HomeMy WebLinkAboutRecorded Covenants, Restrictions, Amendments, By-Laws
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199909946964 in
Filed for Record INDIANA
HAM I L TON COUNTY,
MARY L CLARK ~ ..~
On 08-09-1999 At l,4.<J.:. pm.
DEC COV RES 127.00
DECLARATION OF COVENANTS AND RESTRICTIONS
The Village of WestClay
Carmel, Indiana
Recorded ~ J>qJ~, 1999
Instrument No. \ .,.,.,~~~
Office of the Recorder of Hamilton County
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DECLARATION OF COVENANTS AND RESTRICTIONS
THE VILLAGE OF WEST CLAY
INDEX
Page
1. Definitions ., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -2-
2. Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -10-
3. Additions to the Tract ................................................. -10-
4. The Lake ........................................................... -11-
(a) Development. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -11-
(b) Title and Maintenance ........................................... -11-
(c) Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -11-
5. The Ponds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -12-
(a) Development. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -12-
(b) Title and Maintenance ........................................... -12-
(c) Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -12-
6. The Commons ....................................................... -12-
7. Parks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -13-
8. Village Community Buildings .. .. . . . . . .. .. . . . . . . . .. .. . . . . . .. . .. . . . . . . . .. -13-
9. Drainage System ..................................................... -13-
10. Common Lighting .................................................... -14-
11. Paths and Path Lights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -14-
12. Private Drives and Private Gates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -14-
(a) Maintenance of Private Drives (Exclusive of Alleys) .. . . . . . . . . . . . . . . . .. -14-
(b) Maintenance of Alleys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -14-
(c) Maintenance of Private Gates ..................................... -14-
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13. Entry Ways, Landscape Easements and Planting Areas ....................... -15-
(a) Entry Ways. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -15-
(b) Landscape Easements ........................................... -15-
(c) Planting Areas ................................................. -15-
14. Site Furniture and Facilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -15-
15. Round-Abouts and Street Trees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -15-
(a) Round-Abouts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -15-
(b) Street Trees ................................................... -16-
(c) Maintenance of Street Trees ...................................... -16-
16. Common Parking Lots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -16-
17. Open Space ......................................................... -16-
18. Village of West Clay Owners Association, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -17-
(a) Membership................................................... -17-
(b) Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -17-
(c) Classes of Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -17-
(d) Voting and Other Rights of Members ............................... -17-
(e) Reserve for Replacements ........................................ -17-
(f) Debt Service Account ........................................... -17-
(g) Maintenance Standards .......................................... -18-
(h) Insurance, Taxes and Utilities ..................................... -18-
(i) Limitations on Action by the Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . .. -18-
0) Mergers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -19-
19. Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., -19-
(a) Creation of the Lien and Personal Obligation of Assessments. . . . . . . . . . .. -19-
(b) General Assessment. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . .. -20-
(i) Purpose of Assessment .............................. -20-
(ii) Basis for Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -20-
(1) Residential Lots. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -20-
(2) Commercial Lots ................................... -20-
(3) Lots Owned by Declarant or Permitted Title Holder. . . . . . .. -22-
(4) Condominiums. ... .. .. . . . . ..... . . . . .. .. . .. . . . . . . ... -22-
(5) Change in Basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -22-
(iii) Method of Assessment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -23-
(iv) Allocation of Assessment ............................ -23-
(c) Community Area Initial Assessment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -24-
(d) Community Area Debt Service Assessment .......................... -25-
(e) Parcel Assessments ............................................. -25-
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20.
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(i) Purpose of Assessments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ii) Method of Assessment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(iii) Special Assessments ................................
(f) Architectural Control Assessment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(g) Special Assessment .............................................
(h) Date of Commencement of Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(i) Effect of Nonpayment of Assessments; Remedies of the Corporation. . . . . .
G) Subordination of the Lien to Mortgages .............................
(k) Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) Annual Budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) Adoption of Budget ................ . . . . . . . . . . . . . . . . .
(2) Certification of Village Center Maintenance Costs . . . . . . . . .
(3) Village Center Budget. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Architectural Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(a) The Architectural Review Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) Building Activity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) Guidelines and Standards . .. . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . ..
(f) Application of Guidelines and Standards ............................
(g) Design Consultants .............................................
(h) Existing Violations of Declaration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(i) Exercise of Discretion ...........................................
G) Liability of Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(k) Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Community Area and Common Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(a) Ownership. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) Density of Use ............................................. . . . .
(c) Obligations of the Corporation ....................................
(d) Easements of Enjoyment ................................... . . . . . . .
(i) Owners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ii) Occupants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) Extent of Easements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f) Additional Rights of Use ...................................... . . .
(g) Damage or Destruction by Owner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(h) Conveyance of Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Use of Tract ...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(a) Protective Covenants .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(i) Land Use ...............................................
(ii) Nuisances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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23.
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(iii) Other Restrictions ........................................ -36-
(iv) Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -37-
(b) Maintenance of Tract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -37-
Easements .......................................................... -37-
(a) Plat Easements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -37-
(i) Drainage Easements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -38-
(ii) Sewer Easements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -38-
(iii) Utility Easements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -38-
(iv) Entry Way Easements ..................................... -38-
(v) Landscape Easements ..................................... -38-
(vi) Water Access Easements ......... . . . . . . . . . . . . . . . . . . . . . . . . .. -39-
(vii) Community Area Access Easements .......................... -39-
(viii) Pathway Easements ....................................... -39-
(ix) Non-Access Easements .................................... -39-
(x) Alley Easements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -39-
(b) General Easement .............................................. -39-
(c) Public Health and Safety Easements ................ . . . . . . . . . . . . . . .. -40-
(d) Drainage Board Easement .............. . . . . . . . . . . . . . . . . . . . . . . . . .. -40-
(e) Crossing Underground Easements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -40-
(f) Declarant's Easement to Correct Drainage ........................... -40-
(g) Water Retention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -41-
Use of Lots During Development ........................................ -41-
(a) By Declarant .................................................. -41-
(b) By Builders ................................................... -41-
Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -41-
Limitations on Rights of the Corporation .................................. -42-
Approvals by Declarant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -42-
Mortgages .......................................................... -42-
(a) Notice to Corporation ........................................... -42-
(b) Notices to Mortgagees .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -42-
(c) Notice of Unpaid Assessments .................................... -43-
(d) Financial Statements ............................................ -43-
(e) Payments by Mortgagees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -43-
Amendments ........................................................ -43-
(a) Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -43-
(b) By Declarant .................................................. -44-
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(c) Approval by Zoning Authority .................................... -44-
(d) Class Approval. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -44-
(e) Effecti ve Date ................................................. -44-
30. Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -44-
32. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -45-
33. Non-Liability of Declarant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -45-
34. Compliance with the Soil Erosion Control Plan ............................. -45-
(a) The Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -45-
(b) Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -46-
35. Annexation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -46-
36. Exclusive Builders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -46-
Exhibit A
Exhibit B
Exhibit C
Description of Development Area
General Plan of Development
Description of the Tract
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DECLARATION OF COVENANTS AND RESTRICTIONS
THE VILLAGE OF WESTCLA Y
This Declaration, made as of the 9th day of August , 1999, by
BRENWICK TND COMMUNITIES, LLC, an Indiana limited liability company ("Declarant"),
WITNESSETH:
WHEREAS, the following facts are true:
A. Declarant owns, or has the right to acquire the real estate located in Hamilton County,
Indiana, described in Exhibit A and depicted on Exhibit B, upon which Declarant intends, but is not
obligated, to develop a traditional neighborhood to be known as The Village of West Clay.
B. The Development Area has been designated as the Planned Unit Development District
and development thereof is subject to the development standards set forth in the Zoning Ordinance.
C. Declarant intends, but is not obligated, to construct certain improvements and
amenities in WestClay which shall constitute Community Area.
D. Declarant desires to provide for the preservation and enhancement of the property
values, amenities and opportunities in WestClay and for the maintenance of the Tract and the
improvements thereon, and to this end desires to subject the Tract together with such additions as
may hereafter be made thereto (as provided in Paragraph 3) to the covenants, restrictions, easements,
charges and liens hereinafter set forth, each of which is for the benefit of the Lots and lands in the
Tract and the future owners thereof.
E. Declarant deems it desirable, for the efficient preservation of the values and amenities
in WestClay, to create agencies to which may be delegated and assigned the powers of owning,
maintaining and administering the Community Area, administering and enforcing the Restrictions,
collecting and disbursing the Assessments and charges hereinafter created, and promoting the
recreation, health, safety and welfare of the Owners of Lots in WestClay.
F. Declarant has incorporated under the laws of the State of Indiana nonprofit
corporations known as The Village of WestClay Owners Association, Inc. and WestClay Village
Owners Association, Inc. for the purpose of exercising such functions.
NOW, THEREFORE, Declarant hereby declares that all of the Lots and lands in the Tract
and such additions thereto as may hereafter be made pursuant to Paragraph 3 hereof, as they are held
and shall be held, conveyed, hypothecated or encumbered, leased, rented, used, occupied and
improved, are subject to the following Restrictions, all of which are declared to be in furtherance of
a plan for the improvement and sale of Lots in the Tract, and are established and agreed upon for the
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purpose of enhancing and protecting the value, desirability and attractiveness of the Tract as a whole
and of each of Units, Lots and lands situated therein. The Restrictions shall run with the land and
shall be binding upon Declarant, its successors and assigns, and upon the parties having or acquiring
any interest in the Tract or any part or parts thereof subject to such Restrictions, and shall inure to
the benefit of Declarant and its successors in title to the Tract or any part or parts thereof.
1. Definitions. Terms defined in the Zoning Ordinance used in this Declaration shall
have the meaning herein as therein unless otherwise defined herein or the context otherwise requires.
The following terms, as used in this Declaration, unless the context clearly requires otherwise, shall
mean the following:
"Applicable Date" means the earlier of (i) the date when all Lots in the
Development Area have been improved by the construction thereon of Units or (ii)
December 31,2015.
"Architectural Control Assessment" means the assessment levied by the
Corporation pursuant to Paragraph 19(t) of this Declaration or by the Association
pursuant to Paragraph 5 of the Village Center Supplemental Declaration.
"Architectural Review Board" means that entity established pursuant to
Paragraph 20 of this Declaration for the purposes therein stated.
"Articles" means the Articles ofIncorporation of the Corporation, as amended
from time to time.
"Assessments" means all sums lawfully assessed against the Members or as
declared by this Declaration, any Supplemental Declaration, the Articles or the By-
Laws.
"Association" means WestClay Village Center Owners Association, Inc., an
Indiana nonprofit corporation.
"Board of Directors" means the governing body of the Corporation or the
Association, as the context may require.
"Buildin~ Activity" means any activity or undertaking on a Residential Lot
of a type described in Paragraph 20(c).
"Building Guidelines" means guidelines and requirements for Building
Activity on the Tract adopted by the Declarant, the Architectural Review Board or
the Design Review Board, as applicable..
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"By-Laws" means the Code of By-Laws of the Corporation, as amended from
time to time.
"Commercial Lot" means each established building site or platted lot on
which a Commercial Unit, a Multifamily Structure or a Multiuse Structure has been
or is intended to be constructed.
"Commercial Unit" means any structure or portion thereof situated upon the
Tract which is designed and intended for use and occupancy for such non-residential
purposes as are permitted under the Zoning Ordinance exclusive of home-based
offices and other uses accessory to the use and enjoyment of a Residential Lot. A
Commercial Unit may be a Condominium.
"Common Facilities" means the Common Lighting, the Path Lights, the Site
Furniture and Facilities and other personal property of the Corporation.
"Common Liihtini" means the light standards, wiring, bulbs and other
appurtenances, if any, installed to illuminate the Community Area or the public and
private ways in WestClay exclusive of the Path Lights.
"Common Parkini Lot" means any parking lot owned, managed and/or
maintained by the Corporation or the Association and intended for use by the
Occupants of or visitors to a Village Community Building, an Education Facility, a
Commercial Unit, a Multifamily Structure or a Multiuse Structure.
"Commons" means such land, if any, as may be denoted on a Plat as
"Commons" or designated as "Commons" in any recorded instrument executed by
Declarant.
"Community Area" means (i) the Lake, (ii) the Ponds, (iii) the Private Drives
and Private Gates, (iv) the Village Community Buildings, (v) the Entry Ways, (vi)
the Planting Areas, (vii) the Parks, (viii) the Commons, (ix) the Drainage System, (x)
the Paths, (xi) the Common Lighting, (xii) the Site Furniture and Facilities, (xiii) any
utility service lines or facilities not maintained by a public utility company or
govemmental agency that are located on, over or below or through more than one
Section or Parcel, and (xiv) any areas of land (1) shown on any Plat, (2) described in
any recorded instrument prepared by Declarant or its agents, or (3) conveyed to or
acquired by the Corporation or the Association, together with all improvements
thereto, that are intended to be devoted to the use or enjoyment of some, but not
necessarily all, of the Owners and Occupants of Lots and Units, exclusive of
Common Parking Lots.
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"Community Area Access Easement" means the area designated on a Plat as
a means of access to a Community Area or Common Parking Lot.
"Community Area Debt Service Assessment" means the periodic Assessment
to meet the obligation of the Corporation for payments on account of Community
Area Secured Indebtedness.
"Community Area Initial Assessment" means the initial Assessment for the
Reserve for Replacements required by Paragraph 19( c).
"Community Area Secured Indebtedness" means indebtedness in an aggregate
principal amount not exceeding Two Million Dollars ($2,000,000) incurred to
finance, in whole or in part, the Village Community Buildings and the Common
Facilities, or parts thereof, secured by a lien or liens on the Village Community
Buildings and the Common Facilities, or parts thereof.
"Condominium" means a Unit in a Horizontal Property Regime.
"Cox:poration" means The Village of West Clay Owners Association, Inc., an
Indiana nonprofit corporation, its successors and assigns.
"Declarant" means Brenwick 1ND Communities, LLC, its successors and
assigns to its interest in the Tract other than Owners purchasing Lots or Units by deed
from Declarant (unless the conveyance indicated an intent that the grantee assume the
rights and obligations of Declarant).
"Design Review Board" means that entity established pursuant to Paragraph
6 of the Village Center Supplemental Declaration.
"Desi~nated Builder" means during such period as such designation by
Declarant may continue, any Person engaged in the construction of more than one (1)
Unit on the Tract who is designated by Declarant as a "Designated Builder".
Declarant may make and revoke any such designation at any time and from time to
time. A builder approved pursuant to Paragraph 36 may, but will not necessarily be,
a Designated Builder.
"Detention Area" means an area depicted on a Plat which has been engineered
to accommodate from time to time surface water drainage.
"Development Area" means the land described in Exhibit A together with any
additional land added to the Tract pursuant to Paragraph 3 of this Declaration.
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"Drainage Board" means the Hamilton County Drainage Board, its successors
or assigns, or, in the event of annexation of the Tract to the City of Carmel, the Board
of Public Works of the City of Carmel.
"Drainage System" means the open drainage ditches and swales, the
subsurface drainage tiles, pipes and structures, the dry and wet retention and/or
detention ponds (including all Detention Areas), and the other structures, fixtures,
properties, equipment and facilities (excluding the Lake and the Ponds) located in the
Tract and designed for the purpose of controlling, retaining or expediting the
drainage of surface and subsurface waters from, over and across the Tract, including
but not limited to those shown or referred to on a Plat, all or part of which may be
established as legal drains subject to the jurisdiction of the Drainage Board.
"Education Facility" means the Education Center depicted on the
Development Plan and any other facility on the Tract owned or leased by a public or
private educational institution or its successor in title, which does not constitute
Community Area and is used principally for educational purposes.
"Electoral Parcel" means one or more Parcels the Supplemental
Dec1aration(s) for which authorizes the Owners of Lots in such Parcel(s) to elect a
member of the Board of Directors of the Corporation to represent such Parcel(s) on
the Board.
"Entry Ways" means the structures constructed as an entrance to WestClay
or a part thereof (exclusive of the street pavement, curbs and drainage structures and
tiles), the traffic islands depicted as designated Blocks on a Plat and any other traffic
islands dividing a roadway providing access to WestClay or a part thereof, and the
grassy area surrounding such structures.
"General Assessment" means an Assessment made pursuant to Paragraph
19(b ).
"General Plan of Development" means that plan prepared by Declarant and
approved, if necessary, by appropriate public agencies that outlines the total scheme
of development and general uses of land in the Development Area, as such may be
modified from time to time.
"Horizontal Property Regime" means a horizontal property regime established
in the Tract pursuant to I.C. 32-1-6 or any successor provision authorizing the
creation of a Condominium.
"~" means the lake identified on the Development Plan as Hourglass Lake.
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"Landscape Easement" means a portion of a Lot denoted on a Plat as an area
to be landscaped.
"Living Unit" means a room or combination of rooms designed for year-round
habitation, containing a bathroom and kitchen facilities, and designed for or used as
a permanent residence by at least one Person.
"Lot" means (1) any plot of land intended as a building site shown upon any
recorded Plat, with the exception of Community Area and Common Parking Lots, (2)
any Condominium, (3) any part of the Tract designated in a recorded instrument as
a "Lot", and (4) any other part of the Tract acquired by an Owner or used by
Declarant for the construction or operation of, or occupancy as, one or more Units.
"Lot Development Plan" means (i) a site plan prepared by a licensed engineer
or architect, (ii) foundation plan and proposed fInished floor elevations, (iii) building
plans, including elevation and floor plans, (iv) material plans and specifIcations, (v)
landscaping plan, (vi) exterior lighting plan, (vii) tree preservation plan and (viii) all
other data or information that the Architectural Review Board or the Design Review
Board, as applicable, may request with respect to the improvement or alteration of
a Lot (including but not limited to the landscaping thereof) or the construction or
alteration of a Unit, Multifamily Structure, Multiuse Structure or other structure or
improvement thereon.
"Maintain" means maintain, repair and replace as necessary or appropriate.
"Maintenance Costs" means all of the costs necessary to keep the facilities to
which the term applies operational and in good condition, including but not limited
to the cost of all upkeep, maintenance, repair, replacement of all or any part of any
such facility, payment of all insurance premiums for public liability, casualty and
other insurance maintained with respect thereto, all utility charges relating to such
facilities, all taxes imposed on the facility and on the underlying land, leasehold,
easement or right-of-way, and any other expense related to the continuous
maintenance, operation or improvement of the facility.
"Member" means a member of the Corporation and "Members" means all
members of the Corporation.
"Mortgagee" means the holder of a fIrst mortgage on a Unit, a Multifamily
Structure or a Multiuse Structure.
"Multifamily Structure" means a structure with two or more Living Units
under one roof, except when such Living Units are situated upon their own individual
Lots, are Condominiums or are located in a Multiuse Structure.
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"Multiuse Structure" means a structure which contains one or more
Commercial Units and one or more Living Units.
"Occupant" means any Person who is in possession of a Unit either as an
Owner or as a tenant pursuant to a lease or other occupancy agreement.
"Owner" means a Person, including Declarant, who at the time has or is
acquiring legal title to a Lot except a Person who has or is acquiring such title merely
as security for the performance of an obligation.
"Parcel" means each platted subdivision or part thereof, parcel of land or
Horizontal Property Regime consisting of one or more Lots within the Development
Area that are subject to the same Supplemental Declaration or are declared by
Declarant to constitute a "Parcel". One or more Lots may be included in more than
one Parcel.
"Parcel Assessment" means an Assessment made pursuant to Paragraph 19( e)
of this Declaration or Paragraph 5(b) of the Village Center Supplemental Declaration.
"Park" means such land as may be denoted on a Plat as "Park" or designated
as "Park" in any recorded instrument executed by Declarant.
"Part of the Development Area" means any part of the Development Area not
included in the Tract.
"~" means those walkways and/or bikeways installed pursuant to
Paragraph II and such other real estate or interest therein as is conveyed or granted
to the Corporation for the purpose of being used for walkways and/or bikeways.
"Path Liihts" means the light standards, conduits, wiring, bulbs and other
appurtenances, if any, installed to illuminate the Paths.
"Permitted Title Holder" means (a) the Corporation, (b) the Association, (c)
a public or private educational institution, (d) the City of Carmel, Indiana, or (e) a
nonprofit corporation having perpetual existence or a governmental entity designated,
in either case, by Declarant.
"Person" means an individual, firm, corporation, partnership, association,
trust or other legal entity, or any combination thereof.
"Plat" means a fmal secondary plat of a portion of the Development Area
executed by Declarant and recorded in the Office of the Recorder of Hamilton
County, Indiana.
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"Pond" means a body of water located in the Development Area and depicted
on the General Plan of Development (other than the Lake) and "Ponds" means all of
such bodies of water (other than the Lake).
"Planting Area" means a landscaped area located in the right-of-way of a
public street, on or adjacent to a Private Drive or Common Parking Lot or on a
Commons, in a Park or in or on other Community Area.
"Principal Streets" means, to the extent constructed by Declarant, Towne
Road, 131 st Street, Broad Street, Meeting House Road, Horseferry Road and Grafton
Street.
"Private Drive" means a street, lane, road, driveway or other right-of-way
designed to provide access to one or more Lots or to the Community Area that has
not been accepted for maintenance by a public authority. Private Drive does not
include a driveway located entirely on a single Lot, but does include alleys.
"Private Gate" means a security gate controlling access to and from a Private
Drive.
"Recreation Centers" means Provost Park, Webster Park and MacArthur Field
and the recreational facilities therein or thereon.
"Reserve for Replacements" means a fund established and maintained by the
Corporation to meet the cost of periodic maintenance, repairs, renewal and
replacement of the Community Area and the Common Facilities.
"Residential Lot" means a Lot which is used or intended to be used primarily
for residential purposes except where the Lot is improved by the construction thereon
of a Multifamily Structure or a Multiuse Structure.
"Restrictions" means the covenants, conditions, easements, charges, liens,
restrictions, rules and regulations and all other provisions set forth in this
Declaration, all applicable Supplemental Declarations, the Building Guidelines and
the Register of Regulations, as the same may from time to time be amended.
"Register of Regulations" means the document containing rules, regulations,'
policies, and procedures adopted by the Board of Directors, the Architectural Review
Board or the Design Review Board, as the same may from time to time be amended.
"Round-About" means a square, green or traffic circle in WestClay.
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"Section" means that portion of the Development Area that is depicted on a
Plat.
"Significant Tree" means any tree measuring eight (8) inches in caliper
measured at four (4) to five (5) feet above grade.
"Site Furniture and Facilities" means any furniture, trash containers, sculpture
or other furniture, fixtures, equipment or facilities constructed, installed or placed in
the Development Area by Declarant, the Corporation or the Association and intended
for the common use or benefit of some, if not all, of the Owners and Occupants.
"Special Assessment" means an Assessment made pursuant to Paragraph
19(9) or any other provision of this Declaration or any Supplemental Declaration
authorizing the levying of a Special Assessment.
"Street Trees" means the trees, shrubs and other plantings planted by
Declarant or an Owner within a Planting Area, as the same may be replaced from
time to time.
"Sup.plemental Declaration" means any supplemental declaration of
covenants, conditions or restrictions or any declaration of horizontal property regime
which may be recorded and which extends the provisions of this Declaration or any
previously recorded Supplemental Declaration to a Section or Parcel and contains
such complementary or supplementary provisions for such Section or Parcel as are
required or permitted by this Declaration.
"Tract" means the land described in Exhibit C and such other real estate as
may from time to time be annexed thereto under the provisions of Paragraph 3
hereof.
"llnil" means any Living Unit or Commercial Unit, and "Units" means all
Living Units and Commercial Units.
"Villa~e Center" means that part of the Tract depicted on the Development
Plan as the "Village Center."
"Village Center Maintenance Amount" has the meaning set forth in Paragraph
19(1)(3).
"Villa~e Center Parcel" means the Village Center exclusive of Residential
Lots and Community Area located therein.
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"Village Center Supplemental Declaration" means the Supplemental
Declaration relating to the Village Center Parcel.
"Village Community Buildings" means the Meeting House, the Trustees Hall,
the Chapel, the buildings constituting a part of or located in or on the Recreation
Centers and such other civic or recreational buildings as may be constructed in
WestClay by Declarant principally for the use of the Owners as a benefit of
ownership of a Lot, title to which is, or is intended ultimately to be, vested in a
Permitted Title Holder.
"Warranty Period" means, with respect to Street Trees, a period of one (1)
year following the date a Street Tree is planted in a Planting Area.
"Water Access Easement" means the area designated on a Plat as a means of
access to the Lake or a Pond.
"WestClay" means the name by which the Tract shall be commonly known.
"Zonin~ Authority" with respect to any action means the Director of the
Department of Community Services of the City of Carmel or, where he lacks the
capacity to take action, or fails to take such action, the governmental body or bodies,
administrative or judicial, in which authority is vested under applicable law to hear
appeals from, or review the action, or the failure to act, of the Director.
"Zonin~ Ordinance" means the ordinance adopted by the Common Council
of the City of Carmel, Indiana, establishing the WestClay Village Planned Unit
Development District.
2. Declaration. Declarant hereby expressly declares that the Tract and any additions
thereto pursuant to Paragraph 3 hereof shall be held, transferred, and occupied subject to the
Restrictions. The Owner of any Lot or Parcel subject to these Restrictions, by (i) acceptance of a
deed conveying title thereto, or the execution of a contract for the purchase thereof, whether from
Declarant or a subsequent Owner of such Lot or Parcel, or (ii) by the act of occupancy of any Lot or
Parcel, shall accept such deed and execute such contract subject to each Restriction and agreement
herein contained. By acceptance of such deed or execution of such contract, each Owner
acknowledges the rights and powers of Declarant and of the Corporation with respect to these
Restrictions, and also for itself, its heirs, personal representatives, successors and assigns, covenants,
agrees and consents to and with Declarant, the Corporation, and the Owners and subsequent Owners
of each of the Lots and Parcels affected by these Restrictions to keep, observe, comply with and
perform such Restrictions and agreement.
3. Additions to the Tract. Declarant shall have the right to bring within the scheme of
this Declaration and add to the Tract real estate that is a Part of the Development Area or that is
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contiguous to the Development Area. In determining contiguity, public rights of way shall not be
considered.
The additions authorized under this Paragraph 3 shall be made by the filing of record of one
or more Supplemental Declarations with respect to the additional real estate and by filing with the
Corporation any revisions to the General Plan of Development necessary to reflect the scheme of
development of the additional real estate. Unless otherwise stated therein, such revisions to the
General Plan of Development shall not bind Declarant to make the proposed additions. For purposes
of this Paragraph 3, a Plat depicting a portion of the Development Area shall be deemed a
Supplemental Declaration.
4. The Lake.
(a) Development. Declarant intends, but is not obligated, to acquire title
to the Lake. Declarant reserves the right, subsequent to acquisition of the Lake, to
alter the size and configuration thereof (as a result of which, the Lake may vary from
that depicted on the General Plan of Development attached as Exhibit B hereto).
(b) Title and Maintenance. If Declarant acquires title to the Lake, it shall
subsequently convey such title to a Permitted Title Holder. Unless otherwise
specified in the instrument of conveyance, the Corporation shall be responsible for
maintaining the Lake. The Maintenance Costs of the Lake shall be assessed as a
General Assessment against all Lots subject to assessment. Each Owner of a Lot that
abuts the Lake shall be responsible at all times for maintaining so much of the bank
of the Lake above the pool level as constitutes a part of, or abuts, his Lot (exclusive
of the Lake Liner and any Path) and shall keep that portion of the Lake abutting his
Lot free of debris and otherwise in reasonably clean condition.
(c) ~. No boats shall be permitted upon any part of the Lake except if
and to the extent authorized by the Board of Directors and then subject to such rules
and regulations as may be adopted by the Board of Directors. No dock, pier, wall or
other structure may be extended into the Lake without the prior written consent of the
Architectural Review Board and such governmental authority as may have
jurisdiction thereover. No swimming will be permitted in the Lake except if and to
the extent authorized by the Board of Directors. Each Owner of a Lot abutting the
Lake shall indemnify and hold harmless Declarant, the Corporation and each other
Owner against all loss or damage incurred as a result of injury to any Person or
damage to any property, or as a result of any other cause or thing, arising from or
related to use of, or access to, the Lake by any Person who gains access thereto from,
over or across the Owner's Lot with the knowledge or acquiescence of such Owner.
Declarant shall have no liability to any Person with respect to the Lake, the use
thereof or access thereto, or with respect to any damage to any Lot resulting from the
Lake or the proximity of a Lot thereto, including loss or damage from erosion.
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5. The Ponds.
(a) Development. Declarant intends, but is not obligated, to develop the
Ponds. Declarant reserves the right, subsequent to commencement of development
of the Ponds, to determine the size and configuration thereof (which may vary from
that depicted on the General Plan of Development attached as Exhibit B hereto).
(b) Title and Maintenance. Declarant shall convey title to the Ponds to
a Permitted Title Holder. Unless otherwise specified in the instrument of conveyance,
the Corporation shall be responsible for maintaining the Ponds. The Maintenance
Costs of the Ponds shall be assessed as a General Assessment against all Lots subject
to assessment. Each Owner of a Lot that abuts a Pond shall be responsible at all
times for maintaining so much of the bank of the Pond above the pool level as
constitutes a part of, or abuts, his Lot (exclusive of any Path) and shall keep that
portion of the Pond abutting his Lot free of debris and otherwise in reasonably clean
condition.
(c) J.lg. No boats shall be permitted upon any part of a Pond. No dock,
pier, wall or other structure may be extended into a Pond without the prior written
consent of the Architectural Review Board and such governmental authority as may
have jurisdiction thereover. No swimming will be permitted in any Pond except if
and to the extent authorized by the Board of Directors. Each Owner of a Lot abutting
a Pond shall indemnify and hold harmless Declarant, the Corporation and each other
Owner against all loss or damage incurred as a result of injury to any Person or
damage to any property, or as a result of any other cause or thing, arising from or
related to use of, or access to, a Pond by .any Person who gains access thereto from,
over or across such Owner's Lot with the knowledge or acquiescence of such Owner.
Declarant shall have no liability to any Person with respect to a Pond, the use thereof
or access thereto, or with respect to any damage to any Lot resulting from a Pond or
the proximity of a Lot thereto, including loss or damage from erosion.
6. The Commons. Declarant shall convey title to the Commons to a Permitted Title
Holder. Unless otherwise specified in the instrument of conveyance, the Corporation shall be
responsible for maintaining the Commons and the Maintenance Costs thereof shall be assessed as
a General Assessment against all Lots subject to assessment. Unless approved by the Architectural
Review Board and the Zoning Authority, no permanent improvements shall be made to or installed
on the Commons (excepting University Green) other than Village Community Buildings, Education
Facilities, underground utility facilities, Site Furniture and Facilities, walkways, planting structures,
and fountains or other nonrecreational water features. University Green may be improved with
recreational facilities, including but not limited to Founder's Corner and a croquet court. The use
of the Commons shall be subject to rules and regulations adopted by the Board of Directors which
are not inconsistent with the provisions of this Declaration or any Supplemental Declaration.
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7. Parks. Declarant shall convey title to the Parks to a Permitted Title Holder. Unless
the instrument of conveyance provides otherwise, the Corporation shall be responsible for
maintaining the Parks and the Maintenance Costs thereof, together with any costs incurred by the
Corporation in connection with the further improvement thereof, shall be assessed as a General
Assessment against all Lots subject to assessment. The Parks may be improved as appropriate for
recreational and open space areas. The use of the Parks shall be subject to rules and regulations
adopted by the Board of Directors which are not inconsistent with the provisions of this Declaration
or any Supplemental Declaration.
8. Village Community Buildings. Declarant may, but is not obligated to, construct in
the area designated on the General Plan of Development as the contemplated location thereof the
Meeting House, the Trustees Hall, the Chapel and one or more Recreation Center (which may
include a bath house, swimming pool, tennis courts and other recreational facilities) and such other
recreational and community facilities as Declarant in its sole discretion believes are justified by the
progress of development of the Development Area. If Declarant undertakes the development of one
or more Village Community Buildings, Declarant intends upon completion of construction to convey
the same to a Permitted Title Holder prior to the Applicable Date free and clear of all financial
encumbrances and other liens securing indebtedness of Declarant except Community Area Secured
Indebtedness, but subject to the right of Declarant to us~ the Village Community Buildings as
provided in Paragraph 24(a). Unless the instrument of conveyance provides otherwise, the
Corporation shall be responsible for maintenance of the Village Community Buildings and the
Maintenance Costs thereof shall be assessed as a General Assessment against all Lots subject to
assessment. The Board of Directors may adopt such rules and regulations with respect to the use of
the Village Community Buildings as it deems appropriate and may charge reasonable fees for the
use thereof, but no rule, regulation or charge shall be inconsistent with the provisions of this
Declaration or any Supplemental Declaration.
Any Education Facility, including the Education Center, shall be constructed by and be the
sole property of the public or private educational institution which operates the Education Facility
and none of the Corporation, the Association or any Owner shall have any interest therein except as
otherwise specifically provided herein, in a Supplemental Declaration or in an instrument of
conveyance from Declarant to such educational institution.
Declarant may secure indebtedness incurred to finance construction of the Village
Community Buildings and the Common Facilities, or parts thereof, with a mortgage lien(s) on all
or some of the Village Community Buildings; provided that the aggregate original principal amount
of the indebtedness secured by such lien(s) shall not exceed Two Million Dollars ($2,000,000.00).
9. Drainage System. The Drainage System has or will be constructed for the purpose
of controlling drainage within and adjacent to the Development Area and maintaining the water level
in the Lake and the Ponds. The Corporation shall maintain the Drainage System to the extent not
maintained by the Drainage Board and the Maintenance Costs thereof shall be assessed against all
Lots subject to assessment serviced by that part of the Drainage System with respect to which
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Maintenance Costs are incurred. Each Owner shall be individually liable for the cost of maintenance
of any drainage system located entirely upon his Lot and which is devoted exclusively to drainage
of his Lot and is not maintained by the Drainage Board.
10. Common Lighting. Declarant may, but is not obligated to, install Common Lighting
in WestClay and may reserve easements for such purpose over and across Lots. If installed, the
Corporation shall operate and maintain the Common Lighting and, unless otherwise provided in a
Supplemental Declaration, the Maintenance Costs thereof shall be assessed as a General or Parcel
Assessment against all Lots subject to assessment.
11. Paths and Path Lights. Declarant may, but is not obligated to, install the Paths and
Path Lights at the approximate locations depicted on the General Plan of Development and may
reserve easements for such purpose over and across Lots. If installed, the Corporation shall operate
and maintain the Paths and Path Lights and the Maintenance Costs thereof shall be assessed as a
General Assessment against all Lots subject to assessment. The Board of Directors may adopt such
rules and regulations with respect to the use of the Paths as it may deem appropriate including but
not limited to the prohibition of the use of all or some of the Paths by bicycles, skateboards and/or
motorized or non-motorized vehicles.
12. Private Drives and Private Gates.
(a) Maintenance of Private Drives (Exclusive of Alleys). Unless
otherwise provided in a Supplemental Declaration, each Private Drive (exclusive of
alleys) shall be owned by the Corporation and maintained by the Corporation in good
condition satisfactory for the purpose for which it was constructed. The Maintenance
Costs incurred by the Corporation in maintaining a Private Drive shall be assessed
against all Lots whose principal means of vehicular access to a public right-of-way
or to the Village Center is over and across such Private Drive. Estimated
Maintenance Costs, including a contribution to a reserve fund for future maintenance,
repair and replacement of Private Drives, shall be included in each annual budget of
the Corporation adopted pursuant to Paragraph 19(1).
(b) Maintenance of Alleys. Unless otherwise provided in a Supplemental
Declaration, the Corporation shall maintain all alleys and the Maintenance Costs
incurred for such maintenance shall be assessed against all Lots served by alleys.
(c) Maintenance of Private Gates. Private Gates shall be maintained by
the Corporation. The Maintenance Costs incurred by the Corporation in maintaining
Private Gates shall be assessed against all Lots whose principal access to a public
right-of-way or to the Village Center is through a Private Gate.
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13. Entry Ways. Landscape Easements and Planting Areas.
(a) Entry Ways. The Corporation shall maintain the Entry Ways
and all improvements and plantings thereon, and the Maintenance Costs
thereof shall be assessed as a General Assessment against all Lots subject to
assessment. Grass, trees, shrubs and other plantings located on an Entry Way
shall be kept neatly cut, cultivated or trimmed as reasonably required to
maintain an attractive entrance to WestClay or a part thereof. All entrance
signs located on an Entry Way shall be maintained at all times in good and
sightly condition appropriate to a first-class residential community.
(b) Landscape Easements. Unless the Board of Directors (of the
Corporation or the Association, as applicable) determines that all or some of
the Landscape Easements shall be maintained by the Corporation and/or the
Association and the Maintenance Costs thereof assessed as a General or
Parcel Assessment, the Owner of each Lot upon which a Landscape Easement
is located shall at his/her expense keep the grass, trees, shrubs and other
plantings located on a Landscape Easement properly irrigated and neatly cut,
cultivated or trimmed as reasonably necessary to maintain the same at all
times in a good and sightly condition appropriate to a first-class residential
subdivision and, if such Owner fails to do so, the Corporation or the
Association, as applicable, may undertake such maintenance and assess the
Maintenance Costs thereof as a Special Assessment against such Lot.
(c) Planting Areas. Following the expiration of the Warranty
Period, the Corporation (or, if the Village Center Supplemental Declaration
so provides with respect to Planting Areas in the Village Center Parcel, the
Association) shall maintain the Planting Areas and the Maintenance Costs
thereof shall be assessed as a General or Parcel Assessment.
14. Site Furniture and Facilities. Declarant may, but is not obligated to, construct, install
or place Site Furniture and Facilities in WestClay. Ifit does so, title thereto shall be conveyed to a
Permitted Title Holder. After conveyance to a Permitted Title Holder, unless otherwise specified
in the instrument of conveyance, the Corporation (or, if the Village Center Supplemental Declaration
so provides with respect to Site Furniture and Facilities in the Village Center Parcel, the Association)
shall maintain the Site Furniture and Facilities and the Maintenance Costs thereof shall be assessed
as a General or Parcel Assessment.
15. Round-Abouts and Street Trees.
(a) Round-Abouts. The Corporation shall maintain the Round-Abouts
(exclusive of the street pavement, curbs and drainage structures and tiles unless they
constitute a part of a Private Drive), and the Maintenance Costs thereof shall be
assessed as a General or Parcel Assessment.
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(b) Street Trees. Declarant shall plant Street Trees within Planting Areas
adjacent to such of the Principal Streets as are constructed by Declarant and in
Community Areas adjacent to other streets constructed in WestClay. Each Owner
shall, within the time specified in the Building Guidelines, plant within a Planting
Area adjacent to the Owner's Lot that number of Street Trees as are depicted on such
Lot on the Development Plan, such Street Trees to be of a size and species designated
by the Architectural Review Board or the Design Review Board, as applicable, and
to be planted at locations specified on the landscaping plan submitted by the Owner
to and approved by the applicable Board. Declarant, the Corporation or the
Association may plant additional Street Trees on any Lot.
(c) Maintenance of Street Trees. During the Warranty Period, all dead
or dying Street Trees, installed new, transplanted, or designated on the Lot
Development Plan as existing trees to be retained, shall be replaced by the person
responsible for causing such Street Trees to be planted. Following the expiration of
the Warranty Period for a Street Tree, unless otherwise provided in a Supplemental
Declaration, the Corporation shall maintain and, if necessary, replace the Street Tree,
and the Maintenance Cost thereof shall be assessed as a General Assessment against
all Lots subject to Assessment.
16. Common Parkini Lots. Declarant shall construct such Common Parking Lots as it
deems desirable. The Association shall maintain the Common Parking Lots located in the Village
Center, including the exterior and interior landscaping required by the Zoning Ordinance, and the
Maintenance Costs thereof shall be assessed as a Parcel Assessment as provided in the Village
Center Supplemental Declaration. The Corporation shall maintain all other Common Parking Lots,
including the exterior and interior landscaping required by the Zoning Ordinance, and the
Maintenance Costs thereof shall be assessed against all Lots which derive a substantial benefit from
the availability of parking in such other Common Parking Lots, as determined in the reasonable
discretion of the Board of Directors of the Corporation. The Association may allocate to the
Corporation a portion of the Maintenance Costs of Common Parking Lots in the Village Center
which serve a Village Community Building as provided in the Village Center Supplemental
Declaration and the amount so allocated shall be included in the General Assessment against all
Residential Lots subject to assessment.
17. Open Space. A Permitted Title Holder shall not change the use of any Park,
Commons or other area designated by Declarant as open space conveyed to the Permitted Title
Holder by Declarant from the use being made thereof at the time of conveyance without the prior
consent or approval of the Zoning Authority.
18. Villaie of WestClay Owners Association. Inc.
(a) Membership. Each Owner shall automatically be a Member and shall
enjoy the privileges and be bound by the obligations contained in the Articles and
By-Laws. If a Person would realize upon his security and become an Owner, he shall
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then be subject to all the requirements and limitations imposed by this Declaration
on other Owners, including those provisions with respect to the payment of
Assessments.
(b) Powers. The Corporation shall have such powers as are set forth in
this Declaration, all Supplemental Declarations and in the Articles, together with all
other powers that belong to it by law.
(c)
Members.
Classes of Members. The Corporation shall have a single class of
(d) Voting and Other Rights of Members. The voting and other rights of
Members shall be as specified in the Articles and By-Laws; provided, however, that
the Owners of Lots in each Electoral Parcel shall be entitled to elect a Person to serve
as a Director representing such Electoral Parcel on the Board of Directors in the
manner specified in the Code of By-Laws of the Corporation.
(e) Reserve for Rej)lacements. The Board of Directors shall establish and
maintain the Reserve for Replacements by the allocation and payment to such reserve
fund of an amount determined annually by the Board to be sufficient to meet the cost
of periodic maintenance, repair, renewal and replacement of the Community Area
and the Common Facilities to the extent the Corporation is responsible for the
maintenance thereof. In determining the amount, the Board shall take into
consideration the expected useful life of the Community Area and the Common
Facilities, projected increases in the cost of materials and labor, interest to be earned
by such fund and the advice of Declarant or such consultants as the Board may
employ. The Reserve for Replacements shall be deposited in a special account with
a lending institution the accounts of which are insured by an agency of the United
States of America or may, in the discretion of the Board, be invested in obligations
of, or fully guaranteed as to principal by, the United States of America. Prior to the
Applicable Date, funds from the Reserve for Replacements may be withdrawn and
applied at the direction of Declarant to meet the costs of periodic maintenance,
repairs, renewal or replacement of the Community Area and the Common Facilities.
(f) Debt Service Account. The Board of Directors shall establish and
maintain a separate account for the payment of principal, interest and other charges
on account of Community Area Secured Indebtedness. Community Area Debt
Service Assessments shall be deposited to said account and disbursed solely for the
purpose of payments on account of Community Area Secured Indebtedness. The
debt service account shall be maintained in a lending institution the accounts of
which are insured by an agency of the United States of America or may, in the
discretion of the Board, be invested in obligations of, or fully guaranteed as to
principal by, the United States of America. Prior to the Applicable Date, funds from
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the debt service account may be withdrawn and applied at the direction of Declarant
to make payments on account of Community Area Secured Indebtedness.
(g) Maintenance Standards. In each instance in which this Declaration
or a Supplemental Declaration imposes on the Corporation a maintenance obligation
with respect to the Community Area or the Common Facilities or a part thereof, the
Corporation shall maintain the Community Area, Common Facilities or designated
part thereof in good condition, order and repair substantially comparable to its
condition when originally constructed, installed or planted and compatible in
appearance and utility with a first-class residential community. Grass, trees, shrubs
and other plantings located on the Community Area for which the Corporation has
maintenance responsibility shall be kept properly irrigated and neatly cut, cultivated
or trimmed as reasonably required and otherwise maintained at all times in good and
sightly condition appropriate to a first-class residential community. In each fiscal
year subsequent to the Applicable Date the Corporation shall make expenditures to
Maintain the Community Area and Common Facilities located in the Village Center
in an amount not less than the Village Center Maintenance Amount established
pursuant to Paragraph 19(1)(3).
(h) Insurance. Taxes and Utilities. The Corporation shall maintain public
liability and casualty insurance in prudent amounts insuring against risk of loss to the
Corporation on account of injury to person or property and damage to property
owned by the Corporation and shall pay all taxes assessed against such property and
all utility charges incurred with respect to Community Area for which the
Corporation has maintenance responsibility.
(i) Limitations on Action by the COI:poration. Unless at least two-thirds
(2/3) of the Mortgagees (based on one vote for each first mortgage owned) or two-
thirds (2/3) of the Members have given their prior written approval, a Permitted Title
Holder, the Board of Directors and the Owners may not: (i) except as authorized by
Paragraph 21(a) (but subject to the limitations of Paragraph 17), by act or omission
seek to abandon, partition, subdivide, encumber, sell or transfer 1i!e Community Area
(but the granting of easements for public utilities or other public purposes consistent
with the intended use of the Community Area shall not be deemed a transfer for the
purposes of this clause); (ii) fail to maintain fire and extended coverage insurance on
insurable Community Area and Common Facilities on a current replacement cost
basis in the amount of one hundred percent (100%) of the insurable value (based on
current replacement cost); (iii) use hazard insurance proceeds for losses to any
Community Area or Common Facilities for other than the repair, replacement or
reconstruction of the Community Area or Common Facilities; (iv) subject to
Paragraph 19(b)(ii)(5), the last sentence of Paragraph 19(b)(iv) and 19(1)(iii), change
the method of determining the obligations, Assessments, dues or other charges that
may be levied against the Owner of a Unit; (v) by act or omission change, waive or
abandon any scheme of regulations or their enforcement pertaining to the
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architectural design or the exterior appearance of Units, or the maintenance and
upkeep of the Community Area and Common Facilities; or (vi) fail to maintain the
Reserve for Replacements in the amount required by this Declaration or any
Supplemental Declaration.
G) Mergers. Upon a merger or consolidation of another corporation with
the Corporation, its properties, rights and obligations may, as provided in its articles
of incorporation, by operation of law be transferred to another surviving or
consolidated corporation or, alternatively, the properties, rights and obligations of
another corporation may by operation of law be added to the properties, rights and
obligations of the Corporation as a surviving corporation pursuant to a merger. The
surviving or consolidated corporation may administer the covenants and restrictions
established by this Declaration within the Tract together with the covenants and
restrictions established upon any other properties as one scheme. No merger or
consolidation, however, shall effect any revocation, change or addition to the
covenants established by this Declaration within the Tract except as hereinafter
provided.
19. Assessments.
(a) Creation of the Lien and Personal Obligation of Assessments.
Declarant hereby covenants, and each Owner of any Lot by acceptance of a deed
thereto, whether or not it shall be so expressed in such deed, is deemed to covenant
and agree to pay to the Corporation the following: (1) General Assessments, (2) the
Community Area Initial Assessment, (3) Community Area Debt Service
Assessments, (4) annual and special Parcel Assessments, (5) Architectural Control
Assessments (to the extent levied) and (6) Special Assessments, such Assessments
to be established and collected as hereinafter provided.
If two (2) or more Lots originally shown on a Plat are consolidated as a single
Lot by virtue of partial vacation of a Plat, or if a Lot is divided by conveyance of
portions thereof to owners of adjacent Lots, then, in either such event, so long as the
consolidated or divided Lot is used in its entirety by one or more Owners of
contiguous Lots, the vacated or divided Lot(s) shall cease to be Lot(s) for purposes
of Assessments under this Paragraph 19.
All Assessments, together with interest thereon and costs of collection
thereof, shall be a charge on the land and shall be a continuing lien upon the Lot
against which each Assessment is made until paid in full. Each Assessment, together
with interest thereon and costs of collection thereof, shall also be the personal
obligation of the Person who was the Owner of the Lot at the time when the
Assessment became due.
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(b) General Assessment.
(i) Pur:pose of Assessment. The General Assessment
levied by the Corporation shall be used exclusively to promote the
recreation, health, safety, and welfare of the Owners of Lots and
Occupants of Units and for the improvement, maintenance, repair,
replacement and operation of the Community Area and Common
Facilities.
(ii) Basis for Assessment.
(1) Residential Lots. Subject to
subparagraph (h) below, each Residential Lot shall be
assessed at a uniform rate without regard to whether
a Living Unit or other improvements have been
constructed upon the Lot, except that if no Living
Unit has been constructed on the Lot, the Corporation
shall waive with respect to such undeveloped Lot that
part of any Assessment that is attributable to services
(such as trash removal) that are provided only with
respect to improved Lots.
(2) Commercial Lots.
(A) Subject to subparagraph (h)
below, each unimproved Commercial Lot shall be
assessed at a uniform rate without regard to whether
a Commercial Unit, Multifamily Structure or Multiuse
Structure has been constructed upon the Lot, except
that the Corporation shall waive with respect to such
undeveloped Lot that part of any Assessment that is
attributable to services (such as trash removal) that are
provided only with respect to improved Lots.
(8) Each Commercial Lot upon
which a Multifamily Structure has been constructed
shall be assessed at a rate equitably determined by the
Board of Directors which takes into account the
number of Living Units located on the Lot and the
rights of Occupants of such Living Units to the use
and enjoyment of the Community Area. The General
Assessment for any such Lot shall not exceed the
product of (i) the number of Living Units located on
the Lot and (ii) seventy-five percent (75%) of the
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amount of the General Assessment for Residential
Lots established on the basis set forth in Clause (I) ,
above if Occupants have a right to use the Recreation
Centers or, if Occupants do not have such right, fifty
percent (50%) of the amount of the General
Assessment for Residential Lots. Owners of
Multifamily Structures may elect not to be subject to
assessment on account of Maintenance Costs of
Recreation Centers in which event Occupants of such
Multifamily Structures shall not have a right to use the
Recreation Centers.
(C) Each Commercial Lot
improved with one or more Commercial Units (not
located in a Multiuse Structure) shall be assessed at a
rate which bears the same proportion to all other
improved Commercial Lots (other than those
improved with Multifamily Structures) as the gross
square footage of the Commercial Unites) located on
such Lot bears to the gross square footage of all
Commercial Units.
(0) Each Commercial Lot
improved with a Multiuse Structure shall be assessed
as follows: with respect to that part of the Multiuse
Structure that consists of one or more Commercial
Units, in the same manner as specified in subclause
(C) above; and with respect to that part of the
Multiuse Structure that consists of one or more Living
Units, in the same manner as specified in subclause
(B) above.
(E) The General Assessment' for
any unimproved Commercial Lot shall not exceed the
amount of the General Assessment for unimproved
Residential Lots in the Primary Area
(F) The General Assessment for
any Commercial Lot upon which one or more
Commercial Units have been constructed (including
Commercial Units located in a Multiuse Structure)
shall not exceed the product of (i) the result obtained
by dividing the gross square footage of the
Commercial Unit by two thousand five hundred
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(2,500) and (ii) the amount of the General Assessment
established for Residential Lo~s on the basis set forth
in Clause (I) above.
(G) The General Assessment for
any Commercial Lot on which a Multiuse Structure
has been constructed shall not, with respect to Living
Units located therein, exceed the amount specified in
subclause (B) above.
(3) Lots Owned by Declarant or Permitted
Title Holder. Notwithstanding the foregoing
provisions of this subparagraph (ii), no Lot owned by
Declarant or a Permitted Title Holder shall be
assessed by the Corporation except such Lots as have
been improved by the construction thereon of Units,
which improved Lots shall be subject to assessment as
provided in Clauses (I) or (2) above; provided,
however, Lots improved by the construction thereon
of Village Community Buildings or an Education
Facility shall in no event be subject to Assessments.
(4) Condominiums. Condominiums shall
be separately assessed as a Lot applying the provisions
of the foregoing Clauses (1) and (2). If a Multiuse
Structure is a Horizontal Property Regime, then each
Condominium therein shall be separately assessed
applying the provisions of the foregoing Clauses (1)
and (2).
(5) Change in Basis. The basis for
assessment may be changed upon recommendation of
the Board of Directors if such change is approved by
(i) two-thirds (213) of the Members or two-thirds (213)
of the Mortgagees (based on one vote for each first
mortgage owned) who are voting in person or by
proxy at a meeting of Members duly called for this
purpose; provided, however, if a proposed change
would adversely affect the Owners of a particular
class of property, such change in the basis for
assessment may be made .only if approved by a
majority of the Owners adversely affected. For
purposes of this Clause (5), "classes of property"
include Living Units not located in a Multifamily
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Structure or Multiuse Structure, Multifamily
Structures, Multiuse Structures and Commercial Units
not located in a Multiuse Structure, each as a separate
class.
(iii) Method of Assessment. By a vote of a majority of the
Directors, the Board of Directors shall, on the basis specified in
subparagraph (ii), fix the General Assessment for each assessment
year of the Corporation at an amount sufficient to meet the
obligations imposed by this Declaration and all Supplemental
Declarations upon the Corporation, including but limited to the
obligation to maintain the Community Area and Common Facilities
in the Village Center in accordance with the budget for Village Center
Maintenance Costs established in accordance with Paragraph 19(1)(3)
below. The Board of Directors shall establish the date(s) the General
Assessment shall become due, and the manner in which it shall be
paid.
(iv) Allocation of Assessment. Certain of the costs of
maintaining, operating, restoring or replacing the Community Area
and Common Facilities may be allocated among Owners of Lots on
the basis of the location of the lands and improvements constituting
the Community Area and Common Facilities and the intended use
thereof. In determining the General Assessment, costs and expenses
which in accordance with the provisions of this Declaration or a
Supplemental Declaration are to be borne by all Owners shall first be
allocated to all Owners. Costs and expenses which in accordance
with the provisions of this Declaration or a Supplemental Declaration
are to be borne by the Owners of certain Lots shall then be allocated
to the Owners of such Lots. The provisions of subparagraph (ii) shall
not be deemed to require that all Assessments against vacant Lots or
Lots improved with comparable types of Units, Multifamily
Structures or Multiuse Structures be equal, but only that each Lot be
assessed uniformly with respect to comparable Lots subject to
assessment for similar costs and expenses. Any category of
Maintenance Cost included in the Village Center Maintenance
Amount that was allocated to all Owners prior to the Applicable Date
shall be allocated to all Owners subsequent to the Applicable Date.
Costs of trash removal and other services provided by the Corporation
to individual Lots shall not be included in the General Assessment of
any Lot the Owner of which has elected to obtain the same service
directly from a service provider.
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(c) Community Area Initial Assessment. Unless otherwise provided in
a Supplemental Declaration, on the earlier of (i) the date a Lot is conveyed by
Declarant to an Owner (other than the holder of a first mortgage on such Lot in a
conveyance which constitutes a deed in lieu of foreclosure), (ii) the date a Unit
constructed on the Lot has been certified for occupancy by the Zoning Authority or
(iii) the date a Unit on the Lot is first occupied by an Owner or Occupant upon
completion of construction thereof, there shall be due and payable to the Corporation
by the Owner of such Lot the following sum which shall be deposited in the Reserve
for Replacements maintained by the Corporation:
(i) a Lot on which a detached or an
attached single-family residence is to
be constructed, the sum of Three
Hundred Dollars ($300.00);
(ii) a Lot on which a detached single-
family residence together with an
attached or detached accessory
dwelling is to be constructed, the sum
of Four Hundred Dollars ($400.00);
(iii) a Lot on which a detached single-
family residence with an attached or
detached home-based office is to be
constructed, the sum of Five Hundred
Dollars ($500.00);
(iv) a Lot on which a Multifamily
Structure, a Multiuse Structure or a
Horizontal Property Regime is to be
constructed, an amount equal to the
greater of Six Hundred Dollars
($600.00) or the product of (y) the
number of Living Units to be
constructed in such Multifamily
Structure, Multiuse Structure or
Horizontal Property Regime and (z)
One Hundred Dollars ($100.00); and
(v) a Lot on which a Commercial Unit is
to be constructed, the sum of One
Hundred Dollars ($100.00) for each
one thousand (1,000) square feet or
portion thereof of gross floor area for
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the building or buildings constructed
or authorized to be constructed
thereon which, in the case of a
Multiuse Structure, are to be used as
Commercial Units.
(d) Community Area Debt Service Assessment. If any Community Area
Secured Indebtedness is outstanding, the Corporation shall levy a Community Area
Debt Service Assessment against each Lot (other than a Lot exempt from the General
Assessment pursuant to subparagraph (b)(ii)(3) above) in an amount established by
the Board of Directors which is sufficient to meet all debt service requirements on
such indebtedness but does not exceed, in any fiscal year of the Corporation, an
amount equal to one quarter of one percent (0.0025%) of the original sales price of
the Lot. Declarant shall certify to the Corporation upon sale of each Lot the original
sales price of such Lot. The Community Area Debt Service Assessment shall be held
and disbursed in accordance with the provisions of Paragraph 18(f).
( e) Parcel Assessments.
(i) Pmpose of Assessments. Parcel Assessments shall be
used for such purposes as are authorized by the Supplemental
Declaration for such Parcel.
(ii) Method of Assessment. An annual Parcel Assessment
shall be levied by the Corporation against Lots in a Parcel (except the
Village Center Parcel or a Parcel which is a Horizontal Property
Regime) using the basis set forth in the Supplemental Declaration for
such Parcel, and collected and disbursed by the Corporation. The
Board of Directors shall fix in accordance with the By-Laws and the
provisions of any Supplemental Declaration the annual Parcel
Assessment for each Parcel, the date(s) such Assessment shall
become due, and the manner in which it shall be paid.
(iii) Special Assessments. In addition to the annual Parcel
Assessment, the Corporation may levy in any fiscal year a special
Parcel Assessment against one or more of the Lots in a Parcel (except
the Village Center Parcel or a Parcel which is a Horizontal Property
Regime) for the purpose of (A) defraying, in whole or in part, the cost
of any ~nstruction, reconstruction, repair or replacement of a capital
improvement upon the Parcel, including fixtures and personal
property related thereto, provided that any such Assessment shall
have the assent of a majority of the Owners of Lots in the Parcel who
are voting in person or by proxy at a meeting of such Owners duly
called for this purpose or (B) defraying any Maintenance Costs
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incurred in satisfying any requirements imposed on the Corporation
by a Supplemental Declaration relating to a Parcel. Any Special
Assessment pursuant to this clause (iii) shall be allocated equally
among all Lots in the Parcel except those exempt from the General
Assessment.
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(f) Architectural Control Assessment. If any Owner or Person acting for
or on behalf of, or pursuant to the authorization or acquiescence of, an Owner fails
to comply with Building Guidelines or other requirements for construction of
improvements, landscaping and other Building Activities or maintenance of a Lot
(including but not limited to installation of required Street Trees or the filing of a Lot
Development Plan) or any restrictive covenant or condition specified in a
Supplemental Declaration for the Parcel in which such Owner's Lot is located
(exclusive of the Village Center Parcel) and/or the provisions of Paragraphs 20 or 22
of this Declaration, then the Corporation may levy against the Lot owned by such
Owner an Assessment in an amount determined by the Board of Directors which does
not exceed the greater of (i) Five Hundred Dollars ($500.00) for each day that such
failure continues after written notice thereof is given by Declarant or the Corporation
to such Owner or (ii) One Hundred Thousand Dollars ($100,000.00). Such
Assessment shall constitute a lien upon the Lot of such Owner and may be enforced
in the manner provided in subparagraph (i) below. The levy of an Architectural
Control Assessment shall be in addition to, and not in lieu of, any other remedies
available to Declarant and/or the Corporation provided in this Declaration, at law or
in equity in the case of the failure of an Owner to comply with the provisions of this
Declaration and all applicable Supplemental Declarations (exclusive of the Village
Center Supplemental Declaration).
(g) Special Assessment. In addition to such other Special Assessments
as may be authorized herein, the Corporation may levy in any fiscal year a Special
Assessment applicable to that year and not more than the next four (4) succeeding
fiscal years for the purpose of defraying, in whole or in part, the cost of any
construction, repair, or replacement of a capital improvement upon the Community
Area, including fixtures and personal property relating thereto or any Common
Facilities, provided that any such Assessment shall have the assent of a majority of
the votes of the Members whose Lots are subject to assessment with respect to the
capital improvement who are voting in person or by proxy at a meeting of Members
duly called for this purpose. Any Special Assessment pursuant to this subparagraph
(g) shall be allocated equally among all Lots in the Tract except those exempt from
the General Assessment.
(h) Date of Commencement of Assessments. The General Assessment
and Parcel Assessments (exclusive of Parcel Assessments applicable to Commercial
Lots in the Village Center Parcel) shall commence with respect to assessable Lots
within a Parcel on the first day of the month following conveyance of the first Lot in
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the Parcel to an Owner who is not Declarant. The initial Assessment on any
assessable Lot shall be adjusted according to the days remaining in the month in
which the Lot became subject to assessment. Notwithstanding the foregoing, if an
Owner owns more than two (2) unimproved Residential Lots or one (1) or more
unimproved Commercial Lots, the General Assessment shall not commence with
respect to such unimproved Lot(s) until the earlier of (i) the date the Owner
completes construction of a Unit, Multifamily Structure or Multiuse Structure
thereon or (ii) the first day of the ninth month following the date the Owner acquired
title to the Lot(s).
(i) Effect of Non 'payment of Assessments: Remedies of the Cox:poration.
Any Assessment not paid within thirty (30) days after the due date may upon
resolution of the Board of Directors bear interest from the due date at a percentage
rate no greater than the current statutory maximum annual interest rate, to be set by
the Board of Directors for each assessment year. The Corporation shall be entitled
to institute in any court of competent jurisdiction any lawful action to collect a
delinquent Assessment plus any expenses or costs, including attorneys' fees, incurred
by the Corporation in collecting such Assessment. If the Corporation has provided
for collection of any Assessment in installments, upon default in the payment of any
one or more installments, the Corporation may accelerate payment and declare the
entire balance of said Assessment due and payable in full. No Owner may waive or
otherwise escape liability for the Assessments provided for herein by nonuse of the
Community Area or the Common Facilities or abandonment of his Lot.
G) Subordination of the Lien to Mortg:ages. To the extent specified
herein, the lien of the Assessments provided for herein against a Lot shall be
subordinate to the lien of any recorded first mortgage covering such Lot and to any
valid tax or special assessment lien on such Lot in favor of any governmental taxing
or assessing authority. Sale or transfer of any Lot shall not affect the assessment lien.
The sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding
in lieu thereof shall, however, extinguish the lien of such Assessments as to payments
which became due more than six (6) months prior to such sale or transfer. No sale
or transfer shall relieve such Lot from liability for any Assessments thereafter
becoming due or from the lien thereof.
(k) Certificates. The Corporation shall, upon demand by an Owner, at any
time, furnish a certificate in writing signed by an officer of the Corporation that the
Assessments on a Lot have been paid or that certain Assessments remain unpaid, as
the case may be.
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(I)
Annual Budget.
(1) Adoption of Budget. By a majority vote of the
Directors, the Board of Directors shall adopt an
annual budget for the subsequent fiscal year, which
shall provide for allocation of expenses in such a
manner that the obligations imposed on the
Corporation by the Declaration and all Supplemental
Declarations will be met.
(2) Certification of Village Center Maintenance
~. On or before the Applicable Date, Declarant
shall certify to the Corporation the annual
Maintenance Costs with respect to the Community
Area within the Village Center incurred by the
Corporation and Declarant for each of the two (2)
fiscal years prior to the Applicable Date and incurred
or to be incurred for the fiscal year in which the
Applicable Date occurs. The sum of such amount
divided by three (3) shall constitute the "Base Village
Center Maintenance Amount."
(3) Village Center Budget. The annual budget
adopted pursuant to subparagraph (a) above for each
fiscal year subsequent to the fiscal year in which the
Applicable Date occurs shall include an amount which
is not less than the sum of (i) the Base Village Center
Maintenance Amount and (ii) the product of (A) the
Base Village Center Amount and (B) the difference
between the Consumer Price Index for All Urban
Consumers (All Items) ("Index") published by the
Bureau of Labor Statistics of the United States
Department of Labor (or any. generally accepted
substitute for such index if it is no longer published)
for the preceding fiscal year and the Index for the year
prior to the year in which the Applicable Date occurs.
The amount thus determined each year is referred to
as the "Village Center Maintenance Amount." In
establishing the annual budget, the Board of Directors
shall give good faith consideration to the amount
recommended by the Association to be included
therein to Maintain the Village Center.
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20. Architectural Control.
(a) The Architectural Review Board. An Architectural Review Board
consisting of three (3) or more Persons as specified in the By-Laws shall, prior to the
Applicable Date, be appointed by Declarant. Thereafter, the Architectural Review
Board shall be appointed by the Board of Directors of the Corporation.
(b) Pw:pose. The Architectural Review Board shall regulate the external
design, appearance, use, location and maintenance of the Tract (exclusive of the
Village Center Parcel) and of all improvements thereon in such manner as to preserve
and enhance values, to maintain a harmonious relationship among structures,
improvements and the natural vegetation and topography, to implement the
development standards and guidelines set forth in the Zoning Ordinance and to assure
compliance with the Building Guidelines established by Declarant or the
Architectural Review Board for WestClay (exclusive of the Village Center Parcel).
(c) Building Activity. Except as otherwise expressly provided in this
Declaration or a Supplemental Declaration, and excluding from the provisions of this
Paragraph 20 all Commercial Lots located in the Village Center Parcel, no
improvements, alterations, repairs, change of colors, excavations, changes in grade,
planting, installation or modification of signage or other work that in any way alters
any Lot or the exterior of the improvements located thereon from its natural or
improved state existing on the date such Lot was first conveyed in fee by Declarant
to another Owner (including, but not limited to, (i) construction, erection or alteration
of any Unit, Multifamily Structure, Multiuse Structure, other building, fixture,
equipment, fence, wall, deck, swimming pool, ball court, patio, parking area, or other
structure on a Lot, or (ii) any plantings, other landscaping or exterior lighting on a
Lot, (iii) the installation or alteration of any signage on any Lot, Unit, Multifamily
Structure or Multiuse Structure, or (iv) the removal of any Significant Tree from a
Lot, shall be made or done without the prior approval of the Architectural Review
Board of a Lot Development Plan therefor. Prior to commencement by any Owner
other than Declarant of any Building Activity a Lot Development Plan with respect
thereto shall be submitted to the Architectural Review Board, and no Building
Activity shall be commenced or continued by any Person other than Declarant
without the prim: written approval of the Architectural Review Board of a Lot
Development Plan relating to such Building Activity. Such approval shall be in
addition to, and not in lieu of, all approvals, consents, permits and/or variances
required by law from governmental authorities having jurisdiction over WestClay,
and no Owner shall undertake any construction activity within WestClay unless all
legal requirements have been satisfied. Approval by the Architectural Review Board
of a Lot Development Plan shall not be deemed to imply compliance with approvals,
consents, permits and/or variances required by law from governmental authorities
having jurisdiction over the Tract. Each Owner shall complete all improvements to
a Lot strictly in accordance with the Lot Development Plan approved by the
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Architectural Review Board. As used in this subparagraph (c), "plantings" does not
include flowers, bushes, shrubs or other plants having a height of less than eighteen
(18) inches.
(d) Procedures. In the event the Architectural Review Board fails to
approve, modify or disapprove in writing a Lot Development Plan within sixty (60)
days after notice of such plan has been duly filed with the Architectural Review
Board in accordance with procedures established by Declarant or, subsequent to the
Applicable Date, the Board of Directors, approval will be deemed denied. A decision
_of the Architectural Review Board (including a denial resulting from the failure of
such Board to act on the plan within the specified period) may be appealed to the
Board of Directors which may reverse or modify such decision (including approve
a Lot Development Plan deemed denied by the failure of the Architectural Review
Board to act on such plan within the specified period) by a two-thirds (2/3) vote of
the Directors then serving.
(e) Guidelines and Standards. The Architectural Review Board shall have
the power to establish and modify from time to time such written architectural,
landscaping, lighting, fencing, recreational facility and signage design guidelines and
standards as it may deem appropriate to achieve the purpose set forth in subparagraph
(b) to the extent that such design guidelines and standards are not in conflict with the
specific provisions of this Declaration, the Zoning Ordinance or, prior to the
Applicable Date, the Building Guidelines established by Declarant. Any such
guideline or standard may be appealed to the Board of Directors which may terminate
or modify such guideline or standard by a two-thirds (2/3) vote of the Directors then
serving. The Building Guidelines may establish different standards and requirements
for various Lots within WestClay based on the size, location and use of such Lots and
the improvements to be located thereon.
(f) Ap-plication of Guidelines and Standards. The Architectural Review
Board shall apply the Building Guidelines in a fair, uniform and reasonable manner
consistent with the discretion inherent in the design review process. In disapproving
any Lot Development Plan, the Architectural Review Board shall furnish the
applicant with specific reasons for such disapproval and may suggest modifications
in such plan which would render the plan acceptable to the Board if resubmitted.
(g) Desi~ Consultants. The Architectural Review Board may utilize the
services of architects, engineers and other Persons possessing design expertise and
experience in evaluating Lot Development Plans. No presumption of any conflict of
interest or impropriety shall be drawn or assumed by virtue of the fact that any of
such consultants are affiliated with Declarant or a Designated Builder or may, from
time to time, represent Persons filing Lot Development Plans with the Architectural
Review Board.
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(h) Existing Violations of Declaration. The Architectural Review Board
shall not be required to consider any Lot Development Plan submitted by an Owner
who is, at the time of submission of such Lot Development Plan, in violation of the
requirements of a Supplemental Declaration relating to the Parcel in which such
Owner's Lot is located and/or the provisions of the Zoning Ordinance or this
Paragraph 20, unless such Owner submits to the Architectural Review Board with
such Lot Development Plan an irrevocable agreement and undertaking (with such
surety as the Board may reasonably require) to remove from the Owner's Lot any
improvements, landscaping, exterior lighting or signage constructed and/or installed
prior to the submission of a Lot Development Plan (or constructed and/or installed
in violation of a previously approved Lot Development Plan) to the extent any such
previously constructed and/or installed improvement, landscaping, exterior lighting
or signage is not subsequently approved by the Architectural Review Board. The
Architectural Review Board shall have the power to recommend to the Board of
Directors that the Corporation assess an Architectural Control Assessment against
any Owner who fails to comply with the requirements of a Supplemental Declaration
(other than the Village Center Supplemental Declaration), Paragraph 20 of this
Declaration or the provisions of the Zoning Ordinance. Under no circumstances shall
any action or inaction of the Architectural Review Board be deemed to be
unreasonable, arbitrary or capricious if, at the time of such decision, the Person
having submitted a Lot Development Plan for approval by the Architectural Review
Board has violated a Supplemental Declaration, Paragraph 20 of this Declaration or
the provisions of the Zoning Ordinance and such violation remains uncured.
(i) Exercise of Discretion. Declarant intends that the members of the
Architectural Review Board exercise discretion in the performance of their duties
consistent with the provisions of subparagraph (f), and every Owner by the purchase
of a Lot shall be conclusively presumed to have consented to the exercise of
discretion by such Illembers. In any judicial proceeding challenging a determination
by the Architectural Review Board and in any action initiated to enforce this
Declaration in which an abuse of discretion by the Architectural Review Board is
raised as a defense, abuse of discretion may be established only if a reasonable
Person, weighing the evidence and drawing all inferences in favor of the Board,
could only conclude that such determination constituted an abuse of discretion.
(j) Liability of Board. Neither the Architectural Review Board or any
member or agent thereof, nor Declarant shall be responsible in any way for any
defects in any plans, specifications or other materials submitted to it, nor for any
defects in any work done according thereto. Further, the Board does not make, and
shall not be deemed by virtue of any action of approval or disapproval taken by it to
have made, any representation or warranty as to the suitability or advisability of the
design, the engineering, the method of construction involved, or the materials to be
used.
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(k) Inspection. Members of the Architectural Review Board may inspect
work being performed to assure compliance with these Restrictions and applicable
regulations.
21. Community Area and Common Facilities.
(a) Ownership. The Community Area and the Common Facilities shall
remain private, and neither Declarant's execution or recording of an instrument
portraying the Community Area, nor the doing of any other act by Declarant is, or is
intended to be, or shall be construed as, a dedication to the public of the Community
Area or the Common Facilities. Declarant, the Corporation or the Association may,
however, dedicate or transfer all or any part of the Community Area or the Common
Facilities to any Permitted Title Holder for parks or other public purposes, to the City
of Carmel or the County of Hamilton for use as public rights-of-way or to a public
utility for public utility purposes, and Declarant may transfer all or any part of the
Community Area to a Permitted Title Holder as contemplated by this Declaration.
(b) Density of Use. Declarant expressly disclaims any warranties or
representations regarding the density of use of the Community Area or any facilities
located thereon or constituting a part thereof.
(c) Obligations of the C01llOration. The Corporation, subject to the rights
of Declarant, the Association and the Owners set forth in this Declaration and the
rights of any Permitted Title Holder established in an instrument conveying title to
any part of the Common Area, shall be responsible for the exclusive management and
control of the Community Area and all improvements thereon (including Common
Facilities and other furnishings and equipment related thereto), and, except as
otherwise provided herein, in a Supplemental Declaration, or in an instrument of
conveyance to a Permitted Title Holder, shall keep the Community Area and
Common Facilities in good, clean, attractive and sanitary condition, order and repair.
The Corporation may, with the consent of the Board of Directors of the Association,
transfer to the Association responsibility for managemen~, control and/or
maintenance of Community Area and Common Facilities located in the Village
Center.
(d) Easements of Enjoyment.
(i) Owners. No Person shall have any right or easement
of enjoyment in or to the Community Area except to the extent
granted by, and subject to the terms and provisions of, this
Declaration or a Supplemental Declaration. Such rights and
easements as are thus granted shall be appurtenant to and shall pass
with the title to every Lot for whose benefit they are granted. Unless
otherwise provided in a Supplemental Declaration or a Plat, all
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Owners may use the Paths, the Village Community Buildings, the
Parks and the Commons and the Site Furniture and Facilities located
thereon or therein, subject to the reserved rights of Declarant, the
Corporation and the Association. The Owners of Lots abutting the
Lake or a Pond may use the Lake or Pond which abuts such Owner's
Lot, but such use shall be limited to fishing and such other uses as
may be authorized by resolution adopted by the Board of Directors.
Subject to restrictions on points of access, the Lake and the Ponds
may be used by all Owners, but only for fishing and such other
purposes as may be authorized by the Board of Directors. No Owner
whose Lot does not abut the Lake or a Pond shall have any right of
access to the Lake or a Pond over any Lot, but only such right of
access over the Community Area as may be designated on a Plat or
by the Board of Directors for such purpose.
(ii) Occu~ants. Occupants who are not also Owners may
use and enjoy the Community Area only to the extent specified in
subparagraph (t) or as explicitly authorized elsewhere in this
Declaration, in a Supplemental Declaration or by the Board of
Directors. Occupants shall have the same rights as Owners to the use
of the Paths, the Village Community Buildings, the Parks and the
Commons except that the Board of Directors may restrict or preclude
the use of the Recreation Centers by Occupants of Commercial Units
and Multifamily Structures ifno part of the Maintenance Costs of the
Recreation Centers are assessed to Owners of Commercial Units or
Multifamily Structures. To the extent Owners of Lots that do not
abut the Lake or a Pond are granted rights of access to the Lake or a
Pond over Community Area designated for that purpose, Occupants
(other than Occupants of Commercial Units) shall enjoy the same
rights. In the adoption of rules and regulations relating to the use of
Community Area and Common Facilities, the Board of Directors of
the Corporation or Association, as applicable, shall not discriminate
against Occupants of Multifamily Structures or of Living Units
located in Multiuse Structures but may restrict or preclude use of the
Recreation Centers by such Occupants as heretofore provided.
(e) Extent of Easements. The easements of enjoyment created hereby
shall be subject to the following:
(i) the right of the Corporation and/or the Association to
establish reasonable rules for the use of the Community Area
(including but not limited to use of identification cards) and to charge
reasonable fees for the use of any meeting or banquet facilities (but
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not recreational facilities) located in or constituting a part of the
Community Area;
(ii) the right of the Corporation and/or the Association to
suspend the right of an Owner and all Persons whose right to use the
Paths, the Lake, the Ponds, the Village Community Buildings, the
Commons or the Parks derives from such Owner's ownership of a Lot
(including Occupants of the Lot) to use such portions of the
Community Area for any period during which any Assessment against
the Owner's Lot remains unpaid for more than thirty (30) days after
notice;
(iii) the right of the Corporation and/or the Association to
suspend the right of an Owner or any Person claiming through the
Owner (including Occupants of the Unit) to use the Paths, the Lake,
the Ponds, the Village Community Buildings, the Commons or the
Parks for a period not to exceed sixty (60) consecutive days for any
other infraction of this Declaration, any Supplemental Declaration or
the Register of Regulations; provided, however, that Occupants ofa
Multifamily Structure or Multiuse Structure who are not personally
responsible for the infraction and who otherwise have a right of use
shall not be denied such use as a consequence of an infraction by
another Occupant of such Multifamily Structure or Multiuse
Structure; provided, however, that a parent may be deemed personally
responsible for the infraction of a minor;
(iv) the rights of the holder of any Common Area Secured
Indebtedness;
(v) the right of the Corporation to mortgage any or all of
the Community Area, the facilities constructed thereon and the
Common Facilities for the purposes of improvements to, or repair of,
the Community Area, the facilities constructed thereon or the
Common Facilities, pursuant to approval of a majority of the votes of
the Members voting in person or by proxy at a regular meeting of the
Corporation or a meeting duly called for this purpose;
(vi) the right of the Corporation to dedicate or transfer all
or any part of the Community Area and/or the Common Facilities to
any public agency, authority or utility exclusively for purposes
permitted herein, but subsequent to the Applicable Date no such
dedication or transfer shall be effective unless an instrument signed
by the appropriate officers of the Corporation acting pursuant to
authority granted by a majority of the votes of the Members present
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and voting at a duly constituted meeting of the Members, agreeing to
such dedication or transfer, has been recorded; and
(vii) the right of Declarant in any Supplemental
Declaration or Plat to restrict the use of Community Area and/or
Common Facilities located in a Section or Parcel to (a) Owners
and/or Occupants of Units, Multifamily Structures or Multiuse
Structures located in such Section or Parcel or (b) to other Owners of
less than all of the Lots in the Tract.
(f) Additional Rights of Use. The members of the family of every Person
who has a right of enjoyment to all or part of the Community Area and the Common
Facilities may use the Community Area and the Common Facilities (or part thereof)
on the same terms and subject to the same limitations as such Person subject to the
terms of any instrument of conveyance of such Community Area or Common
Facilities to a Permitted Title Holder and to such general regulations consistent with
the provisions of this Declaration and all Supplemental Declarations as may be
established from time to time by the Corporation and/or the Association and included
within the Register of Regulations. Except as otherwise provided herein or in a
Supplemental Declaration, the Corporation or the Association may restrict use of the
Community Area and Common Facilities by guests of Persons whose use thereof is
authorized herein.
(g) Dama~e or Destruction by Owner. In the event the Community Area
or any Common Facility is damaged or destroyed by an Owner or any of his guests,
tenants, licensees, agents, or member of his family, such Owner authorizes the
Corporation to repair said damaged area and the Corporation shall repair said
damaged area in a good workmanlike manner in conformance with the original plans
and specifications of the area involved, or as the area may have been modified or
altered subsequently by the Corporation in the discretion of the Corporation. An
amount equal to the costs incurred to effect such repairs shall be assessed against
such Owner as a Special Assessment and shall constitute a lien uppn the Lot of said
Owner.
(h) Conveyance of Title. Declarant may retain the legal title to the
Community Area and the Common Facilities until the Applicable Date, but
notwithstanding any provision herein, the Declarant hereby covenants that it shall
convey such of the Lake, the Ponds, the Private Drives (exclusive of alleys), the
Village Community Buildings, the Parks, the Commons and the Common Facilities
which Declarant acquires, develops or constructs and such other of the Community
Area to which Declarant holds title to a Permitted Title Holder, free and clear of all
liens and other financial encumbrances exclusive of liens securing Community Area
Secured Indebtedness and the lien for taxes not yet due and payable, not later than the
Applicable Date.
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22. Use of Tract.
(a) Protective Covenants.
(i) Land Use. Lots may be used only for the purposes
authorized by the Zoning Ordinance.
(ii) Nuisances. No nuisance shall be permitted to exist or
operate upon any Lot so as to be detrimental to any other Lot in the
vicinity thereof or to its occupants.
(iii) Other Restrictions. Declarant may impose additional
Restrictions in any Plat, Supplemental Declaration, Building
Guidelines or other written instrument notice of which is given to
Owners. In addition, the Architectural Review Board may adopt
general rules and regulations to implement the purposes set forth in
Paragraph 20(b) and/or to supplement any covenants or restrictions
set forth in a Supplemental Declaration or the Building Guidelines,
includin~ but not limited to rules to regulate animals, antennas, signs,
fences, walls and screens, mailboxes, exterior light fixtures, storage
tanks, awnings, storage and use of recreational vehicles, storage and
use of machinery, use of outdoor drying lines, recreational facilities,
trash containers, and planting, maintenance and removal of vegetation
on the Tract. The Architectural Review Board may adopt general
rules and regulations appropriate to each Parcel (other than the
Village Center Parcel), which rules and regulations may vary among
Parcels. Such general rules may be amended by a two-thirds (2/3)
vote of the Architectural Review Board. Subsequent to the
Applicable Date, any such amendment may be made only after a (
public hearing for which due notice to all affected Owners has been
provided, and if such amendments are approved by a two-thirds (2/3)
vote of the Board of Directors. All general rules and any subsequent
amendments thereto shall be placed in the Register of Regulations
and shall constitute Restrictions.
(iv) Exce.ptions. The Architectural Review Board may
authorize exceptions to or variances from the general rules and
regulations adopted pursuant to clause (iii) if the Architectural
Review Board can show good cause and acts in accordance with
adopted guidelines and procedures.
(b) Maintenance of Tract. To the extent that exterior maintenance is not
provided for in a Supplemental Declaration, each Owner shall keep all Residential
Lots owned by the Owner, and all improvements therein or thereon, in good order
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and repair and free of debris including, but not limited to, the seeding, watering, and
mowing of all lawns, the pruning and cutting of all trees and shrubbery and the
painting (or other appropriate external care) of all buildings and other improvements,
all in a manner and with such frequency as is consistent with good property
management as determined by the Architectural Review Board. In the event an
Owner of any Residential Lot in the Tract shall fail to maintain the premises and the
improvements situated thereon, as provided herein, the Corporation, after notice to
the Owner as provided by the By-Laws and approval by two-thirds (2/3) vote of the
Board of Directors, shall have the right to enter upon said Lot to correct drainage and
to repair, maintain and restore the Lot and the exterior of the buildings and any other
improvements erected thereon. All costs related to such correction, repair or
restoration shall become a Special Assessment upon such Lot.
23. Easements.
(a) Plat Easements. In addition to such easements as are created
elsewhere in this Declaration or in a Supplemental Declaration and as may be created
by Declarant pursuant to other written instruments recorded in the office of the
Recorder of Hamilton County, Indiana, Lots are subject to drainage easements, sewer
easements, utility easements, entry way easements, landscape easements, water
access easements, community area access easements, pathway easements and
nonaccess easements, either separately or in any combination thereof, as shown on
the Plats, which are reserved for the use of Declarant, Owners, the Corporation, the
Architectural Review Board, public utility companies and governmental agencies as
follows:
(i) Drainaf:e Easements (DE) are created to provide paths
and courses for area and local storm drainage, either overland or in
adequate undergrOUnd conduit, to serve the needs of WestClay and
adjoining ground and/or public drainage systems; and it shall be the
individual responsibility of each Owner to maintain the drainage
across his own Lot. Under no circumstance shall said easement be
blocked in any manner by the construction or reconstruction of any
improvement, nor shall any grading restrict, in any manner, the
waterflow. Said areas are subject to construction or reconstruction to
any extent necessary to obtain adequate drainage at any time by any
governmental authority having jurisdiction over drainage, by
Declarant, and by the Architectural Review Board, but neither
Declarant nor the Architectural Review Board shall have any duty to
undertake any such construction or reconstruction. Said easements
are for the mutual use and benefit of the Owners.
(ii) Sewer Easements (SE) are created for the use of the
local governmental agency having jurisdiction over any storm and
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sanitary waste disposal system which may be designed to serve
WestClay for the purpose of installation and maintenance of sewers
that are a part of said system.
(iii) Utility Easements (DE) are created for the use of
Declarant, the Corporation, the Association and all public or
municipal utility companies, not including transportation companies,
for the installation and maintenance of mains, ducts, poles, lines,
wires and other facilities, as well as for all uses specified in the case
of sewer easements.
(iv) Entry Way Easements (EWE) are created for the use
by Declarant, the Architectural Review Board, the Corporation and
the Association for the installation, operation and maintenance of the
Entry Ways.
(v) Landscape Easements (LE) are created for the use by
Declarant, the Architectural Review Board, the Corporation and the
Association for the planting and maintenance of trees, shrubs and
other plantings.
(vi) Water Access Easements (W AE) are created for the
use of Declarant, the Corporation, the Association and the Drainage
Board for the purpose of gaining access to the Lake and the Ponds in
the course of maintenance, repair or replacement of any thereof.
(vii) Community Area Access Easements (CAE) are created
for the use of Declarant, the Corporation and the Association for the
purpose of gaining access to the Parks and the Commons in the
course of maintenance, repair or replacement thereof and for the use
of Owners for the purpose of gaining access to such Community Area
to enjoy the use thereof to the extent authorized herein or in a
Supplemental Declaration.
(viii) Pathway Easements (PE) are created for the
installation by Declarant, the maintenance by the Corporation and the
use by the Owners of the Paths and Path Lights.
(ix) Non-Access Easements (NAE) are created to preclude
access from certain Lots to abutting rights-of-way across the land
subject to such easements.
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(x) Alley Easements (AE) are created to afford public
access over Private Drives to the rear or side of Lots and for all uses
specified in the case of utility easements.
All easements mentioned herein include the right of reasonable ingress and egress for
the exercise of other rights reserved. No structure, including fences, shall be built on
any drainage, sewer or utility easement if such structure would interfere with the
utilization of such easement for the purpose intended or violate any applicable legal
requirement or the terms and conditions of any easement specifically granted to a
Person who is not an Owner by an instrument recorded in the Office of the Recorder
of Hamilton County, Indiana, but a paved driveway necessary to provide access to
a Lot from a public street or Private Drive and a sidewalk installed by or at the
direction of Declarant (and replacements thereof) shall not be deemed a "structure"
for the purpose of this Restriction.
(b) General Easement. There is hereby created a blanket easement over,
across, through and under the Tract for ingress, egress, installation, replacement,
repair and maintenance of underground utility and service lines and systems,
including but not limited to water, sewers, gas, telephones, electricity, television,
cable or communication lines and systems. By virtue of this easement it shall be
expressly permissible for Declarant or the providing utility or service company to
install and maintain facilities and equipment on the Tract and to excavate for such
purposes if Declarant or such company restores the disturbed area as nearly as is
practicable to the condition in which it was found. No sewers, electrical lines, water
lines, or other utility service lines or facilities for such utilities may be installed or
relocated in a Section or Parcel except as proposed and approved by Declarant prior
to the Applicable Date or by the Architectural Review Board thereafter. Should any
utility furnishing a service covered by the general easement herein provided request
a specific easement by separate recordable document, Declarant or the Corporation
shall have the right to grant such easement on the Tract without conflicting with the
terms hereof. This blanket easement shall in no way affect any other recorded
easements on the Tract, shall be limited to improvements as originally constructed,
and shall not cover any portion of a Lot upon which a Unit, Multifamily Structure or
Multiuse Structure has been constructed or is proposed for construction pursuant to
a Lot Development Plan which has been approved by the Architectural Review Board
or the Design Review Board.
(c) Public Health and Safety Easements. An easement is hereby created
for the benefit of, and granted to, all police, fire protection, ambulance, delivery
vehicles, and all similar Persons to enter upon the Community Area in the
performance of their duties.
(d) Drainalle Board Easement. An easement is hereby created for the
benefit of, and granted to, the Drainage Board to enter the Tract and all Lots therein
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to the extent necessary to exercise its rights with respect to any legal drain
constituting a part of the Drainage System.
(e) Crossing Underground Easements. Easements utilized for
underground service may be crossed by driveways, walkways, Paths, Water Access
Easements and Community Area Access Easements provided prior arrangements are
made with the utility company furnishing service. Such easements as are actually
utilized for underground service shall be kept clear of all other improvements,
including buildings, decks, patios, or other pavings, other than crossings, driveways,
walkways, Paths, Water Access Easements or Community Area Access Easements,
and neither Declarant nor any utility company using the easements shall be liable for
any damage done by either of them or their assigns, agents, employees, or servants
to shrubbery, trees, flowers or other improvements of the Owner located on the land
covered by said easements.
(f) Declarant's Easement to Correct Drainage. For a period often (10)
years from the date of conveyance of the fIrst Lot in a Section or Parcel, Declarant
reserves a blanket easement and right on, over and under the ground within that
Section or Parcel to maintain and to correct drainage of surface water in order to
maintain reasonable standards of health, safety and appearance. Such right expressly
includes the right to cut any trees, bushes or shrubbery, make any gradings of the soil,
or to take any other similar action reasonably necessary, following which Declarant
shall restore the affected property to its original condition as nearly as practicable.
Declarant shall give reasonable notice of its intention to take such action to all
affected Owners, unless in the opinion of Declarant an emergency exists which
precludes such notice.
(g) Water Retention. The Owner of each Lot, by acceptance of a deed
thereto, consents to the temporary storage (detention) of storm water within the
drainage easements (DE) on such Owner's Lot.
24. Use of Lots During Development.
(a) By Declarant. Notwithstanding any provisions to the contrary
contained herein or in any other instrument or agreement, Declarant or its sales
agents or contractors, or any Designated Builder, may maintain during the period of
construction and sale or rental of Lots and Units in the Tract or the Development
Area, upon such portion thereof as is owned or leased by Declarant or any Designated
Builder, such facilities as in the sole opinion of Declarant may be reasonably
required, convenient or incidental to the construction, sale or rental of Lots and Units,
including, but without limiting the generality thereof, a business office, storage area,
construction yards, signs, model Units and sales or leasing offices. Declarant
specifically reserves the right to maintain a sales office in, and make other use of, the
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Village Community Buildings during the period that it is engaged in the sale of Lots
in WestClay.
(b) By Builders. Notwithstanding any provISIOns to the contrary
contained herein, a builder who has constructed a Living Unit in WestClay may, with
the prior consent of the Board of Directors, use such Living Unit as a "model" home
and may hold such home open to the public, either individually or as part of a "home
show" approved by the Board of Directors for such reasonable period as the Board
of Directors may specify. With the approval of Declarant and the consent of the
Owner thereof, undeveloped Lots adjacent to or in proximity to such model home
may be used for parking by visitors to such model home.
25. Enforcement. The Corporation, any Owner or Declarant shall have the right to
enforce, by proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens
and charges now or hereafter imposed by the provisions of this Declaration and of any Supplemental
Declarations, but neither Declarant nor the Corporation shall be liable for damage of any kind to any
Person for failure either to abide by, enforce or carry out any of the Restrictions. No delay or failure
by any Person to enforce any of the Restrictions or to invoke any available remedy with respect to
a violation or violations thereof shall under any circumstances be deemed or held to be a waiver by
that Person of the right to do so thereafter, or an estoppel of that Person to assert any right available
to him upon the occurrence, recurrence or continuation of any violation or violations of the
Restrictions. In any action to enforce this Declaration, the Person seeking enforcement shall be
entitled to recover all costs of enforcement, including attorneys' fees, if it substantially prevails in
such action.
26. Limitations on Ri~ts of the COI:poration. Prior to the Applicable Date, the
Corporation may not use its resources nor take a public position in opposition to the General Plan
of Development or to changes thereto proposed by Declarant. Nothing in this paragraph shall be
construed to limit the rights of the Members acting as individuals or in affiliation with other
Members or groups as long as they do not employ the resources of the Corporation or identify
themselves as acting in the name, or on the behalf, of the Corporation.
27. A.vprovals by Declarant. Notwithstanding any other provisions hereof, prior to the
Applicable Date, the following actions shall require the prior approval of Declarant: the addition
of real estate to the Tract; dedication or transfer of the Community Area; mergers and consolidations
of Sections or Parcels within the Tract or of the Tract with other real estate; mortgaging of the
Community Area; amendment of this Declaration or any Supplemental Declaration; changes in the
basis for assessment or the amount, use and time of payment of the Community Area Initial
Assessment; and the adoption or modification of Building Guidelines.
28. Mortgages.
(a) Notice to Cox:poration. Any Owner who places a first mortgage lien
upon his Unit, Multifamily Structure or Multiuse Structure or the Mortgagee shall
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notify the Secretary of the Board of Directors of such mortgage and provide the name
and address of the Mortgagee. A record of such Mortgagee's name and address shall
be maintained by the Secretary and any notice required to be given to the Mortgagee
pursuant to the terms of the Declaration, any Supplemental Declaration, the Articles
or the By-Laws (the "Organizational Docwnents") shall be deemed effectively given
if mailed to such Mortgagee at the address shown in such record in the time provided.
Unless notification of any such mortgage and the name and address of Mortgagee are
furnished to the Secretary, either by the Owner or the Mortgagee, no notice to any
Mortgagee as may be otherwise required by the Organizational Docwnents shall be
required and no Mortgagee shall be entitled to vote by virtue of the Organizational
Docwnents or a proxy granted to such Mortgagee in connection with the mortgage.
(b) Notices to Mort~a~ees. The Corporation shall promptly provide to
any Mortgagee of whom the Corporation has been provided notice under
subparagraph (a) above notice of any of the following:
(i) Any condemnation or casualty loss that affects a
material portion of the Community Area;
(ii) Any delinquency in the payment of any Assessment
owed by the Owner of any Unit, Multifamily Structure or Multiuse
Structure on which said Mortgagee holds a mortgage or any default
by an Owner under the Organizational Documents, if said
delinquency or default continues for more than sixty (60) days;
(iii) Any lapse, cancellation or material modification of any
insurance policy or fidelity bond maintained by the Corporation;
(iv) Any proposed action that requires the consent of a
specified percentage of Mortgagees; and,
(v) Any proposed amendment of the Organizational
Docwnents effecting a change in (A) the interests in the Community
Area appertaining to any Lot or the liability for Maintenance Costs
appertaining thereto, (8) the vote appertaining to a Lot or (C) the
purposes for which any Lot or the Community Area are restricted.
(c) Notice of Un ,paid Assessments. The Corporation shall, upon request
of a Mortgagee, a proposed mortgagee, or a proposed purchaser who has a
contractual right to purchase a Lot, furnish to such mortgagee or purchaser a
statement setting forth the amount of the unpaid Assessments against the Lot and the
Owners, and any Mortgagee or grantee of the Lot shall not be liable for, nor shall the
Lot conveyed be subject to a lien for, any unpaid Assessments in excess of the
amount set forth in such statement.
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(d) Financial Statements. Upon the request of any Mortgagee, the
Corporation shall provide to said Mortgagee the most recent financial statement
prepared on behalf of the Corporation.
(e) Payments by Mortgagees. Any Mortgagee may (i) pay taxes or other
charges that are in default and that mayor have become a lien upon the Community
Area or any part thereof and (ii) pay overdue premiums on hazard insurance policies
or secure new hazard insurance coverage for the Community Area in case of a lapse
of a policy. A Mortgagee making such payments shall be entitled to immediate
reimbursement from the Corporation.
29. Amendments.
(a) Generally. Subject to subparagraphs (c) and (d), this Declaration may
be amended at any time by an instrument signed by (i) the appropriate officers of the
Corporation acting pursuant to the authority granted by not less than two-thirds (2/3)
of the votes of the Members cast at a meeting duly called for the purpose of
amending this Declaration and (ii), to the extent required by Paragraph 27, Declarant.
(b) By Declarant. Subject to subparagraph (c) but without regard to
subparagraphs (a) and (d), Declarant hereby reserves the right prior to the Applicable
Date unilaterally to amend and revise the standards, covenants and restrictions
contained in this Declaration or any Supplemental Declaration. Such amendments
shall be in writing, executed by Declarant, and recorded with the Recorder of
Hamilton County, Indiana No such amendment, however, shall restrict or diminish
the rights or increase or expand the obligations of Owners with respect to Lots
conveyed to such Owners prior to the amendment or adversely affect the rights and
interests of Mortgagees holding first mortgages on Lots at the time of such
amendment. Declarant shall give notice in writing to such Owners and Mortgagees
of any amendments. Except to the extent authorized in Paragraph 23(b), Declarant
shall not have the right at any time by amendment of this Declaration or any
Supplemental Declaration to grant or establish any easement through, across or over
any Lot which Declarant has previously conveyed without the consent of the Owner
of such Lot.
(c) Approval by Zoning Authority. No amendment which would
eliminate, waive or qualify a requirement set forth herein for the consent of or
approval by the Zoning Authority shall be effective unless approved in writing by the
Zoning Authority.
(d) Class ApJlroval. No amendment which would limit or impair the
rights granted herein or in any Supplemental Declaration to, or add to the burdens
imposed by this Declaration or any Supplemental Declaration on, the Owners of
Commercial Units, Multifamily Structures or Multiuse Structures (or any Units
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therein) and no amendment to Paragraphs 18, 19, 21(d), (e) or (f) or this Paragraph
29 shall be effective unless approved by not less than fifty-one percent (51 %) of the
Owners of Commercial Units, Multifamily Structures and Multiuse Structures (and,
all Units therein).
(e) Effective Date. Any amendment shall become effective upon its
recordation in the Office of the Recorder of Hamilton County, Indiana.
30. Intex:pretation. The underlined titles preceding the various paragraphs and
subparagraphs of this Declaration are for convenience of reference only, and none of them shall be
used as an aid to the construction of any provision of this Declaration. Wherever and whenever
applicable, the singular form of any word shall be taken to mean or apply to the plural, and the
masculine form shall be taken to mean or apply to the feminine or to the neuter.
31. Duration. The foregoing covenants and restrictions are for the mutual benefit and
protection of the present and future Owners, the Corporation, and Declarant, and shall run with the
land and shall be binding on all parties and all Persons claiming under them until January 1,2030,
at which time said covenants and restrictions shall be automatically extended for successive periods
of ten (10) years, unless changed in whole or in part by vote of those Persons who are then the
Owners of a majority of the Lots in the Tract.
32. Severability. Every one of the Restrictions is hereby declared to be independent of,
and severable from, the rest of the Restrictions and of and from every other one of the Restrictions,
and of and from every combination of the Restrictions. Therefore, ifany 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.
33. Non-Liability of Declarant. Declarant shall not have any liability to an Owner,
Occupant or any other Person with respect to drainage on, over or under a Lot or erosion of a Lot.
Such drainage and erosion control shall be the responsibility of the Owner of the Lot upon which a
Unit, Multifamily Structure or Multiuse Structure is constructed and of the builder of such Unit,
Multifamily Structure or Multiuse Structure and an Owner, by an acceptance of a deed to a Lot, shall
be deemed to agree to indemnify and hold Declarant free and harmless from and against any and all
liability arising from, related to, or in connection with the erosion of or drainage on, over and under
the Lot described in such deed. Declarant shall have no duties, obligations or liabilities hereunder
except such as are expressly assumed by Declarant, and no duty of, or warranty by, Declarant shall
be implied by or inferred from any term or provision of this Declaration.
34. Com'pliance with the Soil Erosion Control Plan.
(a) The Plan. Declarant has established and implemented an erosion
control plan pursuant to the requirements and conditions of Rule 5 of327 lAC 15,
Storm Water Run-Off Associated with Construction Activity. In connection with any
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construction activity on a Lot by an Owner, its contractor or the subcontractors of
either, Owner shall take or cause to be taken all erosion control measures contained
in such plan as the plan applies to "land disturbing activity" undertaken on a Lot and
shall comply with the terms of Declarant's general permit under Rule 5 as well as all
other applicable state, county or local erosion control authorities. All erosion control
measures shall be performed by personnel trained in erosion control and shall meet
the design criteria, standards, and specifications for erosion control measures
established by the Indiana Department of Environmental Management in guidance
documents similar to, or as effective as, those outlined in the Indiana Handbook for
Erosion Control in Developing Areas from the Division of Soil Conservation, Indiana
Department of Natural Resources.
(b) Indemnity. The Owner of each Lot shall indemnify and hold
Declarant harmless from and against all liability , damage, loss, claims, demands and
actions of any nature whatsoever which may arise out of or are connected with, or are
claimed to arise out of or be connected with, any work done by such Owner, its
contractor and their respective employees, agents, or subcontractors which is not in
compliance with the erosion control plan implemented by the Declarant.
35. Annexation. Each Owner, by the acceptance of a deed to a Lot, consents to the
annexation of the Tract to the City of Carmel and agrees not to remonstrate against any proposal for
such annexation.
36. Exclusive Builders. Declarant reserves the absolute right prior to the Applicable Date
to restrict construction of Units in WestClay to builders who have been approved by Declarant, such
approval to be granted or withheld. in the absolute discretion of Declarant. Notwithstanding the
purchase of a Lot by an Owner, such Owner may not cause or authorize any Person to construct a
Unit on the Lot other than a builder who has been approved in writing by Declarant.
IN TESTIMONY WHEREOF, Declarant has executed this Declaration as of the date set
forth above.
BRENWICK TND COMMUNITIES, LLC
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STATE OF INDIANA )
) SS:
COUNTY OF HAMIL TON )
Before me, the undersigned, a Notary Public in and for said County and State, personally
appeared Tom Charles Huston, a Co-Manager of Brenwick TND Communities, LLC, an Indiana
limited liability company, who acknowledged the execution of the above and foregoing Declaration
of Covenants and Restrictions for and on behalf of said company.
WITNESS my hand and Notarial Seal this --2..t&y of August, 1999.
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YJl~ in. ~
Notary Public Residing in Hendrick€ounty
M3.y 24, 2007
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My Commission Expires:
This instrument prepared by Tom Charles Huston, Attorney at Law, II South Meridian Street, Suite
1313, Indianapolis, Indiana 46204.
INDSO ITCH 330448
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DECLARATION OF COVENANTS AND RESTRICTIONS
EXHIBIT A
DESCRIPTION OF DEVELOPMENT AREA
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EXHIBIT A
Description of the Development Area
The Southwest quarter of Section 28, part of the Southeast quarter of Section 29 and part of the
Northwest and Southwest quarters of Section 33 all in Township 18 North, Range 3 East of
Hamilton County, Indiana, and being described as follows:
Beginning at the Northeast corner of the Southwest quarter of said Section 28; thence on an
assumed bearing of South 00 degrees 01 minutes 09 seconds West along the East line of said
Southwest quarter a distance of 503.75 feet; thence North 89 degrees 29 minutes 11 seconds East
a distance of 605.93 feet; thence North 00 degrees 15 minutes 45 seconds East a distance of
506.25 feet to a point of the North line of the Southeast Quarter of said Section 28 distant 608.11
feet east of the Northwest corner thereof; thence North 89 degrees 15 minutes 12 seconds East
along said North line a distance of2069.03 feet to the Northeast corner of said Southeast
Quarter; thence South 00 degrees 07 minutes 17 seconds West along the East line of said
Southeast Quarter a distance of2630.92 feet to the Southeast corner of said Southeast Quarter;
thence South 89 degrees 23 minutes 24 seconds West along the South line of said Southeast
Quarter a distance of2672.37 feet to the Northeast corner of the Northwest Quarter of said
Section 33; thence South 00 degrees 20 minutes 16 seconds East along the East line of the
Northwest quarter of Section 33 a distance of 2632.1 0 feet to the Southeast comer thereof; thence
South 00 degrees 23 minutes 56 seconds East along the East line of the Southwest quarter of said
Section 33 a distance of 490.67 feet; thence South 89 degrees 20 minutes 46 seconds West
parallel with the North line of said Southwest quarter a distance of 1331.44 feet to the West line
of the East half of said Southwest quarter; thence North 00 degrees 25 minutes 30 seconds West
along said West line a distance of 442.67 feet to a point distant 48.00 feet South from the
Northwest corner of said half-quarter; thence South 89 degrees 20 minutes 46 seconds West
parallel with the North line of said Southwest quarter a distance of 1331.64 feet to the West line
of said Southwest quarter; thence North 00 degrees 27 minutes 03 seconds West along said West
line a distance of 48.00 feet to the Northwest comer of said Southwest quarter; thence North 00
degrees 27 minutes 13 seconds West along the West line of the Northwest quarter of Section 33 a
distance of 1281.55 feet; thence North 89 degrees 20 minutes 46 seconds East parallel with the
South line of said Northwest quarter a distance of 1332.95 feet to the West line of the East half of
said Northwest quarter; thence North 00 degrees 23 minutes 44 seconds West along said West
line a distance of 1348.18 feet to the Northwest corner thereof; thence South 89 degrees 14
minutes 42 seconds West along the South line of the Southwest quarter of Section 28 a distance
of 1334.33 feet to the southwest comer thereof; thence South 88 degrees 51 minutes 10 seconds
West along the South line of the Southeast quarter of Section 29 a distance of 1351.40 feet to a
point hereinafter referred to as Point A; thence North 01 degrees 08 minutes 50 seconds West a
distance of 8.00 feet; thence North 52 degrees 30 minutes 24 seconds East a distance of 14.45
feet; thence North 22 degrees 52 minutes 44 seconds East a distance of27.27 feet; thence North
00 degrees 36 minutes 26 seconds West a distance of 1453.10 feet; thence South 89 degrees 13
minutes 03 seconds West a distance of 107.69 feet; thence North 00 degrees 00 minutes 53
seconds West a distance of 1138.44 feet to the North line of said Southeast quarter; thence North
89 degrees 13 minutes 03 seconds East along said North line a distance of 1443.58 feet to the
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Northeast corner thereof; thence North 89 degrees 14 minutes 59 seconds East along the North
line of the Southwest quarter of Section 28 a distance of 2678.68 feet to the Point of Beginning.
Containing 534.984 acres, more or less.
Also, Part of the Northwest and the Northeast Quarters of Section 28, Township 18 North, Range
3 East of the Second Principal Meridian, Hamilton County described as follows:
Beginning at a railroad spike at the southwest comer of the east half of the northwest quarter;
thence North 00 degrees 00 minutes 08 seconds West along the west line of said half quarter
2631.74 to the northwest comer thereof; thence North 89 degrees 15 minutes 26 seconds East
along the north line of the Northwest Quarter 693.79 feet to a railroad spike at the northwest
comer of a tract of land described in a deed to Stumm, et ai, and recorded as instrument number
9601331 in the Office of the Recorder of Hamilton County; thence South 00 degrees 02 minutes
24 seconds East along the west line thereof and along the west line of a tract of land described in
a deed to Smith, recorded in Deed Book 154 page 17 a distance of660.00 feet to a 5/8"x30"
rebar with yellow plastic cap marked "SCHNEIDER ENG FIRM #0001" (hereinafter referred to
as "REBAR/CAP") at the southwest comer of said Smith tract; thence North 89 degrees 15
minutes 26 seconds East along the south line thereof and along the south line of a tract of land
described in a deed to Toll, recorded in Deed Book 310 page 838 a distance of 594.00 to a
REBAR/CAP at the southeast comer of said Toll tract; thence North 00 degrees 02 minutes 24
seconds West along the east line thereof 329.99 feet to a REBAR/CAP on the westerly extension
of the south line ofa tract of land described in a deed to Sullivan, recorded in Deed Book 327
page 646; thence North 89 degrees 14 minutes 34 seconds East along said extension and said
south line 211.43 to a REBAR/CAP at the southeast comer thereof; thence North 00 degrees 03
minutes 50 seconds West along the east line thereof 330.00 feet to a railroad spike on the north
line of the Northeast Quarter; thence North 89 degrees 14 minutes 34 seconds East along said
north line 120.00 feet to a railroad spike at the northwest comer of a tract ofland described in a
deed to Stumm, recorded in Deed Book 281 page 412; thence South 00 degrees 03 minutes 50
seconds East along the west line thereof 330.00 feet to a REBAR/CAP at the southwest comer
thereof; thence North 89 degrees 14 minutes 34 seconds East parallel with the north line of the
Northeast Quarter 1056.00 feet to the southeast comer of a tract of lanEl described in a deed to
Frederick, recorded as instrument number 9545201, and on the east line of the west half of the
Northeast Quarter; thence South 00 degrees 03 minutes 50 seconds East along said east line
2030.77 feet to the northeast comer of a tract of land described in a deed to Lasher, recorded as
instrument number 9213826; thence South 89 degrees 15 minutes 12 seconds West along the
north line thereof 130.00 feet to a REBAR/CAP at the northwest comer thereof; thence South 00
degrees 03 minutes 50 seconds East along the west line of said Lasher tract 271.00 feet to a
railroad spike on the south line of the Northeast Quarter; thence South 89 degrees 15 minutes 12
seconds West along the south line of said quarter 365.00 feet to the a railroad spike at the
southeast comer of a tract of land described in a deed to Frank, recorded in Deed Book 163 page
280; thence North 00 degrees 04 minutes 33 seconds West 330.00 feet to the southeast comer of
a tract of land described in a deed to Pierson, recorded as instrument number 9364918; thence
North 01 degrees 13 minutes 35 seconds East along the east line thereof 60.44 feet to a
REBAR/CAP, thence the following thirteen (13) courses along the lines of said tract, nine (9) of
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which are also along Elliott Creek; (1) North 27 degrees 36 minutes 44 seconds West 177.33
feet; (2) North 17 degrees 26 minutes 49 seconds West 57.75 feet; (3) North 06 degrees 33
minutes 38 seconds East 59.39 feet~ (4) North 88 degrees 53 minutes 52 seconds West 380.61
feet; (5) North 54 degrees 23 minutes 18 seconds West 158.25 feet; (6) North 32 degrees 36
minutes 31 seconds West 96.43 feet; (7) North 08 degrees 48 minutes 39 seconds West 159.88
feet; (8) North 36 degrees 36 minutes 53 seconds West 43.86 feet; (9) North 56 degrees 59
minutes 39 seconds West 141.03 feet; (10) South 00 degrees 49 minutes 57 seconds East 725.49
feet~ (11) South 73 degrees 29 minutes 19 seconds East 139.54 feet; (12) North 89 degrees 15
minutes 15 seconds East 50.00 feet; (13) South 01 degrees 00 minutes 58 seconds East 356.12
feet to a railroad spike on the south line of the Northeast Quarter; thence South 89 degrees 15
minutes 1 ~ seconds West along the south line thereof 222.21 feet to a Stone in two boxes 1.2 feet
down at the southwest comer of the Northeast Quarter; thence South 89 degrees 14 minutes 59
seconds West along the south line of the Northwest Quarter 1339.34 feet to the Point of
Beginning. Containing 130.021 acres, more or less.
Also, part of the Southeast Quarter of said Section 29 being described as follows:
Commencing at the aforesaid Point A on the South line of said Southeast quarter; thence South
88 degrees 51 minutes 10 seconds West along said South line a distance of 627.23 feet to the
Point of Beginning at the Southwest comer of the land described in a deed to Wendy Fortune
(Instrument Number 8915090, Office of the Recorder of Hamilton County, Indiana); thence
continuing South 88 degrees 51 minutes 10 seconds West along said South line a distance of
668.05 feet to the Southwest comer of said Southeast quarter; thence North 00 degrees 24
minutes 33 seconds West along the West line of said Southeast quarter a distance of 1437.39 feet
to a point distant 1203.96 feet South of the Northeast comer thereof; thence North 88 degrees 29
minutes 35 seconds East a distance of 658.94 feet to a westerly comer of the aforesaid Fortune
tract; thence South 00 degrees 46 minutes 26 seconds East along the West line thereof a distance
of 1441.43 feet to the Point of Beginning. Containing 21.923 acres, more or less.
Containing, in all, 686.928 acres, more or less.
\\SEC_INDY\DA TAUOBS\1238\O01 \DOCS\OAOPT A.doc
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DECLARATION OF COVENANTS AND RESTRICTIONS
EXHIBIT B
GENERAL PLAN OF DEVELOPMENT
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DECLARATION OF COVENANTS AND RESTRICTIONS
EXIDBIT C
DESCRIPTION OF THE TRACT
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EXHIBIT C
DESCRIPTION OF THE TRACT
(Griffin, Rice, Perez and Szynal Land)
The Southwest quarter of Section 28, part of the Southeast quarter of Section 28 and part of the
Northwest and Southwest quarters of Section 33 all in Township 18 North, Range 3 East of Clay
Township, Hamilton County, Indiana, and being described as follows:
Beginning at the Northeast comer of the Southwest quarter of said Section 28; thence on an
assumed bearing of South 00 degrees 01 minutes 09 seconds West along the East line of said
Southwest quarter a distance of 503.75 feet; thence North 89 degrees 29 minutes II seconds East
a distance of605.93 feet; thence North 00 degrees 15 minutes 45 seconds East a distance of
506.25 feet to a point of the North line of the Southeast Quarter of said Section 28 distant 608.11
feet east of the Northwest comer thereof; thence North 89 degrees 15 minutes 12 seconds East
along said North line a distance of 2069.03 feet to the Northeast comer of said Southeast
Quarter; thence South 00 degrees 07 minutes 17 seconds West along the East line of said
Southeast Quarter a distance of 2630.92 feet to the Southeast comer of said Southeast Quarter;
thence South 89 degrees 23 minutes 24 seconds West along the South line of said Southeast
Quarter a distance of2672.37 feet to the Northeast comer of the Northwest Quarter of said
Section 33; thence South 00 degrees 20 minutes 16 seconds East along the East line of the
Northwest quarter of Section 33 a distance of 2632.1 0 feet to the Southeast comer thereof; thence
South 00 degrees 23 minutes 56 seconds East along the East line of the Southwest quarter of said
Section 33 a distance of 490.67 feet; thence South 89 degrees 20 minutes 46 seconds West
parallel with the North line of said Southwest quarter a distance of 1331.44 feet to the West line
of the East half of said Southwest quarter; thence North 00 degrees 25 minutes 30 seconds West
along said West line a distance of 442.67 feet to a point distant 48.00 feet South from the
Northwest comer of said half-quarter; thence South 89 degrees 20 minutes 46 seconds West
parallel with the North line of said Southwest quarter a distance of 1331.64 feet to the West line
of said Southwest quarter; thence North 00 degrees 27 minutes 03 seconds West along said West
line a distance of 48.00 feet to the Northwest comer of said Southwest quarter; thence North 00
degrees 27 minutes 13 seconds West along the West line of the Northwest quarter of Section 33 a
distance of 1281.55 feet; thence North 89 degrees 20 minutes 46 seconds East parallel with the
South line of said Northwest quarter a distance of 1332.95 feet to the West line of the East half of
said Northwest quarter; thence North 00 degrees 23 minutes 44 seconds West along said West
line a distance of 1348.18 feet to the Northwest comer thereof; thence South 89 degrees 14
minutes 42 seconds West along the South line of the Southwest quarter of Section 28 a distance
of 1334.33 feet to the southwest comer thereof; thence North 00 degrees 32 minutes 45 seconds
East along the West line ofthe Southwest quarter of Section 28 a distance of 2624.94 feet to the
Northwest comer of the Southwest quarter of Section 28; thence North 89 degrees 14 minutes 59
seconds East along the North line of the Southwest quarter of Section 28 a distance of2678.68
feet to the Point of Beginning. Containing 451.608 acres, more or less.
(J.Kreutz 08-09-99)
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199909949854
Filed for Record in
HAMILTON COUNTY, INDIANA
MARY L CLARK
On 08-23-1999 At 01:4& pm.
AMEND DECLA 12.00
FIRST AMENDMENT
TO
DECLARATION OF COVENANTS AND RESTRICTIONS
OF
THE VILLAGE OF WESTCLA Y
THIS FIRST AMENDMENT to that certain Declaration of Covenants and Restrictions of
the Village of West Clay dated as of August 9, 1999 (the "Declaration"), is executed as of the 17th
day of August, 1999, by Brenwick TND Communities, LLC, ("Declarant"), who by the execution
hereof, hereby declares that:
1. Recitals. The following facts are true:
W The Declaration was recorded in the Office of the
Recorder of Hamilton County, Indiana, on August 9, 1999, as
Instrument No. 9946964..
(b) Declarant has the right unilaterally to amend and
revise the Declaration pursuant to the provisions of Paragraph 29(b )
of the Declaration.
(c) Declarant desires to restate Paragraph 12(a) of the
Declaration.
2. Amendments. Paragraph 12(a) of the Declaration is amended to read as follows:
(a) Maintenance of Private Drives (Exclusive of Allevs).
Unless otherwise provided in a Supplemental Declaration, each
Private Drive (exclusive of alleys) shall be owned by the Corporation
and maintained by the Corporation in good condition satisfactory for
the purpose for which it was constructed. The Maintenance Costs
incurred by the Corporation in maintaining a Private Drive (other
than a Frontage Place) shall be assessed against all Lots whose
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principal means of vehicular access to a public right-of-way or to the
Village Center is over and across such Private Drive. The
Maintenance Costs for Frontage Places shall be assessed as a General
Assessment against all Lots subject to assessment. As used herein,
"Frontage Place" has the meaning set forth in Section 3 of the Zoning
Ordinance except that for purposes of this Declaration it shall include
private streets separated from a publicly maintained street by an
"eyebrow" median. Estimated Maintenance Costs, including a
contribution to a reserve fund for future maintenance, repair and
replacement of Private Drives, shall be included in each annual
budget of the Corporation adopted pursuant to Paragraph 19(1).
3. Effective Date. The foregoing amendment shall be effective as of the date this First
Amendment is recorded in the Office of the Recorder of Hamilton County, Indiana.
IN WITNESS WHEREOF, this First Amendment has been executed as of the date first above
written.
BRE
Tom Charles Huston, Co-Manager
By
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public in and for said County and State, personally appeared Tom
Charles Huston, a Co-Manager ofBrenwick TND Communities, LLC, an Indiana limited liability
company, who acknowledged the execution of the foregoing "First Amendment to Declaration of
Covenants and Restrictions" for and on behalf of said limited liability company.
WITNESS my hand and Notarial Seal this 17th daf)f~ Aust, 1999~ . .... '~":'~':-:"~.":'~"';:
. ~ ..~: / '''', '.
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Von.Leigh Wilson, Notary Public R~.id',. ;/ j ~
Manon County ., ...... :) ../ "
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My Commission Expires: August 13,2006
This instrument prepared by (and should be returned to) Tom Charles Huston, Attorney at Law,
11 S. Meridian Street, Suite 1313, Indianapolis, Indiana 46204.
INDSOI TCH 334642
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!
SECOND AMENDMENT
TO
DECLARA nON OF COVENANTS AND RESTRICTIONS
OF
THE VILLAGE OF WESTCLA Y
199909971389
Filed for Record in
HAMILTON COUNTY, INDIANA
MARY L CLARK
On 12-13-1999 At 03:24 pm.
AMEND DECLA 12.00
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THIS SECOND AMENDMENT to that certain Declaration of Covenants and Restrictions of the
Village of West Clay dated as of August 9, 1999 (the "Declaration"), is executed as of the 1st day of
December, 1999, by Brenwick TND Communities, LLC, ("Declarant"), who by the execution
hereof, hereby declares that:
I. Recitals. The following facts are true:
(a) The Declaration was recorded in the Office of the Recorder of Hamilton
County, Indiana, on August 9, 1999, as Instrument No. 9946964, and was
amended by the First Amendment thereto recorded on August 23, 1999, as
Instrument No. 199909949854.
(b) Declarant has the right unilaterally to amend and revise the Declaration
pursuant to the provisions of Paragraph 29(b) of the Declaration.
(c) Declarant desires to clarify certain responsibilities of the Corporation set
forth in the Declaration.
2. Amendments. The Declaration is amended as follows:
(a) The following is added to Paragraph 18 (h):
The required public liability insurance shall include coverage insuring the
Corporation, the Board of Commissioners of Hamilton County, Indiana and
the Hamilton County Drainage Board (and, in the event of annexation of the
Tract, the Board of Public Works of the City of Carmel), against claims
resulting from injury to person or loss of life as a consequence of the design,
construction and/or maintenance of those ponds whose banks have been
improved by a retaining wall or edge of bank treatment, such insurance to
afford aggregate coverage (primary and umbrella) in an amount not less than
Seven Million Dollars ($7,000,000.00), adjusted, subsequent to the
Applicable Date, for inflation. A certificate of insurance evidencing such
coverage shall be provided annually to the Hamilton County, Indiana
Auditor.
(b) The following is added to Paragraph 19(1)(3):
The annual budget shall also include such amount as may be required to pay
the premiums on the public liability insurance required to be maintained by
the Corporation pursuant to Paragraph 18(h).
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3. Effective Date. The foregoing amendment shall be effective as of the date this First
Amendment is recorded in the Office of the Recorder of Hamilton County, Indiana.
IN WITNESS WHEREOF, this First Amendment has been executed as of the date first above
written.
BRENWICK TND COMMUNI
BYC
Tom Charles Huston, Co-Mana
STATE OF INDIANA )
) SS
COUNTY OF HAMILTON )
Before me, a Notary Public in and for said County and State, personally appeared Tom Charles
Huston, a Co-Manager of Brenwick TND Communities, LLC, an Indiana limited liability
company, who acknowledged the execution of the foregoing "First Amendment to Declaration of
Covenants and Restrictions" for and on behalf of said limited liability company.
.,..... ...~~~
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WITNESS my hand and Notarial Seal this JJ~ day of December, 1999.
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Marie M. Urick, Notary Public Residing in
Hendricks County
My Commission Expires: May 24, 2007
This instrument prepared by (and should be returned to) Tom Charles Huston, Attorney at
Law, 11 South Meridian Street, Suite 1313, Indianapolis, Indiana 46204.
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[\: .' ':;..::, L:.;,,,,\r
200000006007
Filed for Record In
HAMILTON COUNTY, INDIANA
MARY L CLARK
On 02-07-2000 At 12:06 pm.
AMENDMENT 16.00
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THIRD AMENDMENT
TO
DECLARATION OF COVENANTS AND RESTRICTIONS
OF
THE VILLAGE OF WESTCLA Y
TIllS THIRD AMENDMENT to that certain Declaration of Covenants and Restrictions of
the Village of West Clay dated as of August 9, 1999 (the "Declaration"), is executed as of the 2"aY.
day of :r~"''lAo.7 . 2000, by Brenwick TND Communities, LLC, ("Declarant"), who by the
execution hereo , hereby declares that:
1. Recitals. The following facts are true:
(a) The Declaration was recorded in' the Office of the
Recorder of Hamilton County, Indiana, on August 9, 1999, as
Instrument No. 9946964.
(b) Declarant has the right unilaterally to amend and
revise the Declaration pursuant to the provisions of Paragraph 29(b)
of the Declaration.
2. Amendments. The Declaration is amended as follows:
(a) The definition of the term "Landscape Easement" in
Paragraph 1 is amended to read as follows:
"Landscape Easement" means a portion of a
Lot denoted on a Plat or described in a recorded
easement as an area to be landscaped.
(b) Paragraph 13(b) is amended by adding the following
sentence thereto:
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"The Corporation shall maintain (and replace as
appropriate) all fences installed by Declarant or the
Corporation in a Landscape Easement and the
Maintenance Costs thereof shall be assessed as a
General Assessment against all Lots subject to
assessment. "
(c)
follows:
Paragraph 19(b )(ii)(2)(B) IS amended to read as
(B) Each Commercial Lot upon which a
Multifamily Structure has been constructed shall be
assessed at a rate equitably determined by the Board
of Directors which takes into account the number of
Living Units located on the Lot and the rights of
Occupants of such Living Units to the use and
enjoyment of the Community Area. The General
Assessment for any such Lot shall not exceed the
product of (i) the number of Living Units located on
the Lot and (ii) fifty percent (50%) of the amount of
the General Assessment for Residential Lots
established on the basis set forth in Clause (1) above
if Occupants have a right to use the Recreation
Centers and the Village Community Buildings (the
''Maximum Assessment") or, if Occupants do not
have such right, twenty-five percent (25%) of the
General Assessment for Residential Lots (the
''Minimum Rate"). Owners ofMultifamily Structures
may elect to be assessed at the Minimum Rate by
delivering to the Corporation written notice thereof
and, in such event, Occupants of Multifamily
Structures owned by the Owners giving such notice
shall not have a right to use the Recreation Centers or
the Village Community Buildings. An Owner of a
Multifamily Structure may revoke such election by
giving to the Corporation written notice of revocation.
Following receipt by the Corporation of. notice of
revocation, the Owners giving such notice shall be
assessed at the Maximum Rate and the Occupants of
such Multifamily Structures may use the Recreation
Centers and the Village Community Buildings on the
basis set forth in Paragraph 21 (d)(ii). The Maximum
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Rate shall be deemed to include an amount allocable
to the Maintenance Costs of the Recreation Centers.
(d) The phrase "(0.0025%)" is deleted from Paragraph
19(d) of the Declaration, and "(0.25%)" is inserted in lieu thereof.
(e) Paragraph 23(a)(v) is amended to read as follows:
(v) Landscape Easements (LE) are created
for the use by Declarant, the Architectural Review
Board, the Design Review Board, the Corporation and
the Association for the planting and maintenance of
trees, shrubs and other plantings and the installation
and maintenance of fencing.
3. Effective Date. The foregoing amendment shall be effective as of the date this Third
Amendment is recorded in the Office of the Recorder of Hamilton County, Indiana.
IN WITNESS WHEREOF, this Third Amendment has been executed as of the date first
above written.
BRENWICK TND COMMUNITIES, LLC
Tom Charles Huston, Co-Manager
By
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STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public in and for said County and State, personally appeared Tom Charles Huston, a
Co-Manager of Brenwick TND Communities, LLC, an Indiana limited liability company, who acknowledged the
execution of the foregoing "Third Amendment to Declaration of Covenants and Restrictions" for and on behalf of
said limited liability company.
---
WITNESS my hand and Notarial Seal this ~ dae of .l..n"''''t~ . 2000. .. _
"'-- ~ ~~ ., .-<.":~-'---, .
V on Leigh Wilson, Notary Public Re~~,-~.' ~~~
County : ..~ \ .-\';}r././;
.(:) I.,
My Commission Expires: August 13. 2006::' ~>-"",,~,:':';'"
:t' \.
This instrument prepared by (and should be returned to) Tom Charles Huston, Attorney at Law, 11 S. Meridian
Street, Suite 1313, Indianapolis, Indiana 46204.
!NOSOI TCH 3S4S11vt
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FOURTH AMENDMENT
TO
DECLARATION OF COVENANTS AND RESTRICTIONS
OF
THE VILLAGE OF WESTCLAY
TillS FOURTH AMENDMENT to that certain Declaration of Covenants and
Restrictions of The Village of West Clay dated as of August 9, 1999 (the "Declaration") is
executed as of the 6th day of September, 2000, by Brenwick TND Communities, LLC,
("Declarant"), who by the execution hereof, hereby declares that:
1. Recitals. The following facts are true:
(a) The Declaration was recorded in the Office of the
Recorder of Hamilton County, Indiana, on August 9, 1999, as
Instrument No. 9946964.
(b) Declarant has the right unilaterally to amend and
revise the Declaration pursuant to the provisions of Paragraph
29(b) of the Declaration.
2. Amendments. The Declaration is amended as follows:
(a) Paragraph 1 is amended to add the following
definition of "Crosswalks":
&'Crosswalks" means the decorative brick
crosswalks installed by the Declarant between sidewalks
across a public right-of-way.
(b) Paragraph 1 is amended to add the following definition of
"Special Traffic Signs""
USpecial Traffic Signs" means traffic control or
street signs installed by the Declarant on decorative posts
or on street posts, provided that Special Traffic Signs shall
comply with the Manual on Uniform Traffic Control
Devices in terms of sign height and horizontal distance
from curbs, sidewalks or street intersections.
(b) The title of Paragraph 13 is hereby amended to be
''Entry Ways, Landscape Easements, Planting Areas, Crosswalks
and Special Traffic Signs" and the following is hereby inserted as a
Paragraph 13( d):
200000046940
Filed for Record in
HAMILTON COIINTY, lNDIANA
MARY L CLARK
On 09-20-2000 At 11:13 am.
AMEND DECLA 14.. 00
200000046<}40
JOSE KRE\.ITl .-,
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(d) Crosswalks and Special Traffic Signs.
Unless responsibility therefor is assumed by a
governmental entity, the Corporation (or, if the Village
Center Supplemental Declaration so provides with respect
to Crosswalks and Special Traffic Signs in the Village
Center Parcel, the Association) shall maintain the
Crosswalks and Special Traffic Signs and the Maintenance
Costs thereof shall be assessed as a General or Parcel
Assessment. In doing so the Corporation or the
Association, as the case may be, shall first obtain all
required permits from any governmental entity having
jurisdiction over the public right-of-way in which the
Crosswalks or Special Traffic Signs are located. If
replacement of a Special Traffic Sign is necessary and the
Corporation or Association fails to do so within thirty (30)
days after notice from the governmental entity having
jurisdiction over . the public right-of-way, such
governmental entity may replace the Special Traffic Sign
using its standard in-stock materials.
3. Effective Date. The foregoing amendment shall be effective as of the
date this Fourth Amendment is recorded in the Office of the Recorder of
Hamilton County, Indiana.
IN WITNESS WHEREOF; this Fourth Amendment has been executed of the
date first above written.
B LLC
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5T ATE OF INDIANA )
) 55
COUNTY OF HAMIL TON )
Before me, a Notary Public in and for said County and State, personally appeared
Tom Charles Huston, a Co-Manager of Brenwick TND Communities, LLC, an Indiana
limited liability company, who acknowledged the execution of the foregoing "Fourth
Amendment to Declaration of Covenants and Restrictions" for and on behalf of said
limited liability company.
WITNESS my hand and Notarial Seal this 6th day of September, 2000.
~~m.~
Marie M. Urick, Notary Public Residing in
Hendricks County
My Commission Expires: May 24, 2007
This instrument prepared by (and should be returned to) David R. Warshauer, attorney
at law, 12722 Hamilton Crossing Boulevard, Carmel, Indiana 46032
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tl~TH AMENDMENT
TO
DECLARATION OF COVENANTS AND RESTRICTIONS
OF
THE VILLAGE OF WESTCLAY
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lnstru.ent
2000000&1135
TInS FIFTII AMENDMENT to that certain Declaration of Covenants and Restrictions
of The Village of WestClay dated as of August 9, 1999 (the "Declaration") is executed as of the
15th day of November, 2000, by Brenwick TND Communiti~~~~!~8.t~ who by the
execution hereof, hereby declares that: ~~~\t TON COUNTV, INDIANA,
MAR12:0~:~~0 At 03:43 p.,
1. Recitals. The following facts are true: g~END DECLA 12.00
(a) The Declaration was recorded in the Office of the
Recorder of Hamilton County, Indiana, on August 9, 1999, as
Instrument No. 9946964.
(b) Declarant bas the right unilaterally to amend and revise
the Declaration pursuant to the provisions of Paragraph 29(b) of the
Declaration.
2. Amendments. The second grammatical paragraph of Paragraph 19(a) of the
Declaration is amended to read as follows:
If two (2) or more Lots originally shown on a Plat are consolidated as a single Lot
by virtue of partial vacation of a Plat or the construction thereon of a Unit, some part of
which extends over a Lot line, or if a Lot is divided by conveyance of portions thereof to
owners of adjacent Lots, then, in any of such events, so long as the consolidated or
divided Lot is used in its entirety by one or more Owners of contiguous Lots, the vacated
or divided Lot(s) shall cease to be Lot(s) for pmposes of Assessments under this
Paragraph 19, and the consolidated Lots shall constitute one (1) Lot for pmposes of
Assessments under this Paragraph 19. In the event of consolidation of Lots as a building
site, the yard dimensions required by the Zoning Ordinance or the Building Guidelines
shall be applied to the consolidated building site and setbacks shall be measured from the
exterior Lot lines of the consolidated building site.
~
3. Effective Date. The foregoing amendment shall be effective as of the date this
Fifth Amendment is recorded in the Office of the Recorder of Hamilton County, Indiana.
IN WITNESS WHEREOF, this Fifth Amendment bas been executed as of the date first
above written.
By
,LLC
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STATE OF INDIANA )
) SS
COUNTY OF HAMILTON )
Before me, a Notary Public in and for said County and State, personally appeared Tom
Charles Huston, a Co-Manager of Brenwick TND Communities, LLC, an Indiana limited liability
company, who acknowledged the execution of the foregoing "Fifth Amendment to Declaration of
Covenants and Restrictions" for and on behalf of said limited liability company.
WITNESS my hand and Notarial Seal this/s'tday of ovember, 2000.
My Commission Expires:
February 1, 2007
This instrument prepared by (and should be returned to) David R Warshauer, attorney at law,
12821 E. New Market Street, Suite 200, Carmel, Indiana 46032
Icdr 11/15100
vwcmisclfiftb 8I1lCIIdmcnt de&r
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SIXTH AMENDMENT
TO
DECLARA TION OF COVENANTS AND RESTRICTIONS
OF
THE VILLAGE OF WESTCLA Y
THIS SIXTH AMENDMENT to that certain Declaration of Covenants and
Restrictions of The Village of WestClay dated as of August 9, 1999 (the "Declaration"),
is executed as of the 30th day of April, 2002, by Brenwick TND Communities, LLC,
("Declarant"), who by the execution hereof, hereby declares that:
1.
Recitals. The following facts are true:
200200052497
Filed for Record In
HAMILTON COUNTY INDI(
MARY L CLARK I
07-25-2002 10:58 am.
AMEND DECLA 16.00
(a) The Declaration was recorded in the Office of
the Recorder of Hamilton County, Indiana, on August 9,
1999, as Instrument No. 9946964.
(b) Declarant has the right unilaterally to amend
and revise the Declaration pursuant to the provisions of
Paragraph 29(b) of the Declaration.
2. Amendments. The Declaration is amended as follows:
(a) Subparagraph (c) of Paragraph 4 and
subparagraph (c) of Paragraph 5 are amended by inserting
the words "design, depth, pool level, water quality or"
before the word "use" in the last sentence of each of such
subparagraphs.
(b) Subparagraph (h) of Paragraph 18 is amended
by inserting the words "is a Designated Builder or"
following the word "Owner" where it first appears'in the
last sentence of such subparagraph.
(c) Subclauses (C) and (0) of Paragraph 19(b)(ii)
(2) are deleted and the following substituted therefor:
(C) The General Assessment for
each Commercial Lot upon which one or
more Commercial Units have been
constructed shall, with respect to such
Commercial Units, be assessed at a rate
equal to the product of (i) the result obtained
by dividing the gross square footage of the
Commercial Unit by two thousand five
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hundred (2,500) and (ii) the amount of the
General Assessment established for
Residential Lots on the basis set forth in
Clause (1) above.
CD) Each Commercial Lot improved
with a Multiuse Structure shall be assessed
as follows: with respect to that part of the
Multiuse Structure that consists of one or
more Commercial Units, in the same manner
as specified in subclause (C) above; and
with respect to that part of the Multiuse
Structure that consists of one or more Living
Units, in the same manner as specified in
Clause (1) above.
(d) Subclauses (F) and (G) of Paragraph 19(b)(ii)
(2) are deleted.
(e) Clause (iii) of subparagraph (e) of Paragraph
21 is amended by deleting "sixty (60) days" and sub-
stituting therefor "one hundred eighty (180) days".
(f) Subparagraph (b) of Paragraph 24 is deleted
in its entirety and the following is substituted therefor:
(b) By Builders. Notwithstanding
any provisions to the contrary contained
herein, a Designated Builder and, with
the consent of the Board of Directors, any
other builder who has constructed a Living Unit
in WestClay may use such Living Unit as a
"model" home and may hold such home open to
the public, either individually or as part of a
"home show" approved by the Board of
Directors. With the approval of Declarant,
visitors to such model home may use Lots
owned by Declarant or the builder that are
adjacent to or in proximity to such model home
for parking.
(g) Paragraph 26 is amended by inserting the
following between the first and second sentences of said
paragraph:
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Subsequent to the Applicable Date, no judicial
or administrative proceedings may be
commenced or prosecuted by the Corporation
unless authorized by the affirmative vote of
not less than seventy-five percent (75%) of the
Members at a meeting of the Members called
and convened in accordance with the re-
quirements of the By-Laws; provided,
however, that the foregoing shall not apply to
(i) actions brought by the Corporation to
enforce a Restriction (including without
limitation an action to enforce payment of
Assessments or to foreclose a lien for unpaid
Assessments) or (ii) counterclaims brought by
the Corporation in proceedings instituted
against it.
(h) Paragraph 27 is amended by inserting the words
"the initiation by the Corporation or the Association of any
judicial or administrative proceedings" after the word
"Assessment" and before the word "and" in the last line of
such paragraph.
(i) Paragraph 33 is amended by (i) inserting the
words "any Lake or Pond (as provided in subparagraphs (c)
of Paragraphs 4 and 5) or any" before the word "drainage"
in the first sentence and (ii) adding the following sentence
at the conclusion of such paragraph: "Any Owner or other
person or entity asserting a claim against Declarant with
respect to any matter (i) as to which Declarant has herein or
in any Supplemental Declaration disclaimed liability or (ii)
which by the terms of this Declaration or any Supplemental
Declaration Declarant has no liability shall be personally
liable to Declarant for all costs and expenses incurred by
Declarant in defending against such claim, including
attorney's fees, paralegal fees and all court costs, including
on appeal.
3. Effective Date. The foregoing amendment shall be effective as of
the date this Sixth Amendment is recorded in the Office of the Recorder of
Hamilton County, Indiana.
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IN WITNESS WHEREOF, this Sixth Amendment has been executed as of the
date first above written.
B~CKTND COMMUNITffiU
~~~ cGe~ H'u!tb-Manager
STATE OF INDIANA )
) SS:
COUNTYOF~TON )
Before me, a Notary Public in and for said County and State, personally appeared
Tom Charles Huston, the Assistant General Manager of Brenwick TND Communities,
LLC, an Indiana limited company, who acknowledged the execution of the foregoing
"Sixth Amendment to Declaration of Covenants and Restrictions: for and on behalf of
said limited liability company.
WITNESS my hand and Notarial Seal this381kday of April, 2002.
'>n Lt~,A h1. /1 ~
Marie M. Urick, Notary Public Residing in
Hendricks County
My Commission Expires: May 24,2007
This instrument prepared by (and should be returned to) Tom Charles Huston, Attorney at
Law, 12821 East New Market Street, Suite 200, Carmel, Indiana 46032.
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CODE OF BY-LAWS
ill:
THE VILLAGE OF WEST CLAY OWNERS ASSOCIATION. INe.
ARTICLE 1
Definitions
The definitions and terms as defined and used in the Articles of Incorporation shall have the
same meaning in these By-Laws and reference is specifically made to Article 9 thereof containing
definition of terms. If any term used herein is not defined in the Articles but is defined in the
Declaration, then the definitions in the Declaration shall be applicable to these By-Laws.
ARTICLE 2
Meetings of Members
Section 201. Place of Meetings. All meetings of the Members shall be held at such place in
Hamilton or Marion Counties, Indiana as may be designated by the Board of Directors and specified
in the respective notices or waivers of notice thereof.
Section 2.02. Annual Meeting. An annual meeting of the Members shall be held between
April 1 and June 30 of each Year.
Section 2.03. Special Meetings. Special meetings of the Members may be called by the
President, by a majority of the Board of Directors, or by written petition signed by not less than
one-tenth (1/10) of all of the (i) Class A Members or (ii) the Class B Members or (ill) all Members.
Upon a request in writing delivered to the President or the Secretary by a Person or Persons
entitled to call a special meeting, it shall be the duty of the President or the Secretary to give notice
to the Members of such meeting, and, if such request is refused, the Person or Persons making such
request may call a meeting by giving notice in the manner hereinafter provided.
Business transacted at all special meetings shall be limited to the subjects stated in the call or
waiver of notice, and matters germane thereto.
Section 2.04. Notice ofMeetiniS. A written or printed notice stating the place, day and hour
of the meeting, and, in the case of a special meeting, the purpose or purposes for which such meeting
is called, shall be delivered or mailed by the Secretary or by the: officer or Person calling the meeting
to each Member at such address as appears. on the records of the Corporation at least ten (10) days
before the date of the meeting or, ifnotice is mailed by other dim first class or registered mail, sixty
(60) days before the date of the meeting. Notice of any meeting may be waived in writing filed with
the Secretary by any Member if the waiver sets forth in reasonable detail the purpose or purposes for
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which the meeting is called and the time and place of the meeting. Attendance at any meeting shall
constitute a waiver of notice of that meeting.
Section 2.05. Voting Lists. After fixing a record date for a notice of a meeting, the Secretary
shall prepare a complete list of Members entitled to notice of a meeting of Members, containing the
address and number of votes each Member is entitled to cast at the meeting. The Secretary shall
prepare on a current basis through the time of the membership meeting a list of Members, if any, who
are entitled to vote at the meeting, but are not entitled to notice of the meeting. Such lists may be
inspected by any Member, for any proper purpose, at any reasonable time.
Section 2.06. Quorum. At any meeting of the Members twenty-five percent (25%) of the
Members entitled to vote at such meeting, present in person or by proxy executed in writing, shall
constitute a quorum for the transaction of business, except as otherwise provided by law. In the
absence of a quorum, the Members present in person or by proxy, by a majority vote and without
notice, may adjourn the meeting from time to time until a quorum is present. At any such adjourned
meeting at which a quorum is present, any business may be transacted for which notice was originally
given. The Members present at a duly organized meeting may continue to do business until
adjournment notwithstanding the withdrawal of enough Members to leave less than a quorum.
Section 2.07. Voting Rights. The voting rights of the Members shall be as prescribed in the
Articles. In any election of Directors, no Member shall have the right to multiply the number of votes
to which such Member may be entitled by the number of Directors to be elected. A majority of the
votes cast at a meeting of the Members, duly called and at which a quorum is present, shall be
sufficient to take or authorize action upon any matter that may properly come before the meeting
unless more than a majority of votes cast is required by law, the Declaration, any Supplemental
Declaration, the Articles or these By-Laws.
Section 2 08. Multiple Owner. Where the Owner of a Lot constitutes more than one person,
or is a partnership, there shall be only one voting representative entitled to cast the vote allocated to
that Lot. Those persons constituting such Owner or the partners shall determine among themselves
who shall be the voting representative for such Lot. In the event agreement is not reached the vote
attributable to such Lot shall not be cast.
Section 2.09. Voting by Cox:poration.. LLC or Trust. Where a corporation, a limited liability
company or trust is an Owner or is otherwise entitled to vote, the trustee may cast the vote on behalf
of the trust and the agent or other representative of the corporation or limited liability company duly
empowered by the board of directors of such corporation or the managers or members of the limited
liability company shall cast the vote to which the corporation or limited liability company is entitled.
Section 2.10. Proxies. A Member may vote either in person or by his duly authorized and
designated attorney-in-fact. Where voting is by proxy, the Member shall designate his attorney-in-fact
in writing, delivered to an officer of the Corporation prior to the commencement of the meeting. No
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proxy shall be valid after eleven (ll) months from the date of its execution unless a longer time is
expressly provided in the proxy.
Section 2.11. Action Without a Meeting. Any action required by the Act to be taken at a
meeting of the Members, or any action which may be taken at a meeting of the Members, may be
taken without a meeting if, prior to the action, a consent in writing setting forth the action so taken
is signed by all of the Members entitled to vote with respect to the subject matter thereof, and such
written consent is filed with the minutes of the proceedings of the Members. Such consent shall have
the same effect as a unanimous vote of the Members.
Section 2 12. Meeting by Telephone etc. Any or all of the Members may participate in a
meeting by or through the use of any means of communication by which all Members participating
may simultaneously hear each other during the meeting. Participation in a meeting using these means
constitutes presence in person at the meeting.
ARTICLE 3
Board of Directors
Section 3 01. Functions. The business, property and affairs of the Corporation shall be
managed and controlled by a Board of Directors as from time to time constituted (herein collectively
called "Board" or "Directors" and individually called "Director").
Section 3.02. Eligibility. No person shall be a Director who is not a Member, a designee of
a Member or a designee of Developer, nor shall any person be a Director representing a Parcel who
is not the Owner or Occupant of a Lot in such Parcel or the designee of an Owner.
Section 3.03. Number. Prior to the Applicable Date, the number of Directors comprising the
Board shall be three (3), which number may from time to time be increased by resolution adopted by
not less than a majority of the Board of Directors. In no event shall the number of Directors prior
to the Applicable Date be less than three (3) nor more than seven (7) and no reduction in the number
of Directors shall have the effect of removing a Director from office prior to the expiration of his
term. In the event the number of Directors is increased prior to the Applicable Date, the additional
Director or Directors shall be appointed by Developer as provided in Section 5.03 of the Articles.
Subsequent to the Applicable Date, the number of Directors comprising the Board shall be
nine (9), which number may from time to time be increased or decreased by resolution adopted by
not less than a majority of the Board of Directors, provided that all times the number shall not be less
than a number divisible by three (3). In no event shall the number of Directors subsequent to the
Applicable Date be less than three (3) nor more than fifteen (15) and no reduction in the number of
Directors shall have the effect of removing a Director from office prior to the expiration of his term.
In the event the number of Directors is increased subsequen{ to the Applicable Date as provided
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herein, the election of the additional Director or Directors shall be by a vote of the Members entitled
to elect such additional Director or Directors according to a procedure established by the Board by
resolution.
Section 3.04. Classes. Subsequent to the Applicable Date, the membership of the Board shall
be divided into classes consisting of (i) Directors each of whom shall represent an Electoral Parcel
and (ii) Directors not representing Electoral Parcels. The class of Directors representing Electoral
Parcels shall consist of that number of Directors which is equal to the number of Electoral Parcels
within the Tract. .
Section 3 OS. Appointment. Prior to the Applicable Date, Directors shall be appointed by
Developer as provided in Section 5.03 of the Articles.
Section 3.06. Nomination Subsequent to the Applicable Date, candidates for election to the
Board of Directors as Directors not representing Electoral Parcels shall file a notice of candidacy,
signed by not less than five (5) Members, with the Elections Committee at least three (3) weeks prior
to the annual meeting. The Elections Committee shall provide all Members with. a ballot containing
the names of all bona fide candidates not less than ten (10) days before the annual meeting.
Subsequent to the Applicable Date, the Board of Directors shall by resolution establish such
procedure as it deems appropriate governing nominations for election to the Board of Directors as
Directors representing Electoral Parcels.
Section 307. Election Subsequent to the Applicable Date, Directors shall be elected at the
annual meeting provided in Article 2. If the Board of Directors is divided into classes pursuant to
section 3.04, the Directors representing an Electoral Parcel shall be elected by those Members who
are Owners of Lots in the Electoral Parcel to be represented by such Director. A Member who owns
a Lot in more than one Electoral Parcel shall be entitled to vote for all Directors representing
Electoral Parcels in which he owns a Lot. Anything to the contrary in this Section 3.07
notwithstanding, the Board of Directors shall have the power to authorize that Directors representing
Electoral Parcels be elected at the annual meeting of the owners association of each such Electoral
. Parcel, ifany, rather than at the annual meeting of the Corporation. The Board may, by resolution,
establish such election procedures as it deems appropriate.
Voting for the Board of Directors shall be by secret written ballot. The ballot shall be
prepared by the Elections Committee and shall contain the name of each person nominated for
election. Those persons receiving the highest number of votes shall be elected.
Section 3.08. Thrm. Each Director, other than a Director appointed by Developer, shall
serve for a term of one (1) year or until his successor is elected and qualified or until he has resigned
or been removed. Incumbent Directors shall be eligible for re-election and the number of years a
person may serve as a Director is not limited. A Director appointed by Developer, including the
initial Directors identified in Section 5.02 of the Articles, shall serve until such Director dies, resigns
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Section 3.09. Resignation. Any Director may resign at any time by giving written notice of
such resignation to the President or the Secretary of the Corporation. Such resignation shall take
effect when the notice is effective unless the notice specifies a later effective date. The acceptance
of a resignation shall not be necessary to make it effective.
Section 3.10. Removal. Subsequent to the Applicable Date, any Director may be removed,
with or without cause, in accordance with the provisions of the Act. Prior to the Applicable Date,
any Director may be removed by Developer for any reason.
Section 3 11. Vacancies. Any vacancy occurring on the Board of Directors caused by death,
resignation, removal or otherwise, shall (a) prior to the Applicable Date be filled by Developer and
(b) subsequent to the Applicable Date be filled until the next annual meeting through a vote of a
majority of the remaining members of the Board. If, subsequent to the Applicable Date, a majority
of the remaining members of the Board cannot agree on a Person to fill any such vacancy, a special
meeting of the Members shall be called to elect a Person to fill such vacancy. A Director elected to
fill a vacancy shall hold office until the expiration of the term of the Director causing the vacancy or
until his successor has been elected and qualified.
Section 3.12. Meetings. The Board of Directors shall meet each year immediately after the
annual meeting of the Members, at the place where such meeting of the Members has been held, for
the purpose of organization, election of officers, and consideration of any other business which may
properly be brought before the meeting. No notice shall be necessary for the holding of this annual
meeting. If such meeting is not held as above provided, the election of officers may be held at any
subsequent meeting of the Board specifically called in the manner provided in Section 3. 13. The
Board of Directors may provide by resolution the time and the place, either within or without the
State of Indiana, for the holding of additional regular meetings of the Board without other notice than
such resolution. Special meetings of the Board may be called by the President and shall be called by
order thereof upon the written request of not less than two (2) Directors, which request shall set forth
the business to be conducted at such meeting.
Section 3.13. Notice of Meetings. Notice of all meetings of the Board of Directors, except
as herein otherwise provided, shall be given by mailing, telephoning, telegraphing or delivering
personally the same at least two (2) days before the meeting to the usual business or residence address
of the Director as shown upon the records of the Corporation. Notice of any meeting of the Board
may be waived in a document filed with the Secretary by any Director if the waiver sets forth in
reasonable detail the purpose or purposes for which the meeting is called and the time and place of
the meeting. Attendance at any meeting of the Board shall constitute a waiver of notice of that
meeting, except where a Director attends a meeting for the express purpose of obj ecting to the
transaction of any business because the meeting is not lawfully called or convened. Any meeting of
the Board may adjourn from time to time to reconvene at the same place or some other place. No
notice need be given of any such adjourned meeting.
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Section 3.14. Quorum. A quorum of the Board of Directors at any annual or special meeting
of the Board shall be a majority of the duly qualified members of the Board then occupying office,
but in no event less than two (2) Directors, except that, subsequent to the Applicable Date, in filling
vacancies a majority of the remaining Directors (but not less than two (2) Directors) shall constitute
a quorum. The act of a majority of the Directors present at a meeting, who constitute a quorum, shall
be the act of the Board unless otherwise provided by the Act, the Declaration, any Supplemental
Declaration, the Articles, or these By-Laws. In the absence of a quorum, the Directors present may,
by majority vote, adjourn the meeting from time to time until a quorum is present. At any such
adjourned meeting at which a quorum is present, any business may be transacted which might have
been transacted at the meeting for which notice was originally given.
Section 3. 15. Action Without a Meeting. Any action required or permitted to be taken at any
meeting of the Board of Directors. or any committee thereof may be taken without a meeting if the
action is taken by all members of the Board of Directors or such committee. The action must be
evidenced by at least one (1) written consent describing the action taken signed by each member of
the Board of Directors or of such committee, and included in the minutes or filed with the corporate
records reflecting the action taken.
Section 3.16. Meeting by Telephone, etc. Any or all of the members of the Board or of any
committee designated by the Board may participate in a meeting by or through the use of any means
of communication by which all persons participating may simultaneously hear each other during the
meeting. Participation in a meeting using these means constitutes presence in person at the meeting.
Section 3 17. Committees. The Board of Directors, by resolution adopted by a majority of
the Board, may designate one or more committees, each of which shall consist of two (2) or more
Directors, which committees, to the extent provided in said resolution, shall have and exercise the
authority of the Board in the management of the Corporation. Other committees not having and
exercising the authority of the Board in the management of the Corporation may be designated by a
resolution adopted by a majority of the Directors present at a meeting at which a quorum is present.
The designation of any such committee and the delegation thereto of authority shall not operate to
relieve the Board, or any individual Director, of any responsibility imposed upon it or him by law.
Subsequent to the Applicable Date, the Board shall annually establish an Elections Committee which
shall be responsible for the conduct of the election of the Board of Directors pursuant to Sections
3.06 and 3.07.
Section 3.18. Powers. All of the corporate powers, except as otherwise provided herein or
by law, shall be vested in and shall be exercised by the Board of Directors. Said powers shall include,
but not be limited to:
(a) The power to adopt, publish, and enforce rules and regulations
governing the use of the Community Areas not inconsistent with the provisions of the
Declaration or any Supplemental Declaration;
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(b) The power to lease or purchase for the benefit of the Members such
property, equipment, materials, labor and services as may be necessary in the
judgment of the Board;
(c) The power to exercise the powers and perform the duties of the
Corporation granted, imposed, authorized or permitted by the Declaration or any
Supplemental Declaration, the exercise of which is not reserved or committed to the
membership or a class thereof by the Articles or By-Laws;
(d) The power to make and collect Assessments and charges, establish and
collect membership dues, and levy and collect fines for the violation of rules and
regulations governing the use of the Community Areas to the extent authorized by the
Declaration or a Supplemental Declaration;
(e) The power to employ legal counse~ architects, contractors,
accountants, consultants, managers, independent contractors and others as in the
judgment of the Board of Directors may be necessary or desirable in connection with
the maintenance, repair, replacement, restoration, and operation of the Community
Area and the Common Facilities and the business and affairs of the Corporation.
Section 3.19. Duties. It shall be the duty of the Board of Directors to:
(a) cause the Community Area and the Common Facilities to be
maintained in good, clean, attractive and sanitary condition, order and repair except
for such thereof as i$ the responsibility of the Village Center Owners Association;
(b) adopt and publish rules and regulations, including fees, if any,
governing the use of the Community Area, and the personal conduct of the Members,
their tenants and guests to the extent not inconsistent with the provisions of the
Declaration or any Supplemental Declaration;
(c) cause to be kept a complete record of all its corporate affairs, making
such records available for inspection by any Member or his 'authorized agent, and
present an annual report thereof to the Members;
(d) supervise all officers, agents and employees of the Corporation and see
that their duties are properly performed;
(e) issue upon demand by any Member a certificate setting forth whether
or not any Assessment has been paid and giving evidence thereof for which a
reasonable charge may be made;
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(f) designate depositories for the funds of the Corporation, designate
those officers, agents and/or employees who shall have authority to withdraw funds
from such accounts on behalf of the Corporation, and cause such persons to be
bonded, as it may deem appropriate;
(g) approve the annual budget;
(h) fix annual General and Parcel Assessments (exclusive of the Parcel
Assessment for the Village Center) at amounts sufficient to meet the obligations
imposed by the Declaration and all Supplemental Declarations;
(i) annually set the date(s) Assessments are due and decide what, if any,
interest rate is to be applied to Assessments which remain unpaid thirty (30) days after
they become due;
G) send written notice of each Assessment to every Owner subject thereto
at least thirty (30) days in advance of the due date of the Assessment or first
installment thereof;
(k) cause the lien against any property for which Assessments are not paid
within thirty (30) days after due date to be foreclosed or cause an action at law to be
brought against the Owner personally obligated to pay the same;
(1) suspend the right of an Owner or Occupant to use the recreational
facilities constituting a part of the Community Area during any period during which
such Owner shall be in default for more than thirty (30) days after notice in the
payment of any Assessment. Such right of Members or Occupants may also be
suspended, after notice and hearing, for a period not to exceed sixty (60) days for
violation of any provision of the Declaration, any Supplemental Declaration or the
Register of Regulations subject to the provisions of the Declaration or any
Supplemental Declaration;
(m) procure and maintain adequate insurance to protect the Corporation,
its employees and its personal and real properties;
(n) enter into mortgage agreements and obtain capital debt financing
subject to the provisions of the Declaration;
(0) appoint such committees as are prescribed in Section 3.17;
(P) faithfully observe and perform each duty imposed on the Corporation
by the terms of the Declaration and the Supplemental D~clarations and exercise such
discretion granted to the Board thereunder in the best interests of the Members; and
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(q) exercise their powers and duties in good faith, with a view to the
. interests of the Corporation and the Members.
Section 3.20. Non-Liability of Directors. No Director shall be liable to any Person for any
error or mistake of judgment exercised in carrying out his duties and responsibilities as a Director,
unless (a) the Director has breached or failed to perform the duties of his office in compliance with
the Act and (b) the breach or failure to perform constitutes willful misconduct or recklessness. The
Members shall indemnify and hold harmless each of the Directors against any and all liability to any
Person arising out of contracts made by the Board on behalf of the Corporation, unless any such
contract shall have been made in bad faith or is contrary to the provisions of the Act, the Articles or
these By-Laws. It is intended that the Directors shall have no personal liability with respect to any
contract made by them. on behalf of the Members and as their agent. The liability of any Member
arising out of any contract made by the Board or out of the aforesaid indemnity in favor of the
Directors shall be limited to such percentage of the total liability or obligation thereunder as is equal
to a fraction, the numerator of which is the number of Lots owned by him and the denominator of
which is the total number of Lots in the Tract.
Section 3.21. Indemnity of Officers and Directors. To the extent not inconsistent with the
laws of the State of Indiana, every Person (and the heirs, assigns and legal representatives of such
Person) who is or was a Director or an officer of the Corporation shall be indemnified by the
Corporation as provided in the Act. To the extent the assets of the Corporation are insufficient to
satisfy its indemnification obligations hereunder, the Board of Directors may levy a Special
Assessment in the manner specified in the Declaration to obtain such funds as may be required to
satisfy such obligation.
Section 3.22. Transactions Involving Affiliates. No contract or other transaction between
the Corporation and one or more of its Directors, or between the Corporation and any Person
(mcluding the Developer) in which one or more of the Directors are directors, officers, partners, or
employees or .are pecuniarily or otherwise interested, shall be void or voidable because such Director
or Directors are present at the meeting of the Board or any committee thereof which authorizes,
approves or ratifies the contract or transaction, or because his or their votes are counted for such
purpose if:
(a) the fact of the relationship or interest is disclosed or known to the
Board or committee, and the Board or Gommittee authorizes, approves, or ratifies
such contract or transaction by a vote or consent sufficient for the purpose without
counting the vote or consents of the interested Director(s); or
(b) the fact of the relationship or interest is disclosed or known to the
Members, and they authorize, approve or ratify the contract or transaction by a vote
or written consent; or
(c) the contract or transaction is fair and reasonable to the Corporation.
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ID
Affiliated or interested Directors may be counted in determining the presence of a quorum of any
meeting of the Board or committee thereof which authorizes, approves or ratifies any contract or
transaction.
Section 3.23. Insurance. The Board of Directors, or its duly authorized agent, shall have the
authority to and shall obtain insurance for all of the Common Facilities and all of the structures
located in the Community Area, whether owned or leased by the Corporation, against loss or damage
by fire or other hazards commonly insured against in similar properties in an amount sufficient to
cover the full replacement cost of any repair or reconstruction work in the event of damage or
destruction from any insured hazard, and shall also obtain a broad form public liability policy covering
all damage or injury caused by the negligence of the Corporation or any of its agents. All such
insurance policies shall contain a provision that all Members shall, in appropriate circumstances, be
able to recover damages as claimants under such insurance. Premiums for all such insurance shall be
included in the General Assessment.
Section 3 24. Insured Loss Damage or Destruction. In the event of loss, damage or
destruction by fire or other peril, the Board of Directors shall (unless otherwise agreed by two-thirds
(%) of the Directors then serving), upon receipt of the insurance proceeds, .contract to rebuild or
repair damaged.or destroyed portions of the insured property to its condition before such damage.
All such insurance proceeds (if the amount of such proceeds exceeds $5,000.00) shall be deposited
in a bank or other financial institution, the accounts of which are insured by a federal governmental
agency, with the provision agreed to by said bank or institution that such funds may be withdrawn
only by signatures of at least one-third (113) of the members of the Board of Directors, or by their duly
authorized agent. In such event, the Board of Directors shall advertise for sealed bids with any
licensed contractors, and then may negotiate with any contractor, who may be required to provide
a full performance and payment bond for the repair, reconstruction or rebuilding of such destroyed
structure or structures. In the event that the insurance proceeds are insufficient to pay all the costs
of repairing and/or rebuilding to the same condition as previously existed, the Board of Directors may
levy a Special Assessment in the manner specified in the Declaration to make up any deficiency.
Excess insurance proceeds, ifany, shall become a part of the Corporation's reserve for replacements.
Section 3 25. Uninsured Loss, Damage or Destruction. In the event of loss, damage or
destruction to the Property caused by perils not covered by standard inSurance described in Section
2.04(d) of the Articles, the Board of Directors may levy a Special Assessment in the manner specified
in the Declaration to make up any deficiency created by such uninsured loss.
Section 3.25. Compensation No Director shall receive any compensation for any service he
may render to the Corporation. He may, however, be reimbursed for his actual expenses incurred in
the performance of his duties.
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ARTICLE 4
The Officers of the Corporation
Section 4.01. Officers and Agents. The officers of the Corporation shall consist of a
President, one or more Vice Presidents, a Secretary, a Treasurer, and such other officers as the Board
of Directors may, by resolution, designate from time to time. Any two or more offices may be held
by the same person. The Board of Directors may. by resolution. create, appoint and define the duties
and fix the compensation of such officers and/or agents as, in its discretion, is deemed necessary,
convenient or expedient for carrying out the purposes for which the Corporation is formed; but such
officers and agents shall be compensated only for actual services performed on behalf of the
Corporation.
Section 4.02. Election. Term of Office and Qualifications.
The officers shall be chosen annually by the Board of Directors. Each officer shall hold office (unless
he resigns, is removed or dies) until the next annual meeting of the Board of Directors or until his
successor is chosen and qualified.
Section 4.03. Vacancies. In the event an office of the Corporation becomes vacant by death,
resignation, retirement, disqualification or any other cause, the Board of Directors shall elect a person
to fill such vacancy. and the person so elected shall hold office and serve (unless he resigns, is
removed or dies) until the next annual meeting of the Board or until the election and qualification of
his successor.
Section 4.04. President. The President, who shall be chosen from among the membership
of the Board of Directors, shall preside at all meetings of the Board, if present; shall appoint the
chairman and members ofall standing and temporary committees, subject to the review of the Board
of Directors; shall be the executive officer of the Corporation; shall have and exercise general charge
and supervision of the affairs of the Corporation; and shall do and perform such other duties as these
By-Laws provide or as may be assigned to him by the Board of Directors.
Section 4.05. Vice President. Any Vice President may perform all duties incumbent upon
the President during the absence or disability of the President and shall perform other duties as these
By-Laws may require or as may be assigned to him by the President or the Board of Directors.
Section 4.06. Secretary. The Secretary shall have the custody and care of the corporate
records and the minute book of the Corporation. He shall attend all of the meetings of the Board of
Directors and the Members, and shall keep, or cause to be kept in a book provided for the purpose,
a true and complete record of the proceedings of such meetings, and shall perform a like duty for all
standing committees of the Board of Directors when required. He shall attend to the giving and
serving of all notices of the Corporation, shall file and take care of all papers and documents
belonging to the Corporation, shall authenticate records of the _Corporation, as necessary, and shall
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perfonn such other duties as may be required by these By-Laws or as may be prescribed by the Board
of Directors or the President.
Section 407. Treasurer. The Treasurer shall keep correct and complete records of account,
showing accurately at all times the financial condition of the Corporation. He shall be the legal
custodian of all monies, notes, securities and other valuables which may from time to time come into
the possession of the Corporation. He shall immediately deposit all funds of the Corporation corning
into his hands in some reliable bank or other depository to be designated by the Board of Directors,
and shall keep such bank account in the name of the Corporation. He shall furnish at meetings of the
Board of Directors, or whenever requested, a statement of the financial condition of the Corporation
and shall perfonn such other duties as may be required by these By-Laws or as may be prescribed by
the Board of Directors or the President.
Section 4.08. Assistant Officers. The Board of Directors may from time to time designate
assistant officers who shall exercise and perform such powers and duties as the officers whom they
are elected to assist shall specify and delegate to them, and such other powers and duties as may be
prescribed by the Code of By-Laws, the Board of Directors or the President.
Section 4.09. Removal. Any officer of the Corporation may be removed from office, with
or without cause, by the affirmative vote of two-thirds (0/3) of all the Dir~ctors at any regular or
special meeting of the Board of Directors called for the purpose. Any officer whose removal is
proposed shall be entitled to at least ten (10) days' notice in writing by mail of the meeting of the
Board of Directors at which such removal is to be voted upon and shall be entitled to appear before
and be heard by the Board of Directors at such meeting.
Section 4 10. Resignation. Any officer or member ofa committee may resign at any time.
Such resignation shall be made in writing and shall take effect at the time specified therein, and, if no
time be specified, at the time of its receipt by the President or Secretary of the Corporation. The
acceptance of a resignation shall not be necessary to make it effective.
ARTICLE 5
Architectural Review Board
Section 501. Composition. The Architectural Review Board shall be comprised of three (3)
members elected by the Board of Directors by a vote of a majority of the Directors then serving.
Subsequent to the Applicable Date, no member of the Architectural Review Board shall
simultaneously serve as a member of the Board of Directors.
Section 5.02. Ierm. Prior to the Applicable Date, the members of the Architectural Review
Board shall serve until the earlier of (a) the date such member c}.ies, resigns or is removed or (b) the
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Applicable Date. Subsequent to the Applicable Date, the members of the Architectural Review Board
shall serve for a term of one (1) year. Members shall be eligible for re-election.
Section 5 03. Removal' Vacancies. The Board of Directors may remove a member of the
Architectural Review Board at any time, with or without cause, by a vote of two-thirds of the
Directors then serving. In the event of a vacancy on the Architectural Review Board, the Board of
Directors shall, by a vote of a majority of the Directors then serving, elect a successor to serve the
unexpired term.
Section 5.04 Organization. The Architectural Review Board shall elect .from among its
membership a chairman, secretary and such other officers as it deems appropriate.
Section 5.05. Quorum. A quorum for action by the Architectural Review Board shall be a
majority of its members, but in no event less than two (2) members.
Section 5 06. ~. It shall be the duty of the Architectural Review Board to regulate the
external design, appearance, location and maintenance of the Tract and of improvements thereon
(exclusive of the Village Center) and to regulate such uses of property, to the extent provided in the
Declaration and the Supplemental Declarations.
Section 507. Procedures. The Architectural Review Board shall formulate general
guidelines, procedures and regulations and submit them for approval to the Board of Directors. Such
guidelines, procedures and regulations shall be considered adopted policy of the Board of Directors
unless rejected by a two-thirds (%) vote of the Board of Directors within thirty (30) days after the
date of submission. The adopted guidelines, procedures and regulations shall be incorporated in the
Register of Regulations and the Architectural Review Board shall act in accordance therewith.
ARTICLE 6
Loans to Officers and Directors
The Corporation shall not lend money to or guarantee the' obligations of any officer or
Director of the Corporation.
ARTICLE 7
Corporate Books
The Corporation shall maintain all records required by the Act and shall permit the Members
to inspect and copy such records to the extent and on the con~tions specified in the Act.
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ARTICLE 8
Financial Affairs
Section 8.01. Contracts. The Board of Directors may authorize any officer or agent to enter
into any contract or execute and deliver any instrument in the name of and on behalf of the
Corporation, and such authority may be general or confined to a specific instance; and unless so
authorized by the Board of Directors, no officer, agent or employee shall have any power or authority
to bind the Corporation by any contract or engagement, or to pledge its credit or render it liable
pecuniarily for any purpose or to any amount.
Section 8 02. Checks, Etc. All checks, drafts, notes, bonds, bills of exchange, and orders for
the payment of money and other evidence of indebtedness in excess of One Thousand Dollars
($1,000.00), shall, unless otherwise directed by the Board of Directors or required by law, be signed
by any two of the following officers, who are different persons: President, a Vice President,
Secretary or Treasurer. Any such obligation equal to or less than One Thousand Dollars ($1,000.00)
may be signed by anyone (1) of such preceding officers. The Board of Directors may, however,
designate officers or employees of the Corporation, other than those named above, who may, in the
name of the Corporation, execute drafts, checks and orders for the payment of money on its behalf.
Section 8 03. Investments. The Corporation shall have the right to retain all or any part of
any securities or property acquired by it in whatever manner, and to invest and reinvest any funds held
by it, according to the judgment of the Board of Directors.
Section 8.04. Reserve for Replacements. The Board of Directors shall establish and maintain
a reserve fund for replacements by the allocation and payment to such reserve fund of the Community
Area Initial Assessment and an amount determined annually by the Board to be sufficient to meet the
cost of periodic maintenance, repairs, renewal and replacement of the Property. In determining the
amount, the Board shall take into consideration the expected useful life of the Property, projected
increases in the cost of materials and labor, interest to be earned by such fund and the advice of the
Developer, managing agent or any consultants the Board may employ. Such fund shall be deposited
in a special account with a lending institution the accounts of which are insured by an agency of the
United States of America or may, in the discretion of the Board, be invested in obligations of, or fully
guaranteed as to principal by, the United States of America.
Section 8 05. Community Area Debt Service Assessment. The Board of Directors shall
establish and maintain an account for the deposits of Community Area Debt Service Assessments.
The funds in such account shall be held and disbursed in accordance with Paragraph 18(f) of the
Declaration.
Section 8.06. Fiscal Year. The fiscal year of the Corporation shall be commence on January
1 in each year.
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Section 807. Assessment Year. The assessment year of the Corporation shall be the same
as the fiscal year established in Section 8.06.
Section 8 08. Auditing. If requested by any Member or the holder of a first mortgage on any
Lot, the books and accounts of the Corporation shall at the close of each fiscal year be audited by an
independent Certified Public Accountant whose report shall be prepared and certified in accordance
with generally accepted auditing standards. A copy of such report shall be distributed to each
Member or mortgagee who requests a copy thereof.
ARTICLE 9
Amendments
Subject to the provisions of Sections 7.02, 7.04 and 7.05 of the Articles, the power to make,
alter, amend or repeal the By-Laws is vested in the Board of Directors, which power shall be
exercised by affirmative vote of a two-thirds (%) majority of the Directors present at any meeting of
the Board. Any proposed amendment shall be included in the notice of such meeting. If notice of
a proposed amendment to the By-Laws is included in the notice of any meeting of the Board, it shall
be in order to consider and adopt at that meeting any amendment to the By-Laws dealing with the
subject matter with which the proposed amendment is concerned.
INDSOI TCH 302369
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APPROVED
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ARTICLES OF INCORPORATION F:LED
ill: IND. SECRET/\HY OF STATE
THE VILLAGE OF WESTCLA Y OWNERS ASSOCIATION. INC.
The undersigned incorporator, desiring to form a corporation pursuant to the provisions of
the Indiana Nonprofit Corporation Act of 1991, executes the following Articles of Incorporation:
ARTICLE 1
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Section 1 0 1. ~. The name of this Corporation is THE VILLAGE OF WESTCLA Y
OWNERS ASSOCIATION, INC.
ARTICLE 2
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Purposes and Powers
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Section 2.01. Type of COJ:poration. This Corporation is a mutual bent1.~t corpti-ation..... :_~
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Section 2.02. Primaxy Pux:poses. The purposes for which this Corpora~ is formed areJ~~
own, manage, maintain, reserve, repair and reconstruct the Community Area and C9mmo~ Facili~s:-
provide architectural control of the Lots at WestClay and exercise all of the power and priVileges, and
perform all of the duties and obligations, of the Corporation as set forth in the Declaration and any
Supplemental Declaration.
Section 2.03. Additional Pu(poses. In addition, the Corporation is formed for the promotion
of the health, safety and welfare of the owners of Lots at WestClay and their tenants and for such
other nonprofitable purposes as are authorized by the Act and permitted to be c4n1ed on by an
organization exempt from Federal income taxation under the provisions of Section 528 of the Code.
Section 2 04. Specific Powers. Subject to any specific written limitations or restrictions
imposed by the Act, by the Code, by other law, or by the Declaration, any Supplemental Declaration
or the Articles, and solely in furtherance of but not in addition to the purposes set forth in Section
2.02 and 2.03 of these Articles, the Corporation shall have the following specific powers:
Clause (a). To Mana,ge, etc. To manage, maintain, repair and replace the
Property for the benefit and use of the members of the Corporation subject to such
restraints or suspensions of use and voting rights of members as are provided herein,
in the By-Laws, and in the Declaration. -
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Clause (b). To Make Assessments. To fix, levy, and collect Assessments and
to enforce payment thereof by all lawful means.
Clause (c). To Promulgate Rules. To promulgate such rules and regulations
and perform such deeds as are deemed necessary to achieve the aforesaid purposes.
Clause (d). To Insure. To secure from insurers licensed and approved in the
State of Indiana appropriate fire-property damage coverage, comprehensive general
liability coverage and such other forms of insurance as may be deemed necessary or
appropriate.
Clause (e.). To Secure Services. To secure professional managerial services
by employing a professional manager, contracting with a professional management
service or entity, or otheIWise, which services may include administrative, managerial,
bookkeeping, legal, architectural, engineering, maintenance, repair, construction and
other services.
Clause (t). To ACQ)lire and Dispose ofPropeJ:tY. To acquire by gift, purchase
or other means, to own, hold, enjoy, lease, operate, maintain, convey, sell, transfer,
mortgage or otheIWise encumber or dedicate for public use, real or personal property
in connection with the business of the Corporation subject to the provisions of the
Declaration and all Supplemental Declarations.
Clause (g). To Borrow. To borrow money and, subject to the provisions of
the Declaration, to give, as security therefor, a mortgage or other security interest in
any or all real or personal property owned by the Corporation, or a pledge of monies
to be received pursuant to the provisions of the Declaration or any Supplemental
Declaration, and to assign and pledge its right to make Assessments and its rights to
claim a lien therefor.
Clause (h). To Appoint a Fiscal Agent. To appoint any Person as its fiscal
agent to collect all Assessments and charges levied by the Corporation and to enforce
the Corporation's liens for unpaid Assessments and charges or any other lien held by
the Corporation.
Clause (i). To Make Contracts. To enter into, perform., cancel and rescind
all kinds of contractual obligations, including the guarantee of the obligations and
performance of others.
Clause (j). To Act With Others. To perform any act which the Corporation
acting alone has the power and capacity to perform by acting as a partner or
otherwise in association with any Person or Persons, whether legally constituted or
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Clause (k). To Pay. To pay all Operating Expenses, including all licenses,
taxes or governmental charges levied or imposed against the Property to the extent
the same is separately assessed against the Property.
Clause (1). To Merge. To participate in mergers and consolidations with
other not-for-profit corporations organized for the same purpose.
Clause (m). To Otherwise Act. To have and to exercise any and all powers,
rights and privileges which a corporation orgailized under the Act may now or
hereafter have or exercise.
Section 2.05. Limitations Upon Powers. No part of the net earnings of the Corporation shall
inure to the benefit of any Director or Officer of the Corporation or to any private individual, except
that the Corporation shall be authorized and empowered to pay reasonable compensation for services
rendered by a Director, Officer or employee and to pay principal and interest at a reasonable rate not
exceeding current market rates on funds loaned or advanced by a Director or Officer to the
Corporation. No substantial part of the activities of the Corporation shall consist of attempting to
propose, support, oppose, advocate the adoption or rejection of, or otherwise influence legislation
by propaganda or otherwise, and the Corporation shall not participate in or intervene (including the
publication or distribution of statements) in any political campaign on behalf of, or in opposition to,
any candidate for public office. Notwithstanding any other provision of these Articles, the
Corporation shall not conduct or carty on any activities not permitted to be conducted or carried on
by an organization exempt from federal taxation under Section 528 of the Code and the Applicable
Regulations or the corresponding provisions of any subsequent federal tax laws if the effect thereof
is to subject the gross income of the Corporation to federal income taxation at rates established for
corporations engaged in business for profit unless the purposes of the Corporation set forth in Section
2.02 of these Articles cannot otherwise be achieved.
ARTICLE 3
Registered Office and Registered Agent
. Section 3.01. Registered Office. The street address of the registered office of the
Corporation is 12722 Hamilton Crossing Boulevard, Carmel, Indiana 46032.
Section 3.02. Registered Agent. The name of the registered agent of the Corporation at the
registered office is George P. Sweet.
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ARTICLE 4
Membership
Section 4 01. Classes of Membership. The Corporation shall have two (2) classes of
members as follows:
Clause (a). Class A. Every Person who is an Owner of a Commercial Lot
shall be a Class A member of the Corporation. Class A membership shall be
appurtenant to and may not be separated from the ownership of a Commercial Lot.
Clause (b). Class B. Every Person who is an Owner of a Residential Lot shall
be a Class B member of the Corporation. Class B membership shall be appurtenant
to and may not be separated from the ownership of a Residential Lot.
Section 4.02. Voting Rights.
Clause (a). Class A Members. Each Commercial Lot shall have appurtenant
thereto one (1) vote, which may be cast by the Owners thereof who are present in
person or by proxy pursuant to the voting procedures established herein and in the
By-Laws.
Clause 0>). Class B Members. Each Residential Lot shall have appurtenant
thereto one (1) vote which may be cast by the Owners thereofwho are present in
person or proxy pursuant to the voting procedures established herein and in the By-
Laws.
Clause (c) Casting of Votes. Members who are not natural Persons shall
designate by written notice to the' Secretary of the Corporation the name of an
individual who is authorized to exercise the right of such member to vote. The name
of such individual shall be kept on the records of the Corporation and may be changed
only by written notice to the Secretary.
Clause (J:I). Tabulation of Votes. Except as may be otherwise required by the
Declaration, a Supplemental Declaration or these Articles, in any matter upon which
a vote of the Class A or Class B members is required or allowed, the votes of Class
A members and Class B members, or the votes of all Members, as applicable, shall be
totaled and considered as though there were a single class of membership.
Section 403. Termination ofMembershiJ'.
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Clause (a). Class A Members. Membership in the Corporation shall lapse and
terminate when a Class A member ceases to be an Owner of a Commercial Lot.
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Clause (b). Class B Members. Membership in the Corporation shall lapse and
terminate when a Class B member ceases to be an Owner of a Residential Lot.
Section 404. Suspension of Membership Rights. No Member may be expelled from
membership in the Corporation for any reason. The Board of Directors shall have the right to
suspend the voting rights of a Member for a period during which any Assessment or charge owed by
the Member remains unpaid in excess of thirty (30) days.
Section 405. Meetings of Members. All meetings of the Members shall be held at such place
within the State of Indiana as may be designated by the Board of Directors pursuant to the provisions
of the By-Laws.
Section 4 06. No Other Preferences. etc. There shall be no other preferences, limitations, or
restrictions with respect to the relative rights of the Members.
ARTICLE 5
Directors
Section 5.01. Number of Directors. The initial Board of Directors of the Corporation shall
consist of three (3) members. The number of Directors of the Corporation shall be specified from time
to time in the By-Laws, but the minimum number shall be three (3) and the maximum number shall
be fifteen (15) and, if the By-Laws fails to specify the number, then the number shall be three (3).
Section 5 02. Initial Directors. The initial members of the Board of Directors are David
Warshauer, Glenda S. Garrison and Donna Park.
Section 5.03. Appointment of Directors. Prior to the Applicable Date, members of the Board
of Directors shall be appointed by Developer. Thereafter they shall be elected by the Members in
accordance with the provisions of the Declaration, Supplemental Declarations and the Code of By-
Laws.
ARTICLE 6
Incorporator
Section 6 01. Name and Address of IncOJ:porator. The name and post office address of the
incorporator is as follows:
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Post Office Address
T om Charles Huston
11 South Meridian Street, Suite 13 13
Indianapolis, Indiana 46204
ARTICLE 7
Provision for Regulation and Conduct
of the Affairs of Corporation
Section 7 01. Management of CotPoration. The affairs of the Corporation shall be managed
by the Board of Directors in accordance with the requirements of the Declaration and all
Supplemental Declarations.
Section 7 02. Code of By-Laws. Subject to the provisions of Sections 7.04 and 7.05, the
Board of Directors of the Corporation shall have the power, without the assent of the Members, to
make, alter, amend, or repeal the By-Laws; provided, however, that the By-Laws may not be
amended so as to conflict with the provisions of the Declaration or any Supplemental Declaration.
Section 7.03. Amendment of Articles of Incor:poration. The Corporation reserves, subject
to the provisions of Sections 7.04 and 7.05, the right to amend, alter, change or repeal any provisions
contained in the Articles or in any amendment hereto, in any manner now or hereafter prescribed or
permitted by the Act or any amendment thereto; but such power of amendment does not authorize
any amendment that would permit any part of the net earnings of the Corporation to inure to the
benefit of any private individual, that would modify the provisions of Section 2.05 if such
modification would have the effect of disqualifying this Corporation as an organization exempt from
Federal income taxation under the provisions of Section 528 of the Code, as amended, or such
equivalent provision as may hereafter exist from time to time, or that would be in conflict with the
provisions of the Declaration or any Supplemental Declaration.
Section 704. Approval by Developer. Prior to the Applicable Date, each amendment to
these Articles and to the Code of By-Laws must be approved in writing by Developer.
Section 705. Special A,pproval ReQJlirement. Subsequent to the Applicable Date, no
amendment to these Articles or to the Code of By-Laws which adversely and disproportionately
affects the rights and interests of a Class A member or which deletes or modifies the last sentence of
Section 3.04 of the Code of By-Laws shall be adopted unless first approved by more than fifty
percent (50%) of the Class A members. .
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ARTICLE 8
Dissolution
Section 8 01. Dissolution. In the event of dissolution of the Corporation, assets remaining
after payment of all debts of the Corporation shall be transferred by the Board of Directors to the City
of Indianapolis, Indiana to be used for purposes similar to those for which this Corporation was
organized. If such transfer is refused, then such assets shall be transferred by the Board of Directors
to the State of Indiana, or any instrumentality or subdivision thereof, exclusively for public purposes,
or to any nonprofit corporation, trust, foundation or other organization whose purposes are
substantially the same as one or more of the purposes of the Corporation set forth in Section 2.02
hereof and which, at the time oftiansfer, is exempt from Federal income taxation under Sections
501(c)(3), 501(c)(4) or 528 of the Code or the corresponding provisions of any subsequent federal
tax laws. Any such assets not so transferred by the Board of Directors shall be disposed of by the
Circuit Court of Marion County, Indiana exclusively for such charitable purposes or to such charitable
organization as the Court shall determine. No Director or Officer of the Corporation, or any private
individual, shall be entitled to share in the distribution of any of the assets of the Corporation on
dissolution of the Corporation.
ARTICLE 9
Definitions
Section 9 01. Terms. The following terms, as used in these Articles, and in the By-Laws,
unless the context clearly requires otherwise, shall mean the following:
"Ag" means The Indiana Nonprofit Corporation Act of 1991, as amended from time
to time.
".Applicable Daten means the earlier of (i) the date when all Lots in the Development
Area have been improved by the construction thereon of Units or (ii) December 31,
2015.
"Applicable Regulations" means the regulations issued with respect to referenced
provisions of the Code by the Internal Revenue Service as the same may be amended
from time to time.
"Articles" means the Articles of Incorporation of the Corporation, as amended from
time to time.
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"Assessment" means all sums lawfully assessed against the Members by the
Corporation or as declared by the Declaration, a Supplemental Declaration, the
Articles or the By-Laws.
"Board of Directors" means the governing body of the Corporation.
"By-Laws" means the Code of By-Laws of the Corporation, as amended from time
to time.
"~" means the Internal Revenue Code of 1986, as amended.
"Commercial Lot" means any Lot upon which a Commercial Unit, a Multifamily
Structure or a Multiuse Structure has or may lawfully be constructed in accordance
with the applicable zoning ordinances and the General Plan of Development then in
effect.
"Commercial Unit" means any structure or portion thereof situated on the Tract
which is designed and intended for use and occupancy for commercial purposes.
"Common Facilities" has the meaning specified in the Declaration.
"Community Area" has the meaning specified in the Declaration.
"Cor:poration" means The Village of West Clay Owners Association, Inc., an Indiana
non-profit corporation.
"Declaration" means the Declaration of Covenants, Conditions and Restrictions for
The Village of WestClay which has been or will be recorded in the office of the
Recorder of Hamilton County, Indiana, as the same may be amended from time to
time.
"Developer" means Brenwick TND Communities, LLC, its successors and assigns to
its interest in the Tract other than Owners purchasing Lots by deed from Developer
(unless the conveyance indicates an intent that the grantee assume the rights and
obligations of Developer).
''Development Area" means the real estate described in Exhibit B to the Declaration.
"Electoral Parcel" means a Parcel the Supplemental Declaration of which specifies
that the Owners of Lots in the Parcel shall be entitled to elect a member to the Board
of Directors to represent such Parcel. .~
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"General Plan of Development" means that plan prepared by Developer and approved,
if necessary, by appropriate public agencies that outlines the total scheme of
development and general uses of land in the Development Area, as such may be
amended from time to time.
"Living Unit" means any structure or portion thereof situated on the Tract that is
designed and intended for use and occupancy as a residence by a single family.
"1&1" means (1) any platted lot or other plot ofland in the Tract shown upon any
recorded subdivision plat with the exception of the Community Area and Common
Parking Lots, (2) any Condominium, (3) any part of the Tract designated in a
recorded instrument as a "Lot", and (4) any other part of the Tract acquired by an
Owner or used by Developer for the construction or operation of, or occupancy as,
a Unit, a Multifamily Structure or a Multiuse Structure.
"Member" means a Class A or Class B member of the Corporation and "Members"
means Class A and Class B members of the Corporation.
"Multifamily Structure" means a structure with two or more Living Units under one roof,
except when such Living Units are situated upon their own individual Lots, are
Condominiums or are located in a Multiuse Structure.
"Multiuse Structure" means a structure which contains one or more Commercial Units
on the ground floor and one or more Living Units on the second and/or third floor.
"Occupant" means any Person who is in possession of a Unit either as an Owner or
as a lessee pursuant to a written lease having an initial term of at least twelve (12)
months.
"Operating Ex:penses" means expenses of administration of the Corporation and
expenses for the upkeep, maintenance, repair and replacement of the Community Area
and other Property.
"Owner" means a Person, including Developer, who at the time has or is acquiring any
interest in a Lot except a Person who has or is acquiring such an interest merely as
security for the performance of an obligation.
c~" means the real estate descnbed in Exhibit D to the Declaration and all platted
subdivisions, parcels of land, or Horizontal Property Regimes consisting of one or
more Lots that are subject to the same Supplemental Declaration or are declared by
Developer to constitute a "Parce!," but excluding therefrom Community Area.
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"Person" means an individual, firm, corporation, partnership, association, joint
venture, trust or other legal entity, or any combination thereof
"Property" means the Community Area and appurtenant easements, Common
Facilities and all improvements and other property of every kind and nature
whatsoever, real, personal or mixed, located upon the Community Area or used or
held for use in connection with the business or operation of the Corporation.
"Regulations" means the regulations issued pursuant to the Code as the same may be
amended from time to time.
"Residential Lot" means a Lot which is used or intended for use for residential
pwposes exclusive of Lots upon which a Multifamily Structure or Multiuse Structure
is located.
"Section" means that portion of the Development Area that is depicted on a
secondary plat.
"Suwlemental Declaration" means any declaration of covenants, conditions,
restrictions or horizontal property regime that may be recorded and which extends the
provisions of the Declaration to a Parcel or a Section and contains such
complementary provisions for such Parcel as are required or permitted by the
Declaration.
"Ira&t" means the real estate described in Exhibit A to the Declaration.
"lIJili" means any Living Unit or Commercial Unit, and '~" means all Living Units
and Commercial Units.
"Villaie Center" means that part of the Tract depicted on the Development Plan as
the "Village Center".
"VillS,ie Center Owners Association" means the W estClay Village Center Owners
Association, Inc., an Indiana nonprofit corporation.
"WestClay" means the planned unit development to be developed or as developed on
the Tract.
Section 9 02. Other Terms. Any undefined term used herein or in the By-Laws shall, unless
the context requires otherwise, have the meaning set forth in Paragraph 1 of the Declaration.
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IN WITNESS WHEREOF, the undersigned, being the Incorporator designated in Article 6,
executes these Articles of Incorporation this ~ day of ~ ' 1999.
~~Qj
Tom Charles Huston '--
INDSOl TCH 302364
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