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Home My WebLink AboutDeclaration of Covenants IRATION OF COVENANTS CONDITIONS AN) " '~~' ' RESTRICTIONS FOR WESTON POINTE '~' s ''~ F.C. REALTY THIRTY THREE LLC, an Indiana limited liability compan°y~tvi~,pce~s`~~,i' located at 9830 Bauer Drive, Indianapolis, Indiana 46280, as the sole owner of the Property-(es defined in Section 2.1 below), executes the following Declazadonof Covenants, Conditions and Restrictions for Weston Pointe (the "Declaration") and hereby declares that (i) the Property subject to this Declaration is and shall beheld; transferred, sold, conveyed and occupied subject to the coyenants,restrictipns, easements, changes and liens hereinafter set forth-in this Declaration, and (ii) the purposes of this Declaration aze to establish uniform standards of development and quality for the development to be known as "Weston Pointe". ARTICLE I DEFINITIONS. The following terms, when used in this Declaration (unless the context shall prohibit), shall have the following meanings: Section 1.1 Access Easements. "Access Easements" shall mean and refer to those easements designated on the Plan as access easements for the establishment and maintenance of Access Facilities. Section 1.2 Access Facilities . "Access Facilities" shall mean and refer to such driveways, roadways and walkways as may be constructed within and upon any Access Easement for the purpose of providing vehicular and pedestrian access between the Sites and roads or access ways adjoining the Property, and between and among the Sites themselves. Section 1.3 Applicable Date. "Applicable Date" means and refers to the date the Developer voluntazily transfers control of the Property to the Association; which shall occur no later than two (2) yeazs from the date the Association is incorporated. Sectionl.4 Assessments. "Assessments"shallmeanandreferto theannnal.assessments for Expenses and special assessments for capital improvements or major repairs with respect to the Common Maintenance Areas as provided in Ar[icle 6. Section 1.5 Association. "Association" shall mean and refer to the "WestonPointe Owner's Association; Inc.", an Indiana not-for-profit corporation, its successors and assigns, which is the associafion of Weston Pointe Ownets established by Developer for the purpose of maintaining, insuring and operating the Common lvlainfenance Areas. Section 1.6 Weston Pointe or Property. "Weston Pointe" or "Property" shall mean and refer to the real estate subjected to this Declaration by the terms of this Declaration and any property that may from time to time hereafter be subjected or removed fram this Declazation by any supplemental Declazation as provided in Article 2. Section 1.7 Buildine(sl/Buildin~ Area . "Building(s)" shall mean and refer to the enclosed structure(s) together with all appurtenant building improvements which aze constructed and which exist at any time upon any Site. "Building Area" shall mean and refer to those areas on each Site shown as "Building Area" on the Plan. Section 1.8 Common Expenses. "Common Expenses" shall mean and refer to every expense of every kind relating to the Common Maintenance Area, including, but. not limited to the payment of.real estate taxes, payment of insurance premiums, maintenance, repair and .replacement (when necessary) of the Cottmton Maintenance Area as set forth in Article 5 hereof, including without limitation: (i) the reasonable expenses for the maintenance, repair and replacement .(when necessary) of. the storm drainage systems, signage, all exterior lighting, landscaping (including irrigation), surfacing, paving, striping and snow removal within the Common Maintenance Areas; (ii) payment of real estate taxes for the Common Maintenance Area and premiums for insurance which the Association deems necessary or appropriate to maintain with respect to Weston Pointe; (iii) the reasonable costs and expenses of operating the Association; and iv) such other reasonable costs and expenses as Association deems necessary or appropriate for ffie promotion of or best interests of Weston Pointe, including maintenance of reasonable reserves. Common Expenses shall not include initial development costs of Weston Pointe. Section 1.9 Common Maintenance Area. "Common Maintenance Area" shall refer to that portion of the Property identified on the Plan as Common Maintenance Area, which shall include all of the Property located within the boundazies of access roads, service drives, utility easements and other improvements located within such area, including (without limitation) landscaping, utility improvements, drainage facilities, berms, driveways and signage. Section 1.10 Default Interest Rate . "Default Interest Rate" shall mean and refer to the interest rate equal to the greater of twelve percent (12%).per annum or an annual rate of interest equal to four percent (4 %) above the highest prime rate of interest announced from time to time for the period in question as published in the Wall Street Journal. Section 1.11 Delinquency Date. "Delinquency Date" shalt mean and refer to the date that is thirty (30) days after the due date of any Assessment. Section 1.12 Develooer. "Developer" shall mean and refer to F.C. Realty Thirty Three LLC, an Indiana limited liability company, or its. successors o; assigns, but, in the case of an assignee; only if any such assignee is expressly designated as Developer by F.C. Realty Thirty Three LLC. 2 ~„ Section 1.13 Develq~ment A rg cement. "Development Agreement" shall mean and refer to that certain Development Agreement for Weston Pointe attached hereto as Exhibit B and incorporated herein by this reference, which contains certain obligations to be performed by Developer with respect to grepazaflon of the Property for development by Site Owners. Section 1.14 Development Guidelines. "Development Guidelines" shall mean and refer to those certain Development Guidelines for Weston Pointe that are referenced, in Article 9 of these Covenants, as they may be amended from time to time. Section 1.15 I)rainaee Easements and Drainage acilities: "Drainage Easements" and "Storm Water Drainage and Detention Easement" shall mean and refer to those easements designated on the Plan as easements for the establishment and maintenance of the dramage facilities; detention area, outlet control structures; pipes, and tiles, ditches, swales and other drainage facilities, equipment and improvements installed within and upon any Drainage Easement or the Storm Water.Drainage and Detention Easement for the purposes of providing storm water drainage for the Property (such equipment and improvements being sometimes hereinafter being referred to as the "Drainage Facilities". Section 1.16 Mortgagee. "Mortgagee" shall mean and refer to the holder of any recorded first mortgage lien on any Site. Section 1.17 Owner. "Owner" .means and refers to a person, firm, corporation, partnership, association, limited liability company, trust or other legal entity or any combination thereof, which owns the record fee simple title to a Site; provided that persons or entities owning a single Site as tenants in common, joint tenants, tenants by the entireties or any form of joint or divided ownership, shall be deemed one Owner for purposes of this Declaration. A reference to an. Owner shall be deemed to exclude Developer or Association unless such reference expressly includes Developer or Association. Section 1.18 Owner's Proportionate Shaze. "Owner's Proportionate Shaze" shall mean and refer to a fraction, calculated by Association as follows: the numerator shall equal the gross acreage contained in each Owner's Site, and the denominator shall equal the total gross acreage of all Sites in Weston Pointe: As of the Effective Date, the Proportionate Shaze of each Site is as follows: Site A: 11.3 %; Site B: 9.6 %: Site C: 11.9 ~; Site D: 37.9%; Site E: 7.3 %; and Site F: 21.9°6. Any Site may further be subdivided by Developer prior to its original sale. Thereafter, no Site may be subdivided without Developer's consent. Section 1.19 Plan. "Plan" means and refers to the Pian of Weston Pointe as set forth and depicted on Exhibit D attached hereto. Section 1.20 Review Committee .. "Review Committee" shall mean and refer to the Association Review Committee referred to in Article 7. The initial Review Committee shall consist of the Developer. After the Applicable Date, the Developer shall delegate all of the Association's duties and responsibilities to the Association's Boazd of Directors that shall thereafter;. serve as the Review Committee. The Review Committee shall have the right to enforce, modify, amend or rescind the Development Guidelines as provided in Article 7. Section 1.21 Site and Site Improvements. "Site", "Lot", or "Pazcel" shall mean and refer W any parcel'or plot of the property in Weston Pointe designated as a Site on the Plan. Whenever used in this Declaration, "site" shall include any and all Building(s), sign panels or other improvements, and related facilities and site imp;ovements thereon, used or intended to be used for the benefit of any Awner in the operation of the Owner's business (such irprovements upon the Site being hereinafter sometimes collectively referred to as "Site Improvements"). Section 1.22 Utility Easements "Utility Easements" shall mean and refer to the easement appurtenant over an Owner's Site at locations depicted on the Plan or any other designated utility easement now or hereafter established, for the installation, extension, expansion, relocation, maintenance, repaii or replacement of any Utility Facilities or Utility Services. Utility Easements shall run only to the benefit of the specific utility as noted on the Plan. Section 1.23 UtilityFacilities. "Utility Facility" shall mean and refer to the mains, lines, pipes, materials, hydrants, pples. wire, cable and other equipment, facilities and systems providing Utility Services to the Property. Section 1.24 Utility Services. "Utitiry Services" shall mean and refer to electric,- general .water, storm water drainage, fire protection water, sanitary water, natural gas, telephone, fiber optic cable, and other telecommunication services to the Property. ARTICLE 2 PROPERTY SUBJECT TO THE DECLARATION Section 2.1 Leval Description. The real estate which is more pazticulazly described in Exhibit A attached hereto and incorporated by this reference (the "Property") shall be held, tzansferred, sold, conveyed and occupied subject to this Declaration. Section 2.2 Recordine Supplemental Instruments . Association reserves the right to amend or supplement this Declaration, without the consent or joinder of any Owner and /or Mortgagee of any portion of the "Property. However, any such amendment or supplement shall not require construction or reconstruction of existing Building(s) or alterations to developed Sites or changes in such Sites' uses. 4 ARTICLE 3 DEVELOPMENT OF WFSTON POINTE Section 3.1 Initial Improvements to be Constructed by Develouer The Developer shall, at the Developer's sole cost and expense, perform the obligations and construct the improvements upon the Property in accordance with the Development Agreement. Section 3.2 I~ht of Entry. Developer reserves access to all portions of the Property for the purpose of performing its obligations under the Development Agreement. Developer or the Association (as applicable) reserves access to all portions of the Common Maintenance Area as may be necessary to permit performance of all its obligations under this Declaration, including (without limitation) installing, maintaining or removing landscape materials, resurfacing driveways and related improvements, performing work on utility improvements, installing and maintaining signage, and to otherwise taking any and all other actions related to the installation, maintenance, repair and replacement of improvements located in the Common Maintenance Area. Section 3.3 Construction Site Im~ovements b~Owners. Owners shall be responsib]e for the installation and construction of all Building(s) and other Site Improvements upon each S rte (excluding improvementssnstalledbyDeveloper in accotdancewiththeDevelopmentAgreement), subject to the approval requirements and other restrictions contained in this Declazation. ARTICLE 4 EASEMENTS FOR SIGNAGE DRAINAGE. UTILITIES AND ACCESS Section 4.1 ~n Locations and Installation Costs. There aze on the Plan certain azeas within the Common Maintenance Areas or on a Site designated as "Monument Signs. " All ground signage permitted by this Declaration shall be located within such designated azeas unless expressly permitted by the Association. Developer will install Monument Signs in the Common Maintenance Area or on a Site at the locations indicated on the Plan. The cost of the Monument Sign(s), and the cost of installation and maintenance thereof, shall be borne by the Developer, subject to Developer's agreements with Owners or prospective Owners to shaze in such expenses. No.Owner shall be entitled to place panels on or to have any use of the Monument Sign(s) without the specific consent of the Developer and pursuant to a written agreement. Section 4.2 Utility Easements. The Developer hereby declares, creates, grants and reserves non-exclusive perpetual Utility Easements in, on, over, across and under those portions of each Owner's Site, as depicted and identified on the Plan as being for the use of one or more specifically identified utilities. No building(s) or permanent structures shall be created or maintained within or upon said Utility Easements. Except as indicated on the Plan, all Utility Easements aze to be located within the Common Maintenance Area. If, in exercising their rights, any public utility company (not including transportation companies), political. subdivision or governmental authority damages or destroys any Site Improvements (whether in the Common Maintenance Area or otherwise), such parties shall restore such Site Improvements to the same condition (or as nearly so as may be reasonable in the circumstances) as existed prior to entry upon the Site. Section 4.3 Drainage Easements. Developer hereby declazes, creates, grants and reserves nonexclusive perpetual Drainage Easements in, on, over, across and under those areas of each Site, as depicted and identified on the Plan as Drainage Easements or Storm Water Drainage and Detention Easements for the installation, maintenance; removal and replacement of the Drainage Facilities. No Building(s) or permanent structures sha116e created or maintained within and upon said Drainage Easements. Except as indicated on the Plan, all Drainage Easements aze to be located within the Common Maintenance Area. Section 4.4 Access Easements. Developer hereby declares, creates, grants and reserves nonexclusive perpetual Access Easements in, on, over, across and under those aeeas of each .Owner's Site,. as depicted and identified on the Plan as Access Easements for the installation and maintenance of Access Facilities to provide ingress and egress of vehiculaz and pedestrian traffic between the Sites and the Common Maintenance Area, and between and among the Sites. Notwithstanding such Access Easements, Owners of adjoining Sites shall be permitted to make private arrangements for additional access easements between Sites, subject to the approval of Developer or the Association (as applicable), which approval shall not be unreasonably withheld, conditioned or delayed. Section 4.5 Cross Parking Easement. Developer hereby declares, creates; grants and reserves a nonexclusive perpetual parking, easement in favor of the owner of Site E in, on, over, across and under those paved pazking aeeas of Site F marked on the Plan as "Cross Pazking ,~ Easement , subject to ail rules and regulations established from time to time by the owner of Site F. Nothing herein shall be deemed to grant a pazking easement on any azea of the Cross Pazking Easement that is riot a paved parking azea. The owner of Site E shall pay to the owner of Site F; within thirty (30) days of billing, one half ('/i) of the costs of maintaining, repairing or replacing the paved pazking areas. within the Cross Pazking Easement (including, but not limited to, paving, striping, sweeping, and snow removal). ARTICLE 5 MAINTENANCE AND OPERATIONS OBLIGATIONS Section 5.1 Common Maintenance Area. Except as provided in other Sections of this Article 5. it shall be the duty of the Association to maintain the Common Maintenance Area and specifically, without limitation, to: 5.1.1 Maintain and repair (and replace when necessary) all Drainage Facilities so 6 u' that they function properly for their intended uses and comply with applicable law and regulations. 5.1.2 Maintain and repair atl Common Maintenance Area landscaping. 5.1.3 Maintain and repair all driveways (including lighting, striping, sealing, sweeping and snow removal). 5.1.4 Maintain Common Maintenance Area lighting. 5.1.5 Pay Common Maintetsance Area utility expenses. 5.1.6 Maintain traffic signals serving the Property. 5.1.7 Maintain and repair signage within the Common Maintenance Area; provided, however, the sign panels shall be maintained at the applicable Owner's sole cost and expense. Section 5.2 Exterior Maintenance .Every Owner shall maintain the Owner's Site . Improvements. When necessary in the opinion of the Association to avoid blight and to preserve the beauty, quality and value.. of the Property, Association may provide for the commercially reasonable maintenance, repair and replacement of any exterioi Site Improvements. Association. shall notify in writing the Owner of any Site that requires exterior maintenance to Site Improvements. Except as otherwise may be provided or extended by the Association, if within 30 (thirty) days after notification the necessary work has not been accomplished; or satisfactory arrangements for the prompt completion of the necessazy work- has not been demonstrated to Association's satisfaction, then Association may cause the necessary maintenance,, repair or replacements to be performed at the Owner's expense. The cost of such work, plus fifteen percent (IS %) of all direct costs for Association's overhead and administration, shall be assessed against the Site upon which such work is performed, and may be collected as provided in Article 6. Section 5.3 Aecess td Sites .Association, through its duly authorized agents or employees, shall have the right, after reasonable notice to the Owner, to enter upon such Owner's Site and have access to the exterior Site Improvements at reasonable hours of any day. Section 5.4 Common Maintenance Area Operations Except as provided in other Sections of this Article 5, it shall be the duty of the Association to operate the Common 1vlaintenance Area and specifically, without limitation, to: 5.4.1 Provide. and pay for security and traffic control as determined by the Association. 7 5.4:2 Pay real estate taxes on a timely. basis. 5.4.3 Pay insurance premiums. 5.4.4 Take all otliet actions and pay the cost thereof as is determined by the Association to operate the Common Maintenance Area. Maintain and repair all sealing; " ARTICLE 6 ASSESSMENTS Section 6.1 Creation of Lien and Personal Obligation for Assessments. Developer, for each -Site -now or hereafter owned .by it, hereby covenants, and each Owner of any Site (by acceptance of a deed therefore, whether or not it shall be so expressed in any such deed, or by succession to Title thereto) including, but not limited to, any purchaser at a judicial sale, shall hereafter be deemed to covenant and agree to pay Assessments to the' Association. The Assessments shall be fixed, established and.collected from time to time as hereinafter provided. All such Assessments together with interest at the Default interest Rate from the Delinquency Date until the date of payment together with all attorneys' fees and costs of collection, shall wnstitute a charge and continuing lien upon the Site against which the Assessment is made and shalt, as of the due date of the Assessment, also be the personal obligation of the Owner of such Site. When the Ownet of.a Site constitutes more than one person or entity, the personal liability for payment of Assessments shall be joint and several. Section 6.2 Purpose of Assessments. Tlie Assessments levied by Association shall be used for the payment of the Common Expenses. Section 6.3 Uniform Rate of Assessmen~achOwner'stotalobligationfor Assessmems shall be equal to the Owner's Proportionate Share multiplied by the Common Expenses. Section 6.4 ~ecial Assessments. 1n addition to the annual Assessments, Association may levy in any year a special Assessment, applicable to that year only, for the purpose of defraying; in.whole or in part,-the cost of any capital improvement or major repair with respect to the Common Maintenance Area, or due to a general budget shortfall, the failure of other Owner(s) to pay its/their Assessments, on a. timely basis, and for funding, exterior maintenance of individual parcels. Each Owner's share of such special Assessments shall be based on the Owner's .Proportionate Shaze multiplied, by the total amount of such expenses for capital improvements or major repairs. Section 6.5 Commencement of Assessments. The annual Assessments and special Assessments shall commence on the date or dates (which shall be the first date of the month) fixed by the Association. The Owners shall be notified of the due date of any annual Assessment or special Assessment and any such Assessments shall be payable in advance in monthly, quarterly, semiannual or annual installments, as determined by the Association. Section 6.6 Duties of the Association. Association shall fix the date of commencement and the amount of the annual Assessments or special Assessments against each Site for each annual Assessment yeaz or special Assessment at least thirty (30) days in advance of such date and shall, at that-time, prepare a roster of me Dues ana .vssessments wmcn s~,au uc inaiumww ~y Association and shall be open to inspection by any Owner. The Association shall send written notice of the Owner's Proportionate Shaze of any Assessment after fixing the date of commencement thereof. Associaflon shall, upon demand at any time, furnish to any Owner liable for Assessments a certificate in.wtiting signed by the Secretary or other officer of the Association setting forth whether all Assessments (annual or special) have been paid. Such certificate shall be conclusive evidence of payment of any Assessment therein stated to have been paid. Any Owner or its representative; upon five (5) days' written notice and at reasonable hours; shall have the right to inspect Association's books and records directly relating to the collection of the Assessments and the payment of the Common Expenses: If, following such inspection, Owner disagrees with its Proportionate Shaze of any Assessment, Owner shall provide written notice thereof to the Association and to all other Owners, stating in reasonable detail, the nature of its disagreement. Association and Owner shall use good. faith efforts to resolve the dispute, and if they aze. unable to resolve such disagreement by negotiation within thirty (30)-days following Owner's notice to Association, such disagreement shall be resolved by an inspection or audit of Association's books and records (i) by a qualifted independent certified public accountant designated by Owner from a list of not less than three (3) such accountants (having offices in Indianapolis, Indiana) selected by Association, and (ii) shall be at Owner's sole cost and expense; provided, if such inspection shall show that Owner overpaid Owner's Proportionate Shaze of any Assessments by more than five percent (5 %), Association shall pay the expense of such inspection and audit. The results of the audit shall be binding upon Association and Owner. Pending resolution of any dispute with respect to statements of Owner's Proportionate Shaze of any Assessments. Owner shall pay the amount of the Assessment, and if it shall finally be determined -that any portion of such sum was not properly due, Association shall promptly refund the appropriate sum to Owner. Section 6.7 Delinquent Assessments. If an Assessment is not paid by the Delinquency Date, the Assessment shall beaz interest from the due date thereof at the Default Interest Rate, and shall constitute a lien against file Site with respect to which any Assessment remains unpaid. Association may at any time thereafter file a suit on the personal obligation against the Owner(s) liable for payment of the delinquent Assessment, and there shall be added to the amount of such Assessment the cost of preparing and filing the complaint in such action (including reasonable attorney's fees), and in the event a judgment is obtained, such judgment shall include interest on the Assessment at the Default Interest Rate, the Association's reasonable attorney's fees; costs of litigation and all other expenses incurred by the Association as a result of the Owner's failure to pay. All payments shall be due and payable without relief from valuation and appraisement laws. Section 6.8 Subordination to Lien of Mortgagee. The lien of the Assessments for which provision is herein made shall be subordinate W the lien of any first Mortgagee. Such or transfer of such Site pursuant to a decree of foreclosure or deed in lieu thereof. No other transfer shall relieve any Site fromliability for any Assessments then or thereafter becoming due, nor from the lien of any such subsequent Assessments. Section 6.9 Exterior Maintenance Assessments. When necessary in the opinion of the Association to avoid blight. and to preserve the beauty, quality and value of the Property, Association may provide maintenance; replacentem or repairs for any exterior Site Improvements, as described in Section 5.2 above: Any exterior maintenance assessment shall be the personal obligation of the Owner of the applicable Site and shall become due and payable immediately upon demand of the Association, together with interest at the' Default Interest Rate and costs of collection, including reasonable attorneys' fees. Association's right to recover such maintenance assessment, together with interest thereon and costs of collection, shall be secured by a lien on the applicable Site which may be imposed and foreclosed in the same manner as mechanic lien foreclosures and/or fding of suits under Section 6.7 above. ARTICLE 7 ARCffiTECTURAL AND SITE REVIEW Section 7.1 Architectural Review and Approval. No improvement, BuiIding(s) or other structure of any kind, including (without limitation) any shed, fence, wall, sign, site paving, grading, pazking and building additions, exterior alterations, screen enclosure, sewer, drainage, water retention, decorative structure, Landscaping device or object, or other improvement shall be commenced, erected, placed or maintained upon any Site or portion thereof, nor shall any exterior addition, change or alteration therein or thereof be made, nor any subdivision of any Site or Sites be made, unless and until the plans, specificaflons and location of the same shall have been submitted to, and approved in writing by the Review Committee. All such plans and specifications shall be evaluated as to harmony of external design and location in relation to surrounding structures and topography and as to conformance with this Article 7, and in accordance with the Weston Pointe Development Guidelines attached hereto as Exhibit C and incorporated herein by this reference. 10 Section7.2 °P°TM'^tionsonSiteLmprovementsandUseofSites.NoBuilding(s)orother structures on any Sites A, B, C or E shall be more than one story in height. For purposes of this Section 7.2, one story shall mean a complete structure including pazapet walls, decorative structures and mechanical structures (Total Height) and shall not exceed the lesser of: (i) the limits imposed by any zoning body or municipal Wile, law, ordinance or mandate; or (ii) twenty six (26) feet in height above finished grade. No Building(s) shall be constructed outside of any Building Area indicated on the Plan with respect to each Site. Improvements on each Site shall be designed to screen any trash dumpsters with fencing, landscaping or other barrier type structures, .._ .,..,,.,,.e .,:.^,, ,~Pq~ ;,, A T~PS~P~ work welt to shield such azeas from public view. No portion of Sites A, B, C, D, E or F (as shown on the Plan) shall be used for a purpose prohibited pursuant to Exhibit F attached hereto. In addition to the foregoing prohibitions, Sites B and C, as shown on-the Plan, shall not be used directly or indirectly (whetber by lease, permit, operation, fee ownership or otherwise) as a bank, savings and loan, mortgage company, credit union, financial institution or ATM (automated teller machine), except Sites B and C may be used as an investment or mortgage company if such investment or mortgage company is operated within an anchor store consisting of25,000 square feet or more ("Anchor Store"); however, a bank mart may be operated within an Anchor Store. In no event shall an ATM or bank mart be operated outside the Anchor Store prepares. In addition to the above, Site D, as shown on the Plan; shall not directly or indirectly be operated, leased, licensed or permitted to be operated as a full service retail bank or ATM. Notwithstanding the foregoing, if the owner or operator of Site A does not operate a retail bank at Site A for a period of six (6) months or longer, then the zestrictive covenant regarding Sites. B, C and D stated Herein shall automatically terminate and be of no force or effect. Section 7.3 Itteview Committee. Prior to the Applicable Date, the Developer shall serve as the Review Committee. After the Applicable Date, the Review Committee shall consist of the Association's duly elected Boazd of Directors. Section 7.4 Review Procedures. Signed plan approval by the Association is required prior to construction or installation of arty Site Improvements. No Site may be subdivided except upon the prior written consent of the Associaton, which approval may be withheld in the Association's sole and absolute discretion, and which (if approved) shall be subject to approval of appropriate govermnentat authorities. Section 7.5 Modification or Exterior Remodeling. Following its initial construction, if any Site Improvement constructed on any Site shall be changed, modified or altered so as to materially change the exterior appeazance thereof, without prior written approval of Association of such change, modification or alteration, and the plans and specifications therefore, if any, then the Owner shall upon demand cause the improvement or structure to be restored to comply with the plans and specifications as last approved by Association, and shall bear all costs and expenses of such restoration, including, but not limited to, costs and reasonable attorneys' fees of the Association. Section 7.6 Completion of Site Owner's Construction. Upon approval of the plans and specifications by the Association, the Owner shall thereafter construct all Site Improvements in 11 accordance with such approved plans and specifications (as the same may thereafter be modified with the written approval of the Association). In the event wnstruction of the improvements is not commenced within one (1) yeaz from the date of approval of the plans and specifications, such approval shall be deemed revoked unless, upon application by the Owner, the Association shall extend the period of time. for which such approval shall remain in effect. Construction shall be deemed'to have commenced if.the Owner has obtained all necessary licenses, permits and. approvals required for the construction of the improvements and actually commenced the performance of the site work on the Site. ec on . of the Building(s) and other approved Site Improvements, the Owner shall thereafter diligently prosecute the same to completion. If construction of approved Site improvements stops for more than six (6) months, the Owner of such Site, upon writtendemand of the Association, shall remove or cause to be removed from the Site all construction materials, debris, trailers, equipment signs and similaz construction-related facilities, shall to the greatest extent possible restore the Site to an attractive condition, and shall grade and seed the Site in accordance with plans approved by the Association. ARTICLE 8 PUBLIC APPROVALS Section 8.1 Compliance with Laws.. Each Owner shall at ail times in the use and development of its Site observe and comply with all provisions of the laws, statutes, ordinances and governmental rules, regulations and orders now or hereafter relating to or affecting-the Site. Section 8.2 Zonine Changes. No Owner shall make application for any use approval from the appropriate governmental body, including a change to the zoning classification of its Site, a variance of use, a special use exception, a vaziance of development standazd or a variance or exception from any similaz restrictions without first haying obtained the written consent of the Association for such application.. Section 8.3 . Rama eg to Improvetrients. If the Building(s) or other Site Improvements are damaged or destroyed in whole or in part by fire or other casualty, the Owner of such Site shall promptly (i) restore such Building(s) and Site Improvements to their condition inunediately prior to such damage.or destruction; or (ii) demolish such Building(s) and Site Improvements and grade and landscape the Site in accordance with plans and specifications last approved by the Association: Except as may be permitted by the preceding sentence, prior to commencement of any exterior repairs or reconstruction affecting the exterior of the Building(s), the Owner shall seek and obtain me approval of the Association as provided in Section 7.and, after approval is. obtained, the Owner shall thereafter diligently prosecute the repairs and reconstruction to completion. 12 Section 8.4 ('onstruction.Debris and Damage. Each Owner shall conduct all site work and construction on such Owner's Site in a manner that prevents dirt and debris from accumulating beyond the boundary lines of the Site and in a manner that minimizes the hazm to any adjoining Site Owner or any landscaping materials. Such Owner shall be responsible for repairing and restoring any damage to any landscaping materials, rights-of-way. Drainage Facilities, Utility Facilities or adjacent property caused by such Owner, its contractors or such contractors subcontractors or its of their agents or employees in connection with such site work or constriction. echon az~ances or a n i ca ons o Association acknowledges that the original Development Guidelines may need to be amended, modified or repealed from.time to time and the. Association also acknowledges that there aze situations that may azise that would make strict application of the Development Guidelines inappropriate, unduly burdensome or counterproductive. Accordingly, the Association: 8.5.1 Reserves the right to amend, modify, repeal or otherwise adjust the Development Guidelines without approval of any Site Owner, Mortgagee or other party; provided, however, that no. such amendment, modification, repeal or adjustment shall: (i) requite an Owner to modify or changes its plans after such have been approved by the Association, (ii) materially increase the Assessmems payable by the Owners Ol Property subject to this Declaration prior to such action, (iii) substantially and materialiy decrease the value of the remaining Property subject to this Declazation, or (iv) be inconsistent with Site zoning; and 8.5.2 Reserves the right to grant variances from the strict compliance by a Site Owner with certain aspects of the Development Guidelines or this Declaration; provided, however, that no such variance shall: (i) materially increase the Assessments payable by the Owners of Property subject to this Declaration priorto such vaziance, (ii) substantially and materially decrease the value of the remaining Property, subject to this Declazadon, or (iii) be inconsistent with Site zoning. As to the questions of judgment and interpretation regazding the Development Guidelines orthis Declaration, the determinations of the board of directors of the Association shall be final. Any failure to comply with this Declazation of the Development Guidelines by a Site Owner resulting from a waiver or vaziance granted by the Association pursuant to this Section 8.5 shall not be deemed to constitute a violation or breach of this Declaration or any such Development Guidelines. 13 ARTICLE 9 DEVELOPMENT GUIDELINES Section 9.1 Intent. The purpose of these guidelines is to establish the quality standards for the Buildings and other Site Improvements to be located upon the Property. Section 9.2 Review Process. Signed plan approval by the Association is required prior to the construction or installation of any Site Lnprovements. Review and approval of such pians s e coor tna Guidelines attached hereto as Exhibit C will be considered in evaluating plans submitted. Section 9.3 .Public Approvals. All pertinent requirements of public agencies must be adhered to in the development of this Property, Prior to development, each Owner must verily the current code requirements as they may be amended. Although based on local zoning and subdivision regulations, W eston Poime Developmental Guidelines may be morerestrictive in land use, site development standazds, landscape requirements, or in other matters. In every case in which these guidelines are at vaziance with public agency requirements, the more restrictive regulations will govern. Section 9.4 Land UseRestrictions.PermittedusesforWestonPointeshallbeconsistent_ with the Commitments azising out of Zoning Case Cases 33-03 Z and 32-03 Z, copies of such Commitments are set forth on Exbibit E attached hereto. ART[CLE 10 ASSOCIATION OF OWNERS Section 10.1 Association of Owners: In order to provide for the continuing maintenance and administration of Weston Pointe, the Developer shall form the Association. Upon such formation, Developer shall provide Association copies of all contracts which constitute prior agreements between Developer and Owners, or between Developer and third parties affecting Weston Pointe, which agreements shall bind Association as successor to Developer. All Owners shall become members of the Association and shall continue to be members for so long as they own a Site. At such time as an Owner conveys its title to a Site, its membership in the Association shall terminate and the new Owner of the Site shall automatically become a member of the Association. Section 10.2 Votes of Association Members. Each Member of the Association shall be entitled to vote on certain matters coming before the Association, in accordance with the Association's By-Laws. Each Owner's voting rights shall be in percentages identical to the Owner's Proportionate Share, with each percentage point of the Owner's Proportionate Shaze (or fraction thereof} constituting the percemage vote of the subject Owner (the °Percentage Interest"). 14 Upon conveyance of a Site'to an Owner, Developer or the Association (as applicable) shall determine the acreage of the Site and the resulting Percentage Interest of the Owner. Such determination shall be made in good faith and shall be final and binding upon all pazties. ARTICLE Il Section 11.1 Restrictions and Covenants Run with the Land This Declazation constitutes a servitude in and upon the Property, shall run with the land and bind the Property, and shall inure this Declaration, and their respective legal representatives, heirs, successors and assigns. Section 11.2 Duration. This Declaration shall be in effect for an initial term of thirty (30) yeazs after the date this Declazation is recorded in the Office of the Recorder of Hamilton County, Indiana. After such time this Declazation shall automatically be extended for successive periods often (10) years, unless an instrument signed by the then Owners of Sites representing more than sixty-six and 2/3rds percent (66.67) of all Percentage Interests agree to terminate this Declazation in whole or in Bart. No determination of this Declaration shall affect any easement hereby declared; created, granted or reserved unless all persons entitled to the beneficial use of such easement shall consent thereto in writing. Section 11.3 Remedies. If the Association or any Owner. breaches its obligations hereunder, and such breach continues for thirty (30) days after the delivery of written notice describing such breach to such breaching party by the Association or an Owner (as applicable) or twenty-foul (24) hours after written or oral notice in the event of an emergency involving a substantial impairment to the normal use of a Site, then the non-breaching Association or Owner, as the case maybe, shall be entitled to (i) the remedy of specific performance to enforce the terms and conditions of this Declazation, (ii) injunctive relief, declazatory relief or any other remedy available at law or in equity, or (iii) cure such breach. Any and alI amounts expended by the Association or an Owner, as the case maybe, shall be payable by the breaching party on demand, together with interest at the Default Interest Rate and costs of collection, including reasonable attorneys' fees. Association shall also be entitled, in addition to any other remedy it may have hereunder or at law or in equity, to impose and foreclose a lien on the Site in the same manner as a mechanic's lien is imposed and foreclosed under Indiana law (except that the time limit under Indiana law within which to file a notice of intention to hold a mechanic's lien shall not apply to the lien provided for by this Section). Notwithstanding anything contained herein to the contrary, if a breach on the part of Association or an Owner under this Declazation is of a type or nature that is not reasonably curable within said thirty (30) days period (or within 24 hours in the case of an emergency), then; provided that the party in breach commences the cure within the thirty (30) day period. (or within 24 hours in the case of an emergency), and continues to diligently pursue said cure to completion, the party in breach shall have a reasonable time to -cure -such breach. IS Any failure to comply with this Declaration or the Development Guidelines resulting from the waiver or vaziance granted by Association pursuant to Section 8.5 shall not be deemed to constitute a violation or breach of this Declaration or any such Development Guidelines. The failur8 to enforce any restriction, covenant, condition, obligation, reservation, right, power or charge herein contained shall in no event be deemed a waiver of the right to thereafter enforce any such restriction, covenant, condition, obligation, reservation; right, power or chazge. Section 11.4 Notices. Any notice required to be sent to any Owner under the provisions of this Declaration shall be deemed to have been properly sent when mailed, postage prepaid, to the time of such mailing. Any notice required to be sent to the Association shall be deemed to have been properly sent when mailed, postage prepaid, to the Association's address. Section 11.5 Severabilitv. Invalidation of any one of the covenants and restrictions contained in this Declazation by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. Section 11.6 Amendment. After the assignment of its rights and delegation of its obligations and duties by Developer to the Association, this Declazation may be amended by the Owners of Sites in Weston Pointe in the manner set forth in the organizational documents establishing the Association. Notwithstanding anything contained herein to the contrazy; including (without Iimitation) the terms and conditions set forth above in this Section 11.6, any proposed amendment of this Declazation that would terminate or otherwise materially and adversely affect the rights of or materially or inequitably increase the obligations of an Owner with respect to any Common Maintenance Area, shall require the consent and approval of such Owner(s) so affected, which consent and approval shall not be unreasonably withheld, conditioned or delayed. Notwithstanding any other term of this Declazation, any amendment to this Declazation-which corrects an error herein, which clazifies any.term or condition hereof without changing the substance thereof or which is required by, or as a result of, any applicable law, statute, ordinance, code, rule, regulation, order, decree of any applicable governmental authority or court may be executed and recorded by Developer without the execution or consent of any other party, and shall be deemed to have effectively amended this Declazation and shall be binding upon Developer, all Owners and the Sites. Additionally,-until Site A is sold by the Developer, the Developer may unilaterally amend this Declazation at any time without the consent or approval of the Owner of Site E so long as such amendment does not materially increase the Common Expenses or materially impede the ingress or egress to and from Site E. Section 11.7 Assumptionby Association. All or any portion ofthe rights, obligations and duties of Developer created by this Declazation may be assigned by Developer to the Association. Any responsibilities and authority given to the Association in this Declazation shall be the responsipility and authority of the Developer until such lime as the Association is formed and the rights, duties and obligations of the Developer aze transferred to the Association. After the 16 Applicable Date, the Boazd of Directors of the Association shall serve as the Review Committee. Upon transfer of the Developer's rights to the Association, Developer shall be released from any obligations, liabilities of duties azising thereafter under the Declazation or pursuant to the operation of the Association, and the Association shall indemnify, hold harmless-and defend the Developer,- its agents and employees from and against all actions, claims, liabilities and expenses azising from or in connection therewith. Section 11.8 Usace. Whenever used, the singulaz shall include the plural and the r, the_plural_shall .include the plural and the singulaz, and the use of any gender shall Section 11.9 Effective Date . This Declazation shall become effective upon the recordation in the Office of the Recorder of Hamilton County, Indiana. ARTICLE 12 INSURANCE Section 12.1 Insurance Reuirements. Each Owner shall maintain insurance pursuant to the terms and requirements stated on Exhibit G attached hereto. ~IN WITNESS WHE OF, Developer has caused this Declazation to be filed this ~ day of ~GGosw~t~- , 2005, F.C. REALTY TIiIItTY THREE LLC, an Indiana ' ited liability companfy~- By: ~ l°/. David M. Crockett,- Member STATE OF INDIANA. ) SS: COUNTY OF MARION ) Before me, a Notary Public- in and for said County .and State, this 8_~day of ~P e,~,,.y,6,~ ,2005, personally appeared David M. Crockett, a Member of F.C. Realty Thirty Three LLC, who acknowledged execution of the above and foregoing Declaration of Covenants, Conditions and Restrictions to be the voluntary act and deed of said company. 1'7 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my offircial s~ea~l.J~~ My Commission Expires: 8'l v ~a 6 ~ja(~j rn{1w~p~~~G~~."_„"_' S~iyg-nature Notary Public I (~ ~~ My County of Residence: ~& if/4 !.f' I~GI ~.. !-- ~A~/f-i~d'f~f'~GOI~~ Printed Signature No Public .5p "r TERESA L. MAY6-REMBREE ~` MaNaon Co _ !?;?LL ',i My Commission Exphes _ ^6;P~~ August 76, 2gD6 This Instrument Prepared By: Steven J. Glazier, Attorney at Law, COHEN GARELICK & GI;AZIER: 8888 Keystone Crossing Blvd., Suite 800, Indianapolis, Indiana 46240; Telephone (317) 573-8888. 18 No: 000366887 LEGAL DESCRIPTION PARCEL I: Indlatia and being that part oFthe Instrumem No. 200400043279 depicted es Btocic'A", plat otTHE TOWNES AT WESTON POINTS, SECTION 1, SECONDARY PLAT rewrtletl (n Instrument No. 200400067374, P.C. 3, Slide A89 in the Office ottha Recorder of Hamilton County, Indiana more particularly described as follows: Commendng at the northeast comer of the Southwest QuarteroF SecNOn 8, Township 17 Noah, Range 3 East; thence South 69 degrees 56 minutes 26 seconds West 7,377.69 feetalong the north Ilse of saki Soutlneest Quarter to the nor8heast corner of said Black "A"end the polnE o1 begkttilng ofthis description; thence South 15 degrees 04 minutes 16 seconds East 644.31 feet along Nte eastern boundary of Block "A" to the northern rigM-0f-way Ona of Wesron Pointe Drive (variable right-of-way,wltl0a• thence alohg saW dgM-of-way One the tollowing siz courses; 1. thence North T2 degrees 06 mnutes 32 seconds West 106.87 feet ro the polm of curvature of a curve concaved to the lest having a radius of 230.00 feeC 2. thence nordrvuesrady and souNtwestedy 124.97 feat along the arc of said curve with a chord baadng of North 87 degrees~40 minutes 37 seconds West and chord length of 123.44 feet 3. thence South 76 degrees 45 minutes 30 seconds West 289.07 feet to the point of cuvature of a curve concave td the left having a radius of 185.OD feet; 4. Nrence sothwestery 21:781eet alonglhe arc of said curve wlth a chord bearing of South 73 degrees 23 mimrtes OB seconds West and a chord length of 21.77 feet 5. thence South 7U degrees 00 minutes 45 seconds West 235.91 Feet; 6: (hence North 64 degrees 59 mimrtes 15 seconds West 60.01 feet to the eastern righPOFway titre of Michigan Road (U.S 42'f); Ntence North 16 degrees D4 minutes 76 seconds West 640.87 feet along Bald dgM-of-way One to tFte northwest wmer of Block A" on the north 8na of the Southwest Quarter of Section 6, Township t7 North, Range 3 East;inence North 69 degrees 66 nimutes 26 seconds East 819.42 feat along sekl north 8na to the poim of beginning. PARCEL B: Situated in the Southwest Quarter of Section 6, Township 17 North, Range 3 Eas4 Clay Township, Harru7ton County, Indiana and being that pert of InsbumeM No. 200400043279 that is within the plat of THE TOWNES AT WESTON POINTS, SECTION 1, SECONDARY PLAT rewrded in instrumerd No. 200400067374, P.C. 3, SBde 489 fi the 085ce of . the Recorder of HamBton County, Indiana more parNcutady descn'bed es to8ows: Commendng at the northeast comer of the SouthwestQuarter of Section & Township 17 North, Range 3 East; thence South 89 degrees 56 minutes 26 seconds West 1,377.69 feet ebrrg the nor8i 5ne of said Southwest Quarter to the northeast cortrer of Block "A",said plat of THE TOWNES AT WESTON POINTS, SECTION 1, SECONDARY PLRT; thence South 15 degrees 04 minutes 16 seconds East 64A.31 feet along tie eastern boundary of Block °A" to the soumeastcorrrer~of said t3bek "A" on the northern right-of-xray 8na of Weston Pointe Drive (variable dgM•oT•way width) and the point of beginning of this description; thence condnuing South 75 degree's 04 ndnutes 16 seconds East 216.85 feet to the soum boundary of said plat of TH E TOWNES AT WESTON POINT'S, SECTION 1, SECONDARY PLAT; thence North 99 degrees 49 minutes 00 seconds West 879.55 fee[alo[ig saki boundary to the eastern right-ot-way 8na of NBeNgen Road (U.S. 421); thence North 18 degrees 27 minutes 34 seconds West 13.20 feet along said NgM•af--way Ihre; thence North 15 degrees Oq minutes 18 seconds West 103.83 feet eking said right-of way 8na to the north dght-oi-way 8na of Weston Poime Drive (varfalile right-of-way wklth); thence along said right-of-way 8na the fo8owing sM courses; l: tfience South 64 degrees . 59 minutes 75 seconds East 50.01 feet' 2 thence North 70 degrees OD Mnukss 45 seconds Fast 235.81 feet to the polo[ oFttavature concaved to the right having a radius of 185.OD feet 3. thence northeasterly 21.78 feet along the arc of said curve vdut a chord. b~earing of North 73 degrees 23 minutes 08 seconds East end a chord length of 21.77 feet 4. thence North 76 degrees 45 minutes 30 seconds East 289.07 feet to the point of curvature of a curve coricavetl to the right having a radius of 230.00 feet; 6, thetv:e northeastedy and southeasterly 124.97 feet along the arc of said curve w)Ut a chord beardtg of South 87 degrees 40 minutes 31 seconds East and a chord length oP 123.44 feet: 6. thence SouNi 72 degrees fl8 minutes 32 seconds Eesl 106.67 feet to the point of beglrmfig. us:uwuss EXHIBTT uAr, . . DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Development Agreement") is executed and effective as of the _ day of , 2005 (the "Effective Date"), by F.C. Realty Thirty" Three LLC, an Indiana limited liability company ("Developer"). Recitals: 1.1 Developer owns certain real estate located neaz the northeast corner of the which real estate is more particularly described in Schedule I attached hereto and made a part hereof. Also attached hereto as Exhibit "A" is an illustration of the site plan (the "Site Plan") showing the proposed- out lot Sites (individually, a Site", and collectively; the "Sites") to be located tipon the real estate described in Schedule 1, along with that portion of common aeeas not included within such Sites;- with such Sites being hereinafter collectively referred to as the "Center". By virtue of that certain document entitled""Declazation of Covenants Conditions and Restrictions For Weston Pointe" which encumbers the Center and to which this Development Agreementis attached (the "Declazation"),Developer has imposed certain restrictions on the Sites and the Center, and has'created reciprocal easements covering the Common Maintenance Area (as defined below). 1.2 Developer desires to provide for the construction of an integrated retail/office complex within the Center: 1.3: Definitions. The following terms shall have the definitions ascribed to them below, and to the extent definkflons include capitalized terms, those terms aze defined later in this Section: (a) "Building Area": All of those aeeas on each Site shown as Building Area on the Site Plan attached hereto as Exhibit "A" and made a part hereof. (b) "Center": Sites A, B, C; D, E.& F located within the boundazies of the real estate described on Schedule I, collectively. (c) "Common Maintenance Area" : All of those areas within the boundazies of the Center where Owners have commonaccess easements, utility easements and related rights, as such term is defined in the Declazation and illustrated in the Site Plan. (d) "Common Maintenance Area Improvements": The improvements to be installed and constructed by Developer within the Common Maintenance Area, as described in the Project Documents and Construction Documents (as defined below), and skull include (without limitation): site grading; ~X • 2 construction of retaining walls, access roads and driveways; construction of drainage and utility improvements to serve the Center and each Site; and construction of the Center Monument Signs: (e) "Owner": The record holder of fee simple title to a Site (including its heirs, personal representatives, successors and assigns). An Owner shall be considered a party to this Development Agreement following acquisition of a Site. • , and made a part hereof. (g) "Site Contractor": The Person(s) engaged by Developer for completion of the Site Work in accordance with the Construction Documents. (h) "Person": Individuals, partnerships; fums, associations, corporations, [rusts; governmental agencies, administrative tribunals or any other form of business or legal entity. For purposes of interpreting this Development Agreement, terms not otherwise defined herein shall be defined in accordance with the definitions contained in the Declazation. 2. Construction of Center Monument Sign(sl. Developer shall construct and install the. Center Monument Signs in the locations shown on Site Plan, in accordance with sign plans and specifications included.in the Project Documents (the."Sign Plans"), which shall be included in the Construction Documents (as defined below). The Center Monument Signs shall be constructed and installed by the Site Contractor in accordance with the applicable time frames set forth in the Construction Schedule attached hereto as Exhibit "B" and made a part hereof. Costs and expenses associated with the acquisition, installation and constmction of the Center Monument Signs may be'reimbursed to Developer by the Owners in accordance with the Declazation and/or separate agreements entered into between Developer-and the Owners. Prbiect Engineer 1 Design. 3.1 Site Drawines. Civil Designs shall be the civil engineer with respect to Center development ("Project Engineer"). The Project Engineer has prepazed site development documents identified as Job No. OS-123, dated August 10, 2005, and as thereafter amended from time to time, which documents contain the obligations of Developer under this Development Agreement, including (without limitation) the obligation to piovide surveys, building elevations, grading plans, plans for installation of roadways, utilities, drainage and related improvements in the Common.Maintenance Area, retaining wall design; plans for construction of certain off-site road improvements, and other pertinent details relating to Developer's development obligations 2' (collectively, the "Project Documents"). The Site Contractor's completion of the improvements described in the Project Documents (in accordance with the terms and conditions of this Development Agreement) shall satisfy Developer's obligations under this Development Agreement. The Project Documents map not be materially modified without the prior written approval of all then-current Owners, which consent may not be unreasonably withheld, conditioned or delayed. 3.2 Construction Documents. Developer shall prepare and coordinate the drawings and specifcations setting forth in detail the requirements for construction of the Site Work (as e n eow, an Developer and the Site Contractor for completion of the Site Work in accordance with the Project Documents (collectively, the "Construction Documents"). The Construction Documents shall provide for initial site development activities with respect to the entire Center in conformance with the Project Documents and the Site Plan, with the Site Plan being incorporated into the Project Documents by this reference. 4. Coordination of Building and Site Work Construction 4.1 Cooperation. Developer acknowledges that buildings in the Center 'may be constructed concurrently with certain Site Work (excluding certain giading and preliminary site development activiries, and construction or pads in: the Building Areas). The Owners, Developer and the Site Contractor (and their respective contractors, azchitects and engineers) shall cooperate with each other in the construction of all buildings and improvements in the Center so as not to cause any unreasonable increase in another Person's costs of construction or to unreasonably interfere with any construction performed by another Person. Developer shall coordinate the.work of the Site Contractor and all others involved in the design and construction of the Site. Work and any buildings to enable the Site Work to be completed in accordance with the Construction Schedule. Each Owner shall provide Developer with copies of its building construction schedule together with those portions of its building plans and specifications reasonably required for the construction or coordination of construction of its proposed building with the Site Work. 4.2 Di utes. If any dispute azises between any contractors (or subcontractors) performing work in the Center;- the party who first becomes awaze of such dispute shall immediately notify Developer, and the disputing parties shall immediately proceed in good faith to attempt to timely resolve such dispute to avoid any delay in the progress of the Site Work or construction of any building, Each Owher shall construct any buildings on its Site in a manner which shall not unreasonably increase the cost of, or unreasonably interfere with prompt completion of, the Site Work. 4.3 Generally. The construction of all buildings and the performance of all Site Work shall be subject to the requirements set forth in the Declazation and this Development Agreement. Site Work. 5.1 Generallv. The "Site Work" shall for purposes of this Development Agreement be the work to be performed by Developer described in the project Documents and Construction Documents within the Common Maintenance Area. The Site Work shall be performed by Developer, and its agents, representatives and contractors, in compliance with applicable governmental requirements, and shall include obtaining all permits and approvals from applicable governmental authorities necessazy for the completion of the Site Work. The Site Work shall include, without limitation, the following: (a) construction and installation of certain off-site road intprovemenrs sucn as curo curs, glllterS, UCl:C1Gr"Cllull1i31AGD auu uicu16l1D, ~uj ucauvuuvu, ,.awa,us, excavation, fill, compaction, rough grading, and prepazation of building pads at the elevation, location and to customary compaction standazds Tor construction of anticipated buildings in accordance with the Construction Documents; (c) construction, paving and striping of access roads; (d) construction and landscaping of medians; (e) construction of the Center Monument Signs: (f) installaflon and construction of appropriate drainage and utility improvements (including sewers and domestic water lines) from the exterior boundary property line of the Center to the property line of each Site; (g) construction of retaining walls (if required); (h) Common Maintenance Area landscaping; (i) installation or curbs., gutters, storm drams and sewers; and (k) installation of all other utilities serving the Common Maintenance Area (including, electrical hookup of the Center Monument Signs). The final hook-up of building utilities, including meters and all associated utility connection fees) shall be the responsibility of the Owners, along with all other obligations of the Owners to complete improvements on their individual Sites. 5.2 Building Pads. Unless otherwise designated by the Owner of any of Site, the building pad to be. constructed by Developer on each Site as part of the Site W ork shall be graded to a level below the finished floor level of the proposed building to be constructed thereon equal to the-floor. slab thickness plus drainage course, if any, to an accuracy of plus or minus 1/10th of afoot. If the finished floor level of any building is not shown on the Construction Documents, the Owner of the subject Site shall furnish such floor level upon written request. 5.3 Project Engineer Certificate. The Project Engineer shall certify in writing to the Owners of subject Sites that the Site's building pad has been compacted and' prepazed in accordance withthe Project Documents and Construction Documents, and is ready for construction of the contemplated building. Either the Project Engineer or Developer shall deliver a copy of the foregoing certification to each Owner at an address provided by Owner. 5.4 Construction Schedule. The Site Work, and each portion thereof, shall be constructed in accordance with the applicable time frames.set forth in the Construction Schedule. If construction of the Site Work, or any portion thereof, is not commenced or completed in accordance with the Construction Schedule, Developer shall make commercially reasonable efforts to bring construcflon of the Si#e Work or applicable portion thereof into compliance with the Construction Schedule (including, without limitation, hiring contractors to perform overtime work 4 and additional days of work necessary to meet the time frames set forth in the Construction Schedule). Developer will notify all Owners immediately in writing of any changes to the Construction permitted under Article 6 (Force Majeure). 5.5 , Warran Developer warrants to each Owner that materials and equipment furnished pursuant to.this Development Agreement will be of good quality and new; unless otherwise required or permitted by the Protect Documents and Construction Documents, that the Site Work will be free from defects not inherent in the quality required or permitted and that the Site Work will conform with the Site Work not conforming to these requirements, tnc u mg sus ons no proper y appr Developer's warranty excludes remedy for damage or defect caused by: the abuse by parties other than Developer or those for whom Developer is responsible; modifications not executed by Developer or those for whom Developer is responsible; improper or insufficient maintenance performed by parties for whom Developer is not responsible; improper operation by a party for whom Developer is hot responsible; or normal wear and tear under normal usage. Developer shall execute such documents as may be reasonably necessary to pass-through and. extend to Weston Pointe.Owner's Association, Inc., any and all wazranties provided by the Site Contractor in connection with the Site Work. 5.6 Correction of Site Work. Developer shall promptly correct defective or non- conforming work, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. The costs of wrrecting such Site Work.shall be at Developer's expense. In addition to Developer's obligation under Section 5.5 hereof, if within one (1) year after the date of Substantial Completion of the Site Work or designated portion thereof. Developer shall correct it promptly after receipt of written notice from the Owner to do so, unless the Owner has previously given Developer a written acceptance of such condition. For purposes hereof, "Substantial Completion" shall be the date set forth on the notice provided by the Site Contractor pursuant to Section 17.1, subject only to' the completion of "punch list" items that do not materially interfere with an Owner's use and enjoyment of the Center. Developer shall promptly provide a copy of the notice of Substantial Completion to each Owner. Developer and each Owner shall execute and deliver to each other an agreement in form and substance satisfactory to Developer confirming the date of Substantial Completion and the commencemeht of the warranty period. Each Owner agrees to sign and remm such ah agreement to Developer within twenty (20) days after Owner's receipt of same. If an Owner fails within said 20-day period to provide Developer written notice that Owner disputes any matter contained in such agreement and does not execute such agreement within said 20-day period, such Owner hereby makes, constitutes and irrevocably grants Developer apower-of-attorney codpled with an' interest in the Center to execute and deliver such agreement for and in the name of the Owner. Developer's responsibility to correct such Site Work within one (1) year of substantial completion shall not be affected, diminished 'or restricted by the' limitations, restrictions or conditions of a subcontractor, manufacturer, .supplier or. installer's warranty, including the expiration of any. Uniform Commercial Code statute of limitations. The inability or refusal of a subcontractor, manufacturer, supplier or installer responsible for defective Site Wo;k to correct or warrant such Site Work shall not relieve Developer from its obligation to correct such Site Work within one (1) yeaz of substantial completion. The Owner shall give such notice promptly after discovery of the condition. If Developer fails to correct the non-conforming Site Work within a reasonable time during that period and after receipt of notice from the Owner, the Owner may correct it and charge the costs thereof to Developer. During. the one yeaz period for correction of Site Work, if the Owner fails to notify Developer of defective Site Work, which is then known to the Owner, and fails to give Developer an opportunity to make the correction, the Owner waives the right to require wrrection by Developer. 5.7 Miscellaneous. The construction of all improvements described in this Development Agreement shall be conducted so as to minimize interference with access to the Center and Common Maintenance Area from any public right-of--way. 6. Force Majeure. Developer shall comply with the Construction Schedule and the requirements of this Development Agreement with respect to completion of the Site Work; provided, however, that said periods shall Be extended for a period or periods of time equal to any period or periods of delay caused by strikes, lockouts, fire or other casualty, the elements or acts of God, refusal or failure of governmental authorities to grant necessary permits and approvais (the parties agreeing to use reasonable diligence to procure the same), or other causes, other than financial; beyond their reasonable control or the control of their agents and representatives, including the Project Engineer, Site Contractor and Project Architect. 7. Liens. Developer shall bond over or shall cause to be released any liens against the Center or any portion thereof for any work done or materials furnished in connection with the design or construction of the Site Work within thirty (30) days after DeveIoper's receipt of written notice of lien filing. Subject to the other provisions of this Article, Developer may contest the validity of any such lien provided that, upon a final determination of the validity thereof, such pazty shall cause the lien to be bonded over, or satisfied and released of record,, in accordance with this Article. 8. Default: Except as otherwise expressly provided herein, a party shall be deemed to be in default under this Development Agreement upon the expiration often (10) days from receipt of written notice from the other party specifying the particulars in which the defaulting parry has failed to perform its obligations under this Development Agreement, unless the defaulting party, prior to expiration of said ten (10) day period, has rectified the particulars specified in said notice of default, or has commenced to cure such default within such ten (10) day period and thereafter diligently prosecutes such cure to completion. 6 9. Remedies. 9.1 Developer's Default. If Developer defaults in the completion of any of the Site Work is accordance with this Development Agreement, and fails to cure or to commence to cure such default within applicable cure periods, all of the then-current Owners (other than Developer) may (i) commence or complete all or any portion of the Site Work in any commercially reasonable manner, and (ii) take all steps necessary to cause the construction of the Site Work, or applicable portion thereof, to come into compliance with the Construction Schedule (including, without limitation, hiring contractors to perform overtime work and additional days of work as necessary to meet, a tune ames set o m o t Construction Documents. In such event, the Owners so acting shall be entitled to reimbursement from Developer within thirty (30) days following delivery of written notice to Developer of completion of the Site Work by such Owners, along with supporting documentation evidencing amounts expended by such Owners to complete the Site Work. Interest shall accrue on any such amounts from the notice date until paid in full at the rate often percent (10%) per annum, along with reasonable attorneys' fees and costs of collection, 9:2 o Waiver. A party's failure to insist upon strict performance of any of the terms, covenants, conditions or agreements contained herein shall not be deemed a waiver of any rights or remedies that said party may have and shall not be deemed a waiver of any subsequent breach or default in the performance of any of the terms, covenants, conditions or agreements contained herein. 9.3 Remedies Cumulative. In addition to the remedies set forth in this Development Agreement,-each party shall have all other remedies provided by law or equity, which remedies shall be cumulative and not exclusive. 10. Reliance by Parties. It is of the essence of this Development Agreement that the Site Work to be performed by Developer is of substantial economic significance to each Owner. 11. Atto a ees. In the event any party initiates or defends any legal action or proceeding in any way connected with this Development Agreement, the prevailing party in any such action or proceeding (in addition to any other relief which tray be granted, whether legal or equitable), shall be entitled to recover from the non-prevailing party its reasonable costs and aaorneys' fees. 12. Not a Partnershin. The provisions of this Development Agreement are not intended to create, nor shall -they in any way be interpreted or construed to create, a joint venture, partnership; or any other similar relationship between or among the parties. 13. No Third Patty Beneficiary Rights. This Development Agreement is not intended to create, nor shall it in any way be interpreted or construed to create, any third parry beneficiary rights in any person not a party hereto. 14. otices. 14.1 Generally. All notices given pursuant to this Development Agreement shall be in writing and shall be given by telefacsimile, personal service, by United States mail or by United States express mail or other established express delivery service (such as Federal Express), postage addressed to Developer at the address or telefacsimile number set forth below: Developer: F.C. Realty Thirty Three LLC 9830 Bauer Drive Street Indianapolis; Indiana 46280 Fax No.: 317-829-2032 Attention: David M. Crockett, provided, however; that any notice of default to Developer shall be sent return receipt requested, and shall be sent to Developer's legal counsel (in the case of default by Developer) and to the Owner s legal counsel at any address provided by the Owner (in case of default by an Owner). The person and address to which notices aze to be given may be changed at any time by any pazry upon written notice to the other party. All notices given pursuant to this Development Agreement shall be deemed given-upon receipt. 14.2 ecei t. For the purpose of this Development Agreement, the term "receipt" shall mean the eazlier of any of the following: (i) the date of delivery of the notice or other document to the address specified pursuant to Section 14.1 above as shown on the retain receipt, (ii) the date of actual receipt of the notice or other document by the person or entity specified pursuant to Section 14.1 above, or (iii) in the case of refusal to accept delivery or inability to deliver the notice or other document, the eazlier of (A) the date of the attempted delivery or refusal to accept delivery, (B) the date of the postmazk on the return receipt, or (C) the date of receipt of notice of refusal or notice of nondelivery by the sending party, or in the case of a telefacsimile delivery, the date of receipt as shown on the confirmation of the telefacsimile transmission. 15: Successors and Assigns The terms, covenants, conditions and agreements contained herein shall constitute covenants and shall be binding upon, and inure to the benefit representatives; successors and assigns of the parties hereto; provided, however, that the parties acknowledge that the Owners aze relying upon the expertise and reputation of Developer for Developer's obligations under this Development Agreements and, therefore, Developer may not assign or delegate ifs obligations hereunder. 16. Modification. This Development Agreement shall not be modified without the written agreement of all of the parties hereto. 17. Termination. . 17.1 Generally. This Development Agreement shall terminate upon completion of the Site Work and delivery of a certificate of substantial completion by the Site Contractor: If this Development Agreement has not terminated within five (5) years after the Effective Date, the provisions hereof shall not be binding on any Owner (or the owner of any portion of any Site) who t acqutres'h a saz i o ' however, that le foregoing shall not affect any obligations or liabilities, actual or contingent, or any right of collection, reimbursement or contribution, or any other rights, under this Development Agreement, of any prior owner of any Site (or portion thereof) who either owned a Site:or portion thereof as of the Effective Date or acquired title to a Site or portion thereof within five (5) yeazs after the Effective Date. 17.2 Recorded Termination. At Developer's election, following performance of Developer's obligations under this Development Agreement. Developer and any then-curient Owner shall execute in recordable form any and all documents reasonably requested by Developer to remove this Development Agreement as anenaumbrance on the Center ("Release Documents "); provided, however, that such Release Documents shall not affect any obligations or liabilities, actual or contingent, that azose prior to the date of termination, which rights, obligations and liabilities shall constitute, and continue, as obligations of the parties. 18. General Provisions. 18'.1 Caotions Headines. The captions and headings in this Development Agreement arc for convenience of reference only, and shall not be deemed to define or limit the scope or intent of any of the terms, covenants, conditions or agreements contained herein. 18.2 Entire Agreement. This Development Agreement, the Exhibits hereto, and the documents referenced herein, contain the entire agreement between the parties hereto with respect to the. subject matter, and supersedes all prior agreements, oral or written, with respect to the subject matter hereof. The provisions of this Development Agreement shall be construed as a whole and not strictly for or against any party. 18.3 Time. Time is of the essence of this Development Agreement. 18.4 Time Period Computation. All time periods in this Development Agreement shall be deemed to refer to calendaz days unless the time period specifically references business days. Notwithstanding the foregoing, where the deadline for any action to be performed by tither party . under this Development Agreement falls upon a Saturday, Sunday, or local, state or national holiday, the deadline for performance of such action shall be extended to the next business day. 18.5 Construction. in construing the provisions of this Development Agreement and whenever the context so requires, the use of a gender shall include all other genders, the use of the singular shall include the plural; and the use of the plural shall include the singulaz. 18.6 No Modification: This Development Agreement does not amend or modify any of A'tig~.,o~_a T or F nh ' ih Tlnrl t' 19. Applicable Law. This Development Agreement shall be governed by and construed in accordance with the laws of the State of Indiana (not including the choice of law rules thereof). EXECUTED as of the date fast set forth above. DEVELOPER: F.C. REALTY THIRTY THREE LLC, an Indiana limited liability company By: David M. Crockett, Member List or Exhibits and Schedules: Exhibit "A" -Site Plan Exhibit "B" -Construction Schedule Schedule I -Legal Description of Center THIS INSTRUMENT PREPARED BY: Steven J. Glazier, Esq., COHEN GARELICK & .GLAZIER, 8888 Keystone Crossing Blvd., Suite 800, Indianapolis,.Indiana 46240, Telephone: (317) 873-8888. 10 r.S `1'Bi~ bamm.~.r C;~ b1 ~a. ~~ ~~ ~~ t ~ 1 ~ . ~ ~ . I. a~Bn s} No: ODQ366887 LEGAL DESCRIPTION PARCELI: Situated in the Southwest Quarter of Section 6, TowrtsMp 17 North, Range 3 East. Clay Township, Hampton County. Indiana end being that part of the Instrument Nc. 200400043279 depicted as Block'A", plat of THE TOWNES AT 0(Gce of ttie Recorder of Hamilton County, Indiana more particularty descdbed as follows: Commencing at the northeast comer of the Southwest Quarter of Section 6. Township 7T North, Range 3 East; thence South 69 degrees 56 mimries 26 seconds West 1,377.69 feet along the north fine of said Southwest Quarter ro the northeast comer of said Block "A"and the point of beginning ofthis descdption; thence Soutit 15 degrees 04 minutes 16 seconds East 544.31 feet along the eastern boundary of Brock "A" ro the northern rght-of-way 8ne of Weston t?ointe Drive (variable tight-ofway width); thence along said rTgM•of-way Gne the foGowing six courses; 1. thence North 72 defines O6 minutes 32 seconds West 106.67 feet to the point of curvature of a verve concaved ro the left having a radius of 230.D0 feeC 2. thence northwestedy and southwestedy 124.97 feet along the arc of said curve with a chord bearing of North 8T degrees 4D minutes 31 seconds West and chord length of 123.44 feet; 3. thence South 76 degfes 45 minutes 30. seconds Wesi 289.07 feet ro the.point of anvature of a curve concave ro the left having a radius of 185.00 feet; 4. thence southwesterly 21.78 feet along the arc of said curve with a chord bearing of South 73 degrees 23 minutes 08 seconds West and a chord length of 21.77 feet; 5. thence South 70 degrees DO minutes 45 secontls West 235.91 feet; 6. thence North 64 degrees 59 minutes 15 seconds West 60.07 feet to the eastern right-of-way Ilna of ~chigan Road (U.S. 421); thence North 15 degrees 04 minutes 18 seconds West 640.87 feet along said right•of-way line to the northwest comer of Block "A" on the north IFne of the Southwest Quarter oT Section 6, Township 17 North, Range 3 East;~thence North 89 degrees 56 minutes 28 seconds East 819.42 feet along said north fine ro the point of beginning. PARCEL D: SiWated in the Southwest Quarter of Section 6„Township 17 North, Range 3 East, Clay Township, HamBton County, Indiana end being that part of Irtstrumem No. 200400043279 that is whhin the plat of THE TOWNES AT WESTON POINTE, SECTION 1, SECONDARY PLAT rewrded M Instrument No. 200400067374, P.C. 3, Slide 489 in the Office of the Recoriier of HamBron County, Indiana more partkularty descdbed as fo8ows: Commencing at the northeast comer of the Southwest Quarter of Section 6, Township 17 North, Range 3 East; thence South 89degrees 56 minutes 26 seconds West 1,377.69 feet along the nor(h tine of said Southwest Quaver ro the northeast comer of Block "A", said plat otTHE TOWNES AT WESTON POINTE, SECTION 1; SECONDARY PLAT; manta South 15 degrees 04 minutes 18 seconds East 544:31 feet along the eastern boundary of Block "A" ro the southeast corner of said Block "A' on the notthem right of-way Tine of Weston Pointe Drive (variable rlght•of-way width) and the point of beginning of this description; thence t:ominuing South 15 degrees 04 minutes 16 seconds Eest 216.95 feet ro the south boundary of said plat of THE TOWNES AT WESTON POINTE, SECTION 1, SECONDARY PLAT; thence North 89 degrees 49 minutes 00 seconds West 819.55 feet along said boundary to the eastern dghPOf-way line of Michigan Road (U.S, 421); thence North-18.degrees 27 minutes 34 second's West 13.20 feet along said tight-of-vray line; thence North 15 degrees 04 minutes'I6 seconds West 103.83 feetalong said dght•of--way Gne ro the north rtght•of-way fine of Weston Pointe Drone (variabfedgM-oFway width); thence along said dghi-of-way 8ne the foGovflng six ceurses;1. thence South 64 degrees 59 minutes 15 seconds East 50.01 feet:,2. thence North 70 degrees 00 minutes 45 seconds Fast 235.91 feet do ttre point ofiurvature concaved to the right having a radius of 185.p0 feeC 3, thence northeasterty 21.76 feet along the arc of said curve wish a chord bearing of Noah 73 degrees 23 minutes OS seconds East and a chord length of 21.77 feeb 4. thence North 76 degrees 45 minutes 30 seconds East 289.07 feet ro the point of curvature of a curve concaved ro the right having a radius of 230.00 feet; 5. thence northeastedy and soumeasteriy 124.97 feet along the arc of saki curve with a cbotd bearing of South 87 degrees 40 minutes 31 seconds East and a chord length of 123.44 feeC 6. thence SouW 72 degrees Ofi minutes 32 seconds East 106.87 feet ro the poim of beginning. iseusroess SCFIEDULE 1 , EXhIIBIT "C" To Declaration of Covenants Conditions and Restrictions For Weston Pointe Development Guidelines The following shall be considered by the Association inconsidering site development proposals: (2y Building Design (3) Landscape Design (4) Signage A. Plan Submittal Checklist. In order to simplify and expedite the approval process, renderings plans and. specifications aze required. Two sets of plans will be submitted for the review, One set of plans will be retained for the Assticiafion's files. If the Association does aot approve the plans and specifications within the 30- day time period, they aze to be deemed disapproved. B. Plan Submittal. Plan review shall be concerned with overall design intent, building materials, colors, funshes, architectural treatment of roof lines, site and landscape design, engineering, architectural, site development yard landscape working drawings and specifications: (1) Site Plan (a) Site location (b) Site survey (c) Building location, orientation, overall (d) Setbacks (e) Site circulation (f) Landscape areas (g) Site drainage (h) Grades, existing and proposed (i) Amount and Location of employee and guest (j) Site lighting photometries plan (k) -Misc. site structures, screen walls, etc. (2) Building Design (a) Building foot print. (b) Building elevations, in color or with color (c) Building materials G. Basis for Approval.. Review and approval will be based on criteria established by the City of Cazmel and standards'set forth in this Exhibit as further determined and applied from time to time in the discretion of the Association. Plans will be reviewed not only for the quality of the specific proposal, but also surroundings: Evaluation will be made of spatial relationships among buildings and between buildings and other surrounding elements. With the intent of minimizing detrimental visual impact, careful concern will be given to location and treatment of utility and service facilities. Site .ingress and egress may be ]invited to permit efficient flow of traffic on abutting streets. D. Interpretation and Waiver.. The Association's interest in reviewing the above items is to assure that. a high quality of compatible development is consistently achieved. When questions of judgment or interpretation arise, the decision of the Association shall be fmal. All issues not covered specifically by this Exhibit .will be resolved by the Association on a case-by-case basis. In order to meet special unforeseen situations, it maybe desirable from time to time for the Association to allow vaziances of certain requirements. Vaziances will be reviewed in accordance with the procedure provided in Article 8 of the Declazation. Any vaziance granted shall be made with the welfare of the overall development in mind and is not precedent setting: II. Sienaee. The signage criteria aze: There shall be two (2) monumem signs serving Weston Pointe, to be located pursuant to the Project Documents. Any and all additional signage shall be required to meet any and all criteria as established by the City of Carmel and the discretion of the Association. -~_> .~4 :i• ~. rH~.M ., ... ~~:. t'si ~~y9g1 6Tng ` ` ~5~' . ~.~ . b ,. :, ~~ a R ,s `~~~ '~ $ _.,.. ~ .. .. ... ... . '~ .._ E M1cH`G PN ROPO lu, S.q2 ~l ' 06/15/4884 11:5 9177709992 ~ PAlIJ1 LTgl6B0 PAGE '~ .-sa-sai ..as.r."~+.v{w rne.eaae ia.rsasn~s • ..~ +~ 4 1 ~~ ~ ~3 1 9 ------------ ~ --~ - tic/------- -- -----~,~~d, -- CObIM7M3dENTS CUIQCRltl1'ING T98~18~~1°-.first-x~"ooa m~'~~°~~,'' ~~ ,~ .. AND D]tVEL0P3d)3NT OT RBAL EBTAT&n!~ et. o0 PtmvmParmm.lao.,+o[ndiaaaCa¢putl1o41t+mailnea ar udpim QtaaRer, "Dwrwr"j:8tatatgt~Pdtc}mmroftke red astern lomW mflemiltoa Ceuaty, la0kos and desblbadla~5xhfblt°A"end)hthibk"B"bmavtLereaBe, "heal Rshln', metal the lblloudng Cwnmitnfanta m the Cmae! Plan ComtaL4ion(horee8m,' "Caaualavmiy. A. 3eel3xhibit"A'-Legal D{awfpdw ofR-eZaaed Pmpetty & 9ae$xiobit°8"-Lrgei l)neiipflaa ePB-2Zonod Property - i Dvdad Nvmlxn 53.03 Zaed 3}.dF3Z 7. glatemmtef(:ommltmeab gee the PrvverivDetetihed bl3zhthlSA: A. There.dll nor bs airy polernotmtedaaattDgW. . BAD mav]wmemsidwrial ualb bw7twRl have tbah awadwkdlot and a0 condom0drrm7esidutlal Wb vdD behaRt utiliangabadaontnl Pmpetq regfiae("FIPR'9• G ARmdb that ata3•slorylOwaboma oreondvmWum eoamuotion wi0 bo Iwiid[to bdakeud booik plink. A AII2story loWtdthnw oroondaadnlmacooakactionwiRhe Rmited mbtlokw atone andaminimvm ofviayL B Allure ofovgdWRl LaotiwilvtpuRty and eolota uti~vaedin0u a~acaa svairkntld mlghbmhond 7orOWn ar'1he VPadam." fi. The oardLtxo WoPe7t9 Doaavd aoetheat p[ttputy live Willbnve a.ad0lmvm hvild'mg atttaud<mdergrceahdt buffecoP30` D, -fie Owns vrfD bvDda d' abadoW box Igtceentha wa0wrt propmty fuu. & lTe QwaLtMll aubmitanv+spteble landaeepoplan fhcPmm~ry PlaWogpaoew lbntdadudes tans Warare "baDaB midbm ped°eadtroe ttempimmd rroeaduthave a Wiper erne of3" to s' to Otewufhttwtbr5t huffs. L Ile mtp+opetq tine wll baveamurimum setback ofl50'. 'lltepmdw of~ Ote350'ecLmkamnOmtdoce mtMve tatvdtalneae imomvameatt Wit[ 7. The afro Wilk be devebpW towmplgwdW the W47.r teDLdng the )L~ldantioi ope¢gpaee Orddrtwee (RO: K AR midwtW eamtn+cOw volt fib limited to 2~atory 4 No3alory eoraauefloa wOi LnaRpWed adOdn 100't vnfbia 300' oftbe caetpropar(y l'we, and 100' of Ibe Rut P.shle adjacent to mmwdingpropetiea with a 9-l. EXHIBIT `cE" 80/19/2080 11:56 '3177789992 PailA CId11160 PDGE B7 .-rr..6a •-aw•n,mua nurwero ~ u,raeeme • ei .I_-_ _--__._.-_-_--__-.__--____-_- __- _.._ '- ______ -__. _. _..__._. __~___ kL OVmer alpenmfoUowali ecosioa t:onhd ropwem®la otHte Hamilton _. County Bd1 and CDUmevadam Bmvim m!'mdt any dh ~im'ln0 Wo 1ho Weatatu dwmage aSalua N. MotctDr l.noe wiU ody emmediBtD lbaReal Pstouittepdmd bf the Ctry of Cetmd ortheHemtlmh eawtyAieburar Depetmsnt. Tha Owaeris wiWag toprovidapavrn nodmeoet'BeDaY aorraa gatem Ueu ataeotmecdog ekad atthe dhexfion of dm Ciq sECemid or FiamOfomn County tUBnwty nvwrtmad P, ThaOtannr Outharwmvdb th0ladeg8em dg)ttafvmy wi0be ptavldedm allow fDr slhhae oomrtdtaainm ~ewadevciDped proputy to tiro nD~. 4. Btalemett ofcemminaeeu a~tha Yroaerlvnmeribea lp &sldbltH: A M of dm Rd Pabteddaibed is 7isbihltH b cohjodm fie RB HiBLvray d2l -Mtehigm Rand Cmddw Ovedny Zone, & 7hsOwaecfluthcroommha lheidm amxiatam agoem Onioga offi:ddual wnmlmeial eppca shall sot oxaod 150A00 oquate tact. . C TheOivnar fmMet eommib that thapad[on o[theRaelPsiamdeambed m F~1N[H dudisadjeaeai ro "17m Weatm:y'wlll have a bWmmn bnfld6y; setback ll0eof100•. D. TheOwnet fut9mrcomtotbmwmk with tbo Clq~ofCetmetmdetetmiae tite .best potm nfG~.+Baodegima on the notO:oraodh cod ofthe Real Estates 5. 8(pdt~an sntsenosa and Aetlenat Them Commarnabare bhidhlgm tbn gvmat ot'ilw Aeal Eemtq each ndxegneot Owner of OmAeal Fatnoq and aeoh Dthn: petsan eoqutih:g m hdered Wthe Reel Esmtq unkit madi8ed m tami:mtedby the CDtmdclDa. Thom CotomUmt¢b meq bcmodlRed or tmm0utsd$om time m thu ady by a dvsicioD aftheLbtnmlWon mods aitn nodoe and apoblic hnimg ae provided 6ytba tales of dtc Commwafon. 6. L9eedve Dale: The Cammihnents~eotwiood betels abellbe cf$cdve upon dn. fiosi edopdontmd paasegnhda law of m oNinmeo by tbeCommoa (:Donal of Cmme1, Oldipm teolaesiL}ing dwReai patch fmmtbe S•i Aeakbnoa Dlatrid ClesoHuBmm the R~1 Rwidmna Dlsnlct ©aolflcaBOaeedthe 8-28namase - Diddd CInsl6catlDnaed shetl mmain m etfex 90 long easaid DttUnvxenmaim m~aet. 7, ' $4[~IUUBi ThatmdmaigmdLeaabl'sotlmtim tbeSemgary oClM Gbmmladoo mnxmdtluse commttrmotamdm Office of the Racvtda oftboAemilton (bendy, Indmne, fo0owlog the FSnaiveDero. B. Safoeeemeutt Them CommiDnema eta enfotoeabM by dw. Comm{s9ioa ®dtfie City afCatmal, tndieon. pp(yJ, C17latB0 -' P46E 89 ' ____-_-_-__-_CON~N7`O80ARikR-________._______________._.____--. __-_____. __. 7be tmdenigoed, I.awam 7. Ciao li, the at0omcy-leteet fot me he simple atvnas of Cie R.tal Bstete. Cacolya Fmd Fwdagmn, i~IsidnaR9, sad Betty Fom, ac 1?xeCatrlx of the Pstato of Doaald L Fatd, 6pteby comeots [o the tbtegootg Crnatoitmest Coucernhtg the Uce snd Devclapmmc of Reai &tata CarWyn Hord ikaoingmn, IadividtaBy,~ and Betyy Pacd. n F.xcemnc~ orths Netete of Dona10 L. Potd 97ATB OF INDIANA ) Ss: COiJfIIY OF BOONH ) Before m4 a Notary pvblit m sad for nid Covaty sari 9mto, petsmel~y appestat LAW30N 1. CLARK A, vvbo, bstdag been dolt' evrom, etazed that say npreswtmlom thaeta mabdued are ttaa turd eortetR Wtmess vd i~ sad Nntwd Seal Itde (3'a"dry ol+tMsy, 7DU9. (;~ .: ,. ,..t t~ w C/li. ~ , tt '~;` ~`My~t,gtamtsatad $}cplres: NO?ARY LtC G i-.ifa-brj~ L~a.~'~ ~,. ~1tik _ nty~+. es Priated .. .. S am a ratSdem of . o ri Couaty a4 11t 95 9177789993 PNAA WJ~ PafiE SB .-ac-•a, uvs~V~•.~'~•n,aev .anev+o • a. __t--_-___--._ - __-_-.___-_ __-- _-_________ - - - __.__~__________ I EXHIBR A 1 R1 AREA 2WdINO DESCRIPTION A pakof the at the Southwest Ouartm of Sec0on 6, Taxrishlp 17 Nor04 Range 3 East, In Clay Towrtahip. Hammon f+'otmtY, Dtdtatq Cotlar~encin8 atthe NmBteast mmet of the 5outhweet tLlat[et of 8sition B,ToarnaNp 17 .~~JL .f 16J.,L~..~~J~~JY~uJY. 11~~. ~i.~~IL..~.4~~~,L~~~..,ie4. ~~~ __ _... _ .. SB taktuttu 28 esmnds Wtute dlslence of20Aa{bettb tfia narthueatmmerni Palk el t Weston Plem, 8tal8en Thtae, reoordetl as Owtromxtt Na D738778, b Plat CebDiet 2, sBdat8,fn9retNfxeoflheRemNerofHarNltonCouny ImBerro,aM8lepoimof bepimdnQ of Me helelrt desedbed track Srettcs parsOel rhTh the amt Iheaf saM quaver end alon84he wart One dPadtrtWeston Place, South 00 de8tem 4Btnhulas 27 semmis Waet a dlstenoe of 886.92 tebtto the mMem Otre of Ths Village at Wasron Pam, 6xe8on 2, u recorded as Inatnanard No 8628048, N Plat Cflb6wt 1, setlb 888, in '+ 83e OMa of8re Recorder o{ Hammon camp, Indtene She nett goes caps being along sold nodham Ma); {t~ NoRh BB dagrep 40 mhudm QO aeconde W~tadetance a< 71152 faek W South 00 depmas 48 minulm 27 seconds Walt s tlRttstca of 7A91 Teak (3I Nadh 89 da8rbee AB minutesOD atxonde West a dislanw of437.60 feet thence .parallel wmr ins eentedlne of U.S. N18hwey 427, Nonh 15 degrees 04 minutes 18 sam~s West a matence of 7Bi28 feet to lire natlr Bne of aem quwlar thence fllon8 the nosh One of said quarter, Nodh 88 degrees 56 ndnutee 28 segonde Fast s diatwree of 1567,68 feel to the pdm of 6e81nnNg, mnfahdng 20A00 acres (671,200.00 sgimre leek. 09/15/4004 11:39 3177709992 FAU.A tl ' t•~lFOO, t.tOPU,IIR,r,. PYFRtO . - . ' . PAGE 11 nuer.P~~ DCFU8IT [i -- _... B•2ARf~1ZONINO DESCit1F'71ON-. _, A pad A the of the 8ou81w9a{ Quartet of SBe6on B, Townehfp 17 Nodh, iteifge 9 East, in Clay Township, HartAhan Counal.lMhna, Comm®nehrg at pta Nadheast armatoftha Bouthwed Gunder oFBectlon 9, Tewnehlpl7 e e1~9ta rtadhOna-of~itl-quadereeotlortSauth86-depreac 98 minulas 28 searnda west a dfstmlar of 1377.86 feet to 81e poll of bapMnlnp a7the Amalndeeadbed tract Aanar pampalwBhtha canleflbre of U.B. tI'iphway 4218outh 16 tle6teac 04 tnintdea 78 eecpnde East s dWarlw of 78126-feat to fhe norihem Ana d The wasps etNfeeton Pere, 8ee0on 2, ae taarde4 09Ir16bualBnt No 6828649, ~ Plot CabNetl, elide 886, intha OBiar dtha Reeotderoi FiemPlon County. Indlarre; thence aWng Bald notB~m Ilea, North 86 degrees 46minute806 aewnda waste dlatenoo at 981.67 led to oald arrdet6na; 9unar aMng Bald arrttad(no, Nodh 18 degrees 8q minutes 16 cemnda Was! a d6tence 0773738 End N Fba north Ilse d eatt guartetfeotlorr, Ihenre aloiip saltl north Bne, Nodh 86 deprepa 99mtnutes TB aaoonds East a dlstenca d 88058 feet tethepdm oibe6NnMg, OOdainN,074.B28 a0res(649611.09 square feet). •+•t~ i V~ vv _ ADI)LTTONAL COMMITMENTS CONCERNING THE USE AND DEVELOPMENT OF REAL ESTATE ---------Pi>tutan-lartrters,-Inc.,$nIndiana-Corporation,ita.nomine~:or_assignee (hereafter------ ------ _ "Owner'? the Contract Purchaser of the real estate located in Hamittou County; Indiana and described in Exhibit "A"; attached hereto; (bereafta' "Real Estate's makes the following additional commitments to those already appkcable to the Rent Estate found in tnstnrinent # 200300047989 filed in the office of the Hamilton County Recorder on May 19,2003: I. Descrtnlion of Real Estate: See Exlu'bit "A" attached hereto 2. •1,Zocket Number 33-03 Z 3. ~Sta'tement of Additional Commitments for the Real Estate: A. None of the units to be wnsWeted parallel to the northern property line and the eastern property line shall have floodlights. In addition, all exterior lighting that is installer on rite fear elevation of these units will be installed to reasonably light rear patios, which lights shall be only typical building motutted coach lights on the first floor level and any additional landscape lighting. The goal of the exterior lighting on tits rear elevation of the homes that arc parallel to the northern and eastern properly Lines is Yo provide reasonable illuminaribn for the unit owner but also to minimize light projection toward the northern and eastern property lines and across said northern and eastern lines.. ' B. [n the event that there is a problem with trespassing with unit owners from the ]teal Estate crossing onto the property to ttte north of the Real Estate then the Owner shall install a fence that is mutually agreeable to the Owner and the property owner to the north. Said fence shall be installed on the property line dividing the two properties. In any event,. the existing farm field type fence near the aforementioned property line shall be repaired, as necessary; by Owner. C. T7re property owner to the north shall have the tight to install on its property a gate at tfie stub street being installed, by Owner and said property owner to the north shall Gave the right to use the street being stubbed at the northern property )ins of the Real Estate. 4. Bindine on Successors and Asstens: "these Additional Commitments are binding on the Ownez of the Roal Estate, each _ _. subsequent Owner of the Real F.smte, and each other person acquiring an interest in the Real Estate, ualess modified or terminated by the CarmeUClay Plan Commissioa(hetrafter "Commission': These Additional Commilmeats maybe modified or terminated from time to thne only be a decision of the Commission ~nade_affecnotice and_s.public_headng~apro~rideclby! thesules of the C.ommission.____ 5. Effective Date• These Additional Commitments contaizted herein shall'be effective upon the approval of the Primary Plat for the Real Estate by the Commission filefl as Docket N•amber 137-03 PP (#03090005), W estoa Point Primary Plant. b. Recordine: The uadersigned hereby authorizes the recording of these Additional Commihnents. 7. Enforcement• These Additional Commitments are en~'orceable by the. Commission, the City of Carmel and the owner(s) immediately to the north of the Real Estate and their successors and assigns. ' 2 ;. CONSENT OF OWNER The undersigned, Lawson J. Clark, II, the attorney-in-fact for the fee simple owners of the Real Hstate; Carolyn Ford Pennington, individually, and Betty Ford, as Hxeoutrix of the Hstete of Donald L' Ford, hereby consents to the foregoing Commitment - "^AG@mirlg~e-~Se2nd-DCVelapnlent-0fRa91 F~r~t~ ~ 1 _ _.._ . ~' iti aeY " SON J. C II, Attoraey-m-Faci Carelyn Ford Pennington, Individually, and Betty Ford, as Hxecutrix of the Estate of Donald L Ford STATE OF INDIANA ) SS: COUNTY OF BOONE ) Before me, aNotary Public in and for said County and State, personally appeared LAWSON 7: CLARK, lI, who, havrng been duly sworn, sorted that arty representations therein contained are true and correct. Witness my hand and Notarial Seal this dS 0~ day of `~~IL~ , 2003. • N ARY LIC . My Commission Expires: r Jiro !0'1 ~ .(, . ~ri~eS Printed I am a resident of~~~ County 3 .Executed this . ~~ day of ~~~/^t ~"r .2003. PITTMAN PARTNI'sRS, Steve A. l President STATE OF INDIANA ) SS: COUN'T'Y OF HAMILTON ) Before me, aNotary Public in and for said County end State, personally appeared ' STI3V13 A. PI'1"PMAN, the President of Pittman Partners, Inc., who, having been duly sworn, stated that any represenfations therein contained ere true and correct Witness my hand and Notarial Seal this /~ day of std , 2003 ~. ~ CARY PUBLIC My Commission ]xp ~t ~~ .0'270.4 .. Prin d I am a resident of / ~ 7D~ County YlnVl G. 0013, iio`.aty puhfic rA~V~:T,Rt:r1;Y;71,;:3 t~lC°•ii"b.{r°,i, ~Cfl, i3~ Ga;Sts ~: ss^ysi~r:cs: IlamA!on This document prepared by S. Gregory Zabel; I51 North Delaware Street, Suits #2000 Indianapolis, IN 46204 4 6 EXHIBIT A Apart of the of the Southwest Quarter of Sectlori 8, Township 17 North, Range 3 East, in Clay Township, Hamilton County, Indiana, Commencing at the Northeast corner of the Southwest Quarter of Section 6, Township 17 NQrth,Banga_3_E~st;_th_ence along~he n~h_lioao~said_quartaCS~ctLon~SnuftLfl2degreas_------- _ 58 minutes 26 seconds West a distance of 20.00 feet to the northwest corner of Park at Weston Place; Section Three, recorded as Instrument No. 9736778, In Plat Cabinet 2, slide 18, in the Office of the Recorder of Hamilton County, Indiana, and the point of beginning of the herein described tract; thence parallel with the east Tine of said quarter acid along the west line of Park"at.lNeston Place,. South 00 degrees 48 minutes 27 seconds West a distance of 665.32-feet to the northern line of The ~Ilage at Weston Place, Section 2, as.recorded as Instrument No 9626949, in Plat Cabinet 1, slide 686, in the Office of the Recorder of Hamltton County, Indiana (the next three cads being along said northern line); (1) North 89 degrees 49 minutes 00 seconds West a distance of 711.52 feel; (2) South 00 degrees.48 minutes 27 seconds West a distance of 74.91 feet; (3) North 89 degrees 49 minutes 00 seconds West a distance of 437.80 feet; thence parallel with the centerline of U.S. Highway 421, North 15 degrees 04 minutes 16 seconds West a distance of 761.26 feet to the north line of said quarter; thence along the north Ilne of said quarter, North 89 degrees 56 minutes 26 seconds East a distance of 1357.69 feet to the point of beginning, corrtaining 20,000 acres. (871,200.00 square feet). No: 000366887 PARCELI: LEGAL DESCRIPTION Indiana antl bring that part of the Instrument No. 200400D43278 depicted as Block "A', plat of THE 7OWNE5 AT WESTON POINTS, SECTION 1, SECONDARY PLAT recordetl in Instrument No. 200400067374, P.C. 3, Slide 489 in the Ofifce of the Recorder of Hamitton Coumy, Indiana more particularly described as fogows: Commencing at the northeast comer of the Southwest Quarter of Section 8, Tovmstdp 17 North,. Range 3 East thence South 69 degrees 56 minmes 28 seconds West 1,377.69 teat along the north qne oisattl Southwest Quarter to the northeast comer of said Block "A"and the point of beginning o[thk description; theiree South 15 degrees 04 mirwtes 16 seconds East 544.31 feet along the eastein boundary of Block "A" to the rtorihem right-of-way qne of Weston Pointe Drive (variable right-oFway width); Otettce along sa[d dgM-of-way qne the fogowing.siz courses; 1. thence North 72 degrees O6 minutes 32 seconds Wei 106.87 feet to the point of wrvanrre of a curve com:aved to the left having a retlius oP 230:OD (eeC 2. thence norlhwesteity and soutlmesteriy 124.97 feet along the arc of said ctava with a chord bearing of North 67 degrees 40 minutes 31 seconds West and chord IengOt of 123.44 feeC 3. thence Sauth 76 degrees 45 minutes 30 seconds West 289.67 feet to the pohtt of curvature ~ot a curve concave to the left having a radius of 185:00 feet; 4. - Otence southwesterly 21.78 feet airing Ore arc of saitl curve with a chord bearing of Soutti 73 degrees 23 minutes 08 seconds West and a chord length of 21.77 feeC 5• thence South 70 degrees 00 minutes 45 seconds West 235.91 feet; 6. thence North BA degrees 59 mimnes 16 seconds West 50.01 feetto the eastern right-of--way Dne of Michigan Road N•5.421); thence North 16 degees 04 ndnutes 16 seconds West 640.87 feet~along said rigMot-way gtte to the nortFrvuest tamer of Bioek "A' on the north tine of the Southwest Quarter bf Secton 6, Township i7 North; Range 3 FasG•thence North 89 degrees 5B minutes 26 seconds East 819.42 feet along said north Gne to the poim of beginning. PARCEL 11: Siwated in the Southwest Quarter o/Section 6, Township 17 North, Range 3 East, Clay Township,. Hamilton County, Iridlena end b'ehtg that part of Instrtstem No. 200400043279 that is within Ore plat of THE TOWNES AT WFS7ON POINTS, SECTION 1, SECONDARY PLAT recorded in Instrument No. 20D400067374, P.C: 3, Slide 489 in the Office of the Recorderof Hamitton County, Indiarm more paNcularly tlescribed es fogows: Commencing a[ the northeast comer oPthe Southwest Quarter of Seaion 6, Township 17 North, Range 3.Eest; thence South 89 degrees 56 minutes 26 seconds West 1,377.69 tact along the norpt tine oFsaid Southwest Quarter to the northeastbtxner of Bbck °A", said prat of THE TOWNES AT WESTON POINTS, SECTION 1, SECONDARY PLAT; thence South 16 degrees 04 minutes 16 seconds East 544.31 feet along the eastern boundary of Block A" to the southeast comer of said Block "A" on the . northernrfgM•of-way Ilne of Weston Poime Drive (variable dgMoi-way width) and the point of beginning of this description; thence condnufng South 15 degrees 04 minutes 16 seconds Eest 216.95 feet to the south boundary of said prat of THE TOWNES AT WESTON POIME SECTION 1, SECONDARY PLAT; thence North 89 degrees 49 minutes 00 seconds West 619.55 feet aWng sold boundary totheeastern right-of-way fine of Mtchigan Road (U.S. 421); thence North 18 degrees 27 rnintrtes 34 seconds West 13.20 feet along sans right-oT-way tine; thence North 15 tlegrees 04 minutasl6 seconds West'103.83 feet along said dghbot-way bne to the rrortli right-of-way 9ne of Weston Poirrte Drive (variable rightof-way wtddt); thence along satd right-of-way fine OuafoSowfig sM courses; 1. thence South 64 tlegrees 59 minutes 15 seconds East 50.01 feeb 2. thence North 70 degrees OD minutes 45 seconds Fast 235.91 feetto the poim oFt:urvature concaved to the right having a radius of 165.00 feet 3. thence northeasterly 21.78 feet abng the arc of said crave with a chord bearing of North 73 degrees 23 minutes OB seconds East and a chord length of 21.77 feet; 4. thence North 76 tlegrees 45 minutes 30 seconds East 269.07 teat to the poim of curvature bf a curve concaved to the right having a radius of 230.00 feeq 5.tkence northeasterly and southeasterly 124.97 feet along the arc of Bald curve vuith a chord bearing of South 87 degrees 40 minutes 31 seconds East arM a chord lengthof 123.44 feet 6. thence Sotth 72 degrees O6 mhades 32 secontls East 1 D8.87 Feat to the poim of beginning. ?~xnYfi€ EXHIBIT "F° PROHIBITED USES 1. No Site shall be subdivided without the consent of the Developer. 2. No Site shall be used for any of the following unless consented to by the Developer: Any storage facility. Any "second hand" store or "surplus" store. Any fire sale, bankruptcy sale (unless pursuant to a court order) or auction house operation Any automobile, motorcycle, truck, trailer or recreational vehicle sales, leasing, display or body shop repair operation (however this does not prohibit a caz wash). Any gasoline or automobile service station. Any residenflal use. Any veterinary hospital or animal raising or boazding facility (except Site E may have a veterinary hospital). Any mortuary or funeral home. Any establishment selling or exhibiting pornographic materials or which sells drug- relafed pazaphemalia or.which exhibits either.live or by other means to any degrce, nude or partially clothed dancer or wait staff and/or any massage parlors or similar establishments. Any bar, tavern, or other establishment who's reasonably projected annual gross revenues from the sale of alcoholic beverages for on-premises consumption exceeds forty-five percent (45%) of the gross revenues of such business. Any flea market, amusement or video, pool or billiard hall, or dance hall. Any gambling facility; or operation, including but not limited to: off track or sports betting pazlor; table games such. as blackjack or poker; slot machines, video poker/blackjack/keno machines or similar devices; or bingo hall. 3. Notwithstanding anything contained herein to the contrary no Site- shall be used for any purpose that is in violation of then current zoning regulations, rules ordinances or restrictions of record. Any violation of these restrictions by an Owner or its successor may be enforced by . the Developer or its successor with all remedies allowed under Indiana law, both at law and at equity including injunctive relief and the non-prevailing party to any litigation shall pay the prevailing pazty's reasonable attorney's fees. EXHIBIT "G" INSURANCE REQUIREMENTS (A) .During the period that the Association is obligated to maintain the Common Maintenance Area, the Association shall maintain or cause to be maintained in full force and effect at least the minimum insurance coverages in Constant Dollars set forth below: (i) Commercial General Liability Insurance covering the Common Maintenance Area with a combined single limit of liability of Five Million Dollars ($5,000,000.00) in Constant Dollars for bodily injury, personal injury and property damage, arising out of one occurrence; each Owner and the Association shall be a "named insured" or an "additional insured" (as is appropriate) under such policy. The Association agrees that, if applicable, the insurance maintained by the Association shall be primary insurance and not contributory with the in~rrance maintained by each of the Owners pursuant to Section (B), or any other insurance maintained by any of the Owners. (ii) If applicable, Workets' Compensation and Employer's Liability Insurance: (a) Worker's compensation insurance as required by any applicable law or regulation. (b) Employes's liability insurance in the amount of $1,000,000 for each accident for bodily injury, $1,000,000 policy limit for bodily injury by disease and $1,000,000 each employee for bodily injury by disease. (iii) If applicable, Automobile Liability Insurance for owned; hired and non- owned automobiles. The limits of liability shall not be less than $1,000,000 combined single limit each accident for bodily injury and property damage. The Association agees to defend, protect, indemnify and hold harmless each Owner from and against all claims or demands, including any action or proceeding brought thereon, and all costs, losses, expenses and liabilities of any kind, including reasonable attorneys' fees and cost of suit, asserted or incurred in connection with or arising out of the performance, or failure to perform, by the Association of its duties or obligations under this Declaration and with respect to the maintenance and operation of the Common Maintenance Area; provided, however, the foregoing obligation shall not apply to claims or demands based on the negligence or the willful act or omission of the Owner to be indemnified or if such Owner has its own insurance coverage regazding such claim or demand in the event it is determined that such Owner was not at fault and did not have its own insurance coverage, then the Association shall reimburse such Owner for all reasonable expenses and/or costs incurred by such Owner defending against such claim or demand. If any Owner is operating and maintaining the Common Maintenance Area on its Site, such Owner agrees to defend, protect, indemnify and hold harmless the other Owners and Association, if any, in identical fashion to that required of Association in the immediately preceding sentence. (B) Each Owner (as to its Site and the Common Maintenance Area only) shall maintain or cause to be maintained in full force-and effect at least the minimum insurance coverages in Constant Dollars set forth below: (i) Commercial General Liability Insurance with a combined single limit of liability of Five Million Dollars ($5,000,000.00) in Constant Dollars for bodily injury, personal injury and property damage, arising out of any one occurrence; the other Owners and the Association shall be "additional insureds" under such policy as it applies to the insuring Owner's Site and the Common Maintenance Area. Each Owner agrees to look first to the insurance coverage obtained by such Owner or the Association and to exhaust all limits thereof before making any claim against the Association. (ii) If applicable, V/orkers' compensation and employer's liability insurance: (a) Worker's compensation insurance as required by any applicable law or regulation. (b) Employer's liability insurance. in the amount of $1,000,000 each accident for bodily injury, $1,000,000 policy limit for bodily injury by disease and $1,000,000 each employee for bodily injury by disease. (iii) If applicable, Automobile Liability Insurance for owned, hired and non- owned automobiles. The limits of liability shall not be less than $1,000,000 combined single limit each accident for bodily injury and property damage. Each Ovmer agrees to defend, protect, indemnify and hold harmless each other Owner and the Association fmin and against all claims or demands, including any action or proceedings .brought thereon, and. all cos4s, losses, expenses and liability of any kind relating thereto, including reasonable attorneys' fees and cost of suit, arising out of or resulting from injury to or death of any person, or damage to the property of any person located on the Site owned by each indemnifying Owner or located on the Common Maintenance Area if such Owner caused such claim or demand to occur; provided, however, the foregoing obligation shall not apply to claims or demands based on the negligence or willful act or omission of such other Owner or the Association, its licensees, concessionaires, agents, servants, or employees, orthe agents, .servants, or employees of any licensee or concessionaire thereof. Tn the event it is determined that such other Owner or the Association was not at fault, then the indemnifying Owner shall reimburse such other Owner or the Association for all reasonable costs and/or expenses incurred by itdefending against such claim or demand. (C) Prior to commencing any construction activities within Weston Pointe, each such Owner (or the Association, if applicable) shall obtain or require its contractor to obtain and thereafter maintain so long as such construction activity is occurring, at least the minimum insurance coverages in Constant Dollazs as set forth below: (i) Workers' compensation and employer's liability insurance: (a) Workar's compensation insurance as required by any applicable law or regulation. (b) Employer's liability insurance in the amount of $1,000,000 each accident for bodily injury, $1,000,000 policy limit for bodily injury by disease and $1,000,000 each employee for bodily injury by disease. (ii) Commercial General Liability Insurance covering all operations by or on behalf of the contractor, which shall include the following minimum limits of liability coverages: (a) Required coverages: (1) Premises and Operations; (2) Products and completed Operations; (3) Contractual Liability, insuring the indemnity obligations assumed by contractor under the contract documents; (4) Broad Form Property Damage (including Completed Operations); (S) Explosion, Collapse and Underground Hazards; and ------------------------------- ----------------- (~ Personal Injury Liability. (b) Minimum limits of liability: (1) $1,000,000 each occurrence (for bodily injury and property damage); (2) $1,000,000 for Personal Injury Liability; (3) $2,000,000 aggregate for Products and Completed Operations (which shall be maintained for a three (3) yeaz period following final completion of the work); (4) $2,000,000 general aggregate applying separately to this project (iii) Automobile liability insurance including coverage for owned, hued and non-owned automobiles. The limits of liability shall not be less than $1,000,000 combined single limit each accident for bodily injury and property damage. The contractor shall require each of his subcontractors to including in their liabllity insurance policies coverage for automobile contractual liability. (iv) The contractor shall also carry umbrella/excess liability insurance in the amount of $5,000,000. If there is no per project aggregate under the Commercial General Liability policy, the limit shall be $10,000.00. If such insurance is canceled or expires, then the constructing Owner shall immediately stop all work until either the required insurance is reinstated or replacement insurance is obtained and evidence thereof is given to a11Owner's and the Association. (D) Effective upon the commencement of construction of any building on its Site and so long as such building exists, an Owner shall carry, or cause to be carried, property insurance with °all-risk" coverage, in the amount of one hundred percent (100%) of full replacement cost thereof (excluding footings, foundations and excavations). Each Owner (the "Releasing Party") hereby releases and waives for itself, and each person claiming by, through or under it, each other Owner (the "Released Party") from any liability for any loss or damage to all property of such Releasing Party located upori any portion of Weston Pointe, which loss or damage is of the type covered by the insurance required to be maintained under Section (D), irrespective of the amount of such insurance required or actually carried, including any deductible or self insurance reserve. Each Releasing Party agrees to use its reasonable efforts to obtain, if needed, appropriate endorsements to its policies of insurance, and to the policies of insurance carried by its occupants, with respect to the foregoing release; provided, however, that failure to obtain such endorsements shall not affect the release and waiver hereinabove given. Each Owner agrees to defend, protect,. indemnify and hold harmless each other Owner and the Association from and against all claims or demands, including any action or proceeding broughtthereon, and all costs, losses, expenses and liabilities of any kind relating thereto, including reasonable attorneys' fees and cost of suit asserted by or through any occupant of the. . indemnifying Owner's Site for any loss or damage to the property of such occupant located upon . the indemnifying Owner's Site, which loss or damage would have been covered by insurance required to be maintained under Section (D). All insurance required herein shall be written on an occurrence basis and procured from companies rated by Best's Rating Guide not less than A-!X (or such other rating as reasonably determined by the Association) which are airihorized to do business in Indiana. All insurance may be provided under (i) an individual policy covering Weston Pointe; (ii) a blanket policy or. policies which includes other liabilities, properties and locations of such Owner; provided, however, that if such blanket commercial general liability insurance policy or policies contain a geneial policy aggregate of less than $20,000,000 in Constant Dollars, then such insuring Owner shall also maintain excess liability coverage necessary to establish a total liability insurance limit of $20,000,000 in Constant Dollars, (iii) a plan of self-inm,ranee, provided that any Owner so self-insuring notifies the other Owners of its intent to self-insure and agrees that upon request it shall deliver to such other Parties each calendar yeaz a copy of its annual report that is audited by an independent certified public accountant which discloses that such Owner has $100,000,000 in Constant Dollars by both net worth and net current assets, or (iv) a combination of any of the foregoing insurance programs. To the extent any deductible is permitted or allowed as a part of any insurance policy carried by an Owner in compliance with this Section, such Owner shall be deemed to be covering the amount thereof under an informal plan ofself-insurance; provided, howeve;, that in no event shall any deductible exceed.$50,000.00 in Constant dollars unless such Owher complies with the requirements regazding self-insurance pursuant to (iii) above. Each Owner and the Association agree to furnish to any Owirer or the Association requesting the same, a certificate(s) of insurance, or statement of self-insurance, as the case may be, evidencing that the insurance required to be carried by such Owner or Association, as the case maybe, is in full force and effect. The insurance required pursuant to Section (A) and Section (B) shall include the following provisions: (i) Shall provide that the policy shall not be canceled or reduced in amount or coverage below the requirements of this Declaration, nor shall such policy be _ ___ _ _ _ allowed to expire without at least thirty (30) days' prior written notice by the insurer to each insured and to each additional insured; ,-: FIRST SPECIAL At'l~NDNIENT TO DECLARATION nF nVF;NANT4 C()NnTTTnN4 ANT1 RESTRICTIONS FOR WESTON POINTE THIS FIRST SPECIAL AMENDMENT TO DECLARATION OF COVENANTS CONDITION RESTRICTIONS FOR Va"ESTON POINTE (this "Amendment's is made as of this ~ y of ~/r+P~ , 2006, by F.C. Realty Thirty Three LLC, an Indiana limited liability company (the "Developet'~. RECITALS WI~REAS on December 27, 2005, the Developer recorded a certain Declaration of Covenants Conditions and Restrictions For Weston Pointe (the "Declaration's with the Hamilton County, Indiana Recorder under Instrument No. 200500083332; and WHEREAS pursuant to terms of the Declazation, under certain conditions, the Developer may unilaterally amend the Declaration WHEREAS due to decisions being made by Developer and consistent with the terms of the Declaration, the Developer desires to now amend certain provisions of the Declaration. AMENDMENT NOW, THEREFORE, for and inconsideration of the Recitals set forth above, the Developer hereby amends the Declaration and issues this Amendment as foIlows: 1. Section 1.4 is amended to replace the word "Expenses" with the term "Common Expenses'' in the second (2°a) line. 2. Section 1.8 is amended to add the following pazenthetical after the term "real estate taxes" in#he third (3`~ line: "(but not income or simiiaz taxes)". 3. Section 1.i4 is amended to add the foilow~ng language at the end of this Section:. "so long as such amendment(s) do not unreasonably affect any Owner's business operations_ 4. Section 1.22 is amended to add the following language at the end of this Section: Any i7tility Easement tha# is hereafter established shall not materially interfere with as Owner's use of its Property. 5. Section 1.23 is amended to correct the typographical error contained in the second (2n8) line so that the ward "pples ' is deleted and replaced wz'1r *'~..ie word "poles". ~~ ~; b. Section 2.2 is amended to add the following lan;.~age at ine end of this Section: "Additionallh=, no amendment or supplement hereunder may: (i) unreasonably interfere ~~th an Owner's business; (ii) cause substantial harm or materially diminish the value of any Site; or (iii) materially alter the terms of any use restriction set forth herein." 7. Section 4 ~ is amended to add the following lan,~'~e at the end of the Section: "Each Owner is granted the right to tap into or connect with all of such Utility Easements. The Developer or the Association may at any tune hereafter, dedicate any roadway ar any utility or utility line, pipe or sewer to the appropriate eovemmental entity: ' _. 8. Section b.l.l is amended to add the u=ords "and utility Facilities'' after t~'te words "Drainage Facilities' in the first (Is`) line 9. Section 5.5.5 is amended to add the follow=ing language at the end of this Section: ", unless caused by the negligence of a particular Owner'). 10. Section 6.4 is amended to delete the folloudng language: "the failure of other Owver(s) to pay its their Assessments." 11. Section 6.6 is amended to replace the term "thirty (30) days' with the term "ninety (90) days'' in the third {3`d) line. 12. Section 6.7 is amended to add the fallowing language at the beginning of the fourth (4d7 line (after the term "remains unpaid"): "After delivery of a thirty (30) day written notice," 13. Section 7.1 is amended to add a parenthetical at the end of the In sentence as follows: "(however, an Owner may alter the exterior of its Site writhout obtaining the approval of the Review Committee if such alteration's cost is not in excess of $10,000.00 and such alteration does not materially conflict with the then existing architectural compatibility among Buildings at the Property): ' 14. Section 7.2 is amended to add the word "consecutive" a$er the term "six (6)" in the second (2nd} to the last line. 1 ~. Section 8.3 is amended to correct the typograplrical error contained in the eighth (8a') line so that the tivord "me" is deleted and replaced w2th the word "the'. 1.6. Section 8.4 is amended to replace the period with a comma in the fifth (Sd`) Line after the term "right-of-way" and prior to the term "Drainage Facilities'. 17. Section 8.5.1 is amended to correct the typographical error contained in the sixth (5`i") line so that the term "01" is deleted. Additionally, language should be added to the end of this Section as follows: "Notwithstanding the foregoing, the Association may not materially alter any Prohibited Uses as shown on Exiubit F." 18, Exhibit r is amended to add a parenthetical at the end of the restriction prohibiting the use of a Site as a gasoline or automobile service station as follo~l;: "(howevez such restriction shall not be applicable fo the Otvaer of Site A)° v . a. any reference to the term `'Constant Dollars" is deleted: b. the Last frtll paragraph under Subsection (A) shall be amended as follows: (i) the i` ord "damages' shill be added ar`ter the phrase "and all costs 'and prior to the phrase "losses, expenses and liabilities"; (u) the word "negligence' shall be replaced with the term "moss negligence"; and (iu) the felIowirio lanwaae shall be deleted in its entire t}c "or if such Owner has its own insurance covera_e regazding such claim or demand. In the evens it is determined that such O~aver was not at fault and did not have its own insurance coverage, then the Association shall reimburse such Owner for all reasonable expenses ancL'or costs incurred by such Owner defending against such claim or demand " c. a parenthetical shall be added in Subsection (B} (i) after the term "other Owners' as follows: "(if such other Owners names are provided to each Owner from the Association and a specific request is made to add such other Owner as an additional insured)" d. the last full paragraph under Subsection (B) shall be amended as follows: (i) the word "damages" shall be added after the phrase "and all costs" and prior to the phrase "tosses, expenses and liabilities' ; (ii) the word "negligence'' shall be replaced w2th the term "gross negligence". e. the second full paragraph under Subsection (D) shall be amended to delete the term "under Section (D)' and replaced Frith the word "hereunder". f. the third full paragraph under Subsection (D) shall be amended to delete the term "under Section (D)' and replaced with the word "hereunder'. IN WTINESS WHEREOF, the Developer has caused the Declaration to be amended as set forth herein effective as of the day and yeaz first written above. DECLt1RANT' F.C. REALTY THIRTY THREE LLC By Pri Tit i STATE OF L~TDLs..\TA COUNTY OF ?uLARION '~„~;p ('(~. ~cc~.c>/~ .the (Ytt.rn4~s of F.C. REALTY TIIiRTY THREE LLC; an Indiana limited liability company, who acknowledged execution of the foregoing for and on behalf of F.C. REALTY THIRTY THREE LLC and who having been duly sworn stated that the representations therein contained are true. RTTINESS my hand and Notarial Seal this a-"day of u..~ , 2406_ My Commission Expires:~~ . ~-~011 My County of Residence: ~Qnt~. Notary Public .~aa1 I~G. ~')'loj~h~.C.~ Printed Signature Notary Public ,.~~.~ Nda,yPubScseal _° ~ ~ She of hxLar~a s` JOtb N. MARSW+t_L '... -. ; r Resd~t of Har>cock Ca My Cxn~n Fx, iz' Sep-7.2711 This instrument prepazed by Steven ). Glazier, Attorney at Law, Cohen GazeIick and Glazier, 8888 Keystone Crossing Boulevazd, Suite 800, Indianapolis, Indiana 46240.