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HomeMy WebLinkAbout6C(3) Resolution No. 2859sous g Community & Economic Development W'`E'� �. 1865 1200 County -City Building, 227 West Jefferson, South Bend, Indiana 46601 -1830 Phone 574/235 -9371 Fax 574/235 -9021 To: Redevelopment Commission From: David Relos, Economic Development Planner Subject: Resolution No. 2859 Declaration of Covenants and Restrictions for Ignition Park Date: March 22, 2011 On January 21, 2011, the Commission approved a Professional Services Agreement with Baker & Daniels, to develop policies, procedures, and guidelines for the operation of the ARB, and to draft a Declaration of Covenants and Restrictions for Ignition Park. Attached is the Declaration of Covenants and Restrictions for Ignition Park, and Resolution No. 2859, which approves those Covenants. These Covenants grant easements to the Commission for future necessary items such as access, utility, irrigation, drainage, sign, and common parking and green space needs. Similar to a condo association, these Covenants further govern the maintenance of property within Ignition Park, how common system expenses are to be split between owners, and how, upon completion of the Park's build out, an Owner's Association is organized. Geri Hathaway, Director of Ignition Park, will present these Covenants the day of the Commission meeting. Staff requests approval of the Declaration of Covenants and Restrictions, and Resolution No. 2859. What We Do Today Makes A Difference! RESOLUTION NO. 2859 A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION ADOPTING A DECLARATION OF COVENANTS AND EASEMENTS FOR IGNITION PARK WHEREAS, the South Bend Redevelopment Commission (the "Commission ") is the governing body of the City of South Bend Department of Redevelopment (the "Department ") and exists and operates under the provisions of I.C. 36 -7 -14, commonly known as the "Redevelopment of Cities and Towns Act of 1953 ", as amended from time to time (the "Act "); and WHEREAS, under the authority of the Act, the Commission has adopted and declared the Airport Economic Development Area ( "Area ") to be an area in need of redevelopment within the meaning of the Act and has acquired property, demolished buildings, and otherwise prepared land for development consisting of approximately 84 acres located in the Area ( "Ignition Park "); and WHEREAS, on December 13, 2010, the South Bend Common Council (the "Council ") approved a Preliminary Plan for the Ignition Park PUD Zoning Ordinance (the "PUD "); and WHEREAS, the Commission, as owner of the land comprising Ignition Park, now desires to adopt a Declaration of Covenants and Easements for Ignition Park applying to any land use or development within Ignition Park. NOW, THEREFORE, BE IT RESOLVED, by the South Bend Redevelopment Commission as follows: 1. The Commission hereby adopts a Declaration of Covenants and Easements for Ignition Park, in the form attached hereto, applying to any land use or development occurring within Ignition Park. 2. This Resolution shall be in full force and effect after its adoption by the Commission. Adopted at a meeting of the South Bend Redevelopment Commission held on March 22, 2011, at 1308 County -City Building, 227 West Jefferson Boulevard, South Bend, Indiana 46601. CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT Signature Printed Name and Title South Bend Redevelopment Commission ATTEST: Printed Name and Title South Bend Redevelopment Commission DECLARATION OF COVENANTS AND EASEMENTS THIS DECLARATION, executed this day of March, 2011 by the South Bend Redevelopment Commission (the "Declarant "), governing body of the Department of Redevelopment (the "Department ") of the City of South Bend, Indiana (the "City ") and the Redevelopment District of the City (the "Redevelopment District "), exists and operates under the provisions of the Redevelopment of Cities and Towns Act of 1953 which has been codified in I.C. 36 -7 -14 et seq., as amended from time to time (the "Act ") WITNESSES: Recitals WHEREAS, Declarant is the owner of certain real property that is located in St. Joseph County, Indiana, and more particularly described in Exhibit A. attached hereto and incorporated herein by this reference (the "Real Estate "); WHEREAS, Declarant may acquire, convey, or develop other real property adjacent to or near the Real Estate (the "Adjacent Real Estate "), which other real property Declarant may annex into, and make a part of, the Real Estate and the Project; WHEREAS, Declarant intends to develop the Real Estate as a certified technology park (the "Project ") commonly known as Ignition Park; WHEREAS, each parcel of real property within the Real Estate and the Project hereinafter is referred to as a "Parcel," and each owner of a Parcel hereinafter is referred to as an "Owner "; WHEREAS, Declarant and the current and future owners, mortgagees, and holders of any interest in or to the Real Estate are referred to as the "Parties in Interest "; WHEREAS, each Parcel of the Real Estate upon which a building is built, constructed, or erected hereinafter is referred to as an "Improved Parcel "; WHEREAS, Declarant intends to subdivide the Real Estate by recording one or more subdivision plats, surveys or other instruments subdividing the Real Estate in the Office of the Recorder of St. Joseph County, Indiana (said subdivision plats, surveys or other instruments, as the same may be amended or supplemented from time to time, including any subdivision plat(s), survey(s) or other instrument(s) for any Adjacent Real Estate hereafter subjected to the provisions of this Declaration and which are hereafter recorded in the Office of the Recorder of St. Joseph County, Indiana, as the same may be amended or supplemented from time to time by replatting or otherwise, are hereinafter referred to as the "Plat "); and WHEREAS, Declarant desires in this Declaration to provide for the construction, installation, use, operation, maintenance, repair, and replacement of improvements, roads, equipment, fixtures, and facilities located within and through those portions of the Project that are defined or specified for common benefit of the Owners in this Declaration; Agreement NOW, THEREFORE, Declarant, in consideration of the premises, to facilitate the development of the Project as a certified technology park, and, upon the covenants, conditions, terms, and provisions set forth in this Declaration: (a) declares, creates, makes, and reserves in this Declaration certain easements and covenants that shall bind, and shall inure to the benefit of, the Parties in Interest; and (b) reserves certain rights in this Declaration (including, without limitation, the right subsequently to limit such easements and /or modify such covenants), which easements, covenants, and reserved rights are as follows: ARTICLE I Easements Section 1. Access Easements. Declarant hereby declares, creates, makes, and reserves the following access easements (the "Access Easements "): (a) temporary construction easements in favor of Declarant, for the purpose of constructing and installing the Common Access Ways and /or the Traffic Control System (as such terms are hereafter defined), (b) perpetual and nonexclusive mutual easements appurtenant to the Parcels for the benefit of the Parcels, Declarant, the Owners and all other Parties in Interest; and (c) easements in gross in favor of Declarant; each of which easements shall be in, on, under, over, above, across, and through the entirety of the Real Estate. The Access Easements and all rights in and to the Access Easements are declared, created, made, and reserved for the purposes of: (i) providing access, ingress, and egress by vehicular and pedestrian traffic to (and from) the Real Estate and each Improved Parcel from (and to) roadways and public streets (the "Common Access Ways "), which Common Access Ways shall be constructed within the Access Easements, (ii) providing a system for directing and controlling the flow, progress, and pattern of the vehicular and pedestrian traffic over and across the Common Access Ways (the "Traffic Control System "); and (iii) further developing the Project and the Adjacent Real Estate. The Traffic Control System shall include all equipment, fixtures, and facilities used in connection with directing and controlling the flow, progress, and pattern of the vehicular and pedestrian traffic, such as street lights, stop signs, and traffic direction and information signs. All of the Access Easements shall be subject to subsequent limitation as provided in Sections 7 and 8 of this Article I, and to the covenants in Article II, Sections 1 through 3, regarding construction, and use and contributions for certain expenses (the "Owner Covenants "). Section 2. Utility and Irrigation Easements. Declarant hereby declares, creates, makes and reserves the following utility and irrigation easements (the "Utility and Irrigation Easements "): (a) temporary construction easements in favor of Declarant for the purpose of constructing and installing the Utility Systems and /or the Irrigation System (as such terms are hereafter defined); (b) perpetual and nonexclusive mutual easements appurtenant to the Parcels for the benefit of the Parcels, Declarant, the Owners and all other Parties in Interest; and (c) easements in gross in favor of Declarant; each of which easements shall be in, on, under, over, above, across, and through the entirety of the Real Estate. The Utility and Irrigation Easements, and all rights in and to the Utility and Irrigation Easements, are declared, created, made, and reserved for the purposes of: (i) providing systems for general water -2- delivery service, sanitary sewer service, natural gas service, public electrical power service, public telephone service, and other communications and utility services to (and from) each Parcel from (and to) public utility easements, (collectively, the "Utility Systems) "); (ii) providing a system for water delivery service for irrigation and fire protection for the entirety of the Project (the "Irrigation System "); and (iii) further developing the Project and the Adjacent Real Estate. The Utility Systems and Irrigation System shall include all equipment, fixtures, and facilities used in connection with the Utility and Irrigation Easements, such as mains, pipes, lines, valves, meters, lift stations, and other utility and irrigation facilities. All of the Utility and Irrigation Easements shall be subject to subsequent limitation as provided in Sections 7 and 8 of this Article I, and to the Owner Covenants. Section 3. Drainage Easements. Declarant hereby declares, creates, makes and reserves the following surface and storm water drainage easements (the "Drainage Easements "): (a) temporary construction easements in favor of Declarant for the purpose of constructing and installing the Drainage System (as hereafter defined); (b) perpetual and nonexclusive mutual easements appurtenant to the Parcels for the benefit of the Parcels, Declarant, the Owners, and all other Parties in Interest; and (c) easements in gross in favor of Declarant; each of which easements shall be in, on, under, over, above, across, and through the entirety of the Real Estate, The Drainage Easements, and all rights in and to the Drainage Easements, are declared, created, made, and reserved for the purposes of: (i) providing a system of surface and storm water drainage for the entirety of the Project (the "Drainage System "); and (ii) further developing the Project and the Adjacent Real Estate. Notwithstanding anything herein to the contrary, the temporary construction easements referenced in subsection 3(a) above shall be limited to the immediate area in which a Drainage System is being constructed and /or installed. The Drainage System shall include all equipment, fixtures, and facilities used in connection with the Drainage Easements, such as detention ponds, retention areas, ditches, tiles, pipes and lines, pumps, pump stations, sprinklers, wells, and other drainage facilities. All of the Drainage Easements shall be subject to subsequent limitation as provided in Sections 7 and 8 of this Article I, and to the Owner Covenants. Section 4. Sign Easement. Declarant hereby declares, creates, makes, and reserves a sign easement (the "Sign Easement ") in, on, under, over, above, across, and through the entirety of the Real Estate. The Sign Easement and all rights in and to the Sign Easement are declared, created, made, and reserved for the purposes of installing, erecting, and providing landscaping and signs with one or more panels (the "Signs ") that identify and /or advertise the Project, certain of the Owners and certain of the occupants and tenants of buildings in the Project (collectively, the "Tenants "); provided that the reservation herein of the Sign Easement shall not be deemed to impose upon Declarant any obligation to erect, install, or provide any landscaping or Sign, or otherwise to exercise any of the rights herein reserved to Declarant. Declarant shall have the absolute and exclusive right, in its sole discretion, to determine, designate, and dictate which Owners and Tenants from time to time may use panels on the Sign (the "Sign Users "). The Sign Easement shall be appurtenant to the Parcels owned or occupied by the Sign Users (the "Sign User Parcels "), and shall be deemed to be granted for the benefit of the Sign User Parcels and the Sign Users, from time to time. The Sign Easement shall be subject to subsequent limitation as provided in Sections 7 and 8 of this Article I, and to the Owner Covenants. Section S. Project Common Parking Easement. Declarant hereby declares, creates, makes and reserves a parking easement (the "Project Common Parking Easement ") in, under, over, above, across and through those portions of the Real Estate developed for parking. The Project Common Parking Easement and all rights in and to the Project Common Parking Easement are declared, -3- created, made, and reserved for the benefit of the Parcels, Declarant, the Owners and all other Parties in Interest for the purpose of providing common parking on the Improved Parcels (the "Project Common Parking Areas "). The Project Common Parking Easement shall be subject to subsequent limitations as provided in Sections 7 and 8 of this Article I, and to the Owner Covenants. Section 6. Proiect Common Green Space Areas Easement. Declarant hereby declares, creates, makes and reserves a green space easement (the "Project Common Green Space Easement ") in, under, over, above, across and through those portions of the Real Estate used as common green spaces, including without limitation park -like areas and pedestrian ways. The Project Common Green Space Easement and all rights in and to the Project Common Green Space Easement are declared, created, made, and reserved for the benefit of the Parcels, Declarant, the Owners and all other Parties in Interest for the purpose of providing common green spaces within the Project (the "Project Common Green Space Areas "). The Project Common Green Space Easement shall be subject to subsequent limitations as provided in Sections 7 and 8 of this Article I, and to the Owner Covenants. Section 7. Easement Rights Reserved and Limited. (a) Rights Reserved. In conjunction with the declaration, creation, making, and reservation of the Access Easements, the Utility and Irrigation Easements, the Drainage Easements, the Sign Easement, the Project Common Parking Easement, and the Project Common Green Space Easement (collectively, the "Declared Easements "), Declarant reserves the following rights in favor of Declarant, which rights are subject to the limitations set forth in Subsection 6(b) of this Article I: (i) From time to time, and at any time, to install, service, maintain, repair, and replace any portion of the Common Access Ways, the Utility Systems, the Drainage System, the Irrigation System, the Signs, the Project Common Parking Areas, or the Project Common Green Space Areas. The rights set forth in this clause (i) collectively are referred to as the "Easement Maintenance Rights "; (ii) From time to time, and at any time, to execute and record, without the consent of any Owner or Party in Interest, additional instruments that Declarant, in its sole discretion, determines to be necessary or appropriate to accomplish the purposes of Sections 1 through 6 of this Article I, which bind the Owners and Parties in Interest, and: (A) limit the area of any Declared Easement to a defined or specified part of the Real Estate; (B) define or specify the location of any Declared Easement relocated by Declarant pursuant to clause (iii) of this Subsection; or (C) memorialize the abandonment or relocation of any Declared Easement pursuant to clause (iii) of this Subsection; (iii) From time to time, and at any time, to abandon or relocate any one or more of the Declared Easements, if Declarant, in its sole discretion, determines that the abandonment or relocation is necessary or appropriate for: (A) compliance with any law, statute, ordinance, rule, regulation, order, or standard (the "Law(s) ") of any municipality or other political subdivision or governmental body or agency (collectively, the "Municipality "); (B) compliance with the requirements of any public or private utility provider (collectively, the "Utility Provider "); (C) the abandonment or relocation of another Declared Easement; (D) the construction, erection, installation, or alteration of a building or other improvement; or (E) the -4- further development of the Project or the Adjacent Real Estate. The rights set forth in this clause (ii) collectively are referred to as the "Easement Relocation Rights "; (iv) From time to time, and at any time, to promulgate reasonable rules and regulations concerning the use by the Owners, the Tenants, and the visitors, invitees, and licensees of Declarant, the Owners, and /or the Tenants (collectively, the "Visitors ") of: (A) the Common Access Ways, Traffic Control System, and the Access Easements; (B) the Utility Systems, Irrigation System, and the Utility and Irrigation Easements; (C) the Drainage System and the Drainage Easements; (D) the Project Common Parking Areas and the Project Common Parking Easement, and (E) the Project Common Green Space Areas and the Project Common Green Space Easement. The Signs and the Sign Easement shall remain within the exclusive control of Declarant, and Declarant shall have the right, from time to time and at any time, to promulgate rules and regulations concerning the installation, use, service, maintenance, repair, and replacement of the Signs; (v) From time to time, and at any time, to assign to the Successor (as defined in Article III, Section 1), in whole or in part, any interest or rights of Declarant in and to any one or more of the.Declared Easements, together with any or all of the rights reserved to Declarant in this Section 6; (vi) From time to time, and at any time, to assign, convey or dedicate to any Utility Provider or to any Municipality, in whole or in part, any Common Access Way, the Traffic Control System, any Utility System, the Drainage System, or the Irrigation System, together with: (A) the easements declared, created, made, and reserved for the Common Access Way, the Traffic Control System, the Utility System, the Drainage System, or the Irrigation System assigned, conveyed or dedicated; and (B) any rights reserved to Declarant that reasonably are necessary or appropriate to enable the Utility Provider or the Municipality to provide adequate access, utility service, surface drainage, or irrigation to the Parcels; and (vii) From time to time, and at any time, to enter into any agreement with any Utility Provider or Municipality that Declarant, in its sole discretion, determines to be necessary or appropriate to accomplish the purposes of this Declaration, which binds the Owners and the Parties in Interest and declares or defines the rights and obligations of Declarant, the Owners, the Parties in Interest, and the Utility Provider or the Municipality in connection with: (A) the service provided by the Utility Provider or the Municipality; and (B) the construction, installation, use and /or maintenance of the Common Access Ways, the Traffic Control System, the Utility Systems, the Drainage System, the Irrigation System, the Project Common Parking Areas and the easements declared, created, made, and reserved for the Common Access Ways, the Traffic Control System, the Utility Systems, the Drainage System, the Irrigation System or the Project Common Parking Areas. (b) Limitations on Rights. Notwithstanding any covenant, condition, term, or provision of this Declaration to the contrary: (i) Declarant shall not abandon or relocate a Declared Easement if the effect of abandoning or relocating the Declared Easement is to: (A) deny or materially impair access, ingress, or egress by vehicular traffic to (or from) an Improved Parcel from (or to) public -5- streets and roadways; (B) deny or materially impair a required utility service to an Improved Parcel; or (C) deny or materially impair required surface and storm water detention for an Improved Parcel. (ii) Subject to the covenants, conditions, terms, and provisions set forth in Section 7 of this Article I, and upon approval of the Construction Plans (as defined in Article II, Section 4) for a building, permanent parking area, permanent access way, or permanent sidewalk or walkway: (A) the area of all Utility and Irrigation Easements and Drainage Easements shall be deemed to be limited to that part of the Real Estate that is not under, over, or above a building or the foundation of a building, or over or above a permanent parking area; and (B) the area of all Access Easements and Project Common Parking Easement shall be deemed to be limited to that part of the Real Estate that is not under, over, or above a building or the foundation of a building; provided that the area of any Utility and Irrigation Easements or Drainage Easements may include that portion of the Real Estate that is under a permanent parking area, permanent driveway, or permanent sidewalk or walkway; provided, further, that the use of such portion as a Utility and Irrigation Easements or Drainage Easements materially does not impair the use of the permanent parking area, permanent driveway, or permanent sidewalk or walkway; (iii) Declarant shall not exercise any rights reserved to Declarant in Subsection 7(a) of this Article I in a manner that unreasonably interferes with the lawful and intended use of any Parcel; provided that in no event shall an abandonment or relocation of any one or more of the Declared Easements be deemed to be an unreasonable interference if: (A) Declarant complies with the covenants, conditions, terms, and provisions of Subsection 7(b), clause (i) of this Article I, as may be applicable; and (B) such abandonment or relocation is necessary or appropriate for compliance with: (1) any Law of any Municipality; or (2) the requirements of any Utility Provider; and (iv) Any party exercising the rights reserved to Declarant in Subsection 7(a) of this Article I that damages any Common Access Ways, Utility Systems, Drainage System, Irrigation System, Signs, Project Common Parking Areas, Project Common Green Space Areas or any access way, sidewalk, walkway, lighting, landscaped area, or other surface improvements, or any other portion of any Owner's Parcel (collectively, the "Surface Improvement(s) ") when exercising such rights shall restore the damaged Surface Improvement to a condition substantially the same as the condition that existed before such damage occurred. Section 8. Nature and Assignment of Easements and Rights. (a) Defined Easement Locations. Notwithstanding any covenant, condition, term, or provision of this Declaration to the contrary, any Declared Easement may be limited to a defined or specified part of the Real Estate by: (i) any Plat; (ii) an additional instrument (the "Easement Instrument(s) ") executed by Declarant pursuant to its reserved rights in Subsection 7(a), clause (i), of this Article I and recorded in the Office of the Recorder of St. Joseph County, Indiana; or (iii) construction, installation, or use permitted or authorized by Declarant (the "Defined Easement(s) "). A document, diagram, or survey shall be deemed to have been made available to the Owners only if the document, diagram, or survey is: (i) recorded by Declarant in the Office of the Recorder of St. Joseph County, Indiana; or (ii) available by Declarant for inspection by the Owners during regular business hours at the 0 offices of the South Bend Department of Community and Economic Development, Suite 1200 S, 227 W. Jefferson Blvd., South Bend IN 46601, or at such other place as Declarant, from time to time and at any time, may designate in writing. Except as expressly provided in this Subsection, no pictorial representation, legal description, other description, construction, installation, or use shall be deemed to limit, define, or specify any Declared Easement. (b) Perpetual and Permanent Easements. Except as provided in this Declaration to the contrary, all Declared Easements (subject to the limitation thereof by Declared Easements becoming Defined Easements) shall be perpetual and permanent. Each appurtenant Declared Easement, and the benefits thereof, shall: (i) run with the land benefited by the appurtenant Declared Easement; and (ii) inure to the benefit of Declarant and the Owners of the benefited Parcels, to all other Parties in Interest as to such Parcels. Each Declared Easement in gross, and the benefits thereof, shall inure to the benefit of Declarant and the Successor. Each appurtenant Declared Easement and Declared Easement in gross, and the burdens thereof, shall: (i) run with and bind the land burdened by such appurtenant Declared Easement or Declared Easement in gross; and (ii) bind the Owners of the burdened Parcels and all other Parties in Interest as to such Parcels. (c) Instruments of Conveyance. Each instrument that conveys, grants, transfers, creates, assigns, or mortgages any interest in a Parcel that is benefited by a Declared Easement or that is burdened by a Declared Easement (the "Instrument(s) of Conveyance ") shall be deemed: (i) (unless the Instrument of Conveyance expressly states otherwise) to assign, as an appurtenance to the interest in the Parcel, the right to the nonexclusive use and benefit of the Declared Easement(s) that benefit(s) the Parcel (regardless of whether the Instrument of Conveyance expressly assigns that right); and (ii) to impose, as a limitation or restriction upon the interest, the burden of the Declared Easement(s) that burden the Parcel (regardless of whether the Instrument of Conveyance expressly imposes such limitation or restriction). In no event shall any party except Declarant and the Successor be deemed to be the holder or beneficiary of any Declared Easement in gross, or any right or interest therein. Notwithstanding anything to the contrary set forth herein, after the conveyance, grant, or transfer of fee simple title to a Parcel or the Owner that conveyed, granted, or transferred fee simple title to that Parcel (the "Grantor Owner ") shall have no further liability for obligations that first arise hereunder after the date of such conveyance, grant, or transfer (the "Conveyance Date "); provided that: (i) the Grantor Owner shall remain liable for all obligations that first arose hereunder before the Conveyance Date; and (ii) the Owner to which fee simple title to that Parcel was conveyed, granted, or transferred (the "Grantee Owner ") shall be liable for all obligations that first arose or that first arise hereunder after the Conveyance Date. Section 9. Development of the Proiect. The period of developing the Project (the "Development Period ") shall be deemed to be complete when Declarant executes and records an instrument in the Office of the Recorder of St. Joseph County, Indiana, stating that the Development Period is completed (the "Completion Statement ") or when all of the following conditions occur: (i) The construction, erection, and installation of all buildings and Surface Improvements in and on the Project are completed; (ii) All Parcels are engaged fully in their permanent uses; -7- (iii) The construction and installation of the Common Access Ways are completed, and each building in and on the Project has adequate access, ingress, and egress over and across the Common Access Ways; and (iv) The construction and installation of the Utility Systems, the Drainage System and Irrigation System are completed, each building in or on the Project is adequately served by the Utility Systems, and all Parcels are served adequately by the Drainage System and Irrigation System. Declarant shall have the right to record a Completion Statement without the consent of any Owner or Party in Interest, and the Completion Statement shall be binding on all Owners and Parties in Interest. Section 10. Non - Dedication of Appurtenant Easements. This Declaration shall not be deemed to: (a) dedicate for public purposes any Declared Easement; (b) dedicate or assign to a Utility Provider or Municipality any Declared Easement or the interest and rights of Declarant or any Owner or Party in Interest in and to any Declared Easements (including, without limitation, the rights reserved to Declarant in Section 7 of this Article 1); or (c) otherwise subject any Declared Easement to the control of any Utility Provider or Municipality. Declarant intends that all appurtenant Declared Easements shall be for the private use and enjoyment of Declarant, the Owners and the Parties in Interest and shall remain the property of Declarant and the Owners; provided that this Section shall not be deemed to restrict in any way the rights reserved to Declarant in Section 7 of this Article I. If Declarant dedicates or assigns any Declared Easement to any Utility Provider or Municipality, then, to the extent that the Utility Provider or the Municipality maintains and repairs, or bears the expense of maintaining and repairing, any Declared Easement and the equipment, fixtures, and facilities used in conjunction therewith, the Owner Covenants shall not obligate Declarant or the Owners to maintain and repair, or bear the expense of maintaining or repairing, any such dedicated easement or the equipment, fixtures, and facilities used in conjunction therewith. ARTICLE II Covenants Section 1. Covenants Concerning Use of Parcels. (a) General Maintenance of Parcels. Each Owner shall: (i) maintain its Parcel(s), and the buildings, Surface Improvements, and all other improvements on its Parcel(s), at all times in a good, safe, sanitary, clean, and sightly condition; (ii) store refuse, rubbish, debris, trash, and all other waste in a sanitary manner covered and screened from public view, and provide each building on its Parcel with waste collection and removal service at least once each week; (iii) after damage or destruction of any Surface Improvement on an Owner's Parcel, promptly remove refuse, rubbish, debris, trash, and all other waste and raze any damaged or destroyed Surface Improvement that will not be repaired, restored or replaced; (iv) accept and make deliveries and drop -offs (and load and unload goods, merchandise, materials, and equipment) only: (A) during normal business hours for the business(es) being conducted on that Owner's Parcel(s) (unless Declarant first approves additional hours in writing); and (B) from the rear of the building(s) on that Owner's Parcel(s) (unless Declarant first approves a different location in writing); (v) comply with all applicable Laws of any governmental authority (including, without limitation, zoning ordinances and use restrictions), and with any and all reasonable rules, regulations, and directions that Declarant may promulgate from time to time. (b) Prohibition of Nuisances. (i) No Owner shall: (A) create, cause, permit, or suffer any nuisance to exist on its Parcel(s); (B) cause, permit, or suffer any unsightly condition, noxious or objectionable dust, gases, odors, or noises to exist on, or to emanate from, its Parcel(s); (C) cause, permit, or suffer any temporary structure (including, without limitation, sheds, shacks, and tents) to be built, constructed, erected, or installed on its Parcel(s) (unless Declarant first approves the temporary structure in writing); (D) cause, permit, or suffer the storage of any material or object of any nature outside of a building (unless Declarant first approves the storage in writing); (E) use (or cause, permit, or suffer the use of) its Parcel(s) for a purpose that materially interferes with the lawful and intended use of another Parcel; (F) cause, permit, or suffer the Tenants of, or Visitors to, its Parcel(s) to park any vehicle on the Common Access Ways; or (G) attempt to dedicate any Declared Easement to a Utility Provider or Municipality. Notwithstanding and covenant, condition, term, or provision of this Declaration to the contrary, neither the activities related to the construction, erection, and installation of buildings or Surface Improvements on any Parcel or any portion of the Adjacent Real Estate, nor the consequences of such construction activities, shall be deemed to be a violation of any of the covenants, conditions, terms, and provisions set forth in this Section (unless the activities materially and unreasonably interfere with the lawful and intended use of another Parcel). Any Owner that constructs a building on a Parcel which includes a restaurant or preparing food shall install grease traps or other similar devices reasonably designed to prevent the flow of grease or oil from such buildings into the sanitary sewer system. (ii) No Owner shall: (A) cause, permit, or suffer the use of its Parcel(s) for the treatment or disposal of any radioactive, hazardous, or toxic materials, substances, or wastes that are, or that become, regulated by any Law (including, without limitation, asbestos - containing materials and electrical transformers or ballasts that contain PCB's) (the "Hazardous Substances "); (B) cause, permit, or suffer the storage, usage, or transportation of any Hazardous Substance on or from its Parcel(s); except for: (1) such storage as Declarant first approves in writing; or (2) such storage, usage, and transportation of those types and amounts of Hazardous Substances as may be necessary for the business(es) being conducted on such Owner's Parcel(s); provided that, in either case: (1) such Owner shall not stockpile Hazardous Substances, or otherwise store more Hazardous Substances on its Parcel(s) than may be necessary to conduct with reasonable dispatch the business(es) being conducted on such Owner's Parcel(s); (2) all storage, usage and transportation of Hazardous Substances shall be conducted in compliance with the Laws; and (3) such Owner shall take all necessary and appropriate safety precautions in connection with such storage, usage, and transportation; or (C) cause, permit, or suffer the installation or location of any underground storage tanks on its Parcel(s). (iii) Each Owner agrees to indemnify, defend (by counsel reasonably acceptable to Declarant), protect, and hold harmless Declarant, any party affiliated with Declarant, and all other Owners from and against any and all claims, judgments, liabilities, losses, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) arising from, or in connection with: (A) any storage or usage of any Hazardous Substances by such Owner (or its employees, agents, contractors, tenants, invitees, or licensees) in, on or about its Parcel(s); or (B) any transportation of any Hazardous Substances by such Owner (or its employees, agents, contractors, tenants, invitees, or licensees) to or from its Parcel(s); whether or not such storage, usage, or transportation constitutes a failure of such Owner to observe or perform fully its obligations under this Subsection (b), or to comply with or observe fully the limitations and restrictions under this Subsection (b). The claims, judgments, liabilities, losses, costs and expenses from and against which each Owner has agreed to indemnify, defend, protect and hold harmless Declarant, any party affiliated with Declarant, and all other Owners under this Subsection (b) shall, to the extent covered by the preceding indemnity, include the following: (A) any obligation or liability of such Owner or Declarant under any Law to: (1) remove any Hazardous Substance or contaminated soil or groundwater from such Owner's Parcel(s) or Parcels of other Owners; (2) "clean up" any contamination of the soil or the groundwater in, on or under such Owner's Parcel(s) or Parcels of other Owners; or (3) perform any remediation of or for such Owner's Parcel(s) or Parcels of other Owners; (B) all charges, fines or penalties imposed by governmental authority or under any Law governing Hazardous Substances; and (C) all claims by, and liabilities to, any third party. (c) Zoning Changes and Variances. No Owner shall seek to change a zoning classification for any Parcel, or to secure a zoning variance, development plan approval, special use exception or variance, or exception from applicable building standards, setbacks, other use restrictions, or subdivision control ordinances (collectively, the "Zoning Change(s) ") for any Parcel unless Declarant approves in writing the proposed Zoning Change. If Declarant seeks a Zoning Change for a Parcel that Declarant owns, or if Declarant, in its sole discretion, approves in writing any Owner's proposal to seek a Zoning Change, then (unless the Zoning Change involves a material change in the use of the Parcel that unreasonably and materially will interfere with the lawful and intended use of another Parcel) each Owner shall: (i) be deemed to have consented to the Zoning Change; and (ii) execute any and all documents that Declarant, in its sole discretion, determines to be necessary or appropriate, stating, representing, certifying, or acknowledging that the Owner consents to the Zoning Change. Section 2. Construction of Common Access Ways, Traffic Control System, Utility Systems, Drainage System and Irrigation System. (a) Construction of Common Access Ways and Traffic Control System. Declarant shall, at its cost and expense, construct or cause to be constructed the Common Access Ways and Traffic Control System in accordance with the plans and specifications required by the Municipality and as otherwise required by law and the Owners against liability for property damage, personal injury, and loss of life occurring on, or in connection with, the construction of the Common Access Ways and Traffic Control System (the "Common Access Way Construction Liability Insurance "). (b) Construction of Utility Systems, Drainage System and Irrigation System. Declarant shall, at its cost and expense, construct or cause to be constructed the Utility Systems in accordance with the plans and specifications required by the Municipality or otherwise required by law. Section 3. Maintenance and Contribution Covenants. (a) Maintenance of Common Access Ways. -10- (i) Declarant shall maintain and repair the Common Access Ways and the Traffic Control System in accordance with any applicable maintenance and use standards as may be required by the Municipality pursuant to any private agreement entered into between the Declarant, and /or the Owners Association, as applicable, and the Municipality. In the absence of such an agreement, Declarant shall replace, in whole or in part, the Common Access Ways and the Traffic Control System when Declarant, in its sole discretion, determines that replacement is necessary or appropriate to satisfy the obligations of Declarant to maintain and repair the Common Access Ways and the Traffic Control System under this Declaration. Declarant shall procure and maintain: (a) policies of public liability insurance, in such amounts as Declarant or the Municipality, as the case may be, deems to be appropriate, that insure Declarant and the Owners against liability for property damage, personal injury, and loss of life occurring on, or in connection with, the use of the Common Access Ways (the "Common Access Way Liability Insurance "); and (b) Declarant shall procure and maintain policies of hazard insurance, in such amounts as Declarant or the Municipality, as the case may be, deems to be appropriate, to cover casualty damages to, and destruction of, the Common Access Ways and the Traffic Control System (the "Common Access Way Hazard Insurance "). (ii) Each Owner shall pay to Declarant a share of the expenses that Declarant incurs in connection with operating, maintaining, repairing, replacing, landscaping, and illuminating the Common Access Ways, the Traffic Control System, and the Access Easements (the "Gross Common Access Way Expenses "). If Declarant dedicates any Access Easements to a Municipality, and if, as a condition of accepting the dedication, the Municipality requires Declarant to post a maintenance bond or obligation of a similar nature, then all costs and expenses that Declarant incurs in connection with posting the bond (including, without limitation, the cost of the bond) shall be deemed to be part of the Gross Common Access Way Expenses. NO Each Owner's share of the Gross Common Access Way Expenses presumptively shall be based on the proportion of: (A) the aggregate gross floor space of all completed buildings on the Owner's Parcel(s); to (B) the aggregate gross floor space of all completed buildings in the Project (the "Building Proportion "); provided that, if Declarant determines, in its sole discretion, that allocation of the Gross Common Access Way Expenses on the basis of the Building Proportion is inequitable or will not fully reimburse Declarant for all Gross Common Access Way Expenses incurred, then Declarant, in its sole discretion, shall calculate each Owner's share of the Gross Common Access Way Expenses based on a formula or other process of allocation that Declarant determines to be more equitable or appropriate, taking into account the proportionate use of the Common Access Ways that Declarant determines to be attributable to each Parcel. (b) Provision of Parking Areas and Other Access Ways. Each Owner shall: (i) unless Declarant approves otherwise in writing, provide its Improved Parcel(s) with paved access ways and paved sidewalks and walkways for adequate access, ingress, and egress to (and from) each building from (and to) the Common Access Ways; (ii) unless Declarant approves otherwise in writing, provide its Improved Parcel(s) with paved parking areas and vehicle loading facilities that serve Tenants of, and Visitors to, the buildings on its Improved Parcel(s); (iii) maintain and repair the parking areas, access ways, sidewalks, walkways, and loading facilities on its Improved Parcel(s) so that they are safe for use by, and are adequate to serve, all Tenants of, and Visitors to, buildings on that Owner's Improved -11- Parcel(s); and (iv) replace, in whole or in part, the parking areas, access ways, walkways, and loading facilities on its Improved Parcel(s) when replacement is necessary to satisfy the obligations of the Owner under this Declaration. (c) Maintenance of Common Utility and Irrigation Systems. (i) Declarant shall maintain and repair all portions of the Utility Systems that are not: (i) entirely located on and exclusively serving one Parcel; or (ii) entirely located on and exclusively serving two or more adjacent Parcels that are owned by either one Owner or by two or more affiliated Owners (the "Common Portions of the Utility Systems "); so that the Common Portions of the Utility Systems remain in good and functional condition. Declarant shall replace, in whole or in part, the Common Portions of the Utility Systems when Declarant determines, in its sole discretion, that replacement is necessary or appropriate to satisfy the obligation of Declarant to maintain and repair the Common Portions of the Utility Systems under this Declaration. (ii) Declarant shall maintain and repair all portions of the Irrigation System that are not: (i) entirely located on and exclusively serving one Parcel; or (ii) entirely located on and exclusively serving two or more adjacent Parcels that are owned by either one Owner or by two or more affiliated Owners (the "Common Portions of the Irrigation Systems "); so that the Common Portions of the Irrigation Systems remain in good and functional condition. Declarant shall replace, in whole or in part, the Common Portions of the Irrigation Systems when Declarant determines, in its sole discretion, that replacement is necessary or appropriate to satisfy the obligation of Declarant to maintain and repair the Common Portions of the Irrigation Systems under this Declaration. (iii) Each Owner shall pay to Declarant a share of the expenses that Declarant incurs in connection with operating, maintaining, repairing, replacing and landscaping the Utility Easements and the Common Portions of the Utility Systems (the "Common Utility Expenses "). Each Owner shall pay to Declarant a share of the expenses that Declarant incurs in connection with operating, maintaining, repairing, replacing and landscaping the Irrigation Easements and the Common Portions of the Irrigation Systems (the "Common Irrigation Expenses "). The Common Utility Expenses and Common Irrigation Expenses shall include all costs and expenses that Declarant incurs in connection with: (i) supplying the Project with general water delivery service for irrigation, and supplying electrical power service to pumps and other portions of the Drainage System and Irrigation System; (ii) the local water utility levies for fire protection; and (iii) any other charges in connection with the installation, maintenance, repair, and replacement of fire hydrants in the Project. (iv) Each Owner's share of the Common Utility Expenses presumptively shall be based on the Building Proportion; provided that, if Declarant determines, in its sole discretion, that allocation of the Common Utility Expenses on the basis of the Building Proportion is inequitable or will not reimburse Declarant for all Common Utility Expenses incurred, then Declarant, in its sole discretion, shall calculate each Owner's share of the Common Utility Expenses based on a formula or other process of allocation that Declarant determines to be more equitable or appropriate, taking into account the proportionate use of the Utilities that Declarant determines to be attributable to each Parcel. -12- M Each Owner's share of the Common Irrigation Expenses presumptively shall be based on the proportion of: (A) the aggregate acreage of the Parcels owned by that Owner; compared to (B) the aggregate acreage of all Parcels in the Project (the "Acreage Proportion "); provided that, if Declarant determines in its sole discretion that allocation of the Common Irrigation Expenses on the basis of the Acreage Proportion is inequitable or will not fully reimburse Declarant for all Common Irrigation Expenses, then Declarant, in its sole discretion, shall calculate each Owner's share of the Common Irrigation Expenses based on a formula or other process of allocation that Declarant determines to be more equitable or appropriate, taking into account the proportionate use of the Common Portions of the Irrigation Systems that Declarant determines to be allocable to each Parcel. (d) Maintenance by Owners of Utility and Irrigation Systems. Each Owner shall: (i) maintain and repair the portions of the Utility Systems that are located entirely on, and that serve exclusively, that Owner's Parcel, or that are located entirely on, and serve exclusively, two or more adjacent Parcels that are owned either by that Owner or by that Owner and another affiliated Owner, so that such portions of the Utility Systems provide adequate service to all Tenants of, and Visitors to, all buildings on that Owner's Improved Parcel(s); and (ii) replace, in whole or in part, such portions of the Utility Systems when replacement is necessary to satisfy the obligations of the Owner under this Declaration. Notwithstanding any covenant, condition, term, or provision to the contrary in this Subsection or in Subsection 2(c) of this Article II, to the extent that any Utility Provider or Municipality maintains and repairs the Utility Systems or bears the expense of maintaining and repairing the Utility Systems, no provision of this Declaration shall obligate Declarant or the Owners to maintain and repair the Utility Systems or to bear the expense of maintaining or repairing the Utility Systems. Each Owner also shall: (i) provide its Parcel with adequate irrigation to maintain the landscaping on the Parcel in a healthy and attractive state; and (ii) maintain and repair the portions of the Irrigation System that are located entirely on and exclusively serving the Owner's Parcel or located entirely on and exclusively serving two or more adjacent Parcels that are owned either by that Owner or by that Owner and another affiliated Owner. (e) Installation of Utility Meters. Each Owner shall install and maintain in proper working order (or cause to be installed and maintained in proper working order) meters or other similar devices that measure the volume or amount of water, natural gas, and electricity that is consumed on or from the Owner's Parcel(s). Upon request by Declarant, each Owner shall install and maintain (or cause to be installed and maintained): (i) meters or other similar devices that measure the volumetric outflow from the Owner's Parcel(s) into the sanitary sewer system that serves the Parcel(s); and (ii) devices to measure or reasonably estimate the volumetric amount of surface drainage from the Owner's Parcel into the common portions of the Drainage System. The obligations of the Owners that are set forth in this Subsection and in Subsections 2(c) and 2(d) of this Article II are in addition to each Owner's sole responsibility to: (i) obtain all necessary approvals and permits, and pay any and all charges and fees, for the connection of that Owner's Parcel(s) and the buildings on such Parcel(s) to utility services and/or the Utility Systems; and (ii) pay all charges and fees for usage or consumption of any utility services on or from that Owner's Parcel(s) and the buildings on such Parcels. (f) Maintenance of Common Drainage Systems. (i) Declarant shall maintain and repair all portions of the Drainage System that are not: (A) located entirely on, and serving exclusively, one Parcel; or (B) located entirely -13- on, and serving exclusively, two or more adjacent Parcels that are owned either by one Owner or by two or more affiliated Owners (the "Common Portions of the Drainage Systems "); so that the Common Portions of the Drainage Systems remain in good and functional condition. Declarant shall replace, in whole or in part, the Common Portions of the Drainage Systems when Declarant determines, in its sole discretion, that replacement is necessary or appropriate to satisfy the obligation of Declarant to maintain and repair the Common Portions of the Drainage Systems under this Declaration. (ii) Each Owner shall pay to Declarant a share of the expenses that Declarant incurs in connection with operating, maintaining, repairing, replacing, and landscaping the Drainage Easements and the Common Portions of the Drainage Systems (including, without limitation, all costs and expenses of landscaping and maintaining the areas immediately surrounding detention ponds and the other Common Portions of the Drainage Systems) (the "Common Drainage Expenses "). The Common Drainage Expenses shall include any and all amounts incurred by Declarant to pay for the use, maintenance, repair, and replacement of off -site drainage ponds, equipment, fixtures, and facilities that provide or facilitate surface or storm water drainage from the Project. (iii) Each Owner's share of the Common Drainage Expenses presumptively shall be based on the Acreage Proportion; provided that, if Declarant determines in its sole discretion that allocation of the Common Drainage Expenses on the basis of the Acreage Proportion is inequitable or will not fully reimburse Declarant for all Common Drainage Expenses, then Declarant, in its sole discretion, shall calculate each Owner's share of the Common Drainage Expenses based on a formula or other process of allocation that Declarant determines to be more equitable or appropriate, taking into account the proportionate use of the Common Portions of the Drainage Systems that Declarant determines to be allocable to each Parcel. (g) Maintenance by Owners of Drainage Systems. Each Owner shall: (i) provide its Parcel with surface and storm water drainage that adequately channels, directs or drains the surface and storm water on the Parcel into the Common Portions of the Drainage Systems; and (ii) maintain and repair the portions of the Drainage System that are located entirely on and exclusively serving the Owner's Parcel or are located entirely on and exclusively serving two or more adjacent Parcels that are owned either by that Owner or by that Owner and another affiliated Owner. (h) Maintenance of Signs. (i) Declarant shall: (A) maintain and repair the Signs; and (B) replace, in whole or in part, the Signs when Declarant determines, in its sole discretion, that replacement is necessary or appropriate to satisfy Declarant's obligation to maintain and repair the Signs under this Declaration. (ii) Each Owner shall pay to Declarant a share of the expenses that Declarant incurs in connection with operating, maintaining, repairing, replacing, and illuminating the Signs (including, without limitation, all costs and expenses of landscaping and maintaining the areas surrounding the Signs) (the "Sign Expenses "). -14- (iii) Each Owner's share of the Sign Expenses presumptively shall be based on the Building Proportion; provided that, if Declarant, in its sole discretion, determines that allocation of the Sign Expenses on the basis of the Building Proportion is inequitable or will not fully reimburse Declarant for all common Sign Expenses, then Declarant, in its sole discretion, shall calculate each Owner's share of the Sign Expenses based on a formula or other process of allocation that Declarant determines to be more equitable or appropriate. (iv) Notwithstanding the foregoing, for any Sign containing Sign User Panels, the Sign Expenses of such Sign shall be paid only by the Owner of the Sign User Panels located on such Sign. Each Owner of a Sign User Panel shall pay to Declarant a share of the Sign Expenses incurred in connection with such Sign containing Sign user Panels. The share of the Sign Expenses payable by each Owner of a Sign User Parcel presumptively shall be based on the proportion of: (A) the area of that Owner's panels (or the panels of its Tenant(s) that are Sign User(s)); to (B) the total area of all panels on the Sign (the "Panel Proportion "); provided that, if Declarant determines, in its sole discretion, that allocation of the Sign Expenses on the basis of the Panel Proportion is inequitable or will not fully reimburse Declarant for all Sign Expense, then Declarant, in its sole discretion, shall calculate each Sign User's share of the Sign Expenses based on a formula or other process of allocation that Declarant determines to be more equitable or appropriate. (i) Maintenance of Common Parking Areas. (i) Declarant shall: (A) maintain and repair the Common Parking Areas; and (B) replace, in whole or in part, the Common Parking Areas when Declarant determines, in its sole discretion, that replacement is necessary or appropriate to satisfy Declarant's obligation to maintain and repair the Common Parking Areas under this Declaration. Declarant shall procure and maintain: (a) policies of public liability insurance, in such amounts as Declarant deems to be appropriate, that insure Declarant and the Owners against liability for property damage, personal injury, and loss of life occurring on, or in connection with, the use of the Common Parking Areas (the "Common Parking Areas Insurance "); and (b) Declarant shall procure and maintain policies of hazard insurance as Declarant deems to be appropriate, to cover casualty damages to, and destruction of, the Common Parking Areas (the "Common Parking Areas Hazard Insurance "). (ii) Each Owner shall pay to Declarant a share of the expenses that Declarant incurs in connection with insuring, operating, maintaining, repairing, replacing, landscaping, and illuminating the Common Parking Areas (including, without limitation, all costs and expenses of landscaping and maintaining the areas surrounding the Common Parking Areas) (the "Common Parking Areas Expenses "). (iii) Each Owner's share of the Common Parking Areas Expenses presumptively shall be based on the Building Proportion; provided that, if Declarant, in its sole discretion, determines that allocation of the Common Parking Areas Expenses on the basis of the Building Proportion is inequitable or will not fully reimburse Declarant for all common Common Parking Areas Expenses, then Declarant, in its sole discretion, shall calculate each Owner's share of the Common Parking Areas Expenses based on a formula or other process of allocation that Declarant determines to be more equitable or appropriate. -15- (j) Maintenance of Proiect Common Green Space Areas. (i) Declarant shall: (A) maintain and repair the Project Common Green Space Areas; and (B) replace, in whole or in part, the Project Common Green Space Areas when Declarant determines, in its sole discretion, that replacement is necessary or appropriate to satisfy Declarant's obligation to maintain and repair the Project Common Green Space Areas under this Declaration. Declarant shall procure and maintain: (a) policies of public liability insurance, in such amounts as Declarant deems to be appropriate, that insure Declarant and the Owners against liability for property damage, personal injury, and loss of life occurring on, or in connection with, the use of the Project Common Green Space Areas (the "Project Common Green Spaces Areas insurance "); and (b) Declarant shall procure and maintain policies of hazard insurance as Declarant deems to be appropriate, to cover casualty damages to, and destruction of, the Project Common Green Spaces (the "Project Common Green Spaces Hazard Insurance "). (ii) Each Owner shall pay to Declarant a share of the expenses that Declarant incurs in connection with insuring, operating, maintaining, repairing, replacing, landscaping, and illuminating the Project Common Green Space Areas (including, without limitation, all costs and expenses of landscaping and maintaining the areas surrounding the Project Common Green Space Areas) (the "Project Common Green Space Areas Expenses "). (iii) Each Owner's share of the Project Common Green Space Areas Expenses presumptively shall be based on the Acreage Proportion; provided that, if Declarant, in its sole discretion, determines that allocation of the Project Common Green Space Areas Expenses on the basis of the Acreage Proportion is inequitable or will not fully reimburse Declarant for all common Project Common Green Space Areas Expenses, then Declarant, in its sole discretion, shall calculate each Owner's share of the Project Common Green Space Areas Expenses based on a formula or other process of allocation that Declarant determines to be more equitable or appropriate. (k) Providing Proiect Security. Declarant shall have the option to: (i) implement, install, operate, maintain, and repair security systems (including, without limitation, employing security personnel to patrol the Parcels and the Project or to provide other security services for the Parcels and the Project); and (ii) allocate to each Owner the costs and expenses incurred by Declarant to implement, install, operate, maintain, and repair security systems and to employ security personnel (the "Common Security Costs "), which allocation presumptively shall be based on the Building Proportion. Each Owner shall pay to Declarant the Common Security Costs allocated to that Owner's Parcel(s); provided that, if Declarant, in its sole discretion, determines that allocation of the Common Security on the basis of the Building Proportion is inequitable or will not fully reimburse Declarant for all Common Security Costs, then Declarant, in its sole discretion, shall calculate the allocation of Common Security Costs based on a formula or other process of allocation that Declarant determines to be more equitable or appropriate. (1) Additional Capital Improvements. (i) If Declarant builds, constructs, erects, or installs any capital improvement (the "Capital Improvement(s) ") in the Project (including, without limitation, additional sanitary sewer facilities) that mutually benefits the Owners, then each Owner shall: (A) pay to Declarant a share of the building, construction, erection, and installation costs for the -16- portion of the Capital Improvement that does not exclusively serve either one Parcel or two or more adjacent Parcels that are owned either by one Owner or by two or more affiliated Owners (the "Common Capital Construction Costs "); (B) pay to Declarant all of the building, construction, erection, and installation costs for any Capital Improvement or portion thereof that either exclusively serves an Owner's Parcels or that exclusively serves two or more adjacent Parcels that are owned either by that Owner or by that Owner and another affiliated Owner (the "Individual Capital Construction Costs "); and (C) enter into a supplemental agreement with Declarant and the other Owners that sets forth the obligations of Declarant and the Owners to maintain and repair the Capital Improvement, and that provides a method for sharing the expenses incurred by Declarant in connection with maintaining and repairing the Capital Improvement (the "Capital Improvement Agreement "). (ii) Each Owner's share of the Common Capital Construction Costs presumptively shall be based on the Building Proportion; provided that, if Declarant, in its sole discretion, determines that allocation of the Common Capital Construction Costs on the basis of the Building Proportion is inequitable or will not fully reimburse Declarant for all common Capital Construction Costs, then Declarant, in its sole discretion, shall calculate each Owner's share of the Common Capital Construction Costs based on a formula or other process of allocation that Declarant determines to be more equitable or appropriate, taking into account the proportionate use of the Capital Improvement(s) that Declarant determines to be attributable to each Parcel. (iii) Each Owner shall receive prior written notice of Declarant's intent to construct or install a Capital Improvement, and the estimated cost and Owner's share thereof. In any event, neither the Tenants of, or Visitors to, a Parcel nor the Owner of a Parcel shall use a Capital Improvement, unless the Owner of the Parcel (A) pays to Declarant its share of the Common Capital Construction Costs and any Individual Capital Construction Costs payable by the Owner pursuant to this Subsection, and (B) enters into the Capital Improvement Agreement. (m) Relocation Expenses. If Declarant exercises its Easement Relocation Rights pursuant to Subsection 7(a)(iii) of Article I, then: (i) the costs and expenses of such abandonment or relocation (the "Relocation Expenses ") shall be allocated among the Owners; and (ii) each Owner's share of the Relocation Expenses presumptively shall be based on the Building Proportion; provided that, if Declarant reasonably determines that allocation of the Relocation Expenses on the basis of the Building Proportion is inequitable or will not fully reimburse Declarant for all Relocation Expenses incurred, then Declarant, in its sole discretion, shall calculate each Owner's share of the Relocation Expenses based on a formula or other process of allocation that Declarant reasonably determines to be more equitable or appropriate, taking into account the proportionate use of the Declared Easement that Declarant determines to be attributable to each Parcel. Notwithstanding anything to the contrary set forth herein, if Declarant exercises its Easement Relocation Rights for the exclusive benefit of one Owner's Parcel or two or more Parcels that are owned either by one Owner or by two or more affiliated Owners, then such Owner, or affiliated Owners, as the case may be, shall reimburse Declarant for the full amount of the Relocation Expenses. (n) Non - Compliance with the Owner Covenants. If an Owner fails to comply with any Owner Covenant, then Declarant shall notify the Owner of such failure to comply, and, if the Owner does not comply within a reasonable time, as determined by Declarant in its sole discretion, then -17- Declarant may (but is under no duty or obligation to): (i) enter in or upon any portion of the Owner's Parcel(s), or the buildings and other Surface Improvements located on the Parcel(s), and cure the non - compliance; or (ii) enjoin the non - compliance through an action at law or in equity. Any Owner that fails to comply with any Owner Covenant shall: (i) promptly reimburse Declarant for all expenses that Declarant incurs in connection with curing the non - compliance; and (ii) be liable to Declarant for all costs that Declarant incurs in connection with enjoining such non - compliance (including, without limitation, attorneys' fees and legal costs). Absent manifest error, determination by Declarant that an Owner has failed to comply with any Owner Covenant shall be conclusive. (o) Amounts Payable to Declarant. (i) All amounts payable by an Owner to Declarant pursuant to this Section, (including, without limitation, its share of the Common Utility Expenses, the Common Irrigation Expense, the Common Drainage Expenses and the Relocation Expenses) (the "Contribution Payment(s) ") shall be deemed to be delinquent if the full amount thereof is not paid within 30 days after receipt by the Owner of an invoice for the amount payable. All delinquent Contribution Payments: (A) shall bear interest at four (4 %) percent above the rate of interest that is designated by J.P. Morgan Chase as its prime rate (as revised or modified from time to time during the period when a Contribution Payment is delinquent); and (B) together with the interest thereon, shall be a lien against the Owner's Parcel (the "Non- Payment Lien "); provided that the Non - Payment Lien shall be subordinate to: (A) any mortgage lien that is: (1) held by a mortgagee that is not an affiliate of the Owner; and (2) placed of record prior to the date on which the Contribution Payment becomes delinquent (the "Prior Mortgage "); and (B) any leasehold interest that is: (1) held by a Tenant that is not an affiliate of the Owner; and (2) placed of record prior to the date on which the Contribution Payment becomes delinquent (the "Prior Lease "). Notwithstanding any covenant, condition, term, or provision of this Declaration to the contrary: (A) this Declaration shall not impose any obligation or liability on any mortgagee or Tenant to make Contribution Payments until the mortgagee's or Tenant's interest in a Parcel ripens into fee simple ownership; and (B) a mortgagee or Tenant shall be liable for, and obligated to pay, only the Contribution Payments that are allocable to a Parcel after the date on which the mortgagee's or Tenant's interest in the Parcel ripens into fee simple ownership or, in the case of a mortgagee, after the date on which the mortgagee assumes possession of the Parcel, whichever first occurs. (ii) Declarant may collect any delinquent Contribution Payment and the accrued interest thereon by any action at law or in equity, and, in addition, may foreclose the Non - Payment Lien. Any Owner that fails to pay a Contribution Payment before the payment becomes delinquent shall be liable to Declarant for all costs that Declarant incurs in connection with collecting the Contribution Payment and the accrued interest thereon, and with foreclosing the Non - Payment Lien (including, without limitation, attorneys' fees and legal costs). Until the date on which the Owner pays to Declarant the delinquent Contribution Payment, Declarant, in addition to its other remedies, may withhold from, or deny to, the Owner and all Tenants of, and Visitors to the Owner's Parcel(s), use of the Common Access Ways, the Utility Systems, the Drainage System, the Irrigation System, and the Signs; provided that such use may not be withheld from, or denied to, Tenants having a Prior Lease or Visitors of such Tenants. Upon the request of any Owner or the mortgagee of a Parcel, Declarant shall furnish any Owner or the mortgagee with information regarding any delinquent Contribution Payment, the accrued -18- interest thereon, and any Non - Payment Lien on the Parcel. To defray general administrative expenses and to compensate Declarant for discharging its obligations under this Declaration, the Gross Common Access Way Expenses, the Common Utility Expenses, the Common Irrigation Expenses, the Common Drainage Expenses, the Sign Expenses and the Common Security Costs shall include an additional amount equal to 10% of the other costs and expenses included therein. Section 4. Architectural Compatibility. No Owner shall build, construct, erect, or install a building, structure, sign, other Surface Improvement, or any other improvement (collectively, the "Improvement(s) ") on its Parcel, or alter any of the existing Improvements on its Parcel (including, without limitation, reducing the number of parking spaces on the Parcel), until all of the following conditions are satisfied: (i) The Owner submits to an architectural review board established by Declarant (the "Architectural Review Board ") all plans, designs, and specifications for the proposed Improvement or the proposed alteration of an existing Improvement (including, without limitation, a site plan of the proposed Improvement or the proposed alteration of an existing Improvement) (the "Construction Plans "); (ii) The Owner submits to the Architectural Review Board samples of any construction and finishing materials that Declarant or the Architectural Review Board, as applicable, may request (the "Construction Materials "); (iii) The Architectural Review Board determines that the Improvements (as shown in the Construction Plans) appear to comply with, and will not cause a violation of: (A) any and all applicable zoning ordinances, building codes, and other state and local regulations; (B) the Architectural and Site Design Guidelines established by Declarant, as amended from time to time; and (C) any and all other reasonable rules, regulations, and directions that Declarant may promulgate from time to time concerning construction, erection, installation, and alteration of Improvements; (iv) The Architectural Review Board further determines that the Improvements and the Construction Materials are of a quality and nature that are compatible with Declarant's plans for the Project and any existing Improvements in and on the Project and the Adjacent Real Estate; and (v) The Architectural Review Board approves the Construction Plans in writing. Determinations by the Architectural Review Board pursuant to this Section shall be made reasonably, and approvals of the Architectural Review Board required by this Section shall not be withheld unreasonably. Determinations by the Architectural Review Board pursuant to this Section shall not bind the Executive Director of the Area Plan Commission or the Building Commissioner of the City of South Bend, Indiana. ARTICLE III General Provisions -19- Section 1. Owners Association. (i) At any time, Declarant may organize an owners association (the "Owners Association "), and, at any time after the date on which the Development Period terminates, the Owners that own in the aggregate 67% or more of the aggregate gross floor space of all completed buildings in the Project (the "Gross Floor Space ") may elect to form the Owners Association. Within one year after the date on which the Owners elect to form the Owners Association, Declarant shall organize the Owners Association so that, to the extent practicable, it: (A) receives Contribution Payments and pays common expenses on a tax - exempt basis; and (B) provides its members with limited liability for its actions, debts, and obligations. Each Owner shall be a member of the Owners Association, and: (A) % of the voting power shall be allocated on the basis of the Acreage Proportion; and (B) % of the voting power shall be allocated on the basis of the Building Proportion. The Owners Association shall be governed by a board of directors that consists of at least three persons who are elected annually and who shall have complete responsibility for governing the Owners Association and satisfying the obligations and duties of the Owners Association (the "Board of Directors "). (ii) On the date that the Owners Association is organized (the "Succession Date "), the Owners Association shall succeed to all of the obligations, duties, rights, and powers vested in Declarant by this Declaration (except Declarant's obligations, duties, rights, and powers as an Owner); provided that neither the Owners Association nor the Board of Directors shall execute or record any additional instruments binding the Owners or Parties in Interest and defining or specifying the location of any easement(s), unless the Board of Directors first obtains the written consent of all Owners of the Parcels that are burdened by the easement. On the Succession Date: (A) Declarant shall be discharged from all further obligations and duties under this Declaration (except Declarant's obligations and duties as an Owner); (B) the Owners Association shall assume, succeed to, and be responsible for, the payment of all outstanding debts and obligations that were incurred by Declarant in connection with the obligations, duties, rights, and powers vested in Declarant by this Declaration (the "Debts "); and (C) the Owners Association shall assume, succeed to, and be responsible for the performance of all contracts entered into by and between Declarant and any other party in connection with the obligations, duties, rights, and powers vested in Declarant by this Declaration (the "Contracts "). (iii) Until the Succession Date, the Owners Association shall not have or be deemed to have: (A) any obligations, duties, rights, or powers under this Declaration; or (B) any actual or implied authority to act for or on behalf of Declarant or any Owner. In no event shall Declarant be responsible or liable for any action taken by the Owners Association before the Succession Date. On the Succession Date and thereafter, the Owners Association shall indemnify and hold harmless Declarant and its agents and employees from and against all actions, claims, liabilities, and expenses arising from the Debts and the Contracts, and, by accepting membership in the Owners Association, the Owners shall be deemed to waive all claims and actions of the Owners or the Owners Association against Declarant arising from the Debts or the Contracts. (iv) References in this Declaration to "Successor" shall include the Owners Association or any other party: (A) that assumes all of the obligations and duties of Declarant -20- under this Declaration (except the obligations and duties of Declarant as an Owner); and (B) to which Declarant assigns or delegates, in whole or in part, the interest of Declarant in any or all easements created by this Declaration or the rights and powers vested in Declarant by this Declaration. Section 2. Severability and Governing Law. The invalidity or unenforceability of any covenant, condition, term, or provision of this Declaration shall not affect the validity and enforceability of any other covenant, condition, term, or provision of this Declaration. The covenants, conditions, terms, and provisions of this Declaration shall be governed by, and construed in accordance with, the laws of the State of Indiana. All references in this Declaration to " Owner(s)" shall be deemed to be references to Declarant, unless and until Declarant conveys all of its ownership interest in and to all of the Parcels, and except when a reference to " Owner(s)" expressly excludes Declarant. Section 3. Waiver of Obligations and Duties. After the date on which the Development Period ends, the Owners that own in the aggregate: (a) 75% or more of the aggregate acreage of the Project; and (b) 75% or more of the Gross Floor Space (the "Majority Owners ") may waive, from time to time, in whole or in part, any obligation or duty of Declarant or any Owner under this Declaration and /or exempt any portion of the Real Estate from the terms and conditions of this Declaration. Section 4. Annexation of Adiacent Real Estate. Declarant hereby reserves the right, from time to time and at any time during the Development Period and for a period of ten (10) years after the expiration of the Development Period, to annex any portion of the Adjacent Real Estate into the Project (the "Annexed Real Estate "). As of the date on which Declarant annexes any portion of the Adjacent Real Estate into the Project: (a) the Annexed Real Estate shall be deemed to be included within the Real Estate and the Project; (b) all references in this Declaration to the "Real Estate" or to the "Project" shall be deemed to include the Annexed Real Estate; (c) all references in this Declaration to " Parcel(s)" shall be deemed to include all parcels of land within the Annexed Real Estate; (d) all references in this Declaration to " Owner(s)" shall be deemed to include all owners of a Parcel within the Annexed Real Estate; (e) all references in this Declaration to "Parties in Interest" shall be deemed to include all Owners of Parcels in the Annexed Real Estate and all current and future mortgagees, grantees, assigns, and successors of the Owners of Parcels in the Annexed Real Estate; and (f) all easements created by this Declaration shall bind, benefit, burden, and run with the Annexed Real Estate, as provided in Article I, Section 8 of this Declaration. Section 5. Amendments and Supplements. (a) Declarant hereby reserves the right, from time to time and at any time during the Development Period, to modify, supplement, or amend this Declaration, without the consent of any Owner or Party in Interest; provided that Declarant records the modification in the Office of the Recorder of St. Joseph County, Indiana, and the modification is for any one or more of the following purposes: (i) To extend the provisions of this Declaration to bind and benefit the Annexed Real Estate and the Owner(s) of Parcel(s) within the Annexed Real Estate; (ii) To clarify one or more covenants, conditions, terms, or provisions of this Declaration, without materially changing the substance hereof; -21- (iii) To clarify, further define, or limit any easement, or otherwise to exercise any rights reserved in Article I, Section 7, of this Declaration; or (iv) To change the substance of one or more covenants, conditions, terms, or provisions of this Declaration; provided that such change shall not increase materially the obligation(s) of any Owner or diminish materially the right(s) of any Owner under any covenant, condition, term, or provision without such Owner's consent, unless such change is necessary to comply with applicable Laws of any Municipality. (b) From time to time and at any time, the Majority Owners may modify this Declaration by a written instrument that is signed by the Majority Owners and recorded in the Office of the Recorder of St. Joseph County, Indiana; provided that: (i) no modification pursuant to this Section shall be enforceable against, or binding upon, any party until the Amendment is recorded in the Office of the Recorder of St. Joseph County, Indiana; (ii) no Party in Interest shall have the right or power to prohibit any modification of this Declaration pursuant to this Section; and (iii) no modification pursuant to this Section shall increase materially the obligation(s) of any Owner or diminish materially the right(s) of any Owner under any covenant, condition, term, or provision without such Owner's consent, as the case may be, which consent shall not be unreasonably withheld, conditioned or delayed, unless such change is necessary to comply with applicable Laws of any Municipality. (c) Nothing contained in this Section shall be deemed to limit or restrict any rights reserved to Declarant elsewhere in this Declaration. Upon request from time to time, each Owner shall execute and deliver any further instruments or documents supplementing or confirming amendments to this Declaration, or that reasonably may be required by any financial institution as mortgagee of (or as a condition precedent to making any mortgage loan secured by) any Parcel or Parcels. [Signature page follows.] -22- IN WITNESS WHEREOF, Declarant has executed this Declaration of Covenants and Easements, as of the date first written above, for filing of record in the Office of the Recorder of St. Joseph County, Indiana. City of South Bend Redevelopment Commission By: Marcia I. Jones, President By: Nancy King, Secretary ACKNOWLEDGMENT STATE OF INDIANA ) ) SS: COUNTY OF ST. JOSEPH ) Before me, a Notary Public in and for the State of Indiana, personally appeared Marcia I. Jones and Nancy King, the President and Secretary, respectively, of the City of South Bend Redevelopment Commission, who, having first been duly sworn, acknowledged the execution of the foregoing Declaration of Covenants and Easements for and on behalf of said Redevelopment Commission. Witness my hand and Notarial Seal this day of March, 2011. Notary Public Printed Name My commission expires: I am a resident of County, Indiana. I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law: April R. Schilling This instrument was prepared by April R. Schilling, Attorney at Law, Baker & Daniels, 300 N. Meridian St., Suite 2700, Indianapolis, Indiana 46204. -23- Exhibit A Legal Description -24- Exhibit "A" Legal Description for Ignition Park That part of the Northeast Quarter of Section 14 and the Northwest Quarter of Section 13, both in Township 37 North, Range 2 East, Portage Township, City of South Bend, St. Joseph County, Indiana which is described as: Beginning at the intersection of the Centerline of Prairie Avenue with the Centerline of Sample Street; thence East along said Centerline of Sample Street and the North line of said Northwest and Northeast Quarter Sections a distance of 1,946.0 feet more or less to a point of intersection of the Centerline of Sample Street with the Centerline of the first North -South 14 -foot wide Public Alley East of Franklin Street extended North; thence South along said Public Alley Centerline a distance of 287.0 feet more or less to a point of intersection with the Centerline of the first East -West 14 -foot wide Alley South of Sample Street; thence East along said Centerline a distance of 213.25 feet more or less to the Centerline of Lafayette Boulevard; thence South along said Centerline a distance of 312.25 feet more or less to the Centerline of Garst Street; thence West along said Centerline a distance of 410.25 feet more or less to the Centerline of Franklin Street; thence South along said Centerline a distance of 687.32 feet more or less to the South line of Stull Street and the North line of Lot # 2 of the Plat of "Transpo Minor Subdivision" recorded by Document No. 0918833 in the records of the St. Joseph County, Indiana Recorder's Office; thence along the North line of said Lot # 2, S. 89 °- 21' -27" W. a distance of 400.84 feet more or less to the Northwest corner of said Lot # 2; thence S. 00 °- 19' -00" E. along the West line of said Lot # 2 and its Southerly extension a distance of 1,020.34 feet more or less to the South line of a 30 -foot wide Right -of -way for the Penn Central Railroad formerly known as the Terre Haute & Logansport Railroad and as shown on said "Transpo Minor Subdivision" Plat; thence Northwesterly and Westerly along said South line a distance of 1,072.22 feet more or less to the Centerline of Kendall Street; thence North along said Centerline a distance of 660.0 feet more or less to the point of intersection with the Centerline of Cotter Street; thence West along the Centerline of Cotter Street a distance of 893.0 feet more or less to the Centerline of Prairie Avenue; thence along the Centerline of Prairie Avenue for the next Two (2) Courses, N. 28 °- 18' -01" E. a distance of 1,230.0 feet more or less and N. 00 °- 03' -53" W. a distance of 463.0 feet more or less to the point of beginning. Containing 87.15 Acres more or less. Subject to all legal highways, easements and restrictions of record.