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DECLARATION OF COVENANTS AND RESTRICTIONS
1 AS AMENDED
(Incorporating changes made by the 1 through the 12 Amendments)
1 The Village of WestClay
Carmel, Indiana
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Note: Text incorporated by amendment is in italics.
Recording Information:
Declaration recorded August 9, 1999, as Instrument No. 199909946964
First Amendment recorded August 23, 1999, as Instrument No. 199909949854
Second Amendment recorded December 13, 1999, as Instrument No. 199909971389
Third Amendment recorded February 7, 2000, as Instrument No. 200000006007
Fourth Amendment recorded September 20, 2000, as Instrument No. 200000046940
1 Fifth Amendment recorded December 7, 2000, as Instrument No. 20000061135
Sixth Amendment recorded July 25, 2002, as Instrument No. 200200052497
Seventh Amendment recorded December 28, 2005, as Instrument No. 200500083618
1 Eighth Amendment recorded August 15, 2006, as Instrument No. 200600047668
Ninth Amendment recorded April 19, 2007, as Instrument No. 2007021957
Tenth Amendment recorded June 1, 2007, as Instrument No. 2007030144
Eleventh Amendment recorded December 15, 2008, as Instrument No. 2008060715
Twelfth Amendment recorded July 26, 2010, as Instrument No. 2010033737
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DECLARATION OF COVENANTS AND RESTRICTIONS
1 THE VILLAGE OF WESTCLAY
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INDEX
Page
1 1. Definitions -2-
2. Declaration -11-
1 3. Additions to the Tract -11-
4. The Lake -11-
(a) Development -11-
(b) Title and Maintenance -11-
1 (c) Use -12-
5. The Ponds -12-
(a) Development -12-
(b) Title and Maintenance -12-
(c) Use
6. The Commons -13-
7. Parks -13-
8. Village Community Buildings -13-
9. Drainage System -14-
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-
1 (b) Maintenance of Alleys -15-
(c) Maintenance of Private Gates -15-
13. Entry Ways, Landscape Easements, Planting Areas, Crosswalks and Traffic Signs -15-
(a) Entry Ways -15-
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(b) Landscape Easements -15-
1 (c) Planting Areas -16-
(d) Crosswalks and Special Traffic Signs -16-
1 14. Site Furniture and Facilities -16-
15. Round Abouts and Street Trees -16-
1 (a) Round Abouts -16-
(b) Street Trees -16-
(c) Maintenance of Street Trees -17-
1 16. Common Parking Lots -17-
1 17. Open Space -17-
18. Village of WestClay Owners Association, Inc -17-
1 (a) Membership -17-
(b) Powers -17-
(c) Classes of Members -18-
1 (d) Voting and Other Rights of Members -18-
(e) Reserve for Replacements -18-
(f) Debt Service Account -18-
1 (g) Maintenance Standards -18-
(h) Insurance, Taxes and Utilities -19-
(i) Limitations on Action by the Corporation -19-
1 (j) Mergers -20-
19. Assessments -20-
1 (a) Creation of the Personal Obligation of Assessments -20-
(b) General Assessment -21-
(i) Purpose of Assessment -21-
1 (ii) Basis for Assessment -21-
(1) Residential Lots -21-
(2) Commercial Lots -21-
1 (3) Senior Housing -23-
(4) Lots Owned by Declarant or Permitted Title Holder -23-
(5) Condominiums -24-
1 (6) Change in Basis -24-
(iii) Method of Assessment -24-
(iv) Allocation of Assessment -24-
1 (c) Community Area Initial Assessment -25-
(d) Community Area Debt Service Assessment -26-
(e) Parcel Assessments -27-
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(i) Purpose of Assessments -27-
1 (ii) Method of Assessment -27-
(iii) Special Assessments -27-
(f) Architectural Control Assessment -27-
1 (g) Special Assessment -28-
(h) Date of Commencement of Assessments -28-
(i) Effect of Nonpayment of Assessments; Lien Creation and Enforcement;
1 Remedies of the Corporation -28-
(j) Subordination of the Lien to Mortgages -30-
(k) Certificates -30-
1 (1) Annual Budget -31-
(1) Adoption of Budget -31-
(2) Certification of Village Center Maintenance Costs -31-
1 (3) Village Center Budget -31-
(m) Title Transfer Assessments -32-
1 20. Architectural Control -32-
(a) The Architectural Review Board -32-
(b) Purpose -32-
1 (c) Building Activity -32-
(d) Procedures -33-
(e) Guidelines and Standards -33-
1 (f) Application of Guidelines and Standards -34-
(g) Design Consultants -34-
(h) Existing Violations of Declaration -34-
1 (i) Exercise of Discretion -35-
(j) Liability of Board -35-
(k) Inspection -35-
1 21. Community Area and Common Facilities -35-
(a) Ownership -35-
1 (b) Density of Use -35-
(c) Obligations of the Corporation -35-
(d) Easements of Enjoyment -36-
1 (i) Owners -36-
(ii) Occupants -36-
(iii) Entities -37-
(iv) Responsibilities of Owners and Occupants -37-
(v) Rights of Occupants are Derivative -37-
(e) Extent of Easements -38-
(f) Additional Rights of Use -39-
(g) Damage or Destruction by Owner -39-
(h) Conveyance of Title -40-
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I 22. Use of Tract -40-
(a) Protective Covenants -40-
(i) Land Use -40-
(ii) Nuisances -40-
(iii) Other Restrictions -40-
1 (iv) Exceptions -41-
(b) Maintenance of Tract -41-
I 23. Easements -41-
(a) Plat Easements -41-
(i) Drainage Easements -42-
1 (ii) Sewer Easements -42-
(iii) Utility Easements -42-
(iv) Entry Way Easements -42-
1 (v) Landscape Easements -42-
(vi) Water Access Easements -42-
(vii) Community Area Access Easements -43-
1 (viii) Pathway Easements -43-
(ix) Non Access Easements -43-
(x) Alley Easements -43-
I (b) General Easement -43-
(c) Public Health and Safety Easements -44-
(d) Drainage Board Easement -44-
1 (e) Crossing Underground Easements -44-
(f) Declarant's Easement to Correct Drainage -44-
(g). Water Retention -44-
I 24. Use of Lots Durin g Development ment -45-
(a) By Declarant -45-
1 (b) By Builders -45-
25. Enforcement -45-
26. Limitations on Rights of the Corporation -45-
1 27. Approvals by Declarant -46-
28. Mortgages -46-
1 (a) Notice to Corporation -46-
(b) Notices to Mortgagees -46-
(c) Notice of Unpaid Assessments -47-
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(d) Financial Statements -47-
(e) Payments by Mortgagees -47-
29. Amendments -47-
1 (a) Generally -47-
(b) By Declarant -47-
(c) Approval by Zoning Authority -48-
(d) Class Approval -48-
(e) Effective Date -48-
30. Interpretation -48-
31. Duration -48-
32. Severability -48-
33. Non Liability of Declarant -49-
34. Compliance with the Soil Erosion Control Plan -49-
(a) The Plan -49-
(b) Indemnity -49-
35. Annexation -50-
36. Exclusive Builders -50-
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Exhibit A Description of Development Area
1 Exhibit B General Plan of Development
Exhibit C Description of the Tract
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DECLARATION OF COVENANTS AND RESTRICTIONS
THE VILLAGE OF WESTCLAY
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This Declaration, made as of the 9th day of August, 1999, by BRENWICK TND
1 COMMUNITIES, LLC, an Indiana limited liability company "Declarant
1 WITNESSETH:
1 WHEREAS, the following facts are true:
A. Declarant owns, or has the right to acquire the real estate located in Hamilton County,
Indiana, described in Exhibit A and depicted on Exhibit B, upon which Declarant intends, but is not
obligated, to develop a traditional neighborhood to be known as The Village of WestClay.
1 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.
1 C. Declarant intends, but is not obligated, to construct certain improvements and
amenities in WestClay which shall constitute Community Area.
D. Declarant desires to provide for the preservation and enhancement of the property
values, amenities and opportunities in WestClay and for the maintenance of the Tract and the
improvements thereon, and to this end desires to subject the Tract together with such additions as
may hereafter be made thereto (as provided in Paragraph 3) to the covenants, restrictions, easements,
charges and liens hereinafter set forth, each of which is for the benefit of the Lots and lands in the
Tract and the future owners thereof.
1 E. Declarant deems it desirable, for the efficient preservation of the values and amenities
in WestClay, to create agencies to which may be delegated and assigned the powers of owning,
maintaining and administering the Community Area, administering and enforcing the Restrictions,
collecting and disbursing the Assessments and charges hereinafter created, and promoting the
recreation, health, safety and welfare of the Owners of Lots in WestClay.
F. Declarant has incorporated under the laws of the State of Indiana nonprofit
corporations known as The Village of WestClay Owners Association, Inc. and WestClay Village
Owners Association, Inc. for the purpose of exercising such functions.
NOW, THEREFORE, Declarant hereby declares that all of the Lots and lands in the Tract
and such additions thereto as may hereafter be made pursuant to Paragraph 3 hereof, as they are held
and shall be held, conveyed, hypothecated or encumbered, leased, rented, used, occupied and
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improved, are subject to the following Restrictions, all of which are declared to be in furtherance of a
1 plan for the improvement and sale of Lots in the Tract, and are established and agreed upon for the
purpose of enhancing and protecting the value, desirability and attractiveness of the Tract as a whole
and of each of Units, Lots and lands situated therein. The Restrictions shall run with the land and
1 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 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.
1 The following terms, as used in this Declaration, unless the context clearly requires otherwise, shall
mean the following:
1 "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 Paragraph 5 of the
1 PRA Supplemental Declaration or by the Association pursuant to Paragraph 5 of the
Village Center Supplemental Declaration.
1 "Architectural Review Board" means that entity established pursuant to
Paragraph 20 of this Declaration for the purposes therein stated.
1 "Articles" means the Articles of Incorporation of the Corporation, as amended
from time to time.
1 "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.
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"Board of Directors" means the governing body of the Corporation or the
Association, as the context may require.
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"Building Activity" means any activity or undertaking on a Residential Lot of
a type described in Paragraph 20(c).
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"Building Guidelines" means guidelines and requirements for Building
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Activity on the Tract adopted by the Declarant, the Architectural Review Board or
1 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.
1 "Commercial Lot" means each established building site or platted lot on
which a Commercial Unit, a Multifamily Structure or a Multiuse Structure has been
or is intended to be constructed.
"Commercial Unit" means any structure or portion thereof situated upon the
Tract which is designed and intended for use and occupancy for such non residential
purposes as are permitted under the Zoning Ordinance exclusive of home -based
offices and other uses accessory to the use and enjoyment of a Residential Lot. A
Commercial Unit may be a Condominium.
"Common Facilities" means the Common Lighting, the Path Lights, the Site
Furniture and Facilities and other personal property of the Corporation.
"Common Lighting" means the light standards, wiring, bulbs and other
appurtenances, if any, installed to illuminate the Community Area or the public and
1 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.
"Commons" means such land, if any, as may be denoted on a Plat as
"Commons" or designated as "Commons" in any recorded instrument executed by
Declarant.
"Community Area" means (i) the Lake, (ii) the Ponds, (iii) the Private Drives
and Private Gates, (iv) the Village Community Buildings, (v) the Entry Ways, (vi) the
Planting Areas, (vii) the Parks, (viii) the Commons, (ix) the Drainage System, (x) the
Paths, (xi) the Common Lighting, (xii) the Site Furniture and Facilities, (xiii) any
utility service lines or facilities not maintained by a public utility company or
governmental 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
1 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
1 means of access to a Community Area or Common Parking Lot.
"Community Area Debt Service Assessment" means the periodic Assessment
1 to meet the obligation of the Corporation for payments on account of Community
Area Secured Indebtedness.
1 "Community Area Initial Assessment" means the initial Assessment for the
Reserve for Replacements required by Paragraph 19(c).
1 "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
1 Facilities, or parts thereof, secured by a lien or liens on the Village Community
Buildings and the Common Facilities, or parts thereof.
1 "Condominium" means a Unit in a Horizontal Property Regime.
"Corporation" means The Village of WestClay Owners Association, Inc., an
1 Indiana nonprofit corporation, its successors and assigns.
"Crosswalks" means the decorative brick crosswalks installed by Declarant
between sidewalks across a public right -of -way.
"Declarant" means Brenwick TND Communities, LLC, its successors and
1 assigns to its interest in the Tract other than Owners purchasing Lots or Units by deed
from Declarant (unless the conveyance indicated an intent that the grantee assume the
rights and obligations of Declarant).
"Design Review Board" means that entity established pursuant to Paragraph 6
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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
1 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
1 to accommodate from time to time surface water drainage.
1 "Development Area" means the land described in Exhibit A together with any
additional land added to the Tract pursuant to Paragraph 3 of this Declaration.
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1 "Drainage Board" means the Hamilton County Drainage Board, its successors
or assigns, or, in the event of annexation of the Tract to the City of Carmel, the Board
of Public Works of the City of Carmel.
"Drainage System" means the open drainage ditches and swales, the
subsurface drainage tiles, pipes and structures, the dry and wet retention and/or
1 detention ponds (including all Detention Areas), and the other structures, fixtures,
properties, equipment and facilities (excluding the Lake and the Ponds) located in the
Tract and designed for the purpose of controlling, retaining or expediting the
1 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 any facility on the Tract owned or leased by a
public or private educational institution or its successor in title, which does not
1 constitute Community Area and is used principally for educational purposes.
"Electoral Parcel" means one or more Parcels the Supplemental
1 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
1 tiles), the traffic islands depicted as designated Blocks on a Plat and any other traffic
islands dividing a roadway providing access to WestClay or a part thereof, and the
grassy area surrounding such structures.
"General Assessment" means an Assessment made pursuant to Paragraph
19(b).
1 "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.
1 "Horizontal Property Regime" means a horizontal property regime established
in the Tract pursuant to I.C. 32 -1 -6 or any successor provision authorizing the
creation of a Condominium.
"Lake" 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 or
described in a recorded easement as an area to be landscaped.
1 "Living Unit" means a room or combination of rooms designed for year -round
habitation, containing a bathroom and kitchen facilities, and designed for or used as a
permanent residence by at least one Person.
"Lot" means (1) any plot of land intended as a building site shown upon any
recorded Plat, with the exception of Community Area and Common Parking Lots, (2)
1 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
1 plans, including elevation and floor plans, (iv) material plans and specifications, (v)
landscaping plan, (vi) exterior lighting plan, (vii) tree preservation plan and (viii) all
other data or information that the Architectural Review Board, the Design Review
1 Board or the PRA 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
1 the cost of all upkeep, maintenance, repair, replacement of all or any part of any such
facility, payment of all insurance premiums for public liability, casualty and other
insurance maintained with respect thereto, all utility charges relating to such
facilities, all taxes imposed on the facility and on the underlying land, leasehold,
easement or right -of -way, and any other expense related to the continuous
maintenance, operation or improvement of the facility.
"Member" means a member of the Corporation and "Members" means all
members of the Corporation.
"Mortgagee" means the holder of a first mortgage on a Unit, a Multifamily
Structure or a Multiuse Structure.
"Multifamily tructure" means a structure with two or more Living Units
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under one roof, except when such Living Units are situated upon their own individual
1 Lots, are Condominiums or are located in a Multiuse Structure.
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"Multiuse Structure" means a structure which contains one or more
1 Commercial Units and one or more Living Units.
"Occupant" means any Person who is in possession of a Unit either as an
1 Owner or as a tenant pursuant to a lease or other occupancy agreement.
"Owner" means a Person, including Declarant, who at the time has or is
1 acquiring legal title to a Lot except a Person who has or is acquiring such title merely
as security for the performance of an obligation.
"Parcel" means each platted subdivision or part thereof, parcel of land or
Horizontal Property Regime consisting of one or more Lots within the Development
Area that are subject to the same Supplemental Declaration or are declared by
Declarant to constitute a "Parcel One or more Lots may be included in more than
one Parcel.
I "Parcel Assessment" means an Assessment made pursuant to Paragraph 19(e)
Declaration, Paragraph 5(b) of the Village Center Supplemental Declaration
or Paragraph 5(b) of the PRA Supplemental Declaration.
"Park" means such land as may be denoted on a Plat as "Park" or designated
as "Park" in any recorded instrument executed by Declarant.
"Part of the Development Area" means any part of the Development Area not
included in the Tract.
"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
1 the Corporation for the purpose of being used for walkways and/or bikeways.
"Path Lights" means the light standards, conduits, wiring, bulbs and other
1 appurtenances, if any, installed to illuminate the Paths.
"Peripheral Retail Area" means that part of the Tract depicted on the
Development Plan as the "Peripheral Retail Area."
"Permitted Title Holder" means (a) the Corporation, (b) the Association, (c) a
1 public or private educational institution, (d) the City of Cannel, 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, artnershi association,
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trust or other legal entity, or any combination thereof.
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"Plat" means a final secondary plat of a portion of the Development Area
executed by Declarant and recorded in the Office of the Recorder of Hamilton
County, Indiana.
"Pond" means a body of water located in the Development Area and depicted
on the General Plan of Development (other than the Lake) and "Ponds" means all of
such bodies of water (other than the Lake).
"Planting Area means a landscaped area located in the right -of -way of a
public street, on or adjacent to a Private Drive or Common Parking Lot or on a
1 Commons, in a Park or in or on other Community Area.
"PRA Review Board" means that entity established pursuant to Paragraph 6
of the PRA Supplemental Declaration.
"PRA Supplemental Declaration" means the Supplemental Declaration
1 relating to the Peripheral Retail Area.
"Primary Area (SH)" means that part of the Tract depicted on the
1 Development Plan as "Primary Area (SH)."
"Principal Streets" means, to the extent constructed by Declarant, Towne
Road, 131 Street, Broad Street, Meeting House Road, Horseferry Road and Pettigru
Street.
1 "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
1 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, Goldwater Park,
University Green, Ronald Reagan Green and MacArthur Field and the recreational
facilities therein or thereon.
"Register of Regulations" means the document containing rules, regulations,
policies, and procedures adopted by the Board of Directors, the Architectural Review
Board, the Design Review Board or the PRA Review Board, as the same may from
1 time to time be amended.
"Reserve for Replacements" means a fund established and maintained by the
1 Corporation to meet the cost of periodic maintenance, repairs, renewal and
replacement of the Community Area and the Common Facilities.
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"Residential Lot" means a Lot which is used or intended to be used primarily
for residential purposes except where the Lot is improved by the construction thereon
of a Multifamily Structure or a Multiuse Structure.
"Restrictions" means the covenants, conditions, easements, charges, liens,
restrictions, rules and regulations and all other provisions set forth in this
Declaration, all applicable Supplemental Declarations, the Building Guidelines and
the Register of Regulations, as the same may from time to time be amended.
"Round-About" means a square, green or traffic circle in WestClay.
"Section" means that portion of the Development Area that is depicted on a
Plat.
"Senior Housing" means congregate housing for the elderly, including
1 associated Living Units the Owners or Occupants of which have the benefit of access
to goods and services provided by the operator of the congregate care facility.
"Significant Tree" means any tree measuring eight (8) inches in caliper
measured at four (4) to five (5) feet above grade.
"Site Furniture and Facilities" means any furniture, trash containers, sculpture
or other furniture, fixtures, equipment or facilities constructed, installed or placed in
the Development Area by Declarant, the Corporation or the Association and intended
1 for the common use or benefit of some, if not all, of the Owners and Occupants.
"Special Assessment" means an Assessment made pursuant to Paragraph
1 19(g) or any other provision of this Declaration or any Supplemental Declaration
authorizing the levying of a Special Assessment.
1 "Special Traffic Signs" means traffic control or street signs installed by
Declarant on decorative posts or on street posts, provided that Special Traffic Signs
shall comply with the Manual on Uniform Traffic Control Devices in terms of sign
1 height and horizontal distance from curbs, sidewalks or street intersections.
"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.
1 "Supplemental Declaration" means any supplemental declaration of
covenants, conditions or restrictions or any declaration of horizontal property regime
which may be recorded and which extends the provisions of this Declaration or any
previously recorded Supplemental Declaration to a Section or Parcel and contains
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such complementary or supplementary provisions for such Section or Parcel as are
1 required or permitted by this Declaration.
"Tract" means the land described in Exhibit C and such other real estate as
1 may from time to time be annexed thereto under the provisions of Paragraph 3
hereof.
1 "Unit" means any Living Unit or Commercial Unit, and "Units" means all
Living Units and Commercial Units.
1 "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).
"Village Center Parcel" means the Village Center exclusive of Residential
Lots and Community Area located therein.
1 "Village Center Supplemental Declaration" means the Supplemental
Declaration relating to the Village Center Parcel.
1 "Village Community Buildings" means the Meeting House, the Trustees Hall,
the buildings constituting a part of or located in or on the Recreation Centers and
such other civic or recreational buildings as may be constructed in WestClay by
1 Declarant principally for the use of the Owners as a benefit of ownership of a Lot,
title to which is, or is intended ultimately to be, vested in a Permitted Title Holder.
1 "Warranty Period" means, with respect to Street Trees, a period of one (1)
year following the date a Street Tree is planted in a Planting Area.
"Water Access Easement" means the area designated on a Plat as a means of
access to the Lake or a Pond.
"WestClay" means the name by which the Tract shall be commonly known.
"Zoning Authority" with respect to any action means the Director of the
Department of Community Services of the City of Carmel or, where he lacks the
capacity to take action, or fails to take such action, the governmental body or bodies,
1 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.
1 "Zoning Ordinance" means the ordinance adopted by the Common Council of
the City of Carmel, Indiana, establishing the WestClay Village Planned Unit
Development District.
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1
1 2. Declaration. Declarant hereby expressly declares that the Tract and any additions
thereto pursuant to Paragraph 3 hereof shall be held, transferred, and occupied subject to the
Restrictions. The Owner of any Lot or Parcel subject to these Restrictions, by (i) acceptance of a
1 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
1 herein contained. By acceptance of such deed or execution of such contract, each Owner
acknowledges the rights and powers of Declarant and of the Corporation with respect to these
Restrictions, and also for itself, its heirs, personal representatives, successors and assigns, covenants,
agrees and consents to and with Declarant, the Corporation, and the Owners and subsequent Owners
of each of the Lots and Parcels affected by these Restrictions to keep, observe, comply with and
perform such Restrictions and agreement.
3. Additions to the Tract. Declarant shall have the right to bring within the scheme of
this Declaration and add to the Tract real estate that is a Part of the Development Area or that is
1 contiguous to the Development Area. In determining contiguity, public rights of way shall not be
considered.
1 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
1 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
1 Supplemental Declaration.
4. The Lake.
1 (a) Development. Declarant intends, but is not obligated, to acquire title
P g q
to the Lake. Declarant reserves the right, subsequent to acquisition of the Lake, to
1 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).
1 (b) Title and Maintenance. If Declarant acquires title to the Lake, it shall
subsequently convey such title to a Permitted Title Holder. Unless otherwise
specified in the instrument of conveyance, the Corporation shall be responsible for
maintaining the Lake. The Maintenance Costs of the Lake shall be assessed as a
General Assessment against all Lots subject to assessment. Each Owner of a Lot that
abuts the Lake shall be responsible at all times for maintaining so much of the bank
of the Lake above the pool level as constitutes a part of, or abuts, his Lot (exclusive
of the Lake Liner and any Path) and shall keep that portion of the Lake abutting his
Lot free of debris and otherwise in reasonably clean condition.
1 -11-
1
(c) Use. 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
1 Architectural Review Board and such governmental authority as may have
jurisdiction thereover. No swimming or fishing will be permitted in the Lake. Each
Owner of a Lot abutting the Lake shall indemnify and hold harmless Declarant, the
1 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
1 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 design, depth, pool level, water quality or 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.
1 5. The Ponds.
(a) Development. Declarant intends, but is not obligated, to develop the
Ponds. Declarant reserves the right, subsequent to commencement of development of
the Ponds, to determine the size and configuration thereof (which may vary from that
depicted on the General Plan of Development attached as Exhibit B hereto).
(b) Title and Maintenance. Declarant shall convey title to the Ponds to a
Permitted Title Holder. Unless otherwise specified in the instrument of conveyance,
the Corporation shall be responsible for maintaining the Ponds. The Maintenance
Costs of the Ponds shall be assessed as a General Assessment against all Lots subject
to assessment. Each Owner of a Lot that abuts a Pond shall be responsible at all
times for maintaining so much of the bank of the Pond above the pool level as
constitutes a part of, or abuts, his Lot (exclusive of any Path) and shall keep that
portion of the Pond abutting his Lot free of debris and otherwise in reasonably clean
condition.
(c) Use. No boats shall be permitted upon any part of a Pond. No dock,
pier, wall or other structure may be extended into a Pond without the prior written
consent of the Architectural Review Board and such governmental authority as may
have. jurisdiction thereover. No swimming will be permitted in any Pond and, except
as otherwise provided in Paragraph 21(d)(i), fishing will be permitted only at such
locations, if any, as may be designated by the Board of Directors and upon such
terms and conditions as the Board of Directors may specify. Under no
circumstances will fishing be permitted in Kew, Druid, Tree Shadow, Dogwood and
Wilson Ponds. 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
1 -12-
1
1
Person who gains access thereto from, over or across such Owner's Lot with the
1 knowledge or acquiescence of such Owner. Declarant shall have no liability to any
Person with respect to a Pond, the design, depth, pool level, water quality or use
thereof or access thereto, or with respect to any damage to any Lot resulting from a
1 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
1 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, no permanent improvements shall be made to or installed on the Commons
(excepting University Green) other than Village Community Buildings, Education Facilities,
underground utility facilities,. Site Furniture and Facilities, walkways, planting structures, and
1 fountains or other nonrecreational water features. University Green may be improved with
recreational facilities, including but not limited to Founder's Corner and a croquet court. The use of
the Commons shall be subject to rules and regulations adopted by the Board of Directors which are
1 not inconsistent with the provisions of this Declaration or any Supplemental Declaration.
7. Parks. Declarant shall convey title to the Parks to a Permitted Title Holder. Unless
1 the instrument of conveyance provides otherwise, the Corporation shall be responsible for
maintaining the Parks and the Maintenance Costs thereof, together with any costs incurred by the
Corporation in connection with the further improvement thereof, shall be assessed as a General
1 Assessment against all Lots subject to assessment. The Parks may be improved as appropriate for
recreational and open space areas. The use of the Parks shall be subject to rules and regulations
adopted by the Board of Directors which are not inconsistent with the provisions of this Declaration
or any Supplemental Declaration.
r� 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 and one or more Recreation Center (which may include a bath
house, swimming pool, tennis courts and other recreational facilities) and such other recreational and
community facilities as Declarant in its sole discretion believes are justified by the progress of
development of the Development Area. If Declarant undertakes the development of one or more
Village Community Buildings, Declarant intends upon completion of construction to convey the
same to a Permitted Title Holder prior to the Applicable Date free and clear of all financial
encumbrances and other liens securing indebtedness of Declarant except Community Area Secured
1 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 Community Buildings and the
1 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.
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1
Any Education Facility 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
1 educational institution.
Declarant may secure indebtedness incurred to finance construction of the Village
1 Community Buildings and the Common Facilities, or parts thereof, with a mortgage lien(s) on all or
some of the Village Community Buildings; provided that the aggregate original principal amount of
the indebtedness secured by such lien(s) shall not exceed Two Million Dollars ($2,000,000.00).
9. Drainage System. The Drainage System has or will be constructed for the purpose of
trlling i within d djahe Dlomt r and miing at level in
the con Lake o and dra the nage Ponds The an Cor poration cent to t shalle ve maintain pen the A ea Drainage a System ntain to the the w extent er ev
1 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
1 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
1 Corporation shall operate and maintain the Common Lighting and, unless otherwise provided in a
Supplemental Declaration, the Maintenance Costs thereof shall be assessed as a General or Parcel
Assessment against all Lots subject to assessment.
11. Paths and Path Lights. Declarant may, but is not obligated to, install the Paths and
Path Lights at the approximate locations depicted on the General Plan of Development and may
1 reserve easements for such purpose over and across Lots. If installed, the Corporation shall operate
and maintain the Paths and Path Lights and the Maintenance Costs thereof shall be assessed as a
General Assessment against all Lots subject to assessment. The Board of Directors may adopt such
rules and regulations with respect to the use of the Paths as it may deem appropriate including but
not limited to the prohibition of the use of all or some of the Paths by bicycles, skateboards and/or
motorized or non- motorized vehicles.
12. Private Drives and Private Gates.
1 (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 (other than a
Frontage Place) 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. The Maintenance Costs for Frontage Places shall be assessed as a
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1
General Assessment against all Lots subject to assessment. As used herein,
"Frontage Place" has the meaning set forth in Section 3 of the Zoning Ordinance
except that for purposes of this Declaration it shall include private streets separated
from a publicly maintained street by an "eyebrow" median. Estimated Maintenance
Costs, including a contribution to a reserve fund for future maintenance, repair and
replacement of Private Drives, shall be included in each annual budget of the
Corporation adopted pursuant to Paragraph 19(1).
(b) Maintenance of Alleys. Unless otherwise provided in a Supplemental
Declaration, the Corporation shall maintain all alleys and the Maintenance Costs
1 incurred for such maintenance shall be assessed against all Lots served by alleys.
(c) Maintenance of Private Gates. Private Gates shall be maintained by
1 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.
13. Entry Ways, Landscape Easements, Planting Areas, Crosswalks and Special Traffic
Signs.
(a) Entry Ways. The Corporation shall maintain the Entry Ways
and all improvements and plantings thereon, and the Maintenance Costs
1 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
1 maintain an attractive entrance to WestClay or a part thereof. All entrance
signs located on an Entry Way shall be maintained at all times in good and
sightly condition appropriate to a first -class residential community.
(b) Landscape Easements. Unless the Board of Directors (of the
Corporation or the Association, as applicable) determines that all or some of
1 the Landscape Easements shall be maintained by the Corporation and/or the
Association and the Maintenance Costs thereof assessed as a General or
Parcel Assessment, the Owner of each Lot upon which a Landscape Easement
is located shall at his/her expense keep the grass, trees, shrubs and other
plantings located on a Landscape Easement properly irrigated and neatly cut,
cultivated or trimmed as reasonably necessary to maintain the same at all
times in a good and sightly condition appropriate to a first -class residential
subdivision and, if such Owner fails to do so, the Corporation or the
Association, as applicable, may undertake such maintenance and assess the
Maintenance Costs thereof as a Special Assessment against such Lot. The
Corporation shall maintain (and replace as appropriate) all fences installed
by Declarant or the Corporation in a Landscape Easement and the
Maintenance Costs thereof shall be assessed as a General Assessment
against all Lots subject to assessment.
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1
(c) Planting Areas. Following the expiration of the Warranty
Period, the Corporation (or, if the Village Center Supplemental Declaration
so provides with respect to Planting Areas in the Village Center Parcel, the
1 Association) shall maintain the Planting Areas and the Maintenance Costs
thereof shall be assessed as a General or Parcel Assessment.
(d) Crosswalks and Special Traffic Signs. Unless responsibility
therefor is assumed by a governmental entity, the Corporation (or, if the
Village Center Supplemental Declaration so provides with respect to
Crosswalks and Special Traffic Signs in the Village Center Parcel, the
Association) shall maintain the Crosswalks and Special Traffic Signs and the
Maintenance Costs thereof shall be assessed as a General or Parcel
1 Assessment. In doing so the Corporation or the Association, as the case may
be, shall first obtain all required permits from any governmental entity
having jurisdiction over the public right -of -way in which the Crosswalks or
1 Special Traffic Signs are located. If replacement of a Special Traffic Sign is
necessary and the Corporation or Association fails to do so within thirty (30)
days after notice from the governmental entity having jurisdiction over the
public right -of -way, such governmental entity may replace the Special Traffic
Sign using its standard in -stock materials.
1 14. Site Furniture and Facilities. 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
1 the instrument of conveyance, the Corporation (or, if the Village Center Supplemental Declaration so
provides with respect to Site Furniture and Facilities in the Village Center Parcel, the Association)
shall maintain the Site Furniture and Facilities and the Maintenance Costs thereof shall be assessed
as a General or Parcel Assessment.
15. Round Abouts and Street Trees.
(a) Round Abouts. The Corporation shall maintain the Round Abouts
(exclusive of the street pavement, curbs and drainage structures and tiles unless they
constitute a part of a Private Drive), and the Maintenance Costs thereof shall be
assessed as a General or Parcel Assessment.
1 (b) Street Trees. Declarant shall plant Street Trees within Planting Areas
adjacent to such of the Principal Streets as are constructed by Declarant and in
Community Areas adjacent to other streets constructed in WestClay. Each Owner
shall, within the time specified in the Building Guidelines, plant within a Planting
Area adjacent to the Owner's Lot that number of Street Trees as are depicted on such
Lot on the Development Plan, such Street Trees to be of a size and species designated
by the Architectural Review Board, the Design Review Board or the PRA Review
Board, as applicable, and to be planted at locations specified on the landscaping plan
1 -16-
submitted by the Owner to and approved by the applicable Board. Declarant, the
1 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
1 Period for a Street Tree, unless otherwise provided in a Supplemental Declaration,
the Corporation shall maintain and, if necessary, replace the Street Tree, and the
Maintenance Cost thereof shall be assessed as a General Assessment against all Lots
1 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 except as may otherwise be provided in the PRA Supplemental
1 Declaration, 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 detei in the reasonable discretion of the Board of Directors of
the Corporation. The Association may allocate to the Corporation a portion of the Maintenance
1 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. Maintenance
Costs for Common Parking Lots located in the Peripheral Retail Area shall be allocated as provided
in the PRA Supplemental Declaration.
17. Open Space. A Peiniitted Title Holder shall not change the use of any Park,
Commons or other area designated by Declarant as open space conveyed to the Peiuiitted 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-
1 Laws. If a Person would realize upon his security and become an Owner, he shall
then be subject to all the requirements and limitations imposed by this Declaration on
other Owners, including those provisions with respect to the payment of
Assessments.
(b) Powers. The Corporation shall have such powers as are set forth in
this Declaration, all Supplemental Declarations and in the Articles, together with all
other powers that belong to it by law.
1 -17-
(c) Classes of Members. The Corporation shall have a single class of
Members.
(d) Voting and Other Rights of Members. The voting and other rights of
Members shall be as specified in the Articles and By -Laws; provided, however, that
subsequent to the Applicable Date the Owners of Lots in each Electoral Parcel shall
1 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 Replacements. The Board of Directors shall establish and
maintain the Reserve for Replacements by the allocation and payment to such reserve
1 fund of an amount determined annually by the Board to be sufficient to meet the cost
of periodic maintenance, repair, renewal and replacement of the Community Area
and the Common Facilities to the extent the Corporation is responsible for the
maintenance thereof. In determining the amount, the Board shall take into
consideration the expected useful life of the Community Area and the Common
Facilities, projected increases in the cost of materials and labor, interest to be earned
1 by such fund and the advice of Declarant or such consultants as the Board may
employ. The Reserve for Replacements shall be deposited in a special account with a
lending institution the accounts of which are insured by an agency of the United
States of America or may, in the discretion of the Board, be invested in obligations
of, or fully guaranteed as to principal by, the United States of America. Prior to the
Applicable Date, funds from the Reserve for Replacements may be withdrawn and
applied at the direction of Declarant to meet the costs of periodic maintenance,
repairs, renewal or replacement of the Community Area and the Common Facilities.
(f) Debt Service Account. The Board of Directors shall establish and
maintain a separate account for the payment of principal, interest and other charges
on account of Community Area Secured Indebtedness. Community Area Debt
Service Assessments shall be deposited to said account and disbursed solely for the
purpose of payments on account of Community Area Secured Indebtedness. The
debt service account shall be maintained in a lending institution the accounts of
which are insured by an agency of the United States of America or may, in the
discretion of the Board, be invested in obligations of, or fully guaranteed as to
principal by, the United States of America. Prior to the Applicable Date, funds from
the debt service account may be withdrawn and applied at the direction of Declarant
to make payments on account of Community Area Secured Indebtedness.
(g) Maintenance Standards. In each instance in which this Declaration or
a Supplemental Declaration imposes on the Corporation a maintenance obligation
with respect to the Community Area or the Common Facilities or a part thereof, the
Corporation shall maintain the Community Area, Common Facilities or designated
part thereof in good condition, order and repair substantially comparable to its
1 8-
condition when originally constructed, installed or planted and compatible in
appearance and utility with a first -class residential community. Grass, trees, shrubs
and other plantings located on the Community Area for which the Corporation has
maintenance responsibility shall be kept properly irrigated and neatly cut, cultivated
or trimmed as reasonably required and otherwise maintained at all times in good and
sightly condition appropriate to a first -class residential community. In each fiscal
year subsequent to the Applicable Date the Corporation shall make expenditures to
Maintain the Community Area and Common Facilities located in the Village Center
in an amount not less than the Village Center Maintenance Amount established
pursuant to Paragraph 19(1)(3).
(h) Insurance, Taxes and Utilities. The Corporation shall maintain public
liability and casualty insurance in prudent amounts insuring against risk of loss to the
Corporation on account of injury to person or property and damage to property
owned by the Corporation and shall pay all taxes assessed against such property and
all utility charges incurred with respect to Community Area for which the
Corporation has maintenance responsibility. The required public liability insurance
shall include coverage insuring the Corporation, the Board of Commissioners of
Hamilton County, Indiana and the Hamilton County Drainage Board (and, in the
event of annexation of the Tract, the Board of Public Works of the City of Carmel)
against claims resulting from injury to person or loss of life as a consequence of the
design, construction and/or maintenance of those ponds whose banks have been
improved by a retaining wall or edge of bank treatment, such insurance to afford
aggregate coverage (primary and umbrella) in an amount not less than Seven Million
Dollars ($7,000,000), 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.
(i) Limitations on Action by the Corporation. Unless at least two thirds
(2/3) of the Mortgagees (based on one vote for each first mortgage owned) or two
thirds (2/3) of the Members have given their prior written approval, a Permitted Title
Holder, the Board of Directors and the Owners may not: (i) except as authorized by
Paragraph 21(a) (but subject to the limitations of Paragraph 17), by act or omission
seek to abandon, partition, subdivide, encumber, sell or transfer 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 act or omission change, waive or
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abandon any scheme of regulations or their enforcement pertaining to the
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.
(j) 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
1 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 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), (6) Special Assessments, and (7) Title Transfer Assessments, such
Assessments to be established and collected as hereinafter provided.
If two (2) or more Lots originally shown on a Plat are consolidated as a single
Lot by virtue of partial vacation of a Plat or the construction thereon of a Unit, some
part of which extends over a Lot line, or if a Lot is divided by conveyance of portions
thereof to owners of adjacent Lots, then, in any of such events, so long as the
consolidated or divided Lot is used in its entirety by one or more Owners of
contiguous Lots, the vacated or divided Lot(s) shall cease to be Lot(s) for purposes of
Assessments under this Paragraph 19, and the consolidated Lots shall constitute one
(1) Lot for purposes of Assessments under this Paragraph 19. In the event of
consolidation of Lots as a building site, the yard dimensions required by the Zoning
Ordinance or the Building Guidelines shall be applied to the consolidated building
site and setbacks shall be measured from the exterior Lot lines of the consolidated
building site.
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(b) General Assessment.
(i) Purpose of Assessment. The General
Assessment levied by the Corporation shall be used
exclusively to promote the recreation, health, safety, and
welfare of the Owners of Lots and 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 sub paragraph (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
1 Corporation shall waive with respect to such undeveloped Lot
that part of any Assessment that is attributable to services
(such as trash removal) that are provided only with respect to
improved Lots.
(2) Commercial Lots.
(A) Subject to subparagraph (h) below,
each unimproved Commercial Lot shall be assessed at a
1 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.
(B) Each Commercial Lot upon which a
Multifamily Structure has been constructed shall be
assessed at a rate equitably determined by the Board of
Directors which takes into account the number of Living
Units located on the Lot and the rights of Occupants of such
Living Units to the use and enjoyment of the Community
Area. The General Assessment for any such Lot shall not
exceed the product of (i) the number of Living Units located
on the Lot and (ii) fifty percent (50 of the amount of the
General Assessment for Residential Lots established on the
basis set forth in Clause (1) above if Occupants have a right
to use the Recreation Centers and the Village Community
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Buildings (the "Maximum Assessment or, if Occupants do
not have such right, twenty-five percent (25 of the
General Assessment for Residential Lots (the "Minimum
Rate"). Owners of Multifamily Structures may elect to be
assessed at the Minimum Rate by delivering to the
Corporation written notice thereof and, in such event,
Occupants of Multifamily Structures owned by the Owners
giving such notice shall not have a right to use the
Recreation Centers or the Village Community Buildings. An
Owner of a Multifamily Structure may revoke such election
by giving to the Corporation written notice of revocation.
Following receipt by the Corporation of notice of
revocation, the Owners giving such notice shall be assessed
at the Maximum Rate and the Occupants of such Multifamily
Structures may use the Recreation Centers and the Village
Community Buildings on the basis set forth in Paragraph
21(d)(ii). The Maximum Rate shall be deemed to include an
amount allocable to the Maintenance Costs of the
Recreation Centers.
(C) The General Assessment for each
Commercial Lot upon which one or more Commercial Units
have been constructed shall, with respect to such Commercial
Units, be assessed at a rate equal to the product of (i) the
result obtained by dividing the gross square footage of the
Commercial Unit by two thousand five hundred (2,500) and
(ii) the amount of the General Assessment established for
Residential Lots on the basis set forth in Clause (1) above;
provided, however, that the General Assessment for a
Commercial Lot located in the Peripheral Retail Area shall
not exceed an amount equal to four times the General
Assessment established for Residential Lots on the basis set
forth in Clause (1) above.
(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 Clause (1) above.
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(E) The General Assessment for an
unimproved Commercial Lot shall not exceed the amount of
the General Assessment for an unimproved Residential Lot in
the Primary Area.
(3) Senior Housing. Subject to sub paragraph (h)
below, each Lot in the Primary Area (SH) which is used for
Senior Housing 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
use made by the Owners or Occupants of such Living Units of
the Community Area and Common Facilities. The General
Assessment for any such Lot shall not exceed the sum of:
(A) The product of (i) the number of
detached or attached Living Units not incorporated in the
congregate care facility and (ii) an amount equal to the
General Assessment for Residential Lots established on the
basis set forth in Clause (1) above; and
(B) The product of (i) the number of Living
Units located in the congregate care facility which are
occupied by an individual who is less than 85 years old and
(ii) 25% of the amount of the General Assessment for
Residential Lots established on the basis set forth in Clause
(1) above; provided, however, that only Living Units which
are occupied shall be included in the calculation pursuant to
this subclause (B). Occupancy shall be determined on a
quarterly basis as of the first day of each March, June,
September and December. For purposes of this Clause (3),
"Living Unit" shall not include a Unit used exclusively for
the provision of skilled nursing care to the occupants thereof.
(4) Lots Owned by Declarant or a Permitted Title
Holder. Notwithstanding the foregoing provisions of this
subparagraph (ii), no Lot owned by Declarant or a Permitted
Title Holder shall be assessed by the Corporation except such
Lots as have been improved by the construction thereon of
Units, which improved Lots shall be subject to assessment as
provided in Clauses (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.
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Condominiums. Condominiums shall be
separately assessed as a Lot applying the provisions of the
foregoing Clauses (1), (2) and (3). 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), (2) and (3).
(6) Change in Basis. The basis for assessment
may be changed upon recommendation of the Board of
Directors if such change is approved by (i) two- thirds (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 Structure or
Multiuse Structure, Multifamily Structures, Multiuse
Structures, Commercial Units in the Village Center which are
not located in a Multiuse Structure, Commercial Units in the
Peripheral Retail Area which are not located in a Multiuse
Structure and Senior Housing, each as a separate class.
(iii) Method of Assessment. By a vote of a majority of the
Directors, the Board of Directors shall, on the basis specified in
subparagraph (ii), fix the General Assessment for each assessment
year of the Corporation at an amount sufficient to meet the
obligations imposed by this Declaration and all Supplemental
Declarations upon the Corporation, including but limited to the
obligation to maintain the Community Area and Common Facilities
in the Village Center in accordance with the budget for Village Center
Maintenance Costs established in accordance with Paragraph 19(1)(3)
below. The Board of Directors shall establish the date(s) the General
Assessment shall become due, and the manner in which it shall be
paid.
(iv) Allocation of Assessment. Certain of the costs of
maintaining, operating, restoring or replacing the Community Area
and Common Facilities may be allocated among Owners of Lots on
the basis of the location of the lands and improvements constituting
the Community Area and Common Facilities and the intended use
thereof. In determining the General Assessment, costs and expenses
which in accordance with the provisions of this Declaration or a
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Supplemental Declaration are to be borne by all Owners shall first be
allocated to all Owners. Costs and expenses which in accordance
with the provisions of this Declaration or a Supplemental Declaration
are to be borne by the Owners of certain Lots shall then be allocated
to the Owners of such Lots. The provisions of subparagraph (ii) shall
not be deemed to require that all Assessments against vacant Lots or
Lots improved with comparable types of Units, Multifamily
Structures or Multiuse Structures be equal, but only that each Lot be
assessed uniformly with respect to comparable Lots subject to
assessment for similar costs and expenses. Any category of
1 Maintenance Cost included in the Village Center Maintenance
Amount that was allocated to all Owners prior to the Applicable Date
shall be allocated to all Owners subsequent to the Applicable Date.
Costs of trash removal and other services provided by the Corporation
to individual Lots shall not be included in the General Assessment of
any Lot the Owner of which has elected to obtain the same service
directly from a service provider.
(c) Community Area Initial Assessment. Unless otherwise provided in a
Supplemental Declaration, on the earlier of (i) the date a Lot is conveyed by
Declarant to an Owner (other than the holder of a first mortgage on such Lot in a
conveyance which constitutes a deed in lieu of foreclosure), (ii) the date a Unit
constructed on the Lot has been certified for occupancy by the Zoning Authority or
(iii) the date a Unit on the Lot is first occupied by an Owner or Occupant upon
completion of construction thereof, there shall be due and payable to the Corporation
by the Owner of such Lot the following sum which shall be deposited in the Reserve
for Replacements maintained by the Corporation:
(i) a Lot on which a detached or an
attached single family residence is to
be constructed, the sum of Three
Hundred Dollars ($300.00);
(ii) a Lot on which a detached single-
family residence together with an
attached or detached accessory
dwelling is to be constructed, the sum
of Four Hundred Dollars ($400.00);
(iii) a Lot on which a detached single-
residence with an attached or
detached home -based office is to be
constructed, the sum of Five Hundred
Dollars ($500.00);
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(iv) a Lot on which a Multifamily
Structure, a Multiuse Structure or a
Horizontal Property Regime is to be
constructed, an amount equal to the
greater of Six Hundred Dollars
($600.00) or the product of (y) the
number of Living Units to be
constructed in such Multifamily
Structure, Multiuse Structure or
Horizontal Property Regime and (z)
One Hundred Dollars ($100.00);
(v) a Lot on which Senior Housing is to
be constructed, an amount equal to the
product of (y) the number of Living
Units (exclusive of those devoted
solely to skilled nursing care for the
occupants thereof) to be constructed
on the Lot and (z) One Hundred
Dollars ($100.00); and
(vi) 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
the building or buildings constructed
or authorized to be constructed
thereon which, in the case of a
Multiuse Structure, are to be used as
Commercial Units.
(d) Community Area Debt Service Assessment. If any Community Area
Secured Indebtedness is outstanding, the Corporation shall levy a Community Area
Debt Service Assessment against each Lot (other than a Lot exempt from the General
Assessment pursuant to subparagraph (b)(ii)(3) above) in an amount established by
the Board of Directors which is sufficient to meet all debt service requirements on
such indebtedness but does not exceed, in any fiscal year of the Corporation, an
amount equal to one quarter of one percent (0.25 of the original sales price of the
Lot. Declarant shall certify to the Corporation upon sale of each Lot the original
sales price of such Lot. The Community Area Debt Service Assessment shall be held
and disbursed in accordance with the provisions of Paragraph 18(f).
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(e) Parcel Assessments.
(i) Purpose of Assessments. Parcel Assessments shall be
used for such purposes as are authorized by the Supplemental
Declaration for such Parcel.
(ii) Method of Assessment. An annual Parcel Assessment
shall be levied by the Corporation against Lots in a Parcel (except the
Village Center Parcel or a Parcel which is a Horizontal Property
Regime) using the basis set forth in the Supplemental Declaration for
such Parcel, and collected and disbursed by the Corporation. The
Board of Directors shall fix in accordance with the By -Laws and the
provisions of any Supplemental Declaration the annual Parcel
Assessment for each Parcel, the date(s) such Assessment shall
become due, and the manner in which it shall be paid.
(iii) Special Assessments. In addition to the annual Parcel
Assessment, the Corporation may levy in any fiscal year a special
Parcel Assessment against one or more of the Lots in a Parcel (except
the Village Center Parcel or a Parcel which is a Horizontal Property
Regime) for the purpose of (A) defraying, in whole or in part, the cost
of any 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 a a majority of the Owners of Lots in the Parcel who
are voting in ssent person of or by proxy at a meeting of such Owners duly
called for this purpose or (B) defraying any Maintenance Costs
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
1 Assessment.
(f) Architectural Control Assessment. If any Owner or Person acting for
or on behalf of, or pursuant to the authorization or acquiescence of, an Owner fails to
comply with Building Guidelines or other requirements for construction of
improvements, landscaping and other Building Activities or maintenance of a Lot
(including but not limited to installation of required Street Trees or the filing of a Lot
Development Plan) or any restrictive covenant or condition specified in a
Supplemental Declaration for the Parcel in which such Owner's Lot is located
(exclusive of the Village Center Parcel) and/or the provisions of Paragraphs 20 or 22
of this Declaration, then the Corporation may levy against the Lot owned by such
Owner an Assessment in an amount determined by the Board of Directors which does
not exceed the greater of (i) Five Hundred Dollars ($500.00) for each day that such
failure continues after written notice thereof is given by Declarant or the Corporation
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1
to such Owner or (ii) One Hundred Thousand Dollars ($100,000.00). Such
Assessment shall constitute a lien upon the Lot of such Owner and may be enforced
in the manner provided in subparagraph (i) below. The levy of an Architectural
Control Assessment shall be in addition to, and not in lieu of, any other remedies
1 available to Declarant and/or the Corporation provided in this Declaration, at law or
in equity in the case of the failure of an Owner to comply with the provisions of this
Declaration and all applicable Supplemental Declarations (exclusive of the Village
Center Supplemental Declaration).
(g) Special Assessment. In addition to such other Special Assessments as
may be authorized herein, the Corporation may levy in any fiscal year a Special
Assessment applicable to that year and not more than the next four (4) succeeding
fiscal years for the purpose of defraying, in whole or in part, the cost of any
1 construction, repair, or replacement of a capital improvement upon the Community
Area, including fixtures and personal property relating thereto or any Common
Facilities, provided that any such Assessment shall have the assent of a majority of
the votes of the Members whose Lots are subject to assessment with respect to the
capital improvement who are voting in person or by proxy at a meeting of Members
duly called for this purpose. Any Special Assessment pursuant to this subparagraph
(g) shall be allocated equally among all Lots in the Tract except those exempt from
the General Assessment.
(h) Date of Commencement of Assessments. The General Assessment
and Parcel Assessments (exclusive of Parcel Assessments applicable to Commercial
Lots in the Village Center Parcel) shall commence with respect to assessable Lots
within a Parcel on the first day of the month following conveyance of the first Lot in
the Parcel to an Owner who is not Declarant. The initial Assessment on any
assessable Lot shall be adjusted according to the days remaining in the month in
which the Lot became subject to assessment. Notwithstanding the foregoing, (A) if a
Designated Builder owns more than one (1) Residential Lot, the General Assessment
shall commence with respect to each Lot on the earlier of (i) the date construction of
a Living Unit on the Lot is completed and a certificate of occupancy issued or (ii) the
first anniversary of the date the Designated Builder acquired title to the Lot; (B) the
General Assessment on a Commercial Lot shall commence on the earlier of (i) the
date a certificate of occupancy is issued for a Commercial Unit constructed on the
Lot or (ii) eighteen (18) months following the date the Owner acquired title to the
Lot; and (C) the General Assessment on a Lot located in the Primary Area (SH) shall
commence on the earlier of (i) the first anniversary of the date a certificate of
occupancy is issued for a Living Unit constructed on the Lot or (ii) the second
anniversary of the date the Owner acquired title to the Lot.
(i) Effect of Nonpayment of Assessments; Lien Creation and
Enforcement; Remedies of the Corporation. Any Assessment not paid within thirty
(30) days after the due date thereof, and any subsequent Assessment due and unpaid,
shall bear interest from the due date thereof to the date actually received by the
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Corporation at the rate of twelve percent (12 per annum, or such other rate as
may hereafter be adopted by resolution of the Board of Directors, simple interest on
a 365/365 basis year. If authorized by a resolution of the Board of Directors then in
effect, the Corporation shall, with respect to a past -due Assessment, send to each
Person who was the Owner of the Lot at the time when the applicable Assessment
became due (an "Affected Owner (a) a reminder statement when the applicable
Assessment is at least fifteen (15) days past due; (b) a letter demanding immediate
payment of both the applicable Assessment and the interest accrued under the first
sentence of this subparagraph (i) when the applicable Assessment becomes thirty
(30) days past due; and (c) a second letter when the applicable Assessment and the
interest accrued under the first sentence of this subparagraph (i) are not received
within forty -five (45) days after the due date of such Assessment, stating that unless
such Assessment and the accrued interest thereon are paid in full within fifteen (15)
days from the date of the letter, the Affected Owner's account may be referred to the
Corporation's attorney for collection, and further stating that upon this referral to
the Corporation's attorney, the Affected Owner shall be liable to the Corporation for
the Corporation's attorneys' fees and other costs, fees, and expenses incurred by the
Corporation in enforcing such Affected Owner's obligations to the Corporation;
provided, however, in the event that during the period that the foregoing reminder
statement or demand letters are otherwise to be sent, a subsequent Assessment
becomes due and payable, (x) such subsequent Assessment shall be included in any
subsequent demand for payment and in the calculation of the interest due; and (y) no
new or separate request or demand for payment of any such subsequent Assessment
shall or need be sent. The foregoing resolution may also expressly direct the
Corporation to refer the Affected Owner's account to the Corporation's attorney for
collection if the series of communications described in (a) -(c) (above) prove to be
unsuccessful, in whole or in part, and state a general or specific time period for
doing so. If any date specified herein is, or any period specified herein expires on, a
Saturday, Sunday or federal holiday, then such date or the expiration date of such
period, as the case may be, shall be extended to the next succeeding business day.
Whether or not the resolution described in the immediately preceding
paragraph of this subparagraph (i) is adopted by the Board of Directors and whether
or not the Corporation complies with that resolution, in whole or in part, any
Affected Owner with a past -due Assessment shall be personally obligated to the
Corporation for the payment of (a) the applicable Assessment; (b) the interest
described in, and accrued under, the first sentence of this subparagraph (i); (c) all
attorneys' fees (including paralegal fees) incurred by the Corporation in enforcing
such Affected Owner's personal obligations hereunder or enforcing the charge on the
land described hereinbelow, whether incurred before litigation is commenced, during
litigation, or on appeal; (d) such other and further collection costs and expenses
incurred by the Corporation in enforcing such Affected Owner's personal obligations
hereunder or enforcing the charge on the land described hereinbelow (exclusive of
court costs); and (e) court costs incurred by the Corporation (including on appeal) if
and when awarded by the court.
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1
All Assessments together with the interest, fees, charges, costs and expenses
described in the immediately preceding paragraph of this subparagraph (i) (under
the terms and conditions specified therein) shall also be a charge on the land, from
1 the date assessed, due, accrued, incurred, or awarded, as applicable, and shall be a
continuing lien upon the Lot against which the applicable Assessment is made until
paid in full. Notwithstanding anything contained in this subparagraph (i) possibly to
the contrary, the Board of Directors, by vote of a majority of the Directors, or
appropriate officers of the Corporation acting pursuant to authority granted by a
vote of a majority of the Directors, which authority may be general or specific, shall
be empowered, for good cause shown and in appropriate circumstance, to waive or
forego interest and other fees, costs, and expenses otherwise due the Corporation
hereunder or becoming a lien upon a Lot; provided, however, the fact that interest or
other fees, costs, and expenses otherwise due the Corporation or becoming a lien
upon a Lot may be or have been waived or foregone in a similar or analogous
instance or case may not be used as a defense to an action for the collection thereof
or lien enforcement in connection therewith and such defense shall be deemed
waived by each and all Owners.
If the Corporation has provided for collection of any Assessment in
installments, upon default in the payment of any one or more installments, the
Corporation may accelerate payment and declare the entire balance of said
Assessment due and payable in full. No Owner may waive or otherwise escape
liability for the Assessments provided for herein by nonuse of the Community Area
or the Common Facilities or abandonment of his Lot.
(j) Subordination of the Lien to Mortgages. To the extent specified
herein, the lien of the Assessments provided for herein against a Lot shall be
1 subordinate to the lien of any recorded first mortgage covering such Lot and to any
valid tax or special assessment lien on such Lot in favor of any governmental taxing
or assessing authority. Sale or transfer of any Lot shall not affect the assessment lien.
The sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in
lieu thereof shall, however, extinguish the lien of such Assessments as to payments
which became due more than six (6) months prior to such sale or transfer. No sale or
transfer shall relieve such Lot from liability for any Assessments thereafter becoming
due or from the lien thereof.
(k) Certificates. The Corporation shall, upon demand by an Owner, at any
time, furnish a certificate in writing signed by an officer of the Corporation that the
Assessments on a Lot have been paid or that certain Assessments remain unpaid, as
the case may be.
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1
1
(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 fiscal year, which
shall provide for allocation of expenses in such a
manner that the obligations imposed on the
Corporation by the Declaration and all Supplemental
Declarations will be met.
(2) Certification of Village Center Maintenance
Costs. On or before the Applicable Date, Declarant
shall certify to the Corporation the annual
Maintenance Costs with respect to the Community
Area within the Village Center incurred by the
Corporation and Declarant for each of the two (2)
fiscal years prior to the Applicable Date and incurred
or to be incurred for the fiscal year in which the
Applicable Date occurs. The sum of such amount
divided by three (3) shall constitute the "Base Village
Center Maintenance Amount."
(3) Village Center Budget. The annual budget
adopted pursuant to subparagraph (a) above for each
fiscal year subsequent to the fiscal year in which the
Applicable Date occurs shall include an amount which
is not less than the sum of (i) the Base Village Center
Maintenance Amount and (ii) the product of (A) the
Base Village Center Amount and (B) the difference
between the Consumer Price Index for All Urban
Consumers (All Items) "Index published by the
Bureau of Labor Statistics of the United States
Department of Labor (or any generally accepted
substitute for such index if it is no longer published)
for the preceding fiscal year and the Index for the year
prior to the year in which the Applicable Date occurs.
The amount thus determined each year is referred to
as the "Village Center Maintenance Amount." In
establishing the annual budget, the Board of Directors
shall give good faith consideration to the amount
recommended by the Association to be included
therein to maintain the Village Center. The annual
budget shall also include such amount as may be
required to pay the premiums on the public liability
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1
1
insurance required to be maintained by the
Corporation pursuant to Paragraph 18(h).
(m) Title Transfer Assessments. On the date title to a Lot or a Living Unit
is conveyed by an Owner other than Declarant, a Designated Builder or any other builder
approved by Declarant pursuant to Paragraph 36, there shall be due to the Corporation by
the Person acquiring title to such Lot (the new Owner) a Title Transfer Assessment in the
following amount which shall be deposited in the Reserve for Replacements maintained by
the Corporation:
(i) If the gross sales price of the Lot or Living Unit is less
than Five Hundred Thousand Dollars, Three Hundred Dollars
($300.00);
(ii) If the gross sales price of the Lot or Living Unit is
greater than Five Hundred Thousand but less than One Million
Dollars, Four Hundred Dollars ($400.00); and
(iii) If the gross sales price of the Lot or Living Unit is
greater than One Million Dollars ($1,000,000.00), Five Hundred
Dollars ($500.00).
20. Architectural Control.
(a) The Architectural Review Board. An Architectural Review Board
1 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) Purpose. The Architectural Review Board shall regulate the external
design, appearance, use, location and maintenance of the Tract (exclusive of the
Village Center Parcel and the Peripheral Retail Area) and of all improvements
thereon in such manner as to preserve and enhance values, to maintain a harmonious
relationship among structures, improvements and the natural vegetation and
topography, to implement the development standards and guidelines set forth in the
Zoning Ordinance and to assure compliance with the Building Guidelines established
by Declarant or the Architectural Review Board for WestClay (exclusive of the
Village Center Parcel).
(c) Building Activity. Except as otherwise expressly provided in this
Declaration or a Supplemental Declaration, and excluding from the provisions of this
Paragraph 20 all Commercial Lots located in the Village Center Parcel, no
improvements, alterations, repairs, change of colors, excavations, changes in grade,
planting, installation or modification of signage or other work that in any way alters
any Lot or the exterior of the improvements located thereon from its natural or
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1
1
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 Iandscaping 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
1 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
ng L Development espe thereto other than sha Declarant ll be submitted of any to Buildi the ArchiActivity tectural a ot Review Board, and Plan no with Bu r ildin ct
1 g
Activity 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, permits and /or variances
required by law from governmental authorities having jurisdiction over WestClay,
1 and no Owner shall undertake any construction activity within WestClay unless all
legal requirements have been satisfied. Approval by the Architectural Review Board
of a Lot Development Plan shall not be deemed to imply compliance with approvals,
consents, permits and/or variances required by law from governmental authorities
having jurisdiction over the Tract. Each Owner shall complete all improvements to a
Lot strictly in accordance with the Lot Development Plan approved by the
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)
1 days after notice of such plan has been duly filed with the Architectural Review
Board in accordance with procedures established by Declarant or, subsequent to the
Applicable Date, the Board of Directors, approval will be deemed denied. A decision
of the Architectural Review Board (including a denial resulting from the failure of
such Board to act on the plan within the specified period) may be appealed to the
Board of Directors which may reverse or modify such decision (including approve a
Lot Development Plan deemed denied by the failure of the Architectural Review
Board to act on such plan within the specified period) by a two thirds (2/3) vote of
the Directors then serving.
(e) Guidelines and Standards. The Architectural Review Board shall have
the power to establish and modify from time to time such written architectural,
1 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
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1
guideline or standard may be appealed to the Board of Directors which may terminate
or modify such guideline or standard by a two thirds (2/3) vote of the Directors then
serving. The Building Guidelines may establish different standards and requirements
for various Lots within WestClay based on the size, location and use of such Lots and
the improvements to be located thereon.
(f) 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) Design Consultants. The Architectural Review Board may utilize the
services of architects, engineers and other Persons possessing design expertise and
experience in evaluating Lot Development Plans. No presumption of any conflict of
interest or impropriety shall be drawn or assumed by virtue of the fact that any of
such consultants are affiliated with Declarant or a Designated Builder or may, from
time to time, represent Persons filing Lot Development Plans with the Architectural
Review Board.
(h) Existing Violations of Declaration. The Architectural Review Board
shall not be required to consider any Lot Development Plan submitted by an Owner
who is, at the time of submission of such Lot Development Plan, in violation of the
requirements of a Supplemental Declaration relating to the Parcel in which such
Owner's Lot is located and/or the provisions of the Zoning Ordinance or this
Paragraph 20, unless such Owner submits to the Architectural Review Board with
such Lot Development Plan an irrevocable agreement and undertaking (with such
surety as the Board may reasonably require) to remove from the Owner's Lot any
improvements, landscaping, exterior lighting or signage constructed and/or installed
prior to the submission of a Lot Development Plan (or constructed and/or installed in
violation of a previously approved Lot Development Plan) to the extent any such
previously constructed and/or installed improvement, landscaping, exterior lighting
or signage is not subsequently approved by the Architectural Review Board. The
Architectural Review Board shall have the power to recommend to the Board of
Directors that the Corporation assess an Architectural Control Assessment against
any Owner who fails to comply with the requirements of a Supplemental Declaration
1 (other than the Village Center Supplemental Declaration), Paragraph 20 of this
Declaration or the provisions of the Zoning Ordinance. Under no circumstances shall
any action or inaction of the Architectural Review Board be deemed to be
unreasonable, arbitrary or capricious if, at the time of such decision, the Person
having submitted a Lot Development Plan for approval by the Architectural Review
Board has violated a Supplemental Declaration, Paragraph 20 of this Declaration or
the provisions of the Zoning Ordinance and such violation remains uncured.
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(i) Exercise of Discretion. Declarant intends that the members of the
Architectural Review Board exercise discretion in the performance of their duties
consistent with the provisions of subparagraph (f), and every Owner by the purchase
of a Lot shall be conclusively presumed to have consented to the exercise of
discretion by such members. In any judicial proceeding challenging a determination
by the Architectural Review Board and in any action initiated to enforce this
Declaration in which an abuse of discretion by the Architectural Review Board is
raised as a defense, abuse of discretion may be established only if a reasonable
Person, weighing the evidence and drawing all inferences in favor of the Board,
could only conclude that such determination constituted an abuse of discretion.
(j) Liability of Board. Neither the Architectural Review Board or any
member or agent thereof, nor Declarant shall be responsible in any way for any
1 defects in any plans, specifications or other materials submitted to it, nor for any
defects in any work done according thereto. Further, the Board does not make, and
shall not be deemed by virtue of any action of approval or disapproval taken by it to
have made, any representation or warranty as to the suitability or advisability of the
design, the engineering, the method of construction involved, or the materials to be
used.
(k) Inspection. Members of the Architectural Review Board may inspect
work being performed to assure compliance with these Restrictions and applicable
1 regulations.
21. Community Area and Common Facilities.
(a) Ownership. The Community Area and the Common Facilities shall
Y
remain private, and neither Declarant's execution or recording of an instrument
portraying the Community Area, nor the doing of any other act by Declarant is, or is
intended to be, or shall be construed as, a dedication to the public of the Community
Area or the Common Facilities. Declarant, the Corporation or the Association may,
however, dedicate or transfer all or any part of the Community Area or the Common
Facilities to any Permitted Title Holder for parks or other public purposes, to the City
of Carmel or the County of Hamilton for use as public rights -of -way or to a public
utility for public utility purposes, and Declarant may transfer all or any part of the
Community Area to a Permitted Title Holder as contemplated by this Declaration.
1 (b) Density of Use. Declarant expressly disclaims any warranties or
representations regarding the density of use of the Community Area or any facilities
located thereon or constituting a part thereof.
(c) Obligations of the 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 Common Area, shall be responsible for the exclusive management and
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control of the Community Area and all improvements thereon (including Common
Facilities and other furnishings and equipment related thereto), and, except as
otherwise provided herein, in a Supplemental Declaration, or in an instrument of
conveyance to a Permitted Title Holder, shall keep the Community Area and
Common Facilities in good, clean, attractive and sanitary condition, order and repair.
The Corporation may, with the consent of the Board of Directors of the Association,
transfer to the Association responsibility for management, control and/or
maintenance of Community Area and Common Facilities located in the Village
Center.
(d) Easements of Enjoyment.
(i) Owners. No Person shall have any right or easement
1 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, an
Owner may use upon and subject to such rules and regulations as
may be adopted by the Board of Directors and upon the condition
that the Owner is not delinquent in the payment of any Assessment or
1 in violation of any term or condition of the Declaration, any
Supplemental Declaration or any rule or regulation adopted by the
Board of Directors, the Paths, the Village Community Buildings, the
1 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. If authorized by the Board of
1 Directors and subject to such terms and conditions as the Board may
establish, the Owners of Lots abutting a Pond (other than Kew,
Druid, Tree Shadow, Dogwood and Wilson Ponds) may fish in the
Pond. No Owner whose Lot does not abut the Lake or a Pond shall
have any right of access to the Lake or a Pond over any Lot, but only
such right of access over the Community Area as may be designated
on a Plat or by the Board of Directors for such purpose.
(ii) 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, a Supplemental Declaration or by the Board of Directors.
Occupants shall have the same rights as Owners to use the Paths, the
Parks (exclusive of the Recreation Centers) and the Commons subject
to the same rules, regulations and conditions as are applicable to
1 Owners. Except as otherwise provided herein or in a Supplemental
Declaration, Occupants shall have the same rights as Owners to use
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the Village Community Buildings and Recreation Centers except that:
(A) the Board of Directors may restrict or preclude the use thereof by
Occupants of Commercial Units and Multifamily Structures if no part
of the Maintenance Costs of the Recreation Centers are assessed to
the Owners of such Commercial Units or Multifamily Structures, (B)
with respect to a Commercial Unit, the number of Persons claiming
as Occupant who may use the Village Community Buildings and the
1 Recreation Centers shall not exceed two (2), each of whom shall be
designated in the manner specified in Paragraph 21(d)(iii), and (C)
the Board of Directors may limit the number of Occupants of a Living
Unit located in a Multiuse Structure or a Multifamily Structure who
are entitled to the rights granted hereby to a number equal to the sum
of the number of bedrooms located in the Living Unit plus one (1).
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 Village Community
Buildings and Recreation Centers by such Occupants as heretofore
provided.
1 (iii) Entities. If an Owner or Occupant is not a natural
person, then such Owner or Occupant shall designate in writing to
the Corporation the names of not more than two (2) individuals who
will be authorized to enjoy the rights and privileges granted by this
Paragraph 21. An Owner or Occupant may change such designation
at will by written notice to the Corporation. Individuals designated
pursuant to this clause (iii) shall have the same rights and privileges
under this Paragraph 21 as an Owner or Occupant who is a natural
person.
(iv) Responsibilities of Owners and Occupants. f ants. No Owner P
or Occupant shall take any action which will damage, deface or
impair (or result in damage to or defacement or impairment of) the
Community Area or Common Facilities or will adversely affect the
use thereof for the purpose intended.
(v) Rights of Occupants are Derivative. The rights of
Occupants granted by this Declaration arise solely by virtue of the
rights granted to Owners and are derivative therefrom. To the extent
that an Owner's rights are limited or suspended as permitted by this
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Declaration or any Supplemental Declaration, the rights of all
Occupants claiming by and through such Owner shall be similarly
limited or suspended.
(e) Extent of Easements. The easements of enjoyment created hereby
shall be subject to the following:
(i) the right of the Corporation and/or the Association to
establish reasonable rules for the use of the Community Area
(including but not limited to use of identification cards) and to charge
1 reasonable fees for the use
of any meeting or banquet facilities (but
not recreational facilities) located in or constituting a part of the
Community Area;
(ii) the right of the Corporation and/or the Association to
suspend the right of an Owner and all Persons whose right to use the
Paths, the Lake, the Ponds, the Recreation Centers, 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 and all Persons claiming by or through
an Owner (including family members and Occupants of the Unit) to
use the Lake, the Ponds, the Village Community Buildings, the
Recreation Centers, the Commons and the Parks for a period not to
exceed twelve (12) consecutive calendar months for any violation or
infraction of this Declaration, any Supplemental Declaration or the
Register of Regulations by such Owner or any Person for whom such
1 Owner is responsible pursuant to the provisions of this Declaration;
provided, however, that Occupants of Units in a Multifamily
Structure or Multiuse Structure other than the Unit owned or
occupied by the Person deemed responsible for the violation or
infraction shall not be denied such use as a consequence of a
violation or infraction by the Owner or Occupant of another Unit in
such Multifamily Structure or Multiuse Structure;
(iv) the rights of the holder of any Common Area Secured
1 Indebtedness;
(v) the right of the Corporation to mortgage any or all of
1 the Community Area, the facilities constructed thereon and the
Common Facilities for the purposes of improvements to, or repair of,
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the Community Area, the facilities constructed thereon or the
1 Common Facilities, pursuant to approval of a majority of the votes of
the Members voting in person or by proxy at a regular meeting of the
Corporation or a meeting duly called for this purpose;
(vi) the right of the Corporation to dedicate or transfer all
or any part of the Community Area and/or the Common Facilities to
1 any public agency, authority or utility exclusively for purposes
permitted herein, but subsequent to the Applicable Date no such
dedication or transfer shall be effective unless an instrument signed
1 by the appropriate officers of the Corporation acting pursuant to
authority granted by a majority of the votes of the Members present
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
1 Declaration or Plat to restrict the use of Community Area and/or
Common Facilities located in a Section or Parcel to (a) Owners
and/or Occupants of Units, Multifamily Structures or Multiuse
Structures located in such Section or Parcel or (b) to other Owners of
less than all of the Lots in the Tract.
(f) Additional Rights of Use. The spouse, children and grandchildren 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
1 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) Damage or Destruction by Owner. For purposes of this Paragraph
21, an Owner shall be responsible for his acts, the acts of all Persons claiming by
and through him (including family members and Occupants) and the acts of the
guests, invitees, licensees, tenants, agents and family members of the Owner and of
all Persons claiming by and through him. If the Community Area or any Common
Facility is damaged, defaced or destroyed by an Owner or by any Person for whom
he is responsible pursuant to the foregoing sentence, then the Corporation may
exercise its rights under Paragraph 21(e)(iii) and shall repair such damage or
defacement or replace such destroyed property in a good workmanlike manner in
conformance with the original plans and specifications of the property, as the same
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may have subsequently been revised in connection with any modification or
alteration of the property by Declarant or the Corporation. An amount equal to all
costs incurred to repair, restore or replace the damaged, defaced or destroyed
property (including allocated payroll and overhead costs of employees of the
1 Corporation making or supervising such repairs, restoration or replacement) shall
be assessed against the responsible Owner as a Special Assessment, shall bear
interest at a rate established by the Board of Directors, shall be payable upon
demand and shall constitute a lien on the Lot of the responsible Owner.
(h) Conveyance of Title. Declarant may retain the legal title to the
Community Area and the Common Facilities until the Applicable Date, but
notwithstanding any provision herein, the Declarant hereby covenants that it shall
convey such of the Lake, the Ponds, the Private Drives (exclusive of alleys), the
Village Community Buildings, the Parks, the Commons and the Common Facilities
which Declarant acquires, develops or constructs and such other of the Community
Area to which Declarant holds title to a Permitted Title Holder, free and clear of all
liens and other financial encumbrances exclusive of liens securing Community Area
Secured Indebtedness and the lien for taxes not yet due and payable, not later than the
Applicable Date.
22. Use of Tract.
1 (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
1 operate upon any Lot so as to be detrimental to any other Lot in the
vicinity thereof or to its occupants.
(iii) Other Restrictions. Declarant may impose additional
Restrictions in any Plat, Supplemental Declaration, Building
Guidelines or other written instrument notice of which is given to
1 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
1 1 set forth in a Supplemental Declaration or the Building Guidelines,
including but not limited to rules to regulate animals, antennas, signs,
fences, walls and screens, mailboxes, exterior light fixtures, storage
1 tanks, awnings, storage and use of recreational vehicles, storage and
use of machinery, use of outdoor drying lines, recreational facilities,
trash containers, and planting, maintenance and removal of vegetation
1 on the Tract. The Architectural Review Board may adopt general
rules and regulations appropriate to each Parcel (other than the
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Village Center Parcel), which rules and regulations may vary among
1 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
1 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
1 amendments thereto shall be placed in the Register of Regulations
and shall constitute Restrictions.
1 (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
1 Review Board can show good cause and acts in accordance with
adopted guidelines and procedures.
1 (b) Maintenance of Tract. To the extent that exterior maintenance is not
provided for in a Supplemental Declaration, each Owner shall keep all Residential
Lots owned by the Owner, and all improvements therein or thereon, in good order
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
1 improvements situated thereon, as provided herein, the Corporation, after notice to
the Owner as provided by the By -Laws and approval by two thirds (2/3) vote of the
Board of Directors, shall have the right to enter upon said Lot to correct drainage and
to repair, maintain and restore the Lot and the exterior of the buildings and any other
improvements erected thereon. All costs related to such correction, repair or
restoration shall become a Special Assessment upon such Lot.
23. Easements.
1 (a) Plat Easements. In addition to such easements as are created
elsewhere in this Declaration or in a Supplemental Declaration and as may be created
by Declarant pursuant to other written instruments recorded in the office of the
Recorder of Hamilton County, Indiana, Lots are subject to drainage easements, sewer
easements, utility easements, entry way easements, landscape easements, water
access easements, community area access easements, pathway easements and
nonaccess easements, either separately or in any combination thereof, as shown on
the Plats, which are reserved for the use of Declarant, Owners, the Corporation, the
Architectural Review Board, public utility companies and governmental agencies as
follows:
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(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
ng l p c ih
1 individual ground responsibandilor ity of ubli each dra Owner nage to systems; maintain and it the shall drainage be te
across his own Lot. Under no circumstance shall said easement be
blocked in any manner by the construction or reconstruction of any
improvement, nor shall any grading restrict, in any manner, the
waterflow. Said areas are subject to construction or reconstruction to
any extent necessary to obtain adequate drainage at any time by any
governmental authority having jurisdiction over drainage, by
Declarant, and by the Architectural Review Board, but neither
Declarant nor the Architectural Review Board shall have any duty to
1 undertake any such construction or reconstruction. Said easements
are for the mutual use and benefit of the Owners.
1 (ii) Sewer Easements (SE) are created for the use of the
local governmental agency having jurisdiction over any storm and
sanitary waste disposal system which may be designed to serve
WestClay for the purpose of installation and maintenance of sewers
that are a part of said system.
1 (iii) Utility Easements (UE) are created for the use of
Declarant, the Corporation, the Association and all public or
municipal utility companies, not including transportation companies,
1 for the installation and maintenance of mains, ducts, poles, lines,
wires and other facilities, as well as for all uses specified in the case
of sewer easements.
(iv) Entry Way Easements (EWE) are created for the use
by Declarant, the Architectural Review Board, the Corporation and
the Association for the installation, operation and maintenance of the
Entry Ways.
(v) Landscape Easements (LE) are created for the use by
Declarant, the Architectural Review Board, the Design Review Board,
the Corporation and the Association for the planting and maintenance
of trees, shrubs and other plantings and the installation and
maintenance of fencing.
(vi) Water Access Easements (WAE) are created for the
use of Declarant, the Corporation, the Association and the Drainage
1 Board for the purpose of gaining access to the Lake and the Ponds in
the course of maintenance, repair or replacement of any thereof.
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(vii) Community Area Access Easements (CAE) are created
for the use of Declarant, the Corporation and the Association for the
purpose of gaining access to the Parks and the Commons in the
course of maintenance, repair or replacement thereof and for the use
1 of Owners for the purpose of gaining access to such Community Area
to enjoy the use thereof to the extent authorized herein or in a
Supplemental Declaration.
(viii) Pathway Easements (PE) are created for the
installation by Declarant, the maintenance by the Corporation and the
1 use by the Owners of the Paths and Path Lights.
(ix) Non Access Easements (NAE) are created to preclude
1 access from certain Lots to abutting rights -of -way across the land
subject to such easements.
1 (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
1 Person who is not an Owner by an instrument recorded in the Office of the Recorder
of Hamilton County, Indiana, but a paved driveway necessary to provide access to a
Lot from a public street or Private Drive and a sidewalk installed by or at the
direction of Declarant (and replacements thereof) shall not be deemed a "structure"
for the purpose of this Restriction.
1 (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,
1 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
1 install and maintain facilities and equipment on the Tract and to excavate for such
purposes if Declarant or such company restores the disturbed area as nearly as is
practicable to the condition in which it was found. No sewers, electrical lines, water
1 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
1 utility furnishing a service covered by the general easement herein provided request a
specific easement by separate recordable document, Declarant or the Corporation
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shall have the right to grant such easement on the Tract without conflicting with the
1 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
1 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.
1 (c) Public Health and Safety Easements. An easement is hereby created
for the benefit of, and granted to, all police, fire protection, ambulance, delivery
1 vehicles, and all similar Persons to enter upon the Community Area in the
performance of their duties.
1 (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
to the extent necessary to exercise its rights with respect to any legal drain
1 constituting a part of the Drainage System.
(e) Crossing Underground Easements. Easements utilized for
1 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
1 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,
1 and neither Declarant nor any utility company using the easements shall be liable for
any damage done by either of them or their assigns, agents, employees, or servants to
1 shrubbery, trees, flowers or other improvements of the Owner located on the land
covered by said easements.
1 (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 to cut any trees, bushes or shrubbery, make anygradings 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
1 affected Owners, unless in the opinion of Declarant an emergency exists which
precludes such notice.
1 (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.
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1 24. Use of Lots During Development.
(a) By Declarant. Notwithstanding any provisions to the contrary
1 contained herein or in any other instrument or agreement, Declarant or its sales
agents or contractors, or any Designated Builder, may maintain during the period of
construction and sale or rental of Lots and Units in the Tract or the Development
1 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,
1 including, but without limiting the generality thereof, a business office, storage area,
construction yards, signs, model Units and sales or leasing offices. Declarant
specifically reserves the right to maintain a sales office in, and make other use of, the
1 Village Community Buildings during the period that it is engaged in the sale of Lots
in WestClay.
1 (b) By Builders. Notwithstanding any provisions to the contrary
contained herein, a Designated Builder and, with the consent of the Board of
Directors, any other builder who has constructed a Living Unit in WestClay may use
1 such Living Unit as a "model" home and may hold such home open to the public,
either individually or as part of a "home show" approved by the Board of Directors.
With the approval of Declarant, visitors to such model home may use Lots owned by
1 Declarant or the builder that are adjacent to or in proximity to such model home for
parking.
1 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
1 Declarations, but neither Declarant nor the Corporation shall be liable for damage of any kind to any
Person for failure either to abide by, enforce or carry out any of the Restrictions. No delay or failure
by any Person to enforce any of the Restrictions or to invoke any available remedy with respect to a
1 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
1 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, paralegal fees and all court
1 costs, including on appeal, if it substantially prevails in such action, provided, however, that the
foregoing shall not apply to actions brought by the Corporation to enforce payment of Assessments
or to foreclose a lien for unpaid Assessments, which shall be governed by Paragraph 19 of this
Declaration.
26. Limitations on Rights of the Corporation. Prior to the. Applicable Date, the
g rP PP
Corporation may not use its resources nor take a public position in opposition to the General Plan of
1 Development or to changes thereto proposed by Declarant. Subsequent to the Applicable Date, no
judicial or administrative proceedings may be commenced or prosecuted by the Corporation unless
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authorized by the affirmative vote of not less than seventy-five percent (75 of the Members at a
meeting of the Members called and convened in accordance with the requirements of the By -Laws;
provided, however, that the foregoing shall not apply to (i) actions brought by the Corporation to
enforce a Restriction (including without limitation an action to enforce payment of Assessments or to
foreclose a lien for unpaid Assessments) or (ii) counterclaims brought by the Corporation in
proceedings brought by the Corporation in proceedings instituted against it. Nothing in this
paragraph shall be construed to limit the rights of the Members acting as individuals or in affiliation
1 with other Members or groups as long as they do not employ the resources of the Corporation or
identify themselves as acting in the name, or on the behalf, of the Corporation.
27. Approvals by Declarant. Notwithstanding any other provisions hereof, prior to the
Applicable Date, the following actions shall require the prior approval of Declarant: the addition of
real estate to the Tract; dedication or transfer of the Community Area; mergers and consolidations of
1 Sections or Parcels within the Tract or of the Tract with other real estate; mortgaging of the
Community Area; amendment of this Declaration or any Supplemental Declaration; changes in the
basis for assessment or the amount, use and time of payment of the Community Area Initial
1 Assessment; the initiation by the Corporation or the Association of any judicial or administrative
proceedings; and the adoption or modification of Building Guidelines.
1 28. Mortgages.
(a) Notice to Corporation. Any Owner who places a first mortgage lien
1 upon his Unit, Multifamily Structure or Multiuse Structure or the Mortgagee shall
notify the Secretary of the Board of Directors of such mortgage and provide the name
and address of the Mortgagee. A record of such Mortgagee's name and address shall
1 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
1 if mailed to such Mortgagee at the address shown in such record in the time provided.
Unless notification of any such mortgage and the name and address of Mortgagee are
furnished to the Secretary, either by the Owner or the Mortgagee, no notice to any
1 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
1
subparagraph (a) above notice of any of the following:
(i) Any condemnation or casualty loss that affects a
1 material portion of the Community Area;
(ii) Any delinquency in the payment of any Assessment
1 owed by the Owner of any Unit, Multifamily Structure or Multiuse
Structure on which said Mortgagee holds a mortgage or any default
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by an Owner under the Organizational Documents, if said
1 delinquency or default continues for more than sixty (60) days;
(iii) Any lapse, cancellation or material modification of any
1 insurance policy or fidelity bond maintained by the Corporation;
(iv) Any proposed action that requires the consent of a
1 specified percentage of Mortgagees; and,
(v) Any proposed amendment of the Organizational
Documents effecting a change in (A) the interests in the Community
Area appertaining to any Lot or the liability for Maintenance Costs
appertaining thereto, (B) the vote appertaining to a Lot or (C) the
1 purposes for which any Lot or the Community Area are restricted.
(c) Notice of Unpaid Assessments. The Corporation shall, upon request
1 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
1 Owners, and any Mortgagee or grantee of the Lot shall not be liable for, nor shall the
Lot conveyed be subject to a lien for, any unpaid Assessments in excess of the
amount set forth in such statement.
(d) Financial Statements. Upon the request of any Mortgagee, the
Corporation shall provide to said Mortgagee the most recent financial statement
1 prepared on behalf of the Corporation.
(e) Payments by Mortgagees. Any Mortgagee may (i) pay taxes or other
1 charges that are in default and that may or 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
1 of a policy. A Mortgagee making such payments shall be entitled to immediate
reimbursement from the Corporation.
1 29. Amendments.
(a) Generally. Subject to subparagraphs (c) and (d), this Declaration may
1 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
1 amending this Declaration and (ii), to the extent required by Paragraph 27, Declarant.
(b) By Declarant. Subject to subparagraph (c) but without regard to
1 subparagraphs (a) and (d), Declarant hereby reserves the right prior to the Applicable
Date unilaterally to amend and revise the standards, covenants and restrictions
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contained in this Declaration or any Supplemental Declaration. Such amendments
shall be in writing, executed by Declarant, and recorded with the Recorder of
Hamilton County, Indiana. No such amendment, however, shall restrict or diminish
the rights or increase or expand the obligations of Owners with respect to Lots
conveyed to such Owners prior to the amendment or adversely affect the rights and
interests of Mortgagees holding first mortgages on Lots at the time of such
amendment. Declarant shall give notice in writing to such Owners and Mortgagees
of any amendments. Except to the extent authorized in Paragraph 23(b), Declarant
shall not have the right at any time by amendment of this Declaration or any
Supplemental Declaration to grant or establish any easement through, across or over
any Lot which Declarant has previously conveyed without the consent of the Owner
of such Lot.
1 (c) Approval by Zoning Authority. No amendment which would
eliminate, waive or qualify a requirement set forth herein for the consent of or
approval by the Zoning Authority shall be effective unless approved in writing by the
1 Zoning Authority.
(d) Class Approval. No amendment which would limit or impair the
1 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
1 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
1 all Units therein).
(e) Effective Date. Any amendment shall become effective upon its
1 recordation in the Office of the Recorder of Hamilton County, Indiana.
30. Interpretation. The underlined titles preceding the various paragraphs and
1 subparagraphs of this Declaration are for convenience of reference only, and none of them shall be
used as an aid to the construction of any provision of this Declaration. Wherever and whenever
applicable, the singular form of any word shall be taken to mean or apply to the plural, and the
1 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
1 protection of the present and future Owners, the Corporation, and Declarant, and shall run with the
land and shall be binding on all parties and all Persons claiming under them until January 1, 2030, at
which time said covenants and restrictions shall be automatically extended for successive periods of
1 ten (10) years, unless changed in whole or in part by vote of those Persons who are then the Owners
of a majority of the Lots in the Tract.
1 32. Severability. Every one of the Restrictions is hereby declared to be independent of,
and severable from, the rest of the Restrictions and of and from every other one of the Restrictions,
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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 any Lake or Pond (as provided in subparagraphs (c) of
Paragraphs 4 and 5) or any 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
1 or Multiuse Structure and an Owner, by an acceptance of a deed to a Lot, shall be deemed to agree to
indemnify and hold Declarant free and harmless from and against any and all liability arising from,
related to, or in connection with the erosion of or drainage on, over and under the Lot described in
such deed. Declarant shall have no duties, obligations or liabilities hereunder except such as are
expressly assumed by Declarant, and no duty of, or warranty by, Declarant shall be implied by or
inferred from any term or provision of this Declaration. Any Owner or other person or entity
asserting a claim against Declarant with respect to any matter (i) as to which Declarant has herein
or in any Supplemental Declaration disclaimed liability or (ii) which by the terms of this Declaration
or any Supplemental Declaration Declarant has no liability shall be personally liable to Declarant
for all costs and expenses incurred by Declarant in defending against such claim, including
attorney's fees, paralegal fees and all court costs, including on appeal.
1 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 IAC 15,
Storm Water Run -Off Associated with Construction Activity. In connection with any
construction activity on a Lot by an Owner, its contractor or the subcontractors of
either, Owner shall take or cause to be taken all erosion control measures contained
in such plan as the plan applies to "land disturbing activity" undertaken on a Lot and
shall comply with the terms of Declarant's general permit under Rule 5 as well as all
other applicable state, county or local erosion control authorities. All erosion control
measures shall be performed by personnel trained in erosion control and shall meet
the design criteria, standards, and specifications for erosion control measures
established by the Indiana Department of Environmental Management in guidance
documents similar to, or as effective as, those outlined in the Indiana Handbook for
Erosion Control in Developing Areas from the Division of Soil Conservation, Indiana
Department of Natural Resources.
(b) Indemnity. The Owner of each Lot shall indemnify and hold
Declarant harmless from and against all liability, damage, loss, claims, demands and
actions of any nature whatsoever which may arise out of or are connected with, or are
claimed to arise out of or be connected with, any work done by such Owner, its
1 contractor and their respective employees, agents, or subcontractors which is not in
compliance with the erosion control plan implemented by the Declarant.
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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.
1 36. Exclusive Builders. Declarant reserves the absolute right prior to the Applicable Date
to restrict construction of Units in WestClay to builders who have been approved by Declarant, such
approval to be granted or withheld in the absolute discretion of Declarant. Notwithstanding the
purchase of a Lot by an Owner, such Owner may not cause or authorize any Person to construct a
Unit on the Lot other than a builder who has been approved in writing by Declarant.
IN TESTIMONY WHEREOF, Declarant has executed this Declaration as of the date set
forth above.
BRENWICK TND COMMUNITIES, LLC
By: /s/ Tom Charles Huston
Tom Charles Huston, Co- Manager
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STATE OF INDIANA
SS:
COUNTY OF HAMILTON
1 Before me, the undersigned, a Notary Public in and for said County and State, personally
appeared Tom Charles Huston, a Co- Manager of Brenwick TND Communities, LLC, an Indiana
limited liability company, who acknowledged the execution of the above and foregoing Declaration
of Covenants and Restrictions for and on behalf of said company.
1 WITNESS my hand and Notarial Seal this 9th day of August, 1999.
/s/ Marie M. Urick
Notary Public Residing in Hendricks County
Marie M. Urick
My Commission Expires:
1 May 24, 2007
This instrument prepared by Tom Charles Huston, Attorney at Law, 11 South Meridian Street, Suite
1313, Indianapolis, Indiana 46204.
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1 EXHIBIT A
DESCRIPTION OF DEVELOPMENT AREA
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EXHIBIT B
1 GENERAL PLAN OF DEVELOPMENT
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1 EXHIBIT C
DESCRIPTION OF THE TRACT
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