HomeMy WebLinkAboutDeclaration of Restrictions & Easements w/First Amendment - RECORDED SCANNED
.66 PAGES
CP
�t3:1 Q�OOOt446 2
i ed or ecord in
.O 11 HRAMILTON COUNTY, INDIANA L CLARK
On 09-07-2004 At 08:46 aa.
DEC COV RES 137.00
co RECEIVED
DOM Draft Dated: July 6, 200
First Party Dec./modified
5/28/99
911 I/
DECLARATION OF RESTRICTIONS
AND EASEMENTS
Table of Contents
Article Subject Page
•
I. PRELIMINARY 6
1.1 Purpose. 6
1.2 •Definitions 6
1.3 Parties. II
•
2. BUILDING AND COMMON AREA DEVELOPMENT I I
2.1 Building Location. • 11
2.2 Common Area. 12
2.3 Type and Design of Buildings. 17
•
•
Article Subject Page
2.4 Construction Requirements. .. 20
2.5 Approval Proc-dures 22
3. EASEMENTS 23
3.1 Ingress and Egress 23
3.2 Utility Lines and Facilities. 24
3.3 No Parking Rights On Parcel 1 , _ 26
3.4 Intentionally Omitted. 26
3.5 Permanent Service Drive. 26
3.6 Self Help. 27
4. OPERATION OF COMMON AREA 27
4.1 Parking. 27
4.2 Employee Parking. 27
4.3 Signs. 28
4.4 Protection of Common Areas. 28
4.5 Outside Sales/Playground Area. 29
4.6 Prohibited Activities. • 29
4.7 Maintenance Standards. 30
• •
Article Subject Page
4.8 Lighting Standards. 32
4.9 Taxes. 32
4.10 Reimbursement of Permanent Service Drive and Flood Plain Maintenance.
32
5. USE RESTRICTIONS 35
5.1 Pharmacy Restrictions. • 35
5.2 General Restrictions. 36
5.3 Location Restrictions. 37
5.4 Driveup and Drive Through Facilities. 37
5.5 Mall Restrictions. 38
5.6 Hazardous Materials. 38
5.7 Fuel Center Restrictions. 38
6. CASUALTY AND CONDEMNATION 39
6.1 Casualty 34
6.2 Condemnation. 39
7. INDEMNIFICATION AND INSURANCE 41
7.1 Indemnification. 41
1
•Article Subject Page
41
7.2 Insurance.
42
8. GENERAL PROVISIONS •
42
8.1 Covenants Run With the Land.
43
8.2 Successors and Assigns
44
8.3 Duration. .
44
8.4 Injunctive Relief.
44
8.5 Modification and Termination.
45
8.6 Method of Approval.
46
8.7 Not a Public Dedication
46
8.8 Breach Shall Not Permit Termination
46
8.9 'Default
48
8.10 Notices.
. 50
8.11 Waiver
50
8.12 Attorney's Fees.
. 50
8.13 Sale&Sale-leaseback Purchaser.
51
8.14 Severability
51
8.15 Not a Partnership
51
8.16 No Third Party Beneficiary Rights.
•
__ --- ! .._. -
‘s, • •
Article Subject Page
8.17 Captions and Headings. 51
8.18 Entire Agreement. 51
8.19 Construction. 51
8.20 Joint and Several Obligations. 52
8.21 Recording. 52
8.22 Plat of Subdivision.
L-1
DECLARATION OF RESTRICTIONS
AND EASEMENTS
THIS DECLARATION OF RESTRICTIONS AND EASEMENTS ("Declaration") is
entered into on S , 2000,between PLUM CREEK PARTNERS, LLC, an Indiana
limited liability company("First Party"), and AMERICAN PARTNERS,L.P., an Indiana limited
partnership ("American Partners").
1. PRELIMINARY
1.1 Purpose. The parties plan to develop the Shopping Center (as defined in
Section 1.2[v]) as an integrated retail sales and services complex, with such other commercial uses
permitted hereinafter, for the mutual benefit of all real property in the Shopping Center. Therefore,
the parties hereby establish the Restrictions(as defined in Section 1.2[s]).
1.2 Definitions. The following terms shall have the definitions ascribed to them below.
(a) "American Partners": AMERICAN PARTNERS,L.P., an Indiana limited
partnership,together with any corporation or other legal entity succeeding thereto by consolidation,
merger or acquisition of its assets substantially as an entirety, and any wholly owned subsidiary
thereof and any entity controlled by, under common control with or contrc:ling American Partners.
American Partners current address isclo Albertson's, Inc., 250 Parkcenter Boulevard, P.O. Box 20,
Boise, Idaho 83726.
1
6
(b) "Building Area": All of those areas on each Parcel which are not located
in a"Building Setback Area"(defined below) and which are from time to time covered by a building
or other commercial structure.For purposes of this Declaration,a fence-enclosed outdoor playground
area extending from a building located on Parcel 5 or Parcel 6 shall be deemed a commercial
structure.
(c) "Building Setback Area": All of those areas on each Parcel which ate
shown as"Building Setback.Area"on Exhibit"A"attached hereto and made a part hereof and which
cannot under the terms of this Declaration be used for or improved with buildings or other
commercial structures.
(d) "Commoa,Area": All of those areas on each Parcel which are not Building
Area together with those portions of the Building Area on each Parcel which are not from time to
time actually covered by a building or other commercial structure or which cannot under the terms
of this Declaration be used for buildings together with that portion of Parcels 4 and 5 shown as
"Flood Plain"on the Site Plan. Canopies, eaves,roof overhangs(together with any columns or posts
supporting the same), nornial foundations, utility cabinets and meters, signs and doors for ingress
and egress, any of which may extend over the Common Area, shall be deemed to be a part of the
building to which they are attached and not a part of the Common Area.
(e) "Consenting Owners": The Owners of Parcels 4 and Parcel 1; provided,
however, that in the event any such Owner sells its Parcel and becomes the Prime Lessee thereon,
said Prime Lessee is hereby appointed the entity to cast the vote or give the consent for said Parcel
on behalf of the Owner thereof so long as it is the Prime Less:-e of said Pa, . 1.The Owner of Parcel
4 shall have additional consent rights over Parcels 2, 3, 5 and 6 but only to the exten\ expressly
provided hereinafter;provided,however,that any consent or approval of the Owner of Parcel 4 shall
7
not be deemed to release or waive any requirement, obligation, covenant or restriction of this
Declaration.
(I) Intentionally Omitted.
(g) "Environmental Laws": The Comprehensive Environmental Respwise,
Compensation and Liability Act of 1980,the Toxic Substances Control Act,the Clean Water Ae
the Resource Conservation and Recovery Act and any other similar federal, state or local law, rule
or regulation respecting Hazardous Materials, together with all rules and regulations promulgated
thereunder and all present or future amendments thereto. •
(h) "First Party": PLUM CREEK PARTNERS, LLC, an Indiana limited
liability company, togretherNrith any person succeeding thereto by consolidation, merger or
acquisition of its assets substantially as an entirety,and any wholly owned subsidiary thereof. First
Party's current address is c/o Olympia Partm7:., l it. , 320 North Meridian Street, Suite 700,•
Indianapolis, IN 46204 (Attention:Bryan C*_rd1t',;•
(I) "Flood Plain":That pertion of Parcels 4 and 5 shown as`[Flood Plain"on
Exhibit "A" attached hereto and made a part hereof.
(j) "Floor Area": The total number of square feet in a building, whether or not
actually occupied,(including basement,subterranean,balcony and mezzanine space)measured from
the exterior line of the exterior walls and from the center line of any party or common interior walls
without deduction for columns,walls or other structural or nonstructural components.
(k) "General Common Area Improvements": The traffic directional arrow
signs and other signs permitted under Article 4, paving, driveways, service drives, parking lots,
8
•
parking areas and striping,bumper guards and curbs, landscape planters and other landscaped areas,
parking lot lig.. a, perimeter walls and fences, utility pads and equipment, sidewalks, and
walkways, storm water drainage, detention and retention areas.
(1) "Ground Floor Area": The total number of square feet on the ground floor
of a building, whether or not actually occupied, (excluding basement, subterranean, balcony and
mezzanine space) measured from the exterior line of the exterior walls and from the center line of
any party or common interior walls without deduction for columns, walls or other structural or
nonstructural components.
(m) "Hazardous Materials": Underground storage tanks, petroleum and
petroleum products, asbestos, PCB's, urea-formaldehyde and any hazardous or toxic substances,
pollutants, contaminants, wastes or materials as defined under any Environmental Laws.
(n) "Lienholder": Any mortgagee under a mortgage,or a trustee or beneficiary
under a deed of trust,constituting a lien on any Parcel. A Lienholder shall not be deemed to be an
Owner for purposes of this Declaration until such time as said Lienholder acquires fee simple title
to its Parcel(s) by foreclosure,trustee's sale or otherwise.
(o) "Owner": The record holder of fee simple title to a Parcel (including its
heirs, personal representatives, successors and assigns).
(p) "Parcel": Parcel 1, 2, 3, 4, 5 or 6 as shown on Exhibit "A" and more
particularly described in Schedule I attached hereto and made a part hereof. The Parcels are located
f
at the northwest corner of the intersection of 131st Street & Hazel Dell Parkway in the City of
Carmel, County of Hamilton, State of Indiana.
9
(q) "person": Individuals,partnerships, firms,associations,corporations,trusts,
governmental agencies, administrative tribunals or any other form of business or legal entity.
(r) "Prime Lessee": An Owner of a Parcel who sells said Parcel swhether or not
such sale includes buildings and/or Common Azea improvements located thereon)to an unaffiliated
third party and thereafter enters into a lease (including a ground lease or building lease) for said
Parcel with such third party or its lessee or sublessee. Prime Lessee includes the successors amd
assigns of the Prime Lessee but does not include the sublessees, licensees or concessionaires of the
Prime Lessee.
•
(s) "Restrictions": The easements, covenants, restrictions, liens and
encumbrances contained in this Declaration.
(t) "Self-Parked": (i) for Mull, having a minimum of three and 5/10(3.5)
parking stalls per 1,000 square feet of Floor Area used as retail(not including restaurant)space, four
(4)parking stalls per 1,000 square feet of Floor Area used as office space, ten(10)parking stalls per
1,000 square feet of Floor Area used as restaurant(provided, however that the aggregate floor area
of all restaurants located on Parcel 2 shall not exceed four thousand five hundred (4,500) square
feet of Floor Area [excluding from such aggregate calculation fast food or carry-out restaurants
having seating for not more than 40 customers]), (ii) for Parcel.,having a minimum of three and
5/10 (3.5)parking stalls per 1,000 square feet of Floor Area used as retail (not including restaurant)
space, four(4)parking stalls per.1,000 square feet of Floor Area used as office, and ten(10)parking
stalls per 1,000 square feet of Floor Area used as restaurant, (iii) for p rte,having a minimum
of three and 5/10(3.5)parking stalls per 1,000 square feet of Floor Area used as retail and/or office
(not including restaurant),and seven and 5/10(7.5)parking stalls per 1,000 'square feet of Floor Area
used as restaurant,(iv) for parcel 1, having a minimum of three(3) parking stalls per 1,000 square
10
•
•
feet of Floor Area used as retail (not including restaurant) space and ten (10) parking stalls per
1,000 square feet of Floor Area used as restaurant, (v) for Parcels 1 through 4,meeting all applicable
laws,rules or regulations(without a variance)governing or relating to parking accommodations,and
(vi) for Parcels 5 and 6,meeting all applicable laws,rules or regulations(with or without a variance)
governing or relating to parking accommodations .
(u) "Service Facilities": Loading docks,trash compactors and enclosures,bottle
storage areas, exterior coolers, electrical and refrigeration facilities and other similar service
facilities.
•
(v) "Shopping Center": Parcels 1, 2, 3, 4, 5 and 6 collectively.
(w) "Permanent Service Drives":That portion of the Common Area shown on
Exhibit"A"as"Permanent Service Drive"and more particularly described in Schedule 1I attached
hereto and made a part hereof.
1.3 Parties. First Party is the Owner of Parcels 2, 3,4, 5 and 6; and American Partners
is the Owner of Parcel 1.
2. BUILDING AND COMMON AREA DEVELOPMENT
2.1 Building Location. All buildings and other structures(except those permitted' the
Common Area pursuant to Section 2.2 below) shall be placed or constructed upon the Parcels only
in the Building Areas (i.e., outside of the Building Setback Areas); provided, however, that (i)
canopies, eaves and roof overhangs (including columns or posts supporting the same), normal
foundations, utility cabinets and meters, signs and doors for ingress and egress may project from the
Building Area into the Common Area and(ii)outdoor sales areas and playground areas are permitted
11
in the Common Areas to the extent permitted under Section 4.5. All of the foregoing shall be
constructed and maintained in accordance with all local,state and federal laws,rules and regulations
applicable thereto. Each Parcel shall be Self-Parked. In the event all or any portion of the Parcel 2
is not developed and improved as an"Outparcel"(defined below),the eastern Building Setback Area
(i.e.,contiguous to the Permanent Service Drive) for Parcel 2 (or such portion thereof) shall be one
hundred (100) feet from the eastern boundary of Parcel 2 in lieu of the thirty (30) foot Bui'ldmg
Setback Area for the Parcel 2 as shown on Exhibit"A". For purposes of this Section, "Outparcel"
means either Parcel 2 as shown on the Site Plan without being combined or consolidated with any
other Parcel (or portion thereof) or any portion of the Parcel 2 that has been subdivided from the
remainder of Parcel 2 into a separate legal and zoning lot under applicable subdivision and zoning
regulations without being combined or consolidated with any other Parcel (or portion thereof), (i)
that is Self-Parked, (ii) that, is improved with no more than one (1) primary, detached building,
(provided, that ancillary buildings and structures shall be permitted,which may include a detached
car wash building, fuel islands and trash enclosures in connection with the primary gas station and/or
convenience store building in connection with the operation of a Gas Station [defined later]), (iv)
that is improved with the primary building oriented so that the primary entrance and front facade
of such building is facing 131" Street, and (v)that is used or occupied by a single occupant.
All Building Areas on which buildings are not under construction on the date the Owner of
Parcel I first opens its building for business shall be covered by landscaping ground cover, or other
ground cover approved by the Consenting Owners and kept mowed or otherwise Need-free and clean
at the Owner's sole expense until such time as buildings are constructed thereon.
2.2 Common Area.
12
(a) j e. The Common Area on Parcels 1, 2, 3 and 4 is hereby reserved for the
sole and exclusive use of all Owners of the Parcels 1, 2, 3 and 4, their tenants, subtenants and
licensees, and the contractors, employees, agents, licensees and invitees of such Owners, tenants,
subtenants and licensees for the purposes set forth in this Declaration. The Common Area(except
the Flood Plain).may be used fir vehicular driving,parking(except that there shall be no multi-level
parking)and pedestrian traffic and for no other purpose unless otherwise specifically provided in this
Declaration. Nothing contained herein shall be deemed to grant any Owner an easement or other
right to use Common Area on another Owner's Parcel and such rights, if any, shall be deemed
granted only to the extent otherwise specifically provided in this Declaration. In addition, the Flood
Plain shall also be reserved for the sole and exclusive use of all Owners of the Shipping Center
(including but not limited to the Owners of Parcels 5 and 6), their tenants, subtenants and licensees,
and the contractors, employees, agents, licensees and invitees of such Owners, tenants, subtenants
and licensees for the purposes set forth in this Declaration. The Flood Plain may be used for storm
water drainage, detention and retention and may be landscaped so long as such landscaping does not
interfere with such drainage,detention and/or retention and for no other purpose unless specifically
provided for in this Declaration.
(b) initial Development. The Common Area on Parcels 1, 2, 3 and 4 shall
initially be developed in accordance with Exhibit "A." To the extent Exhibit "A" does not show
Common Area improvements, the Owner of the applicable Parcel shall,retain the right to develop
such Common Area in such Owner's sole discretion subject, however, to strict compliance with the
requirements of this Declaration.To the extent General Common Area Improvements are not shown
on Exhibit"A"for Parcels 2,3,4, 5 and 6,the size and arrangement of Common Areas thereon shall
be subject to the prior written approval of the Owner of Parcel 4 and shall be processed in
•
13
•
•
accordance with Section 2.5;provided, however,that such approval shall not otherwise release or
waive any other requirement of this Declaration.
The Owner of Parcel 1 shall have the right,but not thv obligation,to construct or cause to
be constructed the initial Permanent Service Drive on Parcel 1 and Parcel 3 ("Service Drive
Construction Work"), subject to reimbursement by the Owner of Parcel 4, upon reasonable prior
notice to the Owner of Parcel 4,which notice shall include(i)the projected dates of commencement
and completion of such work,and(ii)a description of the work to be performed incl,.Jing applicable
plans and specifications, if any. Such initial Permanent Service Drive shall be constructed strictly
in accordance with the requirements and standards set forth in Exhibit"B"attached hereto and made
a part hereof or such greater requirements imposed by each governmental body having jurisdiction
over the work being performed. Such work shall be performed and completed in a workmanlike
manner, in accordance with all requirements of each governmental body having jurisdiction over
the work being performed and in a manner to minimize any disruption of any business on Parcels
1, 2, and 3. The Owner of Parcels 1,2, 3 and 4 agree to execute and join in any permit applications
and other applications for governmental approvals required for such work.
Subject to the following terms and conditions, the Owner of Parcel 4 shall reimburse the
Owner of Parcel 1 the Owner of Parcel 4's share (defined below) of costs and expenses for the
construction of the Permanent Service Drives on Parcels 1 and 3.The Owner of Parcel 4's share
shall mean the fifty percent (50%) of the Owner of Parcel l's out-of-pocket costs and expenses
incurred in connection with the construction of the Permanent Service Drive, including but not
limited to labor,materials,the cost of performance,payment and completion bonds,permit and other
governmental approval fees and costs, and engineers' fees and costs. All payments required to be
made under this Section 2.2(b) shall be Tirade within thirty (30) days of an Owner's receipt of a
billing therefor,which billing shall include reasonable evidence that such costs were incurred (such
14
• •
•
as copies of bills, payment applications, invoices, receipts and lien waivers). Amounts owing
pursuant to this Article, if not paid when due, shall accrue interest at the Default Rate (defined
below) from the date due until the date of payment.
If the Owner of Parcel 1 has not commenced to perform Service Drive Construction Work
on or before March 30,2001,and the Owner of Parcel 4 desires the Owner of Parcel 1 to commence
the Service Drive Construction Work, the Owner of Parcel 4 shall provide Owner of Parcel 1 with
notice to Owner of Parcel 1 to commence such work. Within sixty(60) days of such notice, Owner
of Parcel 1 shall provide notice to Owner of Parcel 4 of Owner of Parcel l's election to either
commence to perform such work or not to commence to perform such work. If Owner of Parcel 1
elects to commence to perform such work, Owner of Parcel 1 shall commence to perform such work
within thirty(30)days of its notice to Owner of Parcel 4. If Owner of Parcel 1 fails to provide notice
of its election, Owner of Parcel 4 may provide a second notice to Owner of Parcel 1. The second
notice shall include a one page notice making specific reference to this Declaration and this Section
and shall state in bold, capital letters: "IF OWNER OF PARCEL 1 DOES NOT ELECT TO
COMMENCE TO PERFORM SERVICE DRIVE CONSTRUCTION WORK WITHIN TEN (10)
DAYS OF YOUR RECEIPT OF THIS NOTICE, OWNER OF PARCEL 4 SHALL PERFORM
SUCH WORK AND OWNER OF PARCEL 1 SHALL BE OBLIGATED TO REIMBURSE
OWNER OF PARCEL 4 FOR SUCH WORK IN ACCORDANCE WITH THE DECLARATION."
If Owner of Parcel 1 does not elect to perform such work by notice to Owner of Parcel 4 or fails to
make an election to perform within ten(10) days after receipt of the second notice, Owner of Parcel
4 shall have the right to perform such work by providing notice to Owner of Parcel 1 of the same and
commencing the same within thirty(30)days of either Owner of Parcel l's election not to perform
or Owner of Parcel l's failure to elect to perform within the aforesaid ten (10) day period. If
Owner of Parcel 4 fails to commence Owner of Parcel l's Work within such thirty (30) day period,
15
• •
Owner of Parcel 4 shall be deemed to have waived its right to do so on such occasion; provided
however, that Owner of Parcel 4 may thereafter exercise such right subject to providing, on such
subsequent occasion(s),notice as required under this Section.
Upon Owner of Parcel 4's election to perform the Service Drive Construction Work, the
Owner of Parcel 4 shall be obligated to perform such work to the same extent and in the same.
manner as would be required of the Owner of Parcel 1 if the Owner of Parcel 1 had electeh m
perform such work.The Owner of Parcel 4 shall be entitled to reimbursement from the Owner of
Parcel 1 for fifty (50%) of the Owner of Parcel 4's out-of-pocket costs and expenses incurred in
connection with the construction of the Permanent Service Drive in the same manner and to the same
extent as provided for the Owner of Parcel 4's performance of such work as provided above.
Upon the lien-free completion of the Service Drive Construction Work and the
reimbursement for the same as provided herein, the Owner of Parcel l and the Owner of Parcel 4,
at either Owner's request shall execute and record a instrument acknowledging the same. Upon the
other Owner's request, the Owner performing the work shall provide copies of all permits, approvals
and applications therefor related to such work.
(c) flangeSJUICLAddithM. Except as approved in writing by the Consenting
Owners (which approval may be withheld in such Consenting Owners' respective sole discretion)
or as otherwise expressly permitted.by the terms of this Declaration;no buildings or structures shall
be placed in the Common Area except: (i) General Common Area Improvements; (ii) Service
Facilities; (iii) public pay telephones provided their location has been approved in writing by the
Consenting Owners;provided,however,that the Owner or occupant of Parcel 1 shall have the right
to locate public pay telephones on the exterior of the building located on Parcel 1 without the
Consenting Owners' approval. The sizes and arrangements of the Permanent Service Drives may
16
•
•
not be changed without the Consenting Owners'prier written approval,which may withheld in such
Owners' respective sole discretion. The size, loczti'n and arrangement of any Service Facilities
located on Parcels 2 or 4 shall not it:r,ede or interfere with access to, over or upon the Permanent
Service Drives. All requests for approval under this subparagraph (c) shall be processed in
accordance with Section 2.5.
No buildings or other structures shall be permitted on the Flood Plain. Notwithstanding the
foregoing,that the Owner of Parcels 3 and/or 4,on the one hand,and Parcels 5 and/or 6,on the other
hand,shall be permitted to construct at such Owners' sole cost,a bridge and/or pedway providing
access between such Parcels; provided, that(i) such bridge or pedway shall not impede or interfere
with the use of the Flood Plain for drainage and detention for the Shopping Center, (ii) nothing
contained herein shall be deemed to grant the Owners of Parcels 5 and 6 any rights or casements over
Parcels 1, 2, 3 and 4,including but not limited to any rights or easements to the Permanent Se:vice
Drives, and (iii) the cost or repairing, replacing and maintaining such improvements shall not be
subject to reimbursement under this Declaration.
(d) Un ,elopedBuilding Area. All portions of a Building Area on Parcels 2,
3,4, 5 and 6 which are not from time to time used for buildings or other commercial structures shall
be developed by the Owner thereof, at said Owner's sole cost and expense, in accordance with a site
plan approved by the Owner of Parcel 4 and maintained as improved Common Area until buildings
are constructed thereon; provided,however, that such approval shall not otherwise release or waive
any other requirement of this Declaration.
2.3 Type and Design of Buildings.
17
(a) Architectural ComUptibility. Each building and other structure on Parcels
1,2, 3 and 4 in the Shopping Center,now and in the future, shall be of first quality construction and
architecturally designed ao that its exterior elevations(including,without limitation,signs and color)
•
will be architecturally compatible with all other buildings on Parcels 1, 2,3 and 4 in the Shopping
Canter with reference to the Building Design Criteria referenced in Exhibit"C'
Criteria"). Each building on Parcels 1, 2, 3 and 4 in the Shopping Center shall ink iaay .he:
constructed so the exterior of such building conforms to the Building Design Criteria. No less than
thirty (30) days prior to the commencement of the construction or exterior modification of any
building on Parcels 1,2,3 and 4,the Owner of the applicable Parcel shall provide to the Consenting
Owners exterior design drawings for such proposed construction or modification and other materials
reasonably required to determine compliance with the Building Design Criteria; provided, however,
the obligation to provide such materials shall not be deemed to confer consent rights upon the
Consenting Owners in addition to such rights as are expressly set forth hereinafter. No building may
be constructed on Parcels 1,2,3 or 4 unless such building conforms to the Building Design Criteria,
nor the exterior of any existing building on such Parcels changed in any way contrary to the Design
Criteria (including, without limitation, signs and color), without the Consenting Owners' prior
written approval(which shall be obtained in accordance with the procedures set forth in Section 2.5)
as to the exterior elevations of the building to be constructed or modified. No Consenting Owner
may withhold its approval of the proposed building or modification if it is architecturally compatible
with all other buildings on Parcels.l, 2, 3-or 4 in the Shopping Center. American Partners' or its
affiliates' standard signs and logos (including, without limitation, signs identifying any tenant,
subtenant,licensee,or concessionaire located and operating on Parcel 1 ("Parcel l Tenant") as they
may exist from time to time) and the opening, closing, modification or relocation of any door,
however, shall not require approval.Notwithstanding anything contained herein to the contrary, no
building shall be constructed on Parcel 2, 3, 4, 5 or 6 nor the exterior of any existing building on
18
Parcel 2, 3, .t, 5 or 6 changed without the Owner of Parcel 4's prior written approval (which shall
be obtained it.accornance with the procedures set forth in Section 2.5) as to the exterior elevations
of the building to be constructed or modified; provided, however, that such approval shall not
otherwise release or waive any requirement of this Declaration including but not Iimited to the
requirement that all buildings on Parcels 1, 2, 3 and 4 conform to the Building Design Criteria.
(b) Attachments. No Owner shall have the right to make any attachment
whatsoever to another Owner's building (such other Owner being referred to in this subparagraph
•only as "Other Owner") without such Other Owner's prior written approval, which may be
withheld in such Other Owner's sole and absolute discretion. If the Other Owner approves the
requested attachment, the Owner making the attachment shall, prior to making such attachment,
obtain the Other Owner's prior written approval (which may be withheld in its sole and absolute
discretion)of the drawings and specifications detailing the attachment. Any such attachment shall
be at the sole cost and expense of the Owner making the attachment and shall be in strict
conformance with the approved drawings and specifications detailing the same.
(c) Fire Protection. All Owners acknowledge that the Owner of Parcel I may
build buildings on its Parcel using Type II C non-combustible fully sprinklered mercantile unlimited
space construction as defined in the 1997 edition of BOCA or Type II-N or III-N (non-rated)
construction as defined in the 1988 edition of the Uniform Building Code or its Iocal equivalent
("Construction Type") or some other construction technique requiring sprinklcring of buildings on
Parcels other than Parcel 1. Each Owner agrees to comply, at its sole cost, with all governmental
requirements in the construction of buildings on such Owner's Parcel, (including, as applicable,
sprinkler or setback requirements) which arise by reason of the Owner of Parcel l's use of the
Construction Type or any other construction technique requiring sprinklering.
19
•
(d) Structural Integrity►. No building or other structure in the Shopping Center
shall be built in such a manner as to adversely affect the structural integrity of any other building or
structure in the Shopping Center.
(e) Jieighti. All buildings and other structures on Parcels 2, 3 and 4 in the
Shopping Center shall be single or two story with mezzanine permitted and shall not exceed forty-
two (42) feet in height (including mechanical fixtures and equipment and screening for the same).
All buildings and other structures located on Parcel 1 shall not exceed twenty-five(25) feet in height
(including mechanical fixtures and equipment and screening for the same).
(f) Exterior' Maintenance. Each Owner shall maintain the exterior of any
building located on such Owner's Parcel(s)in a quality and condition comparable to that of first class
shopping centers of comparable size and nature located in the same geographic area as the Shopping
Center.
2.4 Construction Requirements. •
(a) Standards. All work performed in the construction, maintenance, repair,
replacement, alteration or expansion of any building, sign or Common Area improvements located
on Parcels 1, 2, 3 and 4 in the Shopping Center (including but not limited to the Service Drive
Construction Work) shall be effected as expeditiously as possible and in such a manner as not to
unreasonably interfere, obstruct or delay (i) access to or from Parcels 1, 2, 3 and 4 (or any part
thereof), (ii) customer vehicular parking in that portion of the improved Common Area located in
front of any building constructed in•the Parcels 1, 2, 3 and 4, or(iii) the receiving of merchandise
by any business in Parcels 1, 2, 3 and 4 including, without limitation, access to Service Facilities.
Except as otherwise expressly provided to the contrary herein, staging for the construction,
20
•
replacement, alteration or expansion of any building, sign or Common Area improvements located
on Parcels 1, 2, 3 and 4 in the Shopping Center including, without limitation, the location of any
temporary buildings or construction sheds, the storage of building materials, and the parking of
construction vehicles and equipment shall be limited to that portion of the Shopping Center approved
in writing by the Consenting Owners. Such consent shall not be required (i) for the initial
improvement of Parcel 1; and(ii) for any Parcel so long as such staging is located completely within
the Building Area of the constructing Owner's Parcel. Unless otherwise specifically stated herein,
the person contracting for the performance of such work("Contracting Party") shall, at its sole
cost and expense, promptly repair'and restore or cause to be promptly repaired and restored to its
prior condition all buildings, signs and Common Area improvements damaged or destroyed in the
performance of such work.
(b) Liens. The Contracting Party shall not permit any liens to stand against any
Parcel for any work done or materials furnished in connection with the performance of the work
described in subparagraph (a) above or the Service Drive Construction Work; provided, however,
that the Contracting Party may contest the validity of any such lien,but upon a final determination
of the validity thereof, the Contracting Party shall cause the lien to be satisfied and released of
record. The Contracting Party shall, within thirty (30) days after receipt of written notice from the
Owner or Prime Lessee of any Parcel encumbered by any such lien or claim of lien, cause any such
outstanding lien or claim of lien to be released of record or transferred to bond in accordance with
applicable law, failing which the Owner or Prime Lessee of said Parcel shall have the right, at the
Contracting Party's expense, td transfer said lien to bond. The Contracting Party shall indemnify,
defend and hold harmless the Owners and occupants of the Shopping Center from any and all
liabilities, claims, damages, expenses(including, without limitation, reasonable attorney's fees and
reasonable attorney's fees on any appeal), liens, claims of lien,judgments, proceedings and causes
21
of action of any kind whatsoever, arising out of or in any way connected with the performance of
such work,unless caused by the negligent or willful act or omission of the indemnified person, its
tenants, subtenants,agents,contractors or employees.
(c) Encroachment. The Owners acknowledge and agree that incidental
encroachments upon the Common Area may occur as a result of the use of ladders, scaffolds, store
front barricades and similar facilities in connection with the construction, maintenance, repair,
replacement, alteration or expansion of buildings, signs and Common Area improvements located
in the Shopping Center, all of which are permitted hereunder so long as all activities requiring the
use of such facilities are expeditiously pursued to completion and are performed in such a manner
as to minimize any interference with use of the improved Common Area or with the normal
operation of any business in the Shopping Center and further provided that access between the
Permanent Service Drives and die adjoining public roads is not materially impeded (except to the
extent reasonably required for the construction,maintenance,repair or replacement of the Permanent
Service Drives).
2.5 Approval Procedures. Before any action requiring the Consenting Owners'approval
is commenced, sufficient information shall be sent to the Consenting Owners to enable the
Consenting Owners to make a reasonable decision as to the proposal. No Consenting Owner shall
have the right to unreasonably withhold its approval to the proposal unless otherwise specified in
this Declaration. Each Consenting Owner must approve or disapprove the proposal within
thirty (30) days after receipt of the proposal, and,, if such Consenting Owner disapproves the
proposal, it shall provide a written explanation in reasonable detail of its reasons for disapproval.
If a Consenting Owner rejects or disapproves the proposal and fails to provide such explanation
within the thirty(30)day period,such Consenting Owner shall be deemed to have approved the same
provided that, when the approval was sought, the one seeking the approval stated in writing to the
22
•
one whose approval was sought that, if a disapproval with explanation was not made within the
thirty (30) day period, approval would then be deemed to have been given. If the proposal is
disapproved as provided herein, then an alternate proposal may be submitted, which alternate
proposal shall be handled in the same manner as the initial proposal.
3. EASEMENTS
3.1 Ingress and Egress. Each Owner of Parcel 1, 2, 3 and 4, as grantor, hereby grants
to the other Owners of Parcels 1,2,3 and 4,their respective tenants,contractors, employees, agents,
licensees and invitees, and the subtenants,contractors, employees, agents, licensees and invitees of
such tenants, for the benefit of each such Parcel belonging to the other Owners of Parcels 1, 2, 3 and
4, as grantees, a nonexclusive easement for ingress and egress by vehicular and pedestrian traffic
upon,over and across that portion of the Common Area located on the grantor's Parcel(s), except for
those areas devoted to Service Facilities or driveup or drive through customer service facilities. The
reciprocal rights of ingress and egress set forth in this Section 3.1 shall apply to the Common Area
for each of Parcels 1, 2, 3 and 4 as such area may be increased pursuant to Section 2.2 above and
shall not apply to or include any portion of Parcels 5 or 6.
23
• •
is
3.2 Utility Lines and Facilities.
(a) Easements.. Each Owner of Parcel 1,2,3 and 4, as grantor, hereby grants
to the other Owners of Parcels 1, 2, 3 and 4, for the benefit of each Parcel belonging to other
Owners of Parcels 1,2,3 and 4,as grantees,a nonexclusive easement under,through and across tihr
Common Area of the grantor's Parcel(s) for the installation, operation, maintenance, repair and
replacement of water drainage systems or structures, water mains, sewers, water sprinkler system
lines,telephones,communication lines,pneumatic tube systems,electrical conduits or systems, gas
mains and other public or private utilities or underground systems facilitating communication and/or
coordination of business operations between two or more Parcels. In addition,each Owner of Parcel
3 and 4, as grantor,hereby grants to all other Owners of Parcels 1,2, 3, 4, 5 and 6, for the benefit
of each Parcel belonging to the other Owners,as grantees, a nonexclusive easement under, through
and across the Flood Plain of the grantor's Parcel(s) for the installation, operation, maintenance,
repair and replacement of water drainage systems or structures. Each Owner agrees to grant such
additional easements as are reasonably required by any public or private utility for the purpose of
providing the utility lines and facilities described herein provided such easements are not otherwise
inconsistent with the provisions of this Declaration.
(b) Construction Requirements. All such systems,.structures, mains, sewers,
conduits, lines and other utilities_shall be installed and maintained below the ground level or surface
of such easements except(i) for ground mounted electrical transformers and such other facilities as
are required to be above ground by the utility providing such service(including, without limitation,
temporary service required during the construction, maintenance, repair, replacement, alteration or
expansion of any buildings, signs or Common Area improvements located in the Shopping Center)
24
•
and (ii) for the Flood Plain which shall be an open ditch system. The installation, operation,
maintenance,repair and replacement of such easement facilities shall not unreasonably interfere with
the use of the improved Common Area or with the normal operation of any business in the Shopping
Center. Except as otherwise expressly provided in this Declaration;the grantee shall bear all costs
related to the installation,operation,maintenance,repair and replacement of such easement facilities,
shall repair to the original specifications any damage to the Common Area resulting from such use
and shall provide as-built plans for all such facilities to the Owners of all Parcels upon which such
utility lines and facilities are located within thirty (30) days after the date of completion of
construction of same.
(c) Relocation. At any time and from time to time the Owner of a Parcel shall
have the right to relocate on its Parcel any utility line or facility installed pursuant to the foregoing
grant of easement which is then located on the land of such Owner,provided that any such relocation
(i) shall be performed only after sixty (60) days' notice of the Owner's intention to undertake the
relocation shall have been given to the Owner of each Parcel served by the utility line or facility,
which notice shall include plans and specifications for the proposed work together with copies of
all applicable governmental approvals, (ii)shall not unreasonably interfere with or diminish utility
service to the Parcel(s) served by the utility line or facility, (iii) shall not reduce or unreasonably
impair the usefulness or function of the utility line or facility, (iv) shall be performed without cost
or expense to the Owner or occupant of any other Parcel, and (v) shall provide for the original and
relocated area to be restored to their original specifications. The Owner performing such relocation
shall provide as-built plans for all such relocated utility lines and facilities to the Owners of all
Parcels served by such utility lines and facilities within thirty(30) days after the date of completion
of such relocation.
•
25
-
- -
At any time and from time to time the Owner of a Parcel shall have the right to relocate on
its Parcel that portion of the Flood Plain then located on the land of such Owner,provided that any
such relocation (i) shall be performed only after sixty(60)days' notice of the Owner's intention to
undertake the relocation shall have been given to the Owner of each Parcel, which notice shall
include plans and specifications for the proposed work together with copies of all applicable
governmental approvals, (ii)shall not interfere with or diminish storm water drainage, detention or
retention to the Parcel(s) served by the Flood Plain, (iii)shall not reduce or impair the usefulness
or function of the Flood Plain, (iv) shall be performed without cost or expense to the Owner or
occupant of any other Parcel,and(v) shall provide for the original and relocated area to be restored
to maintain no less than the Flood Plain's original capacity for storm water drainage, detention and
retention. The Owner performing such relocation shall provide as-built plans for all such relocated
Flood Plain to the Owners of all Parcels within thirty(30)days after the date of completion of such
relocation.
•
3.3 No Parking Rights On Parcel 1.The Owners hereby acknowledge and agree that
nothing contained in this Declaration shall be deemed to confer or grant any parking easements or
other parking rights over,upon or across Parcel 1.No Parcel shall be permitted to share parking with
Parcel 1 without the Owner of Parcel l's prior written consent, which consent may be withheld in
such Owner's sole discretion.
3.4 Intentionally Omitted. •
3.5 Permanent Service Drive. Each Owner of Parcel 1 and Parcel 3 hereto, as grantor,
hereby grants to the other Owners of Parcels 1,'2, 3 and 4, their respective tenants, contractors,
employes, agents, licensees and invitees, and the subtenants, contractors, employees, agents,
licensees and invitees of such tenants, for the benefit of each Parcel belonging to the other Owners,
26
•
as grantees,a perpetual non-exclusive easement for ingress and egress by vehicular and pedestrian
traffic upon, over and across that portion of the Common Area located on the grantor's Parcel(s)
shown on Exhibit "A" as "Permanent Service Drive" and more particularly described in
Schedule II attached hereto and made a part hereof.
3.6 Self Help. Each Owner, as grantor (such Owner being referred to in this
subparagraph only as "Grantor Owner"),hereby grants to the other Owners for the benefit of each
Parcel belonging to the other Owners as grantees (such other Owners being referred to in this
subparagraph only as"Grantee Owners"), a nonexclusive easement to enter the Grantor Owner's
Parcel for the following purposes:
(a) To perform such work on the Grantor Owner's Parcel as is necessary to cure
any default by the Grantor Owner under the Declaration, provided and to the extent the Grantee
Owner has the express right to cure said default after notice under the Declaration; and
(b) To perform any obligations or exercise any other rights the Grantee Owner
has under the Declaration.
4. OPERATION OF COMMON AREA
4.1 Parking. There shall be no charge for parking in the Common Area without the prior
written approval of the Consenting Owners or unless otherwise required by law.
4.2 Employee Parking. Each Owner shall designate specific areas within the Common
Area on such Owner's respective Parcel to be used for motor vehicle parking by employees of
occupants of such Owner's Parcel, and the employees of such Owner. tenant or other occupant of
27
any building on such Owner's Parcel shall use only those portions of the Common Area designated
on such Parcel for such employee motor vehicle parking purposes.
4.3 Signs.
(a) Pylon or Monument Signs. No pylon,monument or any other free-sterling
signs (except as permitted in Section 4.3[b]) shall be permitted in the Shopping Center; provided,
however, to the extent permitted by applicable governmental authorities,each Parcel may have no
more than one(1) monument sign.
(b) No Other Signs. There shall be no other signs in the Shopping Center,except
directional signs,traffic signs, employee parking signs, handicap parking signs, signs on buildings
and signs required by applicable governmental laws, rules,ordinances and regulations. All exterior
building signs on each Parcel shall be restricted to identification of the businesses or services located
or provided therein. No exterior building sign shall be placed on penthouse walls, extend above the
building roof or be painted on the exterior building surfhce. No exterior building or free-standing
sign shall utilize flashing,moving or audible lights or appurtenances.
4.4 Protection of Common Areas. Each Owner and Prime Lessee shall have the right
to take such steps as it deems necessary to prevent those persons not authorized by this Declaration
to use the Common Area from using the Common Area for ingress, egress, parking, or any other
purpose. Such steps shall include,without limitation,the construction of fences,walls or barricades
along the boundary lines Of any'portion of the Shopping Center except along the common boundary
line of any Parcel with any other Parcel;provided,however,that any impairment of access to or from
the Shopping Center, or any part thereof, shall require the Consenting Owners' prior written
approval, which may be withheld in such Consenting Owner's sole and absolute discretion.
•
28
4.5 Outside Sales/Playground Area. No portion of the Common Area, except
sidewalks, shall be used for the sale or display of merchandise;provided, however,that(a)the sale
of merchandise by the Owner or occupant cf a Parcel shall be permitted from the Common Area
located on such Parcel subject to the following restrictions: (i) the Common Area shall be promptly
restored to its condition immediately prior to said sale at the sole cost and expense of the Owner or
occupant of the applicable Parcel,(ii)sales shall not unreasonably interfere with the free movement
of vehicular traffic within the Shopping Center or with access to or from the Shopping Center,or any
part thereof, and shall not be located on any Permanent Service Drive, (iii) except with respect to
the operation of a Gas Station(defined later)on Parcel 2, such use shall not exceed ninety(90)days
in any calendar year, and (iv)with respect to Parcels 2, 3, 4, 5 and 6,such sales area shall not be
located within any Building Setback Area(provided, however,that if Parcel 2 is not developed as
an Outparcel, the alternate one hundred foot Building Setback Areas set forth in Section 2.1 shall
apply to such Outparcel).
Notwithstanding anything contained herein to the contrary, the Owner of Parcel 6 shall be
permitted to use the Common Area on Parcel 6 for an outdoor playground area in connection with
the operation of a child care facility or preschool; provided, however that (i) such area shall be
completely enclosed by fencing and shall be contiguous to the building constructed on Parcel 6, (ii)
such area shall in no event encroach onto the sixty(60) foot Building Setback Area along Hazel Dell
Road,(iii) any such area shall comply with all applicable governmental laws, rules,ordinances and
regulations, and (iv) Parcel 6 shall otherwise comply with the requirements of this Declaration.
4.6 Prohibited Activities. Picketing and distribution of pamphlets, handbills or similar
materials within the Shopping Center shall be prohibited.
29
, .
4.7 Maintenance Standards. Commencing on the date American Partners first opens
its building on Parcel 1 for business,each Owner shall at such Owner's sole cost and expense, except
as hereinafter provided(or as may othemise be provided in a separate agreement between Owners),
maintain the Common Area and Service Facilities on such Owner's Parcel at all times in good and
clean condition and repair, said maintenance to include,without limitation,the following:
(a) Maintaining, repairing and resurfacing, when necessary, all paved
surfaces in a level, smooth and evenly covered condition with the type of surfacing material
originally installed or such substitute as shall in all respects be equal or superior in quality,
use and durability; and re-striping,when necessary;
(b) Removing all snow, papers, debris, filth and refuse and thoroughly
sweeping the area to the extent reasonably necessary to keep the area in a clean and orderly
condition;
(c) Maintaining, repairing and replacing, when necessary, all traffic
directional signs, markers and lines and any monument signs permitted hereunder,
(d) Operating,maintaining,repairing and replacing,when necessary,such
artificial lighting facilities as shall be reasonably required (except for the "After Hours
Lighting" described in Article 4.8 below);
(e) Maintaining all landscaped areas(including,without limitation,those
on the perimeter of the Shopping Center); maintaining, repairing and replacing, when
necessary, automatic sprinkler systems. and water lines; and replacing shrubs and other
landscaping as is necessary;
30
•
(f) Maintaining,repairing and replacing,when neces. ary, all Common
Area walls(including,without limitation,all fences,walls or barricades constructed pursuant
to Section 4.4 of this Declaration);
(g) Maintaining,repairing and replacing,when necessary,all storm drains,
drainage, detention and retention facilities, sewers and other utility lines and facilities not
dedicated to the public or conveyed to any public or private utility which.are necessary for
the operation of the buildings and improvements located in the Shopping Center,
•
(h) intentionally omitted;
(i) intentionally omitted; and
(j) Performing itself or contracting with a third party or parties to perform
any of the services described herein;provided,however,that each Owner,with respect to the
Common Area located on such Owner's Parcel, shall remain responsible and viable for the
performance of all of said services in accordance with the terms of this Agreement and for
the performance of any such third party or parties under any such contract or contracts.
•
Notwithstanding anything contained herein to the contrary, (i) the Owner of Parcel 4 shall
maintain the Flood Plain and the Permanent Service Drive on Parcel 3 in accordance with
the standards set forth in this Section 4.7 at such Owner's sole cost subject to reimbursement
as provided in Section 4.10 and (ii) prior to the opening of any business on Parcels 2, 3 or
4, the Owner of Parcel 1 shall have the right, but not the obligation, to maintain the
Permanent Service Drives located on Parcels 1 and 3 at the Owner of Parcel l's sole cost
subject, however, to the terms of Section 4.10.
31
•
•
4.8 Lighting Standards. It is agreed that the artificial lighting for the Permanent Service
Drives shall remain on while a majority of the businesses in the Shopping Center are open
for business. If artificial lighting for a torte•later than the foregoing ("After FltmrS
Lighting") is needed by any Owners or occupants,then such artificial lights to service such
Owners or occupants shall be separately metered or otherwise measured or reasonably
estimated and all expenses thereof shall be paid by such Owners or occupants to the extent
appropriate. Such Owners or occupants shall pay a reduced proportion of the expense of
lighting the balance of the Common Area according to the extent to which such Owners or
occupants are lighting the Common Area by separately metered lights. Except as otherwise
provided above, artificial,lighting on a Parcel shall remain on while a rr.ajority of businesses
on such Parcel are open for business.
4.9 Taxes. Each Owner shall pay direct to the tax collector when due the real property
taxes and other special taxes and assessments assessed against the Owner's Parcel, including
the portion of the Common Area on such Owner's Parcel; subject, however, to the right of
any such Qwner to contest the amount or validity of all or any part of said taxes and
assessments.
•
4.10 Reimbursement of Permanent Service Drive and Flood Plain Maintenance.
(a) Except as otherwise expressly provided. in this Agreement, each
Owner shall bear its own costs for any maintenance, repair or replacement obligations set
forth in this Article 4.
(b) Subject to the following terms and conditions, (i) the Owners of
Parcels *I, 2 and 3 shall reimburse the Owner of Parcel 4 such contributing Owner's
32
•
respective share of costs and expenses for the repair, replacement and maintenance of the
Permanent Service Drive on Parcel 3 and (ii) the Owners of Parcels 2, 3 and 4 shall
reimburse the Owner of Parcel 1 such contributing Owner's respective share of costs and
expenses for the repair, replacement and maintenance of the Permanent Service Drive on
Parcel 1. An Owner's share means the percentage share of the maintaining Owner's out-of-
pocket costs and expenses incurred in connection with the maintenance, repair and
replacement of such areas.The percentage contributions shall be as :ollows: Parcel 1: 3(2°
Parcels 2, 3 and 4: 70%.The obligation to contribute for Parcels 2,3 and 4 shall be joint and
several; 1..rovided, by separate written duly recorded agreement,the Owners of Parcels 2, 3
"nd 4 may allocate such 70% share among such Parcels so long as (i) the aggregate
percentage contribution remains 70%, (ii)such agreement is recorded against the Shopping
Center and (iii)the Owners of Parcels 2,3 and 4 provide notice of such agreement (together
with a copy thercot) to all other Owners.
(c) Subject to the following terms and co.ndit.ons, the Owners of Parcels 1, 2, 3,
5, and 6 shall reimburse the Owner of Parcel 4 such contributing Owner's respective share
of costs and expenses for the maintenance, repair and replacement of the Flood Plain. An
Owner's share shall mean the percentage share of the Owner of Parcel 4's out-of-pocket costs
and expenses incurred in connection with the repair, replacement and maintenance of the
Flood Plain(excluding the repair,replacement and maintenance of any bridge and/or pedway
in the' :od Flain).The percentage contributions shall be as follows: Parcel 1: 13%: Parcel
2: 15%; Parcel 3: 9%; Parcel 4: 36%; Parcel 5: 15%; Parcel 6:12%.
(d) The reimbursement obligations hereunder for each Owner shall commence
(i) with respect to Permanent Service Drive obligations, upon the substantial completion of
the General Common Area Improvements on any of Parcels 1,2,3 or 4 an (ii)with respect
33
to Flood Plain obligations, upon the substantial completion of the General Common Area
Improvements on any Parcel. An Owner entitled to reimbursement hereunder("Performing
Owner")shall, from time to time,but not more often than quarterly,nor less frequently than
annually,send to the other Owners obligated to reimburse the Performing Owner hereunder
("Contributing Owners")a written statement of the total costs and expenses reimbursable
hereunder for the period of the preceding quarterly or other applicable period. All such
written billing statements shall be accompanied by copies of invoices,payment applications
and other reasonable evidence of all costs. In no event shall any amounts due and payable
to the Performing Owner for such costs and expenses hereunder be based on amounts
expended for real property taxes, liability insurance, administrative fees and overhead
expenses or any single expenditure in excess of Two Thousand Five Hundred Dollars unless
previously approved by the Consenting Owners, which approval shall not be unreasonably
withheld; provided, however that the Performing Owner shall be permitted to charge a
management fee not to exceed ten percent (10%) of such reimbursable costs. Within thirty
(30) days after receipt of such statement, each Contributing Owner shall pay to the
Performing Owner the Contributing Owner's proportionate share of such costs. The failure
of the Performing Owner to include any expenditure in a statement to the Contributing
Owners within twelve(12)months after the end of the calendar year following the date of
such expenditure shall be deemed a waiver by the Performing Owner of its right to demand
payment by the Contributing Owners for the proportionate share thereof. Amounts owing
pursuant to this Article, if not paid when due, shall accrue interest at the Default Rate
(defined below) from the date due until the date of payment.
(e) The Owner of any Parcel,or its authorized representative,shall have the right
to examine the records of expenses in connection therewith at reasonable business hours, no
34
•
more than once with respect to any calendar year and no later than three(3) years following
the end of any such calendar year. If said inspection reveals an overpayment of charges
hereunder, the Performing Owner receiving such overpayment shall reimburse the
Contributing Owners their respective proportionate share of any such overpayment within
thirty (30) days after receipt of notice of determination, and of the amount, of such
overpayment. If said inspection reveals an underpayment of charges hereunder(excluding
all expenses for which a statement was not timely submitted pursuant to Section 4.10(d)
above), the Contributing Owners shall reimburse the Perfon_.ing Owner their respective
proportionate share of any such underpayment within thirty(30)days after receipt of proper
billing in accordance with Section 4.10(d). If said inspection reveals that the Performing
Owner misstated such expenses by more than five percent(5%), the Performing Owner
shall reimburse the person making such inspection for all costs reasonably incurred in
making such inspection within thirty(30) days after receipt of notice of deterr,;ination, and
of the amount, of any such misstatement.
(f) . Notwithstanding anything contained in this Article 4 to the contrary, each
Owner shall perform and pay for all repairs,replacements and maintenance caused by such
Owner's misuse of the applicable GcnPral Common Area Improvements or by its willful or
negligent misconduct, including but not limited to the removal of debris from, or damage
caused by, construction activities.
5. USE RESTRICTIONS
5.1 Pharmacy Restrictions. No part of the Shopping Center(other than Parcel 1) shall
be used or occupied as a drug store, nor used for the sale of any of{he following: (1) liquor
or other alcoholic beverages in package form, including,but not limited to,beer, wine and
35
•
ale; and(2) items requiring dispensation by or through a pharmacy or requiring dispensation
by or through a registered or licensed pharmacist.
5.2 General Restrictions.
(a) Retail Use Restrictlonl. No part of Parcels 2, 3,or'4 shall be used for any
purpose other than for retail sales,retail services,offices or restaurants. Without limiting the
foregoing, no part of Parcels 2, 3, or 4 shall be used for an automotive body(or exterior)
maintenance or repair facility (excluding from this prohibition (i) the repair or service of
automotive mechanical or electrical systems [such as engine and drive train repair and
service} in connection with the operation of a Gas Station and (ii) car wash facilities
otherwise permitted hereunder), a second hand or surplus store,or for any entertainment or
recreational facility or training or educational fvzility;provided however,that a gym, health
spa or studio shall be permitted on Parcel 4 and a training center in connection with a retail
use(for example,computer training classes in connection with a retail computer store) shall
be permitted on Parcel 4. For the purpose of this Declaration,the phrase"entertainment or
recreational facility" shall include,without Iimitation,a theater,bowling alley,skating rink,
gym, health spa or studio,-dance hall,billiard or pool hall,-massage parlor, game parlor or
video arcade(which shall be defined as any store containing more than four [41 electronic
gamni). The phrase"training or educational facility" shall include, without limitation, a
beauty school, barber college, reading room, place of instruction or any other operation
catering primarily to students or trainees as opposed to customers. No part of Parccl 1, 2,
or 4 shall be used for a child care facility or pre-school. No part of Parcels 5 or 6 shall be
used for an automotive maintenance or repair facility, a second hand or surplus store, or a
theater, bowling alley, skating rink, massage parlor, game parlor or vide-) arcade (which
shall be defined as any store containing more than four[4] electronic garnets).
36
(b) Special Use Restriction& No part of the Shopping Center shall be used as
a bar, tavern, cocktail lounge, adult book or adult video store, hotel, motel, warehouse,
animal kennel, mobile home park or trailer court; for the renting, leasing or selling of or
displaying for the purpose of renting, leasing or selling of any boat,motor vehicle or trailer;
or for industrial purposes; or for any bankruptcy sales or going out of business sales;
provided, however, that a permitted restaurant which is primarily devoted to the sale of food
for on-premises consumption may contain a bar or tavern so long as such bar or tavern
occupies less than thirty-five percent (35%)of the Floor Area occupied by such restaurant.
No part of the Shopping Center except Parcels 1, 5 and 5 shall be atsed as a car wash;
provided, however, that a car wash shall be permitted on either Parcel 2 or Parcel 3 (but not
both Parcels at any one time) so Iong as(i)such car wash is not located within the Building
Setback Area on Parcel 2 or Parcel 3, as the case may be, (ii)vehicle stacking for such use
shall be located.entirely and exclusively on Parcel 2 or Parcel 3, as the case may be, (iii) no
vehicle stacking shall be permitted on any Permanent Service Drive, and (iv) no less than
stacking for five(5) automobiles shall be provided.
5.3 Location Restrictions. No part of Parcel 2 shall be used as a restaurant;provided,
however, that such uses [excluding fast food or carry-out restaurants having seating for not
more than 40 customers)shall be permitted so lone as the aggregat' -1 pc r Area of all such
uses does not exceed four thousand five hundred (4,500) square fet...
5.4 Driveup and Drive Through Facilities. No vehicular driveup or drive through
customer service facilities shall be located in the Shopping Center(except on Parcels 1, 5 and
5 ); provided,however,that drive-up facilities in connection with a permitted car wash on
Parcel 2 or Parcel 3 shall be permitted subject to Section 5.2(b); and further provided that
drive-up facilities shall otherwise be permitted on Parcel 2, 3 and 4 so long as (i) such
37
- _ _
facilities are not located within any Building setback Area, (ii) vehicle stacking for such
facilities shall be located entirely and exclusively on the Parcel served by such facilities, (iii)
no vehicle stacking shall be permitted on any Permanent Service Drive, and (iv) no less than
stacking for five(5) automobiles shall be provided on the Parcel served by such facilities.
5.5 Mall Restrictions. There shall be no enclosed malls in the Shopping Certet Mess
the Consenting Owners have first given their written approval, which shaft not 'o'e
unreasonably withheld,to the location of the entrance to such mall.
5.6 Hazardous Materials. No Owner or occupant shall use or permit the use, handlirw,
generation, storage, release,disposal or transportation of Hazardous Materials on, about¢r
under its Parcel except in the ordinary course of its business and in compliance with all
Environmental Laws.
5.7 Fuel Center Restrictions. No part of the Shopping Center(other than Parcel 2? shall
be used for the sale of gasoline for the fueling•of automobiles, trucks and other velniclls
powered by internal combustion engines("Gas Station");provided, however, that so long
as Parcel I is not used or occupied as a Gas Station,the Owner or occupant of Parcel I shall
have the right to store, use, sell and/or provide any item or service on or from the Parcel 1,
and engage in any activity on the Parcel 1, which the Owner of Parcel 1 or the occupant
thereof or any affiliate of such Owner or occupant customarily stores, uses, sells, provides
or engages in at any of their other locations (including but not limited to the sale of
automotive parts, supplies and oil).
38
6. CASUALTY AND CONDEMNATION
•
6.1 Casualty. If all or any portion of any building in the Shopping Center is damaged
or destroyed by fire or other casualty,the Owner of such building shall promptly restore or
cause to be restored the remaining portion of such building or, in lieu thereof, shall remove
the damaged portion of such building together with all rubble and debris related thereto. All
Building Areas on which buildings are not reconstructed following a casushy shall be graded
or caused to be graded by the Owner thereof to the level of the adjoining property and in
such a manner as not to adversely affect the drainage of the Shopping Center e r any portion
thereof,shall be kept mowed or otherwise weed-free and clean at the Owner's sole cost and
expense until buildings are reconstructed thereon.
6.2 Condemnation.
(a) J3uildinE Restoration. If all or any portion of any building in the Shopping
Center is taken or damaged as a result of the exercise of the power of eminent domain or any
transfer in'lieu thereof("Condemnation"), the Owner of such building shall have the same
obligations with respect to restoration or removal of the building and Building Area as are
set forth in Section 6.1.
•
(b) Allocation of Award. If all or any portion of any Parcel in the Shopping
Center is taken or damaged as a result of a Condemnation ("Condemned Parcel"), the
Owner of the Condemned Parcel shall be entitled to the entire award or purchase price paid
for the Condemned Parcel;provided,however, that nothing contained herein shall affect any
other person's right to seek severance damages for i's Parcel, provided the award of such
severance damages does not reduce or diminish the amount which would otherwise be p: d
39
to the Owner of the Condemned Parcel. The Owner of the Condemned Parcel shall restore
or cause to be restored the remaining portion of the Condemned Parcel as near as practicable
to(i)the condition immediately prior to such Condemnation or(ii)otherwise to a condition
meeting all requirements of this Declaration,but in either case,to the extent,but only to the
extent,of any condemnation proceeds allocated by the court or condemning party,as the case
may be,to such restoration and actually received by the Owner of the Condeanaeo'
Any restoration of the Condemned Parcel which involves a change in the configuration of
the Common Area or the sizes and arrangements thereof from that shown on Exhibit "A"
shall require the Consenting Owners'prior written approval..Notwithstanding the above,this
Section 6.2 is not intended to and shall not alter the allocation of any award between the
Owner of a Condemned Parcel and any tenant of such Condemned Parcel pursuant to the
terms of any lease or other agreement between the parties.
•
•
40
7. INDEMNIFICATION AND INSURANCE
7.1 Indemnification. Each Owner shall indemnify, defend and hold harmless the other
Owners and occupants of the Shopping Center from any and all liabilities, claims, damages,
expenses(including,without limitation,reasonable attorney's fees and reasonable attorney's
fees on any appeal),judgments, proceedings, and causes of action of any kind whatsoever
for injury to or death of any person or damage to or destruction of any property (i) resulting
from the willful or negligent act or omission of the indemnifying Owner or (ii)occurring in,
on or about the Common Areas of the indemnifying Owner and arising out of the
performance or nonperformance of any of the obligations of the indemnifying Owner set
forth in Section 4, unless-caused by the negligent or willful act or omission of the
indemnified person, its agents, contractors or employees.
7.2 Insurance. Each Owner shall provide and maintain, at such Owner's sole co-;t,
comprehensive general liability insurance with broad form coverage endorsement(including
broad form property damage endorsement) insuring such Owner against claims for rersonal
injury,bodily injury or death, and property damage or destruction,occurring in,on o, bout
the Common Area. Such insurance shall be written with an insurer licensed to do business
in the state in which the Shopping Center is located and First Party, American Partners, and
all persons who now or hereafter own or hold portions of the Shopping Center or building
space within the Shopping Center or any leasehold estate or other interest therein as their
respective interests may appear(provided that the applicable Owner is notified in writing of
such interest)shall be named on the policy as additional insureds. The limits of liability of
all such insurance shall be not less than$2,00'x,000 for personal injury or bodily injury or
41
•
•
death of any one person, $2,000,000 for personal injury or bodily injury or death of more
than one person in one occurrence and$500,000 with respect to damage to or destruction of
property; or, in lieu of such coverage, a combined single limit (covering personal injury,
bodily injury or death and property damage or destruction) with a limit of not less t;tan
$2,000,000 per occurrence. Each Owner shall furnish the other Owner's, upon written
request, with certificates evidencing such insurance. The policies of such ir. -ranee snail
provide that the insurance represented by such certificates shall not be canceled,materially
changed or non-renewed without the giving of thirty (30) days' prior written notice to the
holders of such insurance and the hold•:s of such certificates. The insurance which an
Owner is required to maintain hereunder may be provided under a blanket policy provided
such policy otherwise complies with the requirements of this Declaration. So long as an
Owner has a net worth, determined in accordance with generally accrpted accounting
principles, in excess of$100,000,000.00, all or any part of such insurance carried by such
Owner may be provided under a program of self-insurance.
8. GENERAL PROVISIONS
8.1 Covenants Run With the Land. Each Restriction on each Parcel shall be a burden
on that Parcel, shall be appurtenant to and for the benefit of the other Parcels and each part
thereof and shall run with the land; provided,however,to the extent this Declaration creates
obligations, covenants,conditions, easements and/or restrictions exclusively and expressly
buru.-ning only Parcels.1, 2, 3 and/or 4, such provisions shall not be deemed to benefit or
burden Parcels 5 or 6 or the Owners thereof and shall not be enforceable by such Owners.
By way of example and not limitation, Section 3.1 (Ingress Egress easement) is not
enforceable by the Owners of Parcels 5 or 6. Notwithstanding the foregoing, the Restrictions
in Section 5.1 shall hr. ;;oipurtenant to and for the benefit of only Parcel 1 and each part
42
•
thereof and may be waived in writing only by the Owner and Prime Lessee of Parcel 1
without the joinder of any other person.
3.2 Successors and Assigns.
(a) J nits.. •A This Declaration and the Restrictions created hereby shall
inure to the benefit of and be binding upon the Owners,their heirs, successors,assigns and
personal representatives,and upon any person acquiring a Parcel, or any portion thereat',or
any interest therein, whether by operation of law or otherwise; provided, however, tvtluL
extent this Declaration creates obligations, covenants; conditions, easements auikar
exclusively and expressly burdening only Parcels 1, 2, 3 and/or 4, such provisions shall nut
be deemed to benefit or.burden Parcels 5 or 6 or the Owners thereof and shall not be
enforceable by such Owners. Notwithstanding the foregoing, if any Owner sells or transfers
all or any portion of its interest in any Parcel, such Owner shall, upon delivery of the
Transfer Notice(as defined in subparagraph [b]1,Plow),be released and discharged from all
of its obligations as Owner in connection with the property sold by it arising under t]ms
Declaration after the sale and conveyance of title but shall remain liable for all obligations
arising under this Declaration prior to the sale and conveyance of title. The new Owner of
f (including, without limitation, any Owner [or
any such Parcel or any p ortion thereof
Lienholder] who acquires its interect by foreclosure, trustee's sale or otherwise) shall be
liable for all obligations arising under this Declaration with respect to such Parcel or portion
thereof after the date of sale and conveyance of title.
(b) Illtaikr-Natitt. An Owner selling or transferring all or any portion of its
interest in any Parcel shall give prior written notice thereof to `all other Owners in the
Shopping ping Center ("Transfer Notice"), which Transfer Notice shall include at least the
P
43
• •
following information: (i) the name, current address and current phone number of the
transferor, (ii) the name, current address and current phone number of thc transferee, and
(iii) a copy of the legal description of the portion of the Parcel or interest sold or transferred.
8.3 Duration. Except as hereinafter provided, the term of this Declaration shall be for
a period of sixty-five(65)years("Primary Period")from the date hereo[ Notwithstanding
the foregoing, upon the expiration'of the Primary Period, the term of tiles t3eclaratioa
shall
automatically renew for successive periods of ten (10)years each (each such permed being
referred to as an "Extension Period") unless, at least ninety (90) days prior to the late of
expiration of the Primary Period or Extension Period then in effect, the Owner of?$nel 1
delivers to the other Owners in the Shopping Center written notice of termination, in which
event, the Declaration shall automatically expire at the end of the Pr'nary Period or
Extension Period then in effect.
8.4 Injunctive Relief. In the event of any violation or threatened violation by any person
of any of the Restrictions, any or all of the Owners and Prime Lessees cf the property
included within the Shopping Center shall have the right to enjoin such violation or
threatened violation in a court of competent jurisdiction. The right of injunction shall be in
addition to all other remedies set forth•in this Declaration or provided by law.
8.5 Modification and Termination. This.Declaration may not be modified in any
respect whatsoever or terminated, in whole or in part, except with the consent of the Owners
and Prime Lessees of the Parcels containing ninety percent(90%)of the total square footage
of Building Area in the Shopping p Center(which shall, in any event, include the Owner of
Parcel 1 and the Owner of Parcel 4),and then only by written instrument duly executed and
acknowledged by all of the required Owners and Prime Lessees and recorded in the office
44
--
•
•
of the recorder of the county in which the Shopping Center is located ;provided,however that
any modification of this Declaration which purports to materially increase the obligations
of an Owner hereunder or materially impair an Owner's rights hereunder shall not be
effective with respect to such Owner unless such Owner joins in such modification. No
modification or termination of this Declaration shall affect the rights of any Lienholder
unless the Licnholder consents in writing to the modification or termination.
8.6 Method of Approval. Whenever the consent or approval of any Owner is rewired,
s""ch consent or approval shall be exercised only in the following manner. Each Parcae slhaIl
have only one (1) vote. The Owners (if consisting of more than one [1] person) of each
Parcel shall agree among themselves and designate in writing to the Owners and Pirne
Lessees of each of the other Parcels a single person who is entitled to cast the vote for fiat
Parcel. If the Owners of any such Parcel cannot agree who shall be entitled to cast the single
vote of that Parcel,or if the Owners fail to designate the single person who is entitled to rast
the vote for that Parcel within thirty (30) days after receipt of request for same from any
other Owner or Prime Lessee, then that Parcel shall not be entitled to vote. In the event a
Parcel is not entitled to vote, its consent or approval shall not be necessary and the total
square footage of Building Area located on said Parcel shall be disregarded for the purpose
of computing the percentage requirement set forth in Section 8.5. Except as otherwise set
forth in Section 8.5, in the event an Owner sells its Parcel and becomes the Prime Lessee
thereon, said Prime Lessee is hereby appointed the entity to cast the vote or give the consent
for said Parcel on behalf of the Owner thereof and is hereby granted all of the rights amid
remedies granted to the Owner of said Parcel so long as it is the Prime Lessee of said Parcel,
anything in this Declaration to the contrary notwithstanding.
45
•
8.7
Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or
dedication of any portion of the Shopping Center to the general public or for the general
public or for any public purpose whatsoever, it being the intention of the parties that this
Declaration shall be strictly limited to and for the purposes herein expressed.
8.8 Breach Shall Not Permit Termination. It is expressly agreed that no breach of this
Declaration shall entitle any Owner to terminate this Declaration,but such limitation sbal I
not affect in any manner any other rights or remedies which such Owner may have hereunder
by reason of any breach of this Declaration. Any breach of this Declaration shall not defeat
or render invalid the lien of any mortgage or deed of trust made in good faith for value, but
this Declaration shall be binding upon and be effective against any Owner whose title is
acquired by foreclosure,trustee's sale or otherwise.
8,9 Default.
(a) Failure to Perform. A person*shall be deemed to be in default of this
Declaration only upon the expiration of thirty (30)days(ten[l0] days in the event of failure
P
to pay money)
from receipt of written notice from any Owner or Prime Lessee specifying the
particulars in which such person has failed to perform the obligations of this Declaration
unless such person,prior to the expiration of said thirty(30)days(ten [10] days in the event
of failure to pay money), has rectified the particulars specified in said notice of default.
However, such person shall not be deemed to be in default if such failure(except a failure
to ay money)cannot be rectified within said thirty(30)day period and such person is using
P
particulars articulars specified in the notice of default.
good faith and its best efforts to rectify
46
(b) Failure to Pay.In the event any Owner fails or refuses to pay when due any
amount due and payable hereunder,which failure continues for a period of ten(101 days after
receipt of written notice thereof,such failure shall constitute a default and legal action tr,
thereafter be instituted against the defaulting Owner by the party entitled to payment of such
sum("Curing Party") for reimbursement plus interest from and after the date said bill was
due and payable to and including the date said bill is paid at a rate equal to the lesser of
(i)the highest rate allowed by law,and(ii)the rate two percent(2%)above tbereface=rate
of interest charged from time to time to corporate borrowers of the highest credit standard
by Bank One, N.A. (the lesser rate being hereinafter referred to as the "Default Rate").
Furthermore, the Curing Party shall have a lien on the Parcel of the defaulting Owner for the
amount of said expenses plus accrued interest as set forth above; provided, however, that if
there be a bona fide dispute as to the existence of such default or of the amount due and all
undisputed amounts are paid, there shall be no right to place a lien on such Owner's Parcel
until such dispute is settled by final court decree or mutual agreement.
(c). Failure To Pay Taxes. In the event an Owner fails to pay when due all taxes
and assessments described in Article 4 above,which failure continues for a period of ten(10)
days after receipt of written notice thereof, such failure shall constitute a default and any
other Owner or Prime Lessee("Curing Owner")may thereafter pay such taxes if such taxes
are delinquent and the owing Owner has not commenced and is not duly prosecuting any
contest of such taxes. The Curing Owner shall then bill the defaulting Owner for the
expenses incurred. The defaulting Owner shall have fifteen (15)days within which to pay
the bill. If the defaulting Owner does not so pay, the Curing Owner shall have a lien on the
Parcel of the defaulting Owner for the amount of the bill, which amount shall bear interest
at the Default Rate from the date of expiration of said fifteen (15) day period until paid;
47
•
provided,however,that if there be a bona fide dispute as to the existence of such default or
of the amount due and all undisputed amounts are paid, there shall be no right to place a lien
on such Owner's Parcel until such dispute is settled by final court decree or mutual
agreement.
(d) Lien Rights.The lien provided for in.Article 8.9 above shall only be effective
when filed for record by the Curing Owner or Curing Party as a claim of lien against the
defaulting Owner in the office of the recorder of the county in which the Shopping Center
is located, signed and verified, which shall contain at least (a)An itemized statement of all
amounts due and payable pursuant hereto; (b) A description sufficient for identification of
that portion of the real property of the defaulting Owner which is the subject of the lien; (c)
The name of the Owner or reputed Owner of the property which is the subject of the lien; and
(d)The name and address of the Curing Owner or Curing Party.The lien,when so established
against the real property described in the lien, shall be prior and superior to any right, title,
interest, lien or claim which may be or has been acquired or attached to such real property
after the time of filing the lien. The lien shall be for the use and benefit of the person curing
the default of the defaulting Owner and may be enforced and foreclosed in a suit or action
brought in any court of competent jurisdiction.
8.10 Notices.
•
(a) pellvery. All notices given pursuant to this Declaration shall be in writing
and shall be given by personal service, by United States mail or by United States express
mail or other established express delivery service such as Federal Express), postage or
prepaid, return receipt requested, addressed to the appropriate party at the
delivery charge prep
address set forth below(or, if a Transfer Notice has been given, to the person designated in
48
the Transfer Notice). If a notice must be given to a person other than one designated below
or in a Transfer Notice,such notice shall be sent to the person and address shown on the then
current real property tax rolls of the county in which the Shopping Center is located. All
notices to First Party or American Partners shall be sent•to the appropriate party at the
address set forth below:
First Party: c/o Olympia Partners, Ltd.
320 North Meridian Street, Suite 700
Indianapolis, IN 46204
•
•
American Partners: do Albertson's, Inc.
250 Parkcenter Boulevard
P.O.Box 20
Boise,ID 33726
Attention: Legal Department(#50AD)
The person and address to which notices are to be given may be changed at any time by any ply
upon written notice to the other party. All notices given pursuant to this Declaration shall be daaazcd
given upon receipt.
(b) Receipt. For the purpose of this Declaration,the term "receipt" shall mean
the earlier of any of the following: (i) the date of delivery of the notice or other document to the
address specified pursuant to subparagraph(a)above as shown on the return receipt,(ii) the date of
actual receipt of the notice or other document by the person or entity specified pursuant to
subparagraph (a) above, or(iii) in the case of refusal to accept delivery or inability to deliver the
notice or other document, the earlier of(A) the date of the attempted delivery or refusal to accept
delivery, (B) the date of the postmark on the return receipt, or(C) the date of receipt of notice of
refusal or notice of non-delivery by the sending party.
49
8.11 Waiver. The failure of a person to insist upon strict performance of any of the
Restrictions contained herein shall not be deemed a waiver of any rights or remedies that said person
may have, and shall not be deemed a waiver of any subsequent breach or default in the performance
of any of the Restrictions contained h.. ein by the same or any ot:ier person.
8.12 Attorney's Fees. In the event any Owner initiates or defends any legal action or
proceeding in any way connected with this Declaration, the prevailing party in any such action or
proceeding in addition to any other relief which may be granted, v:nether legal or equitable), sloll
be entitIcd to recover from the losing party in any such action or proceeding its reasonable costs and
attorney's fees(including,without limitation, its reasonable costs and attorney's fees on any appeal).
All such costs and attorney's fees shall be deemed to have accrued on commencement of any legal
action or proceeding and shall be enforceable whether or not such legal action or proceeding is
prosecuted to judgment.
8.13 Sale & Sale-leaseback Purchaser. Notwithstanding anything to the contrary
contained in this Declaration, it is expressly agreed that in the event an Owner sells its Parcel
(whether or not such sale includes buildings and/or Common Area improvements located thereon)
to an unaffiliated third party and thereafter enters into a lease(including a ground lease or building
lease) for such Parcel with such third party or its lessee er sublessee (hereinafter referred to
collectively as the "Prime Leeasor"), so long as said Owner is in possession of the property as a
Prime Lessee the parties hereto shall look solely to said Prime Lessee (and said Prime Lessee shall
be liable therefor)for the perforniance of any obligations either the Prime Lessee or the Prime Lessor
shall have under this Declaration and the Prime Lessor shall be relieved of any obligation for the
performance of or liability for the Restrictions set forth herein relating to either the Prime Lessee or
its Parcel.
50
•
8.14 Severabiiity. If any term or provision of this Declaration or the application of it to
any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this
Declaration or the application of such term or provision to persons or circumstances,other than those
as to which it is invalid or unenforceable, shall not be affected thereby,and each term and provision
of this Declaration shall be valid and shall be enforced to the extent permitted by law.
8.15 Not a Partnership. The provisions of this Declaration are not intended to create,rwr
shall they be in any way interpreted or construed to create, a joint venture,partnership,or any other
similar relationship between the parties.
•
8.16 No Third Party Beneficiary Rights. This Declaration is not intended to create,nor
shall it be in any way interpreted or construed to create, any third party beneficiary rights in any
person not a party hereto.
8.17 Captions and Headings. The captions and headings in this Declaration are for
reference only ai1d shall not be deemed to define or limit the scope or intent of any of the terms.
covenants, conditions or agreements contained herein.
8.18 Entire Agreement. This Declaration contains the entire agreement between the
parties hereto and supersedes all prior agreements,oral or written,with respect to the subject matter
hereof. The provisions of this Declaration shall be construed as a whole and not strictly for or
against any party.
8.19 Construction. In construing the provisions of this Declaration and whenever the
context so requires, the use of a gender shall include all other genders, the use of the singular shall
include the plural, and tree use of the plural shall include the singular.
51
- Jam• _ -_ _______ .. ._
•
8.20 Joint and Several Obligniions. In the event any party hereto is composed of more
than one(1)person,the obligations of said party shall be joint and several.
8.21 Recording. This Declaration shall be recorded in the office of the recorder of the
county in w.Jch the Shopping Center is located.
8.22 Plat of Subdivision. First Party represents and warrants that on or about June 20,
2000, First Party obtained approval from the City of Carmel for the Primary Plat for Hazel Dell
Corner prepared by Th7: Schneider Corporation dated March 17, 2000 and identified as Job No.
904.60 ("Primary ?tat"). The Parties desire that the Shopping Center be subdivided in a manner
consistent with the Exhibit"A" attached hereto and the Primary Plat, and in connection therewith,
each Owner shall, at its sole cost,be responsible for obtaining the City of Carmel's approval of a
final or secondary plat for such Owner's Parcel in the Shopping Center. In connection with such plat
approvals,the Owners agree to cooperate with each other and to execute such other instruments and
documents reasonably necessary or desirable in connection therewith. Each Owner shall cause, at
such Owner's sole cost, the final plat of subdivision for such Owner's Parcel to be recorded with
the Recorder of Deeds of Hamilton County,Indiana. In no event shall any Owner have the right to
bind any other Owner to any covenant,condition or obligation in connection with any plat without
such other Owner joining in the execution of the instrument creating such covenant, condition or
obligation.
(SIGNATURE PAGE FOLLOWS)
•
EXECUTED as of the date first set forth above.
FIRST PARTY: AMERICAN PARTNERS:
AMERICAN PARTNERS,L.P.,
PLUM CREEK PARTNERS,LLC, an Indiana limited partnership
an Indiana limited liability company
By: American Drug Stores,Inc.,
an Illinois corporation,its general partner
J ' Vice Press ent
Bv. L. -�ys�GVW By: t tam . Arno
Name: � -��
Its:
List of Exhibits and Schedules:
Exhibit "A"-Site Plan
Exhibit "B"-Permanent Service Drive Specifications
Exhibit "C"-Building Design CI'teria
Schedule I- Description of the Shopping Center(must include separate legal description for each Parcel in the
Shopping Center]
Scnedule n -Description of Permanent Service Drive
it o s .. ./4 . .�� '. iy
.: Michael F. Smetana,MKS, Attorneys at
Law, 211 East Ontario Street, Suite 1450, Chicago, Illinois 60611.
•
• •
EXECUTED as of the date first set forth above. •
FIRST PARTY: AMERICAN PARTNERS:
PLUM CREEK PARTNERS,LLC, AMERICAN PARTNERS,L.P.,
an Indiana limited liability company
an Indiana limited partnership
By: American Drug Stores,Inc, et zl
Illinois corporation,its g pearrav
By: By. t lam '. Arno d, i ice •resint a )
Name:
Its:
List of Exhibits and Schedules:
Exhibit"A"-Site Plan —
Exhibit"B"-Permanent Service Drive Specifications
Exhibit"C"-Building Design Criteria
Schedule I- Description of the Shopping Center!must include separate legal description for each Parcel in the
Shopping Center)
Schedule El-Description of Permanent Service Drive
•
• : et g.-, • ,. s; e: Michael F. Smetana,
MKS Attorneys at
Law, 211 East.Ortario Street,Suite 1450, Chicago, Illinois 60611.
•
STATE OF IDAHO )
•
•
) ss.
COL,ITY OF ADA ) •On this_;LI1L.day of e ,2000,before me,the undersigned,
a Notary Public in and for said State,personally appeared William A. Arnold, to me known to be
Stores,Inc., a Delaware corporation, the general partner of
the Vice President, of American Drug
AMERICAN PARTNERS,LP.,an Indiana limited partnership,the partnership and corporation that
executed the foregoing instrument, and acknowledged to m�1 t the said��d Purpose free
therein
voluntary act and deed of said corporation and said partnership,
mentioned, and on oath stated that he is authorized to execute the said instrument.
WITNESS MY HAND and official seal hereto affixed the day,month and year in this
certificate first above written.
My commission expires:
•tom-
' Notary Public in and for the
TAIMA WIESE State of Idaho
NOTARY PUBLIC ' Idaho
STATE OF IDAHO Residing at ( ►' sl
•
•
•
•
t
STATE OF INDIANA )
) ss.
COUNTY OF IY l
day of , 2000, before me, the
On this ,�� , y sa State, personally appeared
. •trsibncd, a No • Public in and for �� —
to me'mown to be the ,,�^^° y"'`�$t executed the
of P ,I CREEK PARTNERS, LLC, the Indiana limited liability company
foregoing instrument,and acknowledged to me that the said instrument is the free and voluntary act
and deed of said limited liability company, for the uses and purposes therein mentioned, and on oath
stated that he is authorized to execute the said instrument.
WITNESS MY HAND and official seal hereto affixed the day,month and year in this
certificate first above written.
My commission expires: •
• Notary Public in and for the
State of ,....
•
Residing at J
2. : •'• wI �
Jj/J!J/JJJJ)!///7J%/J/J1JIJ/!JJ) { •
Denise L.Kirby �T .
>>, Notary Public.State f`
County Indiana' •j `,�
� Hendricks y CC1,y •
>: My Commission Exp. I I/03/2000 ,*h::..,••�
>/////F/,'••��/err////!/////I/J//////Ir
•
•
•
•
•
CONSENT AND SUBORDINATION
OF
NATIONAL CITY BANK OF INDIANA
The undersigned does hereby consent to this Declaration of Restrictions and Easements
("Declaration")by and between Plum Creek Partners, LLC, an Indiana limited liability company
and American Partners,L.P.,an Indiana limited partnership and agrees that the lien of that
certain Mortgage, Security.Agreement and Absolute Assignment of Rents and Leases dated
September 10, 1999 made by Plum Creek Partners, LLC, for the benefit of NATIONAL CITY
BANK OF INDIANA("Mortgagee")recorded on September 30, 1999 as Document No.
9909957376 with the Recorder of Hamilton County, Indiana, (such mortgage as amended or
modified from time to time,"Mortgage")together with the lien of all other documents securing
or evidencing the obligations referenced in the Mortgage shall be and remain subordinate to the
Declaration. The undersigned agrees that this Consent and Subordination shall be attached to the
Declaration and shall be recorded with Recorder of Hamilton County, Indiana.
IN WITNESS WHEREOF, this Consent and Subordination is executed as of the date first
above written.
•
MORTAGEE:
NATIONAL CITY BANK OF INDIANA,
an A-4: ^P/C./, .'J .J ••.?' .� -�,ti'
By:
. r"
lam —
Its: . . : f
•
STATE OF INDIANA ) •
: ss.
.
COUNTY OF_Mile.e.t )
•
On this__ --day of • , 2000, before me, the
undersigned, Notary Pub is in and for said S te,personally
the appeared �L ''
(... ,41‘,..k , to me known to
1, that executed the
of ATION CITY B OF INDIANA,the V : y
foregoing instrument, and acknowledged to me that the said instrument is the free and volltmtry
act and deed of said limited liability company, for the uses and purposes therein mentioned, and
on oath stated that he is authorized to execute the said instrument.
WITNESS MY HAND and official seal hereto affixed the day,month and year in this
certificate first above written.
My commission expires: _ t
.�,� S Ps.A Mildli'
Notary Public in and for the
State of .,.""""'
• Residing at ' ;; .. A -
r
NIJ 17JJJJJ)J1)JNJ))!!!)J 1( 1 . - i t
�, penile L.Kirby c
• >`,14 :MI
public.State oC Indiana;' \S County .
• ), Hendrick• 111(1317.0( 'c
>iM'
i i J;;m/N�/ ;i:..w,wat,.. .
••
•
.
. i 5
3 I
•
Exhibit A •
Site Plan
•
• armor
. _____......._....................._....} U _ MO n000►tt+a
w owes 1 HALEL DELL ROAD
C �•! 1 .���.�..= a
ma
11 '
1a1
..—.--, s Dear J_—_-
I l /•
/
—#—
r------lit —74/ — ..n.
, 14 ir---—if is carorM—---—i—.__T_—_. — _,;;;_..........
/ r
i
/
- = � rim ; 1 (I 1:83 AC / 0 . �v
. r 1.446AC r r f •
/
Yid • // i /
Al / J /
II L ___s_rise„....10._____ ___ ( / —,—,
•
•
If_ _ 1
'. it
s # I F
a
f R
DI/
' It
/
L _ ______ - _____
•
s ontr.r+
A
I 7 I 5
+ 6 5
7
•
. 1 ,0 1 n 1 ,i I u 1 :1 1 • I
• •,a.er uatr sore
•
"DON'T
. 014:3. EBLED'
sr
• •rra'THE LAW
1 _1161._11•_®w/ I.
. 1- 2
• ■ _ _t11C
S I• 04000.
.1u Ku••1004 wC
1 ••ea 10111•1 N 11 •10
14=oC 101 W 100
ASSAID t4CR1H am ow arms 0116
• SCALE: 1'165 '
•
.
. I
KO FICCOTAT
- c../ . •
•
•
. .
• � ,161,...•ti
0 c
r. I caviar.11 1 { 1 I i*nut•
/ 1 I
/ . 1 i .
a___F ..4_,..__e x 9 PARCEL 3 J ! y I �i PA1t3L 1 I
I• 2 1.31 AC 1 1 A I 1.69 AC ■� c
Yi • �Ia ,. -wII • • 1 Z
I 1 I 1
1 l .•..�a....Y !Y�fr16!1
-J I_ -�,__ J oow
ej ��aaa1r ( .to/..401 wsw MON.•..�m
107 ". �� /'•� �_
s 0116.10, m ( 4 1 =R°g rm�q+�a.�fr.+.cw+r •Y 16.10 ass•Y s 10..1 Ewa nu- .f Lr ' Sr�L7/..J CarPCiralkin
Ir r f I j -� imam
a : `� /1a1••1u '......war.+-.
RCEL 4 aI ti• ! iii��'w n. �+
.11 AC A C I PARCEL 2 Y
1.75 AC ............�....../.... •`....
le i W • >w CUR MINIM tic •
II I . HIM DU/=MR
- �_y_L_ • �� >AU_ _ -T_——
,„ •SOS _ 06/16/00 1 904 60 lam"'
Coops"MN 16.11 r
u4 sc :arr -.• l C11®Il
• 10 aw•ooww•••
„ I i 1 14 I 11 I 1) 1 1
_ _
__ _____ •
Exhibit B
Permanent Service Drive Specifications
•
•
30° BA(•X TO BACX
TS 136 a'
2' ROLL CURB
PROFILE GRADS 2' ROLL CURB
SLOPE I/4" PER FOOT MIN SLOPE 1/4' PER FOOT MIN
tst-h"3�sT��C'n"k�:,' "?kt i41:4s►t't.ft a' 11K3s14. ` '111444411,"!°s'�;'�:"�s"�...''11:i:.''i.i•�c.'31+...
• 1' /11 HAC SURFACE •
3' /9 HAC BINDER
PPE JW (T1P)
•PREPARED SUBCRAOE PER INDIANA DEPARTMENT E 11.14
S' /93 COMPACTED STONE BASE CF TRANSPORTATION SPECS. No. 207
TYPICAL STREET SECTION
•
y 411 t •
Exhibit C
•
Building Design Criteria
parcels 2.3 and 4.The exterior of each building on Parcels 2, 3 and 4 shall be
constructed of predominantly brick masonry and/or high quality metal finishes consistent with
the design of a first class shopping center(excluding, by way of example and not limitation, rust
finishes and corrugated metal finishes) and glass; exterior design elements shall not incorporate
any noxious design elements that are incompatible with the design of a first-class shopping
center, including by way of example and not limitation, the use of second hand or"junk"
materials in exterior design elements,the use,of"used"or"weathered"design finishes, the use
neon exterior finishes or turrets; and exterior signs shall not be of a flashing or neon variety.
Parcel 1. The exterior of each building on Parcel 1 shall be constructed of predominantly
brick masonry and glass; exterior design elements shall not incorporate any noxious design
elements that are incompatible with the design of a first-class shopping center, including by way
of example and not limitation, the use of second hand or"junk"materials in exterior design
elements, the use of"used"or"weathered"design finishes, the use neon exterior finishes or
turrets; and exterior signs shall not be of a flashing or neon variety.Nothing contained herein
shall be deemed to (i)require structural walls to be constructed of brick or(ii) prohibit so called
"tilt-up"or other construction techniques utilizing brick veneer or brick exterior finishes in front
of over or upon pre-cast concrete,block or other construction materials. For the purposes of
these Building Criteria,"brick veneer"means a brick-by-brick stacked surface located in front of
structural walls.
General. In the event any conflict between these Building Criteria and the require.ent of
any governmental entity,building code or other law, rule or regulation, such legal requirement
shall control and no Owner shall be deemed in violation of this Declaration as a result of
complying with any applicable legal requirement.
•
L
Schedule I
Shopping Center Legal Description
•
. LAND DESCRIPTION
• (LOT 1) • .
Part of the Northeast Quarter of Section Twenty-eight in Township Eighteen North, Range
Four East in Hamilton.County, Indiana, described as follows:
Commencing at the Southeast corner of said Northeast Quarter thence i+aorth 89 degrees
35 minutes 24 seconds West(assumed bearing) along the South line of saki northeast
Quarter a distance of 325.00 feet;.Ihence North 00 degrees 20 minutes 43 seconds East,
. parallel with the East line of said Northeast Quarter, a distance of 45.00 feetto the Point
of Beginning; thence continuing North 00 degrees 20 minutes 43 seconds East,parallel
with said East line, a distance of 285.00 feet; thence South 89 degrees 35 minutes 24
seconds East, parallel with said.South line, a distance of 265.00 feet; thence South 00
degrees 20 minutes 43 seconds West, parallel with said East line, a distance of 227.93
_ feet; thence South 46 degrees ,53 minctes 54 seconds West a distance of 8282 feet
thence North 89 degrees 35 minutes 24 seconds West, parallel with said South line, a
distance of 204.92 feet to the Beginning Point, containing 1.694 acres, more or less.
•
•
LAND DESCRIPTION.* •
(LOT 2) •
Part of the Northeast Quarter of Section Twenty-eight in Township Eighteen North, Range
Four East in Hamilton County, Indiana, described as follows:
Commencing at the Southeast corner of said Northeast Quarter thence North 89 degrees
35 minutes 24 seconds West (assumed bearing) along the.South line of said Northeast
Quarter a distance of 579.48 feet; thence North 00 degrees 20 minutes 43 seconds East,
parallel with the East line of said Northeast Quarter, a-distance of 45.00 feet to the Point
of Beginning; thence continuing North 00 degrees'20 minutes 43 seconds East, parallel
with said East line, a distance of 300.00 feat; thence South 89 degrees 35 minutes 24
seconds East, parallel with said South line, a distance of 254.48 feet; thence South 00
degrees 20 minutes 43 seconds West, parallel with said East line,.a distance of 300.00
feet; thence North 89 degrees 35 minutes 24 seconds West, parallel with said South line,
a distance of 254.48 feet to.the Beginning Point,.containing 1.753 acres, more or less.
•
+ Schedule I
Shopping Center Legal Description .•
LAND ES.CRIPTION
D ••
• (LOT 3) •
Part of the Northeast Quarter of Section Twenty-eight in Township Eighteen North, Range
Four East in Hamilton County, Indiana, described as follows:
Commencing at the Southeast corner of said Northeast Quarter;thence North 89 degrees
35 minutes 24 seconds West(assumed bearing) along the South line of said Northeast
Cuarter a distance of 325:00 feet; thence North 00 degrees 20 minutes 43 seconds East,
parallel with the East fine of said Northeast Quarter, a distance of 330.00 feet to the Point
of Beginning; thence continuing.North 00 degrees 20 minutes 43 seconds East, parallel
with said East line, a distance of 215.00 feet thence South 89 degrees 35 minutes 24
seconds East, parallel with said South line, a distance of 265.00 feet thence South 00
degrees 20 minutes 43 seconds West, parallel with said East line, a distance of 215.00
feet; thence North 89 degrees 35 minutes 24 seconds West,parallel with said South line,
a distance of 265.00 feet to the,Beginning Point, containing 1.308 acres, more or less.
•
LAND DESCRIPTION • • •
• (LOT 4) • • •
Part of the Northeast Quarter of Section Twenty-eight In Township,Eighteen North, Range
Four East in Hamilton County, Indiana, deserted as follows:
•
Commencing at the Southeast corner of said Northeast Quarter;thence North 89 degrees
35 minutes 24 seconds West.(assumed'bearing) along the South line of said Northeast
Quarter a distance of 579.48 feet thence North 00 degrees 20 minutes 43 seconds East,
paralle'. with the East line of said Northeast Quarter, a distance of 345.00 feet to the Point
of Beginning; thence continuing North 00 degrees20 minutes 43 seconds East, parallel
with said East line, a distance of 529.50 feet; thence South 77:degrees 52 minutes 47
seconds East a distance of.298.33 feet; thence.South 58 degrees 05 minutes 21 seconds
East a distance of 268.92 feet thence South 00 degrees 20 minutes 43 seconds West,
. parallel with said East line, a distance 01 129.48 feet;thence North 89 degrees 35 minutes
24 seconds West, parallel with said South line, a distance of 265.00 feet thence South 00
degrees 20 minutes 43 seconds West,parallel with said East line, a distance of 200.00 .
feet; thence North 89 degrees 35 minutes 24 seconds West, parallel with.said South line,
a distance of:254.48 feet to the Beginning Point, containing 4.215 acres, more or less.
•
• •
Schedule I
Shopping Center Legal Description
• LAND DESCRIPTION..
(LOT 5)
Part of the Northeast Quarter of Section Twenty-eight In Township Eghtf .=.n North, Range
Four East in Hamilton County, Indiana, described as follows:'
Commencing at the Southeast corner of s "Northeast Quarter;thence North 89 degrees
35 minutes 24 seconds West.(assumed bearing) along the South line of said Northeast
Quarter a distance of 579.48 feet;thence North 00 degrees 20 minutes 43 seconds.East,
parallel with the East.line of said Northeast Quarter, a distance of 874.50 feet; thence
South 77 degrees 52 minutes 47 seconds East a distance of 298.33 feat to the Point of
Beginning; thence North 00 degrees 20 minutes 4.3 seconds East, parallel with said East
line, a distance of 280.50 feet; thence South 89 degrees 55 minutes 53 seconds East a
distance of 227.43 feet; thence South 00 degrees 20 minutia 43 seconds West, parallel
with said East line, a distance of 421.32 feet; thence North 58 degrees 05.minutes 21
seconds West a distance of 266.92 feet to the Beginning Point, containing 1.832 acre:,
more or less.
•
•
•
LAND DESCRIPTION.' .
(LOT 6)
Part of the Northeast Quarter of Section Twenty-eight in Township Eighteen North, Range
Four East in Hamilton County,.Indiana, described as follows:.
Commencing at the Southeast corner of said Northeast Quarter;thence North 89 degrees
35 minutes 24 seconds West(assumed bearing) along the Soirth line of said Northeast
Quarter a distance of 579.48 feet;thence North 00 degrees 20.minutm 43 seconds East,
parallel with the East,line of said Northeast Quarter, a distance of.874.50 feet: thence .
South 77 degrees 52 Minutes seconds East a distance of 298.33 feet;thence North 00
degrees 20 minutes 43 seconds East, persist With said East.line, a distance of 280.50 feet
to the Point of Beginning; thence continikig North 00 degrees 20 minutes 43 seconds
East, parallel with said East line, a distance of 280.50 feet: thence South 89 degrees 55
minutes 53 seconds East a distance of 227.43 feet:thence South 00 degrees 20 minutes
43 seconds West,.paraltel-with.said East line, a distance of 280.50 feet;.thence North 89
degrees 55 minutes 53 seconds West a distance of 227.43 feet to the Beginning Point,
containing 1.465 acres,.more or.less. •
• •
i
O 1.i
RECEIVED
QflOQOQ 4461,.
�� _ i ile� for Record in
DOCS A.N HAMILTON COUNTY, INDIANA
MARY L CLARK
On 09-07-2400 At 08:46 am.
� AMEND DECLA 34.4U
FIRST AMENDME ,re1. ARATION OF RESTRICTIONS
AND EASEMENTS
THIS FIRST AMENDMENT TO DECLARATION OF RESTRICTIONS AND
EASEMENTS ("Declaration") is entered into on SrHn , 2000, between PLUM
CREEK PARTNERS,LLC,an Indiana limited liability company("First Party"),and AMERICAN
PARTNERS, L.P., an Indiana limited partnership ("American Partners").
RECITALS
A. The parties entered into that certain Declaration of Restrictions and Easements dated
on or about the date hereof and recorded with the recorder of Hamilton County, Indiana
("Declaration") regarding the land located at the northwest corner of the intersection of 131st Street
&Hazel Dell Parkway in the City of Carmel,County of Hamilton, State of Indiana more specifically
described on Schedule I attached hereto and made a part hereof("Shopping Center").
B. the parties entered into that certain Development Agreement dated on or about the
date hereof and recorded with the recorder of Hamilton County, Indiana ("Development
Agreement")regarding the development of certain improvements to the Shopping Center as more
particularly described therein.
C. The parties desire to amend the Declaration on the terms and conditions more
particularly set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration,the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
• t
1. Article 2.2(b) of the Declaration is hereby deleted in its entirety and the following is
substituted in its place:
(b) Initial Development. The Common Area on Parcels 1, 2, 3 and 4 shall
initially be developed in accordance with Exhibit "A" and the Development Agreement. To the
extent Exhibit "A" does not show Common Area improvements or the improvements to the
Common Areas are not otherwise provided foe in the Development Agreement, the Owner of the
applicable Parcel shall retain the right to develop such l,,,mmon Area in such Owner's sole
discretion subject, however, to strict compliance with the requirements of this Declaration. To the
extent General Common Area Improvements are not shown on Exhibit"A"for Parcels 2,3,4, 5 and
6, the size and arrangement of Coinmon Areas thereon shall be subject to the prior written approval
of the Owner of Parcel 4 and shall be processed in accordance with Section 2.5; provided, however,
that such approval shall not otherwise release or waive any other requirement of this Declaration.
3. Exhibit"B" to the Declaration is hereby deleted in its entirety.
4. Article 3.6 of the Declaration is hereby deleted in its entirety and the following is substituted
in its place:
3.6 Self Help. Each Owner, as grantor (such Owner being referred to in this
subparagraph only as "Grantor Owner"),hereby grants to the other Owners for the benefit of each
Parcel belonging to the other Owners as grantees (such other Owners being referred to in this
subparagraph only as "Grantee Owners"), a nonexclusive easement to enter the Grantor Owner's
Parcel for the following purposes:
(a) To perform such work on the Grantor Owner's Parcel as is necessary to cure
any default by the Grantor Owner under the Declaration or Development Agreement, provided and
to the extent the Grantee Owner has the express right to cure said default after notice under the
Declaration or Development Agreement; and
Draft ()atrd: August l6, 200(1 2
•
•
(b) To perform any obligations or exercise any other rights the Grantee Owner
has under the Declaration or Declaration.
5. Except as otherwise expressly provided herein,the Declaration shall remain unmodified and
in full force and effect. In the event of a conflict between the terms of this First Amendment and the
Declaration,the terms of this First Amendment shall control. Any term not otherwise defined herein
shall have the same meaning as ascribed to such term in the Declaration. Each Party represents and
warrants to the other that it has the authority to enter into this First Amendment.
(SIGNATURE PAGE FOLLOWS)
Draft Dated: August 16, 2000 3
• •
EXECUTED as of the date first sct forth above.
American Partners: Plum Creek:
American Partners, L.P., Plum Creek Partners, LLC, an Indiana
an Indiana limited partnership limited liability company
By: American Drug Stores, Inc.,
an Illinois corporation, its general partner
BY:
BY: 1 { :L� -- •-�`�' J
William H. Arnold t,��5 Name:
Vice President Title:
List of Exhibits and Schedules:
Schedule I—Description of Shopping Center
EXECUTED as of the date first set forth above.
American Partners: Plum Creek:
American Partners, L.P., Plum Creek Partners, LLC, an Indiana
an Indiana limited partnership limited liability company
By: American Drug Stores, Inc.,
an Illinois corporation, its general partner
BY:
BY:
William H. Arnold Name: reY64014M/410e
Vice President Title: ilvre 1e
List of Exhibits and Schedules:
Schedule I—Description of Shopping Center
•
STATE OF IDAHO )
) ss.
County of Ada )
On this day of , _ , before me, the undersigned, a
Notary Public in and for said State,personally appeared , to me known
to be the Vice President of American Drug Stores, Inc., as general partner of American Partners,
L.P., the limited partnership that executed the foregoing instrument, and acknowledged to me that
the said instrument is the free and voluntary act and deed of said partnership, for the uses and
purposes therein mentioned, and on oath stated that he is authorized to execute the said instrument.
WITNESS MY HAND and official seal hereto affixed the day, month and year in this
certificate first above written.
My commission expires:
Notary Public in and for the
State of Idaho
Residing ut Boise, Idaho
STATE OF fpJ OoA )
) as.
County of /t'lhk/sN )
On this 2 114% day of ,4w L RS f , 2 O.°, before me, the undersigned,
a Notary Public in and for said State,personally appeared ip YEN C4,4N )L0
to me known to be the /* arts of PLUM CREEK PARTNERS, LLC, the limited
liability company that executed the foregoing instrument, and acknowledged to me that the said
instrument is the free and voluntary act and deed of said company, for the uses and purposes therein
mentioned, and on oath stated that they are authorized to execute the said instrument.
•
WITNESS MY HAND and official seal hereto affixed the day, month and year in this
certificate first above written.
My commission expires: .. A
74 OD CO 0:(6k62.k) if a ,Notary Public in and for the ,
•
State of It ■ JPt t`j Ln
Residing at RRRrorn� C'dct.rIrzJ -t0 • •••
STATE OF IDAHO )
) ss.
County of Ada )
On this day of = • , • , before me, the undersigned, a
Notary Public in and for said State, personally appeared • , to me known
to be the Vice President of American Drug Stores, Inc., as general partner of American Partners,
L.P., the limited partnership that executed the foregoing instrument, and acknowledged to me that
the said instrument is the free and voluntary act and deed of said partnership, for the uses and
purposes therein mentioned,and on oath stated that he is authorized to execute the said instrument.
WITNESS MY HAND and official seal hereto affixed the day, month and year in this
certificate first above written.
My commission expires:
Notary Public in and for the
State of Idaho
TANNA WIESE Residing at Boise, Idaho
NOTARY PUBLIC
STATE OF IDAHO
STATE OF )
) ss.
County of )
On this day of , ,before me, the undersigned,
a Notary Public in and for said State,personally appeared
to me known to be the of PLUM CREEK PARTNERS, LLC, the limited
liability company that executed the foregoing instrument, and acknowledged to me that the said
instrument is the free and voluntary act and deed of said company, for the uses and purposes therein
mentioned, and on oath stated that they are authorized to execute the said instrument.
WITNESS MY HAND and official seal hereto affixed the day, month and year in this
certificate first above written.
My commission expires:
Notary Public in and for the
State of
Residing at
•
CONSENT AND SUBORDINATION
OF
NATIONAL CITY BANK OF INDIANA
The undersigned does hereby consent to this First Amendment to Declaration of Restrictions
and Easements ("First Amendment") by and between Plum Creek Partners, LLC, an Indiana
limited liability company and American Partners,L.P.,an Indiana limited partnership and agrees that
the lien of that certain Mortgage,Security Agreement and Absolute Assignment of Rents and Leases
dated September 10, 1999 made by Plum Creek Partners,LLC,for the benefit of NATIONAL CITY
BANK OF INDIANA ("Mortgagee") recorded on September 30, 1999 as Document No.
9909957376 with the Recorder of Hamilton County, Indiana, (such mortgage as amended or
modified from time to time,"Mortgage")together with the lien of all other documents securing or
evidencing the obligations referenced in the Mortgage shall be and remain subordinate to the First
Amendment. The undersigned agrees that this Consent and Subordination shall be attached to the
First Amendment and shall be recorded with Recorder of Hamilton County, Indiana.
IN WITNESS,WHEREOF, this Consent and Subordination is executed as of the date first
above written.
MORTAGEE: -
NATIONAL CITY BANK OF INDIANA,
ak Nb114 ' �dr►*�PA #sraa$T'
D 4111110, 417-,
N. eff '!� R MT tr ?ie.
Its: V1Ct ttptatAPY
-
STATE OF INDIANA )
: ss.
COUNTY OF M4P144 )
On this 21 day of A M6u S? , 2000, before me, the
undersigned, a Notary Public in and for said State, personally appeared
4ON �, ��wail; �1R� , to me kt.swn to be the Vf C( o lD1 ,
�'
of NATIONAL CITY BANK OF INDIANA, . �` /Ort �Y41 A� re:tcuted the
foregoing instrument, a c owledged to me that the said instrument is the free and voluntary act
and deed of said , for the uses and purposes therein mentioned, and on oath
stated that he is authorized to execute the said instrument.
WITNESS MY HAND and official seal hereto affixed the day, month and year in this
certificate first above written.
My commission expires:
70/0 Notary
ah-ct-t 64/4,t.
Public in and or the the}-134 . eplefic
.
State of 17f is-n�fl• - J . '_"
Residing at /14 AR,oN Co 3i 7 <
.
oN
This P• it • • -•• • • •_•• • i • •• .411 •: Michael F. Smetana, MKS, Attorneys at
Law, 211 East Ontario Street,Suite 1450,Chicago,Illinois 60611.
_
. •
Schedule I
Shopping Center Legal
Schedule 1
•
Shopping Center Legal Description
•
•
LAND DESCRIPTION
• (LOT ;) • .
Part of the Northeast Quarter of Section Twenty-eight in Township Eighteen North, Range
Four East in Hamilton. County, Indiana, described as follows:
Common. czg at the Southeast corner of said Northeast Quarter, thence North 89 degrees
35 minutes 24 seconds West (assumed bearing) along the South line of said Northeast
Quarter a distance of 325.00 feet;-thence North 00 degrees 20 minutes 43 seconds East,
. parallel with the East line of said•Northeast Quarter, a distance of 45.00 feet to the Point
of Beginning; thence continuing North 00 degrees 20 minutes 43 seconds East, parallel
with said East line,, a distance of 285.00 feet; thence South 89 degrees 35 minutes 24
seconds East, parallel with said.South line, a distance of 265.00 feet; thence South 00
degrees 20 minutes 43 seconds West, parallel with said East line, a distance of 227.93
feet thence South 46 degrees 50 minutes 54 seconds West a distance of 82.82 feet*
thence North 89 degrees 35 minutes 24 seconds West, parallel with said South line, a
distance of 204.92 feet to the Beginning Point, containing 1.694 acres, more or less.
•
LAND DESCRIPTION.:
(LOT 2) • • . . .
Part of the Northeast Quarter of Section.Twenty-eight In Township Eighteen North, Range
Four East in Hamilton County, Indiana, described as follows:
Commencing at the Southeast corner of said Northeast Quarter;thence North 89 degrees
35 minutes 24 seconds West (assumed bearing) along the South fine of said Northeast
Quarter a distance of 579.48 feet; thence North 00 degrees 20 minutes 43 seconds East,
parallel with the East line of said Northeast Quarter, a-distance of 45.00 feet to the Point
of Beginning; thence continuing North 00.degrees 20 minutes 43 seconds East, parallel
with said East line, a distance of 300.00 feet; thence South 89 degrees 35 minutes 24
seconds East, parallel with said South tine, a distance of 254.48 feet; thence South 00
degrees 20 minutes 43 seconds West, parallel with said East line,.a distance of 300.00
feet thence North 89 degrees 35 minutes 24 seconds West,parallel with said South line,
a distance of 254.48 feet to the Beginning Point, containing 1.753 acres, more or less.
Schedule I •
Shopping Center Legal Description
•
•
LAND DESCRIPTION'
• (LOT 3)
Part of the Northeast Quarter of Section Twenty-eight in Township Eighteen North, Range
Four East in Hamilton County, Indiana, described as follows:
•
Commencing at the Southeast corner of said Northeast Quarter,:thence North 89 degrees
35 minutes 24 seconds West(assumed bearing) along the South fine of said Northeast
Quarter a distance of 325:00 feet; thence North 00 degrees 20 minutes 43 seconds Est,
parallel with the East line of said Northeast Quarter, a distance of 330.00 feet to the Pont
of Beginning; thence continuing North 00 degrees 20 minutes 43 seconds East, pa-allei
with said East line, a distance of 215.00 feet;. thence South 89 degrees 35 minutes 2¢
seconds East, parallel with-said South line, a distance of 265.00 feet; thence South 00
degrees 20 minutes 43 seconds West, parallel with said East line, a distance of 215.0D
feet;thence ?forth 89-degrees 35 minutes-24 seconds West, parallel with.said South;liner
• a distance of 285.00 feet to the Beginning Point, containing 1.308 acres, more or less.
•
•
LAND DESCRIPTION • • -
(LOT 4) . .
Part of the Northeast Quarter of Section Twenty-eight in Township.Eighteen North, Range
Four East in Hamilton County, Indiana, descnbed as follows:
Commenclhg at the Southeast corner of said Northeast Quarter;thence North 89 degrees
35 minutes 24 seconds West.(assumed-bearing) along the South-line of said Northeast
Quarter a distance of 579.48 feet; thence North 00 degrees 20 minutes 43 seconds East,
parallel with the East line of said Northeast Quarter,a distance of 345.00 feet to the Point
of Beginning; thence continuing North 00 degrees.20 minutes 43 seconds East, parallel
with said East line, a distance-of 529.50 feet-thence South 77:degrees 52 minutes 47
seconds.East a distance of298.33 Met thence.South 58 degrees 05 minutes 21 seconds
East a distance of 286.92 feet; thence South 00 degrees 20 minutes 43 seconds West,
parallel with said East line, a distance of 129.48 feet: thence North 89 degrees 35 minutes
24 seconds West, parallel with said South line, a distance of 265.00 feet;thence South 00
degrees 20 minutes 43 seconds West,-parallel with said East line, a distance of 200.00 .
feet; thence North 89 degrees 35 minutes 24 seconds West, parallel with'said South line,
a distance of:254.48 feet to the Beginning Point, containing 4.215 acres, more or less.
- • --- •
Schedule I
Shopping Center Legal Description
LAND. DESCRIPTION..
(LOT 5) •
•
Part of the Northeast Quarter of Secction Twenty-eight in Township.Eighteen North, Range
Four East in Hamilton•County, Indiana, described as follows:. •
Commencing at the Southeast corner of said Northeast QUarter;;thence!Math SSA degrees
35 minutes 24 seconds West.(assumed bearing) along the South'line of said Northeast
Quarter a distance of 579.48 feet; thence North 00 degrees 20 minutes 43 seconds East,
parallel with the East.line of said Northeast Quarter, a distance of 874:50 feet; !Hence
South 77 degrees 52 minutes 47 seconds East a distance of 298.33 feet to the Point of
Beginning; thence North 00.degrees 20 minutes 43 seconds East, parallel with said East
line, a distance of 280.50 feet; thence South 89 degrees 55 minutes 53 seconds East a
distance of 227.43 feet; thence South 00 degrees 20 minutes 43 seconds West, parallel
with said East fine, a distance of 421.32 feet thence North 58 degrees 05 minutes 21
seconds West a distance of 266.92 feet to the Beginning Point; containing 1.832 acres,
more or less. .
•
LAND DESCRIPTION.'
(LOT 6) . .
Part of•the Northeast Quarter of Section Twenty-eight in Township Eighteen North, Range
Four East in Hamilton County, Indiana, described,as follows:. , • .
Commencing at the Southeast corner of said Northeast Quarter,thence North 89 degrees
35 minutes 24 seconds West.(assumed bearing) along the South line of said Northeast
Quarter a distance of 579.48 feet; thence Not 00 degrees 20minutes 43 seconds East,
parallel with the East.line of said Northeast Quarter, a distance of.874.50 feet; thence .
South 77 degrees 52 minutes 47 seconds East a distance of 298.33 feet; thence North 00
degrees 20 minutes 43 seconds East, parral With said East.iine;a distance of 280.50 feet
to the Point of Beginning; thence continuing North 00 degrees 20 minutes 43 seconds
East, parallel with said East line, a distance of 280.50 feet; thence South 89 deyrees 55
minutes 53 seconds East a distance cf 227.43 feet;thence'South,00 degrees 20 minutes
43 seconds West,.parallelwith said.East sins, a distance of 280.50 feet;.thence North 89
degrees 55 minutes 53 seconds West a distance of 227.43 feet to the Beginning Point,
containing 1.465 acres, more or.less. • .
•