HomeMy WebLinkAboutCovenants - Recorded
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200400010051 "
Filed for Record In
HAMILTON COUNTY,- INDIANA
JENNIFER J HAYD~N
02-17-2004 At 12:25 ~m.
DEC COV RES B6.1I0
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DECLARATION OF COVENANTS AND RESTRICTIONS
WEXLEY CHASE
Carmel, Indiana
Recorded &-1'7 2004
Instrument No. If)C ODD ([;[)5[)
Office of the Recorder of Hamilton County
Last Deed of Record to Tract: 200300052933
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DECLARATION OF COVENANTS AND RESTRICTIONS
WEXLEY CHASE
INDEX
Palle
1. Definitions. ....................... ...........:.................. ........ .......................... ................................... 1
2. Declaration.............................. .... .......................................................,................................. 5
3. Detention Areas. ....... ..... .......................................... ............. ... ................ ............................5
(a) Development..........,.... ..................................................................... ........................5
(b) Title and Maintenance. ............. ............. ... ............... ..... .... .......... .............................5
(c) Use, .......................................................................................................................... 6
4. The Common Areas................. ............................................................................................ 6
5. Drainage System........ ............. .............................. ..,.............................................................6
6. Paths and Path Lights.. ,..................... ............. ....................................,.................................. 7
7. Entry Ways; Wexley Chase Signage. ....... .................... ......... ......... ....... ................ ...... ........7
8. Common Lighting...... ..... ..... ........................... ..... .................................. .............................. 7
9. Site Furniture and Facilities........... ................................ .............. ..... ..... ................ .............. 7
10. Street Trees. ...................... ..................... .... ..................... ................ ....... ..................... .........7
1 L Land Use. ............................................................................................................................. 7
12. Wexley Chase Homeowners Association, Inc'. .................................................................... 8
(a) Membership...... ......... ............................... ..................... .............. ..............................8
(b) Powers. .. .. ... .. . ... .. . .. . .. . .. . . . ... . . . .. .. .. ... . . . .. . .. ... .. . . . .. . . .. .. .. . .. .. . .. .. . . .. .. . .. .. . .. . . .. ... .. .. . .. .. . .. . .. . .. 8
(c) Classes of Members. ............................................. n...... ......... ................... ............... 8
(d) Voting and Other Rights of Members. ... ....... .....:................ ..... ....... ........................ 8
(e) Reserve for Replacements. .......... ................... ....... ........ ...... ........ ................ ........ .... 8
(f) Maintenance Standards. ........... ............... ............................ _...... ...... .......... _............. 8
(g) Limitations on Action by the Corporation..............................................................9
(h) Mergers. ..................................................................... ....... ............. ..........................9
13. Assessments. .................. ............... n................. _.......... ......... ........ .... .............................. ......9
(a) Creation of the Lien and Personal Obligation of Assessments...............................9
(b) General Assessment...... ................................... ............... ............ ...., ................. ..... 10
(i) Purpose of Assessment. ... ................. ........................................................ 10
(1i) Basis for Assessment. ................................................................................10
(1) Lots Generally. .... ........... .............. ........................ .......... H..... '" ..... 10
(2) Change in Basis. .... ......... ....... ....................... .......... '" ....................10
(iii) Method of Assessment....... ...... .................... ........ ................ ......... ............. 10
(iv) AHocation of Assessment. ..... ..... ........ ..... ......... ....... ....... '" ... ....... ..............10
(c) Community Area Initial Assessment. ................ .............. .:.......... .......................... 11
(d) Architectural Control Assessm,ent. .........,........,............... ..................,................... ] 1
(e) Special Assessment......... ......... ........... ............................. .......... '....,.. ......... ........... 11
(f) Date of Commencement of Assessments. .......... ..............:. ........ ........................... 11
(g) Effect of Nonpayment of Assessments; Remedies of the Corporation. ..............12
(h) Subordination ofthe Lien to Mortgages. ...............................................................12
(i) Certificates.... .................. ............. ......... ..... ............... ........................... .................. 12
U) Annual Budget. ........................ ,......................., .... ............................................ ,.... 12
(k) Lots owned by Declarant. ......................................................................................12
14. Architectural Control. ... .........,.... .............................. .............................................. .......... .13
(a) The Architectural Review Board. ........ .......... ...... ............ ..... .... ................ .............13
(b) Purpose. .. ..... ........,......... ................,.... ..................... ................... .....,.. ......... ,......... 13
(c) Conditions. ..............,.. ................................,............................... ... .:....,................. .13
(d) Procedures................ ......................... ....... ... n.'......,....... ......,..............................,.. .13
(e) Guidelines and Standards. .............. ............ ........... .............. ............................... ...14
(f)' Application of Guidelines and Standards. ............................................................14
(g) Design Consultants. .............................................................. ................................. 14
(h) Existing Violations of Declaration. ................. ............ .......... ................................14
(i) Exercise' of Discretion...... ,....... ...............,...... ................................,.,.... ................. 15
Cj) Liability of Board. .... ................. ............... ....... ....... .............. ..... ......... ............ ...... ...15
(k) Inspection............... ....... ............... ...............,............................................... ......,.... 15
(1) Construction and Landscaping. ..................................... ................ ....................... 15
(m) General Restrictions...... ................... ......................... ..................................... ........ 16
(i) Size of Residence. -........................... ........... .............................................. .16
(ii) Temporary Structures. .,.. ......,...... ... .............,.. .... ....... ..... ,.......... _. ..... ... ..., ..16
(iil) Antennas and Receivers,..................... .................. ........ ............................. 17
(iv) Exterior Lights. ..........................................................................................17
(v) Electric Bug Killers. ..... ............. ................................................................ 17
(vi) Air Conditioners. ........... ,.. ...... ....... ......................... ............ .... ..... ........ "." .17
(vii) Building Location and Finished Floor Eh~vation..... ....... ............... ..... ....... ] 7
(viii) Driveways and Sidewalks. ...................... ................................................... 18
(ix) Yard Lights. ............................................"...................................................18
(x) Storage Tanks. .. ............ ......... ......... ...........,....................... ................ .;...... 18
(xi) Mailboxes, ....... ...... ..... ................ ................... ..... ........... ................ ........... .18
(xii) Accessory Buildings. ............. .................. ........................ ........... .............. .18
(xiii) Pools. ................. ....................................................................................... .18
(xiv) Basketball Goals. ....,............. .................. ................................................... 18
(xv) Septic Systems. ... ........ ........ ....... ........... ........ ....................... ...................... 18
(xvi) Water Systems. ....................................... .............................................. ..... 19
(xvii) Vehicle Parking. ........... ..... .......... .......................... ..................... ............... 19
(xviii) Signs. ............... .............................. ........ .........., ...... ....................., ............,19
(xix) Fencing,........,....... ....... ....... ................. ........................... .................... ....... 19
II
(n) Other Restrictions. .. ....<................,.................................,....................................... 20
(0) Exceptions................................................................ ........................,..........,.,...... ..21
15. Community Area and Common Facilities. .. ....... ..... .......................... ...... ..................... ..... 21
(a) Ownership. ,...,....,...........,......, ....,. ,....,...................................,..........,..........,...... ....21
(b) Density of Use. ........... "<'''' "............"....,.. .......... '''''' ............. .... ...........,., ........... ...-21
(c) Obligations of the Corporation. ......................~........ ....... ...........,..........,............. ...21
(d) . Easements of Enjoyment............ ........................ "....., ............. ............... .... .......... 21
(e) Extent of Easements. . ......,...........,......,..... ............... ......... .....,......,. ......... ........... ... .22
(f) Additional Rights of Use. ... .............. ,......................,...... ...........<........... ........ ....... .23
(g) Damage or Destruction by O\:mer. ............... .................. .............. ............. ........... .23
(h) Conveyance of Title. ............... ....... ............................. .............. ..... ...,.................... 23
16. Maintenance of Lots. ............. ............................ .....,......................................................,.. .23
(a) . Nuisances. ........ .. ...................... ................. .. ...... .., .. .:... ...... ............ ........ , .. .. ........ .... 23
(b) Maintenance of Development Area, ................. ..................................... ....... ......... 23
(c) Drainage,. ...............,........ ........,........................... .................. ..... ........,............,..... .24
(d) Vegetation.................. ............ ,... ....... .............................,.... .......... ........................ .24
(e) Garbage and Refuse Disposal.. ..... .......... ...... ..................... ..... .... ......................... .24
(f) Livestock and Poultry. ...................... .................................................................... 24
(g) Outside Burning.................... ................................................................................ .24
17. Easements. .......... ................................................ .._.... ........................................................ .25
(a) Plat Easements. ............................. .....<.......... .'. .................................. .....................25
(i) Drainage Easements........................ ..................... ......... ...... ..................... ..25
(ii) Sanitary Sewer Easements. .................... ..................... ........ ................. ..... .25
(Iii) Utility Easements......... ...... .................. ................................ .................. ...25
(iv) Drainage and Utility Easements. . ........... ............. ................... ...................25
(v) Non-Access Easements............ .................. ................ ...... ................. ......... 25
(vi) Public Pedestrian Access Easements. . ............. .............. ........... ................ .26
(b) General Easement...................................... ............... ............................................26
(c) Public Health and Safety Easements. .... ...... .................... .......... ......... ...................27
(d) Drainage Board Easement ...... .:................... ........... ............ ..... ........................ ..... 27
(e) Crossing Underground Easements. ......... ..... ................ ......~.. ........... ............ ........ ..27
(f) Declarant's Easement to Correct Drainage........ ..... ........ .......... ..........................,.27
(g) Water Retention. .............................................................., ............................ .........27
18. Use of Lots During Development...... ............ ................................ ....... ......................... ....27
(a) By Declarant. ........................................................................ ................................ .27
(b) By Builders. .............. ....................................................... ....... .............................. .28
19. Enforcement...... ......................... ..... ........ ...........,......... .............................. ............. ........... 28
20. Limitations on Rights of the Corporation. .........................................................................28
21. Approvals by Declarant. .................:............................................................................. .....28
22. Mortgages. ..................................... ................................................................................:....2 8
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(a) Notice to Corporation. ... ....... ..... ........ ............... ... ....... .... ....... .,.". ,........, ......... ,... ... 28
(b) Notices to Mortgagees. ....... ....... ............... ................... .................................. ........29
(c) Notice of Unpaid Assessments. .. .............. ,....... ........ ........... ........... ....... ................ 29
(d) Financial Statements.... ............... .......................... ..................... ...... ..... .................29
(e) Payments by Mortgagees. ....... ............... .......... ............. .......................... .............. .29
23. A.tn.endtnents. ...................... ...................... ................,............ .................................. ..........30
( a) Generall y..... .. .. ... .. ... .. .. . .. . .. . .. .. . . .. .. .. .. . . .. .. ... . . . . .. .. ... .. .. ... . .. . .. . . . .. .. ... .. .. . . .. .. . .. . . . . .. .. .. . .. . 30
(b) By Declarant. .......... ................. ............. ............... ........ ........... .... .............. '" ..........30
(c) Effective Date. ...................................... ....................................,............... .............30
24. Interpretation................. ....................... ............. .................... ................... ............. .............30
25. Duration. ....... ..... ............................ ....................... .............................................................30
26. Severability. ......................... ..... ......... .................... .............................................................30
27. Non-Liability of Declarant. ...................................................:: ....................,.....................31
28, Compliance with the Soil Erosion Control Plan.... ........ ..................... ......... ................ ......31
(a) The Plan. ......................... .. . .. .. '" . . .. .. .. .. '" .. . . . . .. .. . .. " ... .. .. . .. .. . . . . '" .. . . . . . .. . . .. .. . .. .. . . . . . . . .. . 31
(b) Indemnity. .......... .......................................... ..... ..... ..... .."................ .......................31
29. Assessments. ....................... ........... ....................... .......... ................. .. ........... ... ............. ... .. 31
30. Enforcement.................................................. .....................,'.. .................. ...........................31
3 L Additions to the Tract. .. ................... .................. ..... ..... ............. ............ ................... ........... 32
32. Annexation..................................... ............ ..................... .............. .......... ....................,...... 32
IV
DECLARATION OF COVENANTS AND RESTRICTIONS
WEXLEY CHASE
This Declaration, made as of the / {. t!=- day of February, 2004 by GWZ-2
. DEVELOPMENT, LLC; an Indiana limited liability company ("Declarant"),
WITNESSETH:
WHEREAS, the following facts are true:
A. Declarant owns the real estate located in Hamilton County, Indiana, described in
Exhibit A, upon which Declarant intends, but is not obligated, to develop a residential
community to be known as Wexley Chase.
B. Declarant desires to provide for the preservation and enhancement of the property
values, amenities and opportunities in Wexley Chase and for the maintenance of the Tract
together with such additions as may hereafter be made thereto (as provided in Paragraph 31) and the
improvements thereon, and to this end desires to subject the Tract to the covenants, restrictions,
easements, charges and liens hereinafter set forth, each of which is for the benefit of the Lots and
lands in the Tract and the future owners thereof
. C. Declarant deems it desirable, for the efficient preservation of the values and
amenities in Wexley Chase, to create an agency to which may be delegated and assigned the
powers of owning, maintaining and administering the Community Area, adIninistering and
enforcing the Restrictions, collecting and disbursing the Assessments and charges hereinafter
created, and promoting the recreation, health, safety and welfare of the Owners of Lots in
Wexley Chase,
D. Declarant has incorporated under the laws of the State of Indiana a nonprofit
corporation known as Wexley Chase Homeowners Association, Inc. for the purpose of
exercising such functions.
NOW, THEREFORE, Declarant hereby declares that all of the Lots and lands in the
Tract, as they are held and shall be held, conveyed, hypothecated or encumbered, leased, rented,
used, occupied and improved, are subject to the following Restrictions, all of which are declared
to be in furtherance of a plan for the improvement and sale of Lots in the Tract, and are
established and agreed upon for the purpose of enhancing and protecting the value, desirability
and attractiveness of the Tract as a whole and of each of R~sidences, Lots and lands situated
therein. The Restrictions shaJl rLin with the land and shall be binding upon Declarant, its
successors and assigns, alld upon the parties having or acquiring aIly.interest in the Tract or any
part aT parts thereofsubject to such Restrictions, and shall inure to the benefit of Declarant and
its successors in title to the Tract or any part or parts thereof.
1. Definitions. The following terms, as used in this Declaration, unless the context
clearly requires. otherwise, shall mean the following:
"
"Applicable Date" means the date when all Lots in the Tract have been improved
by the construction thereon of Residences and such Residences are actually
occupied by Owners other than the builder thereof.
"Architectural Control Ass'essment" means the assessment levied by the
Corporation pursuant to Paragraph 13( d).
"Architectural Review Board" means that entity established pursuant to Paragraph
14 of this Declaration for the purposes therein stated,
"Articles" means the Articles of lncorporation of the Corporation, as amended
from time to time.
"Assessments" means all sums lavI/fully assessed against the Members of the
Corporation or as declared by this Declaration, the Articles or the By-Laws.
"Board of Directors" means the governing body of the Corporation elected by the
Members in accordance with the By-Laws.
"By-Laws" means the Code of By-Laws of the Corporation, as amended from
time to time.
"Comlnunity Area" means (i) the Detention Areas, (ii) the Entry Ways, (iii) the
Common Areas, (iv) the Paths, (v) the Drainage System, (vi) any utility service
lines or facilities not maintained by a public utility company or governmental
agency that are located on, over or below or through more the Tract, and (vii) any
areas of land (1) shown on any Plat, (2) described in any recorded instrument
prepared by Declarant or its agents, or (3) conveyed to or acquired by the
Corporation, together with all improvements thereto, that are intended to be
devoted to the use or enjoyment of some, but not necessarily all, of the Owners of
Lots.
"Community Area Initial Assessment" means the initial assessment for the
Reserve for Replacements required by Paragraph 13.
"Common Facilities" means any Common Lighting, Site Furniture and Facilities
and other personal property of the Corporation. "
"Common Lighting" means the light standards, VI/iring, bulbs and other
appurtenances, if any, installed to illuminate,the"Community Area.
"Common Area" ,means the land denoted' on a Plat as a "Common Area" or
designated as a "Common Area" in any recorded instrument executed by
Declarant
;
"Corporation" means Wexley Chase Homeowners Association, Inc., an Indiana
nonprofit corporation, its successors and assigns.
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",.
"Declarant" means GWZ-2 Development, LLC, its successors and assigns to its
interest in the Tract other than Owners purchasing Lots or Residences by deed
from Declarant (unless the conveyance indicated an intent that the grantee assume
the rights and obligations ofDecIarant).
'"Detention Area" means an area depicted on a Plat which has been engineered to
accommodate from time to time surface water drainage, whether through
retention or detention of such surface water, to the extent located on the Tract,
including, without limitation, the Common Areas denoted on a Plat as "Common
Area 'B'" and "Common Area 'cm.
"Development Area" means the Tract together with any additional land added to
the Tract pursuant to Paragraph 31 of this. Declaration.
"Drainage Board" means the Hamilton County Drainage Board or the Carmel
Board of Public Works, as applicable, and its successors or assigns.
"Drainage System" means the open drainage ditches and swales, the subsurface
drainage tiles, pipes and structUres, the dry and wet retention and/or detention
ponds (including all Detention Areas), and the other structures, fIxtures,
properties, equipment and facilities located in the Tract and designed for the
purpose of controlling, retaining or expediting the . drainage of surface and
subsurface waters from, over and across the Tract, including but not liniited to
those shown or referred to on a Plat, all or part of which may be established as
legal drains subject to the jurisdiction of the Drainage Board.
"Entry Ways" means the structures constructed as an entrance to Wexley Chase or
a part thereof (including signage, but exclusive of the street pavement, curbs and
drainage structures and tiles), the traffic island depicted as "Common Area 'D'"
on the Plat and any other traffic islands or medians that are to be maintained by
the Corporation dividing a roadway providing access to Wexley Chase or a part
thereof, and the grassy area surrounding such structures.
"Lot" means a platted lot as shown on a Plat.
"Lot DeveloomentPlan" means (i) a site plan prepared by a licensed engineer or
architect, (ii) foundation plan and proposed finished floor elevations, (iii) building
plans, including elevation and floor plans, (iv) materi8J plans and specifIcations,
(v) landscaping plan, and (vi) all other data or information that the Architectural
Review Board may request with respect to the improvement or alteration of a Lot
(including but not limited to the landscaping thereof) or the construction or
alteration of a Residence or other structure or improvement thereon.
"Maintenance Costsn means all of the costs necessary to keep the facilities to
which the term applies operational and in good condition, including but not
limited to the cost of all upkeep, maintenance, repair, replacement of all or any
part of any such facility, payment of all insurance with respect thereto, all taxes
imposed on the facility and on the underlying land, leasehold, easement o~ right-
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of-way, and any other expense related to the continuous maintenance, operation
or improvement of the facility.
"'Member" means a member of the Corporation and "Members" means all
members of the Corporation.
"Mortga~ee" means the holder of a first mortgage on a Residence.
"'Owner" means a Person, including Declarant, who at the time has or is acquiring
any interest in a Lot except a Person who has or is acquiring such an interest
merely as security for the performance of an obligation.
"Paths" means those walkways and/or bikeways instailed pursuant to Paragraph 6
and such other real estate or interest therein as is conveyed or granted to the
Corporation for the purpose of being used for walkways andlor bikeways.
<<Path Lights" means the light standards, conduits, wiring, bulbs and other .
appurtenances, if any, installed to illuminate the Paths.
"Person" means an individual, firm, corporation, partnership, association, trust or
other legal entity, or any combination thereof.
<'Plat" means a final secondary plat of a portion of the Development Area
executed by Declarant and recorded in the Office of the Recorder of Hamilton
County, Indiana.
"Reserve for Replacements" means a fund established and maintained by the
Corporation to meet the cost of periodic maintenance, repairs, renewal and
replacement of the Community Area and the Common Facilities.
"Residence" means a structure intended exclusively for occupancy by a single
family together with all appurtenances thereto, including private garage and
outbuildings and recreational facilities located upon the same Lot as the
Residence, that are usual and incidental to the use of a single family residential
lot.
"Restrictions" means the covenants, conditions, easements, charges, liens,
restrictions, rules and regulations and all other provisions set forth in this
Declaration and the Register of Regulations, as the same may from time to time
be amended.
"Register of Regulations" means the document containing rules, regulations,
policies, and procedures adopted by the Board of Directors or the Architectural
Review Board, as the same may from time to time be amended.
"Section" means that portion of the Development Area that is depicted on a Plat.
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"Site Furniture and Facilities" means any furniture, trash containers, sculpture or
other furniture, fixtures, equipment or facilities constructed, installed or placed in
the Development Area by Declarant or the Corporation and intended for the
common use or benefit of some, if not all, of the Owners.
"Supplemental Declaration" means any supplemental declaration of covenants,
conditions or restrictions which may be recorded and which extends the
provisions of this Declaration or any previously recorded Supplemental
Declaration to such other real estate as may from time to time be annexed thereto
under the provisions of Paragraph 31 hereof and contains such complementary or
supplementary provisions for such other real estate as are required or permitted by
this Declaration.
"Street Trees" means trees, if any, planted by Declarant within the right-of-ways
of public streets (including the medians thereof) within and adjacent to Wexley
Chase, as the same may be replaced from time to time.
"Tract" means the land described in Exhibit A and such other real estate as may
from time to time be annexed thereto under the provisions of Paragraph 31 hereof.
"Zoning Authority" with respect to any action means the Director of the
Department of Community Services of the City of Carmel or, where he lacks the
capacity to take action, or fails to take such action, the governmental body or
bodies, administrative or judicial, in which authority is vested under applicable
, .
law to hear appeals from, or review the action, or the failure to act, of the
Director.
2. Declaration. Declarant hereby expressly declares that the Tract and any additions
thereto pursuant to Paragraph 31 hereof shall be held, transferred, and occupied subj ect to the
Restrictions. The Owner of any Lot subject to these Restrictions, by (i) acceptance of a deed
conveying title thereto, or the execution of a contract for the purchase thereof, whether fTom
Declarant or a subsequent Owner of such Lot, or (ii) by the act of occupancy of any Lot, shall
accept such deed and execute such contract subject to each Restriction and agreement herein
contained. By acceptance of such deed or execution of such contract, each Owner acknowledges
the rights and powers of Dec1arant and of the Corporation with respect to these Restrictions, and
also for itself, its heirs, personal representatives, successors and assigns, covenants, agrees and
consents to and with Declarant, the Corporation, and the Owm;rs and subsequent Owners of each
of the Lots affected by these Restrictions to keep, observe, comply with and perform such
Restrictions and agreeme"fit.
3. Detention Areas.
(a) Development Dec1arantreserves the right, subsequentto commencement
of development of the Detention Areas, to determine the size and configuration
thereof.
(b) Title and Maintenance. Declarant shall convey title to the Detention Areas
to the Corporation no later then the Applicable Date. The Corporation shall be
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responsible for maintaining the Detention Areas, The Maintenance Costs of the
Detention Areas shall be assessed as a General Assessment against all Lots
subject to assessment. Each Owner of a Lot that abuts a Detention Area shall be
responsible at all times for maintaining so much of the bank ofthe Detention Area
above the pool level as constitutes a part of, or abuts, his Lot (exclusive of any
Path) and shall keep that portion of the Detention Area abutting his Lot free of
debris and otherwise in reasonably clean condition.
(c) Use. No boats shall be pennitted upon any part of a Detention Area. No
dock, pier, wall or other structure may be' extended into a Detention Area. No
s\vimming wil1 be permitted in any Detention Area. Each Owner of a Lot
abutting a Detention Area shall indemnify and hold harmless Declarant, the
Corporation and each other Owner against all loss or damage incWTed as a result
'of injury to any Person or damage to any property, or as a result of any other
, cause or thing, arising from or related to use of, or access to, a Detention Area by
any Person who gains access thereto from, over or across such Owner's Lot
Declarant shaH have no liability to any Person with respect to a Detention Area,
. the use thereof or access thereto, or with respect to any damage to any Lot
resulting from a Detention Area or the proximity of a Lot thereto, including loss
or damage from erosion.
(d) Water Levels. Notwithstanding anything herein or in any other document
or instrument, or any marketing materials, Declarant makes no representation or
warranty with respect to the level of water in any Detention Area from time to
time. Without limiting the generality of the foregoing, any "pool elevation"
shown on a Plat shall be as estimated for engineering purposes only and shall not
be deemed a representation or warranty.
4. The Common Areas. Declarant shall convey title to the Common Areas to the
Corporation not later than the Applicable Date. The Corporation shall be responsible for
maintaining the Common Areas and the Maintenance Costs thereof shall be assessed as a
General Assessment against all Lots subject to assessment. Except for underground utility
facilities, no permanent improvements 'shaH be made. to or installed on the Common Areas other
than lighting, seating, walkways, planting structures, gazebos or other non-recreational
improvements; The use of the Common Areas shall be subject to rules and regulations adopted
by the Board of Directors which are not inconsistent with the provisions of this Declaration.
5. Drainage System. The Drainage System has or wiJl be constructed for the
purpose of controlling drainage within and adjacent to the Development Area and maintaining
the water level in the Detention Areas. The Corporation shall maintain the Drainage System to
the extent not maintained by the Drainage Board and the Maintenance Costs thereof shall be
assessed against all Lots subject to assessment serviced by that part of the Drainage System with
respect to which Maintenance Costs are incurred. Each Owner shall be individually liable for the
cost of maintenance of any drainage system located entirely upon his Lot which is devoted
exclusively to drainage of his Lot and is not maintained by the Drainage Board.
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'"(
6. Paths and Path Lights. Declarant may, but is not obligated to, install the Paths
and Path Lights (provided Paths may be installed without Path Lights) in the Common Areas. If
installed, the Corporation shall operate and maintain the Paths (and, if installed, the Path Lights)
and the Maintenance Costs thereof shall be assessed as a GeneraJ Assessment against aJ] Lots
subject to assessment. The Board of Directors may adopt such rules and regulations with respect
to the use thereof as it may deem appropriate including but not limited to the prohibition of the
use of all or some of the Patbs by bicycles, skateboards and/or motorized or non-motorized
vehicles.
7. Entry Ways: Wexlev Chase. Signage. The Corporation shall maintain tbe Entry
Ways and all improvements and plantings thereon, and the Maintenance Costs thereof shall be
assessed as a Genera] Assessment against all Lots subject to assessment. Grass, trees, shrubs and
other plantings located on an Entry Way shall be kept neatly cut, cultivated or trimmed as
reasonably required to maintain an attractive entrance to Wexley Chase or a part thereof. All
entrance signs located on an Entry Way shall be maintained at all times in good and sightly
condition appropriate to a first-class residential subdivision.
8. Common Lighting. Declarant may, but is not obligated to, install Common
Lighting in the Development Area and may reserve easements for such purpose over and across
Lots. If installed, the Corporation shall operate and maintain the Common Lighting and the
Maintenance Costs thereof shall be assessed as a Genera] Assessment against all Lots subject to
assessment.
9. Site Furniture and Facilities. Declarant may, but is not obligated to, construct,
install or place Site Furniture and Facilities in the Development Area. If it does so, title thereto
shall be conveyed to the Corporation not later than the Applicable Date. After conveyance to the
Corporation, the Corporation shall maintain the Site Furniture and Facilities and the Maintenance
Costs thereof shall be assessed as a General Assessment against all Lots subject to assessment.
10. Street Trees. The Corporation shall maintain any Street Trees (including
replacement of such trees as appropriate), and the Maintenance Costs thereof shall be assessed as
a General Assessment against all Lots subject to assessment.
11. Land Use. Lots may be used only for residential purposes and only one
Residence may be constructed on each Lot No portion of any Lot maybe sold or subdivided
such that there will be thereby a greater number of Residences in Wexley Chase than the number
of original Lots depicted on the Plat. Notwithstanding any p'rovision 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. No home occupation shall be'conducted or maintained
on any Lot other than one which does not constitute a "special use" and is incidental to a
business, profession or occupation of the Owner or occupant of such Lot and which is generally
or regularly conducted at another location which is away from such Lot. No signs of any nature,
kind or description shall be erected,. placed, or permitted to remain on any Lot advertising a
permitted home occupation.
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12. Wexlev Chase Homeowners Association, Inc.
(a) . Membership. Each Owner shall automatically be a Member and shall
enjoy the privileges and be bound by the obligations contained in the Articles and
By-Laws. If a Person would realize upon his security and become an O'Mler, he
shall then be subject to al] the requirements and limitations imposed by this
Declaration on other Owners, including those provisions with respect to the
payment of Assessments.
(b) Powers. The Corporation shall have such powers as are set forth in this
Declaration arid in the Articles, together with all other powers that belong to it by
. law.
(c) Classes of Members. The Corporation shall have a single class of
members.
(d) Voting and Other Rights of Members. The voting and other rights of
Members shall be as specified in the Articles and By-Laws.
(e) Reserve for Replacements. The Board of Directors shall establish and
maintain the Reserve for Replacements by the allocation and payment to such
reserve fund of an amount determined annually by the Board to be sufIicient to
meet the cost of periodic maintenance, repair, renewal and replacement of the
Community Area and the Common Facilities. In determining the amount, the
Board shall take into consideration the expected useful life of the Community
. Area and the Common Facilities, projected increases in the cost of materials and
labor, interest to be earned by sucb fund and the advice of Declarant or such
consultants as the Board may employ. The Reserve for Replacements shall be
deposited in a special account with a lending institution the accounts of which are
inslU'ed by ail agency of the United States of America or may, in the discretion of
the Board, be invested in obligations of, or fully guaranteed as to principal by, the
United States of America. Prior to the Applicable Date, funds from the Reserve
for Replacements may be withdrawn and applied at the direction of Declarant to
meet the costs of periodic maintenance, repairs, renewal Of replacement of the
Community Area and the Common Facilities.
(f) Maintenance Standards. In each instance in which this Declaration
imposes on tbe Corporation a maintenance' obligation with respect to the
Community Area or a part thereof, the Corporation shall maintain the Community
Area or designated part thereof in good condition, order and repair substantially
comparable to its condition when originally constnicted, installed or planted and
compatible in appearance and utility with a first-class residential subdivision.
Grass, trees, sl1rqbs and other plantings located on the Community Area for which
the Corporation has maintenance responsibility shall be kept neatly cut, cultivated
or trimmed as reasonably required and otberwise maintained at all times in good
and sightly condition appropriate to a first-class residential subdivision.
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(g) Limitations on Action bv the Corporation. Unless at least two thirds of the
Mortgagees (based on one vote for each first mortgage owned) or two-thirds (2/3)
of the Members (other than Declarant) have given their prior written approval, the
Corporation, the Board of Directors and the Owners may not: (i) except as
authorized by Paragraph 15(a), by act or omission seek to abando~ partition,
subdivide, encwnber, sell or transfer the Community Area (but the granting of
easements for public utilities or other public purposes consistent with the intended
use of the Community Area shall not be deemed a transfer for the purposes of this
clause); (ii) fail to maintain fire and extended coverage insurance on insurable
Community Area on a current replacement cost basis in the amount of one
hundred percent (100%) of the insurable value (based on current replacement
cost); (iii) uSe hazard insurance proceeds for losses to any Community Area for
other than the repair, replacement or reconstruction of the Community Area; (iv)
change the method of detennining the obligations, assessments, dues or other
charges that may be levied against the Owner of a Residence; (v) by act or
omission change, waive or abandon any scheme of regulations or their
enforcement pertaining to the architectural design or the exterior appearance of
Residences, or the maintenance and upkeep of the Community Area; or (vi)fail to
maintain the Reserve for Replacements in the am 0 Wlt required by this
Declaration.
(h) Mergers. Upon a merger or consolidation of another corporation with the
Corporation, its properties, rights and obligations may, as provided in its articles
of incorporation, by operation of law be transferred to another surviving or
consolidated corporation or, alternatively, the properties, rights and obligations of
another corporation may by operation of law be added to the properties, rights and
obligations of the Corporation as a surviving' corporation pursuant to a merger.
The surviving or consolidated corporation may administer the covenants and
restrictions established by this Declaration within the Development Area together
with the covenants and restrictions established upon any other properties as one
scheme. No merger or consolidation, however, shall effect any revocation, change
or addition to the covenants established by this Declaration vvithin the
Development Area except as hereinafter provided.
13. Assessments.
(a) Creation of the Lien and Personal Obligation of Assessments. , Each
Owner of any Lot by acceptance of a deed thereto, whether or not it shaH be so
expressed in such deed,is deemed to covenant and agree to pay to the
Corporation the following: (1) General Assessments, (2) the Community Area
Initial Assessment, (3) Architectural Control Assessments (to the extent levied)
and (4) Special Assessments, such Assessments to be established and collected as
hereinafter provided.
If two (2) or more Lots originally shown on a Plat are consolidated as a
single Lot by virtue of partial vacation of a Plat, or if a Lot is divided by
conveyance of portions thereof to owners of adjacent Lots, then, in either such
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event, the vacated or divided Lot(s) shall cease to be Lots for pu~oses of
Assessments under this Paragraph 13.
All Assessments, together with interest thereon and costs of collection
thereof, shall be a charge on the land and shall be a continuing lien upon the Lot
against which each Assessment is made until paid in full. Each Assessment,
together with interest thereon and costs of collection thereot: shall also be the
personal obligation of the Person who was the Owner of the Lot at the time when
the Assessment became due.
(b) General Assessment
(i) Purpose of Assessment. The General Assessment levied by the
Corporation shall be used exclusively to promote the recreation, health,
safety, and welfare of the Owners of Lots and for the improvement,
maintenance, repair, replacement and operation of the COrnnlunity Area
and Common Facilities.
(ii) Basis for Assessment.
(1) Lots Generally. Each Lot owned by a Person other than
Declarant shall be assessed at a uniform rate without regard to
whether a Residence has been constructed upon the Lot.
(2) Change in Basis. The basis for assessment may be changed
upon recommendation of the Board of Directors if such change is
~pproved by (i) two-thirds (2/3) of the members (ex~luding
Dedarant) or two-thirds (2/3) of the Mortgagees (based on one
vote for each first mortgage owned) who are voting in person or by
proxy at a meeting of such members duly called for tbis purpose.
(lii) Method of Assessment. By a vote of a majority of the Directors,
the Board of Directors shall, on the basis specified in subparagraph (ii), fix
the GeneraL Assessment for each assessment year of the Corporation at an
amount-sufficient to meet the obligations impOsed by this Declaration and
all Supplemental Declarations upon the Corporation. The Board of
Directors shall establish the date(s) the .General Assessment sball become
due, and the manner in which it shall be paid.
(tv) Allocation of Assessment. Certain of the costs of maintaining,
operating, restoring or replacing the Community Area and Common
Facilities have been allocated in this Declaration among Owners of Lots
on the basis of the IocatioD.ofthe lands and improvements constituting the
Community Area and Common Facilities and the intended use thereof. In
determining the General Assessment, costs and expenses which in
accordance with the provisions of this Declaration are to be borne by all
Owners shall first be allocated to all Owners. Costs and expenses which
in accordance with the provisions of this Declaration are to be bOITle by
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the Owners of certain Lots shall then be allocated to the Owners of such
Lots. The provisions. of subparagraph (ii) for uniform assessment shall not
be deemed to require that all assessments against vacant Lots or Lots
improved with comparable types of Residences be equal, but only that
each Lot be assessed uniformly 'iVith respect to comparable Lots subject to
;lssessment for similar costs and expenses.
(c) Community Area Initial Assessment. On the earlier of (i) the date a Lot is
conveyed by Declarant to an Owner (other than the holder of a first mortgage on
such Lot in a conveyance which constitutes a deed in lieu of foreclosure), (ii) the
date a Residence constructed on the Lot has been certified for occupancy by the
Zoning Authority or (iii) the date a Residence on the Lot is first occupied by an
Owner upon completion of construction thereof, there shall be due and payable to
the Corporation by the Owner of such Lot the sum of Five Htmdred Dollars
.($500.00) which shall be deposited in the Reserve for Replacements maintained
by the Corporation.
(d) Architectural Control Assessment If any Owner fails to. comply with the
requirements and provisions of Paragraphs 14 or 16 of this Declaration, then the
Corporation may levy against the Lot owned by such Owner an Assessment in an
amount determined by the Board of Directors which does not exceed the greater
of (i) One Hundred Dollars ($100.00) for each day that such failure continues
after written notice thereof is given by Declarant or the Corporation to such
Owner or (ii) Ten Thousand Dollars ($10,000.00). . Such Assessment shall
constitute a lien upon the Lot of such Owner and may be enforced in the manner
provided in subparagraph (h)' below. The levy of an Architectural Control
Assessment shall be in addition to, and not in lieu of, any other remedies available
to Declarant and/or the Corporation provided in this Declaration, at law or in
equity in the case of the failure of an Owner to comply with the provisions of this
Declaration.
(e) Special Assessment. In addition to such other Special Assessments as
may be authorized herein, the Corporation may levy in any fiscal year a Special
Assessment applicable to that year and not more than the next four (4) succeeding
fiscal years for the purpose of defraying, in whole' or in part, the cost of any
constructi.on, repair, or replacement of a capita.! improvement upon the
Community Area, including fixttrres and personal property relating thereto,
provided that any such Assessment shall have the assent of a majority of the votes
of the Members whose Lots are subject to assessment with respect to the capital
improvement who are voting in person or by proxy at a meeting of such members
duly called for this purpose.
(f) Date of Commencement of Assessments. The General Assessment shall
commence with respect to assessable Lots within Wexley Chase on the first day
of the month following conveyance of the first Lot in Wexley Chase to an Owner
who is not Declarant. The initial Assessment on any assessable Lot shall be
adjusted according to the days remaining in the month in which the Lot became
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subject to assessment. Upon conveyance of a Lot to an Owner who is not
Declarant, such Owner shall pay a pro rata portion of the General Assessment for
the caLendar year in which the conveyance occurs. Notwithstanding the
foregoing, if an Owner owns more than two (2) Wlimproved Lots, the General
Assessment shall not commence with respect to the second or more of such
unimproved Lots until the earlier of (i) the date the Owner commences
construction of a Residence thereon or (ii) the first day of the sixth month '
following the date the Owner acquired title to the Lots. .
(g) Effect of Nonpayment of Assessments~ Remedies of the Corporation,
Any Assessment not paid within thirty (30) days after the due date may upon
resolution of the Board of Directors bear interest from the due date at a percentage
rate no greater than the current statutory maximum annual interest rate, to be set
by the Board of Directors for each assessment year. The Corporation shall be
entitled to institute in any court of competent jurisdiction any lawful action to
collect a delinquent Assessment plus any expenSes or costs, including attorneys'
fees, incurred by the Corporation in collecting such Assessment. If the
Corporation has provided for collection of any Assessment in installments, upon
default in the payment of anyone or more installments, the Corporation may
accelerate payment and declare the entire balance of said Assessment due and
payable in full. No Owner may waive or otherwise escape liability for the
Assessments provided for herein by nonuse of the Community Area or the
Common Facilities or abandonment of his Lot.
(h) Subordination of the Lien to Mortgages. The lien of the Assessments
provided for herein against a Lot shall be subordinate to the lien of any recorded
first mortgage covering such Lot and to any valid tax or special assessment hen
on such Lot in favor of any governmental taxing or assessing authority. Sale or
transfer of any Lot shall not affect the assessment lien. The sale or transfer of any
Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof shall,
however, extinguish the lien of such Assessments as to payments which became
due more than six (6) months prior to such sale or transfer. No sale or transfer
shall relieve such Lot from liability for any Assessments thereafter becoming due
or from the lien thereof.
(i) Certificates. The Corporation shall, upon demand by an Owner, at any
time, furnish a certificate in writing signed by.an officer of the Corporation that
the Assessments on a Lot have been paid or that certain Assessments remain
unpaid, as the case may be. '
(j) Annual Budget. By a maJonty vote of the Directors, the Board of
Directors shall adopt an annual budget for the subsequent fiscal year, which shall
provide for allocation of expenses in such a manner that the obligations imposed
by the Declaration will be met
(k) Lots owned bv Declarant. Notwithstanding the foregoing or anything else
in this DeClaration to the contrary, no Assessment o~ other charges shall be owed
12
c.
or payable by Declarant with respect to any Lot or other portion of the Tract
owned by Declarant while the same is owned by Declarant, nor shall any such
Assessment or charges become a Lien on any such Lot or other portion of the
Tract owned by Declarant.
14. Architectural Control.
(a) The Architectural Review Board. An Architectural Review Board
consisting of three (3) or more Persons as provided in the By-Laws shall be
appointed by the Board of Directors.
(b) Purpose. The Architectural Review Board shall regulate the external
design, appearance, use, location and maintenance of the Development Area and
of improvements thereon in such manner as to preserve and enhance values and to
maintain a harmonious relationship among structures, improvements and the
natural vegetation and topography.
(c) Conditions. Except as otherwise expressly provided in this Declaration,
no improvements, alterations, repairs, change of colors, excavations, changes in
grade, planting or other work that in any way alters any Lot or the exterior of the
improvements located thereon from its natural or improved state existing on the
date such Lot was .first conveyed in fee by Declarant to another Owner shall be
made or done without the prior approval by the Architectural Review Board of a
Lot Development Plan therefor. Prior to the commencement by any Owner other
than Declarant of (i) construction, erection or aLteration of any Residence, other
building, fence, wall, swimming pool, tennis court, patio, or other structure on a
Lot or (ii) any plantings or exterior lighting on a Lot, a Lot Development Plan
with respect thereto shall be submitted to the Architectural Review Board, and no
Residence, other building, fence, wall, swimming pool, tennis court, patio or other
structure shall be commenced, erected, maintained, improved, altered, made or
done, or any plantings made or exterior lightfng installed, by any Person other
than Declarant without the prior written approval of the Architectural Review
Board of a Lot Development Plan reiating to such construction, erection,
alteration, plantings or lighting. Such approval shall be in addition to, and not in
lieu of, all approvals, consents, permits and/or variances required by law from
governmental authorities having jurisdiction over Wexley Chase, and no Owner
shall undertake any construction activity within Wexley Chase unless all legal
requirements have been satisfied. Each Ovmer shall complete all improvements
to a Lot strictly in accordance with the Lot Development Plan approved by the
Architectural Review Board. As used in this subparagraph (c), "plantings" does
not include flowers, bushes, shrubs or other plants having a height. of less than
eighteen (18) inches.
(d) Procedures. In the event the Architectural Review Board fails to approve,
modifY or disapprove in writing a Lot Development Plan within sixty (60) days
after notice of such plan has been duly filed with the Architectural Review Board
in accordance with procedures established by Declarant or, subsequent to the
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Applicable Date, the Board of Directors, approval will be deemed denied. A
decision of the Architectural Review Board (including a denial resulting from the
failure of such Board to act on the plan within the specified period) may be
appealed to the Board of Directors which may reverse or modifY such decision
(including approve a Lot Development Plan deemed denied by the failure of the
Architectural Review Board to act on such plan within the specified period) by a
two-thirds (2/3) vote of the Directors then serving.
(e) Guidelines and Standards.' The Architectural Review Board shall have the
power to establish and modifY from time to time such written architectural and
landscaping design guidelines and standards as it may deem appropriate to
achieve the purpose set forth in subparagraph (b) to the extent that such design
guidelines and standards are not in conflict with the specific provisions of this
Declaration. Any such guideline or standard may be appealed to the Board of
Directors which may terminate or modify such guideline or standard by a two-
thirds (2/3) vote of the Directors then serving.
(f) AooIication of Guidelines and Standards. The Architectural Review
Board shall apply the guidelines and standards established pursuant to
subparagraph (e) in a fair, uniform and reasonable manner consistent with the
discretion inherent in the design review process. In disapproving any Lot
Development Plan, the Architectural Review Board shall furnish the applicant
with specific reasons for such disapproval and may suggest modifications in such
plan which would render the plan acceptable to the Board if resubmitted.
(g) Design Consultants. The Architectural Review Board may utilize the
services of architects, engineers and other Persons possessing design expertise
and experience in evaluating Lot Development Plans. No presumption of any
conflict of interest or impropriety shall be drawn or assumed by virtue of the fact
that any of such consultants are affiliated with Declarant or may, from time to
time, represent Persons filing Lot Development Plans with the Architectural
Review Board.
(h) Existing Violations of Declaration. The Architectural. Review Board shaH
not be required to consider any Lot Development Plan submitted by an Owner
who is, at the time of submission of such Lot Development Plan, in violation of
the requirements of this Paragraph 14, unless such Owner submits to the
Architectural Review Board with such Lot Development Plan an irrevocable
agreement and undertaking (with such surety as the Board may reasonably
require) to remove from the Owner's Lot any improvements, landscaping or
exterior lighting constructed andlor installed prior to the submission of a Lot
Development Plan (or constructed and/or installed in violation of a previousLy
approved Lot Developmept,Plan) to the extent any such preVIously constructed
andlor installed improvement, landscaping or exterior lighting is not subsequently
approved by the Architectural Review Board. The Architectural Review Board
shall have the power to recommend to the Board of Directors that the Corporation
assess an Architectural Control Assessment against any Owner who fails to
14
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comply with the requirements of this Paragraph 14. Under no circumstances -shall
any action or inaction of the Architectural Review Board be deemed to be
unreasonable, arbitrary or capricious if, at the time of such decision, the Person
having submitted a Lot Development Plan for approval by the hcbitectural
Review Board has violated this Paragraph 14 and such violation remains uncured.
(i) Exercise of Discretion. Declarant intends that the members of the
Architectural Review Board exercise discretion in the performance of their duties
consistent with the provisions of subparagraph (f), and every Owner by the
purchase of a Lot shaH be conclusively presumed to have consented to the
exercise of discretion by such members. In any judicial proceeding challenging a
determination by the Architectural Review Board and in any action initiated to
enforce this Declaration in which an abuse of discretion by the Architectural
Review Board is raised as a defense, abuse of discretion may be established only
if a reasonable Person, weighing the evidence and drawing all inferences in favor
of the Board, could only conclude that such determination constituted an abuse of
discretion.
Q) Liability of Board. Neither the Architectural Review Board, nor any
member thereof, nor any agent thereof, nor the Declarant shall be responsible in
any wayfor any defects in any plans, specifications or other materials submitted
to it, nor for any defects in any work done according thereto. Further, the Board
does not make, and shall not be deemed by virtue of any action of approval or
disapproval taken by it to have made, any representation or warranty as to the
suitability or advisability of the design, the engineering, the method of
construction involved, or the materials to be used.
(k) Inspection. Members of the Architectural Review Board may inspect
work being performed to assure compliance with these Restrictions and applicable
regulations.
(I) Construction and Landscaping, All construction upon, landscaping of and
other improvement to a Lot shall be completed strictly in accordance with the Lot
Development Plan approved by the Architectural Review Board. All landscaping
specified on the landscaping plan approved by the Architectural Review Board
shall be installed on the Lot strictly in accordance with such approved plan within
thirty (30) days following substantial completion of the Residence if such
completion occurs between April 1 and October 15; otherwise prior to May 1.
Unless a delay is caused by strikes, war, court injunction or acts of God,
construction of a Residence on a Lot must commence within two (2) years after
conveyance of the Lot to an Owner other than Declarant and shall be completed
within one (1) year after the date of commencement of the building process,
unless such Lot is adjacent to a Lot upon which the Owner has constructed a
Residence in which such Owner permanently resides. If the Owner fails to
commence or compJete construction of a Residence within the time periods
specified herein, or if the Owner should, without Declarant's written approval,
sell, contract to sell, convey, or otherwise dispose of, or attempt to sell, conveyor
15
otherwise dispose of, the Lot before completion of construction of a Residence on
the Lot, then, in any of such events, Declarant may:
(i) re-enter the Lot and divest the Owner of title thereto by tendering
to the Owner or to the Clerk of the Circuit Court of Hamilton
County the lesser of (a) the same net dollar amount as was received
by Declarant from such Owner as consideration for the conveyance
. by Declarant of the Lot, together with such actual costs, if any, as
the O,vner may prove to have incurred in connection with the
commencement of construction of a Residence on the Lot and (b)
the then fair market value of the Lot, as determined by averaging
two (2) appraisals made by qualified appraisers appointed by the
Judge of the Circuit or Superior Court of Hamilton County;
(ii) obtain injunctive relief to force the Owner to proceed with
construction of any Residence, a Lot Development Plan for which
has been approved by the Architectural Review Board upon
application by such Owner; or
(iii) pursue such other remedies at law or in equity as may be available
to Declarant
The failure of the Owner of a Lot to apply for approval of, or receive
approval from, the Architectural Review Board of a Lot Development
Plan shall not relieve such Owner from his obligation to complete
construction of a Residence upon the Lot within the time period specified
herein. For the purposes of this subparagraph, construction of a Residence
will be deemed "completed" when the.exterior of the Residence (including
but not limited to the foundation, walls, roof, windows, entry doors,
gutters, doWnSpouts, exterior trim, paved driveway, landscaping and yard
light) has been completed in conformity with the Lot Development Plan,
this Declaration and any guidelines and standards of the Architectural
Review Board in effect on the date of the Architectural Review Board's
approval of the Lot Development Plan.
(m) General Restrictions.
(i) Size of Residence. Except as otherwise provided herein, no
Residence may be constructed on any Lot unless such Residence,
exclusive of open porches, attached garages and basements, shall have a
ground floor area of (above grade) 1800 square feet if a one~sto'ry
structure, or 1,600 square feet if a higher structure.
(ii) Temp0farv 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 temporal)' character
be used as a dwelling.
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(iii) Antennas and Receivers. No. .satellite receiver, dawn-link or
antenna which is visible fram a public way ar fram any other Lat, and no.
satellite dish greater than eighteen (18) inches in diameter shall be
pennitted Dn any Lot witho.ut the prio.r written CDnsent afthe ArchitecturaJ
Review Board. Unless CDnsent thereto. is granted by a majarity af the
Owners,. the Architectural Review Baard shall nat give its cansent to. the
installatian of any exteriar televisiDn antenna if television receptiDn is
available from undergrDund cable co.nnections serving the Lat, nar shall it
give its cansent to. the installatian af any Dther exteriar antenna unless all
Owners af Lats within 200 feet af the Lat upan which the praposed
antenna wauld be erected consent in writing to. the installatian thereof
(iv) Exterior Lights. No. exteriar lights shall be erected ar maintained
between the building line and rear lat line sa as to. shine ar reflect directly
upan anather Lat.
(v) EleCtric Bug KilJers. Electric bug killers, "zappers" and other
similar devices shall nat be installed at a lacation ar locations which will
result in the aperatian thereaf becaming a nuisance ar annayance to. other
Owners and shall only be aperated when outside activities require the use
thereof and nDt co.ntinuDusly.
(vi) Air ConditiDners. No rDam air cDnditiDning unit shall be installed
sa as to. pratrude from any structure lacated on a LDt (including but nDt
limited to the windDw of any Residence or garage) if the same wDuld be
visible fram a public way, a Community Area ar any Dther Lat; provided,
hDwever, that this RestrictiDn shall nDt apply to central air cDnditiDning
units.
(vii) Building Lacatian and Finished Flaor ElevatiDn. No building may
be erected between the building line shown on. a Plat and the frDnt Lat
line, and no. structure or part thereDf (exclusive Df Dpen areas or terraces,
unenclased pDrches not more than Dne story high, fireplace chimney and
architectural features that prDject no. mDre than two (2) feet) may be built
or erected nearer than ten (10) feet to any side Lot line or nearer than
twenty (20) feet to any rear Lot line; provided, however, if the Zorring
Authority requires a greater side yard setback, then such greater
requirement shall prevail. The aggregate side' yard setback shall be not
less than twenty (20) feet. The Architectural Review BDard may establish
a minimumtinished floor elevation for each Lot and no fmished flDor
elevation with the exceptiDn af flood prDtected basements shall be
constructed IDwer than said minimum withDut the written consent Df the
Architectural Review Board. Demanstration Df adequate starm water
drainage in confarmity with both on-Lot and averall project drainage plans
shall be a prime requisite fDr alternative finished floDr elevatiDns.
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(viii) Drivewavs and Sidewalks. All driveways shall be paved with
either concrete or asphalt and maintained dust free. Each Owner, other
than Declarant, or his builder shall install a sidewalk across the Lot in
accordance with the Plat within the earlier of thirty (30) days of
completion of the Residence or two (2) years after conveyance of the Lot
to such Ovmer.
. (ix) Yard Lights. If street lights are not installed in the Tract, then each
Owner or his builder shall install and maintain in operable condition either
(i) a pole light on the Lot at a location, having a height and of a type, style
and manufacture approved by the Architectural Review Board prior to the
installation thereof or (ii) two (2) carriage lights on the front of the
Residence of a type, style and manufacture approved by the Architectural
Review Board prior to the installation thereof Each such light fixture
shall also have a bulb of a wattage approved by Architectural Review
Board to insure uniform illumination on each Lot and shall be equipped
with a photo electric cell or similar device to insure automatic illumination
from dusk to dawn each day.
(x) Storage Tanks. No gas or oil storage tanks shall be permitted on a
Lot, except temporarily during construction of a Residence with the prior
written approval of the Architectural Review Board.
(xi) Mailboxes. All mailboxes installed upon Lots shall be uniform
and shall be of a type, color and manufacture approved by the
Architectural Review Board. Such mailboxes shall be installed upon posts
approved as to type, size and location by the Architectural Review Board.
(xii) Accessory Buildings. No mini-barns, storage shed or other
accessory building or structure other than gazebos shall be permitted on
any Lot.
(xiii) Pools. No above ground swimming pool, other than a temporary
children's wading pool, shall be permitted onany Lot.
(xiv) Basketball Goals. No basketball goal shall be placed or
maintained in the front driveway of a 1Qt or within the right-of-way of any
street. Unless the Architectural Review Board establishes a policy
establishing other specifications, backboards of all basketball goals shall
be of a translucent material such as fiberglass or Lexan and attached to a
black pole or similar type of post. The location of a basketball goal on the
Lot is subject to approval of the Architectural Review Board if it would be
visible from a public right-of-way adjoining the Lot.
(xv) Septic Systems. No septic tank, absotption field or any other on-
site sewage disposal system (other than a lateral main connected to a
sanitary sewerage collection system operated by the City of Carmel or a
lR
successor public agency or public utility) shall be installed or maintained
on any Lot.
(xvi) Water Systems. No private or semi-private water supply system
may be located upon any Lot which is not in compliance with regulations
or procedures adopted or established by the Indiana State Board ofHeaIth,
or other civil authority having jurisdiction. To the extent that domestic
water service is available from a water line located within 200 feet of the
lot line maintained by a public or private utility company, each Owner
shall connect to such water line to provide water for domestic use on the
Lot and shall pay all connection, availability or other charges lawfully
established with respect to connections thereto. Notwithstanding the
foregoing, an Owner may establish, maintain and use an irrigation water
well on his Lot as long as the well does not adversely affect the normal
pool level of a Detention Area.
(xvii) Vehicle Parking. No recreational vehicle, motor home, truck
which exceeds % ton in weight, trailer, boat or disabled or unlicensed
vehicle may be parked or stored overnight or longer on any Lot in open
public view.
(xviii) fuw. Except for such signs as Declarant may in its absolute
discretion display in connection with the development ofWexley Chase or
the Tract and the sale of Lots therein, such signs as may be located on the
Community Area and such signs as may, with the consent of Declarant, be
displayed by a Designated Builder to advertise the property during
construction and sale of Residences and the maintenance of model homes,
no sign of any kind shall be displayed to the public view on any Lot
except that one 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 for rent.
(xix) Fencing. 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 and the prime root thereof is within four (4) feet of
the Residence. Trees shall not be deemed "shrubs" unless planted in such
a manner as to constitute a "hedge". No chain link fence shall be erected
upon a Lot. In no event may any fence be erected or maintained on any
Lot without the prior approval of the Architectural Review Board, which
may establish design standards for fences and fUrther restrictions with
respect to fencing, including limitations on (or prohibition of) the
installation of fences in the rear yard of a Lot and along the bank of any
Detention Area. For approval of fencing, the following must be submitted
to the Architectural Review Board: (i) plot plan, (ii) dimensions and
placement of structure, (iii) photograph or brochure picture, (iv) color, and
19
(v) vendor of fence and fence installer. Without limiting the foregoing,
the following requirements shaH apply to all fences in Wexley Chase:
1. No chain link, stockade or split rail fencing is permitted.
2. All proposed fences and walls must be located on the site
plan. The design of all walls and fences is subject to approval by
the Architectural Review Board. Fences are limited to wood
picket or wrought iron (or its aluminum equivalent) not exceeding
48 inches in height, except, for purposes of affording privacy to a
patio or deck area, a fence not exceeding 6 feet in height may be
placed directly behind the house so that it is not visible from the
street, but such fence may not extend further than one-half the
distance between the rear facade of the house and the rear lot line.
3. If fences are to be painted, the color of paint must be
approved by the Architectural Review Board.
4. Perimeter fences must be located on line with fences on
adjacent lots and must tie to adjacent fences at lot corners.
5. No wall or fence may be constructed along the bank of any
lake or pond, whether or not such lake or pond is located partially
upon, or adjacent to, the lot.
6. Only rnasorny walls not exceeding permitted fence heights
may be installed.
/
7.
All fence and wall heights are measured from grade level.
8. All fencing must be purchased from and installed by an
approved fence installer.
All fences shall be kept in good repair. No fence, wall, hedge or shrub
planting 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
comer lot within the triangular area formed by the street property lines and
a line connecting points 25 feet from the intersection of said street lines, or
in the case of a street hne with the edge of a driveway pavement or alley
line. No tree shall be permitted to remain within such distances of such
intersections unless the foliage Line is maintained at sufficient height to
prevent obstruction of such sight lines.
(n) Other Restrictions. The Architectural Review Board may adopt general
rules and regulations to implement the purposes set forth in this Paragraph,
including but not limited to rules to regulate animals, antennas, signs, fences,
walls and screens, mailboxes, storage tanks, awnings, storage and use of
recreational vehicles, storage and use of machinery, use of outdoor drying lines,
20
l!'
trash containers, and planting, maintenance and removal of vegetation on the
Development Area. Such general ruLes may be amended by a two-thirds (2/3)
vote of the Architectural Review Board. Subsequent to the Applicable Date, any
such amendment may be made only after a public hearing for which due notice to
all affected Owners has been provided, and if such amendments are approved by a
two-thirds (2/3) vote of the Board of Directors. All general rules and any
subsequent amendments thereto shall be placed in the Register of ReguJations and
shall constitute Restrictions.
(0) Exceptions. The Architectural Review Board may authorize exceptions to
or variances from the general rules and regulations adopted pursuant to
subparagraph 14(n) if the Architectural Review Board can show good cause and
acts in accordance with adopted guidelines and procedures.
15. Community Area and Common Facilities.
(a) Ownership. The Community Area and Common Facilities shall remain
private, and neither Declarant's execution or recording of an instnunent
portraying the Community Area, nor the doing of any other act by Declarant is, or
is intended to be, or shall be construed as, a dedication to the public of the
CommWlity Area or Common Facilities. Declarant or the Corporation may,
however, dedicate or transfer all or any part of the Community Area or the
Cornmon Facilities to any public agency, authority or utility for use as roads,
utilities, parks or other public purposes.
(b) Density of Use. Declarant expressly disclaims any warranties or
representations regarding the density or extent of use of the Community Area or
any facilities located thereon.
(c) Obligations of the Corporation. The Corporation, subject to the rights of
Declarant and the Owners set forth in this Declaration, shall be responsible for the
exclusive management and control of the Community Area and all improvements
thereon (including Common Facilities and other furnishings and equipment
related thereto), and, except as otherwi.se provided herein, shall keep the Common
Facilities in goo~ clean, attractive and sanitary condition, order and repair.
(d) Easements of Enioyment. No Person sl;1aIl have any right or easement of
enjoyment in or to the Community Area except to the extent granted by, and
subject to the terms and provisions of, this Declaration. Such rights and
easements as are thus granted shall be appurtenant to and shall pass with the title
to every Lot for whose benefit they are granted. All OWners may use the Paths
and the Cornman Areas subject to the reserved rights of Declarant and the
Corporation. The Detention Areas may be used by all Owners, but only for
fishing and such other purposes as may be authorized by the Board of Directors,
provided that Owners shall only have a right of access to a Detention Area over
Common Areas, except that if an Owner's Lot directly abuts a Detention Area,
the Owner may access it from his Lot.
21
(e) Extent of Easements. The easements of enjoyment created hereby shall be
subject to the following:
(i) the right of the Corporation to establish reasonable rules for the
use of the Community Area and to charge reasonable admission
and other fees for the use of any recreational facllities located in or
constituting a part of the Community Area except that no fee shall
be charged to those specifically autborized to use such facilities by
this Declaration unless the Corporation is specifically authorized to
do so by this Declaration;
(ii) the right of the Corporation to suspend the right of an Owner or
any Person .c1aiming through the Owner to use the Paths, the
Detention Areas or the Common Areas for a period not to exceed
sixty (60) days for any other infraction of this Declaration or the
Register of Regulations;
(iii) the right of the Corporation to mortgage any or all of the
Conu.:nunity Area, the facilities constructed thereon and the
Common Facilities for the purposes of improvements to, or repair
of, the Community Area, the facilities constructed thereon or the
Common Facilities, pursuant to approval of two-thirds (2/3) of the
votes of the Members (excl uding Declarant) or two-thirds (2/3) of
the Mortgagees (based on one vote for each fust mortgage owned),
voting in person or by proxy at a regular meeting of the
Corporation or a meeting duly called for this purpose;
(iv) the right of the Corporation to dedicate or transfer all or any part
of the Community Area and/or the Common Facilities to any
public agency, authority or utility, but no such dedication or
transfer shall be effective unless an instrument signed by the
appropriate officers of the Corporation acting pursuant to authority
granted by two-thirds (2/3) of the votes of the Members (excluding
Declarant) or two-thirds (2/~) of the Mortgagees (based on one
vote for each first mortgage owned), agreeing to such dedication or
transfer, has been recorded;
(v) the right of Declarant in the Plat to res.trict the use of Common
Facilities located in a Section to (a) Owners of Residences located
in such Section or (b) to other Owners of less than all of the Lots in
the Development Area; and
(vi) the right of Declarant to convey all or a portion of a Detention
Area that shares facilities with land outside the Development Area
to the owner of such land. .
22
;.
(f) Additional Rights of Use. The members of the family and the gues~s of
every Person who has a right of enjoyment to the Community Area and the
Common Facilities may use the Community Area and the Common Facilities.
subject to such general regulations consistent with the provisions of this
Declaration as may be established from time to time by the Corporation and
included vvithin the Register of Regulations.
(g) Damage or Destruction by Owner. In the event the Community Area or
any Common Facility is damaged or destroyed by an Owner Of any of his guests,
tenants, licensees, agents, or member of his family, such Owner authorizes the
Corporation to repair said damaged area; the Corporation shall repair said
damaged area in a good workmanlike manner in conformance. with the original
plans and specifications of the area involved, or as the area may have been
modified or altered subsequently by the Corporation in the discretion of the
Corporation. An amount equal to the costs incurred to effect such repairs shall be
assessed against such Owner as a Special Assessment and shall constitute a lien
upon the Lot of said Owner.
(h) Conveyance of Title. Declarant may retain the legal title to the
Conunuruty Area and the Common Facilities until the Applicable Date, but
notwithstanding any provision herein, the Declarant hereby covenants that it shall
convey the Detention Areas, the Common Areas and the Common Facilities to the
Corporation (except any part thereof that has been transferred pursuant to the
other provisions set forth above), free and clear of all liens and other [mancial
encumbrances exclusive of the lien for taxes not yet due and payable, and all
easements permitted hereunder, not . later than the Applicable Date. The
Corporation shall unconditionally accept title upon conveyance by Declarant.
16. Maintenance of Lots.
(a) 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. Barking dogs shall constitute a
nUisance.
(b) Maintenance, of Development Area.' Each Owner shall keep all Lots
owned by him, and all improvements therein or thereon, in good order and repair
and free of debris including, but not limited to, the seeding, watering, and mowing
of all lawns, the pruning and cutting of all trees and shntbbery and the painting (or
other appropriate external care) of all buildings and other improvements, all in a
manner and with such frequency as is consistent with good property management
a<:; determined by the Archi.tectural Review Board. Tn'the event an Owner of any
Lot in the Development Area shall fail to maintain the premises and the
improvements situated thereon, as provided herein, the Corporation, after notice
to the Owner as provided by the By-Laws and approval by two-thirds (2/3) vote
of the Board of Directors, shall have the right to enter upon said Lot to correct
drainage and to repair, maintain and restore the Lot and the exterior of the
23
buildings and any other improvements erected thereon. All costs related to such
correction, repair or restoration shall become a Special Assessment upon such
Lot.
(c) 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 Lot to permit
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 Tract may be included in a legal drain
established by the Drainage Board. In such event, each Lot in the Tract will be
subject to assessment by the Drainage Board for the costs of maintenance of the
portion of the Drainage System andlor Detention Area 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 affect materially the surface elevation or grade of
surroW1ding Lots. 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
(d) Vegetation. An Owner shall not permit the growth of weeds and volunteer
trees and bushes on his Lot, and shall keep his Lot reasonably clear from such
unsightly growth at all times. If an Owner fails to comply with this Restriction,
the Board of Directors shall cause the weeds to be cut and the Lot cleared of such
growth at the expense of the Owner thereof and the Corporation shall have a lien
against the cleared Lot. for the expense thereof
(e) 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. All equipment for storage or disposal of
such materials shall be kept clean and sanitary.
(f) 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 pemitted pets shall confine them to
their respective Lots such tbat they will not bea nuisance. Owners of dogs sball
so control or confine them so as to avoid barking which will annoy or disturb
adjoining Owners.
(g) Outside Burning. No trash, leaves, or other materials shall be burned upon
a Lot if smoke therefrom would blow upon any other Lot and, then, only in
acceptable incinerators and in compliance with all applicable legal requirements.
24
17, Easements.
(a) Plat Easements. In addition to such easements as are created elsewhere in
this Declaration and as may be created by Declarant pursuant to written
instruments recorded in the office of the Recorder of Hamilton County, Indiana,
Lots and Common Areas are subject to drainage easements, sewer easements,
utility easements, entry way easements, pond access easements, community area
access easements, public pedestrian pathway easements and nonaccess easements,
either separately or in any combination thereof, as shown on the Plats, which are
reserved for the use of Declarant, Owners, the Corporation, the Architectural
Review Board, public utility companies and governmental agencies as follows:
(i) Drainage Easements. (DE) are created to provide paths and
courses for area and local storm drainage, 'either overland or in adequate
underground conduit, to serve the needs of Wexley Chase and adjoining
ground and/or public drainage systems; and it shall be the individual
responsibility of each Owner to maintain the drainage across his own Lot.
Under no circumstance shall said easement be blocked in any manner by
the construction or reconstruction of any improvement, nor shall any
grading restrict, in any manner, the waterflow. Said areas are subject to
construction or reconstruction to any extent necessary to obtain adequate
drainage at any time by any governmental authority having jurisdiction
over drainage, by Declarant, and by the Architectural Review Board, but
neither Declarant nor the Architectural Review Board shall have any duty
to undertake any such construction or reconstruction. Said easements are
for the mutual use, and benefit of the Owners.
(it) Sanitary Sewer Easements. (SE) are created for the use of the
local governmental agency having jurisdiction over any storm and sanitary
waste disposal system which may be designed to serve Wexley Chase for
the purpose of installation and maintenance of sewers that are a part of
said system.
(iii) Utility Easements. (UE) are created for the use of Declarant, the
Corporation and all public or municipal utility companies, not including
transportation companies, for the installation and maintenance of mains,
ducts, poles, lines and wires, as well as for all uses specified in the case of
sanitary sewer easements.
(iv) Drainage and Utility Easements. (D&UE) combine Drainage
Easements and Utility Easements
(v) Non-Access Easements, (NAB) are created to preclude access
from certain Lots or Common Areas to abutting rights-of-way across the
land subject to such easements.
2.'5
(vi) Public Pedestrian Access Easements. (PPAE) are created to
delineate the location of Paths. Notvvithstanding Paragraph 17(a) of this
Declaration to the contraty, but without limiting the provisions of
Paragraphs 6 and 15(a) of this Declaration, so long as the Paths provide
direct connections with, and Owners are entitled to utilize, similar
walkways andlor bikeways either in public rights~of-way or across real
estate adjoining the Tract, members of the general public who are not
Owners may utilize the Paths located in Public Pedestrian Access
Easements for the same purposes as Owners are permitted by the
Corporation pursuant to this Declaration, provided, however, that the
general public's right of ingress and egress to the Paths shall be limited to
the termini of the Paths at either public rights-of-way or the boundaries of
real estate adjoining the Tract.
All e'asements mentioned herein (except Public Pedestrian Access
Easements as provided above) include the right of reasonable ingress and
egress for the exercise of other rights reserved. No structure, including
fences, shall be built on any Drainage, Sanitary Sewer or Utility Easement
if such structure would interfere with the utilization of such easement for
the purpose. intended or violate any applicable legal requirement or the
terms and conditions of any easement specifically granted to 11 Person who
is not an Owner by an instrument recorded in the Office of the Recorder of
Hamilton County, but a paved driveway necessary to provide access to a
Lot from a public street and a sidewalk installed by or at the direction of
Declarant (and replacements thereof) shall not be deemed a "structure" for
the purpose of this Restriction.
(b) General Easement. There is hereby created a blanket easement over,
across, through and under the Tract for ingress, egress, installation, replacement,
repair and maintenance of underground utility and service lines and systems,
including but not limited to water, sewers, gas, telephones, electricity, television,
cable or communication lines and systems. By virtue of this easement it shall be
expressly permissible for Declarant or the providing utility or service company to
install and maintain, facilities and equipment on the Tract and to excavate for such
purposes if Declarant or such company restores the disturbed area as nearly as is
practicable to the condition in which it was found. No sewers, electrical lines,
. water lines, or other utility service lines or facilities for such utilities may be
instaIled or ,relocated in the Tract except as proposed and approved by Declarant
prior to the conveyance of the first Lot in the Tract to an Owner or by the
Architectural Review Board thereafter. Should any utility furnishing a service
covered by the general easement herein provided request a specific easement by
separate recordable document, Declarant or the Corporation shall have the right to
grant such easement on the Tract without conflicting with the terms hereof. This
blanket easement shall in no way affect any other recorded easements on the
Tract, shall be limited to improvements as originally constructed, and shall not
cover any portion of a Lot upon which a Residence has been constructed.
26
( c) Public Health and Safety Easements. An easement is hereby created for
the benefit of, and granted to, all police, fire protection, ambulance, delivery
vehicles, and all similar Persons to enter upon the Community Area in the
performance of their duties.
Cd) Drainage Board Easement. An easement is hereby created fOf the benefit
of, and granted to, the Drainage Board to enter the Tract and all Lots therein to the
extent necessary to exercise its rights with respect to any legal drain constituting a
part of the Drainage System or Detention Area.
(e) Crossing Underground Easements. Easements utilized for underground
service may be crossed by driveways,. walkways and Paths, provided prior
arrangements are made with the utility company furnishing service. Such
easeme,nts as are actually utilized for underground service shall be kept clear of
all other improvements, including buildings, patios, or other pavings, other than
crossings, driveways, walkways and Paths, and neither Declarant nor any utility
company using the easements shall be liable for any damage done by either of
them or their assigns, agents, employees, or servants to shrubbery, trees, flowers
or other improvements of the Owner located on the land covered by said
easements.
(f) Declarant's Easement to Correct Drainage. For a period often (10) years
from the date of conveyance of the first Lot in a Section, Declarant reserves a
blanket easement and right on, over and under the ground within that Section to
maintain and to correct drainage of surface water in order to maintain reasonable
standards of health, safety and appearance. Such right expressly includes the right
to cut any trees, busbes or shrubbery, make any gradings of the soil, or to take any
other similar action reasonably necessary, following which Declarant shall restore
the affected property to its original condition as nearly as practicable. Declarant
shall give reasonable notice of its intention to . take such action to all affected
Owners, unless in the opinion of Declarant an emergency exists which precludes
such notice.
(g) Water Retention. The 01M1er of each Lot, by acceptance of a deed thereto, .
consents to the temporary storage (detention) ofstonn water within the drainage
easements (DE) on such Owner's Lot.
18. Use of Lots During Develooment
(a) Bv Declarant. Notwithstanding any provi~ions to the contrary contained
herein or in any other instrument or agreement, Declarant or its sales agents or
contractors, may maintain dwing the period of construction and sale of Lots and
Residences in the Tract or the Development Area, upon such portion thereof as is
owned or leased by Declarant, such facilities as in the sole opinion of Declarant
may be reasonably required, convenient .or incidental to the construction and sale
of Lots and Residences, including, but without limiting the generality thereof, a
27
~ ..
business office, storage area, construction yards, signs, model Residences and
sales offices.
(b) By Builders. Notwithstanding any provisions to the contrary contained
herein, a builder w.ho has constructed a Residence in the Tract may, with the prior
consent of the Board of Directors, use such Residence as a "model" home and
may hold such home open to the public, either individually or as part of a "home
show" approved by the Board of Directors for such reasonable period as the
Board of Directors may specify. With the approval of Declarant, Lots adjacent to
or in proximity to such model home may be used for parking by visitors to such
model home.
19. Enforcement.. The Corporation, any Owner or Declarant shall have the right to
enforce, by proceeding at law or in equity, all restrictions, conditions, covenants, reservations,
liens and charges now or hereafter imposed by the provisions of this Declaration, but neither
Declarant nor the Corporation shall be liable for damage of any kind to any Person for failure
either to abide by, enforce or carry out any ofthe Restrictions. No delay or failure by any Person
to enforce any of the Restrictions or to invoke any available remedy with respect to a violation or
violations thereof shall under any circumstances be deemed or held to be a waiver by that Person
of the right to do so thereafter, or an estoppel of that Person to assert any right available to him
upon the occurrence, recurrence or continuation of any violation or violations of the Restrictions.
In any action to enforce this Declaration, the. Person seeking enforcement shall be entitled to
recover all costs of enforcement, including attorneys' fees, "if it substantially prevails in such
action.
20. Limitations on Rights of the Corporation. Prior to the Applicable Date, the
Corporation may not use its resources nor take a public position in opposition to additions to the
Tract or to changes to a Plat proposed by Declarant. Nothing in this paragraph shall be construed
to limit the rights of the Members acting as individuals or in affiliation with other Members or
groups as long as they do not employ the resources of the Corporation or identify themselves as
acting in the name, or on the behalf, of the Corporation.
21. Approvals bv Declarant. Notwithstanding any other provisions hereof; prior to
the Applicable Date, the following actions shall require the' prior approvaJ of Declarant: the
addition of real estate to the Tract; dedication or transfer of the Community Area; mergers and
consolidations of the Tract with other real estate~ mortgaging of the Community Area;
amendment of this Declaration; and changes in the basis for assessment or the amount, use and
time of payment of the Community Area Initial Assessment.
22. Mortgages.
(a) Notice to. Corporation. Any Owner who places a first mortgage lien upon
his Residence or the Mortgagee shall notify the Secretary of the Board of
Directors of such mortgage and provide the name .and address of the Mortgagee.
A record of such Mortgagee's name and address shall be maintained by the
Secretary and any notice required to be given to the Mortgagee pursuant to the
terms of the Declaration, the Articles or the By-Laws (the "Organizational
2R
..... C .1.
Documents") shall be deemed effectively given if mailed to such Mortgagee at the
address shown in such record in the time provided. Unless notification of any
such mortgage and the name and address of Mortgagee are furnished to the
Secretary, either by the Owner or the Mortgagee, no notice to any Mortgagee as
may be otherwise required by the Organizational Documents shall be required and
no Mortgagee shall be entitled to vote by virtue of the Organizational Documents
or a proxy granted to such Mortgagee in connection with the mortgage.
(b) Notices to Mortgagees. The Corporation shall promptly provide to any
Mortgagee of whom the Corporation has been provided notice under
subparagraph (a) above notice of any of the following:
(1) Any condemnation or casualty loss that affects a material portion
of the Community Area;
(ii) Any delinquency in the payment of any Assessment owed by the
Owner of any Residence on which said Mortgagee holds a mortgage or
any default" by an Owner under the Organizational Documents, if said
delinquency or default continues for more than sixty (60) days;
(iii) Any lapse, cancellation or material modification of any insurance
policy or fidelity bond maintained by the Corporation;
(iv) Any proposed action that requires the consent of a specified
percentage of Mortgagees; and,
(v) Any proposed amendment of the Organizational Documents
effecting a change in (A) the interests in the Community Area
appertaining to any Residence or the liability for Maintenance Costs
appertaining thereto, (B) the vote appertaining to a Residence or (C) the
purposes for which any Residence or the Community Area are restricted.
(c) Notice of Unpaid Assessments. The Corporation shall, upon request of a
Mortgage.~, a proposed mortgagee, or a proposed purchaser who has a contractual
right to purchase a Residence, furnish to such mortgagee or purchaser a statement
setting forth the amount of the unpaid Assessments against the Residence and the
Owners, and any Mortgagee or grantee of the, Residence shall not be liable for,
nor shall the Residence conveyed be subject to a lien for, any unpaid Assessments
in excess of the amoUIlt set forth in such statement.
(d) Financial. Statements.. Upon the request of any Mortgagee, the
Corporation shall provide to said Mortgagee the most recent financial statement
prepared on behalf of the Corporation.
(e) Payments by Mortgagees. Any Mortgagee may (i) pay taxes or other
charges that are' in default. and that mayor have become a lien upon the
Community Area or any part thereof and (ii) pay overdue premiums on hazard
insurance policies or secure new hazard insurance coverage for the Conununity
29
\c. !~
Area in case of a lapse of a policy. A Mortgagee making such payments shall be
entitled to iinmediate reimbursement fTom the Corporation.
23. . Amendments.
(a) Generally. This Declaration may be amended at any time by an
instrument signed by (i) the appropriate officers of the Corporation acting .
pursuant to the authority granted by not less than two-thirds (2/3) of the votes of
the Members cast at a meeting duly called for the purpose of amending this
Declaration an4, to the extent required by Paragraph 21, (1i) Declarant.
(b) By Declarant. Declarant hereby reserves the right prior to the Applicable
Date unilaterally to amend and revise the standards, covenants and restrictions
contained in this Declaration. Such amendments shall be in writing, executed by
Declarant, and recorded with the Recorder of Hamilton County, Indiana. No such
amendment, however, shall restrict or diminish the rights or increase or expand
the obligations of Owners with respect to Lots conveyed.to such Owners prior to
the amendment or adversely affect the rights and interests of Mortgagees holding
first mortgages on Residences at the time of such amendment. Declarant shall
give notice in writing to such Ovmers and Mortgagees of any amendments.
Except to the extent authorized in. Paragraph 17(b), Declarant shall not have the
right at any time by amendment of this Declaration to grant or establish any
easement through, across or over any Lot which Declarant has previously.
conveyed without the consent ofthe Owner of such Lot.
(c) Effective Date. Any amendment shall become effective upon its
recordation in the Office of the Recorder of Hamilton County, Indiana.
24. Interpretation. The underlined titles preceding the various paragraphs and
subparagraphs of this Declaration are for convenience of reference only, and none of them shall
be used as an aid to the construction of any provision of this Declaration. Wherever and
whenever applicable, the singular form of any word shaH be taken to mean or apply to the plural,
and the masculine form shall be taken to mean or apply to the feminine or to the neuter.
25. Duration. The foregoing covenants and restrictions are for the mutual benefit and
protection of the present and future Owners, the Corporation, and Declarant, and shall run with
the land and shall be binding on all parties and all Persons claiming under them until January 1,
2028, at which time said covenants and restrictions shall be automatically extended for
successive periods often (10) yearS, unless changed in whole or in part by vote of those Persons
who are then the Owners of a majority of the Lots in the Tract.
26. Severability. Every one of the Restrictions is hereby declared to be independent
of, and severable from, the rest of the Restrictions and of and from every other one of the
Restrictions, and of and from every combination of the Restrictions. Therefore, if any of the
Restrictions shall be held to be invalid or to be unenforceable, or to lack the quality of running
with the Land, that holding shall be without effect upon the validity, enforceability or "running"
quality of any other one of the Restrictions.
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27. Non-Liability of Declarant. Declarant shall not have any liability to an Owner or
to any other Person with respect to drainage on, over or under a Lot or erosion of a Lot. Such
drainage and erosion control shall be the responsibility of the Owner of the Lot upon which a
Residence is constructed and of the builder of such Residence and an Owner, by an acceptance
of a deed to a Lot, shall be deemed to agree to indemnify and hold Declarant free and hannless
from and against any and all liability arising from, related to, or in connection with the erosion of
or drainage on, over and under the Lot described in such deed. Declarant shall have no duties,
obligations or liabilities hereWlder except such as are expressly assumed by Declarant, and no
duty of, or warranty by, Declarant shall be implied by or inferred from any term or provision of
this Declaration. .
28. Compliance with the Soil Erosion Control Plan.
(a) The Plan. Declarant has established and implemented an erosion control
plan pursuant to the requirements and conditions of Rule 5 of 327 IAC 15, Storm
Water Run-Off Associated with Construction Activity. In cOIUlection with any
construction activity on a Lot by an O~'1ler, its contractor or the subcontractors of
either, Owner shall take or cause to be taken all erosion control measures
contained in such plan as the plan applies to "land disturbing activity" illldertaken
on a Lot and shall comply with the terms of Declarant's general permit under
Rule 5 as well as all other applicabJe state, county or local erosion. controJ
authorities. AJl erosion control measures shall be penonned by personnel trained
in erosion control and shall meet the design criteria, standards, and specifications
for erosion control measures established by the Indiana Department of
Environmental Management .in guidance documents similar to, or as effective as,
those outlined in the Indiana Handbook for Erosion Control in Developing Areas
from the Division of Soil Conservation, Indiana Department of Natural
Resources.
(b) Indemnitv. The Owner of each Lot shall indemnity and hold Declarant
harmless from and against all liability, damage, loss, claims, demands and actions
of any nature whatsoever which may arise out of or are connected with, or are
claimed to arise out of or be connected with, any work done by such Owner, its
contractor and their respective employees, agents, or subcontractors which is not
in compliance with the erosion control plan implemented by the Declarant.
29. Assessments. The Board of Directors may make Assessments to cover any costs
incurred in enforcing these covenants or in Wldertaking any maintenance or other activity that is
the responsibility of the Owner of a Lot herelUlder but which such Owner has not undertaken as
requiTed hereunder. Any such Assessment shall be assessed only against those OlAners whose
failure to comply with the requirements of these covenants necessitated the action to enforce
these covenants or the undertaking of the maintenance or other activity. .
30. Enforcement. The right to enforce each of the foregoing Restrictions by
injunction~ together with the right to cause the removal by due process of law of structures
erected or maintained in violation thereof, is reserved to Declarant, the Corporation, the
Architectural Review Board, the Owners of the Lots in the Tract, their heirs and assigns, and to
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the Zoning Authority, their successors and assigns, who are entitled to such relief without being
required to show any damage of any kind to Declarant, the Corporation, the Architectural
Review Board, any Owner or Owners, or such Zoning Authority by or through any such
violation or attempted violation. Under no circumstances shall Declarant, the Corporation or the
Architectural Review Board be liable for damages of any kind to any Person for failure to abide
by, enforce or carry out any provision or provisions of this Declaration. There shall be no rights
of reversion or forfeiture oftitle resulting from any violations.
31. Additions to the Tract. Declarant shall have the right to bring within the scheme
of this Declaration and add to the Tract real estate that is contiguous to the Tract. In determining
contiguity, public rights of way shall not be considered. The additions authorized under this
Paragraph 31 shall be made by the tiling of record of one or more Supplemental Declarations
with respect to the additional real estate. Unless otherwise stated therein, such Supplemental
Declarations shall not bind Declarant to make the proposed additions. For purposes of this
Paragraph 31, a Plat depicting a Part of the Development Area shall be deemed a Supplemental
Declaration.
32. Annexation. Each Owner, by the acceptance of a deed to a Lot, consents to the
annexation of the Tract to the City of Carmel and agrees not to remonstrate against any proposal
for such annexation.
IN TESTTh10NY WHEREOF, Declarant has executed this Declaration as of the date set
forth above.
GWZ-2 DEVELOPMENT, LLC
B /~/ / /, // '
y: ,x.../L'/j;c./..!?L A .~?~
Glenda S. Garrison, Co-Manager
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COUNTY OF HAMIL TON )
)3S:
STATE OF lNDIANA
)
Before me, the undersigned, a Notary Public in and for said County and State, personally
appeared Glenda S, Garrison, a Co-Manager of GWZ-2 Development, LLC, anlndiana limited
liability company, who acknowledged the execution of the foregoing Declaration of Covenants
and Restrictions for and on behalf of said Declarant on the date of its execution set forth above.
My Commission Expires:
tary Public
[SEAL]
County, lndiana
This Instrument prepared by David R. Warshauer, Attorney at Law,
11 South Meridian Street, Indianapolis, Indiana 46204.
..".oJ ~
Exhibit A
Legal Description
Wexley Chase
Part of the South Half orthe South Half of the Southwest Quarter of Section 29, Township 18
North, Range 3 East, Clay Township, Hamilton County, Indiana, more particularly described as
follows:
BEGINNING at a 3/4 inch rebar found marking the Southeast corner of said Southwest Quarter;
. thence South 89 degiees 50 minutes 56 seconds West (assumed bearing) along the South line of
said Southwest Quarter 710.01 feet; thence North 00 degrees 00 minutes 22 seconds West 17.28
feet; thence North 88 degrees 00 minutes 18 seconds West 100.06 feet; thence North 00 degrees
00 minutes 22 seconds West 18.97 feet; thence South 89 degrees 50 minutes 56 seconds West
parallel with said South line 594.52 feet; thence South 00 degrees 09 minutes 04 seconds East
15.40 feet; thence South 88 degrees 48 minutes 26 seconds West 311.27 feet; thence South 00
degrees 09 minutes 04 seconds East 18.94 feet to said South line; thence South 89 degrees 50
minutes 56 seconds West along said South line 267.65 feet to a bent 3/4 inch rebar found at the
Southeast corner ofthe land ofK.C. Cohen as described in Instrument No. 2001-18912, recorded
in said county records; thence North 00 degrees 27 minutes 12 seconds East along the east line
thereof 658.17 feet to the North line of the South Half of the South Half of said Southwest
Quarter; North 89 degrees 47 minutes. 06 seconds East along said North line 1977.94 feet to the
East line of said Southwest Quarter; thence South 00 degrees 00 minutes 50 seconds East along
said East line 660.34 feet (South 00 degrees 12 minutes 32 seconds East 660.38 feet by deed) to
the POINT OF BEGINNING, containing 29.229 acres, more or less.