HomeMy WebLinkAboutDeclarations Amended2008002530 RMND DECL $72.00
V 01/15/2008 02:32:01P 30 P6S
Jennifer J Hayden
HAMILTON County Recorder IN
Recorded as Presented
AMENDED AND RESTATED DECLARATION OF
DEVELOPMENTSTANDARDS, COVENANTS, EASEMENTS AND
RESTRICTIONS FOR WEST CARMEL MARKETPLACE
Duke Construction Limited Partnership, as the owner of all of the Real Estate (defined
below) located in Hamilton County, Indiana, hereby declares and establishes the following
standards, covenants and restrictions, which shall be binding upon and run with the Real Estate
and shall inure to the benefit of and be binding upon all owners and occupants thereof for
purposes of:
(a) Maintaining and implementing minimum standards pertaining to the
development, use and maintenance of West Carmel Marketplace (defined below);
(b) Promoting the stability and enhancement of values of the land and
improvements within West Cannot Marketplace;
(c) Furthering development and improvement of West Carmel Marketplace in
an aesthetic and architecturally harmonious manner and in accordance with applicable zoning
ordinances; and
(d) Establishing and apportioning rights and responsibilities with regard to
facilities and services in, and required for the use and operation of, West Carmel Marketplace.
ARTICLE 1
Definitions
As used herein, the following terms shall have the meanings indicated:
(a) "Annual Assessment Costs" shall mean the sum of the Common Facilities
Maintenance Costs plus the Association Operating Costs that are incurred by the Association in
each respective calendar year and are specifically approved by the majority of the directors of the
Association elected by the Members in accordance with the Articles of Incorporation of the
Association.
• (b) "Architectural Control Committee" shall mean the entity responsible for
conducting the Architectural Review Process.
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(c) "Architectural Review Process" shallmean the procedure set forth in Article 4
for obtaining the approval or disapproval of the Architectural Control Committee for any
proposed plans and specifications for improvements to be constructed on a Parcel.
(d) "Association" shall mean and refer to West Carmel Marketplace Owners
Association, Inc., an Indiana non-profit corporation.
(e) "Association Operating Costs" shall mean the necessary and appropriate costs
(other than Common Facilities Maintenance Costs) of operating the Association for the purposes
set forth in this Declaration, including, but not limited to, the cost of public liability insurance,
officers and directors' insurance, casualty insurance for improvements constituting a part of any
Common Facility, and the costs of hiring employees, independent contractors and legal,
accounting and other professional advisors in connection with the Association's exercise of its
rights and performance of its obligations hereunder.
(f) "Benefited Parties" shall mean the Owners, from time to time, and their
respective lessees, occupants, subtenants, assignees, mortgagees and licensees of all or any
portion of the Real Estate; third parties granted easement rights by Developer; personnel of utility
companies in connection with providing any utility service to any part of West Carmel
Marketplace; and personnel of any public or quasi -public body in connection with providing
service to West Carmel Marketplace or any person in West Carmel Marketplace, including, but
not limited to, police and fire protection, ambulance and other emergency traffic, trash and
garbage collection, postal service and delivery service.
(g) "Common Facility" shall mean each facility located within a Common Facility
Easement in West Carmel Marketplace, and intended for the common use and enjoyment of the
Owners and other Benefited Parties, including, but not limited to, roadways (including curbing,
sidewalks, islands, lighting, signs, traffic control facilities, and landscaping); and storm water
retention ponds, drainage pipes, outlet control structures, swales and other storm drainage
facilities.
(h) "Common Facility Easement" shall mean each portion of West Carmel
Marketplace in which, pursuant to a duly recorded instrument, the Owners hold an easement for
the common use and enjoyment of the Owners and other Benefited Parties, together with each
Common Facility located in or upon each such easement. Common Facility Easements include,
without limitation, the easements granted herein in the Common Roadway and Detention Ponds
(as defined in Section 5.04(b) below), and the drainage mains and other common facilities
located thereon as more particularly described in Section 5.04, below.
(i) "Common Facilities Maintenance Costs" shall mean the costs necessary for the
Association to perform its obligations hereunder to keep each Common Facility in good
operating condition and in attractive appearance, including, but not limited to, the cost of all
upkeep, maintenance, repair, and replacement of all or any par[ of each Common Facility;
payment of taxes imposed on either the Common Facility or on the underlying fee, easement or
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right-of-way; and any other expense reasonably necessary or prudent for the satisfactory
operation of each Common Facility.
G) "Common Roadwav' shall mean that portion of the Real Estate described on
Exhibit A-2 attached hereto and incorporated herein by reference and depicted on Exhibit A
attached hereto and incorporated herein by reference, and all pavement, curbing, lighting fixtures
landscaping, and other improvements and facilities located thereon.
(k) "Co -Owners" shall mean two or more persons or entities which together are
the record owners of all or any portion of the Real Estate as tenants-in-conunon, joint tenants
(with or without right of survivorship) or tenants by the entirety.
(1) "Developer" shall mean Duke Construction Limited Partnership; or any
successor in interest or assignee that is expressly designated as a successor Developer in a
recorded instrument executed by the preceding Developer.
(m) "Member" shall mean and refer to each member of the Association.
(n) "No Build Area" shall mean that portion of the Real Estate depicted on
Exhibit A and labeled as "No Build Aron".
(o) "Outlots" shall mean the lots described on Exhibit A-3 attached hereto and
incorporated herein by reference, and depicted on Exhibit A situated along the west property line
of the Real Estate between the Common Roadway and North Michigan Road (U.S. 421).
(p) "Owner" shall mean each person or entity, including the Developer and any
Co -Owner, which is a record owner of all or any portion of the Real Estate. In the case of a.
leasehold or contract vendee interest in any portion of the Real Estate, the lessee or contract
vendee shall be considered the Owner for the term of the lease or the purchase contract only if
designated as such by the record Owner in a duly recorded instrument.
(q) "Parcel" shall mean a portion of the Real Estate owned by the Developer or
any Owner for the erection and use of a single building or more than one building together with
the improvements on such portion.
(r) "Proportionate Share" shall mean, with respect to an Owner of all or any
portion of the Real Estate, a fraction having a numerator equal to the acreage of the Owner's
Parcel, and a denominator equal to the total acreage of the Real Estate reduced by the total
acreage contained within all Common Facility Easements.
(s) "Real Estate" shall mean a portion of the land contained within West Carmel
Marketplace which is described on Exhibit A-1 attached hereto and incorporated herein by
reference, and depicted on Exhibit A, comprising a total of approximately thirty-seven (37) acres,
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together with any additional land incorporated into West Cannel Marketplace by the Developer
as provided in Section 9.01.
(t) "West Carmel Marketplace" shall mean the Real Estate and the improvements
constructed thereon from time to time.
ARTICLE 2
Real Estate Subiect to This Declaration
Replacement Of Prior Deed Restrictions
The Real Estate, each portion thereof, and all improvements thereon shall be held,
transferred, sold, conveyed, leased, mortgaged and occupied subject to the terms, provisions,
covenants and conditions of this Declaration.
ARTICLE 3
West Carmel Marketplace
Owners Association, Inc.
Section 3.01. Membership. Every Owner, including the Developer, of all or any portion
of the Real Estate shall be a Member. The membership of a person or entity in the Association
shall commence upon becoming an Owner and shall terminate upon ceasing to be an Owner.
Membership shall be appurtenant to the Parcel giving rise to such membership and shall not be
assigned or transferred except as a part of and in connection with the conveyance of the Parcel to
a now Owner. Every person or entity who owns one or more Parcels, including but not limited to
Owners and Developer, shall automatically upon becoming an owner of a Parcel be and become
a Member of the Association. In addition, any original Member or any replacement Member of
the initial Board of Directors (as designated under Section 3.05 of the Declaration) shall be
deemed a member of the Association and an Owner solely for the purpose of qualifying to act as
a Member of the Board of Directors but shall not be deemed an Owner or Member of the
Association for any other purpose.
Section 3.02. Members Rights and Duties. All Members of each Class shall have the
same rights, privileges, duties, liabilities, limitations and restrictions as the other Members of
such Class. Each Member shall have the rights, duties and obligations set forth in this
Declaration and all amendments duly made hereto in accordance with Section 9.01.
Section 3.03. Voting Rights. With respect to each matter on which a Member of the
Association is entitled to vote, the Association shall have two (2) classes of membership with the
following voting rights;
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(a) Class A Member. The only Class A Member of the Association shall be
Developer. Class A membership shall terminate and there shall be no Class A Member upon the
date that the undeveloped acreage of the Real Estate is less than ten percent (10%) of the total
acreage of the Real Estate. For such purpose, the term "undeveloped acreage' shall mean and
refer to Parcels within West Carmel Marketplace without completed buildings and related
improvements constructed in accordance with the plans and specifications approved therefor by
the Architectural Control Committee. Upon termination of the Class A membership, the
Developer shall automatically become a Class B Member of the Association provided that the
Developer then owns a Parcel.
(b) Class B Members. Any person, partnership, corporation or other entity, other
than the Developer, which owns any Parcel within West Carmel Marketplace shall be a Class B
Member of the Association.
Section 3.04. Votes of Members. With respect to each matter on which a Member is
entitled to vote, the Member shall have the following voting rights:
(a) Prior to termination of the Class A Membership, the Class A Member shall be
entitled to three (3) votes for each acre of the Owner's Parcel on all matters requiring a vote of
the Members of the Association. Fractional acreage shall entitle the Class A Member to
fractional votes.
(b) The Class B Member shall be entitled to cast one (1) vote for each acre of the
Parcel of which the Member is then the Owner. Fractional acreage shall entitle a Member to
fractional votes.
(c) Co -Owners shall have the right to cast in the aggregate only that number of
votes to which a single Owner of the Co -Owners' Parcel would be entitled. The aggregate vote
of Co -Owners of any Parcel may be cast by any one of them unless an objection or protest is
made by one of the Co -Owners, in which case the aggregate vote of all Co -Owners of the Parcel
in question shall not be counted.
Section 3.05. Board of Directors. The number of directors of the Association shall be
two (2) and all directors of the Association shall be elected by the Members, including the
Developer if the Developer is a Member at that time.
Section 3.06. Formation of the Association. The Association shall be formed by
Developer no later than ninety (90) days immediately following the date any party other than the
Developer becomes an Owner.
ARTICLE 4
Site Development Plan
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Section 4.01. Composition of Architectural Control Committee. Prior to the formation
of the Association, the Architectural Control Committee shall consist of three (3) persons
appointed by Developer. Thereafter, the Architectural Control Committee shall consist of three
(3) persons named by the Board of Directors of the Association.
Section 4.02. Architectural Control Committee Approval. All buildings, structures,
alterations, additions, improvements, construction or remodeling on any Parcel, including any
signs, lighting, landscaping, driveways, parking area or other changes in the character of the
Parcel, shall be approved by the Architectural Control Committee prior to commencement of
construction. Such approval shall be obtained in the following manner;
(a) Prior to obtaining detailed architectural plans, the Owner of the Parcel and its
architect or engineer shall submit to the Architectural Control Committee preliminary renderings
of elevations, a preliminary grading plan and a plot plan. The Architectural Control Committee
shall, within thirty (30) days after receipt of such plans, either give written approval indicating
such plans comply with this Declaration ("Initial Approval") or give written disapproval
specifically stating the reasons for such disapproval.
(b) After obtaining the Initial Approval of the Architectural Control Committee,
the Owner shall submit to the Architectural Control Committee a site plan and a stamped set of
final plans and specifications (the "Site Development Plan') showing the size and location of
each building and other improvements, building elevations, parking areas, driveways, exterior
signage, exterior lighting, green areas and other landscaping, grading, site drainage, utilities,
trash storage and handling facilities, vehicular access to and from the Parcel, and the type, quality
and color of exterior building materials, no later than the date upon which such Site Development
Plan is submitted to the appropriate governmental agency for its approval. Within thirty (30)
days after receipt of the Site Development Plan, the Architectural Control Committee shall either
give its written approval thereof ("Final Approval") or give written disapproval specifically
stating the reasons for such disapproval.
(c) Final Approval by the Architectural Control Committee willbe based on the
acceptability of the Site Development Plan with respect to all factors that, in the opinion of the
Architectural Control Committee, affect the desirability or suitability of the proposed
construction or alteration. Factors to be considered shall include, but not be limited to,
compatibility of the proposed construction or alteration with the general nature and theme of
West Carmel Marketplace; quality of workmanship and materials; quality, color mid texture of
exterior materials; harmony of external design with surrounding structures; location with respect
to topography; effect of the construction or alteration on the access to, visibility of or availability
of parking for surrounding property (whether from within or outside West Carmel Marketplace);
location and effect of loading and trash collection areas in respect of surrounding properties; the
adequacy and location of on -site parking; percentage of building and parking area to total area of
the Parcel; height of buildings; setbacks from boundary lines; traffic flow; safety and health
hazards; and appropriateness of landscaping, drainage and design. In each ease, the proposed
improvements, construction and other site work as well as the Owner's use of the Parcel must
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comply with all applicable laws, codes, ordinances, regulations and private recorded covenants
and with any specific standards or restrictions contained in this Declaration. In addition, all
actual construction, improvements and other site work shall comply with the Site Development
Plan for which Final Approval is given.
Section 4.03. General Architectural Standards. The following architectural standards
shall apply to all buildings, improvements and structures developed on the Real Estate (the"Real
Estate Improvements"):
(a) Exterior walls may not be faced with metal or plastics of any kind (other than
as a component utilized in an EIFS finish system, such as Dryvit), concrete block (except for
fluted or split -faced block which is painted or stained), or unpainted smooth concrete. This
architectural standard shall not preclude the use of standing seam metal roofs (mansard style or
otherwise), or architectural metal screens around rooftop mechanical equipment.
Notwithstanding the foregoing, walls which are adjacent to service and loading areas and which
are not visible to the general public or from adjacent property may be painted concrete block or
pre -cast concrete.
(b) Dumpsters and compactors shall be located within wood and/or masonry
enclosures with opaque wooden or metal gates or doors.
(c) All mechanical equipment (roof or ground -mounted) shall be screened from
view, as viewed at a level of 5 feet above grade along Michigan Road, Retail Parkway and
Commerce Drive.
(d) No chain link fencing shall be allowed.
(e) No painted signs, flood -lit signs, box signs, or raceways. Only individually -lit
channel letter signs shall be permitted.
(f) All parking lots shall be curbed.
(g) Parking lot lighting shall provide for a minimum average maintained light
level of 1.0 foot candles at ground level. Parking lot lighting will be installed so as to prevent
glare or spillage onto adjacent lots or right-of-way. All parking lot lighting shall be of type, color
and design as specified by the Developer and approved by the City of Cannel.
(h) All private utility lines servicing the Real Estate or any buildings,
improvements and structures thereon shall be located underground.
(i) All landscape and lawnlgrass areas shall be irrigated.
Section 4,04. Building to Land Ratio. The ratio of the building area to the total land area
of each Parcel shall not exceed fifty percent (50%) of the land area of the Parcel. The
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Architectural Control Committee may waive or vary this requirement at the request of any
Owner, considering the location within West Carmel Marketplace of such building and the use
thereof, but in no event shall the building area exceed seventy percent (70%) of the land area of
any Parcel. Where more than one building is constructed on a Parcel, the building area shall be
the sum of the areas of the buildings within the Parcel.
Section 4.05. Setback Requirements. No building shall be located on any Parcel in
violation of any applicable building set -back requirements imposed by or otherwise applicable
pursuant to any law, statute, code, ordinance, rule or regulation or any special exception or
variance thereto. The open areas located between property lines and the applicable building
setback lines shall be maintained and preserved as green areas and landscaped in accordance with
the Site Development Plan originally approved by the Architectural Control Committee or, with
the prior written approval of the Architectural Control Committee, may he used as parking or
driveway areas.
Section 4.06. Driveways and Parking. All driveways and parking areas located within a
Parcel shall be paved in accordance with the specifications originally approved therefor by the
Architectural Control Committee. Each Owner shall designate parking spaces on its Parcel and
shall require all persons coming onto its Parcel to park in the designated spaces. All parking
facilities on a Parcel must comply with the applicable zoning ordinance unless a waiver of the
parking requirements is obtained from both the appropriate zoning authority and the
Architectural Control Committee. No parking shall be permitted on any driveway or street
located within a Parcel, and no Owner shall permit parking related to its Parcel to encroach on
the parking for other Parcels or nearby parking areas except with the express written consent of
the Owners of such other areas. Each Owner shall be responsible for constructing the driveways
and parking areas on its Parcel and shall maintain such areas including, but not limited to,
keeping such areas clean mid promptly removing ice and snow therefrom. Each Owner shall
extend any driveway on its Parcel to the then existing access road adjacent to the Owner's Parcel
even though a portion of the extension may extend beyond its Parcel and into the right-of-way of
the access road.
Section 4.07. Loading. Loading areas shall be subject to the approval by both the
appropriate zoning authority and the Architectural Control Committee. In determining whether
to grant such approval, the Architectural Control Committee shall take into consideration the
compatibility of the loading area with the structures and uses both within and outside West
Carmel Marketplace in the vicinity of the Parcel, the appropriateness of screening the loading
area, and the efficient and economical use of the Parcel and the building thereon. Screening
required by either the appropriate zoning authority or the Architectural Control Committee shall
be shown in detail on the Site Development Plan.
Section 4.08. Parking. The Owners shall each provide a sufficient number of parking
spaces on their respective Parcels to meet all applicable governmental ordinances and the
provisions contained herein.
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Section 4.09. No Build Area. The construction of permanent building improvements is
strictly prohibited in the No Build Area depicted on attached Exhibit A without the prior written
consent of the Developer, which consent may be withheld in the Developer's sole and absolute
discretion.
Section 4. 10. Special Outlot Provisions.
(a) No more than one (1) building shall be constructed on any outlot without Developer's
consent.
(b) No Outlet building, inclusive of signage or other attachments, may contain more than
one (1) story nor exceed a height of twenty-three feet (23') from finished grade of the building
pad to the top of the parapet wall, excluding screening of mechanical equipment which shall not
exceed twenty-eight feet (28') in height from finished grade of the building pad, with no single
architectural element higher than twenty-eight feet (28') from finished grade of the building pad,
unless otherwise approved by the Developer or required by applicable municipal law, code or
regulation.
(c) In the event that multi -tenant buildings are located on any Outlot, the total aggregate
floor area of such multi -tenant buildings shall not exceed twenty percent (20%) of the Outlet
area.
Section 4.11. Applicable Zoning Ordinance. The building lines, setbacks, permitted uses
and other matters relating to the construction, maintenance or use of improvements in West
Carmel Marketplace shall be subject to the applicable zoning ordinance and building codes, as
amended from time to time, and all other applicable laws, rules, regulations and ordinances, each
of which shall remain fully enforceable by the proper governmental authority notwithstanding
any provision of this Declaration. No Owner shall seek or obtain any variance, special use
permit,change, modification, deletion or addition to the existing zoning ordinance or building
code which would impose standards, restrictions, limitations or other encumbrances upon all or
any portion of the Real Estate not contained within such Owner's Parcel, except with the prior
written consent of each such affected Owner and the Developer.
The validity and enforceability of any standard, restriction or condition under this
Declaration which is more stringent than, or is in addition to, any standard or restriction imposed
under applicable law shall remain valid and fully enforceable in accordance with the terms of this
Declaration.
ARTICLE 5
Common Facility Easements
Section 5.01. Conveyance to Association. Developer shall, immediately following the
date the Association is formed, transfer and convey Developer's interest in and to the Common
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Roadway and the Detention Ponds to the Association, and the Common Roadway and the
Detention Ponds shall thereafter to be held and maintained by the Association in accordance with
this Declaration.
Section 5.02. Rights of Owners. Each Owner and other Benefited Party shall have a
non-exclusive right and easement to use, in common with every other Owner and Benefited
Party, each Common Facility Easement created pursuant to a duly recorded instrument which
designates the easement as a Common Facility Easement or which provides for the common use
and enjoyment thereof by all Owners and Benefited Parties. The use by the Benefited Parties of
each Common Facility Easement shall be limited to the purposes set forth in the instrument
creating the Common Facility Easement; provided, however, that the Owner of a Parcel subject
to a Common Facility Easement shall retain the right to use the portion of the Owner's Parcel
burdened by such easement for other purposes to the extent not inconsistent with the purpose of
the Common Facility Easement. Any Common Facility Easement granted to the Association
shall constitute an easement for the common use and benefit of all Owners and Benefited Parties.
The rights of each Owner and Benefited Party in and to each Common Facility Easement shall be
subject to (i) the terms and provisions of the duly recorded instrument creating the easement
including, but not limited to, any right of extinguishment or relocation set forth therein and. (if)
the right of the Association to regulate the use of the Common Facility Easement for the benefit
of all Owners and Benefited Parties,
Section 5.03. Maintenance of Common Facility Easements.
Except for repair, maintenance or replacement of a Common Facility
which is the responsibility of any utility company or public or quasi -public body, the Association
shall maintain each Common Facility in good order and repair. The Association shall not,
however, be liable to any Owner, Benefited Party or other person or entity for damages to
property or injury or death to persons arising out of any failure to repair and maintain any
Common Facility. Maintenance, repair or replacement by the Association of a Common Facility
shall be performed in a commercially reasonable manner which does not unreasonably delay or
interfere with the Benefited Parties' use of the Common Facility or an Owner's use of its Parcel.
The Association shall be entitled to reasonable access over and across any Parcel to a Common
Facility Easement to the extent necessary to permit the Association to maintain, repair or replace
such Common Facility. Maintenance by the Association of the Common Facilities shall include,
but not be limited to, the following:
(i) The private roadways and any sidewalks within the Common Facility
Easements shall be paved, kept in good condition and repair and, to the extent reasonably
possible, debris, snow and ice shall be removed therefrom.
(ii) The lighting, signs, islands, traffic control facilities and other roadway
improvements located within a Common Facility Easement shall be maintained in good repair.
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(iii) Landscaping, including lawn areas, trees and shrubbery within any
Common Facility Easement, which is not located on an Owner's Parcel, shall be maintained in
good condition through regular lawn cue,
(iv) The Detention Ponds shall be maintained in good working order.
(v) The land and any improvements lawfully constructed in the Common
Facility Easement shall be restored to the extent damaged in connection with maintenance, repair
or replacement of any Common Facility by the Association.
The Association shall be entitled to replace any improvement constituting a part of a Common
Facility when necessary for the proper functioning of the Common Facility.
Section 5.04. Initial Common Facilities Easements. Developer hereby grants and
declares, for good and valuable consideration and to further the use and development of West
Carmel Marketplace, a perpetual, non-exclusive right and easement in, under, over, through and
across:
(a) the Common Roadway for the construction, use, maintenance, repair and
replacement of a roadway and related curbing, lighting, directional signage, landscaping, utility
and storm water drainage mains, lines and facilities and other improvements and facilities
incidental thereto for the purpose of providing utility services, storm water drainage, and ingress
and egress access, both vehicular and pedestrian, to all Parcels and to all Owners and their
respective successors in interest and assigns, purchasers, mortgages, lessees, occupants,
employees, agents, contractors, licensees and invitees; and
(b) The detention ponds and related storm drainage mains and lines for the
construction, use, maintenance, repair and replacement of a storm water drainage system serving
all Parcels within the Real Estate (the "Detention Ponds").
(c) The Monument Sign Areas identified on Exhibit A, for the construction,
maintenance, repair and replacement of monument signs and/or pylon signs identifying the Real
Estate as West Carmel Marketplace.
The Common Roadway, Detention Ponds and the Monument Sign Areas shall be
Common Facilities Easements under the terms of this Declaration and shall be constructed, used,
maintained, repaired and replaced in accordance with the terms of this Declaration. Developer
shall have the right to relocate the easements granted herein upon obtaining the written consent
of the then Owners of the Parcels upon which the new or relocated easement is to be located. No
consent of any other Owners shall be required so long as there is no material interference with
the access, utilities or storm water drainage provided by such easements.
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The easements granted herein shall be appurtenant to, imposed upon and run with
the Real Estate and shall be binding upon and inure to the benefit of the Owners, from time to
time, and their respective successors and assigns.
ARTICLE 6
Certain Use Standards
Section 6.01. Maintenance of Owner's Parcels. Except as provided in Section 5.03
heremabove, each Owner shall be responsible for the maintenance of its Parcel and the
improvements thereon and shall keep the exterior of its building painted and in a sightly
condition. All parking areas and driveways shall be paved with asphalt or concrete and
maintained in good condition and repair, Without limiting the generality of the foregoing, (i)
each Owner shall maintain each of its buildings in good condition and repair and keep the
exterior of each building as well as all other portions of its Parcel in an attractive condition; (ii)
no nuisance shall be permitted within West Carmel Marketplace; (iii) each Owner shall keep its
Parcel free of litter, weeds, trash and debris; (iv) landscaping on the Owner's Parcel shall be
maintained in the locations and in at least the quality and quantity originally approved by the
Architectural Control Committee and in accordance with Section 6.02 hereinbelow; (v) the
pavement of all parking areas and driveways within the Parcel shall be maintained in good
condition and repair, free of potholes and shall be restriped as needed; and (vi) each Parcel and
the improvements thereon shall at all times comply with governmental, health, fire and police
requirements.
Section 6.02. Landscaping and Site Work: Crooked Creek Maintenance. Landscaping
plans shall be submitted to the Architectural Control Committee at the same time as the Site
Development Plan is submitted. The Owners of each Parcel shall maintain lawns, trees and
shmbs. Unpaved sections of each Parcel shall be maintained in grass and landscaping, including
any portion of the Parcel within a public right-of-way or building setback area. No fence, wall,
tree, hedge or shrub -planting shall be maintained in such manner as to obstruct sight lines for
vehicular traffic or signage on any Parcel, With respect to that portion of the Crooked Creek
regulated drain located upon the Real Estate, the Association shall not plant or permit to exist
any trees, shrubs or other woody vegetation within the drain or within fifteen (15) feet of the top
of either bank of the drain (collectively, the "Protected Drainage Area"). The Association shall
also be responsible for maintenance of all portions of the Protected Drainage Area located upon
the Real Estate. Any vegetative or other obstruction to operation of the drain (as determined by
the Hamilton County Surveyor) must be removed from the Protected Drainage Area by the
Association, at its sole cost and expense, within a reasonable time following written notice
thereof from the Hamilton County Surveyor's office.
Section 6.03. Puking Prohibition. Parking of any vehicles on any publicly dedicated
street within West Carmel Marketplace or on any Common Roadway shall be prohibited.
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Section 6.04. Non -Barrier. Except as required or approved by Developer, no walls,
fences, curbs or other barriers shall be installed, erected or maintained restricting, limiting,
interfering with or blocking the free flow of traffic, ingress or egress to, from, over or between
any Parcels in West Carmel Marketplace except to the extent reasonably necessary to direct and
control traffic flow among such Parcels as part of an integrated commercial development.
Section 6.05. Outside Storage. Outside storage of raw materials, finished products,
inventory, equipment and/or any other items shall be strictly prohibited in the paved parking
areas on any Parcel, except for outside sales and display areas which shall be conducted only
after obtaining the prior written consent of Developer or the Association (which written consent
shall include, without limitation, tenant rights under leases executed by Developer). This section
does not prohibit outdoor dining seats.
Section 6.06. Construction Work.
(a) When conducting any construction work undertaken upon the Real Estate, the
respective Owner of the Parcel upon which construction work is to be performed shall take all
necessary safety measures, including but not limited to the erection of barricades (which shall be
kept free of offensive advertising materials) as shall be reasonably required to protect persons
and property from injury or damage caused by, or resulting from any work or construction
performed by or on behalf of the Owner. Outside storage and loading areas shall be permitted as
reasonably necessary to accommodate the construction, as long as a reasonably clean and neat
appearance is maintained. The Owner shall use reasonable efforts to avoid and minimize
impairment of access and use of public rights of way and access drives located on such Owner's
parcel. The Owner shall use reasonable efforts not to unreasonably interfere, during the course of
said working construction, with the business operations, if any, being conducted on the Real
Estate by the other Owners pursuantto this Declaration or delay the development of
improvements or other activities being performed by the other Owners pursuant to this
Declaration. In the performance of such work or construction, the Owner shall comply with all
effective and applicable laws, rules, regulations, ordinances and codes. Any damage caused to
any other Parcel or to any Common Facility as a result of such construction shall be promptly
repaired and/or restored by the Owner conducting such construction, including (without
limitation) any repair of the Common Roadway and related improvements resulting from
construction traffic.
(b) All construction staging for building improvements on any Parcel shall be
accomplished within the Parcel under construction and in a manner designed to minimize any
interference with the use and enjoyment of the remainder of the Real Estate, and all construction
traffic shall be via a public right-of-way or the Common Roadway onto the Parcel under
construction.
(c) After commencement of construction of any improvements upon a Parcel, the
respective Owner of said Parcel shall diligently prosecute the work thereon in a commercially
reasonable manner, to the end that the improvements shall not remain in a partly finished
860897.4
condition any longer than reasonably necessary for completion thereof. The Owner of the Parcel
on which improvements are being constructed shall at all times keep all public streets, and the
Common Roadway free from any din, garbage, trash or other debris which might be occasioned
by construction of the improvement.
Section 6.07 Sienaee. The location, size and construction of any and all signage on a
Parcel shall comply with all applicable laws, regulations and ordinances and shall be subject to
the prior approval of the Developer. All wall signs must be mounted flat on the surface of the
walls and may not project above the roofline. No hand -painted, animated, flashing or letter
channel signs or signs attached by raceway will be permitted. No exterior signage or advertising,
except as otherwise approved by Developer, shall be permitted, including vehicles parked with
intent to advertise.
Section 6.08. Prohibited Uses. The Real Estate shall be used solely and exclusively for
the development, construction, and operation of a first class retail shopping center, and no
variance, rezoning or other petition seeking an additional or alternative use may be filed without
the express written consent of Developer or the unanimous written consent of all directors of the
Association. The Real Estate shall not be used for any of the following purposes:
(a) manufacturing of any kind, or storage or distribution of products which
materially increase the risk of tire, explosion, or radioactive hazards, including the use of
aboveground and underground storage tanks, with the exception of underground storage tanks
used in connection with a gas station for the storage of gasoline (provided any underground
storage tanks shall be installed and maintained in accordance with all applicable federal and state
rules, laws, standards and regulations);
(b) any business or operation which creates a public or private nuisance, noise, or
causes emission of dust, odor, smoke or gases (provided, however, that construction activities
may take place on the Real Estate as long as cornmerciady, reasonable precautions are taken to
prevent a nuisance to adjacent Parcels);
(c) any dwellings of a residential nature;
(d) any amusement or game rooms or similar establishments including, but not
limited to, pinball machines or similar apparatus; provided, however, a full -service sit down
restaurant containing any amusement or game rooms shall be permitted;
(a) a massage parlor or similar facility, provided, however, the foregoing shall not
prohibit a day spa, which may offer massage therapy as part of its services;
(f) the sale or display of pornographic or "adult" materials, adult bookstore, or an
establishment featuring a male or female review;
860897.4
(g) any building, improvement or use which violates the applicable zoning
ordinance or any other applicable law or regulation;
(h) a bowling alley;
(i) a business including a bar, tavern, pub, nightclub, ballroom or discotheque
providing for on -site consumption of liquor, with the exception of sit down/table service
restaurants and liquor service primarily for customers of said restaurants;
0) a recreational center or facility;
(k) abingo parlor;
(1) a funeral home, parlor or mortuary;
(m) meeting halls;
(n) automotive related uses, including sales, wash, repair and maintenance;
(a) an animal shelter;
(p) a play house, or any use which generates outdoor music at a volume or at
times that may pose a nuisance to adjacent Parcels or to customers of the Real Estate;
(q) self -storage facilities or mini -warehouses;
(r) billboards or similar signs, other than project construction signs and signs
marketing the Parcels or the buildings constricted thereon;
(s) the sale of liquor in package form, including without limitation, beer, wine,
and ale; provided, however, the foregoing shall not prohibit a specialty wine shop, a drug store,
grocery stare, or other specialty store selling wines and liquors such as Cost Plus World Markel,
etc.;
(t) Any new or change in the primary use of any business operated on a Parcel
which is substantially the primary use of then -existing use of any Parcel, unless first approved by
the Architectural Control Committee. The determination of the Architectural Control Committee
shall be in its sole and absolute discretion, and nothing contained herein shall entitle or be
deemed to grant to any Owner or occupant of any Parcel, any exclusive use rights, rights to
restrict competition or rights to restrict the use of any Parcel.
Section 6.09. Applicable Zoning Ordinance. The building lines, setbacks, permitted uses
and other matters relating to the construction, maintenance or use of improvements in West
Carmel Marketplace shall be subject to the applicable zoning ordinance and building codes, as
860897.4
amended from time to time, and all other applicable laws, rules, regulations and ordinances, each.
of which shall remain fully enforceable by the proper governmental authority notwithstanding
any provision of this Declaration. No Owner shall seek or obtain any variance, special use
permit, change, modification, deletion or addition to the existing zoning ordinance or building
code which would impose standards, restrictions, limitations or other encumbrances upon all or
any portion of the Real Estate not contained within such Owners Parcel, except with the prior
written consent of each such affected Owner.
Section 6.10. Waiver of Restrictions. The Architectural Control Committee shall have
the authority, only upon the affirmative vote of two thirds (2/3) of the members of such
Committee, to waive or withhold enforcement of any of the covenants, restrictions and standards
contained in this Article 6; provide d, however, that the Committee's decision to waive or
withhold enforcement of such covenants, restrictions and standards in any particular instance
shall not prevent enforcement thereof in any other instance.
ARTICLE 7
Assessments
Section 7.01. Covenant for Assessments. Each Owner (including the Developer)
covenants and agrees, by the execution of this Declaration in the case of the Developer and by
acceptance of a deed for the Owner's Parcel in the case of each subsequent Owner (regardless of
whether expressly stated in such deed), to timely pay the Association each payment of the
Owner's Proportionate Share of Annual Assessment Costs which becomes due and payable
during the period in which such Owner owns its Parcel.
Section 7.02. Establishing Annual Assessments Payment. The Board of Directors of the
Association shall adopt an estimated budget of Annual Assessment Costs for each calendar year
(the "Annual Budget") and provide a copy of the Annual Budget to each Owner. Each Owner
shall then pay its Proportionate Share of the estimated Annual Assessment Costs set forth in the
Annual Budget in equal quarterly payments due on Much 31, June 30, September 30, and
December 31 of each calendar year. In the event of any extraordinary item of Annual
Assessment Costs incurred by the Association during a calendar year but not included in the
Annual Budget for such year, each Owner shall pay to the Association its Proportionate Share of
each such item within thirty (30) days after receiving a statement therefor from the Association.
On or before March 15 of each calendar year, the Association shall furnish to each Owner a
statement (the "Annual Statement") setting forth the total amount of Annual Assessment Costs
incurred by the Association for the preceding calendar year, the Owner's Proportionate Share
thereof and the amount thereof previously paid by the Owner or a predecessor Owner. The
Association shall refund any overpayment to the then Owner at the time the Annual Statement is
furnished, and in the case of an underpayment, the then Owner shall pay the amount thereof to
the Association within thirty (30) days after receipt of the Annual Statement. In the event the
Association fails to provide any Owner with an Annual Budget or Annual Statement on or before
the applicable date specified above, the Owner shall not be relieved from its obligation to pay its
8608974
Proportionate Share of Annual Assessment Costs, but in such event, the Owner's payment shall
not be due and payable until thirty (30) days after receipt from the Association of an appropriate
statement of the amount due from the Owner.
Section 7.03. Personal Obligation. The amount of each payment of Annual Assessment
Costs for each calendar year attributable to ownership of a given Parcel shall constitute the
personal obligation of the person or entity which is the record Owner of the Parcel on the date the
payment of Annual Assessment Costs becomes due and payable, and no Owner shall be
personally obligated to pay any payment of Annual Assessment Costs which becomes due and
payable either before or after the period during which the Owner is the record Owner of its
Parcel.
Section 7.04. Assessment Liens, In the event of an Owner's failure to timely pay its
Proportionate Share of any payment of Annual. Assessment Costs, the delinquent amount owed
by such Owner shall constitute a lien upon the Owners Parcel as of the date the Association
records an affidavit with the Recorder of Hamilton County, Indiana containing the legal
description of the Owner's Parcel and stating the name of the Owner, the delinquent amount
owed by the Owner and the date on which such amount was due and payable. Such lien shall
encumber the defaulting Owner's entire interest in its Parent, ran in favor of the Association and
be enforceable in the same manner as a mortgage, provided that any such lien shall be
subordinate to the lien of any bona fide first mortgage to an unrelated third party then existing on
the Parcel. The sale, conveyance or other transfer of any Parcel or interest therein shall not in
any manner alter or impair any assessment lien on the Parcel or the right hereunder of the
Association to enforce or impose an assessment lien upon the Parcel. Without limiting the
generality of the foregoing, in the event a delinquency arises with respect to which the
Association is entitled hereunder to impose and enforce a lien upon a Parcel, such right shall
continue notwithstanding that the Parcel or any interest therein is sold, conveyed or otherwise
transferred after such delinquency arises but before the assessment lien therefor is imposed as
provided herein.
Section 7.05. Additional Costs. Each sum owed hereunder by an Owner shall be due and
payable by such Owner without relief from valuation and appraisement laws and together with
costs of collection, attorney fees and, if delinquent for more than thirty (30) days, with interest at
the lesser of eighteen percent (18%) per annum or the highest rate of interest permitted under
applicable law from the date due until paid. In the event a delinquent sum is made a lien upon a
Parcel in accordance with the terms and provisions of this Declaration, the related collection
costs, attorney fees and interest on such delinquent sum shall constitute a further lien upon the
Parcel.
Section 7,06. Certificate of Unpaid Assessments, Within fifteen (15) days after written
request by the Owner of a Parcel or the holder of a mortgage on a Parcel, the Association shall
provide the Owner or holder of such mortgage with a certificate stating the delinquent amount, if
any, of Annual Assessment Costs with respect to such Parcel.
860897.4
ARTICLE 8
Enforcement
Section 8.01. General. The Association shall be entitled to enforce the covenants,
conditions and restrictions imposed under or in accordance with this Declaration, and may pursue
the rights and remedies provided in this Article and any other rights and remedies available to the
Association under this Declaration or at law or in equity. The rights and remedies of the
Association shall be cumulative; no one right or remedy shall be construed as exclusive of any
other; and the exercise of any one right or remedy by the Association shall not preclude it from
exercising any other right or remedy at the same or any subsequent time. The foregoing
declarations, restrictions and protective covenants are to run with the land and shall be binding
on all parties and all persons claiming under them until fifty (50) years from the date hereof, at
which time said covenants or restrictions shall be automatically extended for successive
additional periods of ten (10) years each unless changed by the majority vote of the Members.
Invalidation of any one or more of these covenants by judgment of a court of competent
jurisdiction shall in no way affect any other covenant or restriction, all of which shall remain in
full force and effect.
Section 8.02. Nonpayment of Assessments. If payment of an Owner's Proportionate
Share of Annual Assessment Costs is not timely made, the Association shall be entitled to
recover the delinquency, together with collection costs, attorney fees and interest as provided in
Section 7.05, by instituting legal action against the person or entity personally obligated to pay
the delinquency. In addition, the Association may seek to recover the delinquency, together with
collection costs, attorney fees and interest as provided in Section 7.05, by foreclosing the lien
therefore imposed pursuant to this Declaration upon. the Parcel to which the delinquency relates,
and the Association or the Developer shall be entitled to purchase such Parcel at the foreclosure
sale.
Section 8.03. Enforcement of Other Covenants. In the event an Owner, lessee, occupant
or other user of a Parcel violates or fails to perform any covenant, condition or restriction of this
Declaration (other than the covenant to pay Annual Assessment Costs) and such failure continues
for thirty (30) days after written notice thereof from the Association to the Owner, the
Association shall be entitled to institute an action for enforcement of this Declaration and for
damages or injunctive relief, or both. -
Section 8.04. Substituted Performance. At any time after thirty (30) days written notice
to an Owner of a violation under this Declaration, the Association or its designee shall be entitled
to enter upon the Owner's Parcel and to cure such violation. The cost incurred by the Association
in curing such violation shall be immediately due and payable, together with collection costs,
attorney fees and interest as provided in Section 7.05, in the same manner as a delinquent
payment of Annual Assessment Costs.
860897.4
Section 9.05. Limitation on Personal Liability. The Owner of a Parcel shall be
personally obligated to pay a sum of money payable under the terms of this Declaration by the
Owner of such Parcel only if such sum becomes due and payable on a date during the period in
which such Owner is the record Owner of the Parcel; and an Owner of a Parcel shall be
personally obligated to perform any other obligation imposed hereunder upon the Owner of such
Parcel only if and to the extent that such obligation is required to be performed during the period
in which such Owner is the record Owner of such Parcel.
Section 8.06 No Forfeiture. There shall be no right of reversion or forfeiture of title
resulting from any violation of this Declaration.
ARTICLE 9
General Provisions
Section 9.01. Amendments. This Declaration may be amended upon and subject to the
following terms and conditions:
(a) During the period that the Developer is entitled to appoint a majority of the
directors of the Association, the Developer reserves the right unilaterally to amend and revise the
standards, covenants, restrictions and conditions contained in this Declaration. Any such
amendment by the Developer shall be effective when executed by the Developer and recorded in
the Office of the Recorder of Hamilton County, Indiana. No such unilateral amendment shall,
however, (i) restrict or diminish the rights, nor disproportionately increase the obligations, of any
person or entity which is an Owner at the time the amendment becomes effective, or (Li) grant or
establish any easement through, across or over any Parcel not owned by the Developer when the
amendment becomes effective. The Developer shall also be entitled unilaterally to amend this
Declaration to include additional land as a part of the Real Estate or to remove certain portions of
property from the Real Estate, subject to the covenants, restrictions and standards contained
herein.
(b) At any time after the Developer is no longer entitled to appoint a majority of
the directors of the Association, this Declaration may be amended by the affirmative vote of 75%
or more of the votes of all Members of the Association. Any such amendment shall become
effective when duly executed and recorded with the Office of the Recorder of Hamilton County,
Indiana.
(c) Notwithstanding the foregoing, the requirements of Section 6.02 above
relating to the Crooked Creek regulated drain may not be amended at any time without the prior
written consent of the Hamilton County Surveyor.
Section 9.02. Bindingfiffect, The standards, covenants, restrictions and conditions
contained in this Declaration shall ran with the land and bind the Developer and each immediate
and remote successor Owner of any Parcel and their respective legal representatives, successors
860897.4
and assigns subject, however, to the limitation on personal liability set forth in Sections 7.03 and
8.05.
Section 9.03. Interoretation. The Article and Section headings or titles used in this
Declaration are inserted and included solely for convenience and shall in no manner be
considered or given any effect in construing this Declaration. All references in this Declaration
to Articles and Sections are to Articles and Sections contained in this Declaration unless a
different document is expressly specified. All pronouns used herein shall include the other
genders whether used in the masculine, feminine or neuter gender, and the singular shall include
the plural whenever and as often as may be appropriate.
Section 9.04. Severability. If any covenant, condition, restriction or other term or
provision of this Declaration, or the application thereof to any person, Parcel or circumstance, is
ever held to be invalid or unenforceable, then in each such event the remainder of this
Declaration or the application of such covenant, restriction, condition or other term or provision
to any other person, Parcel or other circumstance (other than the extent to which it shall have
been held invalid or unenforceable) shall not be thereby affected, and each covenant, restriction,
condition or other term and provision of this Declaration shall remain valid and enforceable to
the fullest extent permitted by law.
EXECUTED this �4day of &CeXbe*- , 2007
DUKE CONSTRUCTION LIMITED PARTNERSHIP, an
Indiana limited partnership
By: Duke Business Centers Corporation, an Indiana
corporation, its sole general partner
Printed: William W. Anmbah
Vice President
Title:
Mcal E (uernelalaWev Carmel Marketgtu er clamtlon for WCM.Head,er.doc
860897.4
STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
Before me, a Notary Public in and for said County and State, personally appeared
William W. Annibali, by me known and by me known to be the Vice President of Duke Business
Centers Corporation, the sole general partner of Duke Construction Limited Partnership, who
acknowledged the execution of the foregoing "Amended and Restated Declaration of
Development Standards, Covenants and Restrictions for West Carmel Marketplace" for and on
behalf of said partnership.
Seal this —day of to , 2007.
A.
Votary Public
:Printed Signature)
My County of Residence:
This instrument was prepared by: Angela Hsu, Esq.
Duke Realty Corporation
3950 Shackleford Road, Suite 300
Duluth, Georgia 30096
I 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. Angela Hsu, Esq,
860897.4
EXHIBIT A
SITE PLAN
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EXHIBIT A-1
"REAL ESTATE"
Blocks A, B, C. D, E, and F in the Secondary Plat for West Carmel Marketplace, an addition in
Hamilton County, Indiana, recorded September 26, 2006, in Plot Cabinet 4, page 149 as
Instrument No. 200600056955, corrected by a Certificate of Correction recorded December 5,
2006 as Instrument No. 200600071882, In the Office of the Recorder of Hamilton County,
Indiana, and corrected by a Certificate of Correction recorded December 27, 2006, as Instrument
No. 2006076620, in the Office of the Recorder of Hamilton County, Indiana.
Lot 1, 2, 3 and 5 in the Secondary Plat for West Carmel Marketplace, an addition in Hamilton
County, Indiana, recorded September 26, 2006, in Plot Cabinet 4, page 149 as Instrument No.
200600056955, corrected by a Certificate of Correction recorded December 5, 2006 as
Instrument No. 200600071882, in the Office of the Recorder of Hamilton County, Indiana, and
corrected by a Certificate of Correction recorded December 27,2006, as Instrument No.
2006076620, in the Office of the Recorder of Hamilton County, Indiana.
860897.4
EXHIBIT A-2
"COMMON ROADWAY"
Blocks B and C in the Secondary Plat for West Carmel Marketplace, an addition in Hamilton
County, Indiana, recorded September 26, 2006, in Plot Cabinet 4, page 149 as Instrument No.
200600056955, corrected by a Certificate of Correction recorded December 5, 2006 as
Instrument No. 200600071882, In the Office of the Recorder of Hamilton County, Indiana, and
corrected by a Certificate ofCorrection recorded December 27, 2006, as Instrument No.
2006076620, in the Office of the Recorder of Hamilton County, Indiana.
860997.4
EXHIBIT A-3
"OUTLOTS"
Lots 2, 3, and 5 and Block P in the Secondary Plat for West Carmel Marketplace, an addition in
Hamilton County, Indiana, recorded September 26, 2006, in Plot Cabinet 4, Page 149 as
Instrument No. 200600056955, corrected by a Certificate of Correction recorded December 5,
2006 as Instrument No. 200600071882, in the Office of the Recorder of Hamilton County,
Indiana, and corrected by a Certificate of Correction recorded December 27, 2006, as Instrument
No. 2006076620, in the Office of the Recorder of Hamilton County, Indiana.
860897.4