DeclarationsI{1JJly i
DECLARATION OF DEVELOPMENT
STANDARDS, COVENANTS, EASEMENTS AND
RESTRICTIONS FOR WEST CARMEL MARKETPLACE
Duke Construction Limited Partnership, as the Owner and Developer 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;
(b) Promoting the stability and enhancement of values of the land and
improvements within West Carmel 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.
200b000W58
Filed for Record in
HAMILT13H COUNTY? INDIANA
ARTICLE 1 JENNIFER J HAYDEN
Definitions 10-27--2006 At 10:57 an.
DEC CQV RESS 51.00
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.
(b) '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; 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.
(c) "Common Area" shall mean each area located within a Common Area
Easement in West Carmel Marketplace or in a public right-of-way adjacent to West Carmel
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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); sewer lines, mains and manholes (other than
laterals exclusively serving an individual Parcel); utility lines (other than lines exclusively
serving an individual Parcel); and storm water retention ponds, drainage pipes, outlet control
structures, swales and other storm drainage facilities. Developer may seek to dedicate any
common roadways for public use, and upon acceptance by applicable municipal authorities any
dedicated common roadways and their related improvements shall cease to be a Common Area.
(d) "Common Area 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 Area located in or upon each such easement. Common Area Easements include,
without limitation, the easements granted herein in the Common Roadway and Detention Ponds,
and the drainage and utility mains and other common facilities located thereon as more
particularly described in Section 5.04, below.
(e) "Common Area Maintenance Costs" shall mean the costs necessary for the
Developer to perform its obligations hereunder to keep each Common Area 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 part of each Common Area; payment of taxes
imposed on either the Common Area or on the underlying fee, easement or right-of-way; and any
other expense reasonably necessary or prudent for the satisfactory operation of each Common
Area.
(f) "Common Roadway" shall mean that portion of the Real Estate commonly
known as Walnut Creek Drive and depicted on Exhibit A-1 attached hereto and incorporated
herein by reference, and all pavement, curbing, lighting fixtures, landscaping, utility lines and
other improvements and facilities located thereon.
(g) "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 -common, joint tenants
(with or without right of survivorship) or tenants by the entirety.
(h) "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.
(i) "No Build Area" shall mean that portion of the Real Estate depicted on
Exhibit A-2 and labeled as "No Build Area".
0) "Outlots" shall mean any lots created in the area depicted on Exhibit A-3
situated along the west property line of the Real Estate between Walnut Creek Drive and North
Michigan Road (U.S. 421).
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(k) "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.
(1) "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.
(m) "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 User
Specific Parcel, and a denominator equal to the total acreage of the Real Estate reduced by the
total acreage contained within all Common Area Easements.
(n) "Real Estate" shall mean all of the land contained within West Carmel
Marketplace which is described on Exhibit A-4 attached hereto and incorporated herein by
reference, comprising a total of approximately thirty-six (36) acres, together with any additional
land incorporated into West Carmel Marketplace (and reduced by any land removed from West
Carmel Marketplace) by the Developer as provided in Section 8.01.
(o) "West Carmel Marketplace" shall mean the Real Estate and the improvements
constructed thereon from time to time.
(p) "User Specific Parcel" shall mean the remaining portion of each Parcel after
excluding each part of the Parcel contained within a Common Area Easement.
ARTICLE 2
Real Estate Subject 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
Development Restrictions
Section 3.01. General Architectural Standards. The following architectural
standards shall apply to all buildings, improvements and structures developed on the
Development (the "Development Improvements"):
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(a) Exterior walls may not be faced with metal or plastics of any kind (other than
as a component utilized in an E1FS 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
charnel 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 Carmel.
(h) All private utility lines servicing the Development or any buildings,
improvements and structures thereon shall be located underground.
(i) All landscape and lawn/grass areas shall be irrigated.
Section 3.02. 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 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 (each, a
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"Zoning Change") which would impose standards, restrictions, limitations or other encumbrances
upon all or any portion of the Real Estate not contained within such Owner's User Specific
Parcel, except with the prior written consent of each other Owner whose Parcel will be bound or
encumbered by such Zoning Change.
Section 3.03. Driveways and Parking. All driveways and parking areas located within a
User Specific Parcel shall be paved in accordance with the specifications originally approved
therefor by the Developer or required by applicable governmental ordinances. Each Owner shall
designate parking spaces on its User Specific Parcel and shall require all persons coming onto its
User Specific Parcel to park in the designated spaces. All parking facilities on a User Specific
Parcel must comply with the applicable zoning ordinance unless a waiver of the parking
requirements is obtained from both the appropriate zoning authority. No parking shall be
permitted on any driveway or street located within a User Specific 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 User Specific Parcel
and shall maintain such areas including, but not limited to, keeping such areas clean and
promptly removing ice and snow therefrom. Each Owner shall extend any driveway on its User
Specific Parcel to the then existing access road upon or adjacent to the Owner's Parcel even
though a portion of the extension may extend beyond its User Specific Parcel and into the
right-of-way of the access road.
Section 3.04. Loading. Loading areas shall be subject to the approval by the appropriate
zoning authority. Screening required by the appropriate zoning authority shall be installed.
Section 3.05. 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.
Section 3.06. No Build Area. The construction of permanent building improvements is
strictly prohibited in the No Build Area depicted on attached Exhibit A-2 without the prior
written consent of the Developer, which consent may be withheld in the Developer's sole and
absolute discretion.
Section 3.07. Special Outlot Provisions.
(a) No more than one (1) building shall be constructed on any outlot without Developer's
consent.
(b) No Outlot 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
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architectural element higher than twenty-eight feet (28') from finished grade of the building pad,
unless otherwise approved or required by applicable municipal law, code or regulation.
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 4
Common Area Easements
Section 4.01. 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 Area Easement created pursuant to a duty recorded instrument which
designates the easement as a Common Area 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 Area Easement shall be limited to the purposes set forth in the instrument creating the
Common Area Easement; provided, however, that the Owner of a Parcel subject to a Common
Area 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 Area
Easement. Any Common Area Easement granted to the Developer 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 Area 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 (ii) the right of the Developer to
regulate the use of the Common Area Easement for the benefit of all Owners and Benefited
Parties.
Section 4.02. Maintenance of Common Area Easements.
(a) Each Owner shall (i) keep any portion of a Common Area Easement located
on the Owner's Parcel free of litter, weeds, trash and debris and (ii) maintain all lawn areas and
landscaping within each portion of a Common Area Easement located on the Owner's Parcel,
including regular mowing of all lawn areas and trimming, maintenance and, when necessary,
replacement of shrubbery.
(b) Except (i) as provided in foregoing Subsection (a) and (ii) with respect to
repair, maintenance or replacement of a Common Area which is the responsibility of any utility
company or public or quasi -public body, the Developer shall maintain each Common Area in
good order and repair. The Developer 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 Area. Maintenance, repair or replacement by the
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Developer of a Common Area shall be performed in a commercially reasonable manner which
does not unreasonably delay or interfere with the Benefited Parties' use of the Common Area or
an Owner's use of its Parcel. The Developer shall be entitled to reasonable access over and
across any Parcel to a Common Area Easement to the extent necessary to permit the Developer to
maintain, repair or replace such Common Area. Maintenance by the Developer of the Common
Facilities shall include, but not be limited to, the following:
(i) The private roadways and any sidewalks within the Common Area
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 Area Easement or in a right-of-way adjacent to West
Carmel Marketplace shall be maintained in good repair.
(iii) Landscaping, including lawn areas, trees and shrubbery within any
Common Area Easement or in a right-of-way adjacent to West Carmel Marketplace, shall be
maintained in good condition through regular lawn care.
(iv) The storm water retention ponds, drainage pipes, outlet control
structures and other drainage facilities constituting a part of any Common Area shall be
maintained in good working order.
(v) The land and any improvements lawfully constructed in the Common
Area Easement shall be restored to the extent damaged in connection with maintenance, repair or
replacement of any Common Area by the Developer.
The Developer shall be entitled to replace any improvement constituting a part of a
Common Area when necessary for the proper functioning of the Common Area.
Section 4.03. Initial Common Area 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
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all Parcels within the Development shown as Blocks D & E on Exhibit A-4 (the "Detention
Ponds").
(c) The Monument Sign Areas identified on Exhibit A-5, for the construction,
maintenance, repair and replacement of monument signs and/or pylon signs identifying the
Development as West Carmel Marketplace.
The Common Roadway, Detention Ponds and the Monument Sign Areas shall be
Common Area 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.
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 5
Certain Use Standards
Section 5.01. Maintenance of User Specific Parcels. Each Owner shall be responsible for
the maintenance of its User Specific 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. This
maintenance obligation shall be in addition to each Owner's maintenance obligations under
Section 5.03(a) with respect to each portion of a Common Area Easement located upon its
Parcel. 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 User Specific Parcel in an attractive condition; (ii) no nuisance shall be permitted
within West Carmel Marketplace; (iii) each Owner shall keep its User Specific Parcel free of
litter, weeds, trash and debris; (iv) landscaping on the Owner's User Specific Parcel shall be
maintained in the locations and in at least the quality and quantity originally approved by the
applicable governmental authority; (v) the pavement of all parking areas and driveways within
the Owner's User Specific Parcel shall be maintained in good condition and repair, free of
potholes and shall be restriped as needed; and (vi) each User Specific Parcel and the
improvements thereon shall at all times comply with governmental, health, fire and police
requirements.
Section 5.02. Landscaping and Site Work. The Owners of each Parcel shall maintain
lawns, trees and shrubs. 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
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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.
Section 5.03. Parking Prohibition. Parking of any vehicles on any dedicated street within
West Carmel Marketplace or on any roadway within a Common Area Easement shall be
prohibited.
Section 5.04. Non -Barrier. Except as required or approved by any governmental agency,
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 5.05. 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 permitted by applicable zoning.
This section does not prohibit outdoor dining seats.
Section 5.06. 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 pursuant to 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 Area 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 West Carmel Marketplace, and all
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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
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 Roadways free from any dirt, garbage, trash or other debris which might be occasioned
by construction of the improvement.
Section 5.07 Signage. The location, size and construction of any and all signage on a
Parcel shall comply with all applicable laws, regulations and ordinances. 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 permitted by applicable laws, regulations
and ordinances, shall be permitted, including vehicles parked with intent to advertise.
Section 5.08. Prohibited Uses. West Carmel Marketplace shall be used solely and
exclusively for the development, construction, and operation of a first class retail shopping
center. West Carmel Marketplace 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 fire, 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 commercially 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;
(e) 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;
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(f) the sale or display of pornographic or "adult" materials, adult bookstore, or an
establishment featuring a male or female review;
(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) a bingo parlor;
(1) a funeral home, parlor or mortuary;
(m) meeting halls;
(n) automotive related uses, including sales, wash, repair and maintenance;
(o) 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 Development;
(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 constructed 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 store, or other specialty store selling wines and liquors such as Cost Plus World Market,
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 permitted by
aplicable, laws, regulations and ordinances.
Section 5.09. Waiver of Restrictions. The Developer shall have the authority to waive or
withhold enforcement of any of the covenants, restrictions and standards contained in this
Article 6; provided, however, that the Developer's decision to waive or withhold enforcement of
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such covenants, restrictions and standards in any particular instance shall not prevent
enforcement thereof in any other instance.
ARTICLE 6
Assessments
Section 6.01. 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 Developer 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 6.02. Establishing Annual Assessments, Payment. The Developer 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 monthly installments due on the first day of each calendar month. In the event of any
extraordinary item of Annual Assessment Costs incurred by the Developer during a calendar year
but not included in the Annual Budget for such year, each Owner shall pay to the Developer its
Proportionate Share of each such item within thirty (30) days after receiving a statement therefor
from the Developer. On or before March 31 of each calendar year, the Developer shall furnish to
each Owner a statement (the "Annual Statement") setting forth the total amount of Annual
Assessment Costs incurred by the Developer 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 Developer 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 Developer within thirty (30) days after receipt of the Annual Statement.
In the event the Developer 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 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
Developer of an appropriate statement of the amount due from the Owner.
Section 6.03. 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.
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Section 6.04. 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 Owner's Parcel as of the date the Developer
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 Parcel, run in favor of the Developer 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 Developer 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 Developer 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 6.05. 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 6.06. 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 Developer 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.
ARTICLE 7
Enforcement
Section 7.01. Nonpayment of Assessments. If payment of an Owner's Proportionate
Share of Annual Assessment Costs is not timely made, the Developer shall be entitled to recover
the delinquency, together with collection costs, attorney fees and interest as provided in
Section 6.05, by instituting legal action against the person or entity personally obligated to pay
the delinquency. In addition, the Developer may seek to recover the delinquency, together with
collection costs, attorney fees and interest as provided in Section 6.05, by foreclosing the lien
therefore imposed pursuant to this Declaration upon the Parcel to which the delinquency relates,
and the Developer or the Developer shall be entitled to purchase such Parcel at the foreclosure
sale.
860897.4
13
Section 7.02. 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 Developer to the Owner, the Developer
shall be entitled to institute an action for enforcement of this Declaration and for damages or
injunctive relief, or both.
Section 7.03. Substituted Performance. At any time after thirty (30) days written notice
to an Owner of a violation under this Declaration, the Developer or its designee shall be entitled
to enter upon the Owner's Parcel and to cure such violation. The cost incurred by the Developer
in curing such violation shall be immediately due and payable, together with collection costs,
attorney fees and interest as provided in Section 6.05, in the same manner as a delinquent
payment of Annual Assessment Costs.
Section 7.04. 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 7.05. No Forfeiture. There shall be no right of reversion or forfeiture of title
resulting from any violation of this Declaration.
ARTICLE 8
General Provisions
Section 8.01. Amendments. This Declaration may be amended upon and subject to the
following terms and conditions:
(a) 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 (ii) 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.
860897.4
14
Section 8.02. Binding Effect. The standards, covenants, restrictions and conditions
contained in this Declaration shall run with the land and bind the Developer and each immediate
and remote successor Owner of any Parcel and their respective legal representatives, successors
and assigns subject, however, to the limitation on personal liability set forth in Sections 6.03 and
7.04.
Section 8.03. Interpretation. 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 8.04, 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.
Section 8.05. Terms. The terms of this Declaration granted herein are perpetual.
Section 8.06. Governance. This Declaration shall be governed by and construed in
accordance with the laws of the State of Indiana.
Section 8.07. Exhibits. Each exhibit attached to and referred to in this Agreement is
hereby incorporated herein by reference as though set forth in full where referred to herein.
(SIGNATURES CONTAINED ON FOLLOWING PAGE)
860897.4
15
EXECUTED this —�S_ day of Oc. Q)(t� 2006,
DUKE CONSTRUCTION LIMITED
PARTNERSHIP, an Indiana limited partnership
By: Duke Business Centers Corporation, an Indiana
corporation, its general partner
By: -1
Printed: a vt �/�y ci
Title: 5111101 t/1ce
STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
Before me, a Notary Public in and for said County and State, personally appeared Cynthia
J. Schembre, by me known and by me known to be the Senior Vice President, Retail Operations
of Duke Business Centers Corporation, the general partner of Duke Construction Limited
Partnership, who acknowledged the execution of the foregoing "Declaration of Development
Standards, Covenants and Restrictions for West Carmel Marketplace" for and on behalf of said
limited partnership.
Witness my hand and Notarial Seal this day of �j�� 2006.
Notary PublicJJj
'
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(Printed Signature) Z
dy
My Commission Expires: My County of Residence:
D Mari=14,21014
My Comm
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p. ,,,.• Marc
This instrument prepared by an ge H. Abel, II, Attorney at Law,
Duke Realty Corporation, 600 East 96th Street, Suite 100, Indianapolis, IN 46240.
I affirm, under penalties for perjury, that I have taken reasonable care to redact each Social
Security number in this document, unless required by law. (George H. Abel, II).
f-Meal estatelretaillwest carmel marketplaceldeclaration for wcm.final.doc 10/17/2006 1 1:07 AM
960997.4
16
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