HomeMy WebLinkAboutDeclaration of Covenants RECORDED
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1Q9909946964
Filed for Record in
HAMILTON COUNTY, INDIRNA
MARY L CLARK
On 08-09-1999 At 04:02 pm.
DEC COV RES 127.00
DECLARATION OF COVENANTS AND RESTRICTIONS
The Village of WestClay
Carmel, Indiana
Recorded e:;>' k.y~~ 1999
Instrument No. ,~G94-
Office of the Recorder of Hamilton County
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DECLARATION OF COVENANTS AND RESTRICTIONS
THE VILLAGE OF WEST CLAY
INDEX
Page
1. DeflIlitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . .. -2-
2. Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -10-
3. Additions to the Tract ................................................. -10-
4. The Lake ........................................................... -11-
(a) Development. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., -11-
(b) Title and Maintenance ........................................... -11-
(e) Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -11-
5. The Ponds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -12-
(a) Development. . . . . . . . , . . . . . , . , . . . . . , , . , . . . . . . . . . . . . . . . . . . . . , . .. -12-
(b) Title and Maintenance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -12-
(c) Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -12-
6. The Commons ..........,............................................ -12-
7. Parks. . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -13-
8. Village Community Buildings. . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -13-
9. Drainage System ..........................,...........".,.,..,....,. -13-
10. Common Lighting. . . . . .. .. . . . .... , . . . . . .. . . . ...... . . . . . . . , . . . , . .. . . ., -14-
11. Paths and Path Lights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -14-
12. Private Drives and Private Gates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -14-
(a) Maintenance of Private Drives (Exclusive of Alleys) .. , . . , . . . . . . . . . . . .. -14-
(b) Maintenance of Alleys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . , . . . . . , .. -14-
(c) Maintenance of Private Gates ....................,................ -14-
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13.
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15.
16.
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Entry Ways, Landscape Easements and Planting Areas ....................... -15-
(a) Entry Ways. .. . . ... . . . .... . . . . . . . .. . . . . ... .. . . . . . . . . . . . . . . . . . .. -15-
(b) Landscape Easements ........................................... -15~
(c) Planting Areas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -15-
Site Furniture and Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -15-
Round-Abouts and Street Trees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -1 S-
(a) Round~Abouts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -15-
(b) Street Trees ................................................... -16-
(c) Maintenance of Street Trees ...................................... -16-
Common Parking Lots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -16~
Open Space ......................................................... -16-
18.
Village of WestClay Owners Association, Inc. ...... . . . . . . . . . . . . . . . . . . . . . . . .
(a) Membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . .
(b) Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) Classes of Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) Voting and Other Rights of Members ...............................
(e) Reserve for Replacements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(0 Debt Service Account ...........................................
(g) Maintenance Standards ..........................................
(h) Insurance, Taxes arid Utilities .....................................
(i) . Limitations on Action by the Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . .
G) Mergers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19.
Assessments . . . . . . .. . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .
(a) Creation of the Lien and Personal Obligation of Assessments. . . . . . . . . . . .
(b) General Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(i) Purpose of Assessment ..............................
(ii) Basis for Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) Residential Lots .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) Commercial Lots ...................................
(3) Lots Owned by Declarant or Permitted Title Holder . . . . . . . .
(4) Condominiums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) Change.in Basis ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(iii) Method of Assessment . . . . . . . . . . . . . . . ~ . . . . . . . . . . . . . . .
(iv) Allocation of Assessment ............................
(c) Community Area Initial Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) Community Area Debt Service Assessment. .. . .. . .. ...... . . . . . . . . . . .
( e) Parcel Assessments .............................................
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(i) Purpose of Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ii) Method of Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(iii) Special Assessments ................................
(f) Architectural Control Assessment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(g) Special Assessment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(h) Date of Commencement of Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(i) Effect of Nonpayment of Assessments; Remedies of the Corporation. . . . . .
CD Subordination of the Lien to Mortgages .............................
(k) Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) Annual Budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) Adoption of Budget . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) Certification of Village Center Maintenance Costs. . . . . . . . .
(3) Village Center Budget. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Architectural Control ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(a) The Architectural Review Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . - . . . . . . . . . . . . . . . - . . . . . . . . . . . .
(c) BuildingActivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) Guidelines and Standards. . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . .
(fL Application of Guidelines and Standards .............. _.............
(g) Design Consultants ............................................_
(h) Existing Violations of Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(i) Exercise of Discretion ...........................................
G) Liability of Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - . . . . . . . . . . . .
(k) Inspection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -
Community Area and Common Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(a) Ownership. . _ _ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) Density of Use .................................................
(c) Obligations of the Corporation ....................................
(d) Easements of Enjoyment . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . ... . . . . . . . . .
(i) Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . _ _ . . . . . . . . . . . _
(ii) Occupants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) Extent of Easements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . _ _ . . . . . . . . . . . _
(f) Additional Rights of Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(g) Damage or Destruction by Owner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(h) Conveyance of Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Use of Tract ............. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(a) Protective Covenants ............. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(i) Land Use ...............................................
(ii) Nuisances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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23.
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(iii) Other Restrictions ........................................ -36-
(iv) Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -37-
(b) Maintenance of Tract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -37-
Easements .......................................................... -37-
(a) Plat Easements . ... . . . . . . . . . . . . . . . . . . . . . . _ . . _ . . . . . _ _ . . . . . . . _ _ . .. -37-
(i) Drainage Easements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -38-
(ii) Sewer Easements ..... . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . .. -38-
(iii) Utility Easements . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -38-
(iv) Entry Way Easements ..................................... -38-
(v) Landscape Easements ..................................... -38-
(vi) Water Access Easements. . . . . . . . . . . . . . . . . . . . . . _ . . . . . . . . _ . .. -39-
(vii) Community Area Access Easements. . . . . . . . .. . . . . . . . . . . . . . . .. -39-
(viii) Pathway Easements ....................................... -39-
(ix) Non-Access Easements .................................... -39-
(x) Alley Easements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . _ . _ . . .. -39-
(b) General Easement .............................................. -39-
(c) Public Health and Safety Easements ................................ -40-
(d) Drainage Board Easement ........................................ -40-
(e) Crossing Underground Easements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -40-
(f) Declarant)s Easement to Correct Drainage ..................... _ . . . .. -40-
(g) Water Retention . . . . . . . . . . . . . _ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -41-
Use of Lots During Development ........................................ -41-
(a) By Declarant .................................................. -41-
(b) By Builders ................................................... -41-
Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -41-
Limitations on Rights of the Corporation .................................. -42-
Approvals by Declarant .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -42-
Mortgages .......................................................... -42-
(a) Notice to Corporation ............................. _ . . . . . . . . . . . .. -42-
(b) Notices to Mortgagees. . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -42-
(c) Notice of Unpaid Assessments ............. _ . . . . . _ . _ . . . . . . . . . . . . .. -43-
(d) Financial Statements ............................................ -43-
(e) Payments by Mortgagees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -43-
Amendments _ _ . . _ . . . . . . . . . . . . . . . . . . . _ _ _ . . . . . _. . . . . . . . . _ _ _ _ . . . . . . . . .. -43-
(a) Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -43-
(b) By Declarant .................................................. -44-
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(c) Approval by Zoning Authority .................................... -44-
(d) Class Approval . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -44-
(e) Effective Date ."'............................................... -44-
30.
Interpretation ........................................................ -44-
32. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -45-
33. Non-Liability of Declarant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -45-
34. Compliance with the Soil Erosion Control Plan ...................."'........ -45-
(a) The Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .. -45-
(b) Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -46-
35. Annexation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "' . . . . . . . . .. -46-
36. Exclusive Builders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -46-
Exhibit A
Exhibit B
Exhibit C
Description of Development Area
General Plan of Development
Description of the Tract
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DECLARA nON OF COVENANTS AND RESTRICTIONS
THE VILLAGE OF WESTCLA Y
This Declaration, made as of the 9th day of August ,19;9,by
BRENWICK TND COM1vfUNITIES, LLC, an Indiana limited liability company ("Declarant"),
WITNESSETH:
WHEREAS, the following facts are true:
A. Declarant O'MlS,or has the right to acquire the real estate located in Hamilton County,
Indiana, described in Exhibit A and depicted on Exhibit B, upon which Declarant intends, but is not
obligated, to develop a traditional neighborhood to be known as The Village of West Clay.
B. The Development Area has been designated as the Planned Unit Development District
and development thereof is subject to the' development standards set forth in the Zoning Ordinance.
C. Dec1arantintends, but is not obligated, to construct certain improvements and
amenities in WestClay which shall constitute Community Area.
D. Declarant desires to provide for the preservation and enhancement of the property
values, amenities and opportunities inWestClay and for the maintenance of the Tract and the
improvements thereon, and to this end desires to subject the Tract together with such additions as
may hereafter be made thereto (as provided in Paragraph 3) to the covenants, restrictions, easements,
charges and liens hereinafter set forth, each of which is for the benefit of the Lots and lands in the
Tract and the future owners thereof.
E. Declarant deems it desirable, for the efficient preservation of the values and amenities
in W estClay, to create agencies to which may be delegated and assigned the powers of owning,
maintaining and administering the Community Area, administering and enforcing the Restrictions,
collecting and disbursing the Assessments and charges hereinafter created, and promoting the
recreation, health, safety and welfare of the Owners of Lots in W estClay.
F. Declarant has incorporated under the laws of the State of Indiana nonprofit
corporations known as The Village of West Clay Owners Association, Inc. and WestClay Village
Owners Association, Inc. for the purpose of exercising such functions.
NOW, THEREFORE, Declarant hereby declares that all of the Lots and lands in the Tract
and such additions thereto as may hereafter be made pursuant to Paragraph 3 hereof, as they are held
and shall be held, conveyed, hypothecated or encumbered, leased, rented, used, occupied and
improved, are subject to the following Restrictions, all of which are declared to be in furtherance of
a plan for the improvement and sale of Lots in the Tract, and are established and agreed upon for the
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purpose of enhancing and protecting the value, desirability and attractiveness of the Tract as a whole
and of each of Units, Lots and lands situated therein. The Restrictions shall run with the land and
shall be binding upon Declarant, its successors and assigns, and upon the parties having or acquiring
any interest in the Tract or any part or parts thereof subject to such Restrictions, and shall inure to
the benefit of Declarant and its successors in title to the Tract or any part or parts thereof.
1. Definitions. Terms defined in the Zoning Ordinance used in this Declaration shall
have the meaning herein as therein unless otherwise defined herein or the context otherwise requires.
. The following terms, as used in this Declaration, unless the context clearly requires otherwise, shall
mean the following:
"Applicable Date" means the earlier of (i) the date when all Lots in the
Development Area have been improved by the construction thereon of Units or (ii)
December 31, 2015. .
"Architectural Control Assessment" means the assessment levied by the
Corporation pursuant to Paragraph 19(f) of this Declaration or by the Association
pursuantto Paragraph 5 of the Village Center Supplemental Declaration.
"Architectural Review Board" means that entity established pursuant to
Paragraph 20 of this Declaration for the purposes therein stated.
"Articles" meansthe Articles of Incorporation of the Corporation, as amended
from time to time.
"Assessments" means all sums lawfully assessed against the Members or as
declared by this Declaration, any Supplemental Declaration, the Articles or the By-
Laws.
"Association" means WestClay Village Center Owners Association, Inc., an
Indiana nonprofit corporation.
"Board of Directors" means the governing body of the Corporation or the
Association, as the context may require.
"Building Activitv" means any activity or undertaking on a Residential Lot
of a type described in Paragraph20(c).
..Buildin~ Guidelines" means guidelines and requirements for Building
Activity on the Tract adopted by the Declarant, the Architectural Review Board or
the Design Review Board, as applicable..
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"By-Laws" means the Code of By-Laws of the Corporation, as amended from
time to time.
"Commercial Latif means each established building site or platted lot on
which a Commercial Unit. a Multifamily Structure or a.Multiuse Structure has been
or is intended to be constructed.
"Commercial Unit" means any structure or portion thereof situated upon the
Tract which is designed and intended for use and occupancy for such non-residential
purposes as are permitted under the Zoning Ordinance exclusive of home-based
offices and other uses accessory to the use and enjoyment of a Residential Lot. A
Commercial Unit may be a Condominium.
"Common Facilitieslf means the Common Lighting, the Path Lights, the Site
Furniture and Facilities and other personal property of the Corporation.
"Common Lighting" means the light standards. wiring, bulbs and other
appurtenances, if any, installed to illuminate the Community Area or the public and
private ways in WestClay exclusive of the Path Lights.
"Common Parking Lot" means any parking lot owned, managed and/or
maintained by the Corporation or the Association and intended for use by the
Occupants of or visitors to a Village Community Building, an Education Facility. a
Commercial Unit, a Multifamily Structure or a Multiuse Structure.
"Commonslf means such land, if any, as may be denoted on a Plat as
"Commons" or designated as "Commons" in any recorded instrument executed by
Declarant.
"Community Area" means (i) the Lake, (ii) the Ponds, (iii) the Private Drives
and Private Gates, (iv) the Village Community Buildings, (v) the Entry Ways, (vi)
the Planting Areas, (vii) the Parks, (viii) the Commons, (ix) the Drainage System, (x)
the Paths, (xi) the Common Lighting. (xii) the Site Furniture and Facilities, (xiii) any
utility service lines or facilities not maintained by a public utility company or
govermnental agency that are located on, over or below or through more than one
Section or Parcel, and (xiv) any areas of land (1) shown on any Plat. (2) described in
any recorded instrument prepared by Declarant or its agents, or (3) conveyed to or
acquired by the Corporation or the Association, together with all improvements
thereto, that are intended to be devoted to the use or enjoyment of some, but not
necessarily all, of the Owners and Occupants of Lots and Units, exclusive of
Common Parking Lots.
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"Community Area Access Easement" means the area designated on a Plat as
a means of access to a Community Area or Common Parking Lot.
"Community Area Debt Service Assessment" means the periodic Assessment
to meet the obligation of the Corporation for payments on account of Community
Area Secured Indebtedness.
"Community Area Initial Assessment" means the initial Assessment for the
Reserve for Replacements required by Paragraph 19(c).
"Community Area Secured Indebtedness" means'indebtedness in an aggregate
principal amount not exceeding Two Million Dollars ($2,000,000) incurred to
finance, in whole or in part, the Village Community Buildings ,and the Common
Facilities, or parts thereof, secured by a lien or liens on the Village Community
Buildings and the Common Facilities, or parts thereof.
"Condominium" means a Unit in a Horizontal Property Regime.
"Col:Poration" means The Village of West Clay Owners Association, Inc., an
Indiana nonprofit corporation, its successors and assigns.
"Declarant" means Brenwick TND Communities, LLC, its successors and
assigns to its interest in the Tract other than Owners purchasing Lots or Units by deed
from Declarant (unless the conveyance indicated an intentthat the grantee assume the
rights and obligations of Declarant).
"Design Review Board" means that entity established pursuant to Paragraph
6 of the Village Center Supplemental Declaration.
"Designated Builder" means during such period as such designation by
Declarant may continue, any Person engaged in the construction of more than one (1 )
Unit on the Tract who is designated by Declarant as a "Designated Builder".
Declarant may make and revoke any such designation at any time and from time to
time. A builder approved pursuant to Paragraph 36 may, but will not necessarily be,
a Designated Builder.
"Detention Area" means an area depicted on a Plat which has been engineered
to accommodate from time to time surface water drainage.
"Development Area" means the land described in Exhibit A together with any
additional land added to the Tract pursuant to Paragraph 3 oftrus Declaration.
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"Drainage Bqard" means the Hamilton County Drainage Board, its successors
or assigns, or, in the event of annexation of the Tract to the City of Carmel, the Board
of Public Works of the City of CarmeL
"Draina~e Svstem" means the open drainage ditches and swales, the
subsurface drainage tiles, pipes and structures, the dry and wet retention and/or
detention ponds (including aU Detention Areas), and the other structures, fIxtures,
properties, equipment and facilities (excluding the Lake and the. Ponds) located in the
Tract and designed for the purpose of controlling, retaining or expediting the
drainage of surface and subsurface waters from, over and across the Tract, including
but not limited to those shown or referred to on a Plat, all or part of which may be
established as legal drains subject to the jurisdiction of the Drainage Board.
~'Education Facility" means the Education Center depicted on the
Development Plan and any other facility on the Tract owned or leased by a public or
private educational institution or its successor in title, which does not constitute
Community Area and is used principally for educational purposes.
"Electoral Parcel" means one or more Parcels the Supplemental
Declaration(s) for which authorizes the Owners of Lots in such Parcel(s) to elect a
member of the Board of Directors of the Corporation to represent such Parcel(s) on
the Board.
"Entry Ways" means the structures constructed as an entrance to WestClay
or a part thereof (exclusive of the street pavement, curbs and drainage structures and
tiles), the traffic islands depicted as designated Blocks on a Plat and any other traffic
islands dividing a roadway providing access to WestClay or a part thereof, and the
grassy area surrounding such structures.
"General Plan of Development" means that plan prepared by Declarant and
approved, if necessary, by appropriate public agencies that outlines the total scheme
of development and general uses of land in the Development Area, as such may be
modified from time to time.
"Horizontal Property Re~me" means a horizontal property regime established
in the Tract pursuant to I.e. 32-1-6 or any successor provision authorizing the
creation of a Condominium.
"1m" means the lake identified on the Development Plan as Hourglass Lake.
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"Landscape Easement" means a portion of a Lot denoted on a Plat as an area
to be landscaped.
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"Living Unit" means a room or combination of rooms designed for y~ar-round
habitation, containing a bathroom and kitchen facilities, and designed for or used as
a permanent residence by at least one Person.
"1&1" means (1) any plotofland intended as a building site shown upon any
recorded Plat, with.the exception of Community Area and Common Parking Lots, (2)
any Condominium, (3) any part of the Tract designated in a recorded instrument as
a "Lot", and (4) any other part of the Tract acquired by an Owner or used by
Declarant for the construction or operation of, or occupancy as, one or more Units.
"Lot Development Plan" means (i) a site plan prepared by a licensed engineer
or architect, (ii) foundation plan and proposed finished floor elevations, (iii) building
plans, including elevation and floor plans, (iv) material plans and specifications, (v)
landscaping pl~ (vi) exterior lighting plan, (vii) tree preservation plan and (viii) all
other data or information that the Architectural Review Board or the Design Review
Board, as applicable, may request with respect to the improvement or alteration of
a Lot (including but not limited to the landscaping'thereof) or the construction or
alteration of a Unit, Multifamily Structure, Multiuse Structure or other structure or
improvement thereon.
"Maintain" means maintain., repair and replace as necessary or appropriate.
"Maintenance Costs" means all of the costs necessary to keep the facilities to
which the term applies operational and in good condition, including but not limited
to the cost of ail upkeep, maintenance, repair, replacement of ail or any part of any
such facility, payment of all insurance premiums for public liability, casualty and
other insurance maintained with respect thereto, all utility charges relating to such
facilities, all taxes imposed on the facility and on the underlying land, leasehold,
easement or right-of-way, and any other expense related to the continuous
maintenance, operation or improvement of the facility.
"Member" means a member of the Corporation and "Members" means all
members of the Corporation.
"Mortgagee" means the holder of a first mortgage on a Unit, a Multifamily
Structure or a Multiuse Structure.
"Multifamily Structure" means a structure with two or more Living Units
under one roof, except when such Living Units are situated upon their own individual
Lots, are Condominiums or are located in a Multiuse Structure.
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"Multiuse Structure" means a structure which contains one or more
Commercial Units and one or more Living Units.
"Occu.pant" means any Person who .is 'in possession of a Unit either as an
Ovmer or as a tenant pursuant to a lease or other occupancy agreement.
"Owner" means a Person, including Declarant, who at the time has or is
acquiring legal title to aLot except a Person who has or is acquiring such title merely
as security for the performance of an obligation.
"Parcel" means each platted subdivision or part thereof, parcel of land or
Horizontal Property Regime consisting of one or more Lots within the Development
Area that are subject to the same Supplemental Declaration or are declared by
Declarant to constitute a "Parcel", One or more Lots may be, included in more than
one Parcel.
"Parcel Assessment" means an Assessment made pursuant to Paragraph 19( e)
of this Declaration or Paragraph 5(b) of the Village Center Supplemental Declaration. ,
"~" means such land as may be denoted. on a Plat aslPark" or designated
as "Park" in any recorded instrument executed by Declarant.
"Part of the DevelQpmeu.t Area" means any part of the Development Area not
included in the Tract.
"Paths" means those walkways and/or bikeways installed pursuant to
Paragraph 11 and such other real estate or interest therein as is conveyed or granted
to the Corporation for the pwpose of being used for walkways and/or bikeways.
"Path Lights" means the light standards, conduits, wiring, bulbs and other
appurtenances, if any, installed to illuminate the Paths.
"Permitted Title Holder" means (a) the Corporation, (b) the Association, (c),
a public or private educational institution, (d) the City of Carmel, Indiana, or ( e) a
nonprofit corporation having perpetual existence or a governmental entity designated,
in either case, by Declarant.
"Person" means an individual, firm, corporation, partnership, association,
trust or other Legal entity, or any combination thereof.
"Elm" 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 J Indiana.
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"Emld" means a body of water located in the Development Area and depicted
on the General Plan of Development (other than the Lake) and "~" means all of
such bodies of water (other than the Lake).
"Plantin~ Area" means a landscaped area located in the right-of-way of a
public street, on or adjacent to a Private Drive or Common Parking Lot or on a
Commons, in a Park or in or on other Community Area.
"Principal Streets" means, to the extent constructed by Declarant, TOWD.e
Road, 131st Street, Broad Street, Meeting House Road, Horseferry Road and Grafton
Street.
"Private Drive" means a street, lane, road, driveway or other right-of-way
designed to provide accesS to one or more Lots or to the Community Area that has
not been accepted for maintenance by a public authority. Private Drive does not
include a driveway located entirely on a single Lot, but does include alleys.
"Private Gate" means a'security gate controlling access to and from a Private
Drive.
"Recreation Centers" means Provost Park, Webster Park and MacArthur Field
and the recreational facilities therein or thereon.
"Reserve for Replacements" means a fund established and maintained by the
Corporation to meet the cost of periodic maintenance, repairs, renewal and
replacement of the Community Area and the Common Facilities.
"Residential Lot" means a Lot which is used or intended to be used primarily
for residential purposes except where the Lot is improved by the construction thereon
of a Multifamily Structure or a Multiuse Structure.
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"Restrictions" means the covenants, conditions, easements, charges, liens,
restrictions, rules and regulations and all other provisions set forth in this
Declaration, all applicable Supplemental Declarations, the Building Guidelines and
the Register of Regulations, as the same may from time to time be amended.
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"Re~ister of Re~lations" means the docmnent containing rules, regulations,
policies, and procedures adopted by the Board of Directors, the Architectural Review
Board or the Design Review Board, as the same may from time to time be amended.
"Round-About" means a square, green or traffic circle in WestClay.
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"Section" means that portion of the Development Area that is depicted on a
Plat.
"Significant Tree" means any tree measuring eight (8) inches in caliper
measured at four (4) to five (5) feet above grade.
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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, the Corporation or the Association and intended
for the common use or benefit of some, if not all, of the Owners and Occupants.
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"Special Assessment" means an Assessment made pursuant to Paragraph
19(9) or any other provision of this Declaration or any Supplemental Declaration
authorizing the levying of a Special Assessment.
. "Street Trees" means the trees, shrubs and other plantings planted by
Declarant or an Owner within a Planting Area, as the same may be replaced from
time to time.
"Supplemental Declaration" means any supplemental declaration of
covenants, conditions orrestrictioDS or any declaration o:fhorizontal property regime
which may be recorded and which extends the provisions of this Declaration or any
previously recorded Supplemental Declaration to a Section or Parcel and contains
such complementary or supplementary provisions for such Section or Parcel as are
required or permitted by this Declaration.
"Tract" means the land described in Exhibit C and such other real estate as
may from time to time be annexed thereto under the provisions of Paragraph 3
hereof.
.1!lni1" means any Living Unit or Commercial Unit, and "Units" means all
Living Uilits and Commercial Units.
"Village Center" means that part of the Tract depicted on the Development
Plan as the "Village Center."
"Village Center Maintenance Amount" has the meaning set forth in Paragraph
19(1)(3 ).
"Villag:e Center Parcel" means the Village Center exclusive of Residential
Lots and Community Area located therein.
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"Village Center Supplemental Declaration" means the Supplemental
Declaration relating to the Village Center Parcel.
"Villaf1:e Community. Buildings" means the Meeting House, the Trustees Hall,
the Chapel, the buildings constituting a part of or located in or on the Recreation
Centers and such other civic or recreational buildings as may be constructed in
W estClay by Declarant principally for the use of the Owners as a benefit of
mwership of a Lot, title to which is, or is intended ultimately to be, vested in a
Permitted Title Holder.
"Warranty Period" means, with respect to Street Trees, a period of one (1)
year following the date a Street Tree is planted in a Planting Area.
"Water Access Easement" means the area designated on a Plat as a means of
access to the Lake or a Pond.
"WestClay" means the name by which the Tract shall be commonly knO'Wll.
"Zonin~ Authority" with respect to any action means the Director of the
Department of Community Services of the City of Cannel 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.
"Zoning Ordinance" means the ordinance adopted by the Common Council
of the City of Carmel, Indiana, establishing the WestClay Village Planned Unit
Development District.
2. Declaration. Declarant hereby expressly declares that the Tract and any additions
thereto pursuant to Paragraph 3 hereof shall be held, transferred, and occ,upied subject to the
Restrictions. The Owner of any Lot or Parcel subject to these Restrictions, by (i) acceptance of a
deed conveying title thereto, or the execution of a contract for the purchase thereof, whether from
Declarant or a subsequent Owner of such Lot or Parcel, or (ii) by the act of occupancy of any Lot or
Parcel, shall accept such deed and execute such contract subject to each Restriction and agreement
herein contained. By acceptance of such deed or execution of such contract, each Owner
acknowledges the rights and powers of Declarant and of the Corporation with respect to these
Restrictions, and also for itself, its heirs, personal representatives, successors and assigns, covenants,
agrees and consents to and with Declarant, the Corporation, and the Owners and subsequent O'Mlers
of each of the Lots and Parcels affected by these Restrictions to keep, observe, comply with and
perform such Restrictions and agreement.
3. Additions to the Tract. Declarant shall have the right to bring within the scheme of
this Declaration and add to the Tract real estate that is a Part of the Development Area or that is
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contiguous to the Development Area. In determining contiguity, public rights of way shall not be
considered.
The additions authorized under this Paragraph 3 shall be made by the filing of record of one'
or more Supplemental Declarations with respect to the additional real estate and by filing with the
Corporation any revisions to the General Plan of Development necessary to reflect the scheme of
development of the additional real estate. Unless otherwise stated therein, such revisions to the
General Plan of Development shall not bind Declarant to make the proposed additions. For purposes
of this Paragraph 3, a Plat depicting a portion of the Development Area shall be deemed a
Supplemental Declaration.
4. The Lake.
(a) Development. Declarant intends, but is not obligated, to acquire title
to the Lake. Declarant reserves the right, subsequent to acquisition of the Lake, to
alter the size and configuration thereof(as a result of which, the Lake may vary from
that depicted on the General Plan of Development attached as Exhibit B hereto).
(b) Title and Maintenance. If Declarant acquires title to the Lake, it shall
subsequently convey such title to a Permitted Title Holder. Unless otherwise
specified in the ins,trument of conveyance, the Corporation shall be responsible for
maintaining the Lake. The Maintenance Costs of the Lake shall be assessed as a
General Assessment agairistall Lots subject to assessment EachO\VIler of a Lot that
abuts the Lake shall be responsible at all times for maintaining so much of the bank
of the Lake above the pool level as constitutes a part of, or abuts, his Lot (exclusive
of the Lake Liner and any Path) and shall keep that portion of the Lake abutting his
Lot free of debris and otherwise in reasonably clean condition.
(c) ~. No boats shall be permitted upon any part of the Lake except if
and to the extent authorized by the Board of Directors and then subject to such rules
and regulations as may be adopted by the Board of Directors. No dock., pier, wall or
other structure may be extended into the Lake without the prior written consent of the
Architectural Review Board and such governmental authority as may have
jurisdiction there over. No swimming will be permitted in the Lake except if and to
the extent authorized by the Board of Directors. Each Owner of a Lot abutting the
Lake shall indenmify and hold harmless Declarant, the Corporation and each other
Owner against all loss or damage incurred as a result of injury to any Person or
damage to any property, or as a result of any other cause or thing, arising from or
related to use of, or access to, the Lake by any Person who gains access thereto from,
over or across the Owner's Lot with the knowledge or acquiescence of such Owner.
Declarant shall have no liability to any Person with respect to the Lake, the use
thereof or access thereto, or with respect to any damage to any Lot resulting from the
Lake or the proximity of a Lot thereto, including loss or damage from erosion.
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5. The Ponds.
(a) Development. Declarant intends, but is not obligated, to develop the
Ponds. Declarant reserves the right, subsequent to commencement of development
of the Ponds, to determine the size and configuration thereof (which may vary from
that depicted on the GeneraIPlan of Development attached as Exhibit B hereto).
(b) Title and Maintenance. Declarant shall convey title to the Ponds to
a Permitted Title Holder. Unless otherwise specified in the instrument of conveyance,
the Corporation shall be responsible for maintaining the Ponds. The Maintenance
Costs of the Ponds shall be assessed as a General Assessment against all Lots subject
to assessment. Each Owner of a Lot that abuts a Pond shall be responsible at all
times for maintaining so ml.lch of the bank of the Pond above the pool level as
constitutes a part of, or abuts, his Lot (exclusive of any Path) and shall keep that
portion of the Pond abutting his Lot free of ~ebri~ and otherwise in reasonably clean
condition.
(c) ~. No boats shall be permitted upon any part of a Pond. No dock,
pier, wall or other structure may be extended into a Pond without the prior written
consent of the Architectural Review Board and such governmental authority as may
have jurisdiction there over. No swimming will be permitted in any Pond except if
and to the extent authorized by the Board of Directors. Each Owner of a Lot abutting
a Pond shall indemnify and hold harmless Declarant, the Corporation and each other
Owner against all loss or damage incurred as a result of injury to any Person or
damage to any property, or as a result of any other cause or thing, arising from or
related to use of, or access to, a Pond by any Person who gains access thereto from,
over or across such Owner's Lot with the knowledge or acquiescence of such Owner.
Declarant shall have no liability to any Person with respect to a Pond, the use thereof
or access thereto, or with respect to any damage to any Lot resulting from a Pond or
the proximity of a Lot thereto, including loss or damage from erosion.
6. The Commons. Declarant shall convey title to the Commons to a Permitted Title
Holder. Unless otherwise specified in the instrument of conveyance, the Corporation shall be
responsible for maintaining the Commons and the Maintenance Costs thereof shall be assessed as
a General Assessment against all Lots subject to assessment. Unless approved by the Architectural
Review Board and the Zoning Authority, no permanent improvements shall be made to or installed
on the Commons (excepting University Green) other than Village Community Buildings, Education
Facilities, undergroWld utility facilities, Site Furniture and Facilities, walkways, planting structures,
and fountains or other nonrecreational water features. University Green may be improved with
recreational facilities, including but not limited to Founder's Comer and a croquet court. The use
of the Commons shall be subject to rules and regulations adopted by the Board of Directors which
are not inconsistent with the provisions of this Declaration or any Supplemental Declaration.
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7. ~. Declarant shall convey title to the Parks to a Permitted Title Holder. Unless
the instrument of conveyance provides otherwise, the Corporation shall be responsible for
maintaining the Parks and the Maintenance Costs thereof, together with any costs incurred by the
Corporation in connection with the further improvement thereof, shall be assessed as ~ General
Assessment against all Lots subject to assessment. The Parks maybe improved as appropriate for
recreational and open space areas. The use of the Parks shall be subject to rules and regulations
adopted by the Board of Directors which arenot inconsistent with the provisions of this Declaration
or any Supplemental Declaration.
8. Village Community Buildings. Declarant may, but is not obligated to, construct in
the area designated on the General Plan of Development as the contemplated location thereof the
Meeting House, the Trustees Hall, the Chapel and one or more Recreation Center (which may
include a bath house, swimming pool,. tennis courts and other recreational facilities) and such other
recreational and community facilities as Declarant in its sole discretion believes are justified by the
progress of development of the Development Area If Declarant undertakes the development of one
or more Village Community Buildings,Declarant intends upon completion of construction to convey
the same to a Permitted Title Holder prior to the Applicable Date free and clear of all fmancial
encumbrances and other liens securing indebtedness of Declarant except Community Area Secured
Indebtedness, but subject to the right of Declarant to use the Village Community Buildings as
provided in Paragraph 24(a). Unless the instrument of conveyance provides otherwise, the
Corporation shall be responsible for maintenance of the Village Conununity Buildings and the
Maintenance Costs thereof shall be assessed as a General Assessment against all Lots subject to
assessment. The Board of Directors may adopt such rules and regulations with respect to the use of
the Village Community Buildings as it deems appropriate and may charge reasonable fees for the
use thereof, but no rule, regulation or charge shall be inconsistent with the provisions of this
Declaration or any Supplemental Declaration.
Any Education Facility, including the Education Center, shall be constructed by and be the
sole property of the public or private educational institution which operates the Education Facility
and none of the Corporation, the Association or any Owner shall have any interest therein except as
otherwise specifically provided herein, in a Supplemental Declaration or in an instrument of
conveyance from Declarant to such educational institution.
Declarant may secure indebtedness incurred to finance construction of the Village
Community Buildings and the Common Facilities, or parts thereof, with a mortgage Hen(s) on all
or some of the Village Community Buildings; provided that-the aggregate original principal amount
of the indebtedness secured by such lien(s) shall not exceed Two Million Dollars ($2,000,000.00).
9. Drainage Svstetn. The Drainage System has or will be constructed for the purpose
of controlling drainage within and adjacent to the Development Area and maintaining the water level
in the Lake and the Ponds. The Corporation shall maintain the Drainage System to the extent not
maintained by the Drainage Board and the Maintenance Costs thereof shall be assessed against all
Lots subject to assessment serviced by that part of the Drainage System with respect to which
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Maintenance Costs are incurred. Each Owner shall be individually liable for the cost of maintenance
of any drainage system located entirely upon his Lot and which is devoted exclusively to drainage
of his Lot and is not maintained by the Drainage Board.
10. Common Lighting. Declarant may, but is not obligated to, install Common Lighting
in WestClay and may reserve easements for such purpose .over and across Lots. If installed, the
Corporation shall operate and maintain the Common Lighting andt unless otherwise provided in a
Supplemental Declaration, the Maintenance Costs thereof shall be assessed as a General or Parcel
Assessment against all Lots subject to assessment.
11. Paths and Path Lights. Declarant may, but is not obligated to, install the Paths and
Path Lights at the approximate locations depicted on the General Plan of Development and may
reserve easements for such purpose over and across Lots. If installed, the Corporation shall operate
and maintain the Paths and Path Lights and the Maintenance Costs thereof shall be assessed as a
General Assessment against all Lots subject to assessment. The Board of Directors may adopt such
rules and regulations with respect to the use of the Paths as it may deem appropriate inchiding but
not limited to the prohibition of the use of all or some of the Paths by bicycles, skateboards and/or
motorized or non-motorized vehicles.
12. Private Drives and Private Gates.
(a) Maintenance of Private Drives (Exclusive. of Alleys). Unless
otherwise provided in.a Supplemental Declaration, each Private Drive (exclusive of
alleys) shall be owned by the Corporation and maintained by the Corporation in good
condition satisfactory for the purpose for which it was constructed. The Maintenance
Costs incurred by the Corporation in maintaining a Private Drive shall be assessed
against all Lots whose principal means of vehicular access to a public right-of.way
or to the Village Center is over and across such Private Drive. Estimated
Maintenance Costs. including.acontribution to a reserve fund for future maintenance,
repair and replacement of Private Drives. shall be included in each annual budget of
the Corporation adopted pursuant to Paragraph 19(1).
(b) Maintenance of Alleys. Unless otherwise provided in a Supplemental
Declaration. the Corporation shall maintain all alleys and the Maintenance Costs
incurred for such maintenance shall be assessed against all Lots served by alleys.
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(c) Maintenance of Private Gates. Private Gates shall be maintained by
the Corporation. The Maintenance Costs incurred by the Corporation in maintaining
Private Gates shall be assessed against all Lots whose principal access to a public
right-of-way or to the Village Center is through a Private Gate.
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13.
Entry Ways. Landscave Easements and Planting Areas.
(a) En1J:y Ways. The Corporation shall maintain the Entry Ways
and all improvements and plantings thereon, and the Maintenance Costs
thereof shall be assessed as a General Assessment against all Lots subject to
assessment. Grass~ trees~ shrubs and other plantings located on an Entry Way
shall be kept neatly cut, cultivated or trimmed as reasonably required to
maintain an attractive entrance to WestClay or a part thereof. All entrance
signs located on an Entry Way shall be maintained at all times in good and
sightly condition_ appropriate to a first-class residential community.
(b) LandscapeEasements. Unless the Board of Directors (of the
Corporation or the Association, as applicable) determines that all or some of
the Landscape Easements shall be maintained by the Corporation and/or the
Association and the Maintenance Costs thereof aSsessed as a General or
Parcel Assessment, the Owner of each Lot upon which a Landscape Easement
is located shall at hislher expense keep the grass, trees, shrubs and other
plantings located on a Landscape Easement properly irrigated and neatly cut,
cultivated or trimmed as reasonably necessary to maintain the same at all
times in a good and sightly condition appropriate to a tirst-classresidential
subdivision and~ if such Owner fails to do so, the Corporation or the
Association~ as applicable, may undertake such maintenance and assess the
Maintenance Costs thereof as a Special Assessment against such Lot.
(c) 'Planting Areas. Following the expiration of the Warranty
Period, the Corporation (or, if the Village Center Supplemental Declaration
so provides with respect'toPlanting Areas in the Village Center Parcel, the
Association) shall maintain the Planting Areas and the Maintenance Costs
thereofshall be assessed as a General or Parcel Assessment.
14. Site Furniture and Eacilities. Declarant may, but is not obligated to, construct, install
or place Site Furniture and Facilities in WestClay. If it does so, title thereto shall be conveyed to a
Permitted Title Holder. After conveyance to a Permitted Title Holder, unless otherwise specified
in the instrument of conveyance, the Corporation (or, if the Village Center Supplemental Declaration
so provides with respect to Site Furniture and Facilities in the Village Center Parcel, the Association)
shall maintain the Site Furniture and Facilities and the Maintenance Costs thereof shall be assessed
as a General or Parcel Assessment.
15. Round-Abouts and Street Trees.
(a) Round-Abouts. The Corporation shall maintain the ROWld-Abouts
(exclusive of the street pavement, curbs and drainage structures and tiles unless they
constitute a part of a Private Drive), and the Maintenance Costs thereof shall be
assessed as a General or Parcel Assessment.
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(b) Street Trees. Declarant shall plant Street Trees within Planting Areas
adj acent to such of the Principal Streets as are constructed by Declarant and in
Community Areas adjacent to other streets constructed in WestClay. Each Owner
shall, within the time specified in the Building Guidelines, plant within a Planting
Area adjacent to the Owner's Lot that number of Street Trees as are depicted on such
Lot on the Development Plan, such Street Trees to be of a size and species designated
by the Architectural Review Board or the Design Review Board, as applicable, and
to be planted at locations specified on the landscaping plan submitted by the Owner
to and approved by the applicable Board. Declarant, the Corporation or the
Association may plant additional Street Trees on any Lot.
(c) Maintenance of Street Trees. During the Warranty Period, all dead
or dying Street Trees, installed new, transplanted, or designated on the Lot
Development Plan as existing trees to be retained, shall be replaced by the person
responsible for causing such Street Trees to be planted. Following the expiration of
the Warranty Period for a. StreetTree, unless otherwise provided in a Supplemental
Declaration, the Corporation shall maintain and, if necessary, replace the Street Tree,
and the Maintenance Cost thereof shall be assessed as a General Assessment against
all Lots subject to Assessment.
16. Common Parking Lots. Declarant shall construct such Common Parking Lots as it
deems desirable. The Association shall maintain the Common Parking Lots located in the Village
Center, including the exterior and .interior landscaping required by the Zoning Ordinance, and the
Maintenance Costs thereof shall be assessed as a Parcel Assessment as provided in the Village
Center Supplemental Declaration. The Corporation shall maintain all other Common Parking Lots,
including the exterior and, interior landscaping required by the Zoning Ordinance, and the
Maintenance Costs thereof shall be assessed against all Lots which derive a substantial benefit from
the availability of parking in such other Common Parking Lots, as determined in the reasonable
discretion of the Board of Directors of the Corporation. The Association may allocate to the
Corporation a portion of the Maintenance Costs of Common Parking Lots in the Village Center
which serve a Village Community Building as provided in the Village Center Supplemental
Declaration and the amount so allocated shall be included in the General Assessment against all
Residential Lots subject to assessment.
17. Open Space. A Permitted Title Holder shall not change the use of any Park,
Commons or other area designated by Declarant as open space conveyed to the Permitted Title
Holder by Declarant from the use being. made thereof at the time of conveyance without the prior
consent or approval of the Zoning Authority.
18. Village of WestClay Owners Association. Inc.
(a) Membership. Each Owner shall automatically be a Member and shall
enjoy the privileges and be bound by the obligations contained in the Articles and
By-Laws. If a Person would realize upon his security and become an Owner, he shall
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then be subject to all the requirements and limitations imposed by this Declaration
on other Owners, including those provisions with respect to the payment of
Assessments.
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(b) Powers. The Corporation shall have such powers as are set forth in
this Declaration, all Supplemental. Declarations and in the Articles, together with all
other powers that belong to it by law.
(c)
Members.
Classes of Members. The Corporation shall have a single class of
(d) V otin~ and Other Rights of Members. The voting and other rights of
Members shall be as specified in the Articles and By-Laws; provided, however, that
the Owners of Lotsoin each Electoral Parcel shall be entitled to elect a Person to serve
as a Director representing such Electoral Parcel on the Board of Directors in the
manner specified in the Code of By-Laws of the Corporation.
(e) Reserve for R~lacements. The Board of Directors shall establish and
maintain the Reserve for Replacements by the allocation .and payment to such reserve
fund of an amoWlt determined annually by the Boardto be sufficient to meet the cost
of periodic maintenance, repair, renewal and replacement of the Community Area
and the Common Facilities to the extent the Corporation is responsible for the
maintenance thereof. In determining the amount, the Board shall take into
consideration the expected useful life of the Community Area and the Common
Facilities, projected increases in the cost of materials and labor, interest to be earned
by such fund and the advice of Declarant or such consultants as the Board may
employ. The Reserve for Replacements shall be deposited in a special account with
a lending institution the accounts of which are insured by an agency of the United
States of America or may, in the discretion of the Board,. be invested in obligations
of, or fully guaranteed as to principal by, the United States of America. Prior to the
Applicable Date, funds from the Reserve for Replacements may be withdrawn and
applied at the direction of Declarant to meet the costs of periodic maintenance,
repairs, renewal or replacement of the Community Area and the Cornmon Facilities.
(f) Debt Service Account. The Board of Directors shall establish and
maintain a separate account for the payment of principal, interest and other charges
on account of Community Area Secured Indebtedness. Community Area Debt
Service Assessments shall be deposited to said accouht and disbursed solely for the
purpose of payments on account of Community Area Secured Indebtedness. The
debt service account. shall be maintained in a lending institution the accounts of
which are insured by an agency of the United States of America or may, in the
discretion of the Board, be invested in obligations of, or fully guaranteed as to
principal by, the United States of America. Prior to the Applicable Date, funds from
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the debt service account may be withdrawn and applied at the direction of Declarant
to make payments on account of Community Area Secured Indebtedness.
(g) Maintenance Standards. In each instance in which this Declaration
or a Supplemental Declaration imposes on the Corporation a maintenance obligation
with respect to the Community Area or the Cornmon Facilities or a part thereof, the
Corporation,shall maintain the Community Area, Common Facilities or designated
part thereof in good condition, order and repair substantially comparable to its
condition when originally constructed, installed or planted and compatible in
appearance and utility with a fust-Class residential community. Grass, trees, shrubs
and other plantings located on the Community Area for which the Corporation has
maintenance responsibility shall be kept properly irrigated and neatly cut. cultivated
or trimmed as reasonably required and otherwise maintained at all times in good and
sightly condition appropriate to a first-class residential community. In each fiscal
year subsequent to the Applicable Date the Corporation shall make expendittrres to
Maintain the Community Area and Common Facilities located in the Village Center
in an amount not less than the Village Center Maintenance Amount established
pursuant to Paragraph 19(1)(3).
(h) Insurance. Taxes and Utilities. The Corporation shall maintain public
tiability and casualty insmance in prudent amounts insuring against risk of loss to the
Corporation on account of injury to person or property and damage to property
owned by the Corporation and shall pay all taxes assessed against such property and
all utility charges incurred with respect to Comrriunity Area for which the
Corporation has maintenance responsibility.
(i) Limitations on Action by the Co:c:poration. Unless at least two-thirds
(2/3) of the Mortgagees (based on one vote for each.first mortgage owned) or two-
thirds (2/3) ofthe Members have given their prior 'Written approval, a Permitted Title
Holder, the Board of Directors and the Owners may not: (i) except as authorized by
Paragraph 21(a) (but subject to the limitations of Paragraph 17), by actor omission
seek to abandon, partition, subdivide, encumber, 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 and Common Facilities on a current replacement cost
basis in the amount of one hundred percent (100%) of the insurable value (based on
current replacement cost); (iii) use hazard insurance proceeds for losses to any
Community Area or Common Facilities for other than the repair, replacement or
reconstruction of the Community Area or Common Facilities; (iv) subject to
Paragraph 19(b )(ii)(5), the last sentence of Paragraph 19(b)(iv) and 19(1)(iii), change
the method of determining the obligations, Assessments, dues or other charges that
may be levied against the Owner of a Unit; (v) by actor omission change. waive or
abandon any scheme of regulations or their enforcement pertaining to the
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architectural design or the exterior appearance of Units, or the maintenance and
upkeep of the Community Area and Common Facilities; or (vi) fail to maintain the
Reserve for Replacements in the amount required by this Declaration or any
Supplemental Declaration.
G) Mergers. Upon a merger or consolidation of another corporation with
the Corporation, its properties, rights and obligations may, as provided in its articles
of incorporation, by operation of law be transferred to another surviving or
consolidated corporation or, alternatively, the properties, rights and obligations of
another corporation may by operation of law be added to the properties, rights and
obligations of the Corporation as a surviving corporation pursuant to a merger. The
surviving or consolidated corporation may administer the covenants and restrictions
established by this Declaration within the Tract together with the covenants and
restrictions established upon any other properties as one scheme. No merger or
consolidation, however, shall effect any revocation, change or addition to the
covenants established by this Declaration within the Tract except as hereinafter
provided.
19. Assessments.
(a) Creation of the Lien and Personal Obligation of Assessments.
Declarant hereby covenants, and each Owner of any Lot by acceptance of a deed
thereto, whether or not it shall be so expressed in such deed, is deemed to covenant
and agree to pay to the Corporation the following: (1) General Assessments, (2) the
Community Area Initial Assessment, (3) Community Area Debt Service
Assessments, (4) annual and special Parcel Assessments, (5) Architectural Control
Assessments (to the extent levied) and (6) Special Assessments, such Assessments
to be established and collected as hereinafter provided.
If two (2) ormore Lots originally shown on a Plat are consolidated as a single
Lot by virtue of partial vacation of a Plat, or if a Lot is divided by conveyance of
portions thereof to owners of adjacent Lots, then, in either such event, so long as the
consolidated or divided Lot is used in its entirety by one or more Owners of
contiguous Lots, the vacated or divided Lot(s) shall cease to be Lot(s) for purposes
of Assessments under this Paragraph 19.
All Assessments, together with interest thereon and costs of collection
thereof, shall be a charge on the land and shall be a continuing lien upon the Lot
against which each Assessment is made until paid infull. Each Assessment, together
with interest thereon and costs of collection thereof, shall also be the personal
obligation of the Person who was the Owner of the Lot at the time when the
Assessment became due.
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(b) General Assessment.
(i) PUll'ose of Assessment. The General Assessment
levied by the Corporation shall be used exclusively to promote the
recreation, health, safety, and welfare of the O\Wers of Lots and
Occupants of Units and for the improvement, maintenance, repair,
replacement and operation of the Community Area and Common
Facilities.
(ii) Basis for Assessment.
(1) Residential Lots. Subject to
subparagraph (h) below, each Residential Lot shall be
assessed at a uniform rate without regard to whether
a Living Unit or other improvements have been
constructed upon the Lot, except that if no Living
Unit has been constructed on the Lot, the Corpomtion
shall waive with respect to such undeveloped Lot that
part of any Assessment that is attributable to services
(such as trash removal) that are provided only with
respect to improved Lots.
(2) Commercial Lots.
(A) Subject to subparagraph (h)
below, each unimproved Commercial Lot shall be
assessed at a uniform rate without _regard to whether
a Commercial Unit, Multifamily Structure or Multiuse
StrUcture has been constructed upon the Lot, except
that the Corporation shall waive with respect to such
undeveloped Lot that part of any Assessment that is
attributable to services (such as trash removal) that are
provided only with respect to improved Lots.
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(B) Each Commercial Lot upon
which a Multifamily Structure has been constructed
shall be assessed at a rate equitably determined by the
Board of Directors which takes into account the
number of Living Units located on the Lot and the
rights of Occupants of such Living Units to the use
and enjoyment of the Community Area. The General
Assessment for any such Lot shall not exceed the
product of (i) the number of Living Units located on
the Lot and (ii) seventy-five percent (75%) of the
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amount of the General Assessment for Residential
Lots established on the basis set forth in Clause (1)
above if Occupants have a right to use the Recreation
Centers or, if Occupants do not have such right, fifty
percent (50%) of the amount of the General
Assessment for Residential Lots. Owners of
Multifamily Structures may elect not to be subject to
assessment on account of Maintenance Costs of
Recreation Centers in which event Occupants of such
Multifamily Structures shall not have a right to use the
Recreation Centers.
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(C) Each Commercial Lot
improved with one or more Commercial Units (not
located in. a Multiuse Structure) shall be assessed at a
rate which bears the same proportion to all other
improved Commercial Lots ( other than those
improved with Multifamily Structures) as the gross
square footage of the Commercial Unites) located on
such Lot bears to the gross square footage of all
Commercial Units.
(D) Each Commercial Lot
improved with a Multiuse Structure shall be assessed
as follows: with respect to that part of the Multiuse
Structure that consists of one or more Commercial
Units, in the same manner as specified in subclause
(C) above; and with respect to that part of the
Multiuse Structure that consists of one or more Living
Units, in the same manner as specified in subclause
(B) above.
(E) The General Assessment for
any unimproved Commercial Lot shall not exceed the
amount of the General Assessment for unimproved
ResideJ:.1tial Lots in the Primary Area
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(F) The General Assessment for
any Commercial Lot upon which one or more
Commercial Units have been constructed (including
Commercial Units located in a Multiuse Structure)
shall not exceed the product of (i) the result obtained
by dividing the gross square footage of the
Commercial Unit by two thousand five hundred
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(2,500) and (ii) the amount of the General Assessment
established for Residential Lots on the basis set forth
in Clause (1) above.
(G) The General Assessment for
any Commercial Lot on which a Multiuse Structure
has been constructed shall not, with respect to Living
Units located therein, exceed the amount specified in
subclause (B) above.
(3). Lots Owned by Declarant or Permitted
Title Holder. Notwithstanding" the foregoing
provisions of this subparagraph (ii), no Lot owned by
Declarant or a Permitted Title Holder shall be
assessed by the Corporation except such Lots as have
been improved by the construction thereon of Units,
which improvedLots shall be subject to assessment as
provided in Clauses (1) or (2) above; provided,
however, Lots improved by the construction thereon
of Village Community Buildings or an Education
Facility shall in no event be subject to Assessments.
(4) Condominiums. Condominiums shall
be separately assessed as a Lot applying the provisions
of the foregoing Clauses (1) and (2). If a Multiuse
Structure is a Horizontal Property Regime, then each
Condominium therein shall be separately assessed
applying" the provisions of the foregoing Clauses (1)
and (2).
(5) Chan~e in Basis. The basis for
assessment may be changed upon recommendation.of
the Board of Directors if such change is approved by
(i) two.thirds (2/3) of the Members 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 Members duly called for this
purpose; provided, however, if a proposed change
would adversely ,affect the Owners of a particular
class of property, such change in the basis for
assessment may be made only if approved by a
majority of the Owners adversely affected. For
purposes of this Clause (5), "classes of property"
include Living" Units not located in a Multifamily
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Structure ar Multiuse Structure, Multifamily
Structures, Multiuse Structures and Co.mniercial Units
nat lo.cated in a Multiuse Structure, each as a separate
class.
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(iii) Metho.d o.f Assessment. By a vate afamajo.rity afthe
Directo.rs, the Bo.ard o.f Directars shall, an the basis specified in
subparagraph (ii), fIx the General Assessment far each assessment
year af the Corparatian at an amo.unt sufficient to. meet the
abligatians impased by this Declaratio.n and all Supplemental
Declaratio.ns upon the Carporation, including but limited to. the
o.bligatio.n to. ma4ltainthe Cammunity Area and Camman Facilities
in the Village Center in accardance with the budget far Village Center
Maintenance Casts established in accardance with Paragraph 19(1)(3)
belaw. The Baard o.fDirectors shall establish the date(s) the General
Assessment shall became due, and the manner in which it shall be
paid.
(iv) Allacatian of Assessment Certain af the casts of
maintaining,aperating, restaring or replacing the Cammunity Area
and Camman Facilities may be allacated amang Owners of Lots an
the basis afthe lacatian afthe lands and improvements canstituting
the Cammunity Area and Camman Facilities and the, intended use
thereof. In determining the General Assessment, casts and expenses
which in accardance with the pravisians af this Declaratian ar a
Supplemental Declaratian are to. be bame by all Owners shall fIrst be
allacated to. all Owners.. Costs and expenses which in accardance
with the pro.visians af this Declaratian ar a Supplemental Declaratian
are to. be bame by the Owners af certain Lats shall then be allacated
to. the Owners of such Lats. The pro.visians afsubparagraph (ii) shall
nat be deemed to. require that all Assessments against vacant Lots ar
Lats impraved with camparable types of Units, Multifamily
Structures ar Multiuse Structures be equal. but anly that each Lot be
assessed unifarmly 'vVith respect to. camparable Lats subject to.
assessment far similar casts and expenses. Any category af
Maintenance Cast included in the Village Center Maintenance
Amount that was allacated to. all Owners priar to the Applicable Date
shall be allacated to. all Owners subsequent to the Applicable Date.
Costs aftrash removal and ather services provided by the Carparatian
to. individual Lats shall not be included in the General Assessment of
any Lat the Owner af which has elected to obtain the same service
directly fram a service provider.
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(c) Community Area Initial Assessment. Unless otherwise provided in
a Supplemental Declaration, on the earlier of (i) the date a Lot is conveyed by
Declarant to an Owner (other than the holder of a fIrst mortgage on such Lot in a
conveyance which constitutes a deed in lieu of foreclosUre), (ii) the date a Unit
constructed on the Lot has been certified for occupancy by the Zoning Authority or
(iii) the date a Unit on the .Lot is first occupied by an Owner or Occupant upon
completion of construction thereof, there shall be due and payable to the Corporation
by the Owner of such Lot the following sum which shall. be deposited in the Reserve
for Replacements maintained by the Corporation:
(i) a Lot on which a detached or an
attached single-family residence is to
be constructed, the sum of Three
Hundred Dollars ($300.00);
(ii) a Lot on which a detached single.
family residence' together with an
attached or detached accessory
dwelling is to be constructed, the sum
ofFoUT Hundred Dollars ($400.00);
(iii) a Lot on which a detached single-
family residence with an attached or
detached home.based office is to be
constructed, the sum of Five Hundred
Dollars ($500.00);
(iv) a Lot on which a Multifamily
Structure, a Multiuse Structure or a
Horizontal Property Regime is to be
constructed, an amount equal to the
greater of Six Hundred Dollars
($600.00) or the product of (y) the
number of Living Units to be
constructed in such Multifamily
Structure, Multiuse Strocture or
Horizontal Property Regime and (z)
One Hundred Dollars ($100.00); and
(v) a Lot on which a Commercial Unit is
to be constructed, the sum of One
Hundred Dollars ($100.00) for each
one thousand (1,000) square feet or
,portion thereof of gross floor area for
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the building or buildings constructed
or authorized to be constructed
thereon which, in the case of a
Multiuse Structure, are to be used as
Commercial Units.
(d) Community Area Debt Service Assessment. Ifany Community Area
Secured Indebtedness is outstanding, the Corporation shall levy a Community Area
Debt Service Assessment against each Lot (other thanaLot exempt from the General
Assessment pursuant to subparagraph (b)(ii)(3) above) in an amount established by
the Board of Directors which is sufficient to meet all debt service requirements on
such indebtedness but does not exceed, in any fiscal year of the Corporation, an
amount equal to one quarter of one percent (0.0025%) ofthe original sales price of
the Lot. Declarant shall certify to the Corporation upon sale of each Lot the original
sales price of such Lot. The Community Area Debt Service Assessment shall be held
and disbursed in accordance with the provisions of Paragraph 18(t).
(e) Parcel Assessments.
(i) Pw:pose of Assessments. Parcel Assessments shall be
used for such purposes as are authorized by the Supplemental
Declaration for such Parcel.
(ii) Method of Assessment. An annual Parcel Assessment
shall be levied by the Corporation against Lots in a Parcel (except the
Village Center Parcel or a Parcel which is a Horizontal Property
Regime) using the basis set forth in the Supplemental Declaration for
such Parcel, and collected and disbursed by the Corporation. The
Board of Directors shall fix in accordance with the By,.Laws and the
provisions of any Supplemental Declaration the annual Parcel
Assessment for each Parcel, the date(s) such Assessment shall
become due, and the manner in which it shall be paid.
(Hi) Special Assessments. In addition to the annual Parcel
Assessment, the Corporation may levy in any fiscal year a special
Parcel Assessment against one or more of the Lots in a Parcel (except
the Village Center Parcel or a Parcel which is a Horizontal Property
Regime) for the purpose of (A) defraying, in whole orin part, the cost
of any construction, reconstruction, repair or replacement of a capital
improvement upon the Parcel, including fixtures and personal
property related thereto, provided that any such Assessment shall
have the assent ofa majority of the Owners of Lots in. the Parcel who
are voting in person or by proxy at a meeting of such Owners duly
called for this purpose- or (B) defraying any Maintenance Costs
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incurred in satisfying any requirements imposed on the Corporation
by a Supplemental Declaration relating to a Parcel. Any Special
Assessment pursuant to this clause (iii) shall be allocated equally
among all Lots in the Parcel except those exempt from the General
Assessment.
(f) ArchitecturaI Control Assessment. If any Owner or Person acting faT
or on behalf of, or pursuant to the authorization or acquiescence of, an Owner fails
to comply with Building. Guidelines or other requirements for construction of
improvements, landscaping and other Building Activities or maintenance of a Lot
(including but not limited to installation of required Street Trees or the filing of a Lot
Development Plan) or any restrictive covenant or condition specified in a
Supplemental Declaration for the Parcel in which such Owner's Lot is located
(exclusive of the Village Center Parcel) andlor the provisions of Paragraphs 20 or 22
of this Declaration, then the Corporation may levy against the Lot owned by such
Owner an Assessment in an amount determined by the Board of Directors which does
not exceed the greater of (i) Five Hundred Dollars ($500.00) for each day that such
failure continues after written notice thereof is given by Declarant or: the Corporation
to such Owner or (ii) One Hundred Thousand Dollars ($100,000.00). Such
Assessment shall constitute a lien upon the Lot of such Owner and may be enforced
in the manner provided in subparagraph (i) below. The levy of an Architectural
Control Assessment shall be in addition to, and not fu lieu of, any other remedies
available to Declarant and/or the Corporation provided in this Declaration, at law or
in equity in the case of the failure of an Owner to comply with the provisions of this
Declaration and aU applicable Supplemental Declarations (exclusive of the Village
Center Supplemental Declaration).
(g) Special Assessment. In addition to such other Special Assessments
as may be authorized herein, the Corporation may levy in any fiscal year a Special
Assessment applicable to that year and not more than the next four (4) succeeding
fiscal years for the purpose of defraying, in whole or in part, the cost of any
construction, repair, or replacement of a capital improvement upon the Community
Area, including fixtures and personal property relating thereto or any Common
Facilities, provided that any such Assessment shall have the assent of a majority of
the votes of the Members whose Lots are subject to assessment with respect to the
capital improvement who are voting in person or by proxy at a meeting of Members
dilly called for this purpose. Any Special. Assessment pursuant to this subparagraph
(g) shall be allocated equally among all Lots in the Tract except those exempt from
the General Assessment.
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(h) Date of Commencement of Assessments. The General Assessment
and Parcel Assessments (exclusive of Parcel Assessments applicable to Commercial
Lots in the Village Center Parcel) shall commence with respect to assessable Lots
within a Parcel on the first day of the month following conveyance of the first Lot in
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the Parcel to an O\VIler who is not Declarant. The initial Assessment on any
assessable Lot shall be adjusted according to the days remaining in the month in
which the Lot became subject to assessment. Notwithstanding the foregoing, if an
Owner owns more than two (2) unimproved Residential Lots or one (1) Qr more
unimprQved Commercial LQts, the General Assessment shall not commence with
respect tQ such unimproved Lot(s) until the earlier of (i) the date the Owner
completes construction of a Unit, Multifamily Structure or Multiuse Structure
thereon or (ii) theflrst day of the ninth month following the date the Owner acquired
title to the Lot(s).
(i) Effect ofNon.pavrnent of Assessments: Remedies of the Cox:poration.
Any Assessment not paid within thirty (30) days after the due date may upon
resolution of the Board of Directors bear interest from the d:ue 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 COIporation in collecting such Assessment. If the Corporation has provided
for collection of any Assessment in installments, upon default in the payment of any
Qne Qr mQre 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 nQnuse of the
Community Area or the Common Facilities or abandorunent of his Lot.
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G) Subordination of the Lien to Mortga!!es. To the extent specified
herein, the lien of the Assessments provided for herein against a Lot shall be
subordinate to the lien of any recorded first mortgage covering such Lot and to any
valid tax or special assessment lien Qn such Lot infavor of any governmental taxing
or assessing authority. Sale or transfer of any Lot shall not.affectthe assessment lien.
The sale or transfer of any Lot pursuant to mortgage foreclQsure 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.
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(k) Certificates. The Corporation shall, upon demand by an Owner, at any
time, furnish a certificate in writing signed by an officer of the Corporation that the
Assessments on a Lot have been paid or that certain Assessments remain unpaid, as
the case may be.
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(1)
Annual Budget.
(1) Adoption of Budget. By a majority vote of the
Directors, the Board of Directors shall adopt an
annual budget for the subsequent ftscal year, which
shall provide for allocation of expenses in such a
manner that the obligations imposed on the
Corporation by the Declaration and all Supplemental
Declarations will be met.
(2) Certification of Village Center Maintenance
~. On or before the Applicable Date, Declarant
shall certify to the Corporation the annual
Maintenance Costs with respect to the Community
Area within the Village Center incurred by the
Corporation and Declarant for each of the two (2)
fiscal years prior to the Applicable Date and incurred
or to be incurred for the fiscal year in which the
Applicable Date occurs. The sum of such amount
divided by three{3) shall constitute the uBase Village
Center Maintenance Amount."
(3) Village Center Budget. The annual budget
adopted pursuant to subparagraph (a) above for each
fiscal year subsequent to the fiscal year in which the
Applicable Date occurs shall include an. amount which
is not less than the sum of (i) the Base Village Center
Maintenance Amount and (ii) the product of (A) the
Base Village Center Amount and (B) the difference
between the Consumer Price Index for All Urban
Consumers (All Items) ("Index") published by the
Bureau of Labor Statistics of the United States
Department of Labor (or any generally accepted
substitute for such index if it is no longer published)
for the preceding fiscal year and the Index for the year
prior to the year in which the Applicable Date occurs.
The amount thus determined each year is referred to
as the "Village Center Maintenance Amount." In
establishing the annual budget. the Board of Directors
shall give good faith consideration to the amount
recommended by the Association to be included
therein to Maintain the Village Center.
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20. Architectural Control.
(a) The Architectural Review Board. An Architectural Review Board
consisting of three (3) or more Persons as specified in the By-Laws shall, prior to the
Applicable Date, be appointed by Declarant. Thereafter, the Architectural Review
Board shall be appointed by the Board of Directors of the Corporation.
(b) PUl:Pose. The Architectural. Review Board shall regulate the external
design, appearance, use, location and maintenance of the Tract (exclusive of the
Village Center Parcel) and of all improvements thereon in such manner as to preserve
and enhance values, to maintain a harmonious relationship among structures,
improvements and the natural vegetation and topography, to implement the
development standards and guidelines set forth in the Zoning Ordinance and to assure
compliance with the Building Guidelines established by Declarant or the
Architectural Review Board for WestClay (exclusive of the Village Center Parcel).
(c) Building Activity. Except as otherwise expressiy provided in this
Declaration or a Supplemental Declaration, and excluding from the provisions of this
Paragraph 20 all Commercial Lots located in the Village Center Parcel, no
improvements, alterations, repairs, change of colors, excavations, changes in grade,
planting, installation or modification of signage or other workthat in any way alters
any Lot or the exterior of the improvements located thereon from its natural or
improved state existing on the date such Lot was first conveyed in fee by Declarant
to another Owner (including, but not limited to, (i) construction. erection or alteration
of any Unit, Multifamily Structure, Multiuse Structure, other building, fixture,
equipment, fence, wall, deck, swimming pool, ball court, patio, parking area, or other
structure on a Lot, or: (ii) any plantings, other landscaping or exterior lighting on a
Lot, (iii) the installation or alteration of any signage on any Lot, Unit, Multifamily
Structure or Multiuse Structure, or (iv) the removal of any Significant Tree from a
.Lot, shall be made or done without the prior approval of the Architectural Review
Board of a Lot Development Plan therefor. Prior to commencement by any Owner
other than Declarant of any Building Activity a Lot Development Plan with respect
thereto shall be submitted to the Architectural Review Board., and no Building
Acti vity shall be commenced or continued by any Person other than Declarant
without the prior written approval of the Architectural Review Board of a Lot
Development Plan relating to such Building Activity. Such approval shall be in
addition to, and not in lieu of, all approvals, consents, pennits and/or variances
required by law from governmental authorities having jurisdiction over WestClay,
and no Owner shall" undertake any construction activity within WestClay unless all
legal requirements have been satisfied. Approval by the Architectural Review Board
of a Lot Development Plan shall not be deemed to imply compliance with approvals,
consents, permits and/or variances required by law from governmental authorities
having jurisdiction over the Tract. Each Owner shall complete all improvements to
a Lot ~trictly in accordance with the Lot Development Plan approved by the
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Architectural Review Board. As used in this subparagraph (c), "plantings" does not
include flowers, bushes, shrubs or other plants having a height of less than eighteen
(18) inches.
(d) Procedures. In the event the Architectural Review Board fails to
approve, modify or disapprove in writing a Lot Development Plan within sixty (60)
days after notice of such plan has been duly filed with the Architectural Review
Board in accordance with procedures established by Declarant or, .subsequent to the
Applicable Date, the Board of Directors, approval will be deemed denied. A decision
of the Architectural Review Board (including a denial resulting from the failure of
such Board to act on the plan within the specified period) may be appealed to the
Board of Directors which may reverse or modify such decision (including approve
a Lot Development Plan deemed denied by the failure of the Architectural Review
Board to act on such plan within the specified period) by a two-thirds (2/3) vote of
the Directors then serving.
(e) Guidelines andStandards. The Architectural Review Board shall have
the power to establish and modify from time to time such written architectural,
landscaping, lighting, fencing, recreational facility and signage design guidelines and
standards as it may deem appropriate to achieve the purpose set forth in subparagraph
(b) to the extent that such design guidelines and standards are not in conflict with the
specific provisions of this Declaration, the Zoning Ordinance or, prior to the
Applicable Date, the Building Guidelines established by Declarant. Any such
guideline or standard may be appealed to the Board of Directors which may terminate
or modify such guideline or standard bya two-thirds (213) vote of the Directors then
serving. The Building Guidelines may establish different standards and requirements
for various Lots within WestClay based on the size, location and use of such Lots and
the improvements to be located thereon.
(f) Application of Guidelines and Standards. The Architectural Review
Board shall apply the Building Guidelines in a fair, uniform and reasonable manner
consistent with the discretion inherent in the design review process. In disapproving
any Lot Development Plan, the Architectural Review Board shall furnish the
applicant with specific reasons for such disapproval and may suggest modifications
in such plan which would render the plan acceptable to the Board if resubmitted.
(g) Desi~ Consultants. The Architectural Review Board may utilize the
services of architects, engineers and other Persons possessing design expertise and
experience in evaluating Lot Development Plans. No preswnption of any conflict of
interest or impropriety shall be drawn or assumed by virtue of the fact that any of
such consultants are affiliated with Declarant or a Designated Builder or may, from
time to time, represent Persons filing Lot Development Plans with the Architectural
Review Board.
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(h) Existin~ Violations of Declaration. The Architectural Review Board
shall not be required to consider any Lot Development Plan submitted by an Owner
who is, at the time of submission of such Lot DevelopmentPlan, in violation of the
requirements of a Supplemental Declaration relating to the Parcel in which such
Owner's Lot is located and/or the provisions of the Zoning Ordinance or this
Paragraph 20, unless such Owner submits to the Architectural Review Board with
such Lot Development Plan an irrevocable agreement and undertaking (with such
surety as the Board may reasonably require) to remove from the Owner's Lot any
improvements, landscaping, exterior lighting or signage constructed andlor installed
prior to the submission. of a Lot Development Plan (or constructed and/or installed
in violation of a previously approved Lot Development Plan) to the extent any such
previously constructed and/or installed improvement, landscaping, exterior lighting
or signage is not subsequently approved by the Architectural Review Board. The
Architectural Review Board shall have the power to recommend to the Board of
Directors that the Corporation assess an Architectural Control Assessment against
any Owner who fails to comply with the requirements of a Supplemental Declaration
(other than the Village Center Supplemental Declaration), Paragraph 20 of this
Declaration or the provisions of the Zoning Ordinance. Under no circumstances shall
any action or inaction of the Architectural Review Board he deemed to be
unreasonable, arbitrary or capricious if, at the time of such decision, the Person
having submitted a Lot Development Plan for 'approval by the Architectural Review
Board has violated a Supplemental Declaration, Paragraph 20 of this Declaration or
the provisions of the Zomng Ordinance and such violation remains uncured.
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(i) Exercise of Di~cretion. Declarant intends that the members of the
Architectural Review Board exercise discretion in the performance of their duties
consistent with the provisions of subparagraph (f),and every Owner by the purchase
of a Lot shall be conclusively presumed to have consented to the exercise of
discretion by such 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 anabuse of discretion.
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G) Liability of Board. Neither the Architectural Review Board or any
member or agent thereof, nor Declarant shall be responsible in any way for any
defects in any plans, specifications or other materials submitted to it, nor for any
defects in any work done according thereto. Further, the Board does not make, and
shall not be deemed by virtue of any action of approval or disapproval taken by it to
have made, any representation or warranty as to the suitability or advisability of the
design, the engineering, the method of construction involved, or the materials to be
used.
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(k) Inspection. Members of the Architectural Review Board may inspect
work being performed to assure compliance with these Restrictions and applicable
regulations.
21. rornmunitv Area and Common Facilities.
(a) Q:wnerslUp. The Community Area and the Common Facilities shall
remain private, and neither Declarant's execution or recording of an instrument
portraying the Community Area, nor the doing of any other act by Declarant is, or is
intended to be, or shall be construed as, a dedication to the public of the Community
Area or the Common Facilities. Declarant, the Corporation or the Association may,
however. dedicate or transfer all or any part of the Community Area or the Common
Facilities to any Pennitted Title Holder for parks or other public purposes. to the City
of Carmel or the County of Hamilton for use as public rights-of-way or to a public
utility for public utility purposes, and Declarant may transfer all or any part of the
Community Area to a Permitted Title Holder as contemplated by this Declaration.
(b) Density of Use. Declarant expressly disclaims .any warranties or
representations regarding the density of use of the Community Area or any facilities
located thereon or constituting a part thereof.
(c) Obligations of1h~ Corporation. The Corporation. subject to the rights
of Declarant, the Association and the Owners set forth in this Declaration and the
rights of any Permitted Title Holder established in an instrument conveying title to
any part of the ComrnonArea, shall be responsible for the exclusive management and
control of the Community Area and all improvements thereon (including Common
Facilities and other furnishings and equipment related thereto). and, except as
otherwise provided herein. in.a Supplemental Declaration, or in an instrument of
conveyance to a Permitted Title Holder, shall keep the Community Area and
Common Facilities in good, clean, attractive and sanitary COIl-clition,. order and repair.
The Corporation may, willi the consent of the Board of Directors <?fthe Association,
transfer to the Association responsibility for management. control and/or
maintenance of Community Area and Common Facilities located in the Village
Center.
(d) Easements'ofEnioyment.
(i) Owners. No Person shall have any right or easement
of enjoyment in or to the Community Area except to the extent
granted by, and subject to the terms and provisions of, this
Declaration or a Supplemental Declaration. Such rights and
easements as are thus granted shall be appurtenant to and shall pass
with the title to every Lot for whose benefit they are granted. Unless
otherwise provided in a Supplemental Declaration or a Plat, all
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Owners may use the Paths, the Village Community Buildings, the
Parks and the Commons and the Site Furniture and Facilities located
thereon or therein, subject to the reserved rights of Declarant, the
Corporation and the Association. The Owners of Lots abutting the
Lake or a Pond may use the Lake or Pond which abuts such Owner's
Lot, but such use shall be limited to fishing and such other uses as
may be authorized by resolution adopted by the Board of Directors.
Subject to restrictions on points of access, the Lake and the Ponds
may be uSed by all Owners, but only for fishing and such other
purposes as may be authorized by the Board of Directors. No Owner
whose Lot does not abut the Lake or a Pond shall have any right of
access to the Lake or a Pond over any Lot, but only such right of
access over the Community Area as may be designated on a PLat or
by the Board of Directors for such purpose.
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(ii) Occupants. Occupants who are not also Owners may
use and enjoy the Community Area only to the extent specified in
subparagraph (f) or as explicitly authorized elsewhere in this
Declaration, in a Supplemental Declaration or by the Board of
Directors. Occupants shall have the same rights as Owners to the use
of the Paths, the Village Community Buildings, the Parks and the
Commons except that the Board of Directors may restrict or preclude
the use of the Recreation Centers by Occupants of Commercial Units
and Multifamily Structures ifno part of the Maintenance Costs of the
Recreation Centers are assessed to Owners of Commercial Units or
Multifamily Structures. To the extent Owners of Lots that do not
abut the Lake or a Pond are granted rights of access to the Lake or a
Pond over Community Area designated for that purpose, Occupants
(other than Occupants of Commercial Units) shall enjoy the same
rights. In the adoption of rules and regulations relating to the use of
Community Area and Common Facilities. the Board of Directors of
the Corporation or Association, as applicable, shall not discriminate
against Occupants of Multifamily Structures or of Living Units
Located in Multiuse Structures but may restrict or preclude use of the
Recreation Centers by such Occupants as heretofore provided.
(e) E}\tent of Eac;;ements. The easements of enjoyment created hereby
shall be subject to the following:
(i) the right of the Corporation and/or the Association to
establish reasonabLe rules for the use of the Community Area
(including but not limited to use of identification cards) and to charge
reasonable fees for the use of any meeting or banquet facilities (but
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not recreational facilities) located in or constituting a part of the
Conununity Area;
(ii) the right of the Corporation and/or the Asso~iation to
suspend the right of an Owner and all Persons whose rigp.t to use the
Paths, the Lake, the Ponds, the Village Community Buildings, the
Commons or the Parks derives from such Owner's ownership of a Lot
(including Occupants of the Lot) to use such portions of the
Community Area for any period during which any Assessment against
the Owner's Lot remains unpaid for more than thirty (30) days after
notice;
(iii) the right of the Corporation and/or the Association to
suspend the right of an Owner or any Person claimiilg through the
Owner (including<Occupants of the Unit) to use the Paths, the Lake,
the Ponds, the Village Community Buildings, the Commons or the
Parks for a period not to exceed sixty (60) consecutive days for any
other infraction of this Declaration, any Supplemental Declaration or
the Register of Regulations; provided, however, that Occupants of a
Multifamily Structure or Multiuse Structure who are not personally
responsible for the infraction and who otherwise have a right of use
shall not be denied such use as a consequence of an infraction by
another Occupant of such Multifamily Structure or Multiuse
StrUcture; provided, however, that a parent may be deemed personally
responsible for the infraction of a minor;
(iv) the rights of the holder of any Common Area Secured
Indebtedness;
(v) the right of the Corporation to mortgage any or all of
the Community Area, the facilities constructed thereon and the
Common Faciliti,~s for the purposes of improvements to, or repair of,
the Community Area, the facilities constructed thereon or the
Common Facilities, pursuant to approval of a majority of the votes of
the Members voting in person or by proxy at a regular meeting of the
Corporation or a meeting duly called for this purpose;
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(vi) the right of the Corporation to dedicate or transfer all
or any part oithe Community Area and/or the Common Facilities to
any public agency, authority or utility exclusively for purposes
permitted here~, but subsequent to the Applicable Date no such
dedication or tranSfer. shall be effective unless an instrument signed
by the appropriate officers of the CorporatIon acting pursuant to
authority granted by a majority of the votes of the Members present
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and voting at a duly constituted meeting of the Members, agreeing to
such dedication or transfer, has been recorded; and
(vii) the right of Declarant in any Supplemental
Declaration or Plat to restrict the use of Community Area and/or
Common Facilities located in a Section or Parcel to (a) Owners
and/or Occupants of Units, Multifamily Structures or Multiuse
Structures located in such Section or Parcel or (b) to other Owners of
less than all of the Lots in the Tract.
(f) Additional Ri~hts of Use. The members of the family of every Person
who has a right of enjoyment to all or part of the Community Area and the Common
Facilities may use the Community Area and the Common Facilities (or part thereof)
on the same terms and subject to the same limitations as such Person subject to the
terms of any instrument of conveyance of such Community Area or Common
Facilities to a Permitted Title Holder and to such general regulations consistent with
the provisions of this Declaration and all Supplemental Declarations as may be
established from time to time by the Corporation and/or the Association and included
within the Register of Regulations. Except as otherwise provided herein or in a
Supplemental Declaration, the Corporation or the Association may restrict use of the
Community Area and Common Facilities by guests of Persons whose use thereof is
authorized herein.
(g) Dama~e or Destruction by Owner. In the event the Community Area
or any Common Facility is damaged or destroyed by an Owner or any of his guests,
tenants, licensees, agents, or member of his family, such Owner authorizes the
Corporation to repair said damaged area and the Corporation shall repair said
damaged area in a good worlananlike manner in conformance with the original plans
and specifi.cations 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 in~urred 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) Convevance of Title. Declarant may retain the legal title to the
Cormpunity Area and the Common Facilities until the Applicable Date, but
notwithstanding any provision herein, the Declarant hereby covenants that it shall
convey such of the Lake, the Ponds, the Private Drives (exclusive of alleys), the
Village Community Buildings~ the Parks, the Commons and the Conunon Facilities
which Declarant acquires, develops or constructs and such other of the Community
Area to which Declarant holds title to a Permitted Title Holder, free and clear of all
liens and other financial encumbrances exclusive ofliens securing Community Area
Secured Indebtedness and the lien for taxes not yet due and payable, not later than the
Applicable Date.
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22. Use of Tract.
(a) Protective Covenants.
(i) Land Use. Lots may be used only for the purposes
authorized by the Zoning Ordinance.
(ii) Nuisances: No nuisance shall be permitted to exist or
operate upon any Lot so as to be. detrimental to any other Lot in the
vicinity thereof or to its occupants.
(iii) Other Restrictions. Declarant may impose additional
Restrictions in any Plat, Supplemental Declaration, Building
Guidelines or other \Vritten instrument notice of which is given to
Owners. In addition. the Architectural Review Board may adopt
. general rules and regulations to implement the purposes set forth in
Paragraph 20(b) and/or to supplement any covenants or restrictions
set forth in a Supplemental Declaration or the Building Guidelines.
inc1udin~ but not limited to rules to regulate animals, antennas. signs.
fences, walls and screens, mailboxes, exterior light fixtures, storage
tanks, awnings, storage and use of recreational vehicles, storage an~
use of machinery, use of outdoor drying lines, recreational facilities,
trash containers, and planting. maintenance.and removal of vegetation
on the Tract. The AIchitectumi Review Board may adopt general
rules and regulations appropriate to each Parcel (other than the
Village Center Parcel), which rules and regulations may vary among
Parcels. Such general rules may be amended by a two-thirds (2/3)
vote of the Architectural Review Board. Subsequent to the
Applicable Date. any such amendment may be made only after a
public hearing for which due notice to all affected Owners has been
provided, and' if such amendments are approved by a two-thirds (2/3)
vote of the Board of Directors. All general rules and any subsequent
amendments thereto shall be placed in the Register of Regulations
and shall constitute Restrictions.
(iv) Exceptions. The Architectural Review Board may
authorize exceptions to or variances from the general rules and
regulations adopted pursuant to clause (iii) if the Architectural
Review Board can show good cause and acts in accordance with
adopted guidelines and procedures.
(b) Maintenance of Tract. To the extent that exterior maintenance is not
provided for in a Supplemental Declaration, each Owner shall keep all Residential
Lots ovmed by the Owner, and all improvements therein or thereon, in good order
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and repair and free of debris including; but not limited to, the seeding, watering, and
mowing of all lawns; the pruning and cutting of all trees and shrubbery and the
painting (or other appropriate- external care) of all buildings and other improvements,
all in a manner and with such frequency as is consistent with good property
management as determined by the Architectural Review Board. In the event an
Owner of any Residential Lot in the Tract shall fail to maintain the premises and the
improvements situated thereon, as provided herein, the Corporation, after notice to
the Owner as provided by the By-Laws and approval by two-thirds (2/3) vote of the
Board of Directors, shall have the right to enter upon said Lot to correct drainage and
to repair, maintain and restore the Lot and the exterior of the buildings and any other
improvements erected thereon. All costs related to such correction, repair or
restoration shall become a Special Assessmentupon such Lot.
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23. Easements.
(a) Plat Easements. In addition to such easements as are created
elsewhere in this Declaration or in a Supplemental Declaration and as may be created
by Declarant purs1iant to other written instruments recorded in the office of the
Recorder of Hamilton County, Indiana, Lots are subject to drainage easements, sewer
easements, utility easements, entry way easements; landscape easements, water
access easements, community area access easements, pathway easements and
nonaccess easements, either separately or in any combination thereof, as shown on
the Plats, which are reserved for the use of Declarant, Owners, the Corporation, the
Architectural Review Board, public utility companies and governmental agencies as
follows:
(i) 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 WestClay and
adjoining ground andforpublic 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 Marmer 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
goverrunental authority having jurisdiction over drainage, by
Declarant, and by the Architectural Review Board, but neither
Declarant nor the Architectural Review Board shall have any duty to
undertake any such construction or reconstruction. Said easements
are for the mutual use and benefit of the Owners.
(ii) Sewer Easement~ (SE) are created for the use of the
local governmental agency having jurisdiction over any storm and
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sanitary waste disposal system which may be designed to serve
WestClay for the purpose of installation and maintenance of sewers
that are a part of said system.
(iii) Utility Easements (DE) are created for the use of
Declarant, the Corporation, the Association and all public or
municipal utility companies, not including transportation companies,
for the installation and maintenance of mains, ducts, poles, lines,
wires and other facilities, as well as for all uses specified in the case
of sewer easements.
(iv) Ento' Way Easements (EWE) are created for the use
by Declarant, the Architectural Review Board, the Corporation and
the Association for the installation, operation and maintenance of the
Entry Ways.
(v) Landscape Easements (LE) are created for the use by
Declarant, the Architectural Review Board, the Corporation and the
Association for the planting and maintenance of trees, shrubs and
other plantings.
(vi) Water Access Easements (W AE) are created for the
use of Declarant, the Corporation, the Association and the Drainage
Board for the purpose of gaining access to the Lake and the Ponds in
the course of maintenance, repair or replacement of any thereof.
(vii) Communitv Area Access Easements (CAE) are created
for the use ofDec1arant, the Corporation and the Association for the
purpose of gaining access to the Parks and the Conunons in the
course of maintenance, repair or replacement thereof and for the use
of Owners for the purpose of gaining access to such Community Area
to enjoy the use thereof to the extent authorized herein or in a
Supplemental Declaration.
(viii) Pathwav Easements (PE) are created for the
installation by Declarant, the maintenance by the Corporation and the
use by the Owners of the Paths and Path Lights.
(ix) Non-Access Easements (NAE) are created to preclude
access from certain Lots to abutting rights.of.way across the land
subject to such easements.
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(x) Alley Easements (AE) are created to afford public
access over Private Drives to the rear or side of Lots and for all uses
specified in the case of utility easements.
All easements. mentioned herein include the right of reasonable ingress and egress for
the exercise of other rights reserved. No structure, including fences, shall be built on
any drainage, sewer or utility easement if such structure would interfere with the
utilization of such easement for the purpose intended or violate. any applicable legal
requirement or the terms and conditions of any easement specifically granted to a
Person who is not an Owner by an instrument recorded in the Office of the Recorder
of Hamilton County, Indiana, but a paved driveway necessary to provide access to
a Lot from a public street or Private Drive and a sidewalk installed by or at the
direction of Dec1arant (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 fOlUld. No sewers, electrical lines, water
lines, or other utility service lines or facilities for such utilities may be installed or
relocated in a Section or Parcel except as proposed and approved by Declarant prior
to the Applicable Date or by the Architectural Review Board thereafter. Should any
utility furnishing a service covered by the general easement herein provided request
a specific easement by separate recordable document, Declarant or the Corporation
shall have the right to grant such easement on the Tract without conflicting with the
terms hereof. This blanket easement shall in no way affect any other recorded
easements on the Tract, shall be limited to improvements as originally constructed,
and shall not cover any portion of a Lot upon which a Unit, Multifamily Structure or
Multiuse Structure has been constructed or is proposed for construction pursuant to
a Lot Development Plan which has been approved by the Architectural Review Board
or the Design Review Board.
(c) Public Health and Safety Easements. An easement is hereby created
for the benefit of, and granted to, all police, fire protection, ambulance, delivery
vehicles, and all similar Persons to enter upon the Community Area in the
performance of their duties.
(d) Drainage Board Easement. An easement is hereby created for the
benefit of, and granted to, the Drainage Board to enter the Tract and all Lots therein
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to the extent necessary to exercise its rights with respect to any legal drain
constituting a part of the Drainage System.
(e) Crossimz Underground Easements. Easements utilized for
underground service may be crossed by driveways, walkways,.Paths, Water Access
Easements and Community Area Access Easements provided prior arrangements are
made with the utility company furnishing service. Such easements as are actually
utilized for underground service shall be kept clear of all other improvements,
including buildings, decks, patios, or other pavings, other than crossings, driveways,
walkways, Paths, Water Access Easements or Community Area Access Easements,
and neither Declarantnor 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 of ten (10)
years from the date of conveyance of the first Lot in a Section or Parcel, Declarant
reserves a blanket easement and right on, over and under the ground within that
Section or Parcel to maintain and to correct drainage of surface water in order to
maintain reasonable standards of health, safety and appearance. Such right expressly
includes the right tocnt any trees, bushes or shrubbery, make any gradings of the soil,
or to take any other similar action reasonably necessary, following which Declarant
shall restore the affected property to its original condition as nearly as practicable.
Declarant shall give reasonable notice of its intention to take such action to all
affected Owners, unless in the opinion of Declarant an emergency exists which
precludes such notice.
(g) Water Retention. The Owner of each Lot, by acceptance of a deed
thereto, consents to the temporary storage (detention) of storm water within the
drainage easements (DE) on such Owner's Lot.
24. Use of Lots Durin~ Development.
(a) By Declarant. Notwithstanding any proVISIOns to the contrary
contained herein or in any other instrument or agreement, Declarant or its sales
agents or contractors, or-any Designated Builder, maymaintain during the period of
construction and sale or rental of Lots and Units in the Tract or the Development
Area, upon such portion thereof as is owned or leased by Declarant or any Designated
Builder. such facilities as in the sole opinion of Declarant may be reasonably
required. convenient or incidental to the construction. sale or rental of Lots and Units,
including, but witholit limiting the generality thereof. a business office, storage area,
construction yards. signs, model Units and sales or leasing offices. Declarant
specifically reserves the right to maintain a sales office in, and make other use of, the
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Village Community Buildings during the period that it is engaged in the sale of Lots
in WestClay.
(b) By Builders. Notwithstanding any provIsIons to the contrary
contained herein, a builder who has constructed a Living Unit in WestClay may, with
the prior consent of the Board of Directors, use such Living Unit as a "model" home
and may hold such home open to the public, either individually or as part of a "home
show" approved by the Board of Directors for such reasonable period as the Board
of Directors may specify. With the approval of Declarant and the consent of the
Owner thereof, undeveloped Lots adjacent to or in proximity to such model home
may be used for parking by visitors to such model home~
25.. Enforcement. The Corporation, any Owner or Declarant. shall have the right to
enforce, by proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens
and charges now or hereafter imposed by the provisions of this Declaration and of any Supplemental
Declarations, but neither De.clarant nor the Corporation shall be liable for damage of any kind to any
Person for failure either to abide by, enforce or carry out any of the Restrictions. No delay or failure
by any Person to enforce any of the Restrictions or to invoke any available remedy with respect to
a violation or violations thereof shall under any circumstances be deemed or held to be a waiver by
that Person of the right to do so thereafter, or an estoppel of that Person to assert any right available
to him upon the occurrence, recurrence or continuation of any violation or violations of the
Restrictions. In any action to enforce this Declaration, the Person seeking enforcement shall be
entitled to recover all costs of enforcement, including attorneys' fees, if it substantially prevails in
such action.
26. Limitations on Ri~hts of the Co(poration. Prior to the Applicable Date, the
Corporation may not use its resources nor take a public position in opposition to the General Plan
of Development or to changes thereto proposed by Declarant. Nothing in this paragraph shall be
construed to limit the rights of the Members acting as individUals or in affiliation with other
Members or groups as long as they do not employ the resources of the Corporation or identify
themselves as acting in the name, or on the behalf. of the Corporation.
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27. Approvals by Declarant. Not'rVithstanding any other provisions hereof, prior to the
Applicable Date. the following actions shall require the prior approval of Declarant: the addition
ofreaI estate to the Tract; dedication orttimsfer of the Conunwrity Area; mergers and consolidations
of Sections or Parcels within the Tract or of the Tract with .other real estate; mortgaging of the
Community Area; amendment of this Declaration or any Supplemental Declaration; changes in the
basis for assessment or the amount, use and time of payment of the Commwrity Area Initial
Assessment; and the adoption or modification of Building Guidelines.
28. Mortgages.
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(a) Notice to COJ;;poration. Any Owner who places a first mortgage lien
upon his Unit, Multifamily Structure or Multiuse Structure or the Mortgagee shall
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notify the Secretary of the Board of Directors of such mortgage and provide the name
and address of the Mortgagee. Arecord of such Mortgagee's name and address shall
be maintained by the Secretary and any notice required to be given to the Mortgagee
pursuant to the terms. of the Declaration, any Supplemental Declaration, the Articles
or the By-Laws (the "Organizational Documents") shall be deemed effectively given
if mailed to such Mortgagee attheaddress 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 Se~retary, 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:
(i) Any condemnation or casualty loss that affects a
material portjon of the Community Area;
(ii) Any delinq\lency in the payment of~y Assessment
owed by the Owner of any Unit, Multifamily Structure or Multiuse
Structure on which said Mortgagee holds a mortgage or any default
by an Owner under the Organizational Documents, if said
delinquency or default continues for more than sixty (60) days;
(iii) Any lapse, cancellation or material modification of any
insurance policy or fidelity bond maintained by the Corporation;
(iv) Any proposed action that requires the consent of a
specified percentage of Mortgagees; and,
. (v) Any proposed amendment of the Organizational
Docwnents effecting a change in (A) the interests in the Community
Area appertaining to any Lot or the liability for Maintenance Costs
appertaining thereto, (B) the vote appertainin,g to a Lot or (C) the
purposes for which any Lot or the Community Area are restricted.
(c) Notice of Unpaid Assessments. The Corporation shall, upon request
of a Mortgagee, a proposed mortgagee, or a proposed purchaser who has a
contractual right to purchase a Lot, furnish to such mortgagee or purchaser a
statement setting forth the amount of the unpaid Assessments against the Lot and the
Owners, and any Mortgagee or grantee of the Lot shall notbe liable for, nor shall the
Lot conveyed be subject to a lien for, any unpaid Assessments in excess of the
amount set forth in such statement.
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(d) Financial Statements. Upon the request of any Mortgagee, the
Corporation shall provide to said Mortgagee the most recent financial statement
prepared on behalf of the Corporation.
(e) Payments by Mortfl8,fiees. Any Mortgagee may (i) pay taxes or other
charges that are in default and that mayor have become a lien upon the Community
Area or any part thereof and (ii) pay overdue premiums on hazard insurance policies
or secure new hazard insurance coverage for the Community Area in case of a lapse
of a policy. A Mortgagee making such payments shall be entitled to immediate
reimbursement from the Corporation.
29. Amendments.
(a) Generallv. Subject to subparagraphs (c) and (d), this Declaration may
. be amended at any time by an instrument signed by (i) the appropriate officers of the
Corporation acting pursuant to the authority granted by not less than two.thirds (2/3)
of the votes of the Members cast at a meeting duly called for the purpose of
amending this Declaration and (ii), to the extent required by Paragraph 27, Declarant.
(b) Bv Declarant. Subject to subparagraph (c) but without regard to
subparagraphs (a) and (d), Declarant hereby reserves the right prior to the Applicable
Date unilaterally to amend and revise the standards, covenants and restrictions
contained in this Declaration or any Supplemental DeClaration. Such amendments
shall be in writing, executed by Declarant, and recorded with the Recorder of
Hamilton County, Indiana. No such amendment, however, shall restrict or diminish
the rights or ini;rease or expand the obligations of O\Wers with respect to Lots
conveyed to such O\Wers priorto the amendment or adversely affect the rights and
interests of Mortgagees holding first mortgages on Lots at the time of such
amendment. Declarant shall give notice in writing to such O\Wers and Mortgagees
of any amendments. Except to the extent authorized in Paragraph 23(b), Declarant
shall not have the' right at any time by amendment of this Declaration or any
Supplemental Declaration to grant or establish any easement through, across or over
any Lot which Declarant has previously conveyed without the consent of the Owner
of such Lot.
(c) A,pproval by Zonin~ Authority. No amendment which would
eliminate, waive or qualify a requirement set forth herein for the consent of or
approval by theZoning Authority shall be effective unless approved in writing by the
Zoning Authority.
(d) Class ApJlroval. No amendment which would limit or impair the
rights granted herein or in any Supplemental Declaration to, or add to the burdens
imposed by this Declaration or any Supplemental Declaration on, the Owners of
Commercial Units, Multifamily Structures or Multiuse Structures (or any Units
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therein) and no amendment to Paragraphs 18, 19, 21 (d), ( e) or (f) or this Paragraph
29 shall be effective unless approved by not less than fifty-one percent (51 %) of the
Owners of Commercial Units, Multifamily Structures and Multiuse Structures (and
all Units therein).
(e) Effective Date. Any amendment shall become effective upon its
recordation in the Office of the Recorder of Hamilton COWlty, Indiana.
30. Intewretation. The underlined titles preceding the various paragraphs and
subparagraphs of this Declanition are for convenience of reference only, and none of them shall be
used as an aid to the construction of any provision of this Declaration. 'Wherever and whenever
applicable, the singular form of any word shall be taken to mean or apply to the plural, and the
masculine form shall be taken to mean or apply to the feminine or to the neuter.
31. Duration. The foregoing covenants and restrictions are for the mutual benefit and
protection ofthe present and future Owners, the Corporation, and Declarant, and shall run with the
land and shall be binding on all parties and all Persons claiming under them until January 1, 2030,
at which time said covenants and restrictions shall be automatically extended for successive periods
of ten (10) years, unless changed in whole or in part by vote of those Persons who are then the
Owners of a maj ority of the Lots in the Tract.
32. Severabili~. 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.
33. Non-Liability of Declarant. Declarant shall not have any liability to an Owner,
Occupant or any other Person with respect to drainage on, over or under a Lot or erosion of a Lot.
Such drainage and erosion control shall be the responsibility of the Owner of the Lot upon which a
Unit, Multifamily Structure or Multiuse Structure is constructed and of the builder of such Unit,
Multifamily Structure or Multiuse Structure and an Owner, by an acceptance of a deed to a Lot, shall
be deemed to agree to indemnify and hold Declarant free and harmless from and against any and all
liability arising from, related to, or in connection with the erosion of or drainage on, over and under
the Lot described in such deed. Declarant shall have no duties, oblig:;J.tions or liabilities hereunder
except such as are expressly assumed by Declarant, and no duty of, or warranty by, Declarant shall
be implied by or inferred from any term or provision of this Declaration.
34. 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 lAC 15,
Storm Water Run-Off Associated with Construction Activity. In connection with any
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construction activity on a Lot by an Ovvner, its contractor or the subcontractors of
either, O\Vl1er shall take or cause to be taken all erosion control measures contained
in such plan as the plan applies to "land disturbing activity" undertaken on a Lot and
shall comply with the terms of Declarant's general permit under RuIe 5 as well as all
other applicable state, county or local erosion control authorities. All erosion control
measures shall be performed by personnel trained in erosion control and shall meet
the design criteria, standards, and specifications for erosion control measures
established by the lI1diana Department of Environmental Management in guidance
documents similar to, or as effective as, those outlined in the Indiana Handbook for
Erosion Control in Developing Areas from the Division of Soil Conservation, Indiana
Department of Natural Resources.
(b) Indemnity. The Owner of each Lot shall indemnify and hold
Declarant harmless from and against all liability, damage, loss, claims, demands and
actions of any nature whatsoever which may arise out of or are connected with, or are
claimed to arise out of or he connected. with, any work done by such Owner, its
contractor and their respective employees, agents, or subcontractors which is not in
compliance with the erosion control plan implemented by the Declarant.
35. Annexation. Each Owner, by the acceptance of a deed to a Lot, consents to the
annexation of the Tract to the City of Carmel and agrees not to remonstrate against any proposal for
such annexation.
36. Exclusive Builders. Declaiant reserves the absolute right prior to the Applicable Date
to restrict construction of Units in WestClay to builders who have been approved by Declarant, such
approval to be granted or withheld in the absolute discretion of Declarant. Notwithstanding the
purchase of a Lot by an Owner, such Owner may not cause or authorize any Person to construct a
Unit on the Lot other than a builder who has been approved in writing by Declarant.
IN TESTIMONY WHEREOF, Declarant has executed this Declaration as of the date set
forth above.
BREN'WICK TND COMlvlUNITIES, LLC
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STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
Before me, the undersigned, a Notary Public in and for said County and State, personally
appeared Torn Charles Huston. a Co-Manager of Brenwick TND Communities, LLC, an Indiana
limited liability company, who acknowledged the execution of the above and foregoing Declaration
of Covenants and Restrictions for and on behalf of said company.
\VITNESS my hand and Notarial Seal this -...i.t&y of August, 1999.
.......,'"
YJl~ 14-1-
Notary Public Residing in
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He ndrick€ounty
My Commission Expires:
M=lr, "" M f1R, ....~
May 24, 2007
(printed signature)
This instrument prepared by Tom Charles Huston, Attorney at Law, 11 South Meridian Street, Suite
1313, Indianapolis, Indiana 46204.
lNDSOI TCHll044H
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DECLARATION OF COVENANTS .AND RESTRICTIONS
EXHIBIT A
DESCRIPTION OF DEVELOPMENT AREA
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EXHIBIT A
Desrnntion of the DeveJonment Area
The Southwest quarter of Section 28, part of the Southeast quarter of Section 29 and part of the
Northwest and Southwest quarters of Section 33 all in Township 18 North, Range 3 East of
Hamilton County, Indiana, and being described as follows:
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Beginning at the Northeast comer of the Southwest quarter of said Section 28; thence on an
assumed bearing of South 00 degrees 01 minutes 09 seconds West along the East line of said
Southwest quarter a distance of 503.75 feet; thence North 89 degrees 29 minutes 11 seconds East
a distance of605.93 feet;' thence North 00 degrees 15 minutes 45 seconds East a distance of
506.25 feet to a point of the North line of the Southeast Quarter of said Section 28 distant 608.11
feet east of the Northwest comer thereof; thence North 89 degrees 15 minutes 12 seconds East
along said North line a distance of2069.03 feet to the Northeast comer of said Southeast
Quarter; thence South 00 degrees 07 minutes 17 seconds West along the East line of said
Southeast Quarter a distance of 2630.92 feet to the Southeast comer of said Southeast Quarter;
thence South 89 degrees 23 minutes 24 seconds West along the South line of said Southeast
Quarter a distance of 2672.37 feet to the Northeast comer of the Northwest Quarter of said
Section 33; thence South 00 degrees 20 minutes 16 seconds East along the East line of the
Northwest quarter of Section 33 a distance of 2632.1 0 feet to the Southeast comer thereof; thence
South 00 degrees 23 minutes 56 seconds East along the East line of the Southwest quarter of said
Section 33 a distance of 490.67 feet; thence South 89 degrees 20 minutes 46 seconds West
parallel with the North line of said Southwest quarter a distance of 1331.44 feet to the West line
of the East half of said Southwest quarter; thence North 00 degrees 25 minutes 30 seconds West
along said West line a distance of442.67 feet to a point distant 48.00 feet South from the
Northwest comer of said half':quarter; thence South 89 degrees 20 minutes 46 seconds West
parallel with the North line of said Southwest quarter a distance of 1331.64 feet to the West line
of said Southwest quarter; Vlence North 00 degrees 27 minutes 03 seconds West along said West
line a distance of 48.00 feet to the Northwest comer of said Southwest quarter; thence North 00
degrees 27 minutes 13 seconds West along the West line of the Northwest quarter of Section 33 a
distance of 1281.55 feet; thence North 89 degrees 20 minutes 46 seconds East parallel with the
South line of said Northwestquarter a.distance of 1332.95 feet to the West line of the East half of
said Northwest quarter; thence North 00. degrees 23 minutes 44 seconds West along said West
line a distance of 1348.18 feet to the Northwest comer thereof; thence South 89 degrees 14
minutes 42 seconds West along the South line of the Southwest quarter of Section 28 a distance
of 1334.33 feet to the southwest comer thereof; thence South 88 degrees 51 minutes 10 seconds
West along the South line of the Southeast quarter of Section 29 a distance of 1351.40 feet to a
point hereinafter referred to as Point A; thence North 0 I degrees 08 minutes 50 seconds West a
distance of 8.00 feet; thence North 52 degrees 30 minutes 24 seconds East a distance of 14.45
feet; thence North 22 degrees 52 minutes 44 seconds East a distance of 27.27 feet; thence North
00 degrees 36 minutes 26 seconds West a distance of 1453.10 feet; thence South 89 degrees 13
minutes 03 seconds West a distance of 107.69 feet; thence North 00 degrees 00 minutes 53
seconds West a distance of 1138.44 feet to the North line of said Southeast quarter; thence North
89 degrees 13 minutes 03 seconds East along said North line a distance of 1443.58 feet to the
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Northeast comer thereof; thence North 89 degrees 14 minutes 59 seconds East along the North
line of the Southwest quarter of Section 28 a distance of 2678.68 feet to the Point of Beginning.
Containing 534.984 acres, more or less.
Also, Part of the Northwest and the Northeast Quarters o[Section.28, Township 18 North, Range
3 East of the Second Principal Meridian, Hamilton County described as follows:
Beginning at a railroad spike at the southwest comer of the east half of the northwest quarter~
thence North 00 degrees 00 minutes 08 seconds West along the west line of said half quarter
2631.74 to the northwest comer thereof; thence North 89 degrees 15 minutes 26 seconds East
along the north line of the Northwest Quarter 693.79 feet to a railroad spike at the northwest
corner of a tract of land described in a deed to Stumm, et al,and recorded as instrument number
9601331 in the Office of the Recorder. of Hamilton, County; thence South 00 degrees 02 minutes
24 seconds East along the west line thereof and along the west line of a tract of land described in
a deed to Smith, recorded in Deed Book 154 page 17a distance of 660.00 feet to a 5/8"x30"
rebar with yellow plastic cap marked "SCHNEIDER ENG FIRM #0001" (hereinafter referred to
as '''REBAR/CAP'') at the southwest corner of said Smith tract; thence North 89 degrees 15
minutes 26 seconds East along the south line thereof and along the south line of a tract of land
described in a deed to Toll, recorded in Deed Book 310 page 838 a distance of 594.00 to a
REBAR/CAP at the southeast comer of said Toll tract; thence North 00 degrees 02 minutes 24
seconds West along the east line thereof 329.99 feet to a REBAR/CAP on the westerly extension
of the south line ofa tract of land described in a deed to Sullivan, recorded in,Deed Book 327
page 646; thence North 89 degrees 14 minutes 34 seconds East along said extension and said
south line 211.43 to a REBAR/CAP atthe southeast comer thereof; thence North 00 degrees 03
minutes 50 seconds West along. the east line thereof 330.00 feet to a railroad spike on th.e north
line of the Northeast Quarter; then<::eNorth 89 degrees 14' minutes 34 seconds East along said
north line 120.00 feet to a railroad spike at the northwest comer of a tract of land described in a
deed to Stumm, recorded in Deed Book 281 page 412; thence South 00 degrees 03 minutes 50
seconds East along the wes! line thereof 330.00 feet to a REBAR/CAP at the southwest comer
thereof; thence North 89 degrees 14 minutes 34 seconds East parallel with the north line of the
Northeast Quarter 1056.00 feet to the southeast comer of a tract of land described in a deed to
Frederick, recorded as instrument number 9545201, and on the east .line of the west half of the
Northeast Quarter; thence South 00 degrees 03 minutes 50 seconds East along said east line
2030.77 feetto the northeast comer ofa tract ofland described in a deed to Lasher, recorded as
instrument number 9213826; thence South 89 degrees 15 minutes 12 seconds West along the
north line thereof 130.00 feet to a REBAR/CAP at the northwest corner thereof; thence South 00
degrees 03 minutes 50 seconds East along the west line of said Lasher tract 271.00 feet to a
railroad spike on the south line of the NortheaSt Quarter; thence South 89 degrees 15 minutes 12
seconds West along the south line of said quarter 365.00 feet to the arallroad spike at the
southeast comer of a tract of Land described in a deed to Frank, recorded in Deed Book 163 page
280~ thence North 00 degrees 04 minutes 33 seconds West 330.00 feet to the southeast comer of
a tract of land described in a deed to Pierson, recorded as instrument number 9364918; thence
North 01 degrees 13 minutes 35 seconds East along the east line thereof 60.44 feet to a
REBAR/CAP, thence the following thirteen (13) courses along the lines of said tract, nine (9) of
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which are also along Elliott Creek; (1) North 27 degrees 36 minutes 44 seconds West 177.33
feet; (2) North 17 degrees 26 minutes 49 seconds West 57.75 feet; (3) North 06 degrees 33
minutes 38 seconds East 59.39 feet; (4) North 88 degrees 53 minutes 52 seconds West 380.61
feet; (5) North 54 degrees 23 minutes 18 seconds West 158.25 feet; (6) North 32 degrees 36
minutes 31 seconds West 96.43 feet; (7) North 08 degrees 48 minutes 39 seconds West 159.88
feet; (8) North 36 degrees 36 minutes 53 seconds West 43.86 feet; (9) North 56 degrees 59
minutes 39 seconds West 141.03 feet; (10) South 00 degrees 49 mirlUtes 57 seconds East 725.49
feet; (11) South 73 degrees 29 minutes 19 seconds East 139.54 feet; (12) North 89 degrees 15
minutes 15 seconds East 50,00 feet; (13) South 01 degrees 00 minutes 58 seconds East 356.12
feet to a railroad spike on the south line of the Northeast Quarter; thence South 89 degrees 15
minutes 12 seconds West along the south line thereof 222.21 feet to a Stone in two boxes 1.2 feet
down at the southwest comer of the Northeast Quarter; thence South 89 degrees 14 minutes 59
seconds West along the south line oftheNorthwest Quarter 1339.34 feet to the Point of
Beginning. Containing 130.021 acres, more or less.
Also, part of the Southeast Quarter of said Section 29 being described as follows:
Commencing at the aforesaid Point A -on the South line of said Southeast quarter; thence South
88 degrees 51 minutes 10 seconds West along said South line a distance of 627.23 feet to the
Point of Beginning at the Southwest comer of the land described in a deed to Wendy Fortune
(Instrument Number 8915090, Office of the Recorder of Hamilton County, Indiana); thence
continuing South 88 degrees 51 minutes 10 seconds West along said South line a distance of
668.05 feet to the Southwest comer of said Southeast quarter; thence North 00 degrees 24
minutes 33 seconds West along the West line of said Southeast quarter 'a distance of 1437.39 feet
to a point distant 1203.96 feet South of the Northeast comer thereof; thence North 88 degrees 29
minutes 35 seconds East a distance of658.94 feet to a westerly corner of the aforesaid Fortune
tract; thence South 00 degrees 46 minutes 26 seconds East along the West line thereof a distance
of 1441.43 feet to the Point of Beginning. Containing 21.923 acres, more or less.
Containing, in all, 686.928 acres, more or less.
\\SEe _I NDY\DA T A \.JOBS\ 1238\001 \DOCS\OAOPT A. doc
Page 3 of 3
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DECLARATION OF COVENANTS AND RESTRICTIONS
EXHIBIT B
GENERAL PLAN OF DEVELOPMENT
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DECLARATION OF COVENANTS AND RESTRICTIONS
EXHIBIT C
DESCRIPTION OF THE TRACT
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EXHIBIT C
DESCRIPTION OF THE TRACT
(Griffin, Rice, Perez and Szynal Land)
The Southwest quarter of Section 28, part ofthe Southeast quarter of Section 28 and part of the
Northwest and Southwest quarters of Section 33 all in Township 18 North, Range 3 East of Clay
Township, Hamilton County, Indiana, and being described as follows:
Beginning at the Northeast comer of the Southwest quarter'of said Section 28; thence on an
assumed bearing of South 00 degrees 01 minutes 09 seconds West along the East line of said
Southwest quarter a distance of 503.75 feet; thence North 89 degrees 29 minutes 11 seconds East
a distance of 605.93 feet; thence North 00 degrees 15 minutes 45 seconds East a distance of
506.25 feet to a point of the North line ofthe Southeast Quarter of said Section 28 distant 608.11
feet east of the Northwest ~omer thereof; thence North 89 degrees 15 minutes 12 seconds East
along said North line a distance of 2069.03 feet to the Northeast comer of said Southeast
Quarter; thence South 00 degrees 07 minutes 17 seconds West along the East line of said
Southeast Quarter a distance of 2630.92 feet to the Southeast comer of said Southeast Quarter;
thence South 89 degrees 23 minutes 24 seconds West along the South line of said Southeast
Quarter a distance of2672.37 feet to the Northeast comer of the Northwest Quarter of said
Section 33; thence South 00 degrees 20 minutes 16 seconds East along the East line of the
Northwest quarter of Section 33 a distance of 2632.10 feet to the Southeast corner thereof; thence
South 00 degrees 23 minutes 56 seconds East along the East line of the Southwest quarter of said
Section 33 a distance of 490.67 feet; thence South 89 degrees 20 minutes 46 seconds West
parallel with the North line of said Southwest quarter a distance of 1331.44 feet to the West line
of the East half of said Southwest q'4arter; thence North 00 degrees 25 minutes 30 seconds West
along said West line a distahce of 442.67 feet to a point distant 48.00 feet South from the
Northwest corner of said half-quarter; thence South 89 degrees 20 minutes 46 seconds West
parallel with the North line of said Southwest quarter a distance of 1331.64 feet to the West line
of said Southwest quarter; thence North 00 degrees 27 minutes 03 seconds West along said West
line a distance of 48.00 feet to the Northwest corner of said Southwest- quarter; thence North 00
degrees 27 minutes 13 seconds West along the West line of the Northwest quarter of Section 33 a
distance of 1281.55 feet; thence North 89 degrees 20 minutes 46 seconds East parallel with the
South line of said Northwest quarter a distance of 1332.95 feet to the West line of the East half of
said Northwest quarter; thence North 00 degrees 23 minutes 44 seconds West along said West
line a distance of 1348.18 feet to the Northwest comer thereof; thence South 89 degrees 14
minutes 42 seconds West along the South line of the Southwest quarter of Section 28 a distance
of 1334.33 feet to the southwest comer thereof; thence North 00 degrees 32 minutes 45 seconds
East along the West line of the Southwest quarter of Section 28 a distance of 2624.94 feet to the
Northwest comer of the Southwest quarter of Section 28; thence North 89 degrees 14 minutes 59
seconds East along the North line of the Southwest quarter of Section 28 a distance of2678.68
feet to the Point of Beginning. Containing 451.608 acres, more or less.
(J.Kreutz 08-09-99)
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07/13/99
Secondary Area
Parcel No. ...l.-
2
SUPPLEMENTAL DECLARATION OF
, .
COVENANTS AND RESTRICTIONS
. THE VILLAGE OF "WESTCLA Y
This Supplemental Declaration, dated as of the ....9.th.. day of Angm::t:
BRENWICK TND COMMUNITIES, LLC, aD. Indiana limited company,
,19)9, by
WIT N E SSE S T HAT:
1<3990<394b%5
Filed for Record In
HAMILTON COUNTY, INDIANA
MI=lRY L CLARK
On 08-09-1999 At 04:02 pm.
DEC COV RES 3b.OO
WHEREAS, the following facts are true:
A. Declarant owns qr has the right to acquire the real estate located in Hamilton County,
Indiana, more particularly described in Exhibit A attached hereto and incorporated herein by this
reference.
B. This Declaration is a Supplemental Declaration as that term is defined in the
Declaration of Covenants and Restrictions.
C. Declarant intends to subdivide the Parcel into Lots upon each of which a Living Unit
may be constructed.
NOW, THEREFORE, Declarant hereby makes this Supplemental Declaration as follows:
1. Definitions. Words, phrases and terms that are defined in the Declaration of
Covenants and Restrictions have the. same meaning in this Supplemental Declaration except as
herein otherwise provided. The following words, phrases and terms, as used in this Supplemental
Declaration, unless the context clearly requires otherwise, mean the following:
"Accessory Dwelling" means a Living Unit which is attached to or located
on the same Lot as a Principal Dwelling, has an indepenaentmeans of access and is
owned by the Owner of the Principal Dwelling but occupied by another.
"Board of Directors" means the Board of Directors of the Corporation.
"Declaration of Covenants and Restrictionslt means the Declaration of
Covenants and Restrictions of The Village of West Clay dated as of August 9
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1999 and recorded in the Office of the Recorder of Hamilton County t Indiana as
Instrument Number \~~ amended from time to time.
"L.Q1" means a numerically designated subdivided parcel of land depicted on
a Plat.
"Owner" means any Person, including Declarant, who at any time owns the
fee simple title to a Lot.
"Parcel" means that part of the real estate described in Exhibit A which is at
any time subject to the covenants, restrictions, easements, charges and liens imposed
by the Declaration of Covenants and Restrictions.
"fh!" means the secondary plat of a Section within the Parcel.
"Principal DwellinQtt means a Living Unit designed as the principal structure
on the Lot.
"Section" means that part of the Parcel which is depicted on a Plat.
IIIr&a1l means the real estate, including all or any part of the Parcel, that is
subject to the covenants, restrictions, easements, charges and liens imposed by the
Declaration of Covenants and Restrictions.
2. Declaration. Declarant hereby declares that, in addition to the covenants, restrictionst
easements, charges and liens imposed by the Declaration of Covenants and Restrictionst the Parcel
shall be held, transferredt sold, conveyed and occupied subject to the covenants, restrictions,
easements, charges and liens hereinafter set forth.
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3. Land Use. Lots may be used only for residential pmposes as provided in Section 5.2
of the Zoning Ordinance. No portion of any Lot may be sold or subdivided such that there will be
thereby a greater number of Principal Dwellings in a Section than the number of original Lots shown
on a Plat of such Section, Not more than one (1) Principal Dwelling and not more than one (1)
Accessory Dwelling may be located ana Lot and no Accessory Dwelling may be located on a Lot
unless a Principal Dwelling is also located thereon. Notwithstanding any provision in the Zoning
Ordinance to the contraryt 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 oftheOvmer 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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4. Construction ofLivimz Units.
(a) Lot Development Plans. Except to the extent such requirement is
waived by Declarant, prior to commenc'ement of any Build,ing Activity on a Lot, a
Lot Development Plan shall be. submitted to the Architectural Review' Board in
accordance with therequitements of Paragraph 20 of the Declaration of Covenants
and Restrictions. The Architectural Review Board may require as part of a Lot
Development Plan a report of subsurface soils investigation of the Lot made by a
qualified soils engineer, which report shall include recommendations for the
foundations of the, proposed improvements. Each Owner shall comply with the terms
and provisions of Paragraph 20 of the Declaration of Covenants and Restrictions and
the requirements of the Architectural Review Board established pursuant to the
authority granted by the Declaration of Covenants and Restrictions.
(b) Size orLiving Unit. No Principal Dwelling may be constructed on
any Lot unless such Principal Dwelling, exclusive of open porches, attached garages
and basements, shall have a gross floor area equal to or greater than the square
footage specified in the Building Guidelines applicable to the Lot as of the date
construction of the Prin.cipal Dwelling on the Lot commences. No Accessory
Dwelling may contain more than eight hundred fifty (850) square feet of floor area.
(c) Buildinll Guidelines. Each Owner shall at all times comply with the
requirements of the Building Guidelines applicable to such Owner's Lot.
(d) Building Activity. All Building Activity shall be undertaken and
completed strictly in accordance with the Building Guidelines and the Lot
Development Plan approved. by the Architectural Review Board. Unless a delay is
caused by strikes, war, court injunction or acts of God, the Owner of any Lot which
on the date of purchase from Declarant is not improved with ,a Principal Dwelling
shall commence construction of a Principal Dwelling llpon the Lot within six (6)
months from the date the Owner acquired title thereto and shall complete
construction of such Principal Dwelling within one (1) year after the date of
commencement of the building process, but in no event later than eighteen (18)
months after the date the Owner acquired title to the Lot unless such Lot is adjacent
to a Lot upon which the Owner has constructed a Principal Dwelling in which such
Owner permanently resides. If the Owner fails to commence or complete
construction of a Principal Dwelling within the time' periods specified herein, or if
the Owner should, without Declarant's vmtten approval, sell, contract to sell, convey,
or othenvise dispos~ of, or attempt to sell, conveyor otherwise dispose of, the Lot
before completion of construction of a Principal Dwelling on the Lot, then, in any of
such events, Declarant may:
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(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 COWlty 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 Owner may prove to have incurred
in connection with the commencement of construction
of a Principal Dwelling 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 Principal Dwelling, a Lot
Development Plan for which has been approved by
the Architectural Review Board upon application by
such Owner; or
(Hi) 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 Principal Dwelling
upon the Lot within the time period specified herein. For the purposes of this
subparagraph (d), construction of a Principal Dwelling will be deemed "completed"
when the exterior of the Principal Dwelling (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.
(e) Septic Systems. No septic tank, absorption field or any other on-site
sewage disposal system (other than a lateral main connected to a sanitary sewerage
collection system operated by the Clay Township Regional Waste District or a
successor public agency or public utility) shall be installed or maintained on any Lot.
(f) 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 of Health, 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
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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 the Lake
or a Pond.
(g) 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 Parcel may be included in a legal drain established by
the Drainage Board. ill such event, each Lot in the Parcel will be subject to
assessment by the Drainage Board for the costs of maintenance of the portion of the
Drainage System and/or the Lakes 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 surrounding 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.
(h) Geothermal Systems. No open loop geothermal heating and cooling
system shall be installed on a Lot.
5. Maintenance of Lots.
(a) Vehicle Parking. No recreational vehicle, motor home, truck which
exceeds % ton in weight, trailer, boat or disabled vehicle may be parked or stored
overnight or longer on any Lot in open public view.
(b) Signs. Except for such signs as Declarant may in its absolute
discretion display in connection with the development of the Village of West Clay or
the Parcel 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
Living Units and the maintenance of model homes) no sign of any kind shall be
displayed to the public view on any Lot without the prior approval of the
Architectural Review Board 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.
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(c) Si~ht Lines. No fence, wall, hedge or shrub planting which obstructs
sight lines at elevations between thirty (30) and seventy-two (72) inches above the
street shall be placed or permitted to remain on any comer lot within the triangular
area fonned 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 line 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.
(d) Veli:etation. 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 unsightlygro\Vtb 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) 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. Barlcing dogs shall constitute a
nuisance.
(t) Garbage and Refuse Dis.posal. No Lotshall 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.
(g) Animals. No animals, livestock or poultry of any kindshaIl be raised,
bred or kept on any Lot, except that dogs, cats or other household pets designated by
the Board of Directors may be kept provided that they are not kept, bred or
maintained for any commercial purpose. The owners of such permitted pets shall
confme them to their respective Lots such that they will not be a nuisance. Owners
of dogs shall so control or confine them so as to avoid barking which will annoy or
disturb adjoining Owners.
(h) Outside Buming:~ 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.
<i) Exterior Li~ts. Except for such alley lights as may be required by
the Building Guidelines~ no exterior lights shall be erected or maintained between the
building line and rear lot line so as to shine or reflect directly upon another Lot.
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G) Electric Bug ~ners. Electric bug killers, Ilzappers" and other similar
devices shall not be installed at a location or locations which will result in the
operation thereofbecorning a nuisance or annoyance to other Owners and shall only
be operated when outside activities require the use thereof and not continuously.
(k) Air Conditioners. No room air conditioning uhit shall be installed so
as to protrude from. any structure located on a Lot (including but not limited to the
window of any Living Unit or garage) if the same would be visible from a public
way, a Community Area or any other Lot~ provided, however, that this Restriction
shall not apply to central air conditioning units.
(1) Fences and Walls. No walls or fences shall be erected on any Lot
without the prior approval of the Architectural Review Board. Each Owner shall
maintain any appro~ed wall or fence in good and sightly condition and in compliance
with the requirements of the Building Guidelines.
(m) Swimming Pools. No above ground swimming pools, other than a
children's wading pool, shall be installed or maintained on a Lot.
(n) Basketball GQab. No basketball goal shall be placed or maintained
in the front driveway of a Lot 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 a 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.
6. General Community Rules. Each Lot shall be subject to the guidelines, rules,
regulations and procedures adopted by Declarant, the Corporation and the Architectural Review
Board pursuant to authority granted by the Declaration of Covenants and Restrictions and all
Supplemental Declarations, and each Owner of a Lot shall at all times comply therewith.
7. Assessments. The Board of Directors may make Assessments to cover any costs
incurred in enforcing these Restrictions or in undertaking any maintenance or other activity that is
the responsibility of the Owner of a Lot hereunder but which such Owner has not undertaken as
required hereunder. Any such Assessment shall be assessed only against those Owners whose failtrre
to comply with the requirements of these covenants necessitated the action to enforce these
covenants or the undertaking of the maintenance or other activity.
8. Electoral Parcel. The Parcel shall constitute an Electoral Parcel for the purpose of
election of the Board of Directors.
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9. 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
Ovmers of the Lots in the Parcel, .their heirs and assigns, and to 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 Supplemental Declaration. There shall be no rights of reversion or forfeiture of
title resulting from any violations.
10. Severability. Invalidation of any of these ,covenants and restrictions or any part
thereof by judgment or court .order shall not affect or render the remainder of said covenants and
restrictions invalid or inoperative.
11. Non-Liability of Declarant. Declarant shall have no duties, obligations or liabilities
hereunder except such as are expressly assumed by Declarant, and no duty of, or warranty by,
Declarant shall be implied by or inferred from any term or provision of this Supplemental
Declaration.
12. General Provisions. This Supplemental Declaration may be amended at any time in
the manner provided in Paragraph 29 of the Declaration of Covenants and Restrictions except that
no amendment adopted putsuantto Paragraph 29(a) of the Declaration of Covenants and Restrictions
shall be effective as against a Mortgagee who subsequently acquires title to a Lot unless approved
by at least two-thirds (213) of the Mortgagees who hold fIrst mortgages on the Lots in the Parcel
(based on one vote for each first mortgage owned) or at least two-thirds (2/3) of the Owners of the
Lots in the Parcel (excluding Declarant).
Except as the same may be amended from time to time, the foregoing restrictions will be in
full force and effect until January 1, 2030, at which time they will be automatically extended for
successive periods often (10) years, unless by a vote of the majority of the then Owners of Lots in
the Parcel it is agreed that these Restrictions shall terminate in whole or in part.
IN 'WITNESS WHEREOF, this Supplemental Declaration has been executed as of the date
fIrst above written.
BRENWICK TND COMMUNITIES, LL
Tom Charles Huston, Co-Manager
By
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STATE OF INDIANA )
) ss:
COUNTY OF HAMIL TON )
Before me, a Notary Public in and for said County and State, personally appeared Tom
Charles Huston, the Co~Manager of Brenwick TND Communities, LLC, an Indiana limited liability
company, who acknowledged execution of the foregoing Supplemental Declaration of Covenants
and Restrictions for and on behalf of said limited partnership.
WITNESS my hand and Notarial Seal this 9th day of
Auqust ,1999.
x.., .' L"
,.VJ1 ~ >n.. ~- --.J:?
Notary Public Residing in HendricksCounty
My Commission Expires:
M3.y 24, 2007
Marie M. Urick
(printed signature
This instrument prepared by Tom Charles Huston, Attorney at Law, 1313 Merchants Bank Building,
11 South Meridian Street, Indianapolis, Indiana 46204.
lNDSOI TCH ] 1MB5
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EXHIBIT A
Real Estate Description
-
Village of Westc1ay - Section 10005
A part of the Southwest Quarter of Section 28, Township 18 North, Range 3 East, Clay
Township, Harililton County, Indiana, described as follows:
Commencing at the N ortheastcomer of the Southwest Quarter of said Section 28; thence South
89 degrees 14 minutes 59 seconds West along the North line of said Southwest Quarter a .
distance of 940.18 feet to the Point of Beginning; thence South 00 degrees 08 minutes 09
seconds East a distance of 815.76 feet to a point of curvature of a curve having a radius of253.00
. feet, the radius point which bears South 00 degrees 19 minutes 09 seconds. West; thence Easterly
along said curve an arc distance of 16.74 feet toa point which bears North 04 degrees 06 minutes
30 seconds East from said radius point; thence South 04 degrees 06 minutes 30 seconds West a
distance of 52.00 feet to a point of curvature of a curve having a radius of 20 1 ~OO feet, the radius
point which bears South 04 degrees 06 minutes 30 seconds West; thence Westerly along said
curve an arc distance of 14.89 feet to a point which bears North 60 degrees 08 minutes 09
seconds West from said radius point; thence South 89 degrees 51 minutes 5 1 seconds West a
distance of 158.00 feet; thence South 00 degrees 08 minutes 09 seconds East a distance of 4.50
feet; thence South 89 degrees 51 minutes 51 seconds West a distance of90.00 feet; thence North
00 degrees 08 minutes 09 seconds West a distance of 4.50 feet; thence South 89 degrees 51
minutes 51 seconds West a distance of 176.00 feet; thence North 00 degrees 08 minutes 09
seconds West a distance of 52.00 feet; thence North 89 degrees 51 minutes 51 seconds East a
distance of 16.00 feet; tbenceNorth 00 d~grees 08 minutes 09 seconds West a distance of399.00
feet; thence South 89 degrees 51 minutes 51 seconds West a distance of 16.00 feet; thence North
00 degrees 08 minutes 09 seconds West a distance of 50.00 feet; thence North 89 degrees 51
minutes 51 seconds East a distance of 26.00 feet; thence North 00 dc:grees 08 minutes 09 seconds
West a distance of 362.46 feeUo a point on the North line of s.aid Southwest Quarter; thence
North 89 degrees 14 minutes. 59 seconds East along the said North line a distance of 400.02 feet
to the Point of Beginning. Containing 8.128 acres, more or less.
V/ESTCLA Y SECTION 1006
8/2/99 DeC
A part of the Southwest Quarter and Southeast Quarter of Section 28, Township 18 north,
Range 3 East, Clay Township, Hamilton County, Indi~ described as follews:
Commencing at the Northeast comer of the Southwest QUarter of said Section 28; thence
South 89 degrees 14 minutes 59 seconds West a distance of 16.50 feet to. the Point of
Beginning; thence South 00 degrees 01 minutes 11 seconds West parallel to. the east line
of said Southwest Quarter a distance of 505.60 feet; thence North 89 degrees 46 minutes
12 seconds East a. distance of 170.13 feet; thence South 00 degrees 31 minutes 29
sec.onds East a distance of 161.59feet to a point of curvatureofa curve having a radius of
55.00 feet, the radius point which bears South 06 degrees 15 minutes 29 seconds West;
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thence southwesterly along said curve an arc distance of 55.89 feet to a point which bears
North 51 degrees 57 minutes 55 seconds West from said radius point; thence South 38
degrees 02 minutes 05 seconds West a distance of 42.37 feet to a point of curvature of a
curve having a radius of 25.00 feet; the radius point which bears North 51 degrees 57
minutes 55 seconds West; thence westerly along said curve an arc distance of39.27 feet
to a point which bears South 38 degrees 01 minutes 53 seconds West from said radius
point; thence South 38 degrees 01 minutes S3 seconds West a distance of 50. 00 feet;
thence South 51 degrees 58 minutes 07 seconds East a distance of6.65 feet; thence south
49 degrees 25 minutes 40 seconds West a distance of242.64 feet; thence North 33
degrees 11 minutes 44 seconds West a distance of20.52 feet; thence North 40 degrees 4:3
minutes 49 seconds West a distance of 181.14 feet; thence SOllth 66 degrees S7 minutes
46 seconds West a distance oft74.90 feet; thence South 32 degrees 16 minutes 02
seconds West a distance of 114.1,6 feet; thence North 86 degrees 03 minutes 47 seconds
West a distance of 60.02 feet; thence North 28 degrees 54 minutes 18 seconds West a
distance of 91.36 feet; thence North 42 degrees 17 minutes 19 seconds West a distance of
91.36 feet; thence North 55 degrees 40 minutes 21 seconds West a distance of91.36 feet;
thence North 69 degrees 03 minutes 2~ seconds West a distance of91.36 feet; thence
North 82 degrees 47 minutes45 seconds West a distance of96.19 feet; thence North 00
degrees 08 minutes 09 seconds West a distance of 676.76 feet to a point on the North line
of the said Southwest Quarter; thence North 89 degrees 14 minutes 59 seconds East along
the said North line a distance of923.68 feet to the Point of Beginning. Containing 18.007
acres, more or less. . .
Village of West clay - Section 10009
A part of the Southeast Quarter of Section 28, Township 18 North. Range 3 East, Clay
Township, Hamilton County, Indiana, described as follows:
Commencing at the Northeast comer of the said Quarter Section; thence South 89 degrees 15
minutes 12 seconds West along the north line of said southeast quarter section a distance of
1425.48 feet; thence South 00 degrees 44 minutes 48 seconds East a distance of 45.00 feet;
thence South 06 degrees 40 minutes 11 seconds East a distance of 127.07 feet; thence South 24
degrees 31 minutes 07 seconds West a distance of 72. 9S feet; thence South 64 degrees 07
minutes 18 seconds West a distance of 115.60 feet; thence South 75 degrees 13 minutes 43
seconds West a distance of42.10 feet; thence North 77 degrees 58 minutes 17 seconds West a
distance of 43.40 feet; thence North 32 degrees 05 minutes .01 seconds West a distance of 50.00
feet; thence North 89 degrees 44 minutes 55 seconds West a distance of 168.91 feet; thence
South 00 degrees 15 minutes 05 seconds West a distance of 177.67 feet to a curve having a
radius of25.00 feet, the radius point which bears South 89 degrees 44 minutes 55 seconds East;
thence southerly along said curve an arc distance of 35.92 feet to a point which bears South 07
degrees 55 minutes 52 seconds West from said radius point; thence South 82 degrees 04 minutes
08 seconds East a distance of 13.48 feet; thence South 07 degrees 55 minutes 52 seconds West a
distance of 50.00 feet to a curve having a radius of25.00 feet, the radius point which bears South
07 degrees 55 minutes 52 seconds West; thence southerly along said curve an arc distance of
42.62 feet to a point which bears North 89 degrees 26 minutes 22 seconds West from said radius
point; thence South 00 degrees 15 minutes 05 seconds West a distance of 81.01 to a curve having
a radius of 426.00 feet, the radius point which bears North 89 degrees 44 minutes 55 seconds
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West; thence southerly along said curve an arc distance of297.84 feet to a curve having a radius
of 25 .00 feet~ the radius point which bears South 49 degrees 41 minutes 26 seconds East; thence
southerly along said curve an arc distance of26.35 feet to a curve having a radius of 91.00 feet~
the radius point which bears South 69 degrees 55 minutes 08 seconds West; thence southerly
along said curve an arc distance of 86.38 feet to a curve having a radius of 25 .00 feet~ the radius
point which bears South 55 degrees 41 minutes 33 seconds East; thence southerly along said
curve an arc distance of27.26 feet to a curve having a radius of 325.00 feet, the radius point
which bears South 61 degrees 49 minutes 42 seconds West; thence southerly along said curve an
arc distance of 113.12 feet to a point which bears North 81 degrees 46 minutes 14 seconds East
from said radius point;. thence South 08 degrees 13 minutes 46 seconds East a distance of 133.60
feet; thence South 81 degrees 46 minutes 14 seconds West a distance of 50.00 feet; thence North
08 degrees 13 minutes 46 seconds West a distance of 133.60 feet to 'a curve having a radius of
275.00 feet, the radius point which bears South 81 degrees 46 minutes 14 seconds West; thence
northwesterly along said curve an arc distance of 91.94 feet to a point on a curve having a radius
of25.00 feet, the radius point which bears South 62 degrees 36 minutes 53 seconds West; thence
northwesterly along said curve' an arc distance of29.32 feet to a point on a reverse curve having a
radius of 91.00 feet, the radius point which bears North 04 degrees 34 minutes 51 seconds West;
thence westerly along said curve an arc distance of 36.52 feet to a point on a reverse curve
having a radius of25.00 feet, the radius point which bears South 18 degrees 24 minutes 56
seconds West; thence southwesterly along said curve an arc distance of27.89 feet to a point
which bears North 45 degrees 30 minutes 09 seconds West from said.radius point; thence South
44 degrees 29 minutes 51 seconds West a distance of2.88 feet to a curve having a radius of
2026.00 feet, the radius point which bears North 45 degrees 30 minutes 09 seconds West; thence
southwesterly along said curve an arc distance of 133.18 feet to a point which bears South 41
degrees 45 minutes 41 seconds East from said radius point; thence North 41 degrees 45 minutes
41 seconds West a distance 0'f52.00 feet to a curve having a radius of25.00 feet, the radius point
which bears North 41 degrees 45 minutes 41 seconds West; thence northeasterly along said curve
an arc distance of 35.13 feet to a curve having a radius of216.00 feet; the radius point which
bears North 57 degrees 44 minutes 26 seconds East; thence northerly along said curve an arc
distance of 242.70 feet to a curve having a radius of 25.00 feet, the radius which bears North 57
degrees 52 minutes 53 seconds West; thence northwesterly along said curve an arc distance of
35.61 feet to a curve having a radius of299.00 feet, the radius point which bears South 40
degrees 30 minutes 33 seconds West; thence westerly along said curve an arc distance 482.58
feet to a point which bears North 51 degrees 57 minutes 55 seconds West from said radius point;
thence South 38 degrees 02 minutes 05 seconds West a distance of 1.52 feet to a curve having a
radius of25.00 feet, the radius point which bears South 51 degrees 57 minutes 55 seconds East;
thence southerly along said curve an arc distance of 39.27 feet to a point which bears South 38
degrees 01 minutes 53 seconds West from said radius point; thence South 38 degrees 01 minutes
53 seconds West a distance of50.00 feet; thence North 51 degrees 58 minutes 07 seconds West a
distance of 1.81 feet to a curve having a radius of25.00 feet, the radius-point which bears South
J 8 degrees 01' minutes 53 seconds West; thence westerly along said curve an arc distance of
37.80 feet to a curve having a radius of 1026.00 feet~ the radius point of which bears North 48
degrees 36 minutes 22 seconds West; thence southwesterly along said curve an arc distance of
6.48 feet to a point which bears South 48 degrees 14 minutes 39 seconds East from said radius
point; thence North 48 degrees 14 minutes 39 seconds West a distance'of52.00 feet to a curve
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having a radius of25.00 feet, the radius poir~.t which bears North 48 degrees 14 minutes 39
seconds West; thence northwesterly along said curve an arc distance of 40.90 feet to a point
which bears North 38 degrees 01 minutes 53. seconds East from said radius point; thence North
51 degrees 58 minutes 07 seconds West a distance of98.12 feet; thence North 38 degrees 01
minutes 53 seconds East a distance of 50.00 feet to a curve having a radius of25.00 feet, the
radius point which bears North 38 degrees 01 minutes 53 seconds East; thence northeasterly
along said curve an arc distance of 39.27 feet to a point which bears South 51 degrees 57 minutes
55 seconds East from said radius point; thence North 38 degrees 02 minutes 05 seconds East a
distance of42.37 feet to a curve having a radius of 55.00 feet, the radius point which bears South
51 degrees 57 minutes 55 seconds East; thence northeasterly along said curve an arc distance of
55.89 feet to a point which bears North 06 degrees 15 minutes 29 seconds East from said radius
point; thence North 00 degrees 31 minutes 29 seconds West a distance of 161.59 feet; thence
North 89 degrees 46 minutes 12 seconds East a distance of 452.34 feet; thence South 86 degrees
34 minutes 22 seconds East a distance of 69.39 feet; thence South 45 degrees 30 minutes 09
seconds East a distance of75.87 feet; thence South 83 degrees 00 minutes 49 seconds East a
distance of 229.44 feet to a point ana curve having a radius of 374.00 feet, the radius point
which bears North 89 degrees 35 mitlutes 08 seconds West; thence northerly along said curve an
arc distance of 1.06 feetto apoint which bears South 89 degrees 44 minutes 5S seconds East
from said radius point; thence North 00 degrees 15 minutes 05 seconds East a distance of 512.91
feet; thence North 45 degrf;;:es 26 minutes 13 seconds West a distance of 59.18 feet; thence South
89 degrees 15 minutes 12 seconds West a distance of309.16 feet; thence North 00 degrees 15
minutes 45 seconds East. a distance of 45.01 feet to the North line of the Southeast Quarter of
said Section 28; thence North 89 degrees 15 minutes 12 seconds East along said north line a
distance of 800.04 feet to the Point of Beginning. Containing 10.364 acres, more or less.
Village of WestClay
Section 15001
land Description East Parcel
A part of the Southeast Quarter of Section 28, Township 18 North, Range 3 East in Clay
Township, Hamilton County, Indiana, described as follows:
Commencing at the N.orthwest .comer of said Southeast Quarter, thence North 89 degrees 15
minutes 12 seconds Ea.st (assumed bearing) along the North line thereof 1408.15 feet to the
Point of Beginning; thence North 89 degrees 15 minutes 12 seconds East continuing along
said North line 465.92 feet; thence South 00 degrees 41 minutes 22 seconds East 128.51 feet;
thence. South 45. degrees47 minutes 48 seconds East 143.41 feet; thence South 78 degrees 29
minutes 05 seconds West 75.36 feet; thence South 39 degrees 39 minutes 08 seconds East
165.67 feet; thence South 29 degrees 15 minutes 09 seconds West 118.98 feet; thence South
39 degrees 04 minutes 20 seconds West 185.10 feet; thence South 51 degrees 27 minutes 58
seconds West 346.29 feet; thence South 73 degrees 35 minutes 39 seconds West 120.62 feet;
thence North 37 degrees 27 minutes 31 seconds West 44.91 feet; thence North 51 degrees 46
minutes 52 seconds West 45.36 feet; thence North 63 degrees 14 minutes 18 seconds West
47.38 feet; thence North 72 degrees 28 minutes 36 seconcis West 121.35 feet; thence North 78
degrees 02 minutes 4ei seconds West 233.16 feet to a point :on a non-tangent curve to the left
having a radius of 426.00 feet, the radius point which bears North 78 degrees 02 minutes 45
seconds West; thence northerly along said curve 87.01 feet to a point which bears South 89
degrees 44 minutes 55 seconds East from said radius point; thence North 00 degrees 15
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minutes 05 seconds East 80.88 feet to the point of curvature of a curve to the right having a
radius of 25.00 feet, the radius point which bears South 89 degrees 44 minutes 55 seconds
East; thence northeasterly along said curve 42.62 feet to a point which bears North 07 degrees
55 minutes 52 seconds East from said radius point; thence North 07 degrees 55 minutes 52
seconds East 50.00 feet; thence North 82 degrees 04 minutes 08 seconds West. 13.48 feet to
the point of curvature of a curve to the right having a radius of 25.00 feet, the radius point which
bears North 07 degrees 55 minutes 52 seconds East; thence Northwesterly along said curve
35.92 feet to a point which bears North 68 degrees 44 minutes 55 seconds West from said
radius point; thence North 00 degrees 15 minutes 05 seconds East 177.67 feet; thence South
89 degrees 44 minutes 55 seconds East 168.91 feet; thence South 32 degrees 05 minutes 01
seconds East 50.00 feet; thence South 77 degrees 55 minutes 17 seconds East 43.40 feet;
thence North 75 degrees 13 minutes 43 seconds East 42.10 feet;. thence North 64 degrees 07
minutes 18 seconds East 115.60 feet; thence North 24 degrees 31 minutes 07 seconds East
72,95 feet; thence North 06 degrees 40 minutes 11 seconds West 127.07 feet; thence North 00
degrees 44 minutes48 !;leconds West 45.00 feet to a point on the North line of said Southeast
Quarter and the Point of Beginning. Containing 13.126 acres, more or less.
Also;
land Description West Parcel
A part of the Southeast Quarter of Section 28, Township 18 North, Range 3 East in Clay
Township, Hamilton County, Indiana, described as follows:
Commencing at the Northwest comer of said Southeast Quarter; thence North 89 degrees 15
minutes 12 seconds East (assumed bearing) along the North line thereof 608.11 feet; thence
South 00 degrees 15 minutes 45 seconds West 45.01 feet. to the Point of Beginning; thence
North 89 degrees 15 minutes 12 seconds East parallel said North line 309.16 feet; thence South
45 degrees 26 minutes 13 seconds East 59.18 feet; thence South 00 degrees 15 minutes 05
seconds West 512.91 feet to the point of curvature of a curve to the right having a radius of
374.00 feet, the radius point which bears North 89 degrees 44 minutes 55 seconds West;
thence southerly along said curve 1.06 feet to a point which bears South 89 degrees 35 minutes
08 seconds East from said radius point; thence North 83 degrees 00 minutes 49 seconds West
229.44 feet; thence North 45 degrees 30 minutes 09 seconds West 75.87 feet; thence North 86
degrees 34 minutes 22 seconds West 69.39 feet; thence North 00 degrees 15 minutes 15
seconds West 466.24 feet to the Point of Beginning. Containing 4.175 acres, more or less.
J:\1283\1501 \docs\1501 desc.doc
GSD 8-3":99
Page 5 of 5
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07/13/99
Secondary Area
Parcel No.2
SUPPLEMENTAL DECLARATION OF
COVENANTS AL'fD RESTRICTIONS
THE VILLAGE OF WESTCLA Y
199909971384
Filed for Record in
HAMILTON COUNTY, INDIANA
MARY L CLARK
On 12-13-1999 At 03:24 pm.
DEC COV RES 29.00
'\ 2 a
This Supplemental Declaration,.dated as of the 10th day of D~ber, ~y
BRENWICK TND COMMUN1TIES, LLC, an Indiana limited company, ~~ 1\ ~
.;; \\~, t"
\)OCS
. WIT NE SSE S T H A.T:
WHEREAS, the following facts are true:
A. Declarant OWflS or has the right to acquire the real estate located in Hamilton County,
Indiana, more particularly described in Exhibit A attached hereto and incorporated herein by this
reference.
B. This D~claration is a Supplemental Declaration as that term is defined in the
Declaration of Coven311ts and Restrictions.
C. Declarant intends to subdivide the Parcel into Lots upon each ofwruch a Living Unit
may be constructed.
NOW, THEREFORE, Declarant hereby makes this 'Supplemental Declaration as follows:
1. Definitions. Words, phrases and terms that are defined in the Declaration of
Covenants and Restrictions have the same meaning in this Supplemental Declaration except as
herein othen.vise provided. The following words, phrases and terms, as used in this Supplemental
Declaration, unless the context clearly requires otherwise, mean the following:
"Accessory Dwelling" means a Living Unit which is attached to or located
on the same Lot as a Principal Dwelling, has an independent means of access and is
owned by the Owner ofthe Principal Dwelling but occupied by another.
"Board ofDirec:tors" means the Board of Directors of the Corporation.
"Declaration of Covenants and. Restrictions" means the Declaration of
Covenants and Restrictions of The Village of West Clay dated as of August 9, 1999
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and recorded in the Office of the Recorder of Hamilton County, Indiana as
Instrument Number 9946964, as amended from time to time.
"Lot" means a numerically designated subdivided.parcel o~land depicted on
a Plat. .
"Owner" means any Person, including Declarant, who at any time owns the
fee simple title to a LoL
"Parcel" means that part of the real estate described in Exhibit A which is at
any time subject to the covenants, restrictions, easements, charges and liens imposed
by the Declaration of Covenants and Restrictions.
"Plat" means the secondary plat of a Section within the Parcel.
"Principal Dwelling" means a Living Unit designed as the principal structure
on the Lot.
"Section" means that part of the Parcel which is depicted on a Plat.
I. Tract" means the real estate, including all or any part of the Parcel, that is
subject to the covenants, restrictions, easements, charges and liens imposed by the
Declaration of Covenants and Restrictions.
2. Declaration. Declarant hereby declares that, in addition to the covenants, restrictions,
easements, charges and liens iuiposed by the Declaration of Covenants and Restrictions, the Parcel
shall be held, transferred, sold, conveyed and occupied subject to the covenants, restrictions,
easements, charges and liens hereinafter set forth.
3. Land Use. Lots may be used only for residential purposes as provided in Section 5.2
of the Zoning Ordinance. No portion of any Lot may be sold or subdivided such that there will be
thereby a greater number of Principal Dwellings in a Section than the number of original Lots shown
on a Plat of such Section. Not more than one (1) Principal Dwelling and not. more than one (1)
Accessory Dwelling may be located on a Lot and no Accessory Dwelling may be located on a Lot
unless a Principal Dwelling is also located thereon. Notwithstanding any provision in the 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. N o 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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.4. Construction ofLivin~ Units.
(a) Lot Develo~ment Plans. Except to the extent such requirement is
waived by Declarant, prior to commencement of any Building Activity on a Lot, a
Lot Development Plan shall be submitted to the Architectural Review Board in
accordance with the requirements of Paragraph 20 of the Declaration of Covenants
and Restrictions. The Architectural Review Board may require as part of a Lot
Development Plan a report of subsurface soils investigation of the Lot made by a
qualified .soils engineer. which report shall include recommendations for the.
foundations of the proposed improvements. Each Owner shall comply with the terms
and provisions of Paragraph 20 ofthe Declaration of Covenants and Restrictions and
the requirements of the Architectural Review Board established pursuant to the
authority granted by the Declaration of Covenants and Restrictions.
(b) Size of Living Unit. No Principal Dwelling may be constructed on
any Lot .unless such Principal Dwelling, exclusive of open porches, attached garages
and basements, shall have a gross floor area equal to or greater than the square
footage specified in the Building Guidelines applicable to the Lot as of the date
construction of the PrincipaL Dwelling on the Lot commences. No Accessory
Dwelling may contain more than eight hundred fifty (850) square feet of floor area.
(c) Building Guidelines. Each Owner shall at all times comply with the
requirements of the Building Guidelines applicable to such OWner's Lot.
(d) Building Activity. All Building Activity shall be undertaken and
completed strictly in accordance with the Building Guidelines and the Lot
DevelopmentPlan approved by the Architectural Review Board. Unless a delay is
caused by strikes, war, court injunction or acts of God. the Owner of any Lot which
on the date ofpurchase from Declarant is not improved with a Principal Dwelling
shall commence construction of a Principal Dwelling upon the Lot within six (6)
months from the date the Owner acquired title thereto and shall complete
construction of such Principal Dwelling within one (1) year after the date of
commencement of the building process, but in no event later than eighteen (18)
months after the date the Owner acquired title to the Lot unless such Lot is adjacent
to a Lot upon which the Owner has constructed a Principal Dwelling in which such
Owner permanently resides. If the Owner fails to commence or complete
construction of a Principal pwelling within the ti!-11e 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 othernise dispose of, the Lot
before completion of construction of a Principal Dwelling on the Lot, then, in any of
such events, Declarant may:
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(i)
(ii)
. (iii)
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 I as the Owner may prove to have incurred
in connection with the commencement of construction
of a Principal Dwelling 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;
obtain injunctive relief to force the Owner to proceed
with construction of any Principal Dwelling, a Lot
Development Plan for which has been approved by
the Architectural Review Board upon application by
such Owner; or
pursue such other remedies at law or in equity as may
be available to Declarant.
The failure ofthe Owner of a Lot to apply for approval of, orreceive approval
from, the Architectural Review Board of a Lot Development Plan shall not relieve
slich Owner from his obligation to complete construction of a Principal Dwelling
upon the Lot within the time period specified herein. For the purposes of this
subparagraph (d), construction of a Principal Dwelling will be deemed" completed"
when the exterior of the Principal Dwelling (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.
(e) Septic Svstems. No septic tank, absorption field or any other on-site
sewage disposal system (other than a lateral main connected to a sanitary sewerage
c.ollection system operated by the Clay Township Regional Waste District or a
successor public agency or public utility) shall be installed or maintained on any Lot.
(f) 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 of Health, 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
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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 the Lake
or a Pond.
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(g) 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 Parcel may be included in a legal drain established by
the Drainage Board. In ~uch event, each Lot in the ParceL will be subj ect to
assessment by the Drainage Board Ear the costs of maintenance of the portion of the
Drainage System and/or the Lakfes included in such legal drain, which assessment
will be a lien against the Lot. The elevation of a Lot shall hot be changed so as to
affect materially the surface elevation or grade of surrounding 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.
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(h) Geothermal Systems. No open loop geothermal heating and cooling
system shall be installed on a Lot.
5. Maintenance of Lots.
(a) Vehicle Parking. No recreationaL vehicle, motor home, truck which
exceeds % ton in weight, trailer, boat or disabled vehicle may be parked or stored
overnight or longer OIl any Lot in open public view.
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(b) Signs. Except for such signs as Declarant may in its .absoLute
discretion display in connection with the development ofthe Village of West Clay or
the Parcel and the sale of Lots therein, such. signs as may be located on the
Community Area and slich signs as may, with the consent of Declarant, be displayed
by a Designated Builder to advertise the property during construction and sale of
Living Units and the maintenance of model homes, no sign of any kind shall be
displayed to the pliblic view on any Lot without the prior approval of the
Architectural Review Board 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.
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( c) Sight Lines. No fence, wall, hedge or shrub planting which obstructs
sight lines at elevations between thirty (30) and seventy-two (72) inches 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 line 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.
(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.
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( e) 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
nUlsance.
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(f) 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.
(g) Animals. 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 designated by
the Board of Directors may be kept provided that they are not kept, bred or
maintained for any commercial purpose. The owners of such permitted pets shall
confine them to their respective Lots such that they will not be a nuisance. Owners
of dogs shall so control or confine them so as to avoid barking which will annoy or
disturb adjoining Owners.
(h) 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.
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(i) Exterior Lights. Except for such alley lights as may be required by
the Building Guidelines, no exterior lights shall be erected or maintained between the
building line and rear lot line so as to shine or reflect directly upon another Lot.
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U) Electric Bug Killers. Electric bug killers, "zappers" and other similar
devices shall not be installed at a location or locations which will result in the
operation thereofbecoming a nuisance or annoyance to other Owners and shall only
be operated when outside activities require the use thereof and not continuously.
(k) Air Conditioners. No room air conditioning unit shall be installed so
as to protrude from any structure located on a Lot (including but not limited to the
window of any Living Unit or garage) if the same would be visible from a public
way, a Community.Area or any other Lot; provided, however, that this Restriction
shall not apply to central air conditioning units.
(1) Fences and Walls. No walls or fences shall be erected on any Lot
without the prior approval of the Architectural Review Board. Each Owner shall
maintain any approved wall at fence in good and sightly condition and in compliance
with the requirements of the Building Guidelines. .
- (m) Swimming Pools. No above ground swimming pools, other than a
children's wailing pool, shall be installed or maintained on aLot.
(n) Basketball Goals. No basketball goal shall be placed or maintained
in the front driveway of a Lot 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 0 fa translucent material such as fiberglass
or Lexan and attached to a black pole or a 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.
6. General Community Rules. Each Lot shall be subject to the guidelines, rules,
regulations and procedures adopted by Declarant, the Corporation and the Architectural Review
Board pursuant to authority granted by the Declaration of Covenants and Restrictions and all
Supplemental Declarations, and each Owner of a Lot shall at all times comply therewith.
7. Assessments. The Board of Directors may make Assessments to cover any costs
incurred in enforcing these Restrictions or in undertaking any maintenance or other activity that is
the responsibility of the Owner of a Lot hereunder but which such Owner has not undertaken as
required hereunder. Any such Assessment shall be assessed only against those Owners 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.
8. Electoral Parcel. The Parcel shall constitute an Electoral Parcel for the purpose of
election of the Board of Directors.
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9. Enforcement. The right to enforce each of the foregoing Restrictions by injunction,
together with the right to cause the removal by due process oflaw 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 Parcel, their heirs and assigns, and to the Zoning Authority, their
successors and assigns, who are entitled to such relief withotlt 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 Supplemental Declaration. There shall be no rights of reversion or forfeiture of
title resulting from any'violations.
10. Severability. Invalidation of any of these covenants and restrictions or any part
thereof by judgment or court order shall not affect or render the remainder of said covenants and
restrictions invalid or inoperative.
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11. Non-Liability of Declarant. Declarant shall have no duties, obligations or liabilities
hereunder except such as are expressly assumed by Declarant, and no duty of, or warranty by,
Declarant shall be implied by or inferred from any term or. provision of this Supplemental
Declaration.
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12. General Provisions. This SupplementalDeclaration may be amended at any time in
the manner provided in paragraph 29 of the Declaration of Covenants and Restrictions except that
no amendment adopted pursuant to Paragraph 29(a) oftheDeclarationofCovenants and Restrictions
shall be effective as against a Mortgagee who subsequently acquires title to a Lot unless approved
by at least two-thirds (2/3) of the Mortgagees who hold firstmortgages on the Lots in the Parcel
(based on one vote for each fIrst mortgage owned) or at least two-thirds (2/3) of the Owners ofthe
Lots in the Parcel (excluding Declarant).
Except as the same may be amended from time to time, the foregoing restrictions will be in
full force and effect until January 1, 2030, at which time they will be automatically extended for
successive periods often (10) years, unless by a vote of the majority of the then Owners of Lots in
the Parcel it is agreed that these Restrictions shall terminate in whole or in part.
IN VlITNESS WHEREOF, this Supplemental Declaration has been executed as ofthe date
first above written.
BRENVlICK TND COMMUNITIES, C
Torn Charles Huston, Co-Manager
By
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STATE OF INDIANA )
) S8:
COUNTY OF HAMILTON )
Before me, a Notary Public in and for said CoUnty and State, personally appeared Tom
Charles Huston, the Co-Manager ofBrenwick TND Communities, LLC, an Indiana limited liability
company, who acknowledged execution of the foregoing Supplemental Declaration of Covenants
and Restrictions for and on behalf of said limited partnership.
WITNESS my hand and Notarial Seal this 1 nt-h day of December, 1999.
'yn f#~ m.. IJL. .~J(
Notary Public Residing in HF>n(3r; t:k~ounty
My Commission Expires:
JyIa~i'i' M n.,..i dr
May 24. 2007
(printed signature
This instrument prepared by Tom Charles Huston, Attorney at Law I 1313 Merchants Bank Building,
11 South Meridian Street, Indianapolis, Indiana 46204.
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EXHIBIT A
Real Estate DescriDtion
A part of the Southeast Quarter and the Southwest Quarter of Section 28, Township 18
North, Range 3 East along with a part of the Northwest Quarter of Section 33, Township
18 North, Range 3 East in Hamilton County, Indiana, described as follows:
Beginning at the Southeast corner of said SoutheastQuarter; thence North 00 degrees
07 minutes 17 seconds East along the East line of said Southeast Quarter 1366.21 feet;
thence South 89 degrees 23 minutes 24 seconds West 233.83 feet; thence South 57
degrees 32 minutes 42 seconds West 117.40 feet; thence South 87 degrees 59 minutes
. 00' seconds West 113,97 feet; thence South 76 degrees 37 minutes 49 seconds West
65.20 feet; thence South.57 degrees 12 minutes 48 seconds West 63.49 feet; thence
South 18 degrees 36 minutes 11 seconds East 200.22 feet; thence South 66 degrees
04 minute~ 45 seconds West 87.99 feet to the point of curvature of a curve to the right
having a radius of 475.00 feet, the radius point which bears North 23 degrees 55
minutes 15 seconds West; thence westerly along said curve 471..99 feet to a point
which bears South 33 degrees 00 minutes 41 seconds West from said radius point;
thence North 56 degrees 59 minutes 19 seconds West 278.42 feet to the point of
curvature of a curve to the left having a radius of 575.00 feet, the radius point which
bears South 33 degrees 00 minutes 41 seconds We$t; thence Northwesterly along said
curve 413.88 feetto a point which bears North 08 degr€;!es 13 minutes 46 seconds West
from said radius point: thence South 81 degrees 46 minutes 14 'seconds West 149.04
feet to. the paint, of curvature ota curve to the left having a radius of 175.00 feet, the
radius point which bears South 08 degrees 13 minutes 46 seconds East; thence
sauthwesterly along said curve 126.72 feet to a point which bears North 49 degrees 43
minutes 02 seconds West from said radius point; thence South 40 degrees 16 minutes
58 seconds West 223.56 feet to. the point af curvature of a curve to the right having a
radius of 725.00 feet, the radius point which bears North 49 degrees 42 minutes 02
seconds West; thence southwesterly along said curve 571.95 feet to. a point which
bears South 04 degrees 31 minutes 02 seconds East from said radius point; thence
So.uth 85 degrees 28 minutes 58 seco.nds West 166.70 feet; thence South 85 degrees
09 minutes 54 seco.nds West 51.14 feet; thence South 83 degrees 00 minutes 19
seconds West 107.19 feet; thence Sauth 21 degrees 30 minutes 37 secands West
126.27 feet; thence Sauth 19 degrees 50 minutes 00 seco.nds East 352.19 feet to a
nan-tangent curve to. the left having a radius of 725.00 feet, the radius paint which bears
So.uth 29 degrees 46 minutes 49 seconds East; thence southwesterly along said curve
85.60 feet to. a paint which bears Narth 36 degrees 32 minutes 43 seconds West from
said radius point; thence North 46 degrees 29 minutes 32 seconds West 339.40 feet;
thence South 69 degrees 37 minutes 04 seconds West 66.74 feet to. a non-tangent
curve to the left having a radius o.f120'.97 feet, the'radius point which bears South 71
degrees 16 minutes 32 seconds West; thence northerly along said curve 1.59 feet to a
point on a southeasterly line of the platted subdivision Village of Westclay, Section
3001-A, Village Center, Part 2, recorded as Instrument number 19990996987 (p~C. 2,
Slide 363) in the Office of the Hamilton County Recarder, which point bears North 70
degrees 31 minutes 23 seconds East from said radius point (the next six caurses lying
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along said subdivision) ; thence South 70 degrees 31 minutes 23 seconds West 50.00
feet to a non-tangent curve to the. left having a radius of 70.97 feet, the radius point
which bears South 70 degrees 31 minutes 23 seconds. West; thence northerly along
said curve 5.16 feet to a point which bears North 66 degrees 21 minutes 15 seconds
East from said radius point; thence South 44 degrees 51 minutes 41 seconds West
132.08 feet to a non-tangent curve to the left having a radius af 70.97 feet, the radius
point which bears North 23 degrees 22 minutes 27 seconds East; thence southeasterly
along said curve 5.16 feet to a point which bears South 19 degrees 12 minutes 19
seconds West from said radius point; thence South 19 degrees 1.2 minutes 19 seconds
West 50.00 feet toa non-tangent curve to the right having a radius of 120.97 feet, the
radius point which bears North 19 degrees 12 minutes 19 seconds East; thence
westerly along said curve 6..14 feet to a point which bears South 22 degrees 06 minutes
41 seconds West from said radius point, said point being a northeasterly corner of the
Plat of Village of WestcJay Provost Park as recorded as Instrument number
199909969686 (P.C. 2, Slide 362) In the Office of the Hamilton County Recorder (the
following seven courses are along the northerly line of Provost Park); thence South 23
degrees 46 minutes 13seconds West 66.74 feet; thence South 40 degrees 07 minutes
12 seconds East 199.18 feet; thence South 09 degrees 30 minutes 30 seconds West
119.92 feet; thence South 43 degrees 18 minutes 22 seconds East 153.76 feet; thence
South 88 degrees 18 minutes 22 seconds East 299.55 feet; thence North 46 degrees 41
minutes 38 seconds East 139.6"2; thence North 87 degrees 01 minutes 41 seconds East
. 84.72 feet to the Southwest corner of. the Southeast Quarter of said Section 28; thence
North 89 degrees 23 minutes 24 seconds East along the south line of said Southeast
Quarter 2672.37 feet to the Point.ofBeginning. Containing 78.480 acres, more or less.
J:\1238\OO l\legals\electoraI\S-2 LAND DESCRIPTION. DOC
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199909971388
Filed for Record in
Hi=!MILTON COUNTY INDli=!Ni=!
MARY L CLARK I
On 12-13-1999 At 03:24 pm.
DEC COV RES 41.00
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Townhomes
SUPPLEMENTAL DE'CLARATION OF
COVENANTS AND RESTRICTIONS
THE VILLAGE OF WESTCLA Y
This Supplemental Declaration, dated as of the ...1Q:!:h day of December, 1999, by B
COMMUNITIES, LLC, an Indiana limited company, "
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WIT N E SSE S T H A T:,,~'i \\ ~M~
noes
WHEREAS, the following facts are true:
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A. Declarant owns the real estate located in Hamilton County, Indiana, more particularly described in
Exhibit A attached hereto and incorporated herein by this reference.
B. This instrument is a Supplemental Declaration as thatterm is defined in the Declaration of Covenants
and Restrictions.
C. Declarant intends to subdivide the Section into Block LotsuPOIl each of which a Living Unit may
be constructed.
NOW, THEREFORE, Declarant hereby makes this Supplemental Declaration as follows:
1. Definitions. Words, phrases and terms that are defined in the Declaration of Covenants and
Restrictions have the same meaning in this Supplemental Declaration except as herein otherwise provided. The
following words, phrases and terms, as used in this Supplemental Declaration, unless the context clearly requires
otherwise, mean the following:
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"Board of Directors" or "Board" means the board of directors of the Corporation.
"Block" means each of Blocks A, B, C, D, E and F as depicted on the Conditional
Secondary Plat.
"Block Lot" means any Lot located on a Block, as depicted on the Final Secondary
Plat.
"Owner" means any Person who at any time owns the fee simple title to a Block Lot.
"Condi tioIlal Secondary Plat" means the plat depicting the subdivision of the Section
into Blo9f~ re~o.ld~d in the Office of the Recorder of Hamilton County as Instrument
Numbe~3
"Common Expenses" means expenses for the improvement, maintenance, repair,
replacement and operation of the Structures and all sums lawfully assessed against the
Owners by the Corporation or as declared by this Supplernental Declaration, including but
not limited to premiums on insurance maintained by the Board pursuant to Paragraph 7.
"Declaration of Covenants and Restrictions or "Declaration" means the
Declaration of Covenants and Restrictions of The Village of West Clay dated as of
August 9, 1999 and recorded in the Office of the Recorder of Hamilton County,
Indiana as Instrument Number 9946964, as amended from ~ime to time.
"Encroachment" means the encroachment upon a Block Lot, public right-of-way,
Cornmon Parking Lot or Community Area by any Living Unit or any stoop, porch, steps,
arcade, overhang or other structure or improvement constituting a part thereof or an
appurtenance thereto as a result of the construction of a Living Unit substantially in
accordance with a Lot Development Plan approved by the Architectural Review Board, or
as a result of the settling or shifting thereof.
"Final Secondary Plat" means a plat depicting the subdivision of one or more Blocks
into Block Lots recorded in the Office of the Recorder of Hamilton County.
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"Insurance Trustee" means such baIlk with trust powers authorized to do business in
Hamilton or Marion Counties, Indiana, as the Board of Directors may designate for the
custody and disposition, as herein provided, of insurance proceeds.
"Majority oftheOvmers" means the Owners of not less than 51 % of the Block Lots.
"Parcel" means, for the purpose of Paragraph 15, the real estate described in Exhibit
A together with such additional real estate as is designated by Declarant for development of
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townhomes and is subject to a Supplemental Declaration-which declares that it is a part of
the "Townhomes Parcel." For the purposes of Paragraph 12, the Section shall be deemed a
Parcel within the contemplation of Paragraph 19(e) of the Declaration.
"Primary Area,Suoolemental Declaration" means the Supplemental Declaration for
Parcell of me Primary Area recorded in the Office ofthe Recorder of Hamilton County as
Instrument Number 9967430.
"Restoration" means (re)construction or (re)building of Living Units to not less than
the same condition as they existed immediately prior to any loss, damage or destruction with
the same type of architecture and using, where appropriate, new materials of like kind and
quality.
. "Section" means the real estate depicted on the Conditional Secondary Plat.
"Section Assessment" means the Parcel Assessment applicable to the Section
pursuant to the provisions of Paragraph 12.
"Structures" mens the foundations, exterior walls (exclusive of glass but inclusive
of doors, door frames and window frames), balconies, porches, and roofs of Living Units.
2. Declaration. Declarant hereby declares that, in addition to the covenants, restrictions,
easements, charges and liens imposed by the Declaration of Covenants and Restrictions and the
Parcel Supplemental Declaration, the Section shall be held, transferred, sold, conveyed and occupied
subj ect to the covenants, restrictions, easements, charges and liens hereinafter set forth.
3. Description of Block Lots. Declarant plans to subdivide the Section into i~ (6)
Blocks designated HA" through HF" containing not more than thirty (30) BlockLots. The boundaries
of each Block Lot shall be as shown on a Final Secondary Plat.
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4. Land Use. No portion of any Block Lot may be sold or subdivided such that there
will be thereby a greater number of Living Units in the Section than the number of original Block
Lots shown on the Final Secondary Plats.
5. Party Walls.
(a) GeIieralRules of Law to Applv. Each wall that is built as a part of the
original constructionofa Living Unit and placed on the dividing line between Block
Lots shall constitute a party wall and, to the extent n9t inconsistent with the
provisions of this Paragraph 5, the general rules of Indiana law regarding party walls
shall apply thereto.
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(b) Sharing of Repair and Maintenance. The cost of routine repair and
maintenance of a party wall shall be shared equally by the Owners who make use of
the wall.
(c) Destruction by Fire or Other Casualty. Ifa party wall is destroyed or
damaged by fire or other cause, and the affected Living Units are to be restored
pursuant to the provisions of Paragraph 6, then the Corporation shall restore it. If the
Corporation is not required to so restore the party wall, then either Owner who has
used the wall may restore it, and if the other Owner thereafter makes use of the wall,
he shall contribute equally to the cost of restoration thereof unless the restoring
Owner has the right to call fat a larger contribution from the subsequent user under
a rule oflaw regarding liability for negligent or willful acts or omissions, in which
event the subsequent uSer shall make such larger contribution as may be lawfully
determined.
(d) Weatherproofing. An Owner who by his negligent or willful act or
omission causes the party wall to be exposed to the elements shall furnish the
necessary protection against such elements and shall bear the entire cost thereof.
(e) Rights and Duties Run with Land, The rights and duties of an Owner
with respect to a party wall under this Paragraph 5 shall be appurtenant to such
Owner's Block Lot and shall pass to the successor in title of such Owner.
6. Dama~e and Restoration. In the event of damage or destruction of a Living Unit by
fire or other cause, the following provisions shall be applicable:
(a) Partial Destruction. In the event that less than allofthe Living Units
in a Block are completely destroyed by the occurrence of tire or other cause, then the
Corporation shall cause the damaged Living Units to be promptly repaired and
restored as nearly as possible to the quality, utility, value, condition and character as
existed prior to such damage. Such restoration shall conform to the Lot
Development Plan originally' approved for each damaged Living Unit except to the
extent that deviations therefrom have been approved in writing by the Architectural
Review Board. The proceeds of the insurance carried by the Corporation shall be
applied to the cost of such Restoration. If the insurance proceeds are not adequate
to cover the cost of Restoration, or in the event there are no proceeds, the cost for
restoring the damage shall be paid 'by all of the OWilers of the Living Units directly
affected by the damage in the proportion that the gross area Qf each affected Living
Unit bears to the gross area of all affected Living Units. Living Units shall be
deemed to be directly affected if, and only if, such Living Unit is located within the
Block in which the fire or other damage occurs. If any Owner refuses or fails to
make the required payments, the other Owners shall (or the Corporation, ifsuch other
Owners fail to do so) complete the Restoration and pay the cost thereof, and the costs
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attributable to the Owner or Owners who refuse or fail to make such payments at the
time required by the Board of Directors shall become a lien on such defaulting
Owner's Living Unit and maybe foreclosed in the same manner as provided for the
lien for Assessments,
(b) Restoration in the Event of Complete Destruction. In the event of
complete destruction of all the Living Units in a Block, no Owner shall be required
to rebuild his LivingUnit, butheshall be required to remove in a timely manner all
debris from the Block Lot and promptly landscape his Block Lot in accordance with
a landscaping plan approved by the ArchitecturalReview Board.
(c) Determination of Complete Destruction. It shall be conclusively
presumed that complete destruction of all Living Units did not occur unless it is
determined by vote of not less than ninety percent (90%) all Owners of Block Lots
in the Section at a special meeting of such Owners held within one hundred twenty
(120) days following the date .of damage or destruction that all Living Units have
been c'ompletely destroyed. In the event of a determination of complete destruction,
insurance proceeds shall be payable in accordance with the terms of the insurance
policy covering such loss. .
7. Insurance.
(a) Coverage. The Board of Directors on behalf ofthe Owners and as a
Common Expense shall cause to be obtained and kept in full force and effect at all
times casualty or physical damage insurance in an amount equal to the full
replacement cost of the Living Units as initially constructed, without deduction or.
allowance for depreciation in excess of One Thousand Dollars ($1,000.00), such
coverage to be underwritten by a company or companies duly authorized to do
business in Indiana and to afford protection against at least the following:
(i) loss of damage by fire or other hazards covered by the
standard extended coverage endorsement; and
(ii) such other risks as are customarily covered with
respect to proj ects similar in construction, location and use, as the
Board may from time to time determine.
The provisions of this Paragraph 7 shall not be construed to limit the power or
authority of the Board to obtain and maintain insurance coverage, in addition to any
insurance coverage required hereunder, in such amounts and in such forms as the
Board or a Majority of the Owners may deem appropriate from time to time.
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As used in this subparagraph (a), the term "Living Units as initially
constructed" means the Structures, and the standard partition walls, fixtures, pipes,
wires, conduit and installations initially installed in Living Units by the original
builder thereof, as shown on the Lot Development Planas amended from time to
time, and replacements thereof, but does not mean any fixtures, alterations,
installations or additiolls in or to the Living Unit made by an individual Owner of
that Living Unit or any personal property of such Owner.
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(b) Form. Insurance shall be carried in a form or forms naming as the
insured the Board of Directors as trustee for all Owners and Mortgagees according
to the loss or damage to their respective Living Units and payable in case of lo~s to
the Insurance Trustee. Every such policy of insurance shall, if obtainable at a
reasonable cost:
(i) provide that the liability of the insurer thereunder shall
not be affectedpy,and that the insurer shall not claim any right of
set-off, counterclaim, apportionment, proration, or contribution by
reason of any other insurance obtained by or for any Owner;
(ii) contain no provisions relieving the insurer from
liability for loss occurring while the hazard to such building is
increased, whether or not within the knowledge or control of the
Board, or because of any breach ofwarranty or condition or any other
act or neglect by the Board or any Owner or any other Person under
either ofthem;
(iii) provide that such policymaynotbecanceled (whether
or not requested by the Board) except by the insurer giving at least
thirty (30) days' prior written notice thereofto theBoard, all Owners,
all Mortgagees and every other Person in interest who shall have
requested such notice of the insurer;
(iv) contain a waiver by the insurer of any right of
subrogation to any right of the Board or Owners against any ofthem
or any other Person under them;
(v) provide that notwithstanding any- provision thereof
giving the insurer an election to restore damage in lieu of a cash
settlement, such option shall not be exercisable in the event the
Owners do not elect to restore pursuant to Paragraph 6. of this
Supplemental Declaration;
(vi) contain a standard mortgagee clause which shall:
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(A) provide that any reference to a
mortgagee in such policy shall mean and include any
Mortgagee, whether or not named therein;
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(B) provide that such insurance as to the
interest of any Mortgagee shall not be invalidated by
any act or neglect of the Board or any Owner, or any
Persons under any of them;
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(C) waive any provision invalidating such
mortgagee clauses by reason of the failure of any
Mortgagee to notify the insurer of any hazardous use
or vacancy, and requirement that the Mortgagee pay
any premium thereon, and any contribution clause; .
and
(D) provide that without affecting any
protec#on afforded by such mortgagee clause, any
proceeds payable under such policy shall be payable
to the Insurance Trustee.
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(c) Allocation of Insurance Proceeds. In the event of damage or
destruction by fire or other cause to Living Units covered by insurance written in the
name of the Board as trustee for Owners and their Mortgagees, proceeds on account
of such damage to Living Units shall be allocated as follows:
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(i) If the Living Unit is to be restored, insurance proceeds
shall be allocated to such Living Unit in the proportion that the cost
of Restoration of such Living Unitbears to the cost of Restoration of
all damaged Living Units, such cost to be determined by the Board.
In determining such cost, the Board shall not take into consideration
the cost of repairing any items specifically excluded from insurance
c~verage pursuant to the provision of subparagraph (a).
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(ii) If the Living Unit is not to be restored, insurance
proceeds shall be allocated to such Living Unit in accordance with the
terms of the policy insuring such loss.
(iii) In the event a mortgage endorsement has been issued
with respectto a particular Living Unit, the amount of the insurance
proceeds allocatedto the O'l'Vller of such Living Unit shall be held in
trust for the mortgagee and. the Owner as their interests may appear;
provided, bowever, that no mortgagee shall have the right to
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determine or participate in the determination as to whether or not any
damaged property shall be restored or repaired, and no mortgagee
shall have any.rightto apply or to have applied to the reduction of a
mortgage debt any insurance proceeds except distributions thereof
made to the Owner and mortgagee pursuann~ the provisions of this
Supplemental Declaration.
(d) Distribution of Insurance Proceeds. Proceeds of insurance policies
received by the Insurance Trustee shall be distributed to or for the benefit of the
Owners and their mortgagees as their respective interests appear, in the following
. manner:
(i) Expense of Trust. All expenses of the Insurance
Trustee shall be fIrst paid or provision made therefor.
(ii) Reconstruction or Repair. If the damage for which the
proceeds are paid is to be repaired or reconstructed, the remaining
proceeds shall be paid to defray the cost thereof pursuant to the
provisions of Paragraph 8.
(iii) Failure to Reconstruct or Repair. If it is determined
that the damage for which the proceeds are paid shall not be
reconstructed or repaired, the remaining proceeds shall be distributed
to the Owners in the proportions that the proceeds 'Yere allocated to
the .owners pursuant to Paragraph 8( c)(ii).
(iv) Certificate. In making distributions to Owners and
their mortgagees, the Insurance Trustee may rely upon a certificate
issued by the Board as to the names of the OYlIlers and their
respective shares of the distribution, and, withrespect to the names
of mortgagees, may rely upon a certificate from an attorney-at-law,
or title insurance company; who has examined the Mortgage Records
in the office of the Recorder of Hamilton County, Indiana, as to the
names of the holders of mortgages of record.
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(e) Corporation as OYlIler's Agent. The Corporation, acting by its Board
of Directors, is hereby irrevocably appointed agent for each OYlIler and for each
owner of a mortgage or other lien upon a Living Unit and for each owner of any other
interest in a Living Unit to negotiate all claims arising under insurance policies
purchased by the Board, and to execute and deliver releases upon the payment of
claims.
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(f) . Individual Policies - Recommendation of Declarant. Any Owner or
Mortgagee may obtain at his own. expense additionalinsurance for improvements and
betterments to a Living Unit made or acquired at the expense of the Owner. The
Board of Directors may require that such insurance provide that it shall be without
contribution as against the insurance maintained by the Board of Directors. Such
insurance shall containthe same waiver of subrogation provision as that set forth in
subparagraph (b )(iv). If an insured loss is sustained to a Living Unit and the amount
of insurance proceeds that would otherwise be payable to the Insurance Trustee is
reduced due to proration of insurance purchased pursuant to this subparagraph, the
Owner shall assign the proceeds of the personally purchased insurance, to the extent
of the amount of the reduction, to the Insurance Trustee to be distributed as provided
in subparagraph (d). The Declarant recommends that:each Owner obtain, in addition
to the insurance hereinabove provided to be obtained by the Board of Directors, a
policy insuring against loss or damage to personal property used or incidental to the
occupancyofthe Living Unit and insuring the Owner-against loss as a result of fire,
extended coverage perils, vandalism or malicious mischief, theft, personal liability
and the like. Such policy should also cover losses to improvements and betterments
to the Living Unit made or acquired at the expense of the Owner.
8. Procedure for Restoration or Repair. If as a result of damage or destruction to a
Living Unit by fire or other cause, Restoration or repair of the Living Unit is required or authorized
pursuant to Paragraph 6, such Restoration or repair shall be undertaken in accordance with the
following provisions:
(a) Estimate of Cost. Promptly after the occurrence of the damage or
destruction to the Living Unit that the Corporation has the responsibility to restore
or repair, the Board shall obtain reliable and detailed estimates of the cost to restore
or repair. In the event of damage to any Living Units exceeding Fifty Thousand
Dollars ($50,000.00), the Board shall retain the services of an architect to supervise
the Restoration or repair and the disbursement of the construction funds.
(b) Plans and Specifications. Any Restoration or. repair must be either
substantially in accordance with the original Lot Development Plan for the Living
Unit or according to plans and specifications approved by the Architectural Review
Board and by a Majority of the Owners of the Living Units in the Block, which
approval shall not be unreasonably withheld.
(c) Sealed Bids. The Board shall advertise for sealed bids with licensed
contractors~ and then may negotiate with any contractor, who may be required to
provide a full performance and payment bond for the Restoration or repair of the
damaged Living Units.
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(d) Responsibility. If the damage is only to those parts of a Living Unit
for which the responsibility ofmaintenance and repair is that of an Owner, then the
Owner of the Living Unit shall be responsible for the cost of Restoration and repair.
The Restoration or repair of a damaged Living Unit shall be subject to approval by
the Architectural Review Board. '
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(e) Construction Funds. The funds for payment of the costs of
Restoration or repair, which shall consist of the proceeds of insurance held by or
payable to the Insurance Trustee, such amounts from the reserve for replacements as .
are authorized by the Board for th~ purpose of Restoration or repair, and the funds
collected by the Board from any Special Assessments against Owners deemed
necessary by the Board to satisfy its Restoration or repair obligations under this
Supplemental Declaration, shall be deposited with the Insurance Trustee who shall
disburse the same in payment of the costs of Restoration or repair as provided in this
Paragraph 8.
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(f) Certificates. The Insurance Trustee may rely upon a certificate from
the Board to determine whether or not the damaged Living Unit is to be restored or
repaired and upon a certificate from the architect employed by theBoard to supervise
the Restoration or repair with respect to the payments to be made to contractors
undertaking the Restoration andlor repair.
(g) Insurance Trustee. The Insurance Trustee shall not be liable for
payment ofiIlsurancepremiums, the renewal orthe sufficiency of insurance policies,
nor for the failure to collect any insurance proceeds. The duty of the Insurance
Trustee shall be to receive such proceeds as are paid and to hold the same in trust for
the purposes herein stated, and for the benefit of the Owners and their Mortgagees
as herein provided.
9. Advisory Committee. In order to assist the Board in establishing the budget for
annual maintenance and repair of the Living Units, subsequent to the Applicable Date there shall be
created an Advisory Committee consisting of three (3) Persons elected annually by the Owners of
Living Units in the Section. The Owners of each Living Unit in the Section shall have one (1) vote
and the three (3) Persons receiving the largest ntimber of votes cast by Owners of Living Units in
the Section shall be elected to the Advisory Conunittee. The members of the Advisory Committee
shall elect from among theirmembership a President, a Secretary and such other officers as they may
deem appropriate. The Advisory Committee shall perform such functions as are specified herein and
such other functions as are not in c.onflict with the terms of the Declaration of Covenants and
Restrictions, the Primary Area Supplemental Declaration or this Supplemental Declaration, or in
derogation of the rights of the Corporation, as they may by majority vote determine.
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10. Maintenance, Reoairs and Replacements.
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(a) Living Unit Interiors. Each Owner shall, at his own expense, be
responsible for all maintenance, repair, decoration and replacement within his own
Living Unit, and each Owner shall promptly perform all maintenance and repair
therein which, if neglected, might adversely affect the structural integrity of his
Living Unit. In the event that the maintenance or repair of any Living Unit is
reasonably necessary in the discretion of the Board of Directors to preserve the
structural integrity of a Living Unit, or is otherwise necessary for the health and
safety, or in the interest of general welfare, of the Owners of Block Lots in the
Section, the Board of Directors. shall have the power to undertake such maintenance
or repair; provided that no such maintenance or repair shan be undertaken without
a resolution ofthe Board of Directors and reasonable written notice to the Owner of
the Living Unit proposed to be maintained and, provided further, that the cost thereof
shall be 3.$sessed asa Special Assessment against the Living Unit on which such
maintenance orrepairis performed and, when so assessed, a statement for the amount
thereof shall be rendered promptly to the then Owner of said Living Unit at which
time the Assessment .shall become due and payable and a continuing lien and
obligation of said Owner in all respects as provided in Paragraph 9(i) of the
Declaration of Covenants and Restrictions.
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(b) Lawn Maintenance. At the request of an Owner, the Corporation
may arrange for maintenance of the lawn of such Owner's Block Lot and assess the
cost thereof directly to the Owner requesting such service.
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(c) Structures. Each Owner shall, at his own expense, be responsible
for all maintenance of and repairs to the Structures necessitated by his negligence,
misuse or neglect except to the extent covered by insurance maintained by the
Corporation pursuant to Paragraph 7. All other maintenance, repairs and
replacem.ents to the Structures shall be furnished by the Corporation and the cost
thereofshall.be a Common Expense. The Board of Directors may adopt rules and
regulations concerning the maintenance, repair and replacement of the Structures and
may establish reserves with respect thereto as part of the Common Expenses for
which Assessments shall be made against the Owners of Living Units as provided in
Paragraph 12.
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(d) Right of Entry. The Board of Directors, the Architectural Review
, Board, any managing agent employed by the Board of Directors, or any other Person
authorized by the Board, of Directors or such managing agent shall have the right, at
reasonable times and upon reasonable prior notice (except in cases of emergency in
which no notice shall be required), to enter upon the Block Lots and to have access
to the Structures for the purposes of inspection thereof and replacement, repair and
maintenance of the same.
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11. Architectural Review Board. The Architectural Review Board shall have full power
and authority to adopt and enforce rules and regulations appropriate to the Section. In addition, the
Architectural Review Board shall have full power and authority to interpret, administer and enforce
the Restrictions set forth in the Declaration of Covenants and Restrictions, as amended and
supplemented. Nothing contained in this Supplementary Declaration is intended to, or shall be
construed as, in any manner limiting the regulatory authority ofthe Architectural Review Board as
that authority is se~ forth in the Declaration of Covenants and Restrictions.
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12. Section Assessment.
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(a) Purpose. The Annual Section Assessment shall be used exclusively
for the improvement, maintenance, repair, replacement and operation of the
Structures and the payment of Common Expenses and other costs and expenses
incurred by the Corporation in performing its rights and duties hereunder.
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(b) Preparation of Annual Budget. Each year prior to the Applicable Date
Declarant, and subsequent to the Applicable Date the Advisory Committee, shall
cause to be prepared an annual budget estimating the total amount of the Common
Expenses for the ensuing fiscal year (including without limitation an amount for
working capital, a general operating reserve, areserve for replacements and the sums
necessary to make up any deficit in the Cornman Expenses for any prior year). Not
less than ten (10) days prior to the date of a meeting of the Board of Directors at
which the annual budget of the Corporation will be adopted which occurs subsequent
to the Applicable Date, the Advisory Committee shall hold a public hearing, after
having given due notice, at which Owners may comment upon the proposed budget,
a copy of which shall have been provided to each Owner at least five (5) days prior
to such public hearing. Following such public hearing and prior to the date of the
budget meeting of the Board of Directors, the annual budget shall be approved by not
less than a majority of the members of the Advisory Committee then serving for
recommendation to the Board of Directors as the basis for the Annual Section
Assessment for the ensuing assessment year.
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(c) Basis for Assessment.
(i) Improved Block Lots. Each Block Lot upon which a
Living Unit has been constructed shall be assessed at a rate which is
uniform for the type of Living Unit located thereon, adjusted to
reflect special services provided, if any, and differences in per Living
Unit insurance premiums. .
. (ii) Unimproved Block Lots. A Block Lot upon which a
Living Unit has not been constructed shall not be subject to
assessment.
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(d) Annual Section Assessments. The annual budget as determined by
Declarant or, subsequent to the Applicable Date, recommended by the Advisory
Committee shall, based au the estimated requirement for Common Expenses in the
ensuing fiscal year as set forth in such budget, contain a proposed assessment against
each Block Lot subj.ect to assessment determined on the 'basis set forth in
subparagraph (c). Immediately following the adoption of the budget by the Board
of Directors pursuant to the provisions of subparagraph (e), the Secretary of the
Corporation shall give each Owner written notice of the Annual Section Assessment
against each Block Lot subject to assessment for the ensuing fiscal year of the
Corporation. The Annual Section Assessment against each such Block Lot shall be
paid in equal monthly installments commencing on the first day ofllie first calendar
month of each assessment year and on the first day of each calendar IIlonththereafter
through and including the first day ofthe twelfth calendar month of such assessment
year. Payment of the monthly-installments of the Annual Section Assessment shall
be made to the Corporation or otherwise as directed by,the Board of Directors. The
Annual Section Assessment for the assessment year shall become a lien on each
Block Lot subject thereto as of the first day of the first" calendar month of each
assessment year.
(e) Adoption of Budget. Declarant or the Advisory Committee, as
applicable, shall submit the annual budget to the Board of Directors for adoption.
The Board of Directors shall review such budget and if a maj oritythereof determines
that the budget and the assessments proposed therein are sufficient to meet the
obligations imposed by this Supplemental Declaration upon the Corporation, then the
Board of Directors shall adopt. such budget. If a majority does not so determine, then
the budget shall either be returned to Declarant or the Advisory Committee, as
applicable, for revision in accordance with the recommendations of the Board of
Directors or the Board of Directors may, by a vote of not less than two-thirds of all
members thereof .thenserving, amend the proposed bridget and adopt it as thus
amended. In the event the Advisory Committee fails to follow the procedures
outlined in this Paragraph 12 for the preparation of a budget and the recommendation
thereof to the Board of Directors, the Board of Directors shall by the vote of not less
than two thirds of its members present arid voting at a duly constituted meeting of
the Board of Directors, adopt a budget and fix the amount of the Annual Section
Assessment for the ensuing assessment year.
13. Encroaclunents. A perp~tual easement is hereby created on each Block Lot or other
parcel of land in the Section upon which an Encroachment exists for the benefit of Declarant, the
Corporation and any Owner of a Block Lot containing an improvement which constitutes the
Encroachment. In the event an encroaching Living Unit or other improvement shall be partially or
totally destroyed as a result of fire or other casualty or as a result of the exercise of the power of
eminent domain or a conveyance in anticipation thereof, and then rebuilt in its original configuration
or substantially in accordance with a Lot Development Plan approved by the Architectural Review
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Board, any resulting El1.croachment shall be permitted and a perpetual easement therefor is hereby
created for the benefit of the Owner of the encroaching structure.
14. General Community Rules. Each Block Lot shallbe subject to the guidelines, rules,
regulations and procedures adopted by peclarant, the Corporation and the Architectural Review
Board pursuant to authority granted by the Declaration of Covenants and Restrictions and all
Supplemental Declarations, and each Owner of a Lot shall at all times comply therewith. .
15. Electoral Parcel. The Parcel shall constitute an Electoral Parcel for the purpose of
election of the Board of Directors.
16. Enforcement. The right to enforce each of the foregoing Restrictions by injunction,
together with the right to cause the removal by due process oflaw 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 Section, their heirs and assigns, and to the Zoning Authority, their
successors and assigns, who are entitle~ 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 Supplemental Declaration. There shall be no rights of reversion or forfeiture of
title resulting from any violations.
17. Severability. Invalidation of any of these covenants and restrictions or any part
thereof by judgment or court order shall not affect or render the remainder of said covenants and
restrictions invalid or inoperative.
18. Non-Liability ofDec1arant. Declarant shall have no duties, obligations or liabilities
hereunder except such as are expressly asswned by Declarant, and no duty of, or warranty by,
Declarant shall be implied by or inferred from any term or provision of this Supplemental
Declaration.
19. General Provisions. This Supplemental Declaration may be amended at any time in
the manner provided in PilJagraph 29 of the Declaration of Cevenants and Restrictions except that
no amendment adopted pursuant to Paragraph 29(a) of the Declaration of Covenants and Restrictions
shall be effective as against a Mortgagee who subsequently acquires title to a Block Lot unless
approved by at least two-thirds (2/3) of the Mortgagees who hold first mortgages on the Block Lots
in the Section (based on one vote fQr each rust mortgage owned) or at least wo-thirds (2/3) of the
Owners of the Block Lots in the Section (excluding Declarant).
Except as the same may be amended from time to time, the foregoing restrictions will. be in
full force and effect until January 1, 2030, at which time they will be automatically extended for
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successive periods often (10) years, unless by a vote of a Majority of the Owners it is agreed that
these Restrictions shall terminate in whole or in part.
IN WITNESS WHEREOF, this Supplemental Declaration has been executed as of the date
first above written.
BRENWICK TND COMIvfUNITIES, LLC
By
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STATE OF INDIANA )
) SS:
COUNTY OF HAMIL TON )
Before me, a Notary Public in and for said County and State, personally appeared Tom
Charles Huston, the Co-Manager ofBrenwick TND Communities, LLC, an Indiana limited liability
company, who acknowledged execution of the foregoing Supplemental Declaration of Covenants
and Restrictions for and on behalf of said limited partnership.
WITNESS my hand and Notarial Seal this .lQttrlay of December, 1999.
'm~ Wl, ~
Notary Public Residing in H."nr'lr; cksCOlU1ty
, My Commission Expires:
Marie M. rrr;C"~
May 24. 2007
(printed signature)
This instrument prepared by Tom Charles Huston, Attorney at Law, 1313 Merchants Bank Building,
11 South Meridian Street, Indianapolis, Indiana 46204.
[NDSOl TCH 3470l3vl
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EXHIBIT A
Real Estate Description
A part of the Southwest Quarter of Section 28, Township 18 North, Range 3 East, Clay Township, Hamilton
County, In diona, described as follows:
Commencing at the Southwest comer of the East Half of the Southwest Quarter of said Section 28; thence
South 89 degrees 14 minutes 42 seconds West 169.63 feet along the South line of the said Southwest
Quarter, thence North 00 degrees OB minutes 09 seconds West 113.69 feet to the Point of Beginning; thence
North 80 degrees 51 minutes 15 seconds West 122.62 feet; thence North 88 degrees 40 minutes 53 seconds
West 120.65 feet; thence North 01 degrees' 19 minutes 07 seconds East, 50.00 feet; then~e North 00 degrees
DB minutes 09 seconds West 287.98 feet; thence South 87 degrees 21 minutes- 46 seconds East 114.13 feet;
thence North 00 degrees 08. minutes 09 seconds West 45:71 feet; thence North 89 degrees 51 minutes 51
seconds East 52.00 feet; North ,,00 degrees 08 minutes 09 seconds West 2.55 feet; South 66 degrees 08
minutes 09 seconds East 220.93 feet to the point of curvature of (] curve to the left having a radius of
500.00 feet, the radius point of which bears North 23 degrees 51 minutes '51 seconds East; thence
southeasterly along said curve on arc distance of 44.25 feet to a point which 'bears South 1 B degrees 47
minutes 42 seconds We~t from said radius point; thence South 00 degrees 08 minutes 09 seconds East 16.25
feet; thence North 89 degrees 51 minutes 51 seconds East 52.00 feet thence North 00 degrees 08 minutes
09 seconds West 1.51 feet ta a non-tangent curve to the left hoving a radius of 500.00 feet, the radius
point of which bears North 12 degrees 35 minutes 53 seconds East; thence southeasterly along said curve on
orc distance of 111.12 feet to a point which bears South 00 degrees 08 minutes 09 seconds East from said
radius point; thence North 89 degrees 51 minutes 51 seconds East 8.79 feet; thence South 00 degrees 08
minutes 09 seconds Eost2Ei3.59 feet; thence South 89 degrees 51 minutes 51 seconds West 16.00 feet
thence South 00 degrees 08 minutes 09 seconds EastSO.OO feet; thence South 89 degrees 51 minutes 51
seconds West 50.81 feet to the point of curvature of a curve to the dght having a radius of 110.00 feet, the
radius point of which bears North 00 degrees 08 minutes 09 seconds. West; thence northwesterly along said
curve an arc distance of 17.82 feet to 0 point of which bears South 09 degrees 08 minutes 45 seconds West
from soid radius point; thence North aD degrees 51 minutes 15 seconds West 28.71 feet; thence South TJ
degrees 28 minutes 13 seconds West 50.00 feet to (] non-tangent curve to the right having a radius of
225.00 feet. the radius point of which be<lrs North 73 degrees 28 minutes 13 seconds East; thence
northwesterly olong said curve an arc distance of 23.49 feet to (] point of which .bears South 79 degrees 27
minutes 08 seconds West from said radius point; thence North 80 degrees 51 minutes 15 seconds West 175.65
feet to the Point of Beginning. Containing 4.567 acres more or less.
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199909949854
FlIed fer Record .
HAMILTON COUNTy,l~DIANA
MARY L ClARH
On 08-23-1999 At 01:46 pm.
AMEND DECLA 12.00
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FIRST A1\1ENDMENT
TO
DECLARATION OF COVENANTS AND RESTRICTlGNS ~~~~~m
OF HAY 19 2000
THE VILLAGE OF WESTCLAY DOCS
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TIDS FIRST AMENDMENT to that certain Declaration of Covenants and Restrictions of
the Village of West Clay dated as of August 9, 1999 (the "Dechiration"), is executed as oithe 17th
day of August, 1999, by Brenwick TND Communities, LLC, C'Declarant"), who by the execution
hereof, hereby declares that: .
1.
Recitals. The following facts are true:
(a) The Declaration was recorded in the Office of the
Recorder of Hamilton County, Indiana, on August 9, 1999, as
Instrument No. 9946964.
(b) Declarant has the right unilaterally to amend and
revise the Declaration pursuant to the provisions of Paragraph 29(b)
of the Declaration.
(c) Declarant desires to restate Paragraph 12(a) of the
Declaration.
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2.
Amendments. Paragraph 12(a) of the Declaration is amended to read as follows:
(a) Maintenance of Private Drives (Exc1usive of Allevs).
Unless otherwise provided in a Supplemental Declaration, each
Private Drive (exclusive of alleys) shall be owned by the Corporation
and maintained by the Corporation in good condition satisfactory for
the purpose for which it was constructed. The Maintenance Costs
incurred by the Corporation in maintaining a Private Drive (other
than a Frontage Place) shall be assessed against all Lots whose
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principal means of vehicular a~cess to a public right-of-way or to the
Village Center is over and across such Private Drive. The
Maintenance Costs for Frontage Places shall be assessed as a General
Assessment against all Lots subject to assessment. As used herein,
"Frontage Place" has the meaning set forth in Section 3 of the Zoning
Ordinance except that for purposes of this Declaration it shall include
private streets separated from a publicly maintained street by an
"eyebrow" median. Estimated Maintenance Costs, including a
contribution to a reserve fund for future maintenance, repair and
replacement of Private Drives, shall be included in each annual
budget of the Corporation adopted pursuant to Paragraph 1 ~(l).
3. Effective Date. The foregoing amendment shall be effective as of the date this First
Amendment is recorded in the Office of the Recorder of Hamilton County, Indiana.
INVVITNESS WHEREOF, this First Amendment has been executed as of the date first above
written.
BRE
Tom Charles Huston, Co-Manager
By
STATE OF INDIANA )
) S8:
COUNTY OF MARION )
Before me,' a Notary Public in and for said County and State, personally appeared Tom
Charles Huston, a Co-Manager of Brenwick TND Communities, LLC, an Indiana limited liability
company, who acknowledged the execution of the foregoing "First Amendment to Declaration of
Coven'ants and Restrictions" for and on behalf of said limited liability company.
WITNESS my hand and Notarial Sea! this 17" daft A~st, 199~ L
Von Leigh wilsR Notary Public Residing in
Marion County
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My Commission Expires: August 13,2006
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This instrument prepared by (and should be returned to) Tom Charles Huston, Attorney at Law,
11 S. Meridian Street, Suite 1313, Indianapolis, Indiana 46204.
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INDSOl TCH 334642
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1 QQ90'11j71389
Filed for Record in
HRMILTON COUNTY, INDIANA
MARY L CLARK
SECOND AMENDMENT On 12-13-1999 At 03:24 pm.
TO AMEND DECLA 12. 00
DE CLARA nON OF COVENANTS AND RESTRICTIONS
OF
. -
THE VILLAGE OF WESTCLA Y
THIS SECOND AMENDNlENT to that certain Declaration of Covenants and Restrictions of the
Village of West Clay dated as of August 9, 1999 (the "Dedaration"), is executed as of the 1 st day of
December, 1999, by Brenwick TND Communities, LLC, ("Declarant"), who by the execution
hereof, hereby declares that:
1. Recitals. The following facts. are true:
(a) The Declaration was recorded in the Office of the Recorder of Hamilton
County, Indiana, on August 9, 1999, as Instrument No. 9946964, and was
amended by the First Amendment thereto recorded on August 23, 1999, as
Instrumept No. 199909949854.
(b) Declarant has the right unilaterally to amend and revise the Declaration
pursuant to the provisions of Paragraph 29(b) of the Declaration.
(c) Declarant desires to clarify certain responsibilities of the Corporation set
forth in the Declaration.
2. Amendments. The Declaration is amended as follows:
(a) The following is added to Paragraph 18 (h):
The required public liability insurance shall include coverage insuring the
Corporation, the Board of Cornmissionersof Hamilton County, Indiana and
the Hamilton County Drainage Board (and, in the event of annexation of the
Tract, the Board of Public Works of the City of Carmel), against claims
resulting from injury to person or loss of life as a consequence of the design,
construction and/or maintenance of those ponds whose banks have been
improved. by a retaining wallar edge of bank treatment, such insurance to
afford aggregate coverage (primary and umbrella) in an amount not less than
Seven Million Dollars ($7,000,000.00), adjusted, subsequent to the
Applicable Date, for inflation. A certificate of insurance evidencing such
coverage shall be provided annually to the Hamilton County, Indiana
Auditor.
(b) The following is added to Paragraph 19( 1 )(3):
The annual budget shall also include such amount as may be required to pay
the premiums on the public liability insurance required to be maintained by
the Corporation pursuant to Paragraph 18(h).
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3. Effective Date. The foregoing amendment shall be effective as of the date this First
Amendment is recorded in the Office of the Recorder of Hamilton County, Indiana.
IN WITNESS WHEREOF, this First Amendment has been executed as of the date first above
written.
BRENVlICK TND COMMUNITIE
By
8T ATE OF INDIANA )
) SS
COUNTY OF HAMILTON )
Before me, a Notary Public in and for said County and State, personally appeared Tom Charles
Huston, a Co-Manager of Brenwick TND COllunlmities, LLC, an Indiana limited liability
company, who acknowledged the execution ofthe foregoing "First Amendment to Declaration of
Covenants and Restrictions" for and on behalf of said limited liability company.
WITNESS my hand and Notarial Seal this t3 ct. day of December, 1999.
'mr1A~ 'yy;. t,(~R
Marie M. Urick, Notary Public Residing in
Hendricks County
My Commission Expires: May 24, 2007
This instrument prepared by (and should be returned to) Tom Charles Huston, Attorney at
Law, 11 South Meridian Street, Suite 1313, Indianapolis, Indiana 46204.