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HomeMy WebLinkAboutMicro Office Declaration (with exhibits)2022041472 DECL $25.00 08/19/2022 04:07:20PM 19 PGS Jennifer Hayden Hamilton County Recorder IN Recorded as Presented DECLARATION II II II II II I I 111111111111111111111111 II Micro Office This Declaration (Micro Office) (the "Declaration") is executed this2 day of -day, 2020, by The City of Carmel Redevelopment Commission ("CRC") and Monon and Main, LLC ("M&M"). 1. Definitions. Additional Coverage Insurance shall have the meaning ascribed to such term in the Garage Taxpayer Agreement. Affiliate shall mean an affiliate of an Owner, including, without limitation: (a) members or officers of the Owner; (b) members or officers of a member or officer of the Owner; (c) the principals of the Owner; (d) any entity in which a person who fits within any of the categories set forth in clauses (a) - (c), or the parents, siblings, spouses, or children or such person, separately or in combination with: (i) any other person who fits within this clause; and/or (ii) one or more trusts described in the following clause; holds a material interest; and (d) any entity in which a trust established for the benefit of any person who fits within any of the categories set forth in clauses (a) - (c), or the parents, siblings, spouses, or children of such person, separately or in combination with: (i) any other person who fits within this clause; and/or (ii) one or more other trusts described in this clause; holds a material interest. Beneficiaries shall mean, as applicable, CRC and/or the Owners. Casualty Damage shall mean damage to, or destruction of, all or any portion of a Property by fire or other casualty. Casualty Insurance shall mean, with respect to each of the Properties, casualty insurance, the policy of which: (a) is issued by a reputable insurance company; and (b) provides coverage on a full replacement cost basis. City shall mean the City of Carmel, Indiana. City Agency shall mean any department or agency of the City. Common Facilities shall mean facilities that serve, in addition to the Propertywithin or on which such facilities are located, the other Property, which facilities may include, without limitation: (a) pedestrian walkways, staircases, and elevators; (b) loading facilities; (c) all or a portion of the Utility Facilities; and/or (d) all or a portion of the Venting Systems. Common Facilities Areas shall mean those areas of the Garage and the Micro Office Building in which the Common Facilities are located. To the extent that the Common Facilities Areas are known on the date hereof, such Common Facilities Areas are delineated as such on Exhibit A. Common Facilities Easements shall mean the easements granted pursuant to Subsection 2(c). Component shall mean the Garage Component and/or the Micro Office Component, as applicable. Component Site shall mean the Garage Component Site and/or the Micro Office Component Site, as applicable. Conveyance Instrument shall mean any agreement or instrument that conveys, transfers, grants, creates, assigns, or mortgages any interest in all or any portion of any Property. Currently Encroaching Improvement shall mean, in the case of the any Component, an encroachment of any lighting fixtures, awnings or canopies, windows or doors (whether open or closed), or other non -permanent elements onto a Component Site other than the Component Site on which such Component was to be constructed. Detention System shall mean an underground system for storm water detention to be constructed on the Garage Ground Parcel pursuant to the Project Agreement. Detention System Plans shall mean, with respect to the Detention System, the "Final Plans", as defined in the Project Agreement. Easements shall mean, collectively, the Support Easements, the Common Facilities Easements, and the Maintenance Easements. Encroachment Description shall mean a legal description of Encroachment Real Estate Encroachment Easement Agreement shall mean an agreement pursuant to which easements are granted in favor of the Property on which a Component with a Permanent Encroaching Improvement is constructed, which easements give the Owner of such Property the right: (a) to: (i) keep and maintain such Permanent Encroaching Improvement in its then current location; and (ii) enter upon the Property of which the Encroachment Real Estate is a part to the extent necessaryto maintain, repair, and/or replace the Permanent Encroaching Improvement; and (b) to reasonable support from the Property of which the Encroachment Real Estate is a part, if applicable. Encroachment License shall mean a license pursuant to which the owner of a Currently Encroaching Improvement has the right to maintain such Currently Encroaching Improvement (or its replacement) in its then current location. Encroachment Real Estate shall mean the real estate onto which a Permanent Encroaching Improvement encroaches. Final Plans shall mean the Garage Final Plans and/or the Micro Office Final Plans, as applicable. Garage shall mean thatcertain three -level above -ground structured parking facility located on the Garage Site that contains approximately 200 parking spaces, togetherwith entrances and exits, ramps and drives, elevator lobbies, and related facilities. Garage Air Parcel shall mean that certain real estate abutting the Garage Ground Parcel at ground level and extending upwards, as more particularly described on Exhibit B-2. Garage Component shall mean the Garage, togetherwith attendant public improvements, to be constructed on the Garage Ground Parcel and within the Garage Air Parcel pursuant to the Project Agreement. Garage Final Plans shall mean, with respect to the Garage Component, the "Final Plans", as defined in the Project Agreement. Garage Ground Parcel shall mean that certain real estate: (a) the footprint of which is delineated as the "Garage Site" on Exhibit A; and (b) more particularly described on Exhibit B-1. The Garage Ground Parcel extends down from ground level, but does not extend above ground level because the Garage Air Parcel begins at ground level and extends up. Garage Property shall mean, collectively, the Garage Site and the Garage Component. Garage Property Owner shall mean any person or entity owning fee simple title to any portion of the Garage Property; provided that, during the term of the Installment Contract, the Possessory Interest Holder shall be -2- deemed to be the Garage Property Owner (and CRC shall not be a Garage Property Owner), notwithstanding that CRC: (a) owns fee simple title to the Garage Ground Parcel; and (b) is the equitable owner of the Garage Air Parcel and the Garage Component. On the date hereof, M&M, as the Possessory Interest Holder, is the Garage Property Owner. Garage Site shall mean, collectively, the Garage Ground Parcel and the Garage Air Parcel. The Garage Site is the "Garage Component Site" under the Project Agreement. Garage Structural Elements shall mean the Structural Elements located in or on the Garage Property. Garage Taxpayer Agreement shall mean that certain Agreement for Payments in Lieu of Taxes (Garage Property) of dated June 16, 2017, executed by and between CRC and M&M (as the Possessory Interest Holder and, accordingly, the Garage Property Owner), as amended. The Garage Taxpayer Agreement is the "Garage Property Taxpayer Agreement" under the Project Agreement. Installment Contract shall mean that certain Installment Contract (Garage Air Parcel/Component) dated June 16, 2017, executed by and between CRC and M&M, as amended, pursuant to which CRC is purchasing the Garage Air Parcel and the Garage Component (but not the Garage Ground Parcel) on an installment basis. The Installment Contract is the "Garage Installment Contract' under the Project Agreement. Laws shall mean all applicable: (a) laws, statutes, and/or ordinances; (b) governmental rules, regulations, and/or guidelines; and (c) judicial orders, consents, and/or decrees. Liability Insurance shall mean, with respect to each of the Properties, public liability insurance in such amounts as the applicable Owner, in the exercise of commercially reasonable judgment, deems to be appropriate for the purpose of insuring against liability for property damage or loss, personal injury, and loss of life occurring on, or in connection with the use or operation of, the applicable Property, the policies of which shall name CRC as an additional insured. Maintenance Easements shall mean the easements granted pursuant to Subsection 2(d) Micro Office Building shall mean a single -story building of approximately 120 square feet that abuts the southern side of the Garage. Micro Office Component shall mean the Micro Office Building, togetherwith attendant public improvements, constructed and existing on the Micro Office Component Site. Micro Office Component Site shall mean that certain real estate: (a) delineated as the "Micro Office Component Site" on Exhibit A; and (b) more particularly described on Exhibit B-3. Micro Office Final Plans shall mean, with respect to the Micro Office Component, the final, as -built design and construction plans and specifications for the Micro Office Building as of the date hereof. Micro Office Property shall mean, collectively, the Micro Office Component Site and the Micro Office Component. Micro Office Property Owner shall mean any person or entity owning fee title to any portion of the Micro Office Property. Non -Payment Lien shall mean a lien against a Property in the amount of all delinquent Required Payments owed by the Owner of such Property, together with the interest thereon. -3- Owner shall mean the Garage Property Owner and/or the Micro Office Property Owner, as applicable. On the date hereof, M&M, by virtue of being the Possessory Interest Holder, is the Garage Property Owner. Parties in Interest shall mean, as applicable, the current and future mortgagees, grantees, successors, and assigns of CRC and the Owners. Pedestrian Access Easements shall mean the easements granted pursuant to Subsection 2(b). Permanent Encroaching Improvement shall mean, in the case of any Component, an encroachment of footers, foundations, facade, soffits, roof overhangs, guttering, stoops and steps, and/or other permanent or structural elements of such Component onto a Component Site otherthan the Component Site on which such Component was to be constructed. Possessory Interest shall mean the exclusive right to possess, operate, manage, and control the usage of the Garage Property granted under the Installment Contract. Possessory Interest Holder shall mean the holder of the Possessory Interest. During the term of the Installment Contract, the Possessory Interest Holder shall be deemed to be the Garage Property Owner, notwithstanding that CRC: (a) owns fee simple title to the Garage Ground Parcel; and (b) is the equitable owner of the Garage Air Parcel and the Garage Component. On the date hereof, M&M is the Possessory Interest Holder. Project Agreement shall mean that certain Project Agreement (Monon and Main) executed by and between CRC and M&M and dated December 21, 2016, as amended. Property shall mean the Garage Property and/or the Micro Office Property, as applicable. Public Beneficiaries shall mean members of the general public. Recorder's Office shall mean the Office of the Hamilton County Recorder. Required Payments shall mean all amounts due from an Owner to the other Owner hereunder. Restoration Plans shall mean plans and a schedule for repairing, restoring, and/or replacing all or any portion of a Property, which plans and schedule shall reflect the goal of returning the entirety of the applicable Component to service as soon as reasonably is possible. Secured Financing shall have the meaning set forth in the Garage Taxpayer Agreement. Stair Tower Facilities shall mean, with respect to the Garage, the stair towers, the entrances thereto, the exits therefrom, and the stairways therein. Structural Elements shall mean structural walls, structural ceilings and floors, structural columns, joists, beams, and other structural elements of the Garage or the Micro Office Building, as applicable. Support Easements shall mean the easements granted pursuant to Subsection 2(a). Tenants shall mean tenants, subtenants, and licensees of space in the Properties. Utility Facilities shall mean: (a) the Detention System; and (b) lines, conduits, pipes, mains, valves, meters, lifts, chases, and related facilities for the provision of: (i) electrical power; (ii) natural gas; (iii) water for consumption, irrigation, and/or fire protection; (iv) sanitary sewer service; and/or(v) telephone, cable, satellite, internet, and other communications or information services. -4- Venting Systems shall mean systems providing ventilation for one or both of the Components. 2. Easements Grant. Subject to the terms and conditions of this Declaration, the easements set forth in this Section are declared, created, made, and reserved. (a) Support/Attachment. Permanent, non-exclusive easements for the benefit of: (i) the applicable Owners in, over, across, and through the Component Sites, on which the Utility Facilities (including, without limitation, the Detention System) and/or the Venting Systems are located for the purpose of maintaining such Utility Facilities and/or Venting Systems in place; (ii) the Garage Air Parcel and the Garage Component forthe purposes of: (A) receiving from the Garage Ground Parcel support for the Garage Component; and (B) maintaining the Garage Component in place; and (iii) the Micro Office Propertyforthe purposes of: (A) allowing the Micro Office Building to be attached to the Garage in accordance with the Final Plans forthe Micro Office Component; and (B) maintaining such attachment in place. (b) Pedestrian Access. Permanent, non-exclusive easements for the benefit of the Properties and the Beneficiaries for the purpose of providing pedestrian access, ingress, and egress on, over, across, and through the Garage, the Garage Pedestrian Areas, and the Common Facilities Areas from and to the public sidewalks and other pedestrian walkways adjacent to the Component Sites to and from the Garage and the Micro Office Building. (c) Common Facilities. Permanent, non-exclusive easements in favor of the Properties and the Beneficiaries for the purpose of using the Common Facilities for their intended purposes. (d) Maintenance. Permanent, non-exclusive easements in favor of CRC and the Owners for the purpose of performing the maintenance, repairs, and/or replacements required or permitted by the terms and conditions of this Declaration. 3. Nature and Effect. (a) Purpose. The Easements are granted for the purposes set forth in Section 2, and for no other purposes whatsoever. (b) Binding Effect. The Easements: (i) shall inure to the benefit of the applicable Beneficiaries and Parties in Interest; and (ii) together with the burdens thereof, shall: (A) run with and bind the applicable Properties; and (B) bind the applicable Owners and the Parties in Interest. (c) Conveyance. Each Conveyance Instrument shall be deemed: (i) (unless the Conveyance Instrument expressly states otherwise) to assign, as an appurtenance to the interest in any portion of a Property, the right to the use and benefit of the applicable Easements, regardless of whether the Conveyance Instrument expressly assigns such appurtenance and right; and (ii) to impose, as an encumbrance upon such interest, the burden and restriction of the applicable Easements, regardless of whether the Conveyance Instrument expressly imposes such encumbrance and restriction. -5- 4. Maintenance. (a) Structural Elements. (i) The Garage Property Owner, at its cost and expense, shall maintain, repair, and replace the Garage Structural Elements so that they: (A) are in a sound condition; (B) provide the support for the Garage that they are intended and designed to provide; and (C) do not adversely impact: (1) the Micro Office Building; or (2) the Pedestrian Connections. (ii) Subject to Subsection 4(c), the Micro Office Property Owner, at its cost and expense, shall maintain, repair, and replace the Structural Elements located in or on the Micro Office Property so that they: (A) are in a sound condition; and (B) provide the support for the Garage that they are intended and designed to provide. If an Owner receives written notice from any other Owner or CRC of: (i) damage to, or destruction of, any Structural Element with respect to which such Owner is responsible under this Subsection; or (ii) any existing condition caused by the need for repairs to and/or replacement of any portion of the Structural Elements with respect to which such Owner is responsible under this Subsection, which condition reasonably is likely to result in injury to persons and/or damage to property; then, subject to Subsection 4(c) such Owner shall undertake repairs to, and/or replacements of, the applicable Structural Elements with reasonable expediency and in a manner so that such Structural Elements again satisfy the requirements of this Subsection. (b) Garage Property. The Garage Property Owner shall: (i) maintain, repair, and replace the Garage Pedestrian Areas so that the Garage Pedestrian Areas are in a good, working (in the case of the Elevator Facilities and otherwise as applicable), safe, sanitary, clean, and sightly condition suitable for providing the pedestrian access, ingress, and egress that they are intended to provide; provided that, notwithstanding the foregoing, the Micro Office Property Owner, subjectto Subsection 4(c), shall be responsible to maintain, repair, and replace: (A) the expansion joints that attach the Micro Office Building to the Garage; and (B) the Pedestrian Connections; (ii) otherwise operate, manage, use, maintain, and repair the Garage Property (including the Drainage System and the other Common Facilities Areas and Common Facilities located in on or on the Garage Property) so that the Garage Property: (A) remains in a sound condition; and (B) is in a good, safe, working (as applicable), sanitary, clean, and sightly condition that complies with the Laws and the Rules; and (iii) pay, prior to delinquency, all electricity fees and related charges incurred by or with respect to the Micro Office Building. Notwithstanding the foregoing, if, at any time, the Garage Property Owner causes the Micro Office Building to be separately metered, then the obligations in this Subsection shall cease as of the date that the applicable utility begins charging the Micro Office Property Owner directly for such utility usage. In connection with the foregoing, the Garage Property Owner shall undertake routine and capital maintenance, repairs, and replacementsas reasonablyare necessary or appropriate; provided that, in all events such capital maintenance, repairs, and replacements shall be undertaken in accordance with a standard that is at least as high as the standards for maintenance by the City of public parking garages. (c) Micro Office Property. The Micro Office Property Owner shall operate, manage, use, maintain, and repair the Micro Office Property (including the Common Facilities Areas and the Common Facilities located in or on the Micro Office Property), the expansion joints that attach the Micro Office Building to the Garage, and the Pedestrian Connections so that the foregoing: (i) remain in a sound condition; and (ii) are in a good, safe, working (as applicable), sanitary, clean, and sightly condition that complies with the Laws. In connection with the foregoing, the Micro Office Property Owner shall undertake routine and capital maintenance, repairs, and replacements as reasonably are necessary or appropriate. Notwithstanding anything to the contrary in this Declaration, the Micro Office Property Owner shall have no maintenance, repair, and/or replacement or other obligation or liability with respect to any defect of or with respect to the Micro Office Building, whether patent or latent: (i) in the initial design, materials, construction, or fabrication thereof; and/or (ii) existing as of the date hereof; all of which obligations shall be: (i) the sole responsibility, and at the sole cost, of the Garage Property Owner; and (ii) remedied or corrected: (A) with commercially reasonable promptness following notice to the Garage Property Owner; and (B) in compliance with all Laws. 5. Alterations. Each Owner may make alterations or improvements to its Property so long as such alterations or improvements will not have a negative impact on any other Property; provided that, with respect to any structural alteration: (a) such alteration shall not: (i) result in the inability of the applicable Structural Elements to support the Property being altered; and (ii) have a negative effect on the expansion joints or any other equipment or materials by which the Property being altered is attached to another Property; (b) the Owner seeking to make the structural alteration shall deliver notice to each owner of a Property to which the Property being altered is attached at least 45 days prior to the date on which work will begin on such structural alteration, which notice shall describe the proposed structural alteration with particularity; (c) CRC and the Owner of the Property to which the Property being altered is attached shall have 30 days within which to deliver written notice to the Owner seeking to make the structural alteration stating that, in its good -faith judgment, the proposed structural alteration will have a negative impact on the Property; and (d) if none of CRC or the other Owner timely delivers such a notice, then the applicable Owner may make the proposed structural alteration. Notwithstanding anything to the contrary set forth herein, actions taken by an Owner to satisfy its maintenance obligations under Section 4 shall not be deemed to be a violation of this Section. 6. Insurance. Each Owner shall procure and maintain Casualty Insurance and Liability Insurance with respect to its Property. 7. Casualty Damage. (a) General. If there is Casualty Damage to the Garage, then, within 60 days after the occurrence thereof, the Owner of the Garage shall submit the Restoration Plans to CRC for its approval, which approval shall not be withheld unreasonably. CRC shall have 45 days within which to deliver to such Owner written notice of approval or rejection of the Restoration Plans; provided that, in the case of a rejection, such written notice shall specify the reason for the rejection. This process shall continue until such time as the Restoration Plans have been approved by CRC. Upon approval of the Restoration Plans, the Owner of the Garage shall: (i) undertake the repair, restoration, and/or replacement of the Garage in accordance with the Restoration Plans so that upon completion, the Garage: (A) is in substantially the same (or better) condition as before the Casualty Damage; and (B) otherwise is in a good, safe, structurally sound, sanitary, clean, and sightly condition that complies with the Laws and the terms and conditions of this Declaration; and (ii) pay all costs and expenses in connection -7- with completing such repairs, restorations, and/or replacements so that the Garage is free and clear of all claims and liens resulting therefrom. (b) Timing. If there is Casualty Damage that affects more than one Property, then, if necessary or appropriate: (i) the Owners shall coordinate the repair, restoration, and/or replacement of the Properties; and (ii) to the extent that it reasonably is not practicable to repair, restore, and/or replace all or a portion of one of the Properties until all or a portion of the repair, restoration, and/or replacement of all or a portion of another Property has been completed, the applicable Owner may delay the repair, restoration, and/or replacement of its Property until it reasonably is practicable to undertake such repair, restoration, and/or replacement. Notwithstanding the foregoing, upon Casualty Damage to the Micro Office Building, the Owner of the Micro Office Building may elect not to rebuild, restore, and/or replace the Micro Office Building, in which case: (1) the Owner of the Garage shall rebuild, restore, and/or replace the Garage without the Micro Office Building; and (ii) this Declaration shall terminate upon the recording with the Recorder's Office of a release hereof in recordable form by the Owner of the Garage; provided that any monetary liabilities, claims, or obligations first arising hereunder prior to the date of termination shall survive such termination. (c) Exception. If, following Casualty Damage to the Garage, the Garage Taxpayer Agreement terminates automatically because the "Owner" thereunder maintained Additional Coverage Insurance, the proceeds of which were paid directly to CRC, then, notwithstanding the terms and conditions of Subsection 7(a), the applicable Owner shall not be obligated to repair and/or restore the Garage. Remedies. (a) Remedies. If: (i) an Owner fails to comply with the terms and conditions of this Declaration; and (ii) such failure is not cured within 30 days after receipt of written notice from CRC or a non -defaulting Owner; then CRC or a non -defaulting Owner may: (i) enter upon the Property of the defaulting Owner and cure the failure for the account of such Owner; and/or (ii) institute an action at law or in equity: (A) to enjoin the non-compliance by the defaulting Owner through an action at law or in equity; and/or (B) for specific performance to enforce compliance by the defaulting Owner. Within 30 days after receipt of a written invoice, the defaulting Owner shall reimburse CRC or the non -defaulting Owner, as applicable, for all costs and expenses (including, without limitation, attorneys' fees and legal costs) incurred by it in connection with the exercise of its remedies pursuant to this Subsection. (b) Non -Payment Liens. If there are delinquent Required Payments, then: (i) the amount of the delinquent Required Payments shall bear interest at 15% per annum; (ii) the partyto which the delinquent Required Payments are owed may record a Non -Payment Lien; provided that all Non -Payment Liens shall be subordinate to any prior mortgage of record held by a mortgagee that is not an Affiliate of the applicable Owner; provided further that no Non -Payment Lien shall be recorded against any Property owned by CRC, the City, or any City Agency; (iii) the party to which delinquent Required Payments are due may: (A) collect the delinquent Required Payments, and the accrued interest thereon, by any action at law or in equity; and/or (B) if applicable, foreclose the Non -Payment Lien; and N1 (iv) within 30 days after receipt of a written invoice, the Owner that failed to timely pay the Required Payments shall reimburse the party to which such Required Payments were due for all costs and expenses (including, without limitation, attorneys' fees and legal costs) incurred by such party in connection with: (A) collecting the Required Payments, and the accrued interest thereon; and (B) if applicable, foreclosing the Non -Payment Lien. Upon the request of an Owner or any mortgagee of an Owner, the other Owner shall furnish information regarding any delinquent Required Payments, the accrued interest thereon, and any existing Non -Payment Liens. Notwithstanding the foregoing, Required Payments to be made by the Garage Property Owner that become delinquent shall not be Non -Payment Liens against the Garage Property during the term of the Installment Contract. (c) Mortgagees. This Declaration does not impose any obligation or liability on any mortgagee until the mortgagee's interest in the applicable Property ripens into fee simple ownership, and a mortgagee shall be liable for, and obligated to pay, only the Required Payments that are allocable to the applicable Property after the date on which: (i) the mortgagee's interest in such Property ripens into fee simple ownership; or (ii) the mortgagee assumes possession of such Property; whichever occurs first. 9. Enforcement. No member of the public or any other person or entity shall be deemed to be a third - party beneficiary of this Declaration. 10. Encroachments. (a) Survey. At any time after completion, repair, and/or replacement of a Component, the Owner of the Property of which such Component is a part, at its expense, may obtain an As -Built Survey. (b) Permanent Encroaching Improvement. (i) If any As -Built Survey discloses a Permanent Encroaching Improvement, then the Owner of the Component of which the Permanent Encroaching Improvement is a part, at its expense, shall obtain an Encroachment Description. (ii) At such time as an Encroachment Description is completed, either: (A) a deed shall be exchanged to the extent necessary so that the Encroachment Real Estate is conveyed to the Owner of the Component of which the Permanent Encroaching Improvement is a part (or, if applicable, to CRC during the term of the Installment Contract as the fee simple owner of the Garage Ground Parcel), with the result being that, after the foregoing conveyance: (1) the definitions of each of the Component Sites shall be deemed to be modified as necessary to reflect such conveyances; and (2) each of the Components is within the boundaries of the Component Site on which such Component was intended to be constructed. (B) Encroachment Easement Agreements shall be executed pursuant to which the easements thereunder are granted by the Owner of the Encroachment Real Estate, M with the result being that, after execution of such Encroachment Easement Agreements, each Permanent Encroaching Improvement is located within an easement area described in a properly recorded Encroachment Easement Agreement. (c) Currently Encroaching Improvement. If: (i) any As -Built Survey discloses a Currently Encroaching Improvement; or (ii) at any time, a surveyor, engineer, or architect determines that there is a Currently Encroaching Improvement; then, upon receipt of written request the Owner of the Property onto which the Currently Encroaching Improvement encroaches shall grant an Encroachment License in favor of the Owner of the Component of which the Currently Encroaching Improvement is a part. 11. Amendments. (a) General. This Declaration may be amended without the consent or signature of any Beneficiary or Party in Interest if such amendment: (i) is executed by CRC and the Owners and recorded in the Recorder's Office; and (ii) is for any one or more of the following purposes: (A) to clarify, further define, or limit any Easement; (B) to comply with the terms and conditions of Subsection 2(a); (C) to clarify one or more terms or conditions of this Declaration, without materially changing the substance hereof; and/or (D) to change the substance of this Declaration, so long as such change does not does not materially increase the obligations or duties, or materially decrease the rights and powers, of any Space Interest Holder without the consent of such Space Interest Holder, unless such change is necessary to comply with the Laws. Amendments that are executed and recorded as permitted by this Subsection shall bind all of the Beneficiaries and Parties in Interest, and no Beneficiary or Party in Interest shall have the right or power to prohibit any such amendment. (b) No Secured Financing. Notwithstanding the terms and conditions of Subsection 11(a), from and after the date on which the Secured Financing is repaid, refinanced, and/or "taken out" in full, other than in connection with a restructuring, refinancing, and/or replacement with a new financing that constitutes a Secured Financing, this Declaration (including, without limitation, the terms and conditions of Section 4 may be amended by an amendment executed only by the Owners. 12. Assignment. No Owner shall assign any of its obligations under this Declaration without the consent of CRC. Notwithstanding the foregoing: (a) a deemed assignment of this Declaration pursuant to Subsection 3(c) as a result of the execution and delivery of a Conveyance Instrument shall not: (i) require the consent of CRC; or (ii) be prohibited by this Section; and (b) an Owner may delegate its obligations with respect to its Property to a parking and/or property manager or operator, as applicable, pursuant to a management agreement or operating agreement that is consistent with the terms and conditions of this Declaration in all respects; provided that such delegation shall not relieve or release the applicable Owner from responsibility or liability for the performance of its obligations hereunder. Except as expressly permitted in this Section, any assignment of obligations purported to be made by an Owner shall be null, void, and of no force or effect. -10- 13. Authority. Each undersigned person executing this Declaration on behalf of a party represents and certifies that: (a) he or she has been empowered and authorized byall necessaryaction of the applicable party to execute and deliver this Declaration; (b) he or she has full capacity, power, and authority to enter into this Declaration; and (c) the execution, delivery, and performance of this Declaration have been authorized by the applicable party. 14. Miscellaneous. This Declaration: (a) may be executed in separate counterparts, each of which shall be an original, but all of which together shall constitute a single instrument; and (b) shall be governed by, and construed in accordance with, the laws of the State of Indiana. All proceedings arising in connection with this Declaration shall be tried and litigated only in the state courts in Hamilton County, Indiana, or the federal courts with venue that includes Hamilton County, Indiana. The invalidity, illegality, or unenforceability of any one or more of the terms and conditions of this Declaration shall not affect the validity, legality, or enforceability of the remaining terms and conditions hereof. All Exhibits referenced in this Declaration are attached hereto and incorporated herein by reference. [Signature pages to follow.] -11- IN WITNESS WHEREOF, CRC and M&M have executed this Declaration as of the date set forth in the introductory paragraph hereof. ACKNOWLEDGMENT STATE OF INDIANA ) Hamilton ) SS: COUNTY OF ) THE CITY OF CARMEL REDEVELOPMENT OMMISSION By: Woo Wil is r, President AND t By v2 David C. Bowers, Vice President Before me, a Notary Public in and for the State of Indiana, personally appeared William Hammer and David C. Bowers, the President and Vice President, respectively, of The City of Carmel Redevelopment Commission, who acknowledged the execution of the foregoing Declaration (Micro Office) on behalf of such entity. �( WITNESS my hand and Notarial Seal this 110clay of4biy, 2020. By: .� Notary Public I am a resident of County, Indiana. My commission expires -12- Printed Name: LioZ 'ZZ jdy sajldx3 uoIssiwwo3 AW E696tLWN jagwnN uolsstwwo� eurlpul jo a7ej5 - A4uno3 uo;1lweH leas - �Ilgnd kmON 331 13VHDIW ACKNOWLEDGMENT STATE OF INDIANA ) ) SS: COUNTY OF HAMILTON ) By: LLC Managing Member Before me, a Notary Public in and for the State of Indiana, personally appeared Charles Lazzara, the Managing Member of Monon and Main, LLC, who acknowledged the execution of the foregoing Declaration (Micro Office) on behalf of such entity. A umf WITNESS my hand and Notarial Seal this 2da of -July; 2020. By: � Notary Public I am a resident of My commission expires County, Indiana. Printed Name: MICHAEL LEE Notary Public - Seal Hamilton County - State of ID Commission Number NP071 My Commission Expires Apr 2 Return following recording to One Civic Square, Carmel, Indiana 46032, Attn: Executive Director. This instrument was prepared by Ryan R. Wilmering, Attorney -At -Law, Wallack Somers & Haas, One Indiana Square, Suite 2300, Indianapolis, Indiana 46204. 1 affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law. Ryan R. Wilmering -13- INDEX TO EXHIBITS Exhibit A Depiction - Garage Ground Parcel and Micro Office Site Exhibit B-1 Legal Description - Garage Ground Parcel Exhibit B-2 Legal Description - Garage Air Parcel Exhibit B-3 Legal Description - Micro Office Site -14- b 31d AVENUE SW (W' Pua c e/w) �T --------i --- -r I I I I I II � II I, O I O O I I I T I T c n I I I I � II I I I g z o 0: 110161 /60-9111 _S r1av1�/ NON A'10 EM//®'A'\/60911-51ol-froOtxn/4rs.w9lnvrtzm u r �:r,.i. i«,� - �r i - i i�•,� , O z m oz PO Ace 3rd A VENUES W '20S..W-91:94L..✓ i ZI RI z I O o .....____. ..__. N • .. U co > ({ r o � r J N �w o I o N --- m ' a 11 z 4 � I N S0222 01 o, m 7 20 ii .... �. / .-.v..... S 0102'22 E 69.53� N 101'0222 W N z� 'r^37.20' rnN o�' ?.x. �,.N,.J:02,22:.aW m -'i++ _. ' S 1'02'22' E 149.70' aN m � • Nui J y - w N 4 -_ r Z O Oo m N m N N ........_.. P w f 1 V J T N 3am� m i+ 0N m� ppp D- S a D m: Dim m u 1 br n.r� COy" w p - N cq Z m 0. S 0'51'17 E 149.73 m °; o' N O'S1'1T W 149.73' p-S-1'02122 E-99:81�-"""-"'�'"""' N ml p z N 1'02'22* W 99.81' nNi N p D ro� w w 00 I+ n n 0 J m D cNn o 0 r a N D (n If m m S 0'14'54' E 278.58' 1n MONON TRAIL y NC tizl� D N20 cA'f ,Dy�ymm AODNm N O O N m D m0ZpN 0 0 C O ocNcz� �m m oDo-::_ o 0 fD/1 ZO v) A D~ N D 'm T1 m `mDmvc <zm oo��c �D0 , c� m z o r y Z. AM O r�*�0 00 rn�9 j O Z m N < 0 o�omr oA� 0 C UI m r m� m O ti O 05 N p r EXHIBIT B-1 Garage Ground Parcel (Part of what also is known as Parcel 1) All of Lots 8 and 9, part of Lots 5, 6, 7 and 10 and part of a 15 foot alley per the Plat of Ira Mendenhall's Addition as recorded in Deed Book 23, page 81 in the Office of the Recorder of Hamilton County, Indiana lying below an elevation of 829.90 feet (elevations referenced to NAVD 88 datum based on a control survey of Carmel Midtown by Civil and Environmental Consultants Job Number 163-845 dated October 13, 2016) and being more particularly described as follows: Commencing at the northwest corner of said Lot 7; thence South 00 degrees 15 minutes 20 seconds East along the west line of said Lot 7 a distance of 91.94 feet to the POINT OF BEGINNING, thence North 88 degrees 57 minutes 38 seconds East a distance of 116.20 feet; thence South 01 degrees 02 minutes 22 seconds East a distance of 0.53 feet; thence North 88 degrees 57 minutes 38 seconds East a distance of 11.35 feet; thence South 01 degrees 02 minutes 22 seconds East a distance of 37.20 feet; thence North 88 degrees 57 minutes 38 seconds East a distance of 16.67 feet; thence South 01 degrees 02 minutes 22 seconds East a distance of 149.70 feet to the south line of said Lot 10; thence South 88 degrees 59 minutes 02 seconds West along the south lines of said Lots 10, 9 and 8 a distance of 146.78 feet to the southwest corner of said Lot 8; thence North 00 degrees 15 minutes 20 seconds West along the west lines of said Lots 8 and 7 a distance of 187.39 feet to the Point of Beginning, containing 0.611 acres of land, more or less. Exhibit B-2 Garage Air Parcel (Part of what also is known as Parcel 1) All of Lots 8 and 9, part of Lots 5, 6, 7 and 10 and part of a 15 foot alley per the Plat of Ira Mendenhall's Addition as recorded in Deed Book 23, page 81 in the Office of the Recorder of Hamilton County, Indiana lying above an elevation of 829.90 feet (elevations referenced to NAVD 88 datum based on a control survey of Carmel Midtown by Civil and Environmental Consultants Job Number 163-845 dated October 13, 2016) and being more particularly described as follows: Commencing at the northwest corner of said Lot 7; thence South 00 degrees 15 minutes 20 seconds East along the west line of said Lot 7 a distance of 91.94 feet to the POINT OF BEGINNING, thence North 88 degrees 57 minutes 38 seconds East a distance of 116.20 feet; thence South 01 degrees 02 minutes 22 seconds East a distance of 0.53 feet; thence North 88 degrees 57 minutes 38 seconds East a distance of 11.35 feet; thence South 01 degrees 02 minutes 22 seconds East a distance of 37.20 feet; thence North 88 degrees 57 minutes 38 seconds East a distance of 16.67 feet; thence South 01 degrees 02 minutes 22 seconds East a distance of 149.70 feet to the south line of said Lot 10; thence South 88 degrees 59 minutes 02 seconds West along the south lines of said Lots 10, 9 and 8 a distance of 146.78 feet to the southwest corner of said Lot 8; thence North 00 degrees 15 minutes 20 seconds West along the west lines of said Lots 8 and 7 a distance of 187.39 feet to the Point of Beginning, containing 0.611 acres of land, more or less. Exhibit B-3 Legal Description A part of 1st Street SW in the City of Carmel, Clay Township of Hamilton County, Indiana being more particularly described by Tyler J. Thompson, LS21400006 of Civil & Environmental Consultants, Inc. on December 23, 2019, as follows: Commencing at the southwest corner of Lot 1A in Ira Mendenhall's Addition Re -Plat of Lots 4, 5, 6, 7, 8, 9, 10 & 11 recorded as Instrument Number 2018031548 in the Office of the Recorder of Hamilton County, Indiana, also being the intersection of the north right-of-way of 1 st Street SW and the east right-of-way of 3rd Avenue SW; thence North 88 degrees 59 minutes 02 seconds East along the south line of said Lot 1A a distance of 4.22 feet to the west face of the existing building and being the POINT OF BEGINNING; thence continuing North 88 degrees 59 minutes 02 second East along said south line a distance of 18.22 feet to the east face of the existing building; thence South 00 degrees 47 minutes 35 seconds East along said east face of building a distance of 6.56 feet to the southeast corner thereof; thence South 88 degrees 53 minutes 43 seconds West along the south face of the existing building a distance of 18.19 feet to the southwest corner thereof; thence North 01 degrees 02 minutes 40 seconds West along said west face of building a distance of 6.59 feet to the Point of Beginning, containing 0.003 acres of land or 119.7 square feet, more or less.