the Developer or the Association, by the President or a Vice President thereof, and with respect to the Committee, by two members thereof. E. "Owner" shall mean a person who has or is acquiring any right, title or interest, legal or equitable, in and to a lot, but excluding those persons having such interest merely as security for the performance of an obligation. F. "Declarant" shall mean Boomerang Development, LLC. 2. CHARACTER OF THE DEVELOPMENT. A. In General. Every lot in the Development, unless it is otherwise designated by the Developer, is a residential lot and shall be used exclusively for single- family'residential purpose&. No structures shall be erected, placed or permitted to remain upon any of said residential lots except a single-family dwelling house. 2 w u B. Residential Use of Accessory Outbuildinqs Prohibited. No accessory outbuildings shall be erected on any of the residential lots. C. Occupancy or Residential Use of Partially Completed Dwellinq House Prohibited. No dwelling house constructed on any of the residential lots shall be occupied or used for residential purposes or human habitation until it shall have been substantially completed. The determination of whether the house shall have been substantially completed is subject to the rules, regulations and ordinances of The City of Carmel and of its building commissioners. D. Other Restrictions. All tracts of ground in the Development shall be subject to the easements, restrictions and limitations of record appearing on the recorded plat of the subdivision, on recorded easements, rights-of-ways, and also to all governmental zoning authority and regulation affecting the Development, all of which are incorporated herein by reference. 3. GENERAL RESTRICTIONS A. Fences. In order to preserve the natural quality and aesthetic appearance of the existing geographic areas within the Development, any fence must be approved by the Committee as to size, location, height and composition before it may be installed. No chain link or "chicken wire" fencing shall be permitted. Any lot owner should contact The City of Carmel prior to erecting any fence in order to obtain the appropriate construction permit. Lot owners should take particular care when locating any fence within any utility or drainage easement. Any approval from the Committee regarding any fence is limited to the architecture and aesthetics of said fence. Any liability arising from the construction or existence of any fence is the sole responsibility of any lot owner and the approval from the Committee in no way precludes the lot owner from obtaining the appropriate permits and approvals from any and all regulating governmental authorities and utility companies with easement rights. Wood fencing up to four (4) feet in height and wrought iron fencing or a facsimile thereof up to six (6) feet in height may be permitted. B. Trees. Every lot must have at least two trees of a species acceptable to the Committee and to the City of Carmel growing upon it in the front yard by the first planting season after the house is completed. 3 ~ Q C. Driveway. All driveways must be paved with asphalt or concrete from their point of connection with the abutting street or road. D. Diligence in Construction. Every building whose construction or placement on any residential lot in the Development is begun shall be completed within (9) months after the beginning of such construction or placement. No improvement which has partially or totally been destroyed by fire or otherwise, shall be allowed to remain in such state for more than three (3) months from the time of such destruction or damage. E. Maintenance of Lots and Improvements. The owner of any lot in the Development shall at all times maintain the 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) Mow the lot at such times as may be reasonably required in order to prevent unsightly growth of vegetation and noxious weeds. (ii) Remove all debris or rubbish. (iii) Prevent the existence of any other condition that reasonably tends to detract from or diminish the aesthetic appearance of the Development. (vi) Cut down and remove dead trees. (v) Keep the exterior of all improvements in such a state of repair or maintenance as to avoid their becoming unsightly. (vi) Within sixty (60) days following completion of a house on a lot, the owner shall landscape the lot, weather permitting. (vii) The owner of any lot abutting or adjacent to a retention pond or lake within a Common Area as defined in paragraph 10, shall maintain the Common Area which lies immediately adjacent to and between the lot and the waterline of the pond or lake to prevent unsightly growth or weeds. F. Association's Right to Perform Certain Maintenance. In the event that'the owner of any lot in the Development shall fail to maintain his lot and any improvements situated thereon in accordance with the provisions of these Restrictions, the Association shall have the right, but not the obligation, by and through its agents or employees or contractors, to enter upon said lot and repair, mow, clean 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 these Restrictions. The cost therefor to the Association shall be added to and become a part of the annual charge to which said lot is subject and may be collected in any manner 4 w Q in which such annual charge may be collected. Neither the Association nor any of its agents, employees, or contractors shall be liable for any damage, which may result from any maintenance work performed hereunder. G. Ditches and Swales. It shall be the duty of the owner on every lot in the Development on which any part of any open storm drainage ditch or swale is situated to keep such portion thereof as may be situated upon the lot continuously unobstructed and in good repair, and to provide for the installation of such culverts upon said lot as may be reasonably necessary to accomplish the purposes of this subsection. All owners shall be responsible to maintain the grading of their respective lots as defined by the Claybourne Estates construction plans as prepared by Schneider Engineering and approved by The City of Carmel and The Clay . Township Regional Waste District. Any accumulation of silt or change in grading caused by sump-pump discharge, downspout run-off, general drainage or the dispersal of excavation spoilage, which creates standing water, or an improper drainage condition shall be the responsibility of the property owner to remove and correct. H. Retention Ponds. There are or will be retention ponds within the Development. 4. PROVISIONS RESPECTING DISPOSAL OF SANITARY WASTE. A. Nuisance. No outside toilets shall be permitted on any lot in the Development (except during a period of construction and then only with the consent of the Committee), and no sanitary waste or other wastes shall be permitted to enter any storm drain. By purchase of a lot, each owner agrees that any violation of this paragraph constitutes a nuisance, which may be abated by the Developer, or the Association in any manner provided at law or in equity. The cost or expense of abatement, including court costs and attorney's fees, shall become a charge or lien upon the lot, and may be collected in any manner provided bylaw or in equity for collection of a liquidated debt. Neither the Developer, nor the Association, nor any officer, agent, employee nor contractor thereof, shall be liable for any damage, which may result from enforcement of this paragraph. B. Construction of Sewaqe Lines. All sanitary sewage lines on the residential building lots shall be designed and constructed in accordance with the provisions and requirements of the Hamilton County Board of Health and The City of Carmel and The Clay Township R~gional Waste 5 ~ Q District. No storm water (subsurface or surface) shall be discharged into sanitary sewers. C. Sanitary sewer and utility easements allow for the construction, extension, operation, inspection, maintenance, reconstruction, and removal of sanitary sewer facilities and gives The City of Carmel and The Clay Township Regional Waste District the right of ingress/egress. E. Any landscaping placed within easements or right-of-ways is at the risk of being removed by utilities without the obligation of replacement. F. Mounding, lighting, fencing, signs, retaining/landscaping/entrance walls, irrigation lines, etc. placed within easements or right-of-ways is at the risk of being removed by utilities without obligation of replacement. G. drains, sump sewer system Any discharge of clear water sources (foundation pumps, roof drains, etc.) into the sanitary is strictly prohibited. 5. INDIVIDUAL LIGHTS REQUIRED ON EACH LOT IN THE DEVELOPMENT. At the time that the owner of the lot in the Development completes the construction of a home on his lot, he shall install or cause to have installed a dusk to dawn yard light in the front yard of his lot or dusk to dawn coach lights mounted on the garage if permitted. The design, type and location of the lights shall be subject to the approval of the Committee which may require, for the purpose of uniformity and appearance, that said lights be purchased from the Developer or its designee. Garage, mounted dusk to dawn coach lights may be substituted for a yard light at the discretion of the builder. 6. MAILBOXES. Owners of a lot in the Development shall install or cause to have installed a mailbox, which shall be in accordance with the design, type and location of a mailbox approved by the Committee. The Committee may require, for the purpose of uniformity and appearance, that the mailbox be purchased from the Developer or its designee. 7. GENERAL PROHIBITIONS. A. In General. No noxious or offensive activities shall be carried on any lot in the Development, nor shall anything be done on any said lots that shall become or be an unreasonable annoyance or nuisance to any owner of another 6 ~ w lot in the Development. B. Siqns. No signs or advertisements shall be displayed or placed on any lot or structures in the Development without the prior written approval of the Committee except for real estate sales signs. C. Animals. No animals shall be kept or maintained on any lot in the Development except the usual household pets, and, in such case, such household pets shall be kept reasonably confined so as not to become a nuisance. D. Vehicle Parkinq. No campers, trailers, boats, or similar vehicles shall be parked on any street or lot in the Development. No boat or truck, one (1) ton or larger in size, shall be parked for overnight or longer storage on any lot in the Development, nor shall any vehicle be parked on any street within the Development for more than two consecutive nights. E. Garbaqe and Other Refuse. No owner of a lot in t~e Development shall burn or permit the burning out of doors of garbage or other refuse, nor shall any such owner accumulate or permit the accumulation out of doors of such refuse on his lot except as may be permitted in Subparagraph F below. All houses built in the Development shall be equipped with a garbage disposal unit. F. Trash Receptacles. Any receptacle for ashes, trash, rubbish or garbage shall be so placed and kept as not to be visible from any street within the Development at any time, except at the times when refuse collections are being made. G. Model Homes. No owner of any lot in the Development shall build or permit the building upon said lot of any dwelling house that is to be used as a model home or exhibit house without permission to do so from the Developer. H. Temporary Structures. No temporary structure of any kind, such as a house, traiier, tent, garage or other outbuilding shall be placed or erected on any lot nor shall any overnight camping be permitted on any lot without permission to do so from the Developer. I. Wells and Septic Tanks. No water wells shall be drilled on any of the lots nor shall any septic tanks be installed on any of the lots in the Development, without the approval of the Committee. J. Prohibition of Antennas. No exposed radio, cable and television antennas and/or dishes shall be 7 w w permitted within the Development, Committee. Satellite dishes will installed on the front of a house of the front of the house. without the approval of the not be permitted to be or within fifteen (15) feet K. Swimminq Pools. In ground swimming pools may be permitted but must be approved by the Committee. Above ground swimming pools will not be permitted in Calybourne. L. Basketball Goals. Portable basketball goals shall not be placed within any street right-of-way, including any public walk, and shall not be left outdoors overnight. 8. DEVELOPMENT CONTROL COMMITTEE A. Statement of Purposes and Powers. The Committee shall regulate the external design, appearance, use, location and maintenance of lands subject to these Restrictions and improvements thereon, in such a manner as to preserve and enhance values and to maintain a harmonious relationship among structures and the natural vegetation and topography. (i) Generally. No dwelling, building structure or improvement of any type or kind shall be constructed or placed on any lot in the Development without the prior approval of the Committee, except for original home construction by a builder who has entered into a contract with the Developer to purchase lots. Such approval shall be obtained only after written application has been made to the Committee by the owner of the lot requesting authorization from the Committee. Such written application shall be in the manner and form prescribed from time to time by the Committee, and shall be accompanied by two (2) complete sets of plans and specifications for any such proposed construction or improvement. Such plans shall include plot plans showing the location of all improvements existing upon the lot and the location of the improvement proposed to be constructed or placed upon the lot, each properly and clearly designated. Such plans and specifications shall set forth the color and composition of all exterior materials proposed to be used and any proposed landscaping, together with any other materials or information which the Committee may require. All building plans and drawings required to be submitted to the Committee shall be drawn to a scale of 1/4" = l' and all plot plans shall be drawn to scale of I" = 30', or to such other scale as the Committee shall require. (ii) No Vinyl or aluminum siding shall be permitted on any structure in the development. (iii) Power of Disapproval. The Committee may refuse to grant permission to construct, place or make the 8 <i' w Q requested improvement, when: (a) The plans, specifications, drawings or other material submitted are themselves inadequate or incomplete, or show the proposed improvement to be in violation of these restrictions; (b) The design or color scheme of a proposed improvement is not in harmony with the general surroundings of the lot or with adjacent buildings or structures; (c) The proposed improvement, or any part hereof, would in the opinion of the Committee be contrary to the interests, welfare or rights of all or any part of other owners. (iv) Power to Grant Variances. The Committee may allow reasonable variances or adjustments of these Restrictions where literal application would result in unnecessary hardship, but. any such variance or adjustment shall be granted in conformity with the general intent and purposes of these Restrictions and no variance or adjustment shall be granted which is materially detrimental or injurious to other lots in the Development. No variance granted creates an allowance for said variance on other lots within the development but provides for that variance to be permitted solely as it applies to the designated lot. B. Duties of Committee. The Committee shall approve or disapprove proposed improvements within seven (7) days after all required information shall have been submitted to it. One copy of submitted material shall be retained by the Committee for its permanent files. All notification to applicants shall be in writing, and,. in the event that such notification is one of disapproval, it shall specify the reason or reasons. C. Liability of Committee. Neither the Committee nor any agent thereof, nor the Developer, shall be responsible in any way for any defects in any plans, specifications or other materiais submitted to it, nor for any defects in any work done according thereto. Further, the Committee does not make 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. D. Inspection. The Committee may inspect work being performed with its permission td assure compliance with these Restrictions and applicable regulations. 9 Q) Q E. Continuation of Committee. When the Developer notifies the Association of discontinuance of his Development Control Committee, then the Directors of the Association, or their designees, shall continue the functions of the Committee with like powers. 9. RULES GOVERNING BUILDING ON SEVERAL CONTIGUOUS LOTS HAVING ONE OWNER. Whenever two or more contiguous lots in the Development shall be owned by the same person, and such owner shall desire to use two or more of said lots as a site for a single-dwelling house, he shall apply in writing to the Committee for permission to so use said lots. If permission for such a use shall be granted, the lots constituting the site for such single-dwelling house shall be treated as a single lot for the purpose of applying these Restrictions to said lots, so long as the lots remain improved with one single-dwelling house. 10. OWNERSHIP, USE AND ENJOYMENT OF COMMONS. "Commons" and "Commons Area" shall mean those areas set aside as "Blocks", "A", "B", "C", "D" for conveyance to the Association, as shown on the plats. Any Commons depicted on the recorded plats of the Development shall remain private, and neither the Developer's execution of recording of the plats nor the doing of any other act by the Developer is, or is intended to be, or shall be construed as, a dedication to the public of the Commons. A license upon such terms and conditions as the Developer, and the successors, assigns or licensees of the Developer, shall from time to time grant, for the use and enjoYment of the Commons, is granted to the persons who are from time to time members of the Association. Ownership of any Commons shall be conveyed in fee simple title, free of financial encumbrances to the Association upon their completion. Such conveyance shall be subject to easements and restrictions of record, and.such other conditions as the Developer may at the time of such conveyance deem appropriate. Such conveyance shall be deemed to have been accepted by the Association and those persons who shall from time to time be members thereof upon the recording of a deed or deeds conveying such commons to the Association. 11. CLAYBOURNE ESTATES PROPERTY OWNERS ASSOCIATION, INC. A. In General. (i) The Declarant has or will create within six months of the recording of a Secondary Plat of the Real 10 w Q Estate, under the laws of the State of Indiana, a not-for- profit corporation to be known as the Claybourne Estates Property Owners Association, Inc., referred to as the "Association". Every owner of a residential lot in the Development shall be a member of the Association and shall be subject to all the requirements and limitations imposed in these Restrictions on other owners of residential lots within the Development and on members of the Association, including those provisions with respect to the payment of an annual charge. B. Classes of Membership. The Corporation shall have two (2) classes of voting membership, as follows: Class A. Class A members shall be all Owners of Lots, with the exception of the Declarant prior to termination of Class B membership, and shall be entitled to one (1) vote for each Lot owned with respect to each matter submitted to a vote of members upon which the Class A members are entitled to vote. when more than one person holds title to any Lot, all such persons shall be members. The vote for such Lot shall be exercised as they among themselves determine, but in no event shall more than one vote be cast with respect to anyone lot. There can be no split vote. Prior to or at the time of any meeting at which a vote is to be taken, each co-Owner or other person entitled to a vote at such meeting shall file with the Secretary of the Corporation the name of the voting co-Owner or other person entitled to vote at such meeting, unless such co-Owner or other persons have filed a general voting authority with he Secretary applicable to all votes until rescinded. Class B. The Class B Member(s) shall be the Declarant and all successors and assigns of Declarant designated by Declarant as Class B members in a written notice mailed or delivered to the resident agent of the Corporation. Each Class B member shall be entitled, on all matters requiring a vote of the membership of the Corporation, to five (5) votes for each Lot owned by it and five (5) votes for each fifteen~one hundredths (15/100) of an acre or part thereof which has been subjected to the Declaration as part of the Development (as defined in the Declaration) but not subdivided into Lots and other areas by the recording of a subdivision plat. The Class B membership shall cease and terminate upon the first to occur of (a) the date upon which the written resignation of the Class B members as such is delivered to the resident agent of the Corporation; (b) one hundred twenty (120) days after seventy- five percent (75%) of the Lots in the Property have been conveyed to Owners other than Declarant; provided, however, that for the purpose of making any determination under this 11 w u subsection (b) it shall be assumed that there are 75 lots in the Development whether or not there are in fact such number of Lots in the Development at any time; (c) six (6) years after the date of recording of the first conveyance of a Lot to an Owner other than Declarant. Declarant shall be entitled to Class A memberships for all Lots of which it is the Owner on or after the termination of Class B membership. C. Board of Directors. The Board of Directors of the Association shall be elected or appointed. The Board of Directors shall manage the affairs of the Association. D. Professional Manaqement. No contract or agreement for professional management of the Association shall be for a term in excess of three (3) years. Any such agreement or contract shall provide for termination by either party with or without cause without any termination fee by written notice of ninety (90) days or l~ss. E. Responsibilities of the Association. (ii) The Association shall maintain and repair the entryway monuments, lighting and irrigation systems at the entry to Claybourne Estates of 131st Street. (i) The Association shall maintain the landscaping and any improvements that may be constructed or installed in and along Blocks "A,B,C, and D" as well as the landscaping within the median of Donovan Boulevard, south of 131st Street. These areas shall be kept in neat, clean and presentable ,condition al all times. (iii) The Association shall procure and maintain casualty insurance for the Common Areas, liability insurance (including director's and officer's insurance) and such other insurance as it deems necessary or advisable. (iv) The Association may contract for such service as management, snow removal, security control, trash removal, and such other services as the Association deems necessary or advisable. (v) The Association shall maintain any retention ponds that are constructed as a result of the development. 12 [) Q 12. COVENANT FOR MAINTENANCE ASSESSMENTS. A. Creation of the Lien and Personal Obliqation of Assessments. Each owner of any lot in the subdivision, except the Developer, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association: (1) annual assessments or charges; and (2) special assessments for capital improvements and operating deficits; such assessments to be established and collected as hereinafter provided. The annual special assessments, together with interest, cost, and reasonable attorneys' fees, shall be a charge on the land and shall be a continuing lien upon the property against which each such assessment is made. Each such assessment, together with interest, costs and reasonable attorneys' fees, shall also be the personal obligation of the person who was the owner of such property at the time when the assessment fell due. The personal obligation for delinquent assessments shall not pass to his successors in title unless expressly assumed by them. No charge or assessment shall ever be levied by the Association against the Developer. B. Purpose of Assessments. The assessments levied by the Association shall be used exclusively to promote the health, safety and welfare of the residents in the properties and for the improvement and maintenance of the Common Areas and improvements, operated or maintained by the Association, and the landscape easements on the Development and other purposes as specifically provided herein. C. Maximum Annual General Assessments. The Maximum annual general assessment for the Association shall be Two Hundred and Fifty Dollars ($250.00) per lot. i. The maximum annual general assessment may be increased by the Board each year not more than 10% above the maximum annual general assessments permitted for the previous year without a vote of the membership of the Association. ' ii. The maximum annual general assessments may be increased more than 10% over the maximum annual general assessments permitted for the previous year only upon an approving vote of two-thirds (2/3rds) of each Class of members who are eligible to vote at a meeting called for such purpose D. S ecial Assessments for Maintenance Facilities with Claybourne. Each lot in ourne Estates is entitled to the use and enjoy!!\ of Blocks "H" and "J" in 5 f~J>>ff ~ 13 u u identifiable costs associated with Blocks "H" and "J" and submit an invoice for payment to the Claybourne Estates treasurer. This payment shall be made by January 31st of the calendar year when the expenses will be incurred. The payment is not to be made in arrears. The Claybourne Estates Association shall then pay to the Claybourne Association the respectiv A ditionally, each Claybourne Estates lot is entitled but not required to voluntarily join the Claybourne swimming pool. Each Claybourne Estate lot that wishes to belong to the Claybourne pool shall pay to the Claybourne Association an amount equal to 110% of the identifIable annual operational and capital reserve costs associated with the pool as determined by the Claybourne Asso~~rer divided by the number of lots in Claybourne 1/21Sth E. Special Assessments for Capital Improvements and Operatinq Deficits. In addition to the annual assessments authorized above, the Association may levy a special assessment for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of any capital improvement which the Association is required to maintain or for operating deficits which the Association may from time to time incur, provided that any such assessment shall have the assent of a majority of the votes of the members who are voting in person or by proxy at a meeting duly called for this purpose. F. Notice and Quorum for Any Action Authorized Under Section C and D. Written notice of any meeting called for the purpose of taking any action authorized under Section C and D shall be sent to all members not less than thirty (30) days nor more than sixty (60) days in advance of the meeting. At the first such meeting called, the presence of members or of proxies entitled to cast sixty percent (60%) of all the votes of the membership shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement, and the required quorum at the subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall b~held more than sixty (60) days following the preceding meeting. G. Date of Commencement of Annual Assessments: Due Dates. The annual assessment provided for herein shall commence for each lot on the date of conveyance to the owner by deed or on the date the owner signs a land contract to purchase a lot. Assessments shall be pro-rated for any partial year. The Board of Directors shall fix any increase in the amount of the monthly assessment at least thirty (30) days in advance of the effective date of such increase. Written notice of special assessments and such other 14 ~ g ~ Q,o II ~~. II ~ li(1 \\: ~' II \'1l) :\j I = u ~ u by deed or on the date the owner signs a land contract to purchase a lot. Assessments shall be pro-rated for any partial year. The Board of Directors shall fix any increase in the amount of the monthly assessment at least thirty (30) days in advance of the effective date of such increase. written notice of special assessments and such other assessment notices as the Board of Directors shall deem appropriate shall be sent to every owner subject thereto. The due dates for all assessments shall be established by the Board of Directors. The Association shall, upon demand, and for a reasonable charge, furnish a certificate in recordable form signed by an officer of the Association setting forth whether ~he assessments on a specified lot have been paid. A properly executed certificate from the Association regarding the status of assessments for any lot shall be binding upon the Association as of the date of its issuance. H. Effect of Non-Payment of Assessments: Remedies of the Association. Any charge levied or assessed against any lot, together with interest and other charges or costs as hereinafter provided, shall become and remain a lien upon that lot until paid in full and shall also be a personal obligation of the owner or owners of that lot at the time the charge fell due. Such charge shall bear interest at the rate of twelve percent (12%) per annum until paid in full. If, in the opinion of the Board of Directors of the Association, such charge has remalned due and payable for an unreasonably long period of time, the Board may, on behalf of the Association, institute such procedures, either at law or in equity, by foreclosure or otherwise, to collect the amount owing in any court of competent jurisdiction. The owner of the lot or lots subject to the charge, shall, in addition to the amount of the charge at the time legal action is instituted, be obliged to pay any expense or costs, including attorneys' fees, incurred by the Association in collecting the same. Every owner of a lot in the Development and any person who may acquire any interest in such lot, whether as an owner or otherwise, is hereby notified, and by acquisition of such interest agrees, that any such liens which may exist upon said lot at the time of the acquisition of such interest are valid liens and shall be paid. Every person who shall become an owner of a lot in the Development is hereby notified that by the act of acquiring, making such purchase or acquiring such title, such person shall be conclusively held to have covenanted to pay the Association all charges that the Association shall make pursuant to this subparagraph of the Restrictions. The Association shall, upon demand, at any time, furnish a certificate in writing signed by an officer of the Association that the assessments on a specified lot have been 15 ~ u paid or that certain assessments against said lot remain unpaid, as the case may be. A reasonable charge may be made by the Board of Directors of the Association for the issuance of these certificates. Such certificate shall be conclusive evidence of paYment of any assessment therein stated to have been paid. I. Subordination of the Lien to Mortqaqe. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage. Sale or transfer of any lot shall not affect the assessment lien. No sale or transfer shall relieve such lot from liability for any assessment thereafter becoming due or from the lien thereof. Provided, however, the sale or transfer of any lot pursuant to the foreclosure of any first mortgage on such lot (without the necessity of joining the Association in any such foreclosure action) or any proceedings or deed in lieu thereof shall extinguish the lien of all assessments becoming due prior to the date of such sale or transfer. J. Suspension of privileqes of Membership. Notwithstanding any other provisions contained herein, the Board of Directors of the Association shall have the right to suspend the voting rights if any, and the services to be provided by the Association, of any member or associate member (i) for any period during which the Association charges or any fines assessed under these Restrictions owed by the member or associate member remains unpaid, (ii) during the period of any continuing violation of the restrictive covenants for the Development, after the existence of the violation shall have been declared by the Board of Directors of the Association: and (iii) during the period of any violation of the Articles of Incorporation, By-Laws or regulations of the Association. 13. REMEDIES. A. In General. The Association or any party to whose benefit these Restrictions inure, including the Developer, may proceed at law or in equity to prevent the occurrence or continuation of a~y violation of these Restrictions, but neither the Developer nor the Association shall be liable for damages of any kind to any person for failing wither to abide by, enforce or carry out any of these Restrictions. B. Delay or Failure to Enforce. No delay or failure on the part of any aggrieved party to invoke any available remedy with respect to a violation of anyone or more of these Restrictions shall beheld to be a waiver by that party (or an estoppel of that party to assert) any right available to him upon the occurrence, reoccurrence or continuation of such violation or violations of these 16 ~ .; Q) o Restrictions. 14. EFFECT OF BECOMING AN OWNER. The owners of any lot subject to these Restrictions by acceptance of a deed conveying title thereto, or the execution of a contract for the purchase thereof, whether from the Developer or a subsequent owner of such lot, shall accept such deed and execute such contract subject to each and every Restriction and agreement herein contained. By accepting of such deed or execution of such contract, the owner acknowledges the rights and powers of the Developer, Committee and of the Association with respect to these Restrictions, and also, for themselves, their heirs, personal representatives, successors and assigns, such owners covenant and agree and consent to and with the Developer, Committee and the Association and to and with the owners and subsequent owners of each of the lots affected by these Restrictions to keep, observe, comply with and perform such Restrictions and agreements. 15. TITLES. The titles preceding the various paragraphs and subparagraphs of the Restrictions are for convenience of the construction of any provisions of the Restrictions. 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. 16. DURATION. The foregoing Covenants and Restrictions are to run with the land and shall be binding on all parties and all persons claiming under them until January I, 2020, at which time said Covenants and Restrictions shall be automatically extended for successive periods of ten (10) years, unless changed in whole or in part by vote of those persons who are then the owners of a majority of the numbered lots in the Development. 17. SEVERABILITY. Everyone of the Restrictions is hereby declared to be independent of, and severable from, the rest of the Restrictions and of and from every other Qne 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 "running" quality of any other one of the Restrictions. 17 1_ CD o IN TESTIMONY WHEREOF, witness the signature of the Declarant this 1st day of October, 2001. BOOMERANG DEVELOPMENT, LLC An Indiana Limited Liability Company By: Corby D. Thompson, Manager STATE OF INDIANA ) )SS: COUNTY OF HAMILTON ) Before me, a Notary Public in and for said County and State, personally appeared Corby D. Thompson, Manager of Boomerang Development, LLC, an Indiana Limited Liability Company, who acknowledged the execution of the above and foregoing for and on behalf of said Corporation, for the uses and purposes therein set forth. WITNESS my hand and Notarial Seal this 1st day of October, 2001. Notary Public: Donna Hansen Commission Expiration: County of Residence: May 18, 2007 Hamilton Prepared by: Corby D. Thompson, Manager, Boomerang Development, LLC 18 __~_ _____ - - __ __ ____1___-