HomeMy WebLinkAboutCovenants & Restructions Draft 12/18/97
Revised 07/28/98
08/11/98
DECLARATION OF COVENANTS AND RESTRICTIONS
The Village of WestClay
Carmel, Indiana
l~ecorded ~ 1998
Instrument No.
Office of the Recorder of Hamilton County
DECLARATION OF COVENANTS AND RESTRICTIONS
THE VILLAGE OF WESTCLAY
2.
3.
4.
7.
8.
9.
10.
11.
12.
INDEX
Page
Definitions ............................................................. 2
Declaration ............................................................. 9
Additions to the Tract ................................................... 10
The Lake ............................................................. 10
(a) Development .................................................... 10
Co) Title and Maintenance ............................................. 10
(c) Use ............................................................ 10
(d) Lake Liner ...................................................... 11
The Ponds ............................................................. 11
(a) Development .................................................... 11
(b) Title and Maintenance ............................................. 11
(c) Use ............................................................ 11
The Commons ......................................................... 12
Parks ................................................................. 12
Village Community Buildings ............................................. 12
Drainage System ....................................................... 13
Common Lighting ...................................................... 13
Paths and Path Lights .................................................... 13
Private Drives and Private Gates ........................................... 13
(a) Maintenance of Private Drives ....................................... 13
(b) Maintenance of Private Gates ....................................... 14
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13.
14.
15.
16.
17.
18.
19.
Entry Ways, Landscape Easements and Planting Areas ......................... 14
(a) Entry Ways ...................................................... 14
(b) Landscape Easements ............................................. 14
(c) Planting Areas ................................................... 14
Site Furniture and Facilities ............................................... 14
Round-Abouts and Street Trees ............................................ 14
(a) Round-Abouts .................................................... 15
Co) Street Trees ...................................................... 15
(c) Maintenance of Street Trees ......................................... 15
Common Parking Lots ................................................... 15
Open Space ........................................................... 15
WestClay Owners Association, Inc ......................................... 16
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
Membership ..................................................... 16
Powers ......................................................... 16
Classes of Members ............................................... 16
Voting and Other Rights of Members ................................. 16
Reserve for Replacements .......................................... 16
Debt Service Account .............................................. 16
Maintenance Standards ............................................ 17
Limitations on Action by the Corporation .............................. 17
Mergers ........................................................ 17
Assessments ........................................................... 18
(a) Creation of the Lien and Personal Obligation of Assessments .............. 18
(b) General Assessment ............................................... 18
(i) Purpose of Assessment ...................................... 18
(ii) Basis for Assessment ........................................ 18
(1) Residential Lots Generally .............................. 18
(2) Lots Improved with Multifamily Structures ................. 19
(3) Commercial Lots ...................................... 19
(4) Lots Owned by Declarant or Permitted Title Holder .......... 20
(5) Change in Basis ...................................... 20
(iii) Method of Assessment ....................................... 20
(iv) Allocation of Assessment .................................... 20
(c) Community Area Initial Assessment .................................. 21
(d) Community Area Debt Service Assessment ............................. 22
(e) Parcel Assessments ............................................... 22
(i) Purpose of Assessments ...................................... 22
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20.
21.
22.
(ii) Method of Assessment ....................................... 22
(iii) Special Assessments ........................................ 22
(f) Architectural Control Assessment .................................... 23
(g) Special Assessment ............................................... 23
(h) Date of Commencement of Assessments ............................... 23
(i) Effect of Nonpayment of Assessments; Remedies of the Corporation ........ 24
(j) Subordination of the Lien to Mortgages ............................... 24
(k) Certificates ...................................................... 24
(1) Annual Budget ................................................... 24
Architectural Control .................................................... 24
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
0)
(k)
(1)
The Architectural Review Board ..................................... 25
Purpose ......................................................... 25
Conditions ...................................................... 25
Procedures ...................................................... 26
Guidelines and Standards ........................................... 26
Application of Guidelines and Standards .............................. 26
Design Consultants ............................................... 26
Existing Violations of Declaration .................................... 26
Exercise of Discretion ............................................. 27
Liability of Board ................................................. 27
Inspection ....................................................... 27
Variances ...................................................... 27
Community Area and Common Facilities .................................... 28
(a)
(b)
(c)
(d)
(e)
(0
(g)
(h)
Ownership ...................................................... 28
Density of Use ................................................... 29
Obligations of the Corporation ...................................... 29
Easements of Enjoyment ........................................... 29
(i) Owners ................................................... 29
(ii) Occupants ................................................. 29
Extent of Easements ............................................... 30
Additional Rights of Use ........................................... 31
Damage or Destruction by Owner .................................... 31
Conveyance of Title ............................................... 31
Use of Tract ........................................................... 32
(a) Protective Covenants .............................................. 32
(i) Land Use ................................................. 32
(ii) Nuisances ................................................. 32
(iii) Other Restrictions .......................................... 32
(iv) Exceptions ................................................ 32
(b) Maintenance of Tract .............................................. 32
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23.
24.
25.
26.
27.
28.
29.
30.
Easements ............................................................ 33
(a) Plat Easements ................................................... 33
(i) Drainage Easements ......................................... 33
(ii) Sewer Easements ........................................... 34
(iii) Utility Easements ........................................... 34
(iv) Entry Way Easements ....................................... 34
(v) Landscape Easements ....................................... 34
(vi) Water Access Easements ..................................... 34
(vii) Community Area Access Easements ............................ 34
(viii) Pathway Easements ......................................... 34
(ix) Non-Access Easements ...................................... 34
(b) General Easement ................................................ 35
(c) Public Health and Safety Easements .................................. 35
(d) Drainage Board Easement .......................................... 35
(e) Crossing Underground Easements .................................... 35
(f) Declarant's Easement to Correct Drainage ............................. 36
(g) Water Retention .................................................. 36
Use of Lots During Development .......................................... 36
(a) By Declarant .................................................... 36
(b) By Builders ..................................................... 36
Enforcement ........................................................... 37
Limitations on Rights of the Corporation .................................... 37
Approvals by Declarant .................................................. 37
Mortgages ............................................................ 37
(a) Notice to Corporation ............................................. 37
(b) Notices to Mortgagees ............................................. 38
(c) Notice of Unpaid Assessments ...................................... 38
(d) Financial Statements .............................................. 38
(e) Payments by Mortgagees ........................................... 39
Amendments .......................................................... 39
(a) Generally ....................................................... 39
(b) By Declarant .................................................... 39
(c) Approval by Zoning Authority ...................................... 39
(d) Effective Date ................................................... 39
Interpretation .......................................................... 39
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31.
32.
33.
34.
35.
Duration .............................................................. 40
Severability ........................................................... 40
Non-Liability of Declarant ................................................ 40
Compliance with the Soil Erosion Control Plan ............................... 40
(a) The Plan ........................................................ 40
(b) Indcnmity ....................................................... 40
Annexation ............................................................ 41
Exhibit A
Exhibit B
Exhibit C
Description of Development Area
General Plan of Development
Description of the Tract
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])ECLARATION OF COVENANTS AND RESTRICTIONS
THE VILLAGE OF WESTCLAY
This Declaration, made as of the
day of ,199_,
., an Indiana limited partnership ("Declarant"),
WITNESSETH:
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 ~ 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.
B. The Development Area has been designated as the Planned Unit Development District
and development thereof is subject to the development standards set forth in the Zoning Ordinance.
C. 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 bereatter be made thereto (as provided in Paragraph 3) to the covenants, restrictions, easements,
charges and liens bereinatier set forth, each of which is for the benefit of the Lots and lands in the
Tract and the future owners thereof.
E. Declarant deems it desirable, for the efficient preservation of the values and amenities
in WestClay, to create an agency 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 a nonprofit
corporation known as WestClay Owners Association, Inc. for the purpose of exercising such
functions.
NOW, THEREFORE, Declarant hereby declares that all of the Lots and lands in the Tract
and such additions thereto as may hereafter be made pursuant to Paragraph 3 hereof, as they are held
and shall be held, conveyed, hypothecated or encumbered, leased, rented, used, occupied and
improved, are subject to the following Restrictions, all of which are declared to be in furtherance of
a plan for the improvement and sale of Lots in the Tract, and are established and agreed upon for the
purpose of enhancing and protecting the value, desirability and a~activeness of the Tract as a whole
and of each of Units, Lots and lands situated therein. The Restrictions shall run with the land and
shall be binding upon Declarant, its successors and assigns, and upon the parties having or acquiring
any interest in the Tract or any part or parts thereof subject to such Restrictions, and shall inure to
the benefit of Declarant and its successors in title to the Tract or any part or parts thereof.
I. Definitions. Terms defined in the Zoning Ordinance used in this Declaration shall
have the meaning herein as therein unless otherwise defined herein or the context otherwise requires.
The following terms, as used in this Declaration, unless the context clearly requires otherwise, shall
mean the following:
"Applicable Date" means the earlier of (i) the date when all Lots in the
Development Area have been improved by the construction thereon of Units or (ii)
December 31, 2015.
"Architectural Conlrol Assessment" means the assessment levied by the
Corporation pursuant to Paragraph 19(f).
"Architectural Review Board" means that entity established pursuant to
Paragraph 20 of this Declaration for the purposes therein stated.
"Articles" means the Articles of Incorporation of the Corporation, as amended
from time to time.
"Assessments" means all sums lawfully assessed against the Members or as
declared by this Declaration, any Supplemental Declaration, the Articles or the By-
Laws.
"Board of Directors" means the governing body of the Corporation.
"~" means the Code of By-Laws of the Corporation, as amended from
time to time.
"Commercial Lot" means (a) each established building site or platted lot on
a Commercial Block except to the extent a Living Unit or Multifamily Structure has
been constructed thereon and (b) each Lot upon which a Commercial Unit has been
or is intended to be constructed.
"C~" 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.
"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
private ways in WestCiay exclusive of the Path Lights.
"Common Parkine Lot" means any parking lot owned, managed and/or
maintained by the Corporation and intended for use by the Occupants of or visitors
to a Village Community Building, an Education Facility, a Commercial Unit or a
Multi-family Structure.
"Commons" means such land, if any, as may be denoted on a Plat as
"Commons" or designated as "Commons" in any recorded instnmaent executed by
Declarant.
"Community Area" means (i) the Lake, (ii) the Ponds, (iii) the Private Drives,
(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) the Common Parking
Lots, (xiv) 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 (xv) any areas of land (1) shown on any Plat, (2)
described in any recorded instnmaent prepared by Declarant or its agents, or (3)
conveyed to or acquired by the Corporation, together with all improvements thereto,
that are intended to be devoted to the use or enjoyment of some, but not necessarily
all, of the Owners and Occupants of Lots and Units.
"Community Area Access Easement" means the area designated on a Plat as
a means of access to a Community Area.
"Community Area Debt Service Assessment" means the periodic Assessment
to meet the obligation of the Corporation for payments on account of Community
Area Secured Indebtedness.
"Community_ Area Initial Assessment" means the initial Assessment for the
Reserve for Replacements required by Paragraph 19(c).
"Communi _ty 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
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Facilities, or parts thereof, secured by a lien or liens on the Village Community
Buildings and the Common Facilities, or parts thereof.
"Condominium" means a Unit in a Horizontal Property Regime.
"Corn_oration" means WestClay Owners Association, Inc., an Indiana
nonprofit corporation, its successors and assigns.
"Declarant" means , its successors and
assigns to its interest in the Tract other than Owners purchasing Lots or Units by deed
from Declarant (unless the conveyance indicated an intent that the grantee assume the
rights and obligations of Declarant).
"Designated Builder" means during such period as such designation by
Declarant may continue, any Person engaged in the construction of more than one ( 1 )
Unit on the Tract who is designated by Declarant as a "Designated Builder".
Declarant may make and revoke any such designation at any time and from time to
time.
"~" means an area depicted on a Plat which has been engineered
to accommodate from time to time surface water dra'mage.
"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.
"Development Plan" means the plan for the Development Area approved by the
Carmel-Clay Pan Commission, as the same may be modified from time to time pursuant to
Section 4 of the Zoning Ordinance.
"Drainage Board" means the Hamilton County Drainage Board, its successors
or assigns, or, in the event of armexation of the Tract to the City of Carmel, the Board
of Public Works of the City of Carmel.
"Drain~" means the open drainage ditches and swales, the
subsurface drainage tiles, pipes and structures, the dry and wet retention and/or
detention ponds (including all Detention Areas), and the other structures, fixtures,
properties, equipment and facilities (excluding the Lake and the Ponds) located in the
Tract and designed for the purpose of controlling, retaining or expediting the
drainage of surface and subsurface waters from, over and across the Tract, including
but not limited to those shown or referred to on a Plat, all or part of which may be
established as legal drains subject to the jurisdiction of the Drainage Board.
"Education Facility_" means the Education Center depicted on the
Development Plan and any other facility on the Tract owned or leased by a public or
private educational institution or its successor in title, which does not constitute
Community Ama and is used principally for educational purposes.
"En~" means the structures constructed as an entrance to WestClay
or a part thereof (exclusive of the street pavement, curbs and drainage structures and
tiles), the traffic islands depicted as designated blocks on a Plat and any other traffic
islands dividing a roadway providing access to WestClay or a part thereof, and the
grassy area surrounding such structures.
"General Assessment" means an Assessment made pursuant to Paragraph
19(b).
"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 Ama, as such may be
modified from tune to time.
"Horizontal Property_ Regime" means a horizontal property regime established
in the Tract pursuant to I.C. 32-I-6 or any successor provision authorizing the
creation of a Condominium.
"Lake" means the lake identified on the Development Plan as Hourglass Lake.
"Lake Liner" means the geosynthetic containment system, if any, installed by
Declarant to control the water level of the Lake.
"Landscape Easement" means a portion ora Lot denoted on a Plat as an area
to be landscaped.
"Living Unit" means any structure or portion thereof situated upon the Tract
that is designed and intended for use and occupancy as a residence by a single family.
"Lot" means (1) any plot of land intended as a building site shown upon any
recorded Plat, with the exception of Community Area, (2) any Condominium, (3) any
part of the Tract designated in a recorded instrument as a "Lot", and (4) any other part
of the Tract acquired by an Owner or used by Declarant for the construction or
operation of, or occupancy as, a Unit or a Multifamily Structure.
"Lot Development Plan" means (i) a site plan prepared by a licensed engineer
or architect, (ii) foundation plan and proposed finished floor elevations, (iii) building
plans, including elevation and floor plans, (iv) material plans and specifications, (v)
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landscaping plan, (vi) exterior lighting plan, (vii) tree preservation plan and (viii) ail
other data or information that the Arehitecturai Review Board may request with
respect to the improvement or alteration of a Lot (including but not limited to the
landscaping thereof) or the construction or alteration of a Unit, Multifamily Structure
or other structure or improvement thereon.
"Maintain" means maintain, repair and replace as necessary or appropriate.
"Maintenance Costs" means ail of the costs necessary to keep the facilities to
which the term applies operationai and in good condition, including but not limited
to the cost of ail upkeep, maintenance, repair, replacement of ail or any part of any
such facility, payment of all insurance with respect thereto, ail 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 or a Multifamily
Structure.
"Multifamilv Structure" means a structure with two or more Living Units
under one roof, except when such Living Unit is situated upon its own individual Lot
or is a Condominium.
"Occu_~ant" means any Person who is in possession of a Unit as a lessee
pursuant to a written lease having an initiai term of at least twelve (12) months.
"Owner" means a Person, including Declarant, who at the time has or is
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, 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".
"Parcel Assessment" means an Assessment made pursuant to Paragraph 19(e).
"Park" means such land as may be denoted on a Plat as "Park" or designated
as "Park" in any recorded instrument executed by Declarant.
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"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 the Corporation for the purpose of being used for walkways and/or bikeways.
"Path Lights" means the light standards, conduits, wiring, bulbs and other
appurtenances, if any, installed to illuminate the Paths.
"Permitted Tit e 1 e "means (a) the Corporation, (b) a public or private
educational institution, (c) the City of Carmel, Indiana, or (d) a nonprofit corporation
having perpetual existence or a governmental entity designated, in either case, by
Declarant.
"Person" means an individual, firm, corporation, partnership, association,
trust or other legal entity, or any combination thereof.
"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 on a Commons, in a Park or in or
on other Community Area.
"principal Streets" means 131st Street and, to the extent constructed by
Declarant, Towne Road, Broad Street, Meeting House Road, Horseferry Road and
Grafion Street.
"Private Drive" means a street, lane, road, driveway or other right-of-way
designed to provide access to one or more Lots or to the Community Area that has
not been accepted for maintenance by a public authority. Private Drive does not
include a driveway located entirely on a single Lot, but does include alleys.
"Private Gate" means a security gate controlling access to and from a Private
Drive.
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"Reserve for Replacements" means a fund established and maintained by the
Corporation to meet the cost of periodic maintenance, repairs, renewal and
replacement of the Community Area and the Common Facilities.
"Residential Lot" means a Lot used or intended to be used primarily for
residential purposes.
"Restrictions" means the covenants, conditions, easements, charges, liens,
restrictions, rules and regulations and all other provisions set forth in this
Declaration, ail applicable Supplemental Declarations and the Register of
Regulations, as the same may from time to time be amended.
"Register of Regulations" means the document containing rules, regulations,
policies, and procedures adopted by the Board of Directors or the Architectural
Review Board, as the same may from time to time be amended.
"Round-About" means a square, green or traffic circle in WestClay.
"Sectiorl" means that portion of the Development Area that is depicted on a
Plat.
"~" 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 or the Corporation and intended for the common
use or benefit of some, if not ail, of the Owners and Occupants.
"Special Assessment" means an Assessment made pursuant to Paragraph
19(g) or any other provision of this Declaration or any Supplemental Declaration
authorizing the levying of a Special Assessment.
"Street Trees" means the trees, shrubs and other plantings planted by
Declarant or an Owner within a Planting Area, as the same may be replaced from
time to time.
"Supplemental Declaration" means any supplemental declaration of
covenants, conditions 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
such complementary or supplementary provisions for such Section or Parcel as are
required or permitted by this Declaration.
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"Tract" means the land described in ~ and such other real estate as
may from time to time be annexed thereto under the provisions of Paragraph 3
hereof.
"Unit" means any Living Unit or Commercial Unit, and "Units" means all
Living Units and Commercial Units.
"Village Community Buildings" means the Meeting House, the Trustees Hall,
the Chapel and the Recreation Centers depicted on the Development Plan and such
other civic or recreational buildings as may be constructed in WestClay by 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.
"Warran _ty 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.
"WestClav" means the name by which the Tract shall be commonly known.
"Zoning Authbrity" with respect to any action means the Director of the
Department of Community Services of the City of Carmel or, where he lacks the
capacity to take action, or fails to take such action, the governmental body or bodies,
administrative or judicial, in which authority is vested under applicable law to hear
appeals from, or review the action, or the failure to act, of the Director.
"Zoning Ordinance" means the ordinance adopted by the Common Council
of the City of Carmel, Indiana, establishing the WestClay Village Planned Unit
Development District.
2. Declaration. Declarant hereby expressly declares that the Tract and any additions
thereto pursuant to Paragraph 3 hereof shall be held, transferred, and occupied subject to the
Restrictions. The Owner of any Lot or Parcel subject to these Restrictions, by (i) acceptance of a
deed conveying title thereto, or the execution of a contract for the purchase thereof, whether from
Declarant or a subsequent Owner of such Lot or Parcel, or (ii) by the act of occupancy of any Lot or
Parcel, shall accept such deed and execute such contract subject to each Restriction and agreement
herein contained. By acceptance of such deed or execution of such contract, each Owner
acknowledges the rights and powers of Declarant and of the Corporation with respect to these
Restrictions, and also for itself, its heirs, personal representatives, successors and assigns, covenants,
agrees and consents to and with Declarant, the Corporation, and the Owners and subsequent Owners
of each of the Lots and Parcels affected by these Restrictions to keep, observe, comply with and
perform such Restrictions and agreement.
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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
contiguous to the Development Area. In determining contiguity, public rights of way shall not be
considered.
The additions authorized under this Paragraph 3 shall be made by the filing of record of one
or more Supplemental Declarations with respect to the additional real estate and by filing with the
Corporation any revisions to the General Plan of Development necessary to reflect the scheme of
development of the additional real estate. Unless otherwise stated therein, such revisions to the
General Plan of Development shall not bind Declarant to make the proposed additions. For purposes
of this Paragraph 3, a Plat depicting a portion of the Development Area shall be deemed a
Supplemental Declaration.
4. TheLake.
(a) Development. Declarant intends, but is not obligated, to acquire title
to the Lake. Declarant reserves the right, subsequent to acquisition of the Lake, to
alter the size and configuration thereof (as a result of which, the Lake may vary from
that depicted on the General Plan of Development attached as Exhibit B hereto).
(b) Title and Maintenance. If Declarant acquires title to the Lake, it shall
subsequently convey such title to a Permitted Title Holder. Unless otherwise
specified in the 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
oftbe Lake Liner and any Path) and shall keep that portion of the Lake abutting his
Lot free of debris and otherwise in reasonably clean condition.
(c) 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
Architectural Review Board and such governmental authority as may have
jurisdiction thereover. No swimming will be permitted in the Lake except if and to
the extent authorized by the Board of Directors. Each Owner of a Lot abutting the
Lake shall 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, the Lake by any Person who gains access thereto from,
over or across such Owner's Lot. Declarant shall have no liability to any Person with
respect to the Lake, the use thereof or access thereto, or with respect to any damage
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to any Lot resulting from the Lake or the proximity of a Lot thereto, including loss
or damage from erosion.
(d) Lake Liner. Ifa Lake Liner is installed, the stability of the water level
in the Lake will be dependent upon maintenance of the integrity of the Lake Liner.
Ifa Lake Liner is installed, the Corporation shall be responsible for maintenance of
the Lake Liner and the Maintenance Costs thereof shall be assessed as a General
Assessment against all Lots subject to assessment except that an Owner who causes
or permits any damage to the Lake Liner shall be solely responsible for the cost of
repairing such damage and 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 damage to the Lake Liner mused by such Owner or
any Person having or gaining access to such Owner's Lot with the knowledge or
consent of such Owner.
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 except if
and to the extent authorized by the Board of Directors. Each Owner of a Lot abutting
a Pond shall indemnify and hold harmless Declarant, the Corporation and each other
Owner against all loss or damage incurred as a result of injury to any Person or
damage to any property, or as a result of any other cause or thing, arising from or
related to use of, or access to, a Pond by any Person who gains access thereto from,
over or across such Owner's Lot. Declarant shall have no liability to any Person with
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respect to a Pond, the use thereof or access thereto, or with respect to any damage to
any Lot resulting from a Pond or the proximity of a Lot thereto, including loss or
damage from erosion.
6. The Commons. Declarant shall convey title to the Commons to a Permitted Title
Holder. Unless otherwise specified in the instrument of conveyance, the Corporation shall be
responsible for maintaining the Commons and the Maintenance Costs thereof shall be assessed as
a General Assessment against all Lots subject to assessment. Unless approved by the Architectural
Review Board and the Zoning Authority, no permanent improvements shall be made to or installed
on the Commons other than Village Community Buildings, Education Facilities, underground utility
facilities, Site Furniture and Facilities, walkways, planting slxuctures, and fountains or other
nonrecreational water features. The use of the Commons shall be subject to rules and regulations
adopted by the Board of Directors which are not inconsistent with the provisions of this Declaration
or any Supplemental Declaration.
7. Parks. Declarant shall convey title to the Parks to a Permitted Title Holder. Unless
the instrument of conveyance provides otherwise, the Corporation shall be responsible for
maintaining the Parks and the Maintenance Costs thereof, together with any costs incurred by the
Corporation in connection with the improvement thereof, shall be assessed as a General 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.
8. Village Community Buildings. Declarant intends, but is not obligated, to construct
in the area designated on the General Plan of Development as the contemplated location thereof the
Meeting House, the Trustees Hall, the Chapel and one or more Recreation Center (which may
include a bath house, swimming pool, tennis courts and other recreational facilities) and such other
recreational and community facilities as Declarant in its sole discretion believes are justified by the
progress of development of the Development Area. If Declarant undertakes the development of one
or more Village Community Buildings, Declarant intends upon completion of construction to convey
the same to a Permitted Title Holder prior to the Applicable Date free and clear of all financial
encumbrances and other liens securing indebtedness of Declarant except Community Area Secured
Indebtedness, but subject to the right of Declarant to use the Village Community Buildings as
provided in Paragraph 24(a). Unless the instrument of conveyance provides otherwise, the
Corporation shall be responsible for maintenance of the Village Community Buildings and the
Maintenance Costs thereof shall be assessed as a General Assessment against all Lots subject to
assessment. The Board of Directors may adopt such rules and regulations with respect to the use of
the Village Community Buildings as it deems appropriate and may charge reasonable fees for the
use thereof, but no rule, regulation or charge shall be inconsistent with the provisions of this
Declaration or any Supplemental Declaration.
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Any Education Facility, including the Education Center, shall be constructed by and be the
sole property of the public or private educational institution which operates the Education Facility
and neither the Corporation nor any Owner shall have any interest therein except as otherwise
specifically provided herein, in a Supplemental Declaration or in an instrument of conveyance from
Declarant to such educational institution.
Declarant may secure indebtedness incurred to finance construction of the Village
Community Buildings and the Common Facilities, or parts thereof, with a mortgage 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 controlling drainage within and adjacent to the Development Area and maintaining the water level
in the Lake and the Ponds. The Corporation shall maintain the Drainage System to the extent not
maintained by the Drainage Board and the Maintenance Costs thereof shall be assessed against all
Lots subject to assessment serviced by that part of the Drainage System with respect to which
Maintenance Costs are incurred. Each Owner shall be individually liable for the cost of maintenance
of any drainage system located entirely upon his Lot which is devoted exclusively to drainage of his
Lot and is not maintained by the Drainage Board.
10. Common Lighting,. Declarant may, but is not obligated to, install Common Lighting
in WestClay and may reserve easements for such purpose over and across Lots. If installed, the
Corporation shall operate and maintain the Common Lighting 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.
1 I. Paths and Path Lights. Declarant may, but is not obligated to, install the Paths and
Path Lights at the approximate locations depicted on the General Plan of Development and may
reserve easements for such purpose over and across Lots. If installed, the Corporation shall operate
and maintain the Paths and Path Lights and the Maintenance Costs thereof shall be assessed as a
General Assessment against all Lots subject to assessment. The Board of Directors may adopt such
rules and regulations with respect to the use of the Paths as it may deem appropriate 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.
(a) Maintenance of Private Drives. Unless otherwise provided in a
Supplemental Declaration, Declarant shall maintain each Private Drive in good
condition satisfactory for the purpose for which it was constructed until the earlier
of (i) three (3) years following the date construction of the Private Drive was
completed or (ii) the date on which Units, Multifamily Structures, or Village
Community Buildings have been constructed on seventy-five percent (75%) of the
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Lots fronting such Private Drive, at which time responsibility for the maintenance
thereof shall be assumed by the Corporation. The Maintenance Costs incurred by the
Corporation in maintaining a Private Drive shall be assessed against all Lots whose
principal means of vehicular access to a public right-of-way or to the Village Center
is over and across such Private Drive.
(b) Maintenance of Private Gates. Private Gates shall be maintained by
the Corporation. The Maintenance Costs incurred by the Corporation in maintaining
Private Gates shall be assessed against all Lots whose principal access to a public
right-of-way is through a Private Gate.
13. g, ntry Ways. Landscape Easements and Planting Areas.
(a) F.,tt!xy.__W_a~. The Corporation shall maintain the Entry Ways
and all improvements and plantings thereon, and the Maintenance Costs
thereof shall be assessed as a General Assessment against all Lots subject to
assessment. Grass, trees, shrubs and other plantings located on an Entry Way
shall be kept neatly cut, cultivated or trimmed as reasonably required to
maintain an attractive entrance to WestClay or a part thereof. All entrance
signs located on an Entry Way shall be maintained at all times in good and
sightly condition appropriate to a first-class residential community.
(b) Landscape Easements. Unless the Board of Directors
determines that all or some of the Landscape Easements shall be maintained
by the Corporation 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 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 may undertake such
maintenance and assess the Maintenance Costs thereof as a Special
Assessment against such Lot.
(c) Planting Areas. Following the expiration of the Warranty
Period, the Corporation shall maintain the Planting Areas and the
Maintenance Costs thereof shall be assessed as a General or Parcel
Assessment.
14. Site Fumitare 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
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in the instrument of conveyance, the Corporation 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 files unless they
constitute a part of a Private Drive), and the Maintenance Costs thereof shall be
assessed as a General or Parcel Assessment.
(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 Register of Regulafions, plant within a Planting
Area adjacent to or located on the Owner's Lot a maximum of four (4) Street Trees
of a size and species designated by the Architectural Review Board, such Street Trees
to be planted at locations specified on the landscaping plan submitted by the Owner
to and approved by the Architectural Review Board.
(c) Maintenance of Street Trees. During the Warranty Period, all dead
or dying Street Trees, installed new, transplanted, or designated on the Lot
Development Plan as existing trees to be retained, shall be replaced by the person
responsible for causing such Street Trees to be planted. Following the expiration of
the Warranty Period for a Street Tree, the Corporation shall maintain and, if
necessary, replace the Street Tree, and the Maintenance Cost thereof shall be
assessed as a General or Parcel Assessment.
16. Common Parking Lots. The Corporation shall maintain the Common Parking Lots,
including the exterior and interior landscaping required by the Zoning Ordinance, and the
Maintenance Costs thereof shall be assessed as a General or Parcel Assessment against all Lots
which derive a substantial benefit from the availability of parking in the Common Parking Lot. In
determining substantial benefit, it shall be presumed that all Owners of abutting Lots derive
substantial benefit from the Common Parking Lot unless parking areas located exclusively on an
Owner's Lot meet the minimum on-site parking requirement specified in the Zoning Ordinance for
the use then being made of such Lot. Where a Common Parking Lot serves a Village Community
Building, a proportionate share of the Maintenance Costs of the Common Parking Lot shall be
allocated to the Corporation and included in the General Assessment against all Lots subject to
Assessment. The Corporation may fix the allocated share of an abutting Lot Owner for Maintenance
Costs for a Common Parking Lot with such abutting Lot Owner by contract provided such negotiated
allocated share is subject to adjustment during the term of the contract if there is a change in the use
of the Lot which affects materially the use of the Common Parking Lot by the Owner or Occupants
of the Lot or their customers or invitees.
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17. Open Space. A Permitted Title Holder shall not change the use of any Park, Common
or other area designated as open space conveyed to the Permitted Title Holder by Declarant from the
use being made thereof at the time of conveyance without the prior consent or approval of the Zoning
Authority.
18. WestClay Owners Association. Inc.
(a) Membership. Each Owner shall automatically be a Member and shall
enjoy the privileges and be bound by the obligations contained in the Articles and
By-Laws. If a Person would realize upon his secuiity 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.
(c)
Members.
Classes of Members. The Corporation shall have a single class of
(d) Voting and Other Rights of Members. The voting and other rights of
Members shall be as specified in the Articles and By-Laws.
(e) Reserve for Replacements. The Board of Directors shall establish and
maintain the Reserve for Replacements by the allocation and payment to such reserve
fund of an mount 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
by such fund and the advice of Declarant or such consultants as the Board may
employ. The Reserve for Replacements shhll 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 ~. The Board of Directors shall establish mad
maintain a separate account for the payment of principal, interest and other charges
on account of Community Area Secured Indebtedness. Community Area Debt
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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
condition when originally constructed, installed or planted and compatible in
appearance and utility with a first-class residential community. Grass, Ixees, shrubs
and other plantings located on the Community Area for which the Corporation has
maintenance responsibility shall be kept neatly cut, cultivated or trimmed as
reasonably required and otherwise maintained at ail times in good and sightly
condition appropriate to a first-class residential community.
(h) Limitations on Action by the Comoration. 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 on a current replacement cost basis in the amount of one
hundred percent (100%) of the insurable value (based on current replacement cost);
(iii) use hazard insurance proceeds for losses to any Community Area for other than
the repair, replacement or reconstruction of the Community Area; (iv) change the
method of 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
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; or (vi) fail to maintain the Reserve for Replacements
in the amount required by this Declaration or any Supplemental Declaration.
(i) Merg_eI~. 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
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consolidated corporation or, alternatively, the properties, rights and obligations of
another corporation may by operation of law be added to the properties, rights and
obligations of the Corporation as a surviving corporation pursuant to a merger. The
surviving or consolidated corporation may administer the covenants and restrictions
established by this Declaration within the Tract together with the covenants and
restrictions established upon any other properties as one scheme. No merger or
consolidation, however, shall effect any revocation, change or addition to the
covenants established by this Declaration within the Tract except as hereinafter
provided.
19. Assessments.
(a) Creation of the Lien and Personal Obligation of Assessments.
Declarant hereby covenants, and each Owner of any Lot by acceptance of a deed
thereto, whether or not it shall be so expressed in such deed, is deemed to covenant
and agree to pay to the Corporation the following: (1) General Assessments, (2) the
Community Area Initial Assessment, (3) Community Area Debt Service
Assessments, (4) annual and special Parcel Assessments, (5) Architectural Control
Assessments (to the extent levied) and (6) Special Assessments, such Assessments
to be established and collected as hereinafter provided.
If two (2) or more Lots originally shown on a Plat are consolidated as a single
Lot by virtue of partial vacation of a Plat, or if a Lot is divided by conveyance of
portions thereof to owners of adjacent Lots, then, in either such event, the vacated or
divided Lot(s) shall cease to be Lot(s) for purposes of Assessments under this
Paragraph 19.
All Assessments, together with interest thereon and costs of collection
thereof, shall be a charge on the land and shall be a continuing lien upon the Lot
against which each Assessment is made until paid in full. Each Assessment, together
with interest thereon and costs of collection thereof, shall also be the personal
obligation of the Person who was the Owner of the Lot at the time when the
Assessment became due.
(b) O~neral Assessment.
(i) Pu~ose 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.
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(1) Residential Lots Generally. Except for
Residential Lots improved by the constmction thereon
of a Multifamily Structure, 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
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) Lqts Improved with Multifamily
Structures. Each 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) the
amount of the General Assessment established on the
basis set forth in Clause (1) above.
(3) Commercial Lots. Each unimproved
Commercial Lot shall be assessed at a uniform rate,
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.
Each Commercial Lot improved with a Commercial
Unit shall be assessed at a rate that bears the same
proportion to all other improved Commercial Lots as
the gross square footage of the Commercial Unit
located on such Lot bears to the gross square footage
of each other Commercial Lot upon which a
Commercial Unit has been constructed. The General
Assessment for any unimproved Commercial Lot shall
not exceed one hundred fifty percent (150%) of the
amount of the General Assessment for unimproved
Residential Lots in the Primary Area, and the General
Assessment for any Commercial Lot upon which a
Commercial Structure has been constructed shall not
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exceed the product of (i) the result obtained by
dividing the gross square footage of the Commercial
Unit bytwo thousand five hundred (2,500) and (ii) the
amount of the General Assessment established on the
basis set forth in Clause (1) above.
(4) Lots Owned by Declarant or Permitted
Title Holder. Notwithstanding the foregoing
provisions of this subparagraph (ii), no Lot owned by
Declarant or a Permitted Title Holder shall be
assessed by the Corporation except such Lots as have
been improved by the construction thereon of Units,
Multifamily Structures, or other structures, which
improved Lots shall be subject to assessment as
provided in Clauses (1), (2) or (3) 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.
(5) 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.
(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. 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
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 or Multifamily
Structures be equal, but only that each Lot be assessed uniformly with
respect to comparable Lots subject to assessment for similar costs and
expenses.
(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 or
Multifamily Structure constructed on the Lot has been certified for occupancy by the
Zoning Authority or (iii) the date a Unit or Multifamily Structure 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-
family residence with an attached or
detached home-based office is to be
constructed, the sum of Five Hundred
Dollars ($500.00);
(iv)
a Lot on which a Multifamily
Structure 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 or Horizontal
Property Regime and (z) One Hundred
Dollars ($100.00); and
(v)
a Lot on which a Commercial Unit is
to be constructed, the sum of One
Hundred Dollars ($100.00) for each
one thousand square feet of gross floor
area for the building or buildings
constructed or authorized to be
constructed thereon.
(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)(4) above) in an amount established by
the Board of Directors which is sufficient to meet all debt service requirements on
such indebtedness but does not exceed, in any fiscal year of the Corporation, an
amount equal to one quarter of one percent (0.0025%) 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 Section 18(f).
(e) Parcel Assessments.
(i) Pure_ ose 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 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
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 assent of a majority
of the Owners of Lots in the Parcel who are voting in person or by
proxy at a meeting of such Owners duly called for this purpose or (B)
defraying any Maintenance Costs incurred in satisfying any
requirements imposed on the Corporation by a Supplemental
Declaration relating to a Parcel.
(f) Architectural Control Assessment. If any Owner fails to comply with
the requirements for construction of improvements, landscaping and other
construction or maintenance activities (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 and/or the provisions of Paragraph 20 of this
Declaration, then the Corporation may levy against the Lot owned by such Owner an
Assessment in an amount determined by the Board of Directors which does not
exceed the greater of (i) Five Hundred Dollars ($500.00) for each day that such
failure continues after written notice thereof is given by Declarant or the Corporation
to such Owner or (ii) One Hundred Thousand Dollars ($100,000.00). Such
Assessment shall constitute a lien upon the Lot of such Owner and may be enforced
in the manner provided in subparagraph (i) below. The levy of an Architectural
Control Assessment shall be in addition to, and not in lieu of, any other remedies
available to Declarant and/or the Corporation provided in this Declaration, at law or
in equity in the case of the failure of an Owner to comply with the provisions of this
Declaration and all applicable Supplemental Declarations.
(g) Special Assessment. In addition to such other Special Assessments
as may be authorized herein, the Corporation may levy in any fiscal year a Special
Assessment applicable to that year and not more than the next four (4) succeeding
fiscal years for the purpose of defraying, in whole or in part, the cost of any
construction, repair, or replacement of a capital improvement upon the Community
Area, including fixtures and personal property relating thereto or any Common
Facilities, provided that any such Assessment shall have the assent ora 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.
(h) Date of Commencement of Assessments. The General Assessment
and Parcel Assessments 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, if an Owner owns
more than two (2) unimproved Lots or a Lot intended for development thereon ora
Commercial Unit or Multifamily Structure, the General Assessment shall not
commence with respect to such unimproved Lot(s) until the earlier of(i) the date the
Owner commences construction of a detached Living Unit thereon or (ii) the first day
of the sixth month following the date the Owner acquired title to the Lot(s).
(i) Effect of NonCayment of Assessments: Remedies of the Corn_ oration.
Any Assessment not paid within thirty (30) days after the due date may upon
resolution of the Board of Directors bear interest from the due date at a percentage
rate no greater than the current statutory maximum annual interest rate, to be set by
the Board of Directors for each assessment year. The Corporation shall be entitled
to institute in any court of competent jurisdiction any lawful action to collect a
delinquent Assessment plus any expenses or costs, including attomeys' fees, incurred
by the Corporation in collecting such Assessment. If the Corporation has provided
for collection of any Assessment in installments, upon default in the payment of 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
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) Annual 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 by
the Declaration and all Supplemental Declarations will be met.
20. Architectural Control.
(a) The Architectural Review Board. An Architectural Review Board
consisting of three (3) or more Persons as provided in the By-Laws shall be appointed
by the Board of Directors.
(b) Purpose. The Architectural Review Board shall regulate the external
design, appearance, use, location and maintenance of the Tract 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 design vocabulary
established by Declarant for WestClay.
(c) Conditions. Except as otherwise expressly provided in this
Declaration, 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 improved state existing on the date such Lot was first conveyed in fee
by Declarant to another Owner (including the removal of any Significant Tree) shall
be made or done without the prior approval by the Amhitecturai Review Board ora
Lot Development Plan therefor. Prior to the commencement by any Owner other
than Declarant or a Designated Builder of (i) construction, erection or alteration of
any Unit or Multifamily Structure, other building, fixture, equipment, fence, wail,
swimming pool, ball court, patio, parking area, or other structure on a Lot, or (ii) any
plantings or exterior lighting on a Lot, (iii) the installation or alteration of any
signage on any Lot, Unit or Multifamily Structure, or (iv) the removal of any
Significant Tree from a Lot, a Lot Development Plan with respect thereto shall be
submitted to the Architectural Review Board, and no Unit, Multifamily Structure,
other building, fixture, equipment, fence, wall, swimming pool, ball court, patio,
parking area or other structure shall be commenced, erected, maintained, improved,
altered, made or done, or any plantings made or exterior lighting installed, any
signage installed or altered, or any Significant Tree removed by any Person other than
Declarant or a Designated Builder without the prior written approval of the
Architectural Review Board of a Lot Development Plan relating to such construction,
erection, alteration, plantings, lighting, installation or alteration of signage or tree
removal. 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, and no Owner shall undertake any construction
-25-
activity within WestClay unless all legal requirements have been satisfied. 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 falls to
approve, modify or disapprove in writing a Lot Development Plan within sixty (60)
days after notice of such plan has been duly filed with the Architectural Review
Board in accordance with procedures established by Declarant or, subsequent to the
Applicable Date, the Board of Directors, approval will be deemed denied. A decision
of the Architectural Review Board (including a denial resulting from the failure of
such Board to act on the plan within the specified period) may be appealed to the
Board of Directors which may reverse or modify such decision (including approve
a Lot Development Plan deemed denied by the failure of the Architectural Review
Board to act on such plan within the specified period) by a two-thirds (2/3) vote of
the Directors then serving.
(e) Guidelines and Standards. The Architectural Review Board shall have
the power to establish and modify from time to time such written architectural,
landscaping, 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 design vocabulary. Any such guideline or standard may be
appealed to the Board of Directors which may terminate or modify such guideline or
standard by a two-thirds (2/3) vote of the Directors then serving.
(f) Application of Guidelines and Standards. The Architectural Review
Board shall apply the guidelines and standards established pursuant to subparagraph
(e) in a fair, uniform and reasonable manner consistent with the discretion inherent
in the design review process. In disapproving any Lot Development Plan, the
Architectural Review Board shall furnish the applicant with specific masons 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.
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(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 falls to comply with the requirements of a 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.
(i) ~iscretion. 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 exemise 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, nor any
member thereof, nor any agent thereof, nor the Declarant shall be responsible in any
way for any defects in any plans, specifications or other materials submitted to it, nor
for any defects in any work done according thereto. Further, the Board does not
make, and shall not be deemed by virtue of any action of approval or disapproval
taken by it to have made, any representation or warranty as to the suitability or
advisability of the design, the engineering, the method of construction involved, or
the materials to be used.
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(k) Inspection. Members of the Architectural Review Board may inspect
work being performed to assure compliance with these Restrictions and applicable
regulations.
(1) Variances. Without the prior approval of the Architectural Review Board,
prior to the Applicable Date, no Owner, other than Declarant, may seek any modification
of the Development Requirements pursuant to Section 4 of the Zoning Ordinance or variance
from the Development Standards pursuant to Division IX of the Carmel/Clay Zoning
Ordinance Z-289, as amended.
21. Community Area and Common Facilities.
(a) Ownership. The Community Area and the Common Facilities shall
remain private, and neither Declarant's execution or recording of an instrument
portraying the Community Area, nor the doing of any other act by Declarant is, or is
intended to be, or shall be construed as, a dedication to the public of the Community
Area or the Common Facilities. Declarant or the Corporation may, however, dedicate
or transfer all or any part of the Community Area or the Common Facilities to any
Permitted Title Holder or public utility for use as roads, utilities, parks or other public
purposes and Declarant may transfer all or any part of the Community Area to a
Permitted Title Holder as contemplated by this Declaration. Notwithstanding the
foregoing, (i) the trail system (including trails in any common area whose use is
limited to residents of the Development Area), MacArthur Field, Glebe Street Green,
Settler's Legacy Nature Preserve, the University Green (including Founders Comer)
and the open space surrounding Hourglass Lake, all as depicted on the Development
Plan, shall be open to the general public and (ii) at the time of secondary platting
thereof, MacArthur Field and Settler's Legacy Nature Preserve (and such additional
open space as the Developer may, in its discretion, designate) shall be offered for
dedication to the Carmel-Clay Parks and Recreation Board (the "Park Board"), at no
cost of acquisition to the Park Board. The dedication may be made subject to the
conditions that such dedicated open space shall be used in perpetuity solely for
purposes of a public park; no improvements shall be constructed on such dedicated
open space except as shown on the Development Plan or otherwise approved by
Developer; the Park Board shall maintain such dedicated open space and any
improvements or fixtures thereon constructed or installed by the Developer in a
clean, good and orderly condition and repair; the Park Board shall not permit trash
or other refuse to accumulate on such dedicated open space; grass shall be mowed
and plantings trimmed regularly, leaves removed promptly and weeds eliminated
routinely on such dedicated open space; no motorized vehicles shall be permitted on
such dedicated open space other than in the course of the development or
maintenance thereof or any utility lines or facilities located thereon, motorized
wheelchairs or other small vehicles allowing access by disabled individuals, and
emergency vehicles; the Park Board shall not encourage parking on streets adjoining
such dedicated open space by persons using such open space; the Park Board shall
-28-
provide security necessary for insuring the safety of such dedicated open space and
users thereof; the Park Board shall take reasonable measures to minimize the risk of
unlawful activity occurring on such dedicated open space; and such other conditions
as may be agreed to by Developer and the Park Board. The Park Board shall not be
obligated to accept the dedication of such open space.
(b) D_.e._!!~il,Y_.qf_U~. 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 Corn_ oration. The Corporation, subject to the rights
of Declarant 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 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.
(d) Easements of Enjoyment.
(i) Owners. No Person shall have any right or easement
of enjoyment in or to the Community Area except to the extent
granted by, and subject to the terms and provisions of, this
Declaration or a Supplemental Declaration. Such rights and
easements as are thus granted shall be appurtenant to and shall pass
with the title to every Lot for whose benefit they are granted. Unless
otherwise provided in a Supplemental Declaration or a Plat, all
Owners may use the Paths, the Village Community Buildings, the
Parks and the Commons subject to the reserved rights of Declarant
and the Corporation. The Owners of Lots abutting the Lake or a Pond
may use the Lake or a Pond, but such use shall be limited to fishing
and such other uses as may be authorized by resolution adopted by the
Board of Directors. Subject to restrictions on points of access, the
Lake and the Ponds may be used by all Owners, but only for fishing
and such other purposes as may be authorized by the Board of
Directors. No Owner whose Lot does not abut the Lake or a Pond
shall have any right of access to the Lake or a Pond over any Lot, but
only such right of access over the Community Area as may be
designated on a Plat or by the Board of Directors for such purpose.
(ii) Occupants. Occupants may use and enjoy the
Community Area only to the extent specified in this subparagraph (d),
-29-
subparagraph (f) or as explicitly authorized herein, in a Supplemental
Declaration or by the Board of Directors. Occupants shall have the
same rights as Owners to the use of the Paths, the Village Community
Buildings, the Parks and the Commons except that the Board of
Directors may restrict the use of the Recreational Centers by
Occupants of Commercial Units. 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 roles and regulations relating to
the use of Community Area and Common Facilities, the Board of
Directors shall not discriminate against Occupants of Multifamily
Structures.
(e) E f Easements. The easements of enjoyment created hereby
shall be subject to the following:
(i) the right of the Corporation to establish reasonable
rules for the use of the Community Area and to charge reasonable
admission and other fees for the use of any recreational, meeting or
banquet facilities located in or constituting a part of the Community
Area;
(ii) the right of the Corporation to suspend the right of an
Owner and all Persons whose right to use the Paths, the Lake, the
Ponds, the Village Community Buildings, the Commons or the Parks
derives fxom 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 to suspend the right of an
Owner or any Person claiming through the Owner (including
Occupants of the Unit or Multifamily Structure) to use the Paths, the
Lake, the Ponds, the Village Community Buildings, the Commons or
the Parks for a period not to exceed sixty (60) consecutive days for
any other infraction of this Declaration, any Supplemental
Declaration or the Register of Regulations;
(iv) the rights of the holder of any Common Area Secured
Indebtedness;
(v) the right of the Corporation to mortgage any or all of
the Community Area, the facilities constructed thereon and the
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Common Facilities for the purposes of improvements to, or repair of,
the Community Area, the facilities constructed thereon or the
Common Facilities, pursuant to approval of 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
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 instnunent signed
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
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 or Multifamily Structures located in such
Section or Parcel or (b) to other Owners of less than all of the Lots in
the Tract.
(f) Additional ~. The members of the family and the guests
of every Person who has a right of enjoyment to the Community Area and the
Common Facilities may use the Community Area and the Common Facilities subject
to the terms of any instrument of conveyance of such Community Area or Common
Facilities to a Pennitted Title Holder and to such general regulations consistent with
the provisions of this Declaration and all Supplemental Declarations as may be
established from time to time by the Corporation and included within the Register of
Regulations.
(g) Damage or Destruction bv Owner. In the event the Community Area
or any Common Facility is damaged or destroyed by an Owner or any of his guests,
tenants, licensees, agents, or member of his family, such Owner authorizes the
Corporation to repair said damaged area; the Corporation shall repair said damaged
area in a good workmanlike manner in conformance with the original plans and
specifications of the area involved, or as the area may have been modified or altered
subsequently by the Corporation in the discretion of the Corporation. An amount
equal to the costs incurred to effect such repairs shall be assessed against such Owner
as a Special Assessment and shall constitute a lien upon the Lot of said Owner.
(h) Conveyance of Title. Declarant may retain the legal title to the
Community Area and the Common Facilities until the Applicable Date, but
-31-
notwithstanding any provision herein, the Declarant hereby covenants that it shall,
prior to the Applicable Date, convey such of the Lake, the Ponds, the Village
Community Buildings, the Parks, the Commons and the Common Facilities which
Declarant acquires, develops or constructs 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.
22. Use of Tract.
(a) Protective Covenants.
(i) Land Use. Lots may be used only for the purposes
authorized by the Zoning Ordinance.
(ii) Nuisances. No nuisance shall be permitted to exist or
operate upon any Lot so as to be detrimental to any other Lot in the
vicinity thereof or to its occupants.
(iii) ~ther Restrictions. Declarant may impose additional
Restrictions in any Plat or Supplemental Declaration. 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 resffictions set forth in a Supplemental
Declaration, including but not limited to rules to regulate animals,
antennas, signs, fences, walls and screens, mailboxes, exterior light
fixtures, storage tanks, awnings, storage and use of recreational
vehicles, storage and use of machinery, use of outdoor drying lines,
recreational facilities, trash containers, and planting, maintenance and
removal of vegetation on the Tract. The Architectural Review Board
may adopt general rules and regulations appropriate to each Parcel,
which mles and regulations may vary among Parcels. Such general
rules may be mended by a two-thirds (2/3) vote of the Architectural
Review Board. Subsequent to the Applicable Date, any such
amendment may be made only after a public hearing for which due
notice to all affected Owners has been provided, and if such
amendments are approved by a two-thirds (2/3) vote of the Board of
Directors. All general roles and any subsequent amendments thereto
shall be placed in the Register of Regulations and shall constitute
Restrictions.
(iv) ~. The Architectural Review Board may
authorize exceptions to or variances from the general rules and
regulations adopted pursuant to clause (iii) if the Architectural
-32-
Review Board can show good cause and acts in accordance with
adopted guidelines and procedures.
(b) Maintenance of Tract. To the extent that exterior maintenance is not
provided for in a Supplemental Declaration, each Owner shall keep all 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 Lot in
the Tract shall fall to maintain the premises and the improvements situated thereon,
as provided herein, the Corporation, after notice to the Owner as provided by the By-
Laws and approval by two-thirds (2/3) vote of the Board of Directors, shall have the
right to enter upon said Lot to correct drainage and to repair, maintain and restore the
Lot and the exterior of the buildings and any other improvements erected thereon.
All costs related to such correction, repair or restoration shall become a Special
Assessment upon such Lot.
23. Easements.
(a) ~. 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
nonaceess easements, either separately or in any combination thereof, as shown on
the Plats, which are reserved for the use of Declarant, Owners, the Corporation, the
Architectural Review Board, public utility companies and governmental agencies as
follows:
(i) Draina~ (DE) are created to provide paths
and courses for area and local storm drainage, either overland or in
adequate underground conduit, to serve the needs of WestClay and
adjoining ground and/or public drainage systems; and it shall be the
individual responsibility of each Owner to maintain the drainage
across his own Lot. Under no circumstance shall said easement be
blocked in any manner by the construction or reconstruction of any
improvement, nor shall any grading restrict, in any manner, the
waterflow. Said areas are subject to construction or reconstruction to
any extent necessary to obtain adequate drainage at any time by any
governmental authority having jurisdiction over drainage, by
Declarant, and by the Architectural Review Board, but neither
-33-
Declarant nor the Architectural Review Board shall have any duty to
undertake any such construction or reconstruction. Said easements
are for the mutual use and benefit of the Owners.
(ii) Sewer 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.
(iii) Utility Easements (UE) are created for the use of
Declarant, the Corporation and all public or municipal utility
companies, not including transportation companies, for the
installation and maintenance of mains, ducts, poles, lines, 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 and the Corporation 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 and the Corporation for
the planting and maintenance of trees, shrubs and other plantings.
(vi) Water Access Easements (WAE) are created for the
use of Declarant, the Corporation and the Drainage Board for the
purpose of gaining access to the Lake and the Ponds in the course of
maintenance, repair or replacement of any thereofi
(vii) Community Area Access Easements (CAE) are created
for the use of Declarant and the Corporation 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 of Owners
for the purpose of galhing 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
use by the Owners of the Paths and Path Lights.
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(ix) Non-Access Easements (NAE) are created to preclude
access from certain Lots to abutting fights-of-way across the land
subject to such easements.
All easements mentioned herein include the fight of reasonable ingress and egress for
the exercise of other fights reserved. No structure, including fences, shall be built on
any drainage, sewer or utility easement if such structure would interfere with the
utilization of such easement for the purpose intended or violate any applicable legal
requirement or the terms and conditions of any easement specifically granted to a
Person who is not an Owner by an instrument recorded in the Office of the Recorder
of Hamilton County, Indiana, but a paved driveway necessary to provide access to
a Lot from a public street or Private Drive and a sidewalk installed by or at the
direction of Declarant (and replacements thereof) shall not be deemed a "structure"
for the purpose of this Restriction.
(b) General Easement. There is hereby created a blanket easement over,
across, through and under the Tract for ingress, egress, installation, replacement,
repair and maintenance of underground utility and service lines and systems,
including but not limited to water, sewers, gas, telephones, electricity, television,
cable or communication lines and systems. By virtue of this easement it shall be
expressly permissible for Declarant or the providing utility or service company to
install and maintain facilities and equipment on the Tract and to excavate for such
purposes if Declarant or such company restores the disturbed area as nearly as is
practicable to the condition in which itwas found. No sewers, electrical lines, water
lines, or other utility service lines or facilities for such utilities may be installed or
relocated in a Section or Parcel except as proposed and approved by Declarant prior
to the Applicable Date or by the Architectural Review Board thereafter. Should any
utility furnishing a service covered by the general easement herein provided request
a specific easement by separate recordable document, Declarant or the Corporation
shall have the right to grant such easement on the Tract without conflicting with the
terms hereof. This blanket easement shall in no way affect any other recorded
easements on the Tract, shall be limited to improvements as originally constructed,
and shall not cover any portion of a Lot upon which a Unit or Multifamily Structure
has been constructed.
(c) public Health and Safety_ Easements. An easement is hereby created
for the benefit of, and granted to, all police, fire protection, ambulance, delivery
vehicles, and all similar Persons to enter upon the Community Area in the
performance of their duties.
(d) Drainage Board Easement. An easement is hereby created for the
benefit of, and granted to, the Drainage Board to enter the Tract and all Lots therein
to the extent necessary to exercise its rights with respect to any legal drain
constitufmg a part oftbe Drainage System.
-35-
(e) Crossing Underground Easements. Easements utilized for
underground service may be crossed by driveways, walkways, Paths, Water Access
Easements and Community Area Access Easements provided prior arrangements are
made with the utility company furnishing service. Such easements as are actually
utilized for underground service shall be kept clear of all other improvements,
including buildings, patios, or other pavings, other than crossings, driveways,
walkways, Paths, Water Access Easements or Community Area Access Easements,
and neither Declarant nor any utility company using the easements shall be liable for
any damage done by either of them or their assigns, agents, employees, or servants
to shrubbery, trees, flowers or other improvements of the Owner located on the land
covered by said easements.
(f) Declarant's Easement to Correct Drainage. For a period 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 any gradings of the soil,
or to take any other similar action reasonably necessary, following which Declarant
shall restore the affected property to its original condition as nearly as practicable.
Declarant shall give reasonable notice of its intention to take such action to all
affected Owners, unless in the opinion of Declarant an emergency exists which
precludes such notice.
(g) Water Retention. The Owner of each Lot, by acceptance of a deed
thereto, consents to the temporary storage (detention) of storm water within the
drainage easements (DE) on such Owner's Lot.
24. Use of Lots During Development.
(a) By Declarant. Notwithstanding any provisions to the
contrary contained herein or in any other instrument or agreement,
Declarant or its sales agents or contractors, or any Designated
Builder, may maintain during the period of construction and sale or
rental of Lots and Units in the Tract or the Development Area, upon
such portion thereof as is owned or leased by Declarant or any
Designated Builder, such facilities as in the sole opinion of Declarant
may be reasonably required, convenient or incidental to the
construction, sale or rental of Lots and Units, including, but 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 Village Community Buildings during the
period that it is engaged in the sale of Lots in WestClay.
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(b) By Builders. Notwithstanding any provisions to the
contrary contained herein, a builder who has constructed a Living
Unit in WestClay may, with the prior consent of the Board of
Directors, use such Living Unit as a "model" home and may hold
such home open to the public, either individually or as part of a
"home show" approved by the Board of Directors for such reasonable
period as the Board of Directors may specify. With the approval of
Declarant and the consent of the Owner thereof, Lots adjacent to or
in proximity to such model home may be used for parking by visitors
to such model home.
25. Enforcement. The Corporation, any Owner or Declarant shall have the right to
enforce, by proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens
and charges now or hereafter imposed by the provisions of this Declaration and of any Supplemental
Declarations, but neither 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 violation or violations thereof shall under any circumstances be deemed or held to be a waiver by
that Person of the right to do so thereafter, or an estoppel of that Person to assert any right available
to him upon the occurrence, recurrence or continuation of any violation or violations of the
Restrictions. In any action to enforce this Declaration, the Person seeking enforcement shall be
entitled to recover all costs of enforcement, including attorneys' fees, if it substantially prevails in
such action.
26. Limitations on Rights of the Corporation. Prior to the Applicable Date, the
Corporation may not use its resources nor take a public position in opposition to the General Plan
of Development or to changes thereto proposed by Declarant. Nothing in this paragraph shall be
construed to limit the rights of the Members acting as individuals or in affiliation with other
Members or groups as long as they do not employ the resources of the Corporation or identify
themselves as acting in the name, or on the behalf, of the Corporation.
27. A_&p_provais b~. 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 Sections or Parcels within the Tract or of the Tract with other real estate; mortgaging of the
Community Area; amendment of this Declaration and any Supplemental Declaration; and changes
in the basis for assessment or the amount, use and time of payment of the Community Area Initial
Assessment.
28. Mortgages.
(a) Notice to Corporation. Any Owner who places a first mortgage lien
upon his Unit or Multifamily Structure or the Mortgagee shall notify the Secretary
of the Board of Directors of such mortgage and provide the name and address of the
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Mortgagee. A record of such Mortgagee's name and address shall be maintained by
the Secretary and any notice required to be given to the Mortgagee pursuant to the
terms of the Declaration, any Supplemental Declaration, the Articles or the By-Laws
(the "Organizational Documents") shall be deemed effectively given if mailed to such
Mortgagee at the address shown in such record in the time provided. Unless
notification of any such mortgage and the name and address of Mortgagee are
furnished to the Secretary, either by the Owner or the Mortgagee, no notice to any
Mortgagee as may be otherwise required by the Organizational Documents shall be
required and no Mortgagee shall be entitled to vote by virtue of the Organizational
Documents or a proxy granted to such Mortgagee in connection with the mortgage.
(b) Notices to Mortgagg~. The Corporation shall promptly provide to
any Mortgagee of whom the Corporation has been provided notice under
subparagraph (a) above notice of any of the following:
(i) Any condemnation or castmlty loss that affects a
material portion of the Community Area;
(ii) Any delinquency in the payment of any Assessment
owed by the Owner of any Unit or Multifamily Structure on which
said Mortgagee holds a mortgage or any default by an Owner under
the Organizational Documents, if said delinquency or default
continues for more than sixty (60) days;
(iii) Any lapse, cancellation or material modification of any
insurance policy or fidelity bond maintained by the Corporation;
(iv) Any proposed action that requires the consent of a
specified percentage of Mortgagees; and,
(v) Any proposed amendment of the Organizational
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
purposes for which any Lot or the Community Area are restricted.
(c) Notice of Un_naid Assessments. The Corporation shall, upon request
of a Mortgagee, a proposed mortgagee, or a proposed purchaser who has a
contractual right to purchase a Lot, furnish to such mortgagee or purchaser a
statement setting forth the amount of the unpaid Assessments against the Lot and the
Owners, and any Mortgagee or grantee of the Lot shall 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.
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(d) Financial Statements. Upon the request of any Mortgagee, the
Corporation shall provide to said Mortgagee the most recent financial statement
prepared on behalf of the Corporation.
(e) Pa_vments by Mortgagees. Any Mortgagee may (i) pay taxes or other
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
of a policy. A Mortgagee making such payments shall be entitled to immediate
reimbursement from the Corporation.
29. Amendments.
(a) Generally. Subject to subparagraph (c), this Declaration may be
amended at any time by an instrument signed by (i) the appropriate officers of the
Corporation acting pursuant to the authority granted by not less than two-thirds (2/3)
of the votes of the Members cast at a meeting duly called for the purpose of
amending this Declaration and (ii), to the extent required by Paragraph 27, Declarant.
(b) By Declarant. Subject to subparagraph (c), Declarant hereby reserves
the right prior to the Applicable Date unilaterally to amend and revise the standards,
covenants and restrictions contained in this Declaration. Such amendments shall be
in writing, executed by Declarant, and recorded with the Recorder of Hamilton
County, Indiana. No such amendment, however, shall restrict or diminish the rights
or increase or expand the obligations of Owners with respect to Lots conveyed to
such Owners prior to the amendment or adversely affect the rights and interests of
Mortgagees holding first mortgages on 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 to grant or establish any
easement through, across or over any Lot which Declarant has previously conveyed
without the consent of the Owner of such Lot.
(c) Approval by Zonine 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
Zoning Authority.
(d) ~. Any amendment shall become effective upon its
recordation in the Office of the Recorder of Hamilton County, Indiana.
30. Interpretation. The underlined titles preceding the various paragraphs and
subparagraphs of this Declaration are for convenience of reference only, and none of them shall be
used as an aid to the construction of any provision of this Declaration. Wherever and whenever
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applicable, the singular form of any word shall be taken to mean or apply to the plural, and the
masculine form shall be taken to mean or apply to the feminine or to the neuter.
31. Duration. The foregoing covenants and restrictions are for the mutual benefit and
protection 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, 2029,
at which time said covenants and restrictions shall be automatically extended for successive periods
of ten (10) years, unless changed in whole or in part by vote of those Persons who are then the
Owners of a majority of the Lots in the Tract.
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,
and of and from every combination of the Restrictions. Therefore, if any of the Restrictions shall
be held to be invalid or to be unenfomeable, or to lack the quality of running with the land, that
holding shall be without effect upon the validity, enfomeability or "running" quality of any other one
of the Restrictions.
33. Non-Liability of Declarant. Declarant shall not have any liability to an Owner,
Occupant or any other Person with respect to drainage on, over or under a Lot or erosion of a Lot.
Such drainage and erosion control shall be the responsibility of the Owner of the Lot upon which a
Unit or Multifamily Structure is constructed and of the builder of such Unit or Multifamily 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
assmned by Declarant, and no duty of, or warranty by, Declarant shall be implied by or inferred from
any term or provision of this Declaration.
34. Compliance with the Soil Erosion Control Plan.
(a) The Plan. Declarant has established and implemented an erosion
control plan pursuant to the requirements and conditions of Rule 5 of 327 IAC 15,
Storm Water Run-OffAssociated 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.
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(b) Indemnity. The Owner of each Lot shall indemnify and hold
Declarant harmless from and against ail liability, damage, loss, claims, demands and
actions of any nature whatsoever which may arise out of or are connected with, or are
claimed to arise out of or be connected with, any work done by such Owner, its
contractor and their respective employees, agents, or subcontractors which is not in
compliance with the erosion control plan implemented by the Declarant.
35. Annexation. Each Owner, by the acceptance of a deed to a Lot, consents to the
annexation of the Tract to the City of Cannel and agrees not to remonstrate against any proposal for
such annexation.
IN TESTIMONY WHEREOF, Declarant has executed this Declaration as of the date set
forth above.
By
Tom Charles Huston, Co-Manager
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STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
Before me, the undersigned, a Notary Public in and for said County and State, personally
appeared Tom Charles Huston, a Co-Manager of ., an Indiana limited
partnership, who acknowledged the execution of the above and foregoing Declaration of Covenants
and Restrictions for and on behalf of said partnership.
WITNESS my hand and Notarial Seal this day of
Notary Public Residing in County
(primed signature)
My Commission Expires:
This instrument prepared by Tom Charles Huston, Attorney at Law, 1313 Merchants Bank Building,
11 South Meridian Street, Indianapolis, Indiana 46204.
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DECLARATION OF COVENANTS AND RESTRICTIONS
EXHIBIT A
DESCRIPTION OF DEVELOPMENT AREA
DECLARATION OF COVENANTS AND RESTRICTIONS
EXHIBIT B
GENERAL PLAN OF DEVELOPMENT
DECLARATION OF COVENANTS AND RESTRICTIONS
EXHIBIT C
DESCRIPTION OF THE TRACT