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HomeMy WebLinkAboutDRAFT Covenants, Articles, Minutes & Bylaws NELSON & FRANKENBERGER JAMES J. NELSON CHARLES D. FRANKENBERGER JAMES E, SHINA VER LA WRENCE J. KEMPER JOHN B. FLATT A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 3105 EAST 98TH STREET, SUITE 170 INDIANAPOLIS, INDIANA 46280 PHONE: 317-844-0106 FACSIMILE: 317-846-8782 www.nf-Iaw.com FREDR1C LA WRENCE DA VID J, LICHTENBERGER JESSICA S. OWENS or Counsel JANE B. MERRILL < <1 October 5, 2007 f,.- ';/' ~f-." ',_ . .' ',['. (; C:': ',.' Angie Conn City of Carmel One Civic Square Cannel, IN 46032 i.~ '1'/"<': 1(\ '" ....'~-: RE: Wellsprings Docket No. 07080031PP; 07080032SW; 07080033SW Dear Angle: Enclosed for your file are preliminary drafts of the Declaration of Covenants, Conditions, and Restrictions, as well as the Articles, Minutes and Bylaws for the Homeowners Association. Should you have any questions or comments, please do not hesitate to call me. Thank you. Very truly yours, NELSON & FRANKENBERGER L~' L Charles D. Frankenberger CDF/bjt 11:'ll~kJ'.zonirl~ & Rral F.Sl.l"~ M!HleT'!;\Memm[-KlJr1~Lu In A CUIlI. JCX).107.\loc .. ;! ~ - ",",.- " "'Ie .:)J PRELIMINARY DRAFT- SUBJECT TO CHANGE AND REVISION -;,~: .' ,Xuf DOCS DECLARATION OF COVENANTS, CONDmoNs,AND RESlRICTIONS OF W~LLSPRINGS OF WEST CLAY TillS DECLARATION (hereafter "Declaration"), made this _ day of 200_, by ! an Indiana limited liability company (hereafter "Declarant"); WITNESSETH: WHEREAS, Declarant is the owner of certain Property, located in Hamilton County, Indiana, which is more particularly described in what is attached hereto and incorporated herein by reference as Exhibit "A" (the "Property"), upon which a residential subdivision known as WELLSPRINGS of West Clay (the "Development") will be developed; WHEREAS, Declarant desires to subdivide and develop the Property; NOW! THEREFORE, the Declarant hereby declares that all of the Lots (hereafter detined) in the Property, 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 of the improvement and sale of the Property and each Lot situated therein, and are established and agreed upon for the purpose of enhancing and protecting the value, desirabi lity and attractiveness of the Property as a whole and each of the Lots situated therein. This Declaration shall run with the Property and shall be binding upon the Declarant, its successors and assigns, and upon the parties having or acquiring any interest in the Property or any part or parts thereof subject to these restrictions. The restrictions shall inure to the benefit of the Declarant and its successors in title to the Property or any part or parts thereof. ARTICLE I DEFINITIONS The following are the definitions of the terms as they are used in this Declaration: Section 1.1 "Association" shall mean the WELLSPRINGS oj West Clay Homeowners Association, Inc., a not-far-profit corporation, the membership and power of which are more fully described in Article IX of this Declaration. Section 1.2 "Board" or "Board of Directors" shall mean the Board of Directors of the Wellsprings of West Clay Homeowners Association, Inc. Section 1.3 "Builder" means a person or entity regularly engaged in the business of constructing single family residences for sale and responsible for the original construction of a residence on a Lot. Section 1.4 "Committee" shall mean the Development Standards and Architectural Control Committee, as more fully described in Article VI of this Declaration. .; J ..'~ ,. , " Section 1.5 "Common Area" shall mean those areas (i)designated on current and future Plats as a "Block", "Common Area", and/or a "C.A.", and (ii) any other areas designated by the Declarant for the common use and enjoyment of the residents of the Development. Section \.6 "Development Period" means the period of time commencing with Declarant's acquisition of the Property and ending when Declarant has completed the development and sale of, and no longer owns, any Lot or any other portion of the Property. Section 1.7 "Drainage Board" means the Hamilton County Drainage Board. Section 1.8 "Lake Area" means any Common Area on which a lake now exists or is later constructed by Declarant and "Lake" means a body of water which now exists or is later constructed by Declarant in a Lake Area. Section 1.9 "Lot" shall mean any parcel of residential Property designated on a Plat that is recorded in the Office of the Recorder ofI-lamilton County, Indiana. Section I.] 0 "Owner" shall mean the record owner, whether one or more persons or entities, of the fee simple title to any Lot which is a part of the Property, including contract sellers, but otherwise excluding those having such interest merely as security for the performance of an obligation. Unless specifically indicated to the contrary, the term "Owner" shall include the Declarant. Section 1.1] "Person" shall mean an individual, firm, corporation, partnership, association, trust or other legal entity or any combination thereof. Section I .12 "Plat" shall mean the subdivision plats of the Property which arc recorded with the Recorder of Hamilton County, Indiana. Section 1.13 "Residence" shall mean any structure intended exclusively for occupancy by single family together with all appurtenances thereto, including private garage and recreational facilities usual and incidental to the use of a single family residential lot. Section 1.14 "Special Use" shall mean any use defined or identified in any applicable zoning ordinance as a "Special Use". Section 1.15 "Trail System" means paths or trails so designated by the Board and located in a Common Area. ARTICLE II CHARACTER OF THE DEVELOPMENT Section 2.1. In General. No structure shall be erected, placed or permitted to remain upon any Lot except a Residence. All Property located within a plat which has not been designated by numbering shall be used in a manner determined by the Declarant. Lots may be used only for single- family residential purposes and only one Residence may be constructed thereon. No portion of any Lot may be sold or subdivided such that there will be thereby a greater number of Residences in the Property than the number of Lots depicted on the Plat. Notwithstanding any provision in the applicable 2 't' .. ,,' zoning ordinance to the contrary, no Lot may be used for any It Special Use" that is not clearly incidental and necessary to single family dwellings. Section 2.2. Other Restrictions. All Property shall be subject to the easements, restrictions, and limitations of record appearing on a Plat and amendments thereto, on recorded easements, and rights-of-way, and also to all governmental zoning authority and regulation affecting the Property, all of which are incorporated herein by reference. ARTICLE III EASEMENTS Section 3.1 Designated Easements. The following are easements designated or to be designated, in tlle Declarant's sole discretion, upon a plat: (A) Designated Drainage.. Utility. and Sewer Easements. There are strips of ground designated on the Plat as drainage easements, utility easements, sewer easements, sanitary sewer easements and storm sewer easements, or any combination thereof, which are hereby reserved to the appropriate governmental entities, public utilities, and private utilities tor the installation and maintenance of swales, ditches, pipes, drains, electric lines, gas lines, telephone lines, fiber optic cable, high speed internet lines, sanitary sewers, manholes, detention and retention areas or other drainage facilities. Purchasers of Lots in this subdivision shall take title subject to such easements hereby created and subject at all times to the rights of proper authorities to service and maintain such drainage facilities and easements, and no permanent structure of any kind and no part thereof, except fences which do not retard or impede the flow of drainage water and which are approved by any entity to which the easement is dedicated shall be built, erected or maintained on said drainage easements, except by the Declarant or its assigns. It shall be the responsibility of the Association and the Owners of the areas enclosed within such easements to maintain such areas in such conditions that the tlow of storm drainage waters on, across and from said areas shall not be impeded, diverted or accelerated. Such use for stann water movement or retcntion or detention is hereby declared to be an easement and servitude upon said land for the benefit of the Owners of other land included within the Plat, upstream or downstream, affected by such use and for any proper governmental agency or department or any private or public utility. All proper governmental agencies or departments and public and private util ities are hereby given the right to obtain access to such areas to perfonn maintenance and to perform such maintenance as may be necessary to protect that casement and servitude rights. It shall be the responsibility of the Association and the Owner of any Lot or parcel of land within the Plat to comply at all times with the provisions of the drainage plan as approved far the applicable Plat by the appropriate governmental agency or department and the requirements of all drainage permits for such Plat issued by those agencics. Failure to so comply shall operate as a waiver and release of the Declarant, the developer, or their engineers and agents from all liability as to damage caused by storm waters or storm drainage. Further, there are easements and servitudes upon the land within the Plat in favor of surface water runoff along natural valIeys and drainage channels running to Owners of other land contained within the Plat, upstream and downstream. It shall be the responsibility of the Association and the Owners of these natural valleys and channels to use their land and maintain said natural valleys and channels in such manner and condition that the tlow of storm drainage waters all, across, from and to such areas ~haJl not be impeded, diverted or accelerated. (D) Designated Mounding, Landscaping. and Screening and Sign Easements. Any strips of 3 . -; 1 " , . grounds shown or designated on the Plat for landscaping including, but not limited to, landscape easements , landscape maintenance easements, and/or landscape maintenance access easements are hereby reserved unto Declarant, during the Development Period, and, thereafter, unto the Association, for the purposes of (i) providing signs which either advertise the Property and the availability of Lots or identify the Property or, (ii) installing landscaping, mounding, and screening. Declarant reserves unto itself during the Development Period and thereafter unto the Association, the exclusive and sole right to erect signs and install landscaping, mounding, and screening within these strips of ground. Notwithstanding anything in this Declaration to thc contrary, no planting shall be done, and no hedges, walls, fences or other improvements shall be erected or maintained in the area of such easements, except by the Declarant during thc Development Period, and thereafter by the Association. Furthermore, notwithstanding anything in this Declaration to the contrary, no planting shall be done, and no hedges, walls, fenccs, structures, or other improvements shall be erected between (i) any landscape easement or landscape maintenance easement, and (ii) any perimeter roadway, public highway or right-of-way along the perimeter or boundary of the Property, except by the Declarant during the Development Period and thereafter by the Association. (C) Easement Work. Notwithstanding any architectural approval under Article VI below, during the course of any maintenance, service, repair or work upon any easement, the Declarant, the Association, any private utility, any public utility, and/or any governmental entity shall have the right and the authority, without any obligation or liability whatsoever to any Owner, to remove, damage, or destroy any fence or other structure or landscaping built, erected, maintained or planted in any easement described in Section 3.1 (A) above and without any obligation of replacement. Section 3.2 Gencral Drainage. Utility, Sewer and other Development Easements. The following rights reserved in this Section shall not be exercised, after the conveyance of any Lot, in a manner that (i) unreasonably and adversely affects any Residence or portion thereof located upon such Lot or the Owner's use or enjoyment thereot~ or (ii) unreasonably restricts the rights of ingress and egress to such Lot. The following rights and easements reserved by Declarant in this Section shall run with the land, and Declarant's right to further alter or grant easements shall automatically terminate and pass to the Association one (I) year after Declarant shall have conveyed the last Lot within the Property. (A) Declarant hereby reserves unto itself during the Developmcnt Period, and thereafter unto any public or private utility, a general easement ("Drainage, Utility and Sewer Easement") for drainage, utility and sewer purposes in, on and over all of the Common Area and any Lot, so as to permit the installation and allow to be maintained all electrical, telephone, water, gas, sanitary and storm sewer, television (including but not limited to cable and/or satellite) transmission facilities, security systems and other utility services (including all necessary lines, pipes, wires, cables, ducts, antennae and other equipment and facilities) to serve any Residence. Any Drainage, Utility and Sewer Easement shall include all areas ofthe Property outside any Residence, with the cxception of any areas covered by chimneys, or patios. Improvements or permanent structures installed within the Common Area are subject to the rights (including the right to rcmove where reasonably necessary without duty of replacement or reimbursement) of the Declarant and any public or private utility to construct, maintain, repair or remove any necessary facilities. By virtue hereof, Declarant reserves the right to install a lake(s) or pond(s) on any Common Area. The rights hereunder and easements hereby reserved survive the conveyance, by the Declarant to the Association, of any Common Area. This casement shall be in addition to any easement defined upon a Plat as a drainage, sewer, utility, cable, landscape, sign, transmission, flowage or similar type easement. (B) Declarant reserves unto itself during the Development Period, and thereafter unto the 4 'i ., Association, an easement ("Lake Easement") and right-of-way in and to any Lake Area (s) or areas now or hereafter shown on the Plat as a "Block", "Common Area", or "Lake" or any other Common Area within the Property used as a water retention or detention area, or on which a Lake now exists or is later constructed, for the purpose of fulfilling any maintenance obligations set forth in this Declaration and/or establishing and maintaining proper surface water drainage throughout the Property, indud ing dewatering or aquatic maintenance, and an easement of ingress and egress through so much of the remainder of the Property as is reasonably necessary or appropriate, to perform such actions as Declarant or the Association deem necessary or appropriate, for tbe purpose of establishing and maintaining proper surface water drainage throughout the Property, which such actions shall include the construction, repair and maintenance of retention and detention ponds or lakes in accordance with the requirements of applicable law and of all governmental agencies having jurisdiction (without undertaking any obligation or duty to exceed such requirements). (C) Declarant reserves unto itself during the Development Period, and thereafter unto the Association, the right and an undefined sign and facilities easement ("Sign and Facilities Easement") to install, erect, construct and maintain all entryway sign or signs, directional signs, advertising signs advertising the Property or the Lots therein, lighting, walkways, pathways, fences, walls and any other landscaping, architectural and recreational features or facilities considered necessary, appropriate, useful or convenient, al1)"vhere upon the Property (except upon any Lot after the first conveyance thereof). Any such signs shall comply with any applicable zoning requirements and all such facilities shall be maintained by the Association as a part of its Common Area maintenance obligations. (D) Declarant reserves unto itself during the Development Period, and thereafter unto the Association, the full right, title and authority to: (i) Relocate, alter or otherwise change the location of any Drainage, Utility and Sewer Easement, Lake Easement, and/or Sign and Facilities Easement, or any facility at any time located therein or thereon; (ii) Grant such further easements, licenses and rights-of-way, temporary or permanent, exclusive or non-exclusive, surface or otherwise, as Declarant may deem necessary or appropriate, for ingress and egress, utility and similar purposes on or within any portion of the Property, for the benefit of the Property or any portion thereof; and, (iii) Describe more specifically or to change the description of any Drainage, Utility and Sewer Easement, Lake Easement, and/or Sign and Facilities Easement or any other easement, license or right-of-way now or hereafter existing on the Property, by written instrument, amended Plat or amendment to the Plat recorded in the Office of the Recorder of Hamilton County, lndiana. (E) The title of the Association (as to the Common Area owned by the Association during the Development Period) and of any Owner of any Lot shall be subject to the rights and easements reserved herein. ARTICLE IV ADDITIONAL PROVISIONS RESPECTING OFSANTf ARY SEWER UTILITY Section 4.1 Sanitary sewer utility easements allow for the construction, extension, operation, 5 inspection, maintenance, reconstruction, and removal of sanitary sewer facilities and give utility companies, whether public or private, as well as any governmental authorities, the right of ingress/egress. Section 4.2 No trees shall be planted directly over building sewers (laterals). Any landscaping placed within easements or right-oF-ways may be removed, damaged, or destroyed by the applicable util ities without an obligation of repair or replacement. Section 4.3 No mounding, lighting, fencing, signs, retaining walls, landscaping walls, entrance walls, irrigation lines, or other improvements shall be placed within ten (10) feet ofthe center of the sanitary sewer infrastructure. Any of these which are placed within easements or right-of-ways may be removed by tIle applicable utilities without the obligation of replacement. Section 4.4 All Owners not serviced by gravity sanitary sewer service are responsible for all maintenance, repair and replacement of all grinder/ejector pumps, force mains and gravity laterals from the residence to its connection to the sanitary sewer main. Section 4.5 The discharge of clear water sources, including, but not limited to, foundation drains, sump pumps, and roof drains to the sanitary sewers is prohibited. Section 4.6 Grade changes across sanitary sewer facilities must be approved in writing by the applicable utilities. ARTiCLE V COVENANTS AND RESTRICTIONS Section 5.1 Land Use. Lots may be used only for single-family residential purposes and only one Residence not to exceed the maximum height permitted by alld measured pursuant to the Zoning Ordinance of the municipality having zoning jurisdiction over the Property may be constructed thercoll. No portion of any Lot may bc sold or subdivided such that there will be thereby a greater number of Residences in the Property than the number of Lots depicted on the Plat. Notwithstanding any provision in the applicable zoning ordinance to the contrary, no Lot may be used for any "Special Use" that is not clearly incidental and necessary to single family dwellings. Section 5.2 Address Identification. The numbers representing the address of each Rcsidence will be of a unifonn appearance and will be displayed in a uniform location and manner, as determined by the Committee. Section 5.3 Lighting. All homes will have two dusk to dawn lights located on the sides ofthe garage doors. Street lights may be installed by Declarant in the utility easements on Lots and in the Common Areas. Street lights shall be operated and maintained by the Association. The Association reserves the right to remove street lights deemed no longer necessary by the Board of Directors. Section 5.4 Temporary Structures. No trailer, shack, tent, boat, basement, garage or other outbuilding may be used at any time as a dwelling, temporary or permanent, nor may any structure of a temporary character be used as a dwelling. Section 5.5 Driveways. All driveways in the Property shall be concrete in material. 6 Section 5.6 Water Systems. Each Owner shall connect to the watcr main maintained by a private or public water utility to provide water for domestic use on the Lot and shall pay all conncction, availability, or other charges la\\-fuIly established with respect to connections thereto. Section 5.7 Drainage. In the event storm water drainage from any Lot or Lots flows across another Lot, provision shall be made by the Owner of such downstream Lot to pemlit such drainage to continue, without restriction or reduction, across the downstream Lot and into the natural drainage channel or course, although no specific drainage easement for such flow of water is provided on the Plat. To the extent not maintained by the Drainage Board, "Drainage Easements" reserved as drainage swales shall be maintained by the Owner of the Lot upon which such easements are located such that water from any adjacent Lot shall have adequate drainage along such Swale. Lots within the Property may be included in a legal drain established by the Drainage Board. In such event, each lot in the Property will be subject to assessment by the Drainage Board for the costs of maintenance of the portion of the drainage system and the lake control structures included in such legal drain, which assessment will be a lien against the Lot. The elevation of a Lot shall not be changed so as to materially affect the surface elevation or grade of surrounding Lots. Perimeter foundation drains and sump pump drains shall be connected whenever feasible into a subsurface drainage tile. Down spouts and drains shall be designed to disperse runoff for overland flow to street or swale collection systems. Each Owner shall maintain the subsurface drains and tiles located on his Lot and shall be liable for the cost of all repairs thereto or replacements thereof. Section 5.8 S i g n s. Except for such signs as Declarant may in its absolute discretion display in connection with the identification of development of the Property and the sale of Lots therein, no sign of any kind shall be displayed to the public view of any Lot except that one (I) sign of not more than four (4) square feet may be displayed at any time for the purpose of advertising the property for sale, or may be displayed by a builder to advertise the property during construction and sale. Section 5.9 Fencing. This subsection is applicable to all Lots except those Lots which are used for a sales office or model home by the Declarant No fence, wall, hedge, or shrub planting higher than eighteen (18) inches shall be permitted between the front property line and the front building set back line except where such planting is part of Residence landscaping approved by the Committee and the prime root thereof is within six (6) feet of the Residence. Comer Lots shall be deemed to have two (2) front property lines. Trees shall not be deemed "shrubs" unless planted in such a manner as to constitute a "hedge". All fencing must be approved by the Committee and shall be wrought iron in appearance. All fencing on a Lot shall be uniform in height, style, and color and substantially similar in material. No fence shall be erected or maintained on or within any Landscape Easement except such as may be installed by Declarant and subsequently replaced by the Association in such manner as to preserve the uniformity of such fence. No fence may be erected on a Lot without prior approval ofthe Committee, which shall approve or disapprove the location of all feuces; provided, however, that all fencing erected on a Lot must be erected either (i) within six (6) inches ofthe property line of such Lot, or (ii) more than ten (10) feet from the property line of such Lot. Owners of Lots adjoining Lots on which a fence is erected within six (6) inches of the property line shall have the right to connect a fence to the fence on the adjoining Lot if the new fence satisfies all of the criteria expressed herein and is approved by the Committee. The Committee may establish further restrictions with respect to fences, including limitations on (or prohibition 01) the installation of fences in the rear yard of a Lot abutting a Lake and design standards for fences. All fences shall be kept in good repair. No fence, wall, hedge, or shrub planting, or tree foliage which obstructs sight lines at elevations between two (2) and six (6) feet above the street shall be placed or permitted to remain on any corner Lot within the triangular area formed by the Lot lines at the streets and a line connecting points 25 feet from the intersection of said stTeet Lot lines; and, the same rule shall apply to the intersection of a driveway with a street, in which 7 case the edge of the driveway pavement shall be substituted for one ofthe street Lot lines. Section 5.10 Nuisances. No noxious or offensive activity shall be carried on upon any Lot nor shall anything be done thereon which may be, or may become, an annoyance or nuisance to the neighborhood. Violation of any ordinance governing noise, building or lot maintenance, or any other public nuisance shall be deemed to be a nuisance creating rights in every affected Owner, the Declarant, and/or the Association, as the case may be, to enforce the provisions hereof against the offending Owner. Barking dogs shall constitute a nuisance. [n the event of successful enforcement by an Owner, the Declarant, or the Association of the provisions thereof, the ofltmding Owner shall be liable to the prevailing party for attorneys' fees, court costs, and all other costs and expenses of litigation and collection in connection therewith. Section 5.11 Garbage and Refuse Disposal. No Lot shall be used or maintained as a dumping ground for trash. Rubbish, garbage or other waste shall be kept in sanitary containers out of public view except not more than 24 hours prior to its removal thereof, when it may be placed at the curb of the Lot All equipment for storage or disposal of such materials shall be kept clean and sanitary. Section 5.12 Livestock and Poultry. No animals, livestock or poultry of any kind shall be raised, bred or kept on any Lot, except that dogs, cats or other household pets may be kept provided that they are not kept, bred, or maintained for any commercial purpose. The owners of such permitted pets shall confine thcm to their respective Lots such that they will not be a nuisance. Owncrs of dogs shall so control or contine them so as to avoid barking which will annoy or disturb adjoining Owners. Unless permitted by the Board of Directors aflhe Association, no Owner shall maintain morc than two (2) of the same type (dog, cat, bird) of pet nor more than tour (4) total pets; provided, however, that fish which are located in indoor aquariums and which pose no risk to the public health shall not be considered pets for the purpose oflhis restriction. No dangerous or potentially dangerous pets, such as exotic animals (large wild cats, wolves, alligators, snakes which arc poisonous or longer than two feet, poisonous spiders, etc.) shall be permitted to exist in a Residence or on a Lot without the unanimous consent of the Architectural Review Committee and the Board of Directors; provided, however, that the decision of the Board of Directors to pennit such animal or animals may be overturned by a majority vote of the Members at any meeting. Section 5.13 Outside Burning. No trash, leaves, or other materials shall be burned upon a Lot unless the smoke therefrom would not blow upon any other Lot. Owners shall use appropriate incinerators and shall at all times be in compliance with all applicable legal requirements for outside burning. Section 5.14 Antennas and Receivers. No antenna, satellite dish, or other device for the transmission or reception of radio, television, or satellite signals or any other form of electromagnetic radiation shall be erected, used or maintained outdoors and above ground, whether attached to a building or othenvise, on any part ofthe Property, including Lots, without the written approval of the Architectural Review Committee, which approval shall not be unreasonably withheld; provided, however, that any such device may be installed and maintained on any Lot without the necessity of such written approval if such device is not merely duplicative of other devices existing on the subject Lot and: (a) the device is not visible from the neighboring Lots, streets or Common Area; or (b) the Owner, prior to insta lIation, has received the written consent of the Owners of all Lots who would have views of the device from their Lots; or (c) the device is virtually indistinguishable from structures, devices, or improvements, such as heat pumps, air-conditioning units, barbecue grills, patio furniturl::, and garden equipmtJnt, which are not prohibited by these covenants or Bylaws; or (d) the device is a satellite dish I meter or less in diameter and not affixed to the roof of a residence; or (e) if prohibition 8 of the installation, use, and maintenance of such device is spccifically preempted and superseded by applicable governmental authority. Section 5.15 Exterior Lights. Except on Lots on which there is maintained a sales office or model home by the Declarant, no exterior lights shall be erected or maintained beiwecn the building line and rear lot line so as to shine or reflect directly upon another Lot. Section 5.16 Electric Bug Killers. Electric Bug Killers, "zappers", and other similar devices shall not be installed at a location or locations which result in the operation thereof becoming a nuisance or annoyance to other Owners, and shall be operated only when outside activities require the use thereof and not continuously. Section 5 .17 Vacant Lots. It shall be the duty and obligation of the Owner of a vacant Lot to maintain such Lot and mow the lawn thereof. Declarant and the Association shall have the right, but not the duty, to enter upon each vacant Lot and to maintain the appearance thereof by cutting weeds, mowing grass, trimming trees, removing debris, installing erosion control devices, and performing any other act reasonable under the circumstances. The Owner shall be responsible for payment of all such expenses upon demand and the Declarant or the Association, as the case may be, shall have a lien on sllch Lot for the payment of such expenses, together with aLLomeys' fees and all other casts and expenses of litigation and collection which may be incurred in connection therewith. Section 5.18 Association's Right to Perform Certain Maintenance. In the eventthat the Owncr of any Lot shall fail to maintain his or her Lot and any improvements situated thereon in accordance with the provisions of this Declaration, 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 incurred by the Association shall bc assessed to the Owner. The Owner shaH reimburse the Association within thirty (30) days of the date an which the Owner is invoiced by the Association. The Association shall have the right to collcct any outstanding maintenance assessments in the manner described in Article XI. Neither the Association nor any of its agents, employees, or contractors shall be liable for any damage that may result from any maintenance work performed hereunder. Section 5.19 Awnings. Except on Lots on which there is maintained a sales office or model home by the Declarant, or as approved by the Committee, no metal, wood, fabric, fiberglass or similar type material awnings or patio covers will be permitted anywhere on the Property. Section 5.20 Diligcnce in Construction. Subject to inclement weather, every Residcnce shall bc completed within twelve (12) 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 far marc than three (3) months from the time of such destruction or damage or, if approval of the applicable casually insurance is pending, then within three (3) months after such approval is forthcoming. Section 5.21 HVAC Units. No heat pumps, air conditioning units or gas meters will be installcd in the front ofthe Residence. Section 5.22 Lake and Lake Area(s). Except as otherwise provided, no individual using a Lake, if any, has the right to cross another Lot or trespass upon shoreline not within a Common Area owned by the Association, subject to the rights of the Declarant, the Association, their employees, 9 heirs, successors and assigns as set forth in the Declaration. No one shall do or permit any action or activity which could result in pollution of any Lake, diversion of water, elevation of any Lake level, earth disturbance resulting in silting or any other conduct which could result in an adverse effect upon water quality, drainage or proper Lake management except as provided in the Declaration. A Lake may not be used for swimming, ice skating, boating, or for any other purpose, except for drainage of the Property, unless expressly and specifically approved by the Board of Directors in writing and allowed by law. Lakes and Lake Areas mayor may not exist on the Property, and the reference throughout this Declaration to Lakes and Lake Areas is made in order to address Lakes and Lake Areas, if any, which now exist or are later constructed upon the Property. The installation on the Property of any Lake or Lake Area shall be within the sole discretion of the Declarant, and under no circumstances shall the Declarant be required or obligated to install any Lake or Lake Area. Only the Declarant and the Association shall have the right to store items or develop recreational faci lities upon any Common Area owned by the Association adjacent to a Lake. Section 5.23 Mailboxes. All mailboxes and posts must be approved by the Committee and, within each Section of thc Development, shall he standard as to size, location, post, design, height, material, composition and colors. The builder upon the initial Lot closing to the homeowner shall install the initial mailbox for each Lot, which meets the above criteria. The Owner agrees to maintain and paint said mailbox and post in conformance with all other mailboxes. Section 5.24 Maintenance of Lots and Improvements. Each Owner 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: (A) Mow the Lot at such times as Illay be reasonably required in order to prevent the unsightly growth of vegetation and noxious weeds; (B) Remove all debris or rubbish from the Lot; (C) Prevent the existencc of any other condition that tends to detract from or diminish the aesthetic appearance of the Property; (D) Cut down and remove dead trees from the Lot; and, (E) landscape the permitting. Within sixty (60) days following completion of a Residence, the Owner shall lot in accordance with the provisions set forth in this Declaration, weather Section 5.25 Miscellaneous. No clotheslines may be erected on any Lot. Section 5.26 Outbuildings and Animal Quarters. Any and all forms of outbuildings, including but not limited to, sheds, storage sheds, pool hOllses, animal quarters, and play houses, which are not directly connected to the main house on any Lot arc prohibited, unless the same are necessary or incident to the Declarant's, Builder's or Association's business or activities upon the Property. Animal quarters or kennels which are connected to the Residence must be approved by the Committee. Section 5.27 Play Eauipment. Children's play equipment such as sandboxes, temporary swimming pools having a depth of eighteen (18) inches or less, swing and slide sets, and trampolines shall not require approval by the Committee, provided that (i) such equipment is not more than eight (8) feet higll (to the highest point of the structure) and properly painted and maintained hy the Owner 10 , . in good repair, (ii) such equipment is located in the rear yard of the Lot between the parallel lines defined by extending the side lines of the residence into the rear yard ohhe Lot, and (iii) such swing and slide sets are constructed of wood. Metal swing and slide sets are prohibited. Equipment higher than eight (8) feet shall require approval of the design, location, color, material and usc by the Committee, and aluminum or metal play equipment is prohibited. Section 5.28 Plumbing. All plumbing vent stacks are to be located on the rear of the Residence. Section 5.29 Sidewalks. Each Residence shall have a continuous 4-foot wide by a minimum of four (4) inches thick concrete sidewalk adjacent to all interior dedicated street frontage. Sidewalks shall be installed by the Builder and included in the purchase price of the Residence. ]f an approved asphalt bike/walking path is approved on the Property in place of the sidewalk, no additional concrete sidewalk will be required. Section 5.30 Subsurface Drains and Sump Pump Discharges. Subsurface drains have been provided in certain areas within drainage easements as additional storm and ground water drainage sources and are part of the public storm drainage system. Subsurface drain laterals havc been provided on specific Lots, and the Builder on such Lots shall connect all sump pump discharge lines to such laterals. All maintenance and repair of all sump pump discharge lines and subsurface drain laterals shall be the responsibility of each Lot Owncr in accordance with the following: (A) The limits of Owner responsibility include all sump pump lines and subsurface drain laterals betwecn the connection at the sump pump within the home and the connection with the publicly maintained storm sewer or subsurface drain within the drainage easement. (B) In cases where subsurface drain laterals are connected along a common property line before connecting to the storm sewer, maintenance and repair of the common lateral will be shared equally by the adjacent Owners unless an individual Owner caused the lateral to be damaged, changed or altered. (C) Any Owner or Builder damaging, changing, or altering these subsurface drains and/or common subsurface drain laterals will be held responsible for such action and will he given ten (l0) days notice, by registered mail, to repair said damage, after which time, if no action is taken, the appropriate jurisdictional agency, Declarant or the Association will cause said repairs to be accomplished and the invoice for such repairs will be sent to the responsible Owner(s) and/or Builder(s) for immediate payment. If immediate payment is not received, the Declarant and/or the Association shall have all the rights and remedies to collect any outstanding amounts as outlined hereafter in Article Xl of this Declaration. Section 5.31 Swimming Pools and Hot Tubs. Only permanent, in-ground pools with professional construction, approved by the Committee, shall be permitted upon a Lot. All submittals to the Committee shall include landscape plans. All backyard pools should be oriented to minimize the potential effect on neighboring properties. All fencing shall confonn to county or municipal rcgulations and shall be of harmonious design and subject to Committee approvals. Hot Tubs must also be approved by the Committee. Sections 5.32 Tennis Courts, Racquetball Courts, Paddleball Courts, etc. Tennis courts, racquetball courts, paddle ball courts, basketball courts, squash courts, and other recreational facilities or sporting facilities will not be permitted without approval from the Committee. All submittals to the 11 . . Committee shall include landscape plans. Basketball goals may be installed on a lot adjacent to driveway without Committee approval provided that they have white fiberglass or translucent fiberglass Of glass backboards. Independent basketball courts may not be constructed on a Lot without written CommiUee approval. No basketball goal or backboard shall be permitted to hang from or be affixed to the Residence or garage. Lighted courts of any kind are prohibited. Temporary or portable basketball courts will not be penllitted to be located on streets or in cul-de-sacs. Section 5.33 Vents. All metal and PYC roof or range vents will be painted to blend with roof color. Section 5.34 Windows-Doors. If storm doors are installed, they must be painted to match exterior of the Residence. No unfinished aluminum doors or windows will be allowed. Section 5.35 Street Signs. Decorative street signs that do not conform to applicable municipal standards may be installed by Declarant in the Declarant's sole and absolute discretion. Such decorative street signs shall be maintained by the Association, and shall be repaired or replaced by the Association if damaged in accordance with applicable rules and regulations of the controlling municipality. The Association assumes all liability in the installation, maintenance and repair of the decorative street signs. Section 5.36 Fuel Tanks. All above or below ground storage tanks, with the exception of gas storage tanks used solely in connection with gas grills for the purpose of grilling or cooking food, shall be and hereby are prohibited. Section 5.37 Garbage and Other Refuse. No Lot Owner 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 tne accumulation out-of-doors of such refuse, including compost on his or her Lot. Section 5.38 Home Occupations. No Lot or Lots shall be used by an Owner, other than a Builder or Declarant, t(}r any purpose other than as a single-family residence, except tbat a home occupation, which satisfies the following definition as well as all requirements of the applicable Zoning Ordinance, may be permitted: any use conducted entirely within the Residence and participated in solely by a member of the immediate family residing in said Residence, which use is clearly incidental and secondary to the use of the Residence for dwelling purposes and does not change the character thereof and in connection with which there is: a) no sign or display lhat will indicate from the exterior that the Residence is being utilized in whole or in part for any purpose other than that of a dwelling; b) no commodity sold upon the premises; e) no person is employed other than a member of the immediate family residing in the Residence; and d) no manufacture or assembly operations are conducted. Provided however, that in no event shall the following or similar activities be conducted or considered to be a permitted I-Iome Occupation: child day care, barber shop, styling salon, animal hospital, or any form of animal care or tTeatment such as dog trimming, or any other similar activities. The foregoing notwithstanding, the Declarant and Builders shall be permitted to operate sales trailers, model homes, and sales otlices. Section 5.39 Open Drainage Ditches and Swales. The following shall apply to open ditches and swales: (A) Drainage swales (ditches) along dedicated roadways and within the right-ot:- way, or on dedicated drainage casements, are not to be altered, dug out, filled in, tiled, or otherwise changed, withoutthe written permission of the appropriate jurisdictional agency and 12 . . the Declarant. Property Owners must maintain these swales as grassways or other non-eroding surfaces. Any damage to swales or drainage structures must be repaired or replaced by the Lot Owner. (B) Any Owner or Builder altering, l:hanging, or damaging these drainage swales or ditches will be held responsible for such action and will be given ten (10) days notice, by registered mail, to repair said damage, after which time, if no action is taken, the appropriate jurisdictional agency, Declarant or the Association will cause said repairs to be accomplished and the invoice for such repairs will be sent to the responsible Owners tor immediate payment. If immediate payment is not received by the Association, the Association shall have all the rights and remedies to collect any outstanding amounts as outl ined hereafter in Article XI of this Declaration. Section 5,40 Roofing Materials. The roofing materials on all Residences within each Section of the Development shall be similar in color, and shall be of a quality, style and composition acceptable to the Declarant during the Development Period and, thereafter, the Committee. Section 5.41 Solar Panels. No solar panels shall be permitted on any Residence. Section 5.42 Temporary Structures. No temporary house, trailer, garage or other outbuilding shall be placed or erected on any Lot, except by Declarant or a Builder. Section 5,43 Utility Services. Easements for installation and maintenance of utilities and drainage facilities arc reserved as shown on the recorded plat. Section 5.44 Vehicles Parking. No trucks one (I) ton or larger in size, campers, trailer, motor homes, boats, snowmobiles, jet ski or similar vehicles shall be parked on any street in the Property. Any recreational vehicle or trailer, camper, snowmobile, jet ski, or boat shall not be permitted to remain on any driveway or Lot except within a closed garage and shall not be regularly parked upon unpaved areas. There shall be no outside storage of commercial trucks, trailers, boats, junk cars, or fuel tanks. Section 5.45 Visual Obstructions. No fence, wall, gate, hedge, tree or shrub planting which obstructs sight lines and elevations between three (3) and twelve (12) feet above the street shall be placed or pennitted to remain on any corner Lot within the triangular area formed by the street right- of-way lines and line connecting points twenty-five (25) feet from the intersection of said street lines or in the case of a rounded property corner, from the intersection ofthe street right-of-way lines extended. The same sight-line limitations shall apply to any Lot within ten (10) feet from the intersection of a street line with the edge of a driveway pavement or alley line. Section 5.46 Wells. Water wells shall not be drilled on any of the Lots except as required to irrigate common areas. 13 . . Section 5.47 Occupancy or Residential Use of Partially Completed Residence Prohibited. No Residence constructed on any Lot shall be occupied or used for residential purposes or human habitation until a certificate of occupancy has been issued. Section 5.48 Streets. Sidewalks. and Street Landscaping. (A) Maintenance. Declarant shall maintain all streets and curbs in good condition satisfactory for the purpose far which they were constructed until their dedication has been accepted by the controlling municipality. (B) Landscaping. All landscaping within the stTeet rights-of-way is subject to the approval ofthe appropriate governmental authority. Each Owner shall cut all grass and trim all other landscaping in the rightscof-way adjoining his Lot lines and shall maintain all sidewalks in the rights-of-way nearest his Lot lines. Each Owner shall immediately replace any street trees and lighting required by this Declaration, the Plat, or any other document controlling maintenance of Lots. (C) Street Lights and Decorative Street Signs. All street lights and decorative street signs located within the right-of-way of any stTeet shall be maintained by the Association. Section 5.49 Construction and Landscaping; Time Requirements; Divestiture; Penalties. All constTuction upon, landscaping of, and other improvements to a Lot shall be completed strictly in accordance with a lot development plan approved by the Committee. All landscaping specified on the landscaping plan approved by the Committee shall be installed on the Lot strictly in accordance with such approved plan within sixty (60) days following substantial completion of the Residence unless delayed due to adverse weather conditions, but in no event shall it be installed later than June 30'" of the year. Section 5.50 Septic Systems. No septic tank, absorption field, or any other on-site sewage disposal system shall be installed or maintained on any Lot. ARTiCLE VI ARCHITECTURAL CONTROLS Section 6.1 A!!provals. Approvals, determination, permissions, or consents required herein shall be deemed given only if they are given in writing and signed, with respect to the Declarant or the Association, by an officer thereot: and with respect to the Committee, by one (I) member thereof. Section 6.2 Development Standards and Architectural Control Committee. A Development Standards and Architectural Control Committee, composed of at least three (3) members, shall exist and shall be appointed by the Declarant. Until the end of the Development period, such members shall be subject to removal by the Declarant at any time, with or without cause, and any vacancies from time to time shall be filled by appointment of the Declarant. The Declarant may, at its sole option, at any time hereafter, relinquish far a period of time to the Association the power to appoint and remove one or more members of the Committee, provided, however, that such relinquishment of power must be in writing and signed by the Declarant. Section 6.3 Continuation of Committee. After the end of the Development period or when the 14 . . Declarant provides written notification of the relinquishment of its powers to appoint members to the Committee and to remove and fill vacancies on the Committee, , then the Directors of the Association, or their designees, shall continue the actions of the Committee with like powers and duties. Section 6.4 Duties of Committee. The Committee shall approve or disapprove proposed improvements within thirty (30) days after all required information shall have been submitted to it. The Committee for its permanent files shall retain one copy of submitted material. All notifications to applicants shall be in writing, and, in the - event that such notification is one of disapproval, the requesting applicant may re-apply with changes. If however, approval has not been received by applicant in writing within thirty (30) days, then said request shall be considered DENIED. Section 6.5 Exercise of Discretion. Declarant intends that the members of the Committee exercise discretion in the perfonnance of their duties consistent with the provisions hereof: and every Owner by the purchase of a Lot shall be conclusively presumed to have consented to the exercise of discretion by such members. In any judicial proceeding challenging a determination by the Committee and in any action initiated to enforce this Declaration in which an abuse of discretion by the Committee is raised as defense, abuse of discretion may be established only if a reasonable person, weighing the evidence and drawing all inferences in favor of the Committee, could only conclude that such determination constituted an abuse of discretion. Section 6.6 InsRection. The Committee may inspect work being perfonned without the Owner's permission to assure compliance with these restrictions and applicable regulations. Section 6.7 Liability of Committee, Declarant, Developer. Neither the Committee nor any agent thereof, nor the Declarant, or Association shall be liable in any way for any costs, fees, damages, delays, or any charges or liability whatsoever relating to the approval or disapproval of any plans submitted to it, nor shall the Committee, Association or Declarant be responsible in any way for any defects in any plans, specifications or other materials submitted to it, or for any defects in any work done according thereto. Further, the Committee, Association and/or Declarant make no representation or warranty as to the suitability or advisability of the design, the engineering, the method of construction involved, the compliance of proposed plans with laws and zoning ordinances, or the materials to be used. All parties should seek professional construction advise, engineering, and inspections on each Lot prior to proposing construction. Section 6.8 Common Areas Entrances. Street Signs, and Landscape Easements. None of the following shall be installed or constructed without prior written approval thereof by the Committee: (i) any and all landscaping, fenct:s, structures, lighting, walking trails, sidewalks, or other improvements located in any Common Area, landscape maintenance access easement, and/or sign landscape easement, (ii) any entrance monument or signage identifying the Development or any section thereof and/or (iii) street signage. Section 6.9 Lot Improvements. No dwelling, building structure, fence, deck, driveway, swimming pool, rear yard tennis or basketball courts, or improvement of any type or kind (including significant landscaping or stacking of wood) shall be constructed or placed on any Lot without the prior approval of the Committee. Such approval shall be obtained only after the Owner of the Lot requesting authorization from the Committee has made written application to the Committee at least thirty (30) days prior to the proposed construction. Such written application shall be in the manner and form prescribed from time to time by the Committee, and shall by accompanied by two (2) complete sets of plans and specifications for any such proposed construction or improvement. Such plans shall include plot plans showing (i) the location of the improvements existing upon the Lot and the location 15 of the improvement proposed to be constructed or placed upon the Lot, each properly and clearly designated and (ii) all casements, set backs, and rights-of-way and (iii) any landscape plans required by the Committee. Such plans and specifications shall further sct forth the color and composition of all exterior materials proposed to be used and any proposed landscaping, together with any other materials, photographs, 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" = I' and all plot plans shall be drawn by a professional to a scale of 1" = 30', or to such other scale as the Committee shall deem appropriate. It is also recommended that a certified survey be prepared to insure that a resident is not encroaching on an adjacent homeowner or in a Common Area. If Owner has encroached on an adjacent Owner's property or in a common area, the encroaching Owner will, at his or her own expense, move any fence or other improvement(s) so as to eliminate the encroachment. No fence or screen of any kind will be permitted if its installation will obstruct necessary site lines for vehicular traffic. Undue obstruction of view of other amenities from adjoining properties shall be considered by the Committee when reviewing applications for approval. Section 6.1 0 Power of Disapproval. The Committee may refuse to grant permission to construct, place or make the requested improvement with or without cause. Common grounds for denial include, but are not limited to, a lack or absence of the following: (A) The plans, specitications, drawings .or other material submitted must themselves be adequate and complete, show the proposed improvement, and not be in violation of this Declaration; and (B) The design or color scheme of a proposed improvement must be in harmony with the general surroundings of the Lot or with adjacent buildings or structures. Section 6.11 Power to Grant Variances. The Committee may allow reasonable variances or adjustments of this Declaration where literal application wou ld result in unnecessary hardship, but any such variance or adjustment shall he granted in conformity with the general intent and purposes of this Declaration, no variance or adjustment shall be granted which is materially detrimental or injurious to other Lots in the Development, and any such variance granted shall not be considered as precedent setting. Section 6.12 Statement of Purposes and Powers. Subject to tbis Declaration and the restrictions contained herein, the Committee shall regulate the external design, appearance, use, location and maintenance of lands and improvements thereon in such a manner as to preserve and enhance values and maintain a harmonious relationship among structures and the natural vegetation and topography, and in keeping with the intent of the Declarant. ARTICLE Vll CONTIGUOUS LOTS Section 7.1 Rules Governing Building on Several Contiguous Lot,,; Having One Owner. Whenever two or more contiguous Lots 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, such Owner must apply in writing to the Committee for permission to so use said Lots. If permission for sllch a use shall be granted, the Lots constituting the site for such single-dwelling house shall be treated as a single Lot for the purpose of applying this Declaration to said Lots, so long as the Lots remain improved with one 16 single-dwelling house; provided, however, that with respect to the combined Lots, the Owner of the combined Lots shall be obligated to pay Annual Assessments, One-Time Assessments, and Special Assessments for each originally platted lot constituting the combined Lots, and such Annual Assessments, One-Time Assessments, and Special Assessments shall be a lien on the combined Lots, all per the terms and conditions of Article X below. In addition, the Owner must obtain all requisite and necessary permits and approvals from the municipality having zoning jurisdiction over the Property. ARTICLE Vlfl USE AND OWNERSHlP OF COMMON AREA Section 8.1 Ownership. A license upon such terms, conditions, rules and regulations as the Declarant, and successor, assigns or licensees of the Declarant, shall from time to time grant, for the use and enjoyment of the Common Area, is granted to the persons who are from time to time members of the Association; provided, however, that no residential development shall occur in the Common Area. Every Owner shall have a nonexclusive right and easement of enjoyment in common with all other Owners, in and to the Common Areas which nonexclusive right and easement of enjoyment shall be appurtenant to and pass with the title to every Lot; provided, however, that any area identified on a Plat as a Limited Common Area shall be for the exclusive use and benefit of Owners whose Lots abut the Limited Common Area, subject to (i) the right of the Association to perform and undertake maintenance of the Limited Common Area and (ii) all easements granted in this Declaration. The Common Areas shall be conveyed by quitclaim deed to the Association. 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 Common Area to the Association. Section 8.2 Use. Common Area shall be used for such purposes as deemed appropriate by the Declarant until the end of the Development Period. Following the end the Development Period, the Common Area shall be used for such purposes as deemed appropriate by the Association. Any Common Area depicted on the recorded plats of the Development or designated by the Declarant as a Common Area shall remain for the exclusive use of the Owncr(s), and their family members, guests, tenants, or contract purchaser who reside on the Lot(s). Neither the Declarant's execution or recording oftbe plats nor the doing of any other act by the Declarant is, or is intended to be, or shall be construed as, a dedication to the public of the Common Area. ARTICLE IX WELLSPRINGS OF WEST CLAY HOMEOWNERS ASSOCIATION. INC. Section 9.1 Association Duties. The duties of the Association shall include the following: (i) the promotion of the recreation, health, safety, and welfare of the residcnts in the property, (Ii) the maintenance and repair of the Common Area including, but not limited to, any and all lighting, landscaping, pools, amenity areas, the Trail System, and sidewalks located thereon, (iii) the maintenance and repair of any and -all entrance monuments and signage, and the landscaping surrounding such entrances monuments and signage, (Iv) maintenance and repair of all street signage, street lighting, and all improvements and landscaping existing in any landscape maintenance access easement and/or any sign landscape easement, (v) the perfonnance of any other obligations and duties of the Association specified herein. 17 ~ Section 9.2 Board of Directors. The Owners shall elect a Board of Directors of the Association as prescribed by the Association's Articles and Bylaws. The Board of Directors shall manage the affairs ofthe Association. Directors need not be members of the Association. Section 9.3 CliL<;ses of Membership and Voting Rights. The Association shall have the following two classes of voting membership: (A) Class A. Class A members shall be all Owners with the exception of the Declarant. Class A members shall be entitled to one (1) vote for each Lot owned. When more than one person holds an interest in any Lot, all such persons shall be members. The vote fOT such Lot shall be exercised as the members holding an interest in such Lot determine among themselves, but in no event shall more than one vote be cast with respect to any Lot. (B) Class B. The Class B member shall be the Declarant. The Declarant shall be entitled to eleven (11) votes for each Lot owned. For purposes of this calculation, it shall be assumed that Declarant owns all Lots, which number shall be reduced as Lots are conveyed by the Declarant to an Owner. The Class B membership shall cease and be converted to Class A membership on the happening of either of the following events, whichever occurs earlier (hereafter "Applicable Date"): (i) December 31, 2025; or (ii) When the total number of votes outstanding in the Class A Membership is equal to the total number of votes outstanding in the Class B Membership; provided, however, that the Class B Membership shall recommence in the event that the Declarant records a plat of part of or all of the Additional Property and, by virtue thereof, total number of votes outstanding in the Class A Membership is no longer equal to the total number of votes outstanding in the Class B Membership; or (iii) when the Declarant executes and records, with the Recorder's Office, a written instrument by which the Declarant terminates the Class B membership. Section 9.4 Membership. Initially, the person(s) who serve as incorporator(s) of the Association shall be the member(s) (the "Initial Member(s)"). The Initial Mcmber(s) shall remain member(s) of the Association until the Association Articles of Incorporation are accepted by the Indiana Secretary of State, at which time the Initial Member(s) shall cease to be member(s) unless they also qualify as Class A or Class B members. Every Owncr of a Lot which is subject to assessment shall be a member of the Association. Apart from the Initial Membcr(s), a membership in the Association shall bc appUlienant to and may not be separated from ownership of any Lot. Section 9.5 Professional Management. No contract or agreement for protessional management of the Association, nor any other contract between Declarant and 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 and without payment of any termination fec upon written notice of ninety (90) days or less after the Development Period. The Association shall at all times be managed by a professional managemtlnt company. Section 9.6 Limitations on Rights of the Association. As long as there is a Class B Member, the Association may not use its resources, nor take a public position in opposition to future phases of 18 Wellsprings of West Clay proposed by the Declarant or changes to current phases of proposed by the Declarant Nothing in this paragraph shall be construed to limit the rights of the memhers acting as individuals or in affiliation with other members or groups as long as they do not employ the resources of the Association or identify themselves as acting in the name, or on the behalf of the Association. ARTICLE X ASSESSMENTS Section 10.1 Creation of Lien and Personal Obligation of Assessments. Each Owner of any Lot, except the Declarant, by acceptance of a deed therefore, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association the following: (A) Annual Assessments (hereafter defined); (B) One-Time Assessment (hereafter defincd); (C) Special Assessments (hereafter defined) tlX costs of enforcement of the Declaration, capital improvements and operating deficits, copies of Association documents if requested by a member, ami such assessments to be established and collected as hereinafter provided or established by the Board; and (D) Violation Assessments (hereafter defined) levied for a violation of this Declaration. Section 10.2 Annual Budget. By majority vote of the Board of Directors, the Board of Directors shall adopt an annual budget for thc subsequent fiscal year, which shall provide for the allocation of expenses in such a manner that the obligations imposed by the Declaration and all Supplcmental Declarations can effectively be met. Section 10.3 Annual Assessment. (A) Amount. The Annual Assessment provided for herein shall be per calendar year and shall commence for each Lot on the date of closing of the sale of a Lot to an Owner other than Declarant. The Annual Assessment, commencing during the calendar year in which the first Lot is conveyed to an Owner other than the Declarant, shall be $ per Lot. The Annual Assessment for the calendar year shall be pro-rated to year-end. The Board of Directors shall fix any increase in the amount of the Annual Assessment at least thirty (30) days in advance of the effective date of such increase. The initial due date for annual assessments shall be January 1 st of each calendar year, and such assessment shall be subject to collection and late charges beginning on January 31 s( of each calendar year. (B) Purpose of Assessments. The annual assessment levied by the Association shall be used in the reasonable discretion of the Board of Directors to fulfill the duties and obligations of the Association specified in this Declaration. (C) Method of Assessment. By a vote of a majority of the Board of Directors, the Board of Directors shall, on the basis specified in Section 10.7 below, fix the Annual Assessment for each assessment year at an amount sufficient to meet the obligations imposed by this Declaration upon the Association. The Board during any calendar year shall be entitled to increase the Annual Assessment for that year if it should determine that the estimate or current assessment is insufficient for that year, provided that the Board shall give at least thirty (30) days advance notice thereof to the Owners. The Board of Directors shall 19 ,to establish the date(s) the Annual Assessment shall become due, and the manner in which it shall be paid. Section 10.4 One-time Assessment. Upon the closing of the initial conveyance of each Lot by Declarant to an Owner, the purchaser of such Lot shall pay to the Association, in addition to any other amounts then owed or due to the Association, as a contribution to its working capital and start- up fund, an amount of against such Lot, which payment shall be non-refundable and shall not be considered as an advance payment of any assessment or other charge owed the Association with respect to such Lot. Such working capital and start-up fund shall be held and used by the Association for payment of, or reimbursement to Declarant for advances made to pay, expenses of the Association for its early period of operation of the Deve1opment~ to enable the Association to have cash available to meet unforeseen expenditures, or to acquire additional equipment or services deemed necessary by the Board. Section 10.5 Special Assessment. In addition to such other Special Assessments as may be authorized herein, the Board of Directors may levy in any year a Special Assessment(s) for the purpose of enforcing these covenants and restrictions, for legal expenses, for collection expenses, other activity that is the responsibility of an Owner hereunder but which such Owner has not undertaken as required hereunder, for 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 and/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 or the votes of the members who are voting in person or by proxy at a meeting duly called for this purpose. Section ] 0.6 Violation Assessment. In addition to all other assessments as be authorized herein, the Board of Directors may levy a V iolation Assessment to an Owner, (i) for a violation against this Declaration or (ii) for damages if any portion of the Common Area that the Association is obligated to maintain, repair and/or replace is damaged due to the willful or negligent act or omission of such Owner or Owner's guest or invitee. In the event of such damage, the Board shall have the right to undertake the necessary maintenance, repair or replacement. The choice between repair or replacement is in the sole discretion of the Board. Section 1.0.7 Basis for Assessment. (A) Lots Generallv. Each Lot owned by a person other than Declarant shall be assessed at a unifonn rate without regard to whether a Residence has been constructed upon the Lot. (B) Lots Owned bv Declarant. Declarant shall not pay the Annual Assessment and Special Assessment. Section 10.8 Notice and Due Date. Written notice of special assessments and such other assessment notices as the Board of Directors shall deem appropriate shall be delivered to every Owner subject thereto. The due dates for all assessments shall be established by the Board of Directors. Section 10.9 Assessment Liens. All Assessments, together with interest thereon, attorneys fees, and other costs of collection permitted by this Declaration to be collected, 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, including reasonable attorney fees, shall also be the personal obligation of the Person who was the Owner of the Lot at the 20 4 time when the Assessment became due. Section 10.10 Failure of Owner to Pay Assessments. No Owner, by waiver of the use or enjoyment of the Common Areas, or by abandonment of the Residence belonging to such Owner, may exempt himself or herself from paying Annual Assessments or Special Assessments, or from contributing toward the expenses of administration and/or maintenance and repair of the Common Areas and toward any other expense lawfully agreed upon. Each Owner shall be personally liable for the payment of all Annual Assessments, Special Assessments, Violation Assessments and all other charges. Where the Owner constitutes more than one person, the liability of such persons shall be joint and several. [f any Owner shall fail, refuse or neglect to make any payment of any Annual Assessments, Special Assessments, or Violation Assessments when due, the lien tor such assessment on the Owner's Residence may be foreclosed by the Board of Directors for and on behalf of the Association, as provided by law. Upon the failure of an Owner to make payments of any Annual Assessments, Special Assessments, or Violation Assessments within ten (10) days after such are due, the Board of Directors, in its discretion and regardless of whether litigation is commenced, may: (I) impose a uniform monthly late charge, which will be considered an addition to the assessment, in an amount to be detennined by the Board of Directors of up to twenty-five percent (25%) of the amount of the Assessment; (2) accelerate the entire balance of the unpaid Assessments for the remainder ofthe fiscal year and declare the same immediately due and payable, nonvithstanding any other provisions hereof to the contrary; (3) require that, in addition to the delinquent assessment and any applicable late charge, the Owner of the respective Residence also pay (i) any attomey's fees incurred incident to the collection of the delinquent assessment and (ii) collection costs incurred by the Association to the managing agent for processing delinquent Owners' accounts; (4) suspend such Owner's right to use the Common Areas as provided in the Indiana Nonprofit Association Act of 1991, as amended; and (5) suspend such Owner's right to vote as provided in the Indiana Nonprofit Association Act of 1991, as amended. In any action to foreclose the lien for any Assessments, the Board of Directors shall be entitled to the appointment of a receiver for the purpose of preserving the Residence and to collect the rentals and other profits therefrom tor the benefit of the Association to be applied to the unpaid Annual Assessments, Special Assessments, and/or Violation Assessments. The Board of Directors may, at its option, bring a suit to recover a money judgment for any unpaid Annual Assessments, Special Assessments, and/or Violation Assessments without foreclosing or waiving the Lien securing the same. [n any action to recover an Annual Assessment, Special Assessment, and/or Violation Assessments, whether by foreclosure or otherwise, the Board of Oi rectors, for and on behalf of the Association, shall be entitled to recover costs and expenses of such action incurred, including but not limited to collections costs incurred by the Association to the managing agent for processing delinquent Owners' accounts and reasonable attorney's fees, fTom the Owner of the respective Residence. Section 10.11 Certificates. The Association shall, upon reasonable request by an Owner, at any time, furnish a letter in writing signed by an officer of the Association, indicating the accounting status of assessments on a Lot showing the balance due the Association, if any. 21 G, Section 10.12 Subordination of the Lien to Mortgages. The I ien 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 lien of assessments levied under this Article X. 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 which became due or are attributable to the period of time prior to such sale or transfer. No sale transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof. ARTICLE XI REMEDIES Section I 1.1 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 covenants, conditions, and restrictions in this Declaration shall be held to be a waiver by that party or an estoppel of that party of any right available to such party upon the occurrence, reoccurrence or continuation of such violation or violations of this Declaration. Section I 1 .2 In General. The Association or any party to whose benefit this Declaration inures, including the Declarant and/or. any Owner, may proceed at law or in equity to prevent the occurrence or continuation of any violation of these Restrictions, or to compel campI iance with these Restrictions and Covenants, and shall be entitled to recover costs of collection and reasonable attorney's fees; however, neither the Declarant, nor the Association, shall be liable for damages of any kind to any person for failing either to abide by, enforce, or cany out any temls, conditions, or restrictions contained in this Declaration. ARTiCLE XU EFFECT ON BECOMING AN OWNER Section 12.1 The Owner(s) of any Lot subject to this Declaration, by acceptance of a deed conveying title thereto, or by virtue of the execution of a contract for the purchase thereof, whether from Declarant, a Builder, or a subsequent Owner of such Lot, shall accept such deed and execute such contract subject to each and every covenant, condition, and restrictions contained in this Declaration. By acceptance of such deed or execution of such contract each Owner acknowledges the rights and powers of tbe Declarant, Committee, and Association contained in this Declaration, and also, for themselves, their heirs, personal representatives, successors and assigns, such Owner(s) covenant and agree and consent to and with the Declarant, Committee and the Association and to and with the other Owners and subsequent Owners of each of the Lots affected by this Declaration to keep, observe, comply with and perform such covenants, conditions, and restrictions contained in this Declaration. ARTICLE XIII TITLES Section 13.1 The titles preceding the various Sections and paragraphs of this Declaration are for convenience of reference only and none of them shall be used as an aid to the construction of any provisions of this Declaration. Wherever and whenever applicable, the singular form of allY word shall 22 ~ f"f. be taken to mean or apply to the plural, and the masculine form shall by taken to mean or apply to the fcminine or to the neuter. ARTICLE XIV SEVERABILITY Section 14.1 Invalidation of anyone of the covenants, restrictions or provisions contained in this Declaration by judgment or court order shall not in any way affect any of the other provisions hereof, which shall remain in full force and effect. No delay or failure by any person to cnforce 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 as 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. ARTICLE XV HECLARANT'S RIGHTS Section 15.1 Any and all of the rights and obligations of the Declarant set forth in this Dcclaration may be transferred, in whole or in part, to other persons or entities, provided that the transfer shall not reduce an obligation nor enlarge a right beyond that contained in this Declaration. No such transfer shall be effective unless it is in a written instrument signed by the Declarant and duly recorded with the Rccorder of Hamilton County, Indiana. Section 15.2 Nothing in this Declaration shall be construed in a manner that limits or restricts the Declarant and/or any Builders in their development of the Property and construction of residences thereon. Therefore, notwithstanding anything herein to the contrary, the Declarant and/or any Builders authorized by Declarant may maintain and carry upon portion of the Common Area, and other portions of the Property and Lots owned by the Declarant, such facilities and activities as, in the sole opinion of the Declarant, may be reasonably required, convenient, or incidental to the construction or sale of Residences including, but not limited to, business oftices, signs, model units, sales oftices, and sales trai lers. ARTICLE XVI AMENDMENT TO THIS DECLARATION Section 16. I This Declaration and the covenants, conditions and restrictions set forth in this Declaratioll, as from time to time amended in the manner hereafter set forth, shall run with the land and shall he binding upon the persons owning any portion of the Property and all parties closing under them. This Declaration may be amended or modified at any time by an instrument recorded in the Office of the Recorder of Hamilton County, Indiana, approved and signed by at least seventy-five percent (75%) of the then Owners. Provided, however, that none of the rights or duties of Declarant reserved or set out hereunder may be amcnded or changed without Declarant's prior written approval. Except as prohibited below, this Declaration may also be amended by Declarant, if it then has any ownership interest in the Properly, at any time within five (5) years after the recordation hereof. Any amendment must be recorded. Neither the Association, the Owners or Declarant shall effect any of the following changes without the prior written approval of two-thirds (b) of the Owners of Lots (excluding Declarant or Builder): 23 !' ,J ~ (A) By act or omission seek to abandon, partition, subdivide, encumber, sell or transfer the Common Area owned directly or indirectly by the Association for the benefit of the Owners. The granting of easements for public utilities or other public purposes consistent with the intended use of the CommoTl Area owned by the Association by the Dwelling Unit Owners is not a transfer in the meaning of this clause; (B) Fail to maintain fire and extended coverage on insurable Common Area owned by the Association on a current replacement cost basis in an amount at least one hundred percent (l00%) of the insurable value (based on current replacement costs); (C) Use hazard insurance proceeds for losses to any Common Area owned by the Association for other than the repair, replacement, or reconstruction of the Common Area owned by the Association. IN TESTIMONY WHEREOF, witness the signature of the Declarant of this Declaration as of the date first above written. DECLARANT: An Indiana By: Name Title ST ATE OF INDIANA ) ) SS: COUNTY OF ) Before me, a Notary Public, in and for said County and State, personally appeared of (compaTlY) an Indiana as the Declarant herein, and acknowledged the execution of the foregoing Declaration of Covenants, Conditions, and Restrictions of WELLSPRINGS of West Clay this day of ,2005. My Commission Expires: Notary Public Resident of County, Indiana Printed: This Instrument Prepared by: Charles D. Frankenberger, Nelson & Frankenberger, 3105 E. 98th Street, Suite 170, Indianapolis, IN 46280 - (317) 844-0106. Dco;ky\Zi;lPjr\g & Ileal Psmte M.,llcT5\MClUl{Jr-Kun'\WEI.LSPRINGSs (If W.csc Cloy {l9191l1 CCR:;,UCK; 24 . ;:j (" "" EXHffiIT "An LAND DESCRIPTION A part of the Northeast Quarter of Section 31, Township 18 North, Range 3 East, Clay Township, Hamilton County, Indiana, more particu:Iarly described as follows: Commencing at the Southeast corner of said Quarter Section, said corner being marked by a railroad spike; thence North 00 degrees 05 minutes 12 seconds East along the East line of said Quarter Section a distance of 891.00 feet to a Mag Nail with washer stamped "Cripe" and the POINT OF BEGINNING of this description; thence South 89 degrees 43 minutes 59 seconds West parallel with the South line of said Quarter Section a distance of 874.50 feet; thence North 00 degrees 05 minutes 12 seconds East parallel with the East line of said Quarter Section a distance of 741.00 feet; thence North 89 degrees 43 minutes 59 seconds East parallel with the South line of said Quarter Secti on a distance of 852.1 0 feet to a rebar with cap stamped "Cripe" and the westerly right-of-way line of Shelborne Road as described in Instrument Number 2003-69146 in the Office of the Recorder, Hamilton County, Indiana; thence along said westerly right-of-way line of Shelborne Road as described in Instrument Numbers 2003-69146 and 2003-69147 by the next six (6) courses; 1) South 02 degrees 29 minutes 53 seconds West 119.08 feet to a rebar with cap stamped "Cripe"; 2) North 89 degrees 54 minutes 48 seconds West 17.59 feet to a rebar witb cap stamped lICripe"; 3) South 00 degrees 05 minutes 12 seconds West 505.40 feet to a rebar with cap stamped "Cripe"; 4) Soutb 89 deb'TeeS 51 minutes 42 seconds East 23.57 feet to a rebar with cap stamped "Cripe"; 5) South 04 degrees 18 minutes 12 seconds East 69.14 feet to a rebar with cap stamped "Cripe"; 6) Soutb 89 degrees 54 minutes 48 seconds East 16.14 feet to a Mag nail with washer stamped" S & A Firm #0008"and the East line of said Quarter Section; thence South 00 degrees 05 minutes 12 seconds West along said East line 47.52 feet to the place of beginning, containing 14.256 acres, more or less. 25 It\liocl<.y1Z<ll1ing & Real 13st."\tt': r.1..,1Itc.r:~\Mcnncr-Kllrl\Wellsprings or Wu;( Clay Ml '907 CCKs.doo; ;>' PRELIMINARY DRAFT - SUBJECT TO CHANGE AND REVISION ARTICLES OF INCORPORATION OF WELLSPRINGS OF WEST CLAY HOMEOWNERS 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 I Name Section 1.01. Name and Type. The name of this Corporation shall be the WELLSPRINGS OF WEST CLAY HOMEOWNERS ASSOCIA nON, INC. This Corporation is a mutual benefit corporation. Certain capitalized words used herein shall have the meaning set forth in Article Xl below. ARTICLE II Purposes and Powers Section 2.01. Primary Purposes. The purposes for which this Corporation is formed are to exercise all of the powers and privileges and to perform all of the duties and obligations of the Corporation as set forth in the Declaration and all Supplemental Declarations. Section 2.02. Additional Purposes. In addition, the Corporation is formed for the promotion of the health, safety and welfare of the residents of Wellsprings of West Clay and other non-profitable purposes that are authorized by the Act and pennitted to be carried on by an organization exempt from Federal income taxation under the provisions of Section 528 of the Internal Revenue Code of 1986 (hereinafter referred to as the "Code") and the Regulations issued pursuant thereto, as amended. Section 2.03. Specific Powers. Subject to any specific written limitations or restrictions imposed by the Act, by the Code, by other law, or by the Declaration or the Articles, and solely in furtherance of but not in addition to the purposes set forth in Section 2.01 and 2.02 of these Articles, the Corporation shall have the following specific powers: (a) To Manage, etc. To manage, maintain, repair and replace the Common Area, and appurtenant easements, improvements and other property of every kind and nature whatsoever, real, personal or mixed, located upon the Common Area or used or held for use in connection with the business or operation of the Corporation 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, m the Bylaws and m the Declaration. (b) To Make Assessments. To fix, levy and collect assessments and to enforce payment thereof by aU lawful means. (c) To Promulgate Rules. To promulgate such rules and regulations and perform such deeds as are deemed necessary to achieve the aforesaid purposes. (d) To Insure. To secure from insurers licensed and approved in the State of Indiana, appropriatellre/propcrty damage coverage, comprehensive general liability coverage and such other forms of insurancc as may be deemed necessary or appropriate. (e) To Secure Services. To secure professional managerial services by employing a professional manager, contracting with a professional managemcnt service or entity, or otherwise, which services may include administrative, managerial, bookkeeping, legal, architectural, engineering, maintenance, repair, construction and other services. (f) To Acquire and Dispose of Property. To acquire by gift, purchase or other means, to own, hold, enjoy, lease, operate, maintain, convey, seU, transfer, mortgage or otherwise 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. (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. (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. (i) To Make Contracts. To enter into, perfonn, cancel and rescind all kinds of contractual obligations, including the guarantee of the obligations and performance of others. U) 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 informally organized. (k) To Pay. To pay all Operating Expenses, including all licenses, taxes or governmental charges levied or imposed against the property. 2 (1) To Merge. To participate in mergers and consolidations with other nonprofit corporations organized for the same purpose or annex additional real estate as provided in the Declaration. (m) To Otherwise Act. To have and to exercise any and all powers, rights and privileges which a corporation organized under the Act may now or hereafter have or exerCIse. Section 2.04. Limitations Upon Powers. (a) Earnings. No member of the Corporation shall have or receive any earnings from the Corporation, except a member who is an employee of the Corporation, in which event he may receive fair and reasonable compensation for his services as an employee; and a member may also receive payments of principal and intcrest at a rate not exceeding that from time to time permitted by the Act on fUnds loaned or advanced by him to the Corporation. (b) Loans to Directors. The Corporation shall make no advancements for services to be perfoffiled in the future, nor any loan of money or property to any director or officer of the Corporation. ( c) Dissolution. In the event of dissolution of the Corporation, all assets remaining after payment of all debts of the Corporation, including advances and loans of members of the Corporation, and, if so authorized by the Board of Directors, distribution to members of the Corporation of such amounts as may be authorized by the Act, shall be dedicated by the Board of Directors to an appropriate public agency to be used for purposes similar to those for which this Corporation was organized. Tn the event such dedication is refused acceptance, 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 whose purposes are substantially the same as those of the Corporation and which, at the time of transfer, is exempt from Federal taxation under Sections 50 1 (c)(3), SOl(c)(4) or 528 of the Code or the corresponding provisions of any future United States Internal Revenue Law. Any such assets not so dedicated or transferred by the Board of Directors shall be disposed of in accordance with the Act. No member, 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, except as otherwise provided in these Articles or in the Act. (d) Prohibited Activities. (i) No part of the net earnings of the Corporation shall inure to the benefit of any member, director or officer of the Corporation, or to any private individual~ 3 (ii) No substantial part of the activities of the Corporation shall be devoted to attempting to influence legislation by propaganda or otherwise within the meaning of the prospective provisions of the Code; (iij) The Corporation shall not directly or indirectly participate in, or intervene in (including the publishing or distributing of statements) any politicaL campaign on behalf of, or in opposition to, any candidate for pubLic office; (iv) Notwithstanding any other provision of these Articles, the Corporation shall not conduct or carryon any activities not pemritted to be conducted or carried on by any organization exempt fTOm Federal taxation under Section 528 of the Code and Regulations issued pursuant thereto, as amended, or the corresponding provisions of any future United States internal revenue law, 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 2.01 of these Articles cannot otherwise be achieved. ARTICLE HI Period of Existence Section 3.01 Period of Existence. The period during which the corporation shall continue is perpetual. ARTICL.E IV Registered Agent and Registered Office Section 4.01 Registered Agent. The name and address of the Registered Agent in charge of the Corporation's principal office is Section 4.02 Registered Office. The post office address of the registered office of the Corporation is ARTiCLE V Membership Section 5.01. Classes of Membership. The Corporation shall have two (2) classes of members of follows; (a) Class A. Every Person, other than Declarant, who is an Owner 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 Lot. 4 (b) Class B. The Declarant shall be a Class B member. No other Person, except a successor to substantially all of the interest of the Declarant in the Development Area, shall hold a Class B membership in the Corporation. Section 5.02. Voting Rights. (a) Class A Members. Each Lot shan have appurtenant thereto one (1) vote which may be cast by the Owners thereof who are present in Person or proxy pursuant to the voting procedures established in the Bylaws. (b) Class B Members. The Class B member, if present, in Person or by proxy, shall be entitled to five (5) votes for each Lot owned by the Class B member. ( c) Casting of V otes. 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. (d) Tabulation of Votes. In any matter upon which a vote of the Members is required or allowed, the votes of Class A members and the Class B member shall be totaled and considered as though there were a single class of membership. Section 5.03. Termination ofMembershin. (a) Class A Members. Membership in the Corporation shan lapse and terminate when a Class A member ceases to be an Owner. (b) Class B Member. The Class B member shall be the Declarant. The Declarant shall be entitled to eleven (11) votes for each Lot owned. For purposes of this calculation, it shall be a,'isumed that Declarant owns all Lots, which number shall be reduced as Lots are conveyed by the Declarant to an Owner. The Class B membership shall cease and be converted to Class A membership on the happening of anyone ofthc [allowing events, whichever occurs earlier (hereafter "Applicable Date"): (i) December 31,2025; or (ii) When the total number of votes outstanding in the Class A Membership is equal to the lotal number of votes outstanding in the Class B Membership; or (iii) when the Declarant executes and records, with the Recorder's Office, a written instrument by which the Declarant terminates the Class B membership. Section 5.04. Suspension of Membership Rights. No Class A or Class B member may be expelled from membership in the Corporation for any reason. The Board of Directors shall 5 have the right to suspend the voting rights of a Class A member for a period duri ng which any assessment or charge owed by the Member remains unpaid in excess of thirty (30) days. Section 5.05. 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 Bylaws. Notice of meetings need not be given to Associate Members if notice thereof is given to the Members appointing such Associate Members. Section 5.06. No Preferences. etc. There shall be no other preferences, limitations, or restrictions with respect to the relative rights of the Members. ARTICLE VI Directo rs Section 6.01. Number of Directors. The initial Board of Directors of the Corporation shall consist of no fewer than three (3) Members nor more than five (5) members. The number of Directors of the Corporation shall be specified from time to time in the Bylaws, but the minimum number shall be three (3) and the maximum number shall be five (5). Section 6..02. Names and Post Office Addresses. The names and post office addresses of the initial members ofthe Board of Directors are as follows: ARTICLE VII Incorporator Section 7.01. Name and Address oflncoroorator. The name and post office address of the incorporator is ARTICLE VIII Statement with Respect to Property Section 8.01. Property of Corporation. The Corporation, upon its incorporation, has no property of value. ARTICLE IX Provision for Regulation and Conduct of the Affairs of the Corporation 6 Section 9.01. Management of Corporation. The affairs of the Corporation shall be managed by the Board of Directors. Section 9.02. Code of Bylaws. The Board of Directors ofthe Corporation shall have the power, without the assent of the Members, to make, alter, amend, or repeal the Bylaws. Section 9.03. Officers. The officers of the Corporation shall consist of a President, one or more Vice Presidents, a Secretary, a Treasurer, and such other officers as may be prescribed by the Bylaws or prescribed by resolution of the Board of Directors in the manner specified in the Bylaws. The offices of President and Secretary shall not be occupied by the same Person. Section 9.04. Initial Board. The Initial Board of Directors, named in Section 6.02 hereof, shall serve as the Board of Directors of the Corporation until the Applicable Date and, in the event of any vacancy or vacancies occurring in the Initial Board for any reason or cause whatsoever prior to the Applicable Date, every such vacancy shall be filled by an individual appointed by Declarant. Any such individual appointed by Declarant shall thereafter be deemed a member of the Initial Board. If the Initial Board of Directors named in Section 6.02 hereof consists of fewer members than the maximum number of members specified hereunder then, at any time prior to the Applicable Date, the Declarant may, in its sole discretion, appoint an additional member, or additional members, so long as the number of members comprising the Board of Directors is aLways less than or equal to the maximum number of members permitted hereunder. Any additional members appointed by the Declarant shall thereafter be deemed to be a member ofthe Initial Board of Directors. Section 9.05. Term of Office of Directors and Officers. Each officer and director shall hold his office for the term specified in the Bylaws, but no term shall end until a successor is elected and qualified for the office to be vacated. Section 9.06. Removal of Member of the Board of Directors. Prior to the Applicable Date, any Director may be removed by the Declarant, with or without cause. After the Applicable Date, Directors may be removed by members of the Association, with or without cause, if the number of votes cast to remove would be sufficient to elect the Directors at a meeting to elect Directors. After the Applicable Date, a Director or Directors may be so removed by the Members only at a meeting called for the purpose of removing the Director(s). Any such meeting must state that the purpose of the meeting is for voting upon the removal of Director(s). In such case, the removed Director(s) successor(s) shall be elected at the same meeting to serve for the remainder of the term(s) of the removed Director(s). Section 9.07. Amendment of Articles of Incorporation. The Corporation reserves the right to amend, alter, change or repeal any provisions contained in the Articles or any amendment hereto, in any manner now or hereafter prescribed or permitted by the Act or any amendment thereto; provided, however, that any such amendment shall require a two-thirds (2/3) vote of the Lot Owners. Provided, further, that 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 2.04 if such modification would have the effect of disqualifying tills Corporation as an organization exempt 7 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 9.08. Non-Liability. No member or Director of the Association shall be liable for any of the Association's obligations. Section 9.09. Consent.ResoLutions. Any action required or pemlitted to be taken at any meeting of the members or of the Board of Directors may be taken without a meeting if, prior to such action a written consent to such action is signed by all members or all Directors, as the case may be, and such written consent is filed with the minutes of the proceeclings of the members or of the Board. Section 9.10. Liability to the Corporation. No person shall be liable to the Corporation for any loss or damage suffered by the Corporation on account of any action taken or omitted to be taken by such person in good faith as a Director, officer, employee or agent of the Corporation if such person (i) exercised or used the same degree of care as an ordinary prudent person in a like position would use under similar circumstances; or (ii) took or omitted to take such action in reliance upon information, opinions, reports or statements, including financial statements and other financial data, in each case, prepared or presented by any officer, employee or committee of the Board of Directors of the Corporation, or legal counsel, publ ic accountants or other professional persons engaged by the Corporation, but such person shan not be considered to be acting in good faith if such person has actual knowledge concerning the matter in questions that would cause such reliance to be unwarranted; or (iii) has not breached or failed to perform the duties of their position or office in compliance with the Act, Articles of the Corporation and Bylaws of the Corporation in a manner constituting willful misconduct or recklessness. Section 9.11. Indemnification. The Corporation shall indemnify any Director or officer or fomler Director or officer of the Corporation, or any person who may have served at its request as a director or officer of another corporation, against expenses (including attorney's fees), judgment, fines, and amounts paid in settlement actually and reasonably incurred by the person in connection with the defense of any action, suit, or proceeding, whether civil, administrative, or investigative, in which he was, is made, or is threatened to be made a party by reason of being or having been a Director or officer or former Director or officer of the Corporation, or serving or having served at its request as a director or officer of another corporation, except in relation to matters as to which the person's acts or omissions are adjudged in the action, suit, or proceeding to be a breach of the person's duty to the Corporation. Such duty to the Corporation shall be to discharge the duties of the office in a manner that does not constitute willful misconduct or recklessness in the exercise of good faith and reasonable belief that the action or actions were in or not opposed to the best interest of the Corporation. The tennination of any action, suit, or proceeding by adverse judgment, order, or settlement (whether with or without court approval) shall not, alone, create a presumption that the Director or officer or former Director or officer of the Corporation, or any person who may have served at its request as a director or officer of another corporation, did not properly discharge his duty to the Corporation. If several claims, issues, or matters are involved, a Director or officer or former 8 Director or officer of the Corporation, or any person who may have served at its request as a director or officer of another corporation, may be entitled to indemnification concerning some matters even though indemnification mayor can not be given concerning other matters. Any Director or onicer serving in any capacity for another corporation, who were it not for the influence or vote of the Corporation would not be so serving, shall be deemed to be serving at the request of the Corporation. In addition: (a) To the extent that an individual has been successful on the merits or otherwise in the defense of any action, suit, or proceeding referred to in this Section 9.11, or in the defense of any claim, issue or matter therein, the individual shall be indemnified against expenses (including attorney's fees) actually and reasonably incurred in connection therewith. (b) Any indemnification, against underlying liability, provided for in this Section 9.11 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of any Director or officer or former Director or officer of the Corporation, or any person who may have served at its request as a director or officer of another corporation, is proper in the circumstances because the person has met the applicable standard of conduct set forth in Section 9.10. Such detennination shall be made (a) by the Board of Directors by a majority vote of a quorum consisting of directors not at the time parties to the proceeding; (b) if such an independent quorum is not obtainable, by majority vote of a committee duly designated by the full Board of Directors (in which designation directors who are parties may participate), consisting solely of two (2) or more directors not at the time parties to the proceeding; (c) by special legal counsel (1) selected by the independent quorum of the Board of Directors (or the independent committee thereof if no such quorum can be obtained), or (2) if no such independent quorum or committee thereof can be obtained, selected by majority vote of the full Board of Directors (in which selected directors who are parties may participate); or (d) by the Members, who are not directors who are at the time parties to the proceeding. Notwithstanding the foregoing, any Director or officer or former Director or officer of the Corporation, or any person who may have served at its request as a director or officer of another corporation, shall be able to contest any determination that he or she has not met the applicable standard of conduct, by petitioning a court of appropriate jurisdiction. (c) Expenses incurred in defending any action, suit, or proceeding, whether civil, administrative, or investigative, may be paid by the Corporation in advance of the final disposition of such action, suit, or proceeding upon receipt of a written undertaking by or on behalf of any Director or officer or former Director or officer of the Corporation, or any person who may have served at its request as a director or oUker of another corporation, to repay the amount paid by the Corporation if it shall ultimately be dctennined that he or she is not entitled to indemnification as provided in the Articles of Incorporation. No advance shall be given if the Corporation has completed the determination of conduct procedure as provided for in Section 9.11(b) and it is determined that the individual will be precluded from indemnification. 9 (d) The indemnification provided by this Section 9.11 shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any Bylaws, agreement, vote of members or disinterested Directors, as a matter of law, or otherwise, both as to actions in the officer's or director's official capacity and as to actions in another capacity while holding such office, and shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person. (e) The indemnification and advancement of expenses provided by, or granted pursuant to the Articles of Incorporation shall vest at the time of occurrence or perfonnance of any event, act or omission giving rise to any action, suit or proceeding of the nature referred to in these Arhcles and, once vested, shaH not later be impaired as a result of any amendment, repeal, alteration or other modification of any or all of these provIsiOns. Section 9.12. Conflicting Provisions. Any further provisions consistent with the Articles of Incorporation and the laws of this state, for the regulation and conduct of the affairs of the Corporation, and creating, defining, limiting or regulating the powers of this Corporation, of the Directors or of the members, may from time to time be prescribed by the Bylaws of the Corporation. If there is any conflict between these Articles and the Declaration, the Declaration shall control. If there is any conflict between the Bylaws and the Declaration, the Declaration shall control. If there is any contlict between these Articles and the Bylaws, these Articles shall control. ARTICLE X Distribution of Assets on Dissolution or Final Liquidation The Corporation may be dissolved with the assent given in writing and signed by not less than two-thirds (2/3) of each class of members. Upon dissolution or liquidation of the Corporation, other than incident to a merger or consolidation, the assets of the Corporation shall be dedicated to an appropriate public agency to be used for purposes similar to those for which this Corporation was created. In the event that such dedication is refused acceptance, such assets shall be granted, conveyed and assigned to any non-profit corporation, Corporation, trust or other organization to be devoted to such similar purposes. ARTICLE XI Definitions Section 11.01. Terms. The following terms, as used in these Articles, and in the Bylaws, unless the context clearly requires otherwise, shall mean the following: (a) " Act " means The Indiana General Nonprofit Corporation Act of 1991, as amended from time to time. 10 (b) "Articles" means the Articles oflncorporation of the Corporation, as amended from time to time. (c) "Assessment" means all sums lawfully assessed against the Members by the Corporation or as declared by the Declaration, any Supplementary Declaration, the Articles or the Bylaws. (d) "Board of Directors" means the governing body of the Corporation. (e) "Bylaws" means the Code of Bylaws of the Corporation, as amended from time to time. (f) "Corporation" means the Wellsprings of West Clay Homeowners Association, Inc., an Indiana nonprofit corporation. (g) "Declaration" means the Declaration of Covenants, Conditions and Restrictions of Wellsprings of West Clay which was recorded in the Office of the Recorder of Hamilton County. (h) "Development Area" means the "Property" as that term is defined in the Declaration. (i) "Declarant" means , an Indiana , its successors and assigns to its interest in the Development Area other than Owners purchasing Lots or Residences by deed fmm Declarant (unless the conveyance indicates an intent that the grantee assume the rights and obligations of Declarant). Cj) "Initial Boardlt means those individuals appointed by Declarant as Directors pursuant to the power granted to Declarant in Section 9.04 of these Articles. (k) "Lot" means a platted lot as shown on a Plat. (1) "Member" means a Class A or Class B member of the Corporation and "Members" means Class A and Class B members of the Corporation. (m) "Operating Expenses" means expenses of administration of the Corporation and expenses for the upkeep, maintenance, repair and replacement of the Common Area and other Property. (n) "Owner" means a Person, including Declarant, who at the time has or is acquiring any interest in a Lot except a Person who ha.., or is acquiring such an interest merely as security for the performance of an obligation. II 1. (0) "Person" means an individual, firm, corporation, partnership, limited liability company, association, joint venture, trust or other legal entity, or any combination thereof (p) "Plat" means a plat of a part or all of the Development Area recorded in the Office of the Recorder of Hamilton County, Indiana. (q) "Residence" means any structure intended exclusively for occupancy by a single family together with all appurtenances thereto, including private garage and outbuildings and recreational facilities usual and incidental to the use of a single family residential lot. (r) "Supplemental Declaration" means any supplemental declaration of covenants, conditions or restrictions that may be recorded after the Declaration. Section 11.02. Other Terms. Any capitalized word used herein or in the Bylaws and not otherwise defined above in Section 11.01 shall, unless the context required otherwise, have the meaning set forth in Article II of the Declaration. The undersigned, being the sole Incorporator designated in Article 7, does hereby adopt these Articles of Incorporation, representing by his execution hereof to the Secretary of State of the State of Indiana and all persons whom it may concern that a membership list of the Corporation for which a Certificate of T ncorporation is hereby applied for has heretofore been opened in accordance with the Act and that at least one (1) person has signed such membership list. IN WITNESS WHEREOF, the undersigned executes these Articles of Incorporation and verifies, subject to penalties of perjury, that the facts contained herei n arc true, to the best of his knowledge, information and belief, this day of , 200 Nanle Prepared by: Charles D. Frankenberger, Nelson & Frankcnberger, 3105 East 98th Street, Suite 170, Indianapolis, Indiana 46280, (317) 844-0106. 12 H:\8Nky\ZonirlJ,: & R~u1 E~ia~ M.dh:n;\Meuncr-Kuli\ArtidC1l 1I'919lJ;7.doc .". . PRELIMINARY DRAFT- SUBJECT TO CHANGE AND REVISION WELLSPRINGS OF WEST CLAY HOMEOWNERS ASSOCIATION, INC. WRITTEN CONSENT OF DIRECTORS *** The undersigned, being all the Directors of the WELLSPRINGS OF WEST CLAY HOMEOWNERS ASSOCIATION, INC., a corporation organized lmder the laws of the State of Indiana (herein called "Corporation"), hereby consent to the following action being taken by the Corporation without a meeting of the Board of Directors of the Corporation as permitted by the Indiana Nonprofit Corporation Act of 1991, as amended. ADOPTION OF BYLAWS RESOLVED, that the Bylaws submitted to the Board of Directors are hereby adopted as the Bylaws of the Corporation. ELECTION OF OFFICERS RESOLVED, that the following named persons be elected to the offices set forth opposite their respective names, to serve until the first annual meeting of the Board of Directors or until their successors are elected and qualified: Names Office President Secretary/Treasurer Vice President DESIGNATION OF DEPOSITORY RESOL VED, that the Treasurer be and it hereby is authorized to designate a depository in which the funds of this Corporation may be deposited by its officers, agents and employees. FURTHER RESOLVED, that the Secretary/Treasurer of the Corporation furnish to said Bank a certified copy of resolutions or a form of resolution or resolutions as herein authorized and satisfactory to such Bank as its authority in the premises. ~ .. .; INSURANCE AND BONDS RESOLVED, that the officers of the Corporation are authorized to procure any necessary liability insurance for and on behalf of the Corporation and also procure bonding, letters of credit, and any and all other similar items in order to establish and maintain the financial responsibility ofthe Corporation from time to time as the officers see fit. PAYMENT OF ORGANIZATIONAL EXPENSES RESOLVED, that the officers of the Corporation are authorized and directed to pay all organizational expenses of the Corporation out of the funds ofthe Corporation. PRIOR ACTIONS RESOLVED, that the Corporation ratify, affirm and adopt as its own, any and all actions taken on its behalf by or at the direction of any of the incorporators, directors and officers, including but not limited to, all contracts signed by any of the directors and officers in the Corporation's name. EXECUTED this day of , 200_ Director Director Director H~\Aockyl,Zulling& Real EztalC 1'\ltlllcrs\M~nncr~Kwt\Millulcs 091907.doc PRELIMINARY DRAFT- SUn.JECT TO CHANGE AND REVISION BYLAWS OF WELLSPRINGS OF WEST CLAY HOMEOWNERS ASSOCIATION, INC. ARTICLE I GENERAL Section 1. The name of the corporation is the WELLSPRINGS OF WEST CLAY HOMEOWNERS ASSOCIATION, INe. (hereinafter referred to as the "Association"). Section 2. The principal office of the Association shall be located at , until and unless changed in accordance with law by the Board of Directors. Section 3. The fiscal year of the Association shall begin on the first day of January and end on the 31 st day of December of every year, except that the first fiscal year shall begin on the date of incorporation. ARTICLE 11 DEFINITIONS Section 1. "Declarant" shall mean , and any successors and assigns of it whom it designates in one or more written recorded instruments to have the rights of Developer under the Declaration, including, without limitation, any mortgagee acquiring title to any portion of the Property (as such term is defined in the Declaration) pursuant to the exercise of rights under, or foreclosure of, a mortgage executed by Developer. Section 2. "Declaration" shall mean and refer to the Declaration of Covenants, Conditions and Restrictions of Wellsprings of West Clay which was recorded in the Office of the Recorder of Hamilton County. Section 3. "Association" shall mean and refer to this corporation, which is also referred to as the "Association" in the Declaration and the "Corporation" in the Articles of Incorporation of this Association. Section 4. "Applicable Date" shall mean and refer to the date the Class B membership terminates as specified in Section 5.03(b) of the Articles ofIncorporation of this Association. Section 5. All of the terms a~ defined and used in the Declaration shall have the same meanings in these Bylaws and reference is specifically made to Article I of the Declaration containing definitions ofterms. ARTICLE HI MEMBERSHIP AND VOTING RIGHTS Section 1. Membership, Transfer, Voting Rights. Reference is hereby made to Article IX of the Declaration and Article V of the Articles of Incorporation which sets forth terms, provisions and conditions governing and relating to membership in the Association, transfer of membership and voting rights of classes of Members, all of which terms, provisions and conditions are incorporated herein by reference. Section 2. Quorum. The presence of Members or of proxies entitled to cast twenty five percent (25%) of the total number of votes entitled to be cast (Class A and Class B votes combined) shall constitute a quorum. Section 3. Proxies. Votes may be cast in person or by proxy. Proxies must be filed with the Secretary of the Association before the appointed time of each meeting of the Member~ of the Association. Cumulative voting shall not be permitted. Section 4. Majority Required. A majority of the votes of Members present (in person or by proxy) at a meeting at which a quorum is present shall be sufficient for the transaction of all business of the Association except on matters where a greater vote is required by the Declaration, the Articles of Incorporation, the Bylaws or by statute. Section 5. Meetings. Meetings of the Members of the Association shall be in accordance with the following provisions: A. Place. Meetings of the Members shall be held at such place in Hamilton County, Indiana, as may be designated by the Board of Directors of the Association. B. Arumal Meetings. The first annual meeting of the Members shall be at any time determined by the Board of Directors. At such first annual meeting of the Members, the Members may designate a regular day or date for successive annual meetings, which date shall be not more than one (1) year after the dose of each fiscal year of the Association. If the Members fail to designate such a regular day or date, the Board of Directors may continue to designate the day or date of the next annual meeting until such a designation is made by the Members. If any designated day or date falls upon a legal holiday, the actual date of the meeting shall be the next business day succeeding such designated day or date. -2- C. Special Meetings. Special meetings of the Members shall be called by the President of the Association, by resolution of the Board of Directors of the Association or upon a written petition signed by Members of the Association who are entitled to vote ten percent (10%) of all votes of the membership. Notice of any special meeting shall state the time and place of such meeting and the purpose thereof. No business shall be transacted at a special meeting except as stated in the notice. D. Notice of Meetings. Written notice of any meeting called for the purpose of taking any action authorized under this Article shall be sent to all members not less than ten (10) days in advance ofthc meeting. E. Order of Business. The order of business at all meetings of the members shall, to the extent applicable, be as follows: 1. Roll call. 2. Proof of notice of meeting or waiver of notice. 3. Reading of minutes of preceding meeting. 4. Reports of officers. 5. Reports of committees. 6. Election of directors. 7. Unfinished business. 8. New business. F. Voting by Co-Owners and Entities. The vote appurtenant to any Lot in which more than one person owns an interest may be exercised by any of such persons present at any meeting, unless the Association is advised (by objection or protest at the meeting or written notice prior thereto) by any other person owning an interest in such Lot that the Owners of the Lot are unable to agree upon the manner in which the vote appurtenant to such Lot shall be cast at such meeting or on any particular question to come before such meeting. In such event, the vote appurtenant to the Lot shall not be counted at the meeting or on the particular question noted, as the case may be. In the event any Lot is owned by a corporation, then the vote appurtenant to such Lot shall be cast by a person designated in a certificate signed by the president or any vice president of such corporation and attested by the secretary or an assistant secretary of such corporation and filed with the Secretary of the Association prior to the meeting. The vote appurtenant to any Lot owned by a trust or partnership may be exercised by any trustee or partner thereof, as the case may be, and unless any objection or protest by any other such trustee or partner is noted at such meeting or in writing prior thereto, the Chairman of such meeting shall have no duty to inquire as to the authority of the person casting such vote or votes. G. Suspension of Voting Rights. No Class A Member shown on the books or management accounts of the Association to be more than sixty (60) days delinquent in any payment due to the Association shall be eligible to vote, either in person or by proxy, or to be elected to the Board of Directors. -3- ARTICLE IV NOMINA nON AND ELECTION OF DIRECTORS Section 1. Nomination. The Initial Board of Directors, named in Section 6.02 of the Articles of Incorporation of this Association, shall serve as the Board of Directors of the Corporation until the Applicable Date and, in the event of any vacancy or vacancies occurring in the Initial Board for any reason or cause whatsoever prior to the Applicable Date, every such vacancy shall be filled by an individual appointed by Declarant. Any such individual appointed by Declarant shall thereafter be deemed a member of the Initial Board. After the Applicable Date, nomination for election to the Board of Directors shall be made from the floor at the annual meeting of the members of the Association. Such nom inations may be made only from among Members of the Association, or persons deemed to be Members eligible to serve as directors thereof or otherwise eligible to serve on the Board of Directors in accordance with the Declaration and the Articles of Incorporation of the Association. Section 2. Election. After the Applicable Date, election to the Board of Directors shall be by secret written ballot at the annual meeting of the Members of the Association. At such election the Members or their proxies may cast, in respect to each vacancy, as many votes as they are entitled to exercise under the provisions of the Declaration. The persons receiving the largest number of votes shall be elected. Cumulative voting is not permitted. ARTICLE V BOARD OF DIRECTORS Section 1. Number and Qualification. Until the Applicable Date, the affairs of the Association shall be governed by the Initial Board of Directors and shall consist of three (3) members. After the Applicable Date, the Board of Directors shall consist of three (3) members. Section 2. Additional Qualifications. Where an Owner consists of more than one person, or is a partnership, corporation, trust or other legal entity, then one of the persons constituting the multiple Owner or partner, officer or trustee, as the case may be, of the partnership, corporation, trust or other entity, Owner shall be eligible to serve on the Board of Directors of the Association, except that no Lot may be represented on the Board of Directors by more than one person at a time. Section 3. Initial Board of Directors. The initial Board of Directors named in the Articles of Incorporation (the "Initial Board") shall maintain, manage and administer the affairs and the property of the Association until the Applicable Date. Section 4. Term of Office Generallv. Such Directors shall hold office until the next annual meeting of Members, or until their successors are elected, or until they are removed or reSIgn. -4- Section 5. Duties. The Board of Directors shall have the following duties: A. To cause to be kept a complete record of all its acts and corporate affairs and to present a statement thereof to the members at the annual meeting of the members, or at any special meeting when such statement is requested in writing by members holding twenty-five percent (25%) of the total votes of the membership entitled to vote; B. To supervise all officers, agents and employees of the Association; C. To establish the :lnnual assessment period and fix the amount of the annual assessment against each member for each Lot owned, all in accordance with the terms of the Declaration and these Bylaws; D. To fix the amount of any special assessment against each member for each Lot owned, all in accordance with the terms of the Declaration and these Bylaws; E. To send written notice of each assessment to each Owner in accordance with the Declaration; F. To foreclose the Association's Lien for assessments against any property for which assessments are not paid within thirty (30) days after the due date thereof or to bring an action at law against the Owner or other person personally obligated to pay the same; G. To issue, or to cause an appropriate officer to issue, upon demand by any person or entity, a certificate setting forth whether or not any assessment has been paid; 1-1. To procure and maintain the insurance coverages required by the Declaration and such other insurance coverages as the Board of Directors, in its sole discretion, deems necessary or advisable; I. To cause all officers or employees having fiscal responsibilities to be bonded, as it may deem appropriate, and at least as required by the Declaration; and, J. To cause all of the Common Areas and all easements hereunder, including but not limited to Lake Easements, Landscape Easements, Drainage Easements, and Utility Easements to be maintained to the extent to the Association's responsibilities therefor as provided in the Declaration. Section 6. Vacancies. Until the Applicable Date any vacancy in the Board of Directors shall be filled by the Declarant. Thereafter, any vacancy in the Board of Directors shall be filled by vote of the majority of remaining Directors, even though they may constitute less than a quorum. Each person so elected shall be a director for the unexpired term of his predecessor, or until his successor is elected. -5- Section 7. Compensation. No Director shall receive compensation for any service he may render to the Association as such director. However, any Director may be reimbursed for his actual expenses incurred in the performance of his duties, and any Director may be paid and compensated for services to the Association in a capacity other than as a director. Section 8. Removal of Directors. Prior to the Applicable Date, the Declarant may remove Director(s), with or without cause. After the Applicable Date, Directors may be removed by members of the Association, with or without cause, if the number of votes cast to remove would be sufficient to elect the Directors at a meeting to elect Directors. After the Applicable Date, a Director or Directors may be so removed by the Members only at a meeting called for the purpose of removing the Director( s). Any such meeting must state that the purpose of the meeting is for voting upon the removal of Director(s). In such case, the removed Director(s) successor(s) shall be elected at the same meeting to serve for the remainder of the term(s) of the removed Director(s). Section 9. Regular Meetings. Regular meetings of the Board of Directors shall be held at such regular intervals, without notice, at such place and hour as may be determined from time to time by resolution of the Board of Directors. Should said meeting fall upon a legal holiday, then that meeting shall be held at the same time on the next day which is not a legal holiday. Section 10. Special Meetings. Special meetings of the Board of Directors may be called by the President on three (3) days notice to each Director, given personally, by mail, telephone or telegraph, which notice shall state the time, place and purpose of the meeting. Special meetings of the Board of Directors shall be called by the President or Secretary in like manner lmd on like notice on the written request of at least two-thirds (2/3) of the directors. Section 11. Wavier of Notice. Before or at any meeting of the Board of Directors, any Director may, in writing, waive notice of such meeting and such waiver shall be deemed equivalent of the giving of such notice. Attendance by a Director at any meeting of the Board of Directors shall be deemed a waiver of notice by him of the time and place thereof. If all the directors are present at any meeting of the board, no notice shall be required and any business may be transacted at such meeting. Section 12. Quorum. At all meetings of the Board of Directors, a majority of the Directors shall constitute a quorum for the transaction of business, and the acts of the majority of the Directors present at a meeting at which quorum is present shall be the acts of the Board of Directors except as otherwise provided in or required by the Declaration, Articles of Incorporation, these Bylaws or statute. If, at any meeting of the Board of Directors, there shall be Less than a quorum present, the majority of those present may adjoum the meeting from time to time. At any such adjourned meeting, any business which might have been transacted at the meeting as originally called may be transacted without further notice. Section 13. Action Taken Without a Meeting. The Directors shall have the right to take any action in the absence of a meeting which they could take at a meeting by obtaining the -6- written approval of all the directors. Any action so approved shall have the same effect as though taken at a meeting of the directors. ARTICLE VI OFFICERS AND THEIR DUTIES Section 1. Enumeration of Offices. The officers of the Association shall be a President, a Vice-President, a Secretary, and a Treasurer, all of whom shall be members of the Board of Directors, and such other officers as the Board of Directors may from time to time by resolution create. Section 2. Election of Officers. The election of officers shall take place at the first meeting of the Board of Directors following each annual meeting of the members of the Association. Section 3. Term. The officers of the Association shall be elected annually by the Board of Directors and each shall hold office for one (1) year or until his successor is elected and qualified unless he shall sooner resign, be removed or otherwise disqualified to serve. Section 4. Special Appointments. The Board of Directors may elect such other officers as the affairs of the Association may require, each of whom shall hold oflice for such period, have such authority, and perform slich duties as the Board of Directors may, from time to time, determine. Section 5. Resignation and Removal. Any officer may be removed from office with or without cause by the Board of Directors. Any officer may resign at any time by giving written notice to the Board of Directors, the President or Secretary. Such resignation shall take effect on the date of receipt of such notice or at any time specified therein, and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 6. Vacancies. A vacancy in any office may be filled by appointment by the Board of Directors. The officer appointed to such vacancy shall serve for the remainder of the ternl of the officer he replaces. Section 7. Multiple Offices. The offices of Secretary and Treasurer may be held by the same person. No person shall simultaneously hold more than one of any of the other offices except in the case of special offices created pursuant to Section 4 of this Article. Section 8. Duties. The duties ofthe officers are as follows: A. President. The President shall preside at all meetings of the Board of Directors. He shall see that orders and resolutions of the Board are carried out. He shall have the power to appoint committees from among the members of the Association from time to time as he may in his discretion deem appropriate to assist in conducting the -7- affairs of the Association. The President shall have and discharge all the general powers and duties usually vested in the office of the president or chief executive officer of an association or a stock corporation organized under the laws of the State of Indiana. B. Vice-President. The Vice-President shall act in the place and stead of the President in the event of his absence, inability or refusal to act, and shall exercise and discharge such other duties as may be required by him by the Board of Directors or as are delegated to him by the President. C. Secretary. The Secretary shall record the votes and keep the minutes of all meetings and proceedings of the Board of Directors and of the members; keep the corporate seal of the Association (if any is adopted) and affix it on all papers requiring said seal; serve notice of meetings of the Board of Directors and of the members; keep appropriate current records showing the members of the Association, together with their addresses, and shall perform such other duties as required by the Board of Directors. D. Treasurer. The Treasurer shall receive and deposit in appropriate bank accounts all monies of the Association and shall disburse such funds as directed by resolution of the Board of Directors; shall sign all checks and promissory notes of the Association; keep proper books of account; and shall prepare an annual budget and a statement of income and expenditures to be presented to the membership at its regular annual meeting, and deliver a copy of each to the members. ARTICLE VII COMMITTEES The Board of Directors shall appoint the committees provided for in the Declaration and the Nominating Committee referred to in Article IV of these Bylaws. In addition, the Board of Directors or the President may appoint various other committees to carry out the purposes of the Association. Members of such committees may, but need not, be members of the Board of Directors. ARTICLE VIII BOOKS OF ACCOUNT AND FlSCAL YEAR Section 1. Books of Account. The Association shall keep detailed books of account showing all expenditures and receipt of administration which shall specifY the maintenance and repair expenses of the Common Areas, private streets, and all easements and any other expenses incurred by or on behalf of the Association and the members. Any holder, insurer or guarantor of a first mortgage on a Lot shall be entitled upon written request to receive a statement for the immediately preceding fiscal year free of charge to the requesting party and within a reasonable time of such request. Current copies of the Declaration, the Articles of Incorporation, and the Bylaws of the Association, and other rules concerning the Property, shall be available for -8- . . inspection by any Owner and lender, and to holders, insurers or guarantors of any first mortgage at the principal office of the Association during normal business hours or under other reasonable circumstances, where copies of the same may be purchased at reasonable costs. Section 2. Fiscal Year. The fiscal year of the Association shall commence January 1, and end the following December 31 each year; provided, however, that the fiscal year for purposes of assessments may be different than the general fiscal year of the Association. ARTICLE IX CONTRACTS. LOANS & CHECKS Section 1. Authorization. The Board of Directors may authorize any officer or officers or agent or agents of the Association to enter into any contract or execute any instrument on its behalf. Such authorization may be general or confined to specific instances. Except as provided in these Bylaws, no officer, agent or employee shall have any power to bind the Association or to render it liable for any purpose or amount un less so authorized by the Board of Directors. Section 2. Checks. All checks, drafts, or other orders for payment of money by the Association shall be signed by the President, Secretary, Treasurer or such other person as the Board of Directors may from time to time designate by resolution. ARTICLE X MISCELLANEOUS Section 1. These Bylaws may be amended, at a regular or special meeting of the Members of the Association, by a vote of a majority of a quorum of members present in person or by proxy. In addition, the Board of Directors of the Association shall have the right and power, without the consent of the Members, to make, alter, amend or repeal these Bylaws. Section 2. In the case of any conflict between the Articles of Incorporation and these Bylaws, the Articles of Incorporation shall control; and in the case of any conflict between the Declaration and these Bylaws, the Declaration shall control. -9- H:\tlu:ky\Zonill.g& Real Estalc MaH-cl1i\McIlIICl-KlIlfUlyJ:ms 09];'907.t1m: