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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
THIS DECLARATION made this 1st day of October 2002 by
Boomerang Development, LLC (hereinafter referred to as the
"Developer" as the term applies solely to the subdivision to be
known: as Claybourne) .
WITNESSETH:
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WHEREAS, Boomerang Development, LLC is the owner of the
lands' contained in the area shown on Exhibit "A" at such time
that 1=:his Declaration shall be recorded. Said'Exhibit "A"
attached hereto and made a part hereof, which lands will be
subdivided and known collectively as Claybourne (hereinafter
referred to as the "DevelopmentTl), and will be more particularly
described on the plats of the various sections thereof recorded
and to be recorded in the office of the Recorder of Hamilton
County, Indiana and
WHEREAS, the Developer is about to sell and convey the
residential lots situated within the platted areas of the
Development and before doing so desires to subject and impose
upon all real estate within the platted areas of the Development
mutual and beneficial restrictions, covenants, conditions, and
charges (hereinafter referred to as the "Restrictions") under a
general plan or scheme of improvement for the benefit and
complement of the lots and lands in the Development and the
future owners thereof:
NOW, THEREFORE, the Developer hereby declares that all of
the platted lots and lands located within the Development as
they become platted are held and shall be held, conveyed,
hypothecated or encumbered, leased, rented, used, occupied and
improved, subject to the following Restrictions, all of which
are declared and agreed to be in furtherance of a plan for the
improvement and sale of said lots and lands in the Development,
and are established and agreed upon for the purpose of enhancing
and protecting the value, desirability and attractiveness of the
Development as a whole and of each of said lots situated
therein. All of the Restrictions shall run with the land and
shall be binding upon the Developer and upon the parties having
or acquiring any rightj title or interest, legal or equitable,
in and to the real property of any part or parts thereof subject
to suth Restrictions, and shall inure to the benefit of the
Developer and everyone of the Developer's successors in title
to any real estate in the Development. The Developer
specifically reserves unto itself the right and privilege, prior
to the recording of the plat by the Developer of a particular
lot or tract within the Development as shown on Exhibit "A", to
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exclu?e any real estate so shown from the Development, or to
include additional real estate.
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1. Definitions
The following are definitions of the terms as they are used
ln this Declaration:
A. "Committee" shall mean the Claybourne Development
Control Committee composed of three members appointed by the
Developer who shall be subject to removal by the Developer at
any time with or without cause. Any vacancies from time to time
existing shall be filled by appointment of the Developer. The
Developer may, at its sole option, at any time hereafter
relinquish to the Association the power to appoint and remove
one or more meniliers of the Committee.
B. "Association" shall mean the Claybourne Property Owners
Association, Inc. a not-for-profit corporation, the membership
and powers of which are more fully described in Paragraph 11 of
this Declaration.
C. "Lot" shall mean any parcel of real estate excluding
"Blocks", whether residential or otherwise, described by one of
the plats of the Development which is recorded in the Office of
the Recorder of Hamilton County, Indiana.
b. Approvals, determinations, permissions, or consents
requited herein shall be deemed given if they are given in
writing, signed with respect to the Developer or the
Association, by the President or a vice President thereof, and
with respect to the Committee, by two members thereof.
E. "Owner" shall mean a person who has or is acquiring any
right, title or interest, legal or equitable, in and to a lot,
but excluding those persons llaving such interest merely as
security for the performance of an obligation.
F. ~Declarantn shall mean Boomerang Development, LLC.
2. CHARACTER OF THE DEVELOPMENT.
A. In General. Every lot in the Development, unless it is
otherwise designated by the Developer, is a residential lot and
shall be used exclusively for single-family residential
purposes. No structures shall be erected, placed or permitted
to remain upon any of said residential lots except a single-
family dwelling house.
B. Residential Use of Accessory Outbuildings Prohibited.
No accessory outbuildings shall be erected on any of the
residential lots.
C. Occupancy or Residential Use of Partially Completed
Dwelling House Prohibited. No dwelling house constructed on any
of the residential lots shall be occupied or used for
residential purposes or human habitation until it shall have
been substantially completed. The determination of whether the
house shall have been substantially completed is subject to the
rules, regulations and ordinances of The City of Carmel and of
its building commissioners.
D. Other Restrictions. All tracts of ground in the
Deve16pment shall be subject to the easements, restrictions and
limit~tions of record appearing on the recorded plat of the
subdi~ision, on recorded easements, rights-of-ways, and also to
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all governmental zoning authority and regulation affecting the
Development, all of which are incorporated herein by reference.
E. Corner Lots. Corner lots are considered unique in that
they have double road frontage and thus effectively have two (2)
front yards. Concerning this Declaration, the side yard common
to the adjacent street right-of-way will be considered a front
yard on corner lots.
3. GENERAL RESTRICTIONS
A, Fences. The Committee, prior to any installation, must
approve any fencing, walls, mounds, and landscape screening, It
is the goal to keep all fencing or screening harmonious with the
architectural character of the community, No fence or screen
will be approved which obstructs necessary sight lines for
vehicular traffic. Undue obstruction of views from adjoining
properties and amenity areas will be taken into consideration by
the Committee when reviewing fences for approval. No front yard
fencing is permitted, except on a Lot on which there is
maintained a sales office or model home by Declarant or a
Builder. All fences must be professionally installed. The
Owner shall keep all fences in good repair, No fences shall be
located any closer to the front lot line than a point ten (10)
feet back front the front corners of the residence.
Notwithstanding any other provision of this Declaration to the
contrary, invisible electronic fences designed to restrict the
movement of animals are expressly permitted. Notwithstanding
any other provision of this Declaration to the contrary, on a
corner lot, no fences will be allowed between the side building
line and the adjacent street right-of-way. No fences are
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allowed in easements and, if erected, are erected at the Owner's
risk as such fences may be partially or completely torn down by
others if said fences interfere with the installation,
operation, and/or maintenance of the facilities for which the
easem~nt has been reserved. Any fence located along a common
area or a perimeter boundary of the Development shall be of
uniform size, materials, height, and design to be determined by
"Committee".
(i) Height Restrictions: The Committee shall
determine the height of fences and walls; provided,
however, that the following maximum heights of walls and
fences shall not exceed the following:
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a. Black wrought iron fencing shall not exceed
SlX (6) feet ln height;
b. Wood or vinyl/PVC fencing shall not exceed
four (4) feet in height; provided, however, that this
restriction may be waived by the Committee to enclosed
an in-ground pool;
c. Lot fencing and walls shall not exceed six (6)
feet above grade;
d. Patio screens/privacy fences adjoining the
rear of the Dwelling Unit shall not exceed six (6)
feet ln height; and
e. No fence located on a Lot abutting a Pond
shall exceed forty-two (42) inches in height beyond a
point sixteen (16) feet from the rear line of the
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Dwelling Unit. However, this restriction may be
waived by the Committee to enclose an in-ground pool.
(ii) Material and Finish. Black wrought iron fencing
is preferred. However, the committee may allow wood
fencing. Also, vinyl or PVC "picket" fencing may be
allowed. If a wood picket fence is to be painted, then it
should be maintained, at all times, in a "like newU
condition. Chain link fencing is prohibited. The
Committee must approve all fencing materials, design, and
location. Walls above grade must be constructed of natural
stone, masonry, black wrought iron or shadow box fencing.
The Committee will approve landscape screening material,
design, and location on an individual basis.
(iii) Approval. The exact location, materialt color
and height of the fence and rendering or photograph thereof
shall be submitted to the Committee for written approval at
least thirty (30) days prior to proposed construction. If
however, approval has not been issued by the Committee in
writing within thirty (30) days after submission, then said
request shall be considered DENIED.
B. Trees. Every lot must have at least two trees of a
species acceptable to the Committee and to the City of Carmel
growing upon it in the front yard by the first planting season
after the house lS completed.
C. Driveway. All driveways must be paved with asphalt or
concrete from their point of connection with the abutting street
or road.
D. Diligence in Construction. Every building whose
construction or placement on any residential lot in the
Development is begun shall be completed within (9) months after
the beginning of such construction or placement. No improvement
which has partially or totally been destroyed by fire or
otherwise, shall be allowed to remain in such state for more
than three (3) months from the time of such destruction or
damage.
~. Maintenance of Lots and Improvements. The owner of any
lot iri the Development shall at all times maintain the lot and
any improvements situated thereon in such a manner as to prevent
the lot or improvements from becoming unsightly; and,
specifically, such owner shall:
(i) Mow the lot at such times as may be reasonably
required in order to prevent unsightly growth of vegetation
and noxious weeds.
(ii) Remove all debris or rubbish.
(iii) Prevent the existence of any other condition
that reasonably tends to detract from or diminish the
aesthetic appearance of the Development.
(vi) Cut down and remove dead trees.
(v) Keep the exterior of all improvements in such a
state of repair or maintenance as to avoid their becoming
unsightly.
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(vi) Within sixty (60) days following completion of a
house on a lot, the owner shall landscape the lot, weather
permitting.
(vii) The owner of any lot abutting or adjacent to a
retention pond or lake within a Common Area as defined in
paragraph 10 shall maintain the Common Area, which lies
immediately adjacent to and between the lot and the
waterline of the pond or lake to prevent unsightly growth
or weeds.
F. Association's Right to Perform Certain Maintenance. In
the event that the owner of any lot in th~ Development shall
fail to maintain his lot and any improvements situated thereon
in accordance with the provisions of these Restrictions, the
Association shall have the right, but not the obligation, by and
through its agents or employees or contractors, to enter upon
said lot and repair, mow, clean or perform such other acts as
may be reasonably necessary to make such lot and improvements
situated thereon, if any, conform to the requirements of these
Restrictions. The cost therefor to the Association shall be
added to and become a part of the annual charge to which said
lot is subject and may be collected in any manner in which such
annual charge may be collected. Neither the Association nor any
of its agents, employees, or contractors shall be liable for any
damage, which may result from any maintenance work performed
hereunder.
G. Ditches and Swales. It shall be the duty of the owner
on every lot in the Development on which any part of any open
storm drainage ditch or swale is situated to keep such portion
thereof as may be situated upon the lot continuously
unobstructed and in good repair, and to provide for the
installation of such culverts upon said lot as may be reasonably
necessary to accomplish the purposes of this subsection. All
owners shall be responsible to maintain the grading of their
respective lots as defined by the Claybourne construction plans
as prepared by Schneider Engineering and approved by The City of
Carmel and The Clay Township Regional Waste District. Any
accumulation of silt or change in grading caused by sump-pump
discharge, downspout run-off, general drainage or the dispersal
of excavation spoilage, which creates standing water, or an
improper drainage condition shall be the responsibility of the
property owner to remove and correct.
H. Sump-pumps. Drainage swales are designed to channel
storm water runoff to a collection basin. Drainage swales are
not designed for sump-pump discharge and will not function in
this papacity. when a sump-pump is outlet directly into a
drainage ditch or swale, vegetation will die, soil will erode
and the ditch or swale will be continuously wet and soggy.
Therefore, all sump-pumps must be connected to a perforated
drainage tile that has been trenched beneath the ground surface
and outlet directly into a storm sewer structure. This is the
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responsibility of the homeowner, not the developer. The exact
location of a storm sewer structure and the length of perforated
drainage tile necessary to properly outlet a sump-pump will vary
per lot. Damage caused by sump-pump discharge into an open ditch
or swale will be the direct responsibility of the homeowner.
I. Retention Ponds. There are or will be retention pon'ds
within the Development.
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4. PROVISIONS RESPECTING DISPOSAL OF SANITARY WASTE.
A. Nuisance. No outside toilets shall be permitted on any
lot in the Development (except during a period of construction
and then only with the consent of the Committee), and no
sanitary waste or other wastes shall be permitted to enter any
storm drain. By purchase of a lot, each owner agrees that any
violation of this paragraph constitutes a nuisance, which may be
abated by the Developer, or the Association in any manner
provided at law or in equity. The cost or expense of abatement,
including court costs and attorney's fees, shall become a charge
or lien upon the lot, and may be collected in any manner
provided bylaw or in equity for collection of a liquidated debt.
Neither the Developer, nor the Association, nor any
officer, agent, employee nor contractor thereof, shall be liable
for any damage, which may result from enforcement of this
paragraph.
B. Construction of Sewage Lines. All sanitary sewage lines
on the residential building lots shall be designed and
constructed in accordance with the provisions and requirements
of the Hamilton County Board of Health and The City of Carmel
and The Clay Township Regional Waste District. No storm water
(subsurface or surface) shall be discharged into sanitary
sewers.
C. Sanitary sewer and utility easements allow for the
construction, extension, operation, inspection, maintenance,
reconstruction, and removal of sanitary sewer facilities and
gives The City of Carmel and The Clay Township Regional Waste
District the right of ingress/egress.
E. Any landscaping placed within easements or right-of-ways
is at the risk of being removed by utilities without the
obligation of replacement.
F. Mounding, lighting, fencing, signs,
retaining/landscaping/entrance walls, irrigation lines, etc.
placed within easements or right-ai-ways is at the risk of being
removed by utilities without obligation of replacement.
G. Any discharge of clear water sources (foundation drains,
sump pumps, roof drains, etc.) into the sanitary sewer system is
strictly prohibited.
5. INDIVIDUAL LIGHTS REQUIRED ON EACH LOT IN THE DEVELOPMENT.
At the time that the owner of the lot in the Development
completes the construction of a home on his lot, he shall
install or cause to have installed a dusk to dawn yard light in
the front yard of his lot or dusk to dawn coach lights mounted
on the garage if permitted. The design, type and location of
the lights shall be subject to the approval of the Committee
which may require, for the purpose of uniformity and appearance,
that said lights be purchased from the Developer or its
designee. Garage, mounted dusk to dawn coach lights may be
substituted for a yard light at the discretion of the builder.
6. MAILBOXES.
Owners of a lot in the Development shall install or cause
to have installed a mailbox, which shall be in accordance with~
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the design, type and location of a mailbox approved by the
Committee. The Committee may require, for the purpose of
uniformity and appearance, that the mailbox be purchased from
the Developer or its designee.
~. GENERAL PROHIBITIONS.
A. In General. No noxious or offensive activities shall be
carried on any lot in the Development, nor shall anything be
done on any said lots that shall become or be an unreasonable
annoyance or nUlsance to any owner of another lot in the
Development.
B. Signs. No signs or advertisements shall be displayed or
placed on any lot or structures in the Development without the
prior written approval of the Committee except for real estate
sales signs.
C. Animals. No animals shall be kept or maintained on any
lot in the Development except the usual household pets, and, in
such ~ase, such household pets shall be kept reasonably confined
so as not to become a nuisance.
D. Vehicle Parking. No campers, motor homes, semi-trucks,
trail~rs, boats, or disabled or unlicensed vehicles shall be
parked on any street or lot in the Development. No boat or
truck~ one (1) ton or larger in size, shall be parked for
overnight or longer storage on any lot in the Development, nor
shall! any vehicle be parked on any street within the Development
for more than two consecutive nights.
E. Garbage and Other Refuse. No owner of a lot in the
Development shall burn or permit the burning out of doors of
garbage or other refuse, nor shall any such owner accumulate or
permit the accumulation out of doors of such refuse on his lot
except as may be permitted in Subparagraph F below. All houses
built in the Development shall be equipped with a garbage
disposal unit.
F. Trash Receptacles. Any receptacle for ashes, trash,
rubbish or garbage shall be so placed and kept as not to be
visible from any street within the Development at any time,
except at the times when refuse collections are being made.
G. Model Homes. No owner of any lot in the Development
shall build or permit the building upon said lot of any dwelling
house that is to be used as a model home or exhibit house
without permission to do so from the Developer.
H. Temporary Structures. No temporary structure of any
kind, such as a house, trailer, tent, garage or other
outbuilding shall be placed or erected on any lot nor shall any
overnight camping be permitted on any lot without permission to
do so from the Developer.
I. Wells and Septic Tanks. No water wells shall be drilled
on any of the lots nor shall any septic tanks be installed on
any of the lots in the Development, without the approval of the
Committee.
J. Prohibition of Antennas.
televlsion antennas and/or dishes
Development, without the approval
No exposed radio, cable and
shall be permitted within the
of the Committee. Satellite
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dishes will not be permitted to be installed on the front of a
house or within fifteen (15) feet of the front of the house.
K. Swimming Pools. In ground swimming pools may be
permitted but must be approved by the Committee. Above ground
swimming pools will not per permitted in Claybourne.
L. Basketball Goals. Portable basketball goals shall not
be placed within the street right-of-way, including any public
walk, and shall not be left outdoors overnight.
M. Mini Barns. There will be no mini-barns or outbuildings
of any kind on any lot located in Claybourne.
N. Trampolines. Trampolines may be allowed on a daily
basis in Claybourne with the approval of the committee. When
allowed, trampolines may not be left outdoors overnight. They
must be stored inside the house, garage, or stored offsite of
the development.
O. Swing~sets and Play Structures. Swing-sets and other
children's play structures may be permitted but must be approved
by the Committee. Only wood, professionally constructed play
structures will be allowed in Claybourne.
8. DEVELOPMENT CONTROL COMMITTEE
A. Statement of Purposes and Powers. The Committee shall
regulate the external design, appearance, use, location and
maintenance of lands subject to these Restrictions and
improvements thereon, in such a manner as to preserve and
enhance values and to maintain a harmonious relationship among
structures and the natural vegetation and topography.
! (i) Generally. No dwelling, building structure or
~mprovement of any type or kind shall be constructed or
placed on any lot in the Development without the prior
approval of the Committee, except for original home
construction by a builder who has entered into a contract
with the Developer to purchase lots. Such approval shall
be obtained only after written application has been made to
the Committee by the owner of the lot requesting
authorization from the Committee. Such written application
shall be in the manner and form prescribed from time to
time by the Committee, and shall be accompanied by two (2)
complete sets of plans and specifications for any such
proposed construction or improvement. Such plans shall
include plot plans showing the location of all improvements
existing upon the lot arid the location of the improvement
proposed to be constructed or placed upon the lot, each
properly and clearly designated. Such plans and
specifications shall set forth the color and composition of
all exterior materials proposed to be used and any proposed
landscaping, together with any other materials or
information which the Committee may require. All building
plans and drawings required to be submitted to the
Committee shall be drawn to a scale of 1/4" ~ 11 and all
plot plans shall be drawn to scale of 1" == 30', or to such
other scale as the Committee shall require.
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(ii) Power of Disapproval. The Committee may refuse
to grant permission to construct, place or make the
requested improvement, when:
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(a) The plans, specifications, drawings or other
material submitted are themselves inadequate or
incomplete, or show the proposed improvement to be in
violation of these restrictions;
(b) The design or color scheme of a proposed
improvement is not in harmony with the general
surroundings of the lot or with adjacent buildings or
structures;
(c) The proposed improvement, or any part hereof,
would in the opinion of the Committee be contrary to
the interests, welfare or rights of all or any part of
other owners.
(iii) Power to Grant Variances. The Committee may
allow reasonable variances or adjustments of these
Restrictions where literal application would result in
unnecessary hardship, but any such variance or adjustment
shall be granted in conformity with the general intent and
purposes of these Restrictions and no variance or
adjustment shall be granted which is materially detrimental
or injurious to other lots in the Development. No variance
granted creates an allowance for said variance on other
lots within the development but provides for that variance
to be permitted solely as it applies to the designated lot.
B. Duties of Committee. The Committee shall approve or
disapprove proposed improvements within seven (7) days after all
required information shall have been submitted to it. One copy
of submitted material shall be retained by the committee for its
permanent files. All notification to applicants shall be in
writing, and, in the event that such notification is one of
disapproval, it shall specify the reason or reasons.
C. Liability of Committee. Neither the Committee nor any
agent thereof, nor the Developer, shall be responsible in any
way for any defects in any plans, specifications or other
materials submitted to it, nor for any defects in any work done
accor~ing thereto. Further, the Committee does not make any
representation or warranty as to the suitability or advisability
of th~ design, the engineering, the method of construction
involyed, or the materials to be used.
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D. Inspection. The Committee may inspect work being
performed with its permission to assure compliance with these
Restrictions and applicable regulations.
E. Continuation of Committee. When the Developer notifies
the A~sociation of discontinuance of his Development Control
Committee, then the Directors of the Association, or their
designees, shall continue the functions of the committee with
like powers.
9. RULES GOVERNING BUILDING ON SEVERAL CONTIGUOUS LOTS HAVING
ONE OWNER.
Whenever two or more contiguous lots in the Development
shall be owned by the same person, and such owner shall desire
to use two or more of said lots as a site for a single-dwelling
house, he shall apply in writing to the Committee for permission
to so use said lots. If permission for such a use shall be
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granted, the lots constituting the site for such single-dwelling
house shall be treated as a single lot for the purpose of
applying these Restrictions to said lots, so long as the lots
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rE:main improved with one single-dwelling house.
10. OWNERSHIP, USE AND ENJOYMENT OF COMMONS.
"CommonsfO and "Commons AreafO shall mean those areas set
aside as "Blocks" for conveyance to the Association, as shown on
the plats. Any Commons depicted on the recorded plats of the
Development shall remain private, and neither the Developer's
execution of recording of the plats nor the doing of any other
act by the Developer is, or is intended to be, or shall be
construed as, a dedication to the public of the Commons.
However, the Developer does reserve the right to dedicate
particular "Blocks" to the public via a recognized public
authority such as a City or County or their respective park
boards.
A license upon such terms and conditions as the Developer,
and the successors, assigns or licensees of the Developer, shall
from time to time grant, for the use and enjoyment of the
commons, is granted to the persons who are from time to time
members of the Association. Ownership of any commons shall be
conveyed in fee simple title, free of financial encumbrances to
the Association upon their completion. Such conveyance shall be
subject to easements and restrictions of record, and such other
conditions as the Developer may at the time of such conveyance
deem appropriate. Such conveyance shall be deemed to have been
accepted by the Association and those persons who shall from
time to time be members thereof upon the recording of a deed or
deeds conveying such Commons to the Association.
11. CLAYBOURNE PROPERTY OWNERS ASSOCIATION, INC.
A. In General. The Declarant has or will create within SlX
months of the recording of a Secondary Plat of the Real Estate,
under the laws of the State of Indiana, a not-for-profit
corporation to be known as the Claybourne Property Owners
Association, Inc., referred to as the "Association". Every
owner of a residential lot in the Development shall be a member
of the Association and shall be subject to all the requirements
and limitations imposed in these Restrictions on other owners of
residential lots within the Development and on members of the
Association, including those provisions with respect to the
payment of an annual charge.
B. Classes of Membership. The Corporation shall have two
(2) classes of voting membership, as follows:
Class A. Class A members shall be all Owners of Lots,
with the exception of the Declarant prior to termination of
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Class B membership, and shall be entitled to one (1) vote
for each Lot owned with respect to each matter submitted to
a vote of members upon which the Class A members are
entitled to vote. When more than one person holds title to
any Lot, all such persons shall be members. The vote for
such Lot shall be exercised as they among themselves
determine, but in no event shall more than one vote be cast
with respect to anyone lot. There can be no split vote.
Prior to or at the time of any meeting at which a vote is
to be taken, each co-Owner or other person entitled to a
vote at such meeting shall file with the Secretary of the
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Corporation the name of the voting co-Owner or other person
entitled to vote at such meeting, unless such co-Owner or
other persons have filed a general voting authority with he
Secretary applicable to all votes until rescinded.
Class B. The Class B Member(s) shall be the Declarant
and all successors and assigns of Declarant designated by
Declarant as Class B members in a written notice mailed or
delivered to the resident agent of the Corporation. Each
Class B member shall be entitled, on all matters requiring
a vote of the membership of the Corporation, to five (5)
votes for each Lot owned by it and five (5) votes for each
fifteen-one hundredths (15/100) of an acre or part thereof
which has been subjected to the Declaration as part of the
Development (as defined in the Declaration) but not
subdivided into Lots and other areas by the recording of a
~ubdivision plat. The Class B membership shall cease and
terminate upon the first to occur of (a) the date upon
which the written resignation of the Class B members as
such is delivered to the resident agent of the Corporation;
"(b) one hundred twenty (120) days after seventy-five
percent (75%) of the Lots in the Property have been
conveyed to Owners other than Declarant; provided, however,
that for the purpose of making any determination under this
subsection (b) it shall be assumed that there are 75 lots
in the Development whether or not there are in fact such
number of Lots in the Development at any time; (c) six (6)
years after the date of recording of the first conveyance
of a Lot to an Owner other than Declarant.
Declarant shall be entitled to Class A memberships for all
Lots of which it is the Owner on or after the termination of
Class B membership.
C. Board of Directors. The Board of Directors of the
Association shall be elected or appointed. The Board of
Directors shall manage the affairs of the Association.
D. Professional Management. No contract or agreement for
professional management of the Association shall be for a term
in excess of three (3) years. Any such agreement or contract
shall provide for termination by either party with or without
cause without any termination fee by written notice of ninety
(90) days or less.
E. Responsibilities of the Association.
(i) The Association shall maintain the landscaping and
any improvements that may be constructed or installed in
and along Blocks "E,F,G, and H" as well as the landscaping
within the median of Airhart Boulevard, north of 131st
Street. These areas shall be kept in neat, clean and
presentable condition al all times.
(ii) The Association shall maintain and repair the
entryway monuments, lighting and irrigation systems at the
entry to Claybourne on 131st Street and on Shelbourne Road.
(iii) The Association shall procure and maintain
casualty insurance for the Common Areas, liability
insurance (including director's and officer's insurance)
~nd such other insurance as it deems necessary or
advisable.
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(iv) The Association may contract for such service as
management, snow removal, security control, trash removal,
and such other services as the Association deems necessary
or advisable.
(v) The Association shall maintain any retention ponds
that are constructed as a result of the development. Also,
refer to Paragraph 3.E. (vii)
(vi) The Association shall maintain the street name
signs, regulatory signs, guide signs and warning sign in
Claybourne per the "Statement of Agreement and Liabilityu.
The Association is bound to the "Statement of Agreement and
LiabilityU with the Hamilton County Board of Commissioners
through the Hamilton County Highway Department.
12. COVENANT FOR MAINTENANCE ASSESSMENTS.
A. Creation of the Lien and Personal Obligation of
Assessments. Each owner of any lot in the subdivision, except
the Developer, by acceptance of a deed therefor, whether or not
it shall be so expressed in such deed, is deemed to covenant and
agree to pay to the Association: (1) annual assessments or
charges; and (2) special assessments for capital improvements
and operating deficits; such assessments to be established and
collected as hereinafter provided. The annual special
assessments, together with interest, cost, and reasonable
attorneys' fees, shall be a charge on the land and shall be a
continuing lien upon the property against which each such
assessment is made. Each such assessment, together with
inter~st, costs and reasonable attorneys' fees, shall also be
the personal obligation of the person who was the owner of such
I
property at the time when the assessment fell due. The personal
obligation for delinquent assessments shall not pass to his
successors in title unless expressly assumed by them. No charge
or as~essment shall ever be levied by the Association against
the Developer.
B. Purpose of Assessments. The assessments levied by the
Association shall be used exclusively to promote the health,
safety and welfare of the residents in the properties and for
the improvement and maintenance of the Common Areas and
improvements, operated or maintained by the Association, and the
landscape easements on the Development and other purposes as
specifically provided herein.
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C. Maximum Annual General Assessments. The Maximum annual
general assessment for the Association shall be Two Hundred and
Fifty.Dollars ($250.00) per lot until such time that the
swimming pool is operational when the maximum annual general
assessment shall be increased to Four Hundred and Fifty Dollars
($450.00)
i. The maximum annual general assessment may be
increased by the Board each year not more than 10% above
the maximum annual general assessments permitted for the
previous year without a vote of the membership of the
Association.
ii. The maximum annual general assessments may be
increased more than 10% over the maximum annual general
assessments permitted for the previous year only upon an
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approving vote of two-thirds (2/3rds) of each Class of
members who are eligible to vote at a meeting called for,
such purpose
b. Special Assessments for Maintenance of Shared Facilities
with Shelbourne Estates. Each lot in Claybourne is entitled to
the use and enjoyment of Blocks "H" and "J" in the Claybourne
development. Each Shelbourne Estates lot shall be assessed in
an amount equal of 1/25Sth of the total cost of maintaining
Blocks "H" and "J". The treasurer of Claybourne shall annually
compile the identifiable costs associated with Blocks "H" and
"J" and submit .an invoice for payment to the Shelbourne Estates
treasurer. This payment shall be made by January 31st of the
calendar year when the expenses will be incurred. The payment
is not to be made in arrears. The Shelbourne Estates
Association shall then pay to the Claybourne Association the
respective proportion of the maintenance costs. Additionally,
each Shelbourne Estates lot is entitled but not required to
voluntarily join the Claybourne swimming pool. Each Shelbourne
Estates lot that wishes to belong to the Claybourne pool shall
pay to the Claybourne Association an amount equal to 110% of the
identifiable annual operational and capital reserve costs
associated with the pool as determined by the Claybourne
Association treasurer divided by the number of lots in
Claybourne or 1/216th
E. Special Assessments for Capital Improvements and
Operating Deficits. In addition to the annual assessments
authorized above{ the Association may levy a special assessment
for the purpose of defraying, in whole or in part{ the cost of
any construction, reconstruction, repair or replacement of any
capital improvement which the Association is required to
maintain or for operating deficits which the Association may
from time to time incur, provided that any such assessment shall
have the assent of a majority of the votes of the members who
are voting in person or by proxy at a meeting duly called for
this purpose.
r. Notice and Quorum for Any Action Authorized Under
Sectibn C and D. Written notice of any meeting called for the
purpose of taking any action authorized under Section C and D
shall' be sent to all members not less than thirty (30) days nor
more than sixty (60) days in advance of the meeting. At the
first! such meeting called, the presence of members or of proxies
I
entitled to cast sixty percent (60%) of all the votes of the
membership shall constitute a quorum. If the required quorum is
not present, another meeting may be call~d subject to the same
notice requirement, and the required quorum at the subsequent
meeting shall be one-half (1/2) of the required quorum at the
preceding meeting. No such subsequent meeting shall beheld more
than sixty (60) days following the preceding meeting.
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G. Date of Commencement of Annual Assessments: Due Dates.
The annual assessment provided for herein shall commence for
each lot on the date of conveyance to the owner by deed or on
the date the owner signs a land contract to purchase a lot.
Assessments shall be pro-rated for any partial year. The Board
of Directors shall fix any increase in the amount of the monthly
assessment at least thirty (30) days in advance of the effective
date of such increase. Written notice of special assessments
and such other assessment notices as the Board of Directors
shall deem appropriate shall be sent to every owner subject
thereto. The due dates for all assessments shall be established
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by the Board of Directors. The Association shall, upon demand,
and for a reasonable charge, furnish a certificate in recordable
form signed by an officer of the Association setting forth
whether the assessments on a specified lot have been paid. A
properly executed certificate from the Association regarding the
status of assessments for any lot shall be binding upon the
Association as of the date of its issuance.
H. Effect of Non-Payment of Assessments: Remedies of the
Assoc~ation. Any charge levied or assessed against any lot,
together with interest and other charges or costs as hereinafter
provi~ed, shall become and remain a lien upon that lot until
paid ~n full and shall also be a personal obligation of the
owner'or owners of that lot at the time the charge fell due.
Such charge shall bear interest at the rate of twelve percent
(12%) per annum until paid in full. If, in the opinion of the
Board of Directors of the Association, such charge has remained
due and payable for an unreasonably long period of time, the
Board may, on behalf of the Association, institute such
procedures, either ~t law or in equity, by foreclosure or
otherwise, to collect the amount owing in any court of competent
jurisdiction. The owner of the lot or lots subject to the
charge, shall, in addition to the amount of the charge at the
time legal action is instituted, be obliged to pay any expense
or costs, including attorneys' fees, incurred by the Association
in collecting the same. Every owner of a lot in the Development
and any person who may acquire any interest in such lot, whether
as an owner or otherwise, is hereby notified, and by acquisition
of such interest agrees, that any such liens which may exist
upon said lot at the time of the acquisition of such interest
are valid liens and shall be paid. Every person who shall
become an owner of a lot in the Development is hereby notified
that by the act of acquiring, making such purchase or acquiring
such title, such person shall be conclusively held to have
covenanted to pay the Association all charges that the
Association shall make pursuant to this subparagraph of the
Restrictions.
The Association shall, upon demand, at any time, furnish a
certificate in writing signed by an officer of the Association
that the assessments on a specified lot have been paid or that
certain assessments against said lot remain unpaid, as the case
may be. A reasonable charge may be made by the Board of
Directors of the Association for the issuance of these
certificates. Such certificate shall be conclusive evidence of
payme~t of any assessment therein stated to have been paid.
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I. Subordination of the Lien to Mortgage. The lien of the
asses~ments provided for herein shall be subordinate to the lien
of any first mortgage. Sale or transfer of any lot shall not
affect the assessment lien. No sale or transfer shall relieve
such lot from liability for any assessment thereafter becoming
due or from the lien thereof. provided, however, the sale or
transfer of any lot pursuant to the foreclosure of any first
mortgage on such lot (without the necessity of joining the
Association in any such foreclosure action) or any proceedings
or deed in lieu thereof shall extinguish the lien of all
assessments becoming due prior to the date of such sale or
transfer.
J. Suspension of Privileges of Membership. Notwithstanding
any other provisions contained herein, the Board of Directors of
the Association shall have the right to suspend the voting
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rights if any, and the services to be provided by the
Association/ of any member or associate member (i) for any
period during which the Association charges or any fines
assessed under these Restrictions owed by the member or
associate member remains unpaid, (ii) during the period of any
continuing violation of the restrictive covenants for the
Development/ after the existence of the violation shall have
been declared by the Board of Directors of the Association: and
(iii) during the period of any violation of the Articles of
Incorporation, By-Laws or regulations of the Association.
13. REMEDIES.
A. In General. The Association or any party to whose
benefit these Restrictions inure, including the Developer, may
proceed at law or in equity to prevent the occurrence or
conti~uation of any violation of these Restrictions/ but neither
the Developer nor the Association shall be liable for damages of
any kind to any person for failing wither to abide by/ enforce
or catry out any of these Restrictions.
~. Delay or Failure to Enforce. No delay or failure on the
part of any aggrieved party to invoke any available remedy with
respect to a violation of anyone or more of these Restrictions
shall beheld to be a waiver by that party (or an estoppel of
that party to assert) any right available to him upon the
occurrence/ reoccurrence or continuation of such violation or
violations of these Restrictions.
14. EFFECT OF BECOMING AN OWNER.
The owners of any lot subject to these Restrictions by
acceptance of a deed conveying title thereto, or the execution
of a contract for the purchase thereof, whether from the
Developer or a subsequent owner of such lot, shall accept such
deed and execute such contract subject to each and every
Restriction and agreement herein contained. By accepting of
such deed or execution of such contract, the oWner acknowledges
the rights and powers of the Developer, Committee and of the
Association with respect to these Restrictions, and also, for
themselves/ their heirs/ personal representatives, successors
and assigns/ such owners covenant and agree and consent to and
with the Developer, Committee and the Association and to and
with the owners and subsequent owners of each of the lots
affected by these Restrictions to keep, observe, comply with and
perform such Restrictions and agreements.
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15. TITLES.
The titles preceding the various paragraphs and
subparagraphs of the Restrictions are for convenience of the
construction of any provisions of the Restrictions. Wherever
and whenever applicable, the singular form of any word shall be
taken'to mean or apply to the plural/ and the masculine form
shall'be taken to mean or apply to the feminine or to the
neuter.
16. DURATION.
The foregoing Covenants and Restrictions are to run with
the land and shall be binding on all parties and all persons
claiming under them until January 1, 2020, at which time said
Covenants and Restrictions shall be automatically extended for
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successive periods of ten (10) years, unless changed in whole or
in part by vote of those persons who are then the owners of a
majority of the numbered lots in the Development.
17. SEVERABILITY.
Everyone of the Restrictions is hereby declared to be
independent of, and severable from, the rest of the Restrictions
and of and from every other one of the Restrictions, and of and
from every combination of the Restrictions.
Therefore" if any of the Restrictions shall be held to be
invalid or to be unenforceable or to lack the quality of running
with the land that holding shall be without effect upon the
validity, enforceability or II running II quality of any other one
of the Restrictions.
18. LITIGATION.
No judicial or administrative proceedings shall be
commenced or prosecuted by the Association without first holding
a special meeting of the members and containing the affirmative
vote of Voting Members representing at least seventy-five (75%)
of the Lots to the commencement and prosecution of the proposed
actioh. This Section shall not apply to (a) actions brought by
the Association to enforce the provisions of this Declaration,
the By-Laws or rules and regulations adopted by the Board
(including, without limitation, an action to recover Charges or
to foreclose a lien for unpaid Charges) or (b) counterclaims
brought by the Association in proceedings instituted against it.
19. NON-REMONSTRANCE AGREEMENT.
Residents of Claybourne as owners of Real Estate are bound
to the Non~Remonstrance Agreement with the City of Carmel
attached here as Exhibit "BU.
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IN TESTIMONY WHEREOF, witness the signature of the
Declarant this 1st day of October, 2002.
BOOMERANG DEVELOPMENT, LLC
An Indiana Limited Liability Company
By:
Corby D. Thompson, Manager
STATE OF INDIANA
)
) 88:
)
COUNTY OF HAMILTON
Before me, a Notary Public in and for said County and
State, personally appeared Corby D. Thompson, Manager of
Boomerang Development, LLC, an Indiana Limited Liability
Company, who acknowledged the execution of the above and
foregoing for and on behalf of said Corporation, for the uses
and purposes therein set forth.
WITNESS my hand and Notarial Seal this 1st day of October,
2002.
Notary Public:
Donna Hansen
Commission Expiration:
County of Residence:
May 18, 2007
Hamilton
Prepared by: Corby o. Thompson, Manager, Boomerang Development,
LLC
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,a..-t" .......r)".
Exhibit "A"
"
LAND DESCRIPTION
Port of the Northeast Quarter of Section 30, Township 18 North, Range J East. in Clay Township, Hamilton
County, Indiana, being more particularly described os follows:
Commencing at the Southeast Corn er of the said Northeast Quarter Section; thence Sou th 89 degrees 18
minutes 18 seconds West (Assumed Bearing) along the South line of the said Northeast Quarter Section 0
distance of. 671OJ. feet. to the Point of Beginning: thence continuing South 89 degrees 18 minutes 18 seconds
West oloog said South line of the Northeast Quarter Section a distance of 1416,89 feet; thence North 00
degrees 41. minutes 42 seconds West a distance of 299,04 feet; thence North 27 degrees 32 minutes 08
seconds East 0 distonce of 130.00 feet; thence North 62 degrees 27 minutes 52 seconds West (1 distance of
33.20 feet; thence North 27 degrees 32 minutes OB seconds East 0 distance of 136.37 feet; therlce North 18
degrees 03 minutes 27 seconds East a distance of 158.38 feet; thence North 06 degrees 16 minutes 03
seconds East a distance of 239.95 feet; thence North 55 degrees 03 minutes 40 seconds East 0 distance of
133.57 feet; therlce North 00 degrees 23 minutes 57 seconds West a distance of 314.63 feet; thence South
86 deyrees 36 minutes 04 seconds East 0 distance of 50.87 f~t; thence South 68 degrees 57 minutes 10
seconds Eost 0 distance of 100.45 feet; thence North 89 degrees 33 minutes 24 seconds East 0 distance of
81.75 feet; thence South 49 degrees 12 minutes 04 seconds East 0 distance of 12.62 feet; thence North 89
degrees 33 minutes 24 seconds East a distance of 188.01 feet; thence South 00 degrees 26 minutes 36
seconds Eost a distance of 567.80 feet: thence South 89 degr~s 41 minutes 19 seconds East a distance of
414.60 feet; thence North 04 degrees 32 minutes 43 seconds East 0 distance of 370.24 feet; thence South
,89 deqrees 09 minutes 14 s&:onds East a distance of 283.21 feet; thence North 00 degrees 25 minutes 34
seconds West 0 distance of 268.26 feet; thence South 71 degrees 51 minutes 58 seconds East a distance of
208.50 feet; thence South n degrees 51 minutes 25 seconds East a distance of 112.45 feet; thence South
00 deqrees 25 minutes 34 seconds East a distance of 267.56 feet; thence South n degrees 25 minutes 58
seconds West a distance of 190.13 feet; thence South 27 degrees 23 minutes 56 seconds West 0 distance of
196.56 feet; thence South 05 degrees 36 minutes 05 seconds West a distance of 198.39 feet; thence South
06 degrees 43 minutes 05 seconds East 0 distance of 237.62 feet; thence North 79 degrees 06 minutes 07
seConds West a distance of 10.56 feet; thence South 15 degrees 58 minutes 28 seconds West a distance of
197.58 feet; thence South 00 degrees 41 minutes 42 seconds East 0 distance of 117.92 feet to the
BEGINNING POINT, containing 33.977 acres, more or less.
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NON-REMONSTR;\NCE AGREEMENT
Boomerang Development, LLC, a corporation duly licensed and authorized to operate t11 the State
of illdiana and with its principal offices located at 11911 Lakeside Drive, Fishers, Indlana -.+6033
('"Owner"), after having had an opportunity to consult with an attorney of its own choosins. hereby
voluntarily and without duress enters into this Non-Remonstr::ll1ce Agreement with the Ctty or C.ll111el.
Indiana. by and through Lts Board of Public Works and Safety ("City"), and covenants as follo\\'s:
1. Owner IS the sole fee simple owner of that cerrain real estate (the "Real Estate"). \vlm:h IS
described on attached Exhibit A, incorporated herein by this reference.
) In consideration of City constructing additional water lines and allowing Owner to obtain
municipal water service for the Real Estate from City, Owner hereby waives its right to remonstrate
against the annexation of all or any portion of the Real Estate by City for a period of sixty (60) yeJrs from
the date this Agreement is last executed by a party hereto (the "Waiver Period").
3 Owner hereby agrees that this Agreement shall be binding upon and inure to the benefil at' I[S
officers. officials. successors, assigns, and any and all subsequent owners of the Real Estate or any parcel
or other portion lhereof for the duration of the Waiver Period. and that Owner will specitically pro\lde all
such subsequent owners with a fully executed copy of thIS Agreement at or before closing on the sale 0 i'
all or any portion of the Real Estate to same.
4. This Agreement shall be recorded by Owner in the Office 0 f the Recorder tor Hamilton County,
Indiana. so that it shall appear in the chain of title for the Real Estate, within ten (10) calendar days 0 fits
Effective Date. If Owner fails to timely record same, City may do so at Owner's sole cost and expense.
5. The undersigned persons executing this Agreement as or on behalf of City and O\VneL
respectively, each represent and certify that: (a) he or she is fully empowered and duly authorized by all
necessary action 0 f City and/or Owner to execute, deliver and bind same to this Agreement: (bl he IJr she
has the tull capacity, power, and authority to enter into and carry outthis Agreement as or on behal for' the
party he or she represents herein; and (c) the execution, delivery, and performance of this Agreement Ins
been duly authorized by City and Owner.
.
6. This Agreement shall become effective as of the date on which it is last executed by a parry
hereto (tbe "E tTective Date").
dFII!lo'J'\.'II~I:/_ I".~ ~ h:J~11~,I\' ,ll~llIlIrHl~ .IlU",lIlC"llh 111II1.'~II./'lIhl~JI"HI h.JOlllrr:.lII~.JoJol.:;llJJ-"IAI21
--~.1; ,-.-Q --:._-
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"CITY"
"'OWNER"
CITY OF CARl\1EL. INDL'\NA
By and through its Board of Public Works and Safety
BOOMERANG DEVELOPMENT. LLC
By:
By:
~~.-
Authorized S~ature
./'
James Brainard, Presiding Officer
Date:
~~ ~~~
,
Printed Name and Title
Mary Ann Burke. Member
Date:
Date:
1 ~ cL-
Lori S. Watson. Member
Date:
ATTEST:
Diana L Cordray, L<\J.'vlc' Clerk-Treasurer
Date:
STATE OF INTIIA1~A )
) SS:
COUNTY OF Hamilton )
Before me, a Notary Public in and for said County and State, personally appeared
,Corby D. Thompson
,the Manager
of Boomerang~ Development. LLC ("Owner'"), by me
known, and who acknowledged the execution of the foregoing "Non-Remonstration Agreement" as
his/her voluntary act and deed for and on behalf of _Boomerang Development. LLC ("Owner'").
Wimess mv hand and Notarial Seal this 3rd davof October, , 2002.
." - iJ~ ~-=. J
NOTARY PUBLIC
My Commission Expires:
.
.
Donna Hansen
Printed Name
My County of Residence: Hamilton
May 18. 2007
rcb:II~W,"oJ:l:'la'..'e Im.1 ~nv tiocWllr1lJ'!; J"rrrmnuI Ilufl.rm....l"1(r;,llun'ho,x.WI'1el"DI\~,Wx:;.Jr:lA'l]21 2
- ---..J!~-'.~p--:J!\-- -
STATE OF INDIANA
COUN1Y OF
)
) SS:
)
Before me, a Notary Public in and for said County and State, personally appeared James Brainard.
Mary Ann Burke and Lori S. Watson, by me known to be the Members of the City of Carmel Board ot'
._....Public Works and Safety, and Diana L Cordray, Clerk-Treasurer of the City of Carmel. \\110
acknowledged the execution of the foregoing "Non-Remonstration Agreement" on behalf at' the City ot'
Cannel. Indiana.
Wimess my hand and Notarial Seal this _ day of
,2002,
NOTARY PUBLIC
My Commission Expires:
Printed Name
My County of Residence:
Prepared by Douglas C. Haney, City Attorney, One Civic Square, Cannel, Indiana 46032.
lcb:lIlS''''lJrU;~: I..... IE" b... I1TY Ju;ulIlCllll'iJllf('!ffI"Cnll'llOf,....,nTDIUJ'"IIIIOmboomcnn.LiOC:"'l.tfl21 J