HomeMy WebLinkAboutDeclaration of Covenants RECORDED 6-27-08 2008033947 DECLARATIO $34.00
06/27/2008 04:14:47P 12 PGS
Jennifer J Hayden
HAMILTON County Recorder IN
Recorded as Presented
DECLARATION OF COVENANTS, CONDITIONS
RESTRICTIONS AND EASEMENTS
This Declaration of Covenants, Conditions and Restrictions (this "Declaration is made
this 25th day of June, 2008, by L.A. Fitness International, L.L.C., a California limited liability
company "Owner
RECITALS
A. Owner is the fee title holder to 10.144 acres of land in Hamilton County, Indiana
located approximately in the west half of the Weston Park Subdivision at the southwest corner of
106 Street and Michigan Road. The legal description of the 10.144 acres (the "Property is
attached hereto as Exhibit A.
B. Owner is conveying the Property to Chivas Retail Partners, LLC "Chivas
immediately after the recording of this Declaration.
C. Chivas intends to subdivide the Property into three lots: a lot containing 6.0 acres
at the southwest corner of the Property (the "Fitness Center Lot which shall contain an L.A.
Fitness facility of 43,550 square feet and related improvements; a lot containing 3.16 acres
located north of the Fitness Center Lot which shall contain a 17,550 square foot multi -tenant
retail building and related improvements (the "Retail Lot and a third lot which shall contain
1.005 acres (the "Outlot located east of the northernmost part of the Retail Lot. A copy of the
Plat of Subdivision showing the location of the Fitness Center Lot, the Retail Lot and the Outlot
is attached hereto as Exhibit B. On Exhibit B, the Outlot is Lot 1A, the Retail Lot is Lot 2A and
the Fitness Center Lot is Lot 3A.
D. Owner intends to lease back from Chivas the Fitness Center Lot on which the
L.A. Fitness facility and associated improvements is located pursuant to a Lease Agreement of
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even date herewith. As consideration for Owner entering the lease agreement, Chivas has
consented to the covenants, conditions, restrictions and easements set forth herein.
NOW, THEREFORE, KNOW ALL BY THESE PRESENTS:
1. Fitness Center Exclusive. So long as a "Fitness Center" (defined below) is
being maintained on the Fitness Center Lot (subject to temporary closures for remodeling or
reconstruction), no portion of the Retail Lot or the Outlot may be used for the operation of (a)
another "Fitness Center" or (b) any other exercise- related operation including aerobics,
spinning /exercise biking, personal training, basketball, boxing, tennis, racquetball, swimming,
cardiovascular'or jazzercise operations, spa, yoga center or pilates studio.
"Fitness Center" means a facility containing equipment and other facilities for physical
exercise and training, with or without individuals (such as personal trainers) to assist in the use
of such equipment and other facilities, and whose purpose is the use of such equipment and
facilities for physical exercise and training, including, by way of illustration and not limitation,
businesses such as an L.A. Fitness Center, Bally Total Fitness, 24 Hour Fitness, Fitness
Exchange, Curves and 30 Minute Workout. The term "Fitness Center" and the team "any other
fitness related operation" shall not include a facility and/or business for which the primary
purpose is the operation of a vitamin store or center for martial arts instruction.
2. General Use Restrictions. The following uses are prohibited on the
Fitness Center Lot, Retail Lot and Outlot: any unlawful use; funeral establishment; used car lot;
auction or bankruptcy sale (except those which are lawful and bona fide); pawn shop; thrift store,
shooting gallery; refinery; adult bookstore or facility selling, renting or displaying pornographic
or adult books, literature, videotapes, digital video discs or other paraphernalia (materials shall
be considered "adult" or "pornographic" for such purpose if the same are not available for sale or
rental to children under 18 years old because they explicitly deal with or depict human
sexuality), provided that the sale, rental or display of such items as an incidental part of a
permitted business (as used above, the term "incidental" means, with respect to any national or
regional video store chain, any sale or rental of such materials and with respect to other tenants,
the sale of such materials from not more than ten percent (10 of the sales area of such business
and so as to constitute less than ten percent (10 of the gross sales of such business) shall be
permitted; massage parlor; unemployment agency; food stamp center; check cashing business
(provided the foregoing is not intended to restrict any use by financial institutions such as banks,
savings and loan associations, credit unions, brokerage houses, insurance companies and/or
similar businesses); dance hall; cocktail lounge or bar (except as an incident to a permitted
restaurant); disco or night club (provided live music shall be permitted as an accessory use to a
permitted restaurant); bingo or similar games of chance, but lottery tickets and other items
commonly sold in retail establishments may be sold as an incidental part of business; second
hand store; auction house or flea market.
3. Building Height. No building or structure on the Retail Lot or the Outlot
shall exceed twenty -four feet in height measured from grade to the highest point of the building
or structure.
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4. Restaurant Use Limitation. Restaurant uses, including eat -in areas of
grocery stores or other food purveyors, on the Retail Lot shall not exceed an aggregate of 8,500
gross square feet. No restaurant shall be located closer than 100 feet to the main entry to the
Fitness Center on the Fitness Center Lot and outdoor eating areas shall not comprise more than
ten percent (10 of the 8500 square foot total.
5. Ingress, Egress and Parking.
(a) There shall be a permanent reciprocal easement between the Fitness
Center Lot and the Retail Lot in which the tenants, customers, employees and invitees of each
such lot (each, a "Permittee shall, at all times, have the right to use the parking facilities on the
other lot. This reciprocal easement shall not apply to the Outlot. The parking facilities subject to
this reciprocal easement are shown on the Site Plan attached hereto as Exhibit B; however, those
parking facilities may be reasonably re- configured in the future. Such easement rights shall be
subject to the following reservations as well as the other applicable provisions contained in this
Declaration:
(i) Each of the Fitness Center Lot owner and the Retail Lot
owner shall have the right to close off its portion of the Common Areas, as
defined herein, for such period of time as may be legally necessary, in the opinion
of such owner's counsel, to prevent the acquisition of prescriptive rights by
anyone; provided, however, that prior to closing off any portion of the Common
Areas, as herein provided, such owner shall give written notice to each other
owner of its intention to do so, and shall attempt to coordinate such closing with
each other owner so that no unreasonable interference in the passage of
pedestrians or vehicles shall occur; and
(ii) Each of the Fitness Center Lot owner and the Retail Lot
owner shall have the right at any time and from time to time to exclude and
restrain any person who is not a Permittee from using the Common Areas on its
lot.
(iii) There shall be no easement for the benefit of the Outlot for
the use of parking facilities on the Fitness Center Lot and the Retail Lot. Any use
maintained on the Outlot must provide sufficient on -site parking on the Outlot to
meet relevant zoning and parking codes, ordinances and regulations.
"Common Areas" as used in this Declaration shall mean all areas within the
exterior boundaries of the Fitness Center Lot and the Retail Lot, exclusive of buildings.
(b) Neither the Owner of the Fitness Center Lot or the Retail Lot may impose
charges or time limits on parking on its lot except that the Retail Lot owner may impose time
restrictions on parking spaces immediately adjacent to the retail building on such lot.
(c) The Fitness Center Lot does not have direct access to 106` Street except
through the Retail Lot. Accordingly, a permanent easement for the benefit of the Fitness Center
Lot to permit vehicular and pedestrian ingress and egress is hereby granted across the driveways
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located on the Retail Lot shown on the Site Plan attached as Exhibit B or as such driveways may
be reasonably configured in the future (the "Permanent Access Drive
6. Utility Lines. Each of the Fitness Center Lot owner, the Retail Lot owner
and the Outlot owner shall maintain and repair, or cause to be maintained and repaired, in a good
state of repair and safe condition, all Separate Utility Lines utilized by it regardless of where
located. "Separate Utility Lines" shall mean those facilities and systems for the transmission of
utility services which are installed to provide the applicable service to the Fitness Center Lot, the
Retail Lot or the Outlot. Any of the Fitness Center Lot owner, the Retail Lot owner or the Outlot
owner performing or causing to be performed maintenance or repair work agrees: to promptly
pay all costs and expenses associated therewith; to diligently complete such work as quickly as
possible; and to promptly clean the area and restore the affected portion of the Common Areas to
a condition equal to or better than the condition which existed prior to the commencement of
such work.
7. Common Area Maintenance. The owner of the Fitness Center Lot shall
maintain, or cause to be maintained, subject to reimbursement as provided herein, the Common
Areas in a good state of repair. The unimproved Common Areas shall be adequately covered
and kept litter -free. The minimum standard of maintenance for the improved Common Areas
shall be comparable to the standard of maintenance followed in other first class retail
developments_ of comparable size in the metropolitan area where the Property is located;
notwithstanding the foregoing, however, the Common Areas shall be operated and maintained in
compliance with all applicable governmental regulations and the provisions of this Declaration.
All Common Areas improvements shall be repaired or replaced with materials at least equal to
the quality of the materials being repaired or replaced so as to maintain the architectural and
aesthetic harmony of the Property as a whole. Such operation, maintenance and repair obligation
shall include but not be limited to the following:
(i) Driveway and Parking Areas. Maintaining all paved surfaces and curbs,
including the Permanent Access Drive, in a smooth and evenly covered
condition.
(ii) Debris and Refuse. Periodically removing papers, debris, filth, refuse, ice
and snow (2" on surface). All sweeping shall be at appropriate intervals
during such times as shall not interfere with the conduct of business or use
of the Common Area by Permittees.
(iii) Directional Signs and Markers. Maintaining, cleaning and replacing any
appropriate directional, stop or handicapped parking signs or markers;
restriping parking Iots and drive lanes as necessary to maintain parking
space designation and traffic direction; and keeping clearly marked fire
lanes, loading zones, no parking areas and pedestrian cross- walks.
(iv) Lighting. Maintaining, cleaning and replacing Common Area lighting
facilities, including light standards, wires, conduits, lamps, ballasts and
lenses, time clocks and circuit breakers.
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(v) Landscaping. Maintaining and replacing of all landscape plantings, trees
and shrubs in an attractive and thriving condition, trimmed and weed -free;
maintaining and replacing landscape planters, including those adjacent to
exterior walls of Buildings; modifying irrigation systems to satisfy
governmental water allocation or emergency requirements.
(vi) Snow Removal. Removing snow from all walkways, driveways and
roadways located in the Property.
(vii) Common Utility Lines. Maintaining, cleaning, replacing, and repairing
any and all Common Utility Lines.
(viii) Obstructions. Keeping the Common Area free from any obstructions,
including those caused by the sale or display of merchandise, unless such
obstruction is permitted under the provisions of this Declaration.
(ix) Sidewalks. Maintaining, cleaning and replacing of sidewalks, including
those adjacent and contiguous to Buildings located within the Property.
(x) Insurance. Maintaining liability insurance on the Common Areas located
in the Property.
(b) The Retail Lot owner hereby grants to the owner of the Fitness Center Lot, and its
contractors, agents and employees, a license to enter upon the Retail Lot to operate, maintain,
repair and replace the Common Areas located thereon. In no event shall the owner of the Fitness
Center Lot be responsible for security or traffic supervision, nor shall the owner of the Fitness
Center Lot be obligated to perform repairs and replacements of the Common Areas in connection
with damage or destruction by fire or other casualty or in connection with a taking under the
powers of eminent domain or transfer in lieu thereof.
(c) The Retail Lot owner shall reimburse the owner of the Fitness Center Lot its "Pro
Rata Share" (consisting of the proportion that the total square feet of buildings on the Retail Lot
bears to the total square feet of buildings on the Fitness Center Lot plus the Retail Lot) of the
reasonable costs incurred by the owner of the Fitness Center Lot in connection with its
performance of Common Areas maintenance, (the "Common Area Maintenance Costs within
thirty (30) days after receipt of an invoice therefor. It is hereby stipulated that the square footage
of the buildings on the Retail Lot shall be 17,550 and the buildings on the Fitness Center Lot
shall total 43,550 square feet; the Pro Rata Share based on the stipulated square footages shall
apply even if an owner chooses not to build. An owner may elect to change the Pro Rata share if
the other owner builds buildings on a lot containing more than the stipulated square footage.
(d) If the Retail Lot owner fails to pay when due its share of any invoice for the
Common Areas Maintenance Costs described above, or any other sums which may be due and
owing from such owner to the Fitness Center Lot owner under this Declaration, then, following
any cure period provided herein, such failure shall constitute a default under this Declaration and
the owner of the Fitness Center Lot may thereafter institute legal action against such owner for
reimbursement, plus interest from the date said bill was due and payable to and including the
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date said bill is paid, at the interest rate of l0 %o per annum. Furthermore, the owner of the
Fitness Center Lot shall have a lien on the Retail Lot for the amount of said expenses and
accrued interest as set forth above. The lien provided for in this Section 7(d) shall only be
effective when filed for record by the owner of the Fitness Center Lot as a claim of lien against
such owner in the office of the recorder of the county in which the Retail Lot is located, signed
and verified, which shall contain at least: (i) an itemized statement of all amounts due and
payable pursuant hereto; (ii) a description sufficient for identification of the Retail Lot; (iii) the
name of the owner or reputed owner of the Retail Lot; and (iv) the name and address of the
owner of the Fitness Center Lot. The lien, when so established against the Retail Lot, shall be
prior and superior to all right, title, interest, lien or claim which may be or has been acquired or
attached to the Retail Lot after the time of filing the lien. The lien shall be for the use and benefit
of the owner of the Fitness Center Lot and may be enforced and foreclosed in a suit or action
brought in any court of competent jurisdiction.
(e) In the event any portion of the Common Areas is damaged or destroyed by any
cause whatsoever, whether insured or uninsured, during the term of this Declaration, other than
damage caused by ordinary use or wear and tear, the owner upon whose property such Common
Area is located shall repair or restore such Common Area at its sole cost and expense with all
due diligence. In the event such damage or destruction of Common Area is caused in whole or
in part by another owner or third Person, the owner obligated to make such repair or restoration
reserves and retains the right to proceed against such other owner or third person for indemnity,
contribution or damages.
(f) Notwithstanding anything contained in this Section 7 to the contrary, each of the
Fitness Center Lot owner, the Retail Lot owner and the Outlot owner shall regularly remove the
refuse generated on its respective property in connection with the use of such property so that
each property is at all times in good and clean condition. In the event that an owner fails or
refuses to undertake the obligations set forth in this Section 7(f) then upon thirty (30) days' prior
written notice to such owner, the Fitness Center Lot owner may at its option but without any
obligation to do so, elect to assume such owner's obligations. In the event the Fitness Center Lot
owner assumes an owner's obligations as provided in this Section 7(f), such owner shall
reimburse the Fitness Center Lot owner the reasonable costs incurred by the Fitness Center Lot
owner in connection with its performance of such obligations, plus a management fee equal to
ten percent (10 of such costs to defray administrative expenses, within thirty (30) days after
receipt of an invoice therefor. The Retail Lot owner and the Outlot owner hereby grant to the
Fitness Center Lot owner, and its contractors, agents and employees, a license to enter upon their
properties to undertake the obligations described in this paragraph. Upon thirty (30) days' prior
written notice to the Retail Lot owner or the Outlot owner, the Fitness Center Lot owner may
elect to return to such owner the obligations set forth herein.
8. Insurance and Indemnification.
(a) The owners of the Fitness Center Lot, Retail Lot and Outlot shall maintain (with
respect to each lot), or cause to be maintained in full, force and effect, commercial general
liability insurance, insuring against claims that may arise from or be occasioned by the condition,
use, or occupancy of each respective lot and its owners, tenants, agents, contractors, employees,
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licensees, vendors, customers, invitees or occupants; each owner shall name each other owner as
an additional insured and certificate holder under its policy. All insurance shall be carried by
insurance companies rated in Best's Insurance Guide, or any successor thereto (or if there be
none, an organization having a national reputation) as having a general policyholding rating of
"A or better and a financial rating of at least "IX" and shall have a single limit of coverage of
not less than $1,000,000 with respect to each single occurrence and $2,000,000 in the aggregate.
The insurance required hereunder may be carried under "blanket" policies or policies of
insurance, covering other properties owned by such owner, its subsidiary, controlling or
affiliated corporations and shall provide that the policy may not be amended or materially
reduced in amount or coverage without at least thirty (30) days' prior written notice by the
insurer to each insured and to each additional insured.
(b) To the extent not covered by insurance, the owners of the Retail Lot and the
Outlot hereby indemnify the owner of the Fitness Center Lot and such owners of the Retail Lot
and the Outlot and their successors and assigns, and their respective directors, officers, agents,
representatives and employees, shaII defend and hold the indemnified party harmless (except for
loss or damage resulting from the negligent or willful acts or omissions of the indemnified party,
its tenants, agents, contractors or employees) from and against any and all liability, claim,
damage, cost or expense (including reasonable attorneys' fees at trial, appellate and post
judgment proceedings) in connection with any loss of life, personal injury and /or damage to
property arising from or out of any occurrence in or upon such indemnifying party's lot, or
occasioned by any negligent act or omission by such owner, its tenants, agents, contractors,
employees, successors or assigns.
9. Outlot Owner Responsibilities. Notwithstanding anything to the contrary
herein, the Outlot owner shall be responsible for the maintenance and repair of the Outlot at its
own expense, subject to the right of Fitness Center Lot owner in Section 7(f).
10. Duration. Each covenant and restriction contained herein shall continue in
full force and effect for ninety nine (99) years from the date this Declaration is recorded with the
Office of the Recorder of Hamilton County, Indiana.
11. Modifications. This Declaration and any provision, covenant or restriction
contained within it may be terminated, extended, modified, or amended only with the written
consent of Owner. No termination, extension, modification, or amendment will be effective
unless a written instrument setting forth its terms has been executed, acknowledged, and
recorded in the Office of the Recorder of Hamilton County. No such amendment, modification,
extension, or termination (collectively referred to as "change shall affect the rights of (1) any
mortgagee under a mortgage constituting a lien on the Property at the time of such change unless
the mortgagee consents to such change, nor will any change be effective against such mortgagee
subsequent to its securing title to its encumbered parcel by foreclosure, trustee's deed, or deed in
lieu of foreclosure, unless the mortgagee has consented in writing.
12. Not a Public Dedication. Nothing contained in this Declaration shall be
deemed to be a gift or dedication of any portion of the Property to the general public or for the
general public or for any public purpose whatsoever, it being the intention that this Declaration
will be strictly limited to and for the purpose expressed herein.
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13. Severability. If any clause, sentence, or other portion of the terms,
covenants, and restrictions of this Declaration becomes illegal, null, or void for any reason, or be
held by any court of competent jurisdiction to be so, the remaining portions shall remain in full
force and effect.
14. Covenants Run With Land. Each and all of the covenants, restrictions,
and provisions contained in this Declaration (whether affirmative or negative in nature) (a) are
made for the direct, mutual, and reciprocal benefit of each parcel of land in the Property; (b)
shall bind every person having any fee, leasehold, or other interest in any portion of the Property
at any time or from time to time to the extent that such portion is affected or bound by the
covenant, restriction, or provision in question, or that the covenant, restriction, or provision is to
be performed on such portion; and (c) shall inure to the benefit of the parties and their respective
successors and assigns as to their respective parcels of land in the Property.
15. Limitation of Liability. Notwithstanding any other provision of this
Declaration, neither Owner nor any officer, member, director, agent, partner, trustee, beneficiary,
or employee thereof shall be liable in an individual or personal capacity for the performance or
nonperformance of any agreement, covenant, or obligation of Owner contained herein, and
Owner's liability shall be limited to Owner's interest in its portion of the Property in its then
current condition, and in the rents, issues, and proceeds therefrom.
16. Discharge of Rights and Duties Upon Transfer. In the event of
assignment, transfer, or conveyance of the whole of the interest of any person in and to any
parcel in the Property in which such person has an interest, without retaining any beneficial
interest other than under the terms of a mortgage, without simultaneously acquiring a new
interest on such parcel by way of leasehold, life estate, or other possessory interest, then the
powers, rights, and interest conferred on such person shall be deemed assigned, transferred, or
conveyed to such transferee, assignee, or grantee; the obligations shall thereafter arising shall be
deemed assumed by such transferee, assignee, or grantee with interest so acquired; and the
duties, obligations, and rights of the person so transferring the interest which first arise after such
transfer shall be discharged.
17. Headings. The caption headings of the various sections of this Declaration
are for convenience and identification only, and shall not be deemed to limit or define the
contents of their respective sections.
18. Exhibits. All exhibits referred to herein and attached hereto are a part of
this Declaration.
19. Gender and Number. The neuter gender includes the feminine and
masculine, and the singular includes the plural.
20. Relationship of this Declaration to Weston Park Declaration. The
Property is subject to the Amended and Restated Declaration of Covenants and Restrictions
(Weston Park) recorded with the Hamilton County Recorder on October 17, 2007 as Document
2007 -59119 "Weston Park Declaration This Declaration is intended to supplement the
Weston Park Declaration in order to create a functional, multi -lot retail development. The
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subsequent owners of the Fitness Center Lot, Retail Lot and Outlot shall be the successors to the
Block A Owner under the Weston Park Declaration.
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Executed the date first written above.
OWNER:
L.A. FITNESS INTERNATIONAL, L.L.C.,
a California limited liability company
By: 11`1...,..
A.•:.Ho
Senio Vice r' e• dent
Chief Real state Officer
STATE OF CALIFORNIA
ss.
COUNTY OF ORANGE
On June 25, 2008, before me, Karina Blanco, Notary Public, personally appeared
William B. Horner, who proved to me on the basis of satisfactory evidence to be the person whose
name is subscribed to the within instrument and acknowledged to that he executed the same in
his authorized capacity, and that by his signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the forgoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
KARINA BLANCO
Commission 1740479
1 Nofo Orange County California MYC n &plresApr20,2011
SEAL
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Exhibit j 1- �U�1 1
2 008
LEGAL DESCRIPTION D
Block "A" in Weston Park Secondary Plat, an Addition to the
city of Carmel, Indiana, as per the plat thereof recorded
March 12, 2004 in Plat Cabinet 3, Slide 364 as Instrument
No. 200400016061 in the Office of the Recorder of Hamilton
County, Indiana.
TOGETHER with those non- exclusive easements for ingress and
egress, sanitary sewer, drainage and utilities as created
and granted in that certain Declaration of Covenants and
Restrictions (Weston Park), dated March 27, 2007 and
Recorded April 5, 2007 as Instrument No. 2007018967, as
amended by Amended and Restated Declaration of Covenants
and Restrictions (Weston Park) dated September 28, 2007 and
recorded October 1 2007 as Instrument No 2007
in the Office of the Recorder of Hamilton County, Indiana.
ALSO TOGETHER WITH an easement for access and maintenance
as set out in Sign Easement (Lot 2, Weston Park
Subdivision) dated September 28, 2007 recorded October'
(i 7 Instrument F 2007 6) 5
7 fir i fi
2007, as ,1.11�1I LSmenL f�ti. 291 of
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