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HomeMy WebLinkAbout6B (1)6 1 2 t4 (o (2) ( 3) memo rand u m Community & Economic Development 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, Bill Schalliol W`— Subject: Ratification of changes made to Blackthorn Corporate Park Bylaws, Covenants, and Design Guidelines Date: March 22, 2012 Attached to this memorandum are copies of marked -up versions of the Blackthorn Corporate Park Bylaws, Covenants and Design Guidelines. All three documents were created when the park was established in the mid1990's and all three documents have been amended or modified over that time. The changes that are being proposed will ensure that all three documents are in sync with each other. The purpose of the request today is to ratify the changes and corrections that were approved by the Blackthorn Owners Association at a meeting that they had on Wednesday, March 21st. The owners reviewed all three documents and voted and approved all of the recommended changes. Upon your ratification, the document will be presented to the Redevelopment Authority for its approval. Once all three agencies have approved the changed documents, a clean version of all three documents will be circulated to the owners association and will be available in the C &ED office as well as from Grubb & Ellis /Cressy & Everett who are selling land parcels in the corporate park. These updated documents can be presented to prospective park tenants and also give comfort to the existing park tenants. Staff requests your ratification for all three documents related to the Blackthorn Corporate Park. What We Do Today Makes A Difference! BLACKTHORN CORPORATE PARK By -Laws: Summary of Changes Pg 1 Article 11 Section 1: change "benefit of to "benefitting Pg 3 Article IV Section 2: change from semi annual meetings to annual meeting Pg 4 Article IV Section 4: correct "Section 4" to "Section 3" Pg 4 Article IV Section 6: change from semi annual meetings to annual meeting Pg 5 Article VI Section 2: change from "October- January semi annual meetings" to "October annual meeting" Pg 6 Article VII Section 1: change from "October- January semi annual meetings" to "October annual meeting" Pg 7 Article VI Section 2 & 3: change from "October- January semi annual meetings" to "October annual meeting" Pg 7 Article IX Section 1: delete "semi" from semi annual meeting Pg 8 Article IX Section 3: add "a copy" to corporate records Covenants & Restrictions: Summary of Changes Pg 8 Article IV Section 4.4: Educational Use added as permitted use in Blackthorn Corporate Park (4/12/11) Pg 9 Article IV Section 4.7.5: Educational Use added as permitted use in LI Light Industrial zones (4/12/11) Pg 12 Article V Section 5.4 (f): delete "non- refundable Review Fee and architect's cost estimate" from Application from Approval Pg 12 Article V Section 5.6.1: delete "Review Fee" Pg 12 Article V Section 5.4 (f): delete "without an additional Review Fee" Pg 14 Article VI Section 6.2 (c): delete "Review Fee" Pg 21 Article VIII Section 8.3: change "required" to "encouraged" regarding Owners to construct a bike path on their property Pg 21 Article VIII Section 8.3: delete" The path must be within a corridor thirty (30) feet wide, measured from the front and /or side boundary with a public right -of -way" to "The bike path must be continuous from side property line ...... " Pg 22 Article VIII Section 8.10: change landscape work completed "within six (6) months to one (1) year" to "120 days" and change size of trees from "four (4)" to "six (6)" or more inches. These changes will be make the covenants consistent with Design Guidelines. Pg 23 Article VIII Section 8.12: Added Chain link fencing is prohibited from all Blackthorn "sites without specific approval of the Committee ". Pg 31 Amendments VI: Education Amendment added 4/12/11 Exhibits A -E: maps updated Design Guidelines: Summary of Changes Pg 7 Vehicle Circulation and Parking, Item 10: delete "with gutter" from curb requirements. Pg 7 Pedestrian and Bicycle Circulation: delete section in entirety Pg 8 Site Utilities, Item 2: delete entire item regarding septic systems Pg 9 Site Signage, Item3: added new item "Electronic and digital signage is not permitted in Blackthorn Corporate Park with specific approval of the Committee. Pg 13 Maintenance, Item 6 (d): delete (d) in entirety. Guys stakes not required. Pg 14 Additional Information, Item 5: delete entire item, anticipated water and sewer demands not required for design review Pg 14 Additional Information, Item 6: delete entire item, site amenities requirements are noted in Design Review submittal requirements. I,( BLACKTHORN CORPORATE PARK Declaration of Protective Covenants & Restrictions City of South Bend, Indiana South Bend Redevelopment Commission South Bend Redevelopment Authority as revised: February 23, 2012 draft Table of Contents ARTICLE I DEFINITIONS................................................................................ ............................... 1 ARTICLE 11 CHARACTER& PURPOSE .......................................................... ............................... 5 ARTICLE III DEVELOPMENT RESTRICTIONS ................................................ ............................... 5 ARTICLE IV USERESTRICTIONS .................................................................... ............................... 7 ARTICLE V ARCHITECTURAL AND SITE REVIEW COMMITTEE ................ ............................... 10 ARTICLE VI OWNER'S ASSOCIATION AT BLACKTHORN ............................ ............................... 14 ARTICLE Vll COMMON AREAS AND EASEMENTS ........................................ ............................... 17 ARTICLE Vlll REGULATION OF I MPROVEMENTS ........................................... ............................... 20 ARTICLE IX VIOLATION OF PROVISIONS ..................................................... ............................... 24 ARTICLE X ACCEPTANCE OF COVENANTS ................................................ ............................... 26 ARTICLE XI ASSIGNMENT AND LIMITATION OF LIABILITY ........................ ............................... 26 ARTICLE XII MISCELLANEOUS....................................................................... ............................... 28 AMENDMENTS............................................................................. ............................... 30 Declaration of Protective Covenants & Restrictions of the Blackthorn Corporate Park THIS DECLARATION is jointly made this 19th day of March, 1993, by the SOUTH BEND REDEVELOPMENT AUTHORITY (referred to as "Authority "), and by the SOUTH BEND REDEVELOPMENT COMMISSION (referred to as "Commission "), to be jointly and severally referred to as "Declarant ", as Owner and Lessee of that certain real Property hereinafter described and located in the City of South Bend, St. Joseph County, Indiana. The Authority and Commission hereby declare that all of the real property legally described in and referred to in Exhibit "A" attached to this Declaration, to be known as Blackthorn Corporate Park (referred to as "Blackthorn ") is and shall be held, conveyed, hypothecated, encumbered, leased, transferred, sold, occupied, built upon or otherwise used or improved in whole or in part, subject to the Covenants and Restrictions (sometimes referred to as "Covenants ") hereinafter set forth and all of said Covenants herein contained are declared and agreed to be in furtherance of a general plan for the subdivision, improvement and lease or sale of Blackthorn and are established for the purpose of enhancing the value, desirability and attractiveness of Blackthorn and every part thereof. ARTICLE I DEFINITIONS Unless the context otherwise specifies or requires, the words and terms defined in Article I shall, for all purposes of this Declaration, have the meanings herein specified. 1.1 Applicant. "Applicant" shall mean an Owner or the agent of an Owner or a Person possessing valid power of attorney or other proxy or authorization of an Owner, sufficient in the reasonable judgment of the Committee to empower such person to act on Owner's behalf for the purposes of Article V hereof. 1.2 Architect. "Architect" shall mean a person holding valid and effective license to practice architecture in the State of Indiana. 1.3 Architectural and Site Plan Review Committee. "Architectural and Site Plan Review Committee" (hereinafter sometimes referred to as the "Committee ") shall mean the so named Committee as originally created by Article V of these Covenants. 1.4 Authority. "Authority" shall mean the South Bend Redevelopment Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft Authority, as Owner of the real property herein referred to as Blackthorn. 1.5 Beneficiary. "Beneficiary" shall mean with respect to any Deed of trust on any portion of the Property, the holder of Record of the security interest under such Deed of Trust. The word, "Beneficiary," shall also include a mortgagee under a mortgage. 1.6 Blackthorn. "Blackthorn" shall mean the real property described in "A" hereto and such additional real property as may be added from time to time as hereinafter provided. 1.7 Board. "Board" shall mean the Board of Directors of the Owner's Association of Blackthorn as created by this Declaration. 1.8 Building. "Building" shall mean and include the principal structure or structures on any Site, including all projections or extensions thereof, as well as all garages, outside buildings, decks and other ancillary structures and facilities. 1.9 City. "City" shall mean the City of South Bend, State of Indiana. 1.10 Covenants. "Covenants" shall mean the covenants and restrictions set forth in this Declaration and as it may be amended or supplemented from time to time. 1.11 Commission. "Commission" shall mean the South Bend Redevelopment Commission as Owner and /or Lessee of the real property known as Blackthorn and as the Declarant of these Covenants. 1.12 Declarant. "Declarant" shall mean the Authority and /or the Commission, their successors and assigns, and Declarant's assigns shall be deemed to include any party whom Declarant designates, by means of a notice of Record in the Official Records, as the party who, from and after the date such notice is Recorded, will perform Declarant's functions under this Declaration. Any such designation may be made with respect to all or any portion of Blackthorn; provided that in the event that any Person or entity is so designated as Declarant for only a portion of Blackthorn, then the right and power to make, give or take any consent, approval of action required of the Declarant under this Declaration with respect to such portion of Blackthorn, shall be deemed lodged solely and exclusively in the Person or entity so designated as Declarant with respect to such portion of Blackthorn, and any Declarant of any other portion of Blackthorn shall have no right, power or authority hereunder with respect thereto. 2 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft 1.13 Guidelines. "Guidelines" shall mean the written Development Guidelines made known by the Declarant to guide the development of Sites as the same may be modified or supplemented by the Declarant or the Committee, from time to time, which set forth in much greater specificity and detail design standards and requirements for the construction and maintenance of Improvements on a Site, which Guidelines shall be referred to by Declarant and the Committee in determining the acceptability of a particular proposed Improvement and /or use of a Site. 1.14 Improvements. "Improvements" shall mean and include without limitations, Buildings, structures, Signs, Site Furniture, driveways, parking, paved areas, grading changes, and all other structures or improvements of any type and kind, and any and all alterations and changes to a Site. Landscape Professional. `landscape Professional "shall mean a person holding valid and effective license to practice landscape architecture in the State of Indiana, or having seven years of experience in landscape planning and design 1.15 Lot. "Lot' shall mean any parcel of real estate contained within Blackthorn as divided or subdivided on a Subdivision Plat or map Recorded in the Official Records. 1.16 Occupant. "Occupant' shall mean any Person, other than an Owner, and the successors and assigns of any thereof that is in possession of or otherwise occupying one or more Sites, at any particular time, whether as a lessee, sublessee, licensee or pursuant to any lease, sublease, license or other right of occupancy with or through the Owner of such Site or Sites. 1.17 Official Records. "Official Records" shall mean the records of the Office of the Recorder, St. Joseph County, Indiana. 1.18 Office - Corporate Office. "Corporate Office" shall mean space within a floor plan in which the actual work conducted can only be carried out in an office environment. 1.19 Office - Support Office. "Support Office" shall mean space within a floor plan in which the heating, air conditioning, lighting, and general work environment are consistent with or adaptable to general office uses or where the actual work conducted can be carried out in an office environment. 1.20 Owner. "Owner" shall mean, at any time, any Person, including the Declarant, and the successors and assigns of any thereof, that owns fee 3 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft simple title to one or more sites, as shown by the Official Records; provided, however, that a Beneficiary shall not be deemed to be an Owner so long as its interest in the particular Site or Sites is for purposes of security only. 1.21 Owner's Association. "Owner's Association" (sometimes referred to as the "Association ") shall mean the association of Owners created and described in Article VII. 1.22 Person. "Person" shall mean an individual, group of individuals, corporation, partnership, trust, unincorporated business association or such other legal entity as the context in which such term is used may imply. 1.23 Record /Recorded. "Record" or "Recorded" shall mean, with respect to any document, the recording of said document in the Official Records. 1.24 Sign. "Sign" shall mean any structure, device or contrivance and all parts thereof which are erected or used for advertising, directional or identification purposes or any poster, bill, bulletin, printing, lettering, painting, device or other advertising of any kind whatsoever, which is placed, posted or otherwise fastened or affixed to the ground and /or structure within Blackthorn. 1.25 Site. "Site" shall mean a contiguous area of land within Blackthorn which is owned of Record by the same Owner, whether shown as one Lot or as a combination of contiguous Lots or portions of contiguous lots on any Recorded subdivision plat or Recorded survey map of all or any portion of Blackthorn. 1.26 Site Amenities. "Site Amenities" shall mean any man -made or natural object used on the Site for decorative or incidental purposes and which is not a Building, Sign, paved area or landscaping. By way of illustration and not limitation flagpoles, fountains, statues, benches, tables and decorative walls are "Site Amenities. " 1.27 Street. "Street" shall mean any publicly dedicated thoroughfare within or adjacent to Blackthorn and shown on any Recorded subdivision map or survey. 1.28 Trust Deed and Mortgage. "Trust Deed" and "Mortgage" shall each mean, an instrument which has been Recorded and which creates a lien on the portion of the Property or leasehold estate in the Property described therein. 4 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft ARTICLE II CHARACTER & PURPOSE 2.1 Character and Purpose. This Declaration is made to ensure the proper use and development of the Blackthorn Corporate Park. It is the intent of this Declaration to ensure that the development of Blackthorn will have minimal impact on the natural landscape, vegetation and wildlife. Blackthorn will be maintained as a premier business environment for office, support office /research and general business uses in a natural setting, with Guidelines to promote only the highest quality development. It is also the intent of this Declaration to protect Owners and Occupants of Blackthorn against improper and undesirable uses and against construction of Improvements built of substandard design or materials. This Article II shall be used by the Authority, the Commission, the Association and the Committee as a general standard in interpreting the provisions of this Declaration and judging performance hereunder, in the preparation and revisions of the Guidelines, in approving or disapproving the development of Sites, and in carrying out the overall development of Blackthorn. ARTICLE III DEVELOPMENT RESTRICTIONS 3.1 Subdivision. No Lot shall be subdivided and no Lot's size, dimensions or boundaries shall be modified, changed or altered, whether by conveyance, lease, dedication, foreclosure proceedings, forfeiture or any other means, except as approved in Section 3.5 below. 3.2 Improvements to a Lot. No Improvements shall be made to any Lot without the prior approval of the Committee in accordance with the requirements of Article V below. 3.3 Use of Lots. Each owner shall use its Lot for only such purpose of purposes which are approved by the Committee and /or the Commission in accordance with the requirements of Article IV below. All uses of a Lot and all Improvements to a Lot shall be in compliance with all local, state and federal laws, ordinances, statues and other governmental regulations or approvals applicable to the Lot or the Owner. 3.4 Rezoning and Variances. No Owner shall request or seek, in any manner, 5 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft a rezoning of its Lot or a variance from or special exception to any applicable zoning ordinances, except as provided in Section 3.5 below. 3.5 Exceptions to Section 3.1 or 3.4 Restrictions. An Owner may submit to the Commission, or the Board when the Declarant owns less than five percent (5 %) of Blackthorn, a request to subdivide the Owner's Lot or otherwise modify, change or alter the Owner's Lot size, dimensions or boundaries or to seek the rezoning of the Owner's Lot or a variance from or special exception to any zoning requirements for the Owner's Lot. Any such request shall be in writing and delivered to (a) the Commission, so long as the declarant owns at least five percent (5 %) of the land area in Blackthorn, or (b) if the Declarant no longer owns at least five percent (5 %) of the land area in Blackthorn, the Board with notification to the Commission a. If the request is made to the Commission, the Commission and the Board shall approve or reject such request within sixty (60) days of Commission's Receipt of the request. The Commission shall have the right in its sole and absolute discretion to accept or reject such request. Any such request shall be deemed rejected unless the Commission notifies the requesting Owner of approval within such sixty (60) day period. b. If the request is made of the Board, the Commission and the Board shall review the request and either accept or reject the request in writing or submit the request to a vote at a special meeting of the members of the Association. The Board's action shall be taken within sixty (60) days of its receipt of the request. If the Board fails to take action within said sixty (60) day period, the request is deemed rejected. If the Board submits the request to a vote of the Association members, the special meeting shall be held within ninety (90) days of the Board's receipt of the request. The request will be approved only upon a majority vote in favor of the approval. Any such request shall be deemed rejected unless so approved within the ninety (90) day period provided above. 3.6 Declarant Owned Lots. The restrictions contained in Section 3.1 and 3.4 shall not apply in any manner to Blackthorn Lots owned by the Declarant. Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft ARTICLE IV USE RESTRICTIONS 4.1 Prohibited Uses. Any use that, in the opinion of the Commission or the Committee, could produce adverse effects upon Blackthorn in terms of the health, safety or welfare of Persons; or which may be harmful to the Improvements thereon; or which in the opinion of the Committee does not agree with the intent of the development plan for Blackthorn as generally described in Article II hereof and in the Guidelines; is prohibited, including without limitation, the following: a. noxious, toxic or corrosive fumes, gases, or discharges b. smoke or offensive odors C. ground conditions which will produce dust noise and /or vibration e. intense glare or heat outdoor storage of any type g. drive -up facilities of any type convenience stores and gas stations, or any type of automotive service free standing restaurants adult uses, as defined by the South Bend Municipal Code as of the date of the adoption of these Covenants k. outdoor advertising signs, commonly referred to as billboards (Amended 6116195, Doc. # 9520538 & # 9520537) 4.2 Uses not specifically permitted. Uses not specified as permitted are prohibited unless approved by the Commission. 4.3 Limitations on Truck Traffic. Truck Traffic in Blackthorn is limited to delivery service required for normal, day to day operations. Trucks with more than three (3) axles or over ten thousand (10,000) pounds gross vehicle weight (particularly semi - trailer trucks) are prohibited from general business activity in Blackthorn. Uses which would require daily use of Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft such trucks are prohibited uses 4.4 Permitted Uses. For the purposes of setting for the permitted and prohibited uses of Blackthorn, Declarant has divided the permitted uses into four use categories designed as (A) "Corporate Office ", (B) "Support Office /Research ", (C) "Hotel," (D) "Conference and Catering" and (E) "Educational Use." (Amended 2118194 - Doc. # 9410875 & Doc. # 9408339; amended 7117196 — Doc #9707058; amended 4/12111— Doc #1112455) 4.5 Use Designation. The Commission will designate the use of each platted Lot in Blackthorn according to the use map illustrated in Exhibit "B." No Owner may change the designated use of a Blackthorn Lot or establish or suffer a prohibited use on a Blackthorn Lot, as defined in this Declaration. 4.6 Request for Re- designation. An Owner may submit to the Commission, or the Board when the Declarant owns less than five percent (5 %) of Blackthorn, a request to re- designate the use of the Owner's Lot or otherwise modify, change or adjust the established or existing use of the Lot. Any such request shall be in writing and delivered to (a) the Commission, with notification to the Board so long as the Declarant owns at least five percent (5 %) of the land area in Blackthorn, or (b) if the Declarant no longer owns at least five percent (5 %) of the land area in Blackthorn, the Board with notification to the Commission a. If the request is made to the Commission, the Commission and the Board shall approve or reject such request within sixty (60) days of Commission's receipt of the request. The Commission shall have the right in its sole and absolute discretion to accept or reject such request. Any such request shall be deemed rejected unless the Commission notifies the requesting Owner of approval within such (60) day period. b. If the request is made of the Board, the Board and the Commission shall review the request and either accept or reject the request in writing or submit the request to a vote at a special meeting of the members of the Association. The Board's action shall be taken within sixty (60) days of its receipt of the request. If the Board fails to take action within said sixty (60) day period, the request is deemed rejected. If the Board submits the request to a vote of the Association members, the special meeting shall be held within ninety (90) days of the Board's receipt of the request. The request will be approved only upon a majority vote in favor of the approval. Any such request shall be deemed rejected unless so approved within the ninety (90) day period provided above. Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft 4.7 Description of Uses. The following describes each of the four use categories. Parking structures are excluded from the calculation of the total gross floor area of a building. 4.7.1 Corporate Office. Lots designated "Corporate Office" are permitted to have only Buildings in which office space totals at least seventy - five percent (75 %) of the total gross floor area of the Building. Retail use as part of a permitted Building is permitted so long as the total floor are dedicated to retail use is less than ten percent (10 %). 4.7.2 Support Office /Research. Lots designated "Support Office /Research" are permitted to have any use permitted on a Corporate Office Lot. At least thirty -three percent (33 %) of the floor area of any Support Office /Research Building must be dedicated to office space. Other permitted uses on Support Office /Research designated Lots include: a. Free standing health, recreational and athletic clubs and facilities b. Free standing day care facilities. 4.7.3 Hotel. The use of the Lot designated "Hotel" is limited to hotel or motel Buildings. Other hospitality uses, such as; health, recreational and athletic clubs and facilities, restaurants and lounges, and retail are permitted uses as part of a permitted hotel or motel Building. (Amended 2118194 - Doc. # 9410875 & Doc. # 9408339) 4.7.4 Conference and Catering. Conference and Catering uses, which shall include, on -site dining and sit -down restaurant facilities, but shall not include fast -food or drive - through restaurant facilities, are limited to Lot 1A, Blackthorn Corporate Office Park Minor Subdivision #3 recorded as Document Number 9536275 in the Office of the Recorder of St. Joseph County, Indiana on October 30, 1995, as indicated at Exhibit B. (Amended 7117196 - Doc. # 9707058) 4.7.5 Educational Use. Educational Use shall include such Educational Use, including the operation of a middle school (grades 7 -9) and high school (grades 10 -12), as well as adult education programs, as is authorized in areas zoned as "LI Light Industrial" per S.B. Municipal Code Section 21- 04.01(a)(1)(B). (Amended 4/12/11 - Doc #1112455) 4.8 Lot Size. No Blackthorn Lot shall be smaller than two (2) acres in size, 9 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft except where designated on Exhibit "C" where no Lot will be smaller than one (1) acre in size. ARTICLE V ARCHITECTURAL AND SITE REVIEW COMMITTEE 5.1 Establishment of Committee. There is hereby established and created the Architectural and Site plan Review Committee (the "Committee ") for Blackthorn. The Committee shall be a standing Committee of the Association. The Committee shall consist of three (3) members, all of whom shall be appointed by the Commission so long as the Declarant owns at least five percent (5 %) of Blackthorn. Thereafter, the Board shall appoint from time to time, but at least once very three (3) years, two (2) individual representatives of the Association to serve on the Committee. The Commission shall reserve the right to appoint one (1) individual representative of the Commission to serve on the Committee until such time the Commission relinquishes such rights in writing. The individual Committee members do not have to be members of the Association. 5.2 Necessity of Architectural and Site Plan Review and Approvals. No Improvements, of any kind, shall be commenced, constructed, erected, placed, altered, maintained, or suffered upon any Blackthorn Lot, nor shall any addition, change, or alteration thereon or thereof be made without the prior approval of the Committee. The Committee shall review proposed plans and specifications for compliance with the Covenants and Guidelines and shall use its discretion to insure that all Improvements harmonize with other existing or proposed Improvements to Blackthorn with respect to external design, color scheme, shape, height, type of materials, quality of workmanship, location, topography, finish grade elevation, preservation of views, natural resource conservation, circulation patterns, vehicular access, pedestrian circulation, parking, landscaping and easements so that development will further the purposes of Article II hereof. From time to time, the Committee may recommend amendments to the Guidelines to the Commission. The Commission must act within thirty (30) days of receiving the recommendation. The Committee shall report to the Association any amendments made to the Guidelines. 5.3 Right to Disapprove Similar Plans. Declarant hereby acknowledges that the Committee, in the exercise of the reasonable judgment of the members thereof may from time to time approve plans and specifications for an Improvement which, after completion, produces an effect and /or 10 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft gives the appearance which, in retrospect, is determined to be inconsistent with the intention of Article II hereof. Therefore, Declarant hereby declares that the construction of an Improvement pursuant to plans and specifications approved by the Committee shall not be deemed to create any right whatsoever on the part of any party to demand or require, either by legal proceedings or otherwise, that the Committee approve plans and specifications which are either identical to or substantially the same as plans and specifications previously approved by the Committee for other Improvements, and the Declarant and the Committee hereby reserves the right to disapprove subsequently presented plans and specifications similar or identical to those previously approved. 5.4 Application for Approval. The Application for Approval is a two step process: Step 1.The Applicant shall submit a conceptual analysis of the proposed development to the Committee for preliminary review. This shall include: building elevation, types of materials, and a site plan. Step 2. Plans and specifications and an application requesting approval thereof shall be submitted to the Committee at the expense of the Applicant and prior to submission to the City and /or State of Indiana for building permits. Applicants must submit three sets of plans and specifications to the Committee. Such plans and specifications shall include: a. Architectural plans and specifications including Building elevations, types of materials, exterior colors, exterior Lot lighting, a brief description of mechanical and structural systems, floor plans and roof construction and appurtenances; b. A Site plan showing the location and design of all Improvements, including without limitation: lighting plan, number, size and layout of parking spaces, ingress /egress, setbacks, grading, drainage, easements, utilities, sign locations, refuse collection, and bike paths; C. Complete landscaping plan showing type, species, variety, location and size (at installation) of all plantings including trees, shrubs, turf (seed or sod), irrigation plans and natural conservation areas; Final Landscaping plan to be reviewed by the Architectural and Site Plan Review Committee 11 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft d. Sign and /or Signage plans showing size, height, design, color, materials, location, construction and lighting with respect to each intended Sign; final sign and /or signage plans to be reviewed by the Architectural and Site Plan Review Committee e. Site Amenities specifications showing size, height, design, color, materials, location, construction with respect to each piece of Site Furniture; g. Such other information as the Committee may require which is pertinent to the evaluation of the plans and specifications. 5.5 Variances. In addition to the plans and specifications, the Applicant shall set forth separately and in specific detail any and all variances it desires from the Covenants and Guidelines. The Committee may recommend any variance to the Commission, who will act on the recommendation within 15 days of receiving the recommendation. No variance shall be granted when the result of such variance would be contrary to or inconsistent with the Covenants any applicable zoning or subdivision control ordinance, or other law, ordinance, rule or regulation of a public authority. 5.6 Application and Approval Process. The Committee will approve or disapprove all plans and specifications and requests for variances within thirty (30) days after receipt of the items described in Section 5.4 hereof-. 5.6.1 In the event the Committee fails to approve or disapprove such plans and specifications or requests for variances within thirty (30) days after recei t b the Committee of said plans and specifications , then such plans and specifications shall be deemed rejected. 5.6.2 The Committee reserves the right to approve plans and specifications subject to specific changes, alterations, or adjustments recommended by the Committee. If the Applicant accepts the specific changes, alterations, or adjustments, the Applicant will resubmit only those items as listed in Section 5.4 which are affected by such changes, alterations, or adjustments within thirty (30) days of the Applicant's receipt of the notice of temporary approval. 5.6.3 In the event the Committee disapproves an Applicant's plans and 12 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft specifications, the Committee may provide the Applicant with recommended changes, alterations or adjustments to the plans and specifications needed to gain Committee approval. 5.6.4 The Committee may retain the services of such professional as architects or attorneys as may be necessary to advise the Committee on technical issues. 5.6.5 If any Improvement is changed, modified, or altered without prior approval of the Committee, then the Declarant or the Association will require the Owner to cause the Improvements to be restored to comply with the plans and specifications originally approved by the Committee and the Owner shall bear all costs and expenses of such restoration, including the costs and reasonable attorney's fees of the Committee. In the event such costs or any other expenses of the Committee pursuant to any other provisions of this Declaration are not paid by the Owner, they shall become a lien of the Association on the Lot, pursuant to Section 6.7 herein. 5.6.6 anything herein to the contrary notwithstanding, if any Improvement is erected or constructed on any Site without the prior compliance with the provisions of this Declaration or if any Improvement shall be erected or constructed other than in accordance with approvals with respect thereto previously granted by the Committee, then, and in either of such events, the Association or Declarant may enforce the provisions of the Declaration including those set forth in Articles IX hereof. The Owner is required to promptly commence and to diligently prosecute to completion the construction of all approved Improvements in accordance with the approved construction schedule and to secure additional approval for any delay. 5.6.7 Nothing herein shall be construed as a waiver of Applicant's obligation to comply with all statutes, ordinances, codes, rules and regulations of all public authorities having jurisdiction, or of Applicant's obligation to secure all required permits and licenses required by such public authorities at Applicant's expense. 5.7 Liability. Neither the Committee, the Commission, the Authority, the City or the Association or their respective successors, assigns, or employees, shall be held liable in damages to anyone submitting plans and specifications to them for approval, or to any Owner affected by this Declaration, by reason of mistake in judgment, negligence or nonfeasance arising out of or in connection with the approval, disapproval or failure to approve any such plans and specifications. Every person who submits 13 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft plans and specifications to the Committee for approval agrees, by submission of such plans and specifications, and every Owner or Occupant of any Blackthorn Lot, by acquiring title thereto, or an interest therein, that they will not bring any action or suit against the Committee, the Commission, the Authority, the City or the Association to recover any such damages. 5.8 Limitation of Action. Notwithstanding anything to the contrary herein contained, after the expiration of one (1) year from the date of issuance of a building permit by the appropriate governmental authority for any Improvement, or three (3) months after the completion of any Improvement, whichever is later, said Improvements shall, in favor of purchasers and encumbrances, be deemed to be in compliance of this Article, unless actual notice of noncompliance or non - completion, executed by the Association, shall appear of Record of the Official Records, or unless legal proceedings shall have been instituted to enforce compliance or completion. ARTICLE VI OWNER'S ASSOCIATION AT BLACKTHORN 6.1 Formation of Association. The Declarant shall cause to be incorporated a not- for - profit corporation under the laws of the State of Indiana, to be called the Owner's Association at Blackthorn. The Association shall be governed in accordance with the Articles and Bylaws of its incorporation. The Bylaws may further define the rights and obligations of the Association and its members, but this Declaration shall govern, in the event of an inconsistency between these Covenants and the Bylaws. 6.2 Purposes of the Association. The purposes of the Association are as follows: a. to enforce these Covenants; b. to maintain certain common landscaped areas; C. to receive, account for and budget funds belonging to and /or entrusted with the Association, including without limitation: _ = dues or assessments for the operation, maintenance and /or benefit of the Owners at Blackthorn; to pay the expense of the Committee as budgeted herein; 14 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft e. to appoint the members of the Committee from and after the date the Declarant ceases to make such appointments; to assume such other obligations with respect to Blackthorn as the Association deems appropriate; and g, to assume such other purposes ad the Declarant may deem necessary or appropriate to enable the Association to carry out the purpose and intent of this Declaration. 6.3 Members. Each Owner and a representative of the Declarant, so long as the Declarant owns any portion of Blackthorn, shall automatically be and become a member of the Association. Membership in the Association is compulsory for Owners other than the Declarant. The Association is entitled to carry on such business as is authorized by its Articles and Bylaws, including, but not limited to, the powers granted the Association under this Declaration. 6.4 Voting Rights. Each Owner, including the Declarant shall be entitled to one (1) vote per acre of land in the Owner's Lot. However, each Owner will be entitled to only one (1) vote per Lot under the following circumstances: a. when voting to appoint any Board member; b. when voting to amend these Covenants, the Guidelines or the Bylaws of the Association; C. when voting as stated in Sections 3.5 and 4.6; and d. under special elections as determined by the Board. The Declarant may waive its right to vote on any issue or question called before the Association. 6.5 Management. The Association shall be managed by its Board of Directors in accordance with the Articles and Bylaws of the Association. The Board shall consist of three (3) directors who are appointed by the Declarant and shall serve on initial terms of one, two and three years, respectively. Succeeding directors shall each serve a term of three (3) years. The Declarant shall retain the right to appoint: a. three (3) directors so long as the Declarant owns not less than twenty -five percent (25 %) of the total land area of Blackthorn; (exclusive of areas dedicated to public authority and landscaped 15 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft areas); and b. two (2) directors so long as the Declarant owns not less than fifteen percent (15 %) of the total land area of Blackthorn; (exclusive of areas dedicated to public authority and landscaped areas); and C. one (1) director until such time the Declarant relinquishes its right to appoint a director of the Association. Any director not appointed by the Declarant shall be elected by the Owners at times and in a manner pursuant to the Bylaws of the Association and Section 6.4 herein. 6.6 Assessments. As a member of the Association, each Owner by acquiring legal or equitable title to a Lot, agrees for itself, its heirs, personal representatives, successors and assigns, to pay the Association any dues, assessments, charges, costs or fines, as may from time to time be levied by the Association for any lawful reason. 6.7 Failure to Pay Assessments. In the event an Owner fails to pay any dues, assessments, charges, costs or fines tendered by the Association to it, or its successors and assigns, the Association will serve the Owner with a notice of delinquency. The Owner will, within thirty (30) days after receipt of such notice, pay the Association no less than the delinquent amount. If at the end of such thirty (30) day period the Owner has not paid the amount due to the Association, interest will be added to the delinquent amount at an annual rate equal to the maximum legal rate or three percent (3 %) above prime as reported in the Wall Street Journal, whichever is lower. The rate will be adjusted annually on the anniversary date of said notice of delinquency. The owner will be liable for reasonable attorney's fees incurred in the collection of delinquent dues, assessments, charges, costs or fines, and any accrued interest thereon. The delinquent amount, plus accrued interest, shall automatically become a lien upon the Lot(s) of the delinquent Owner, which lien shall be superior to all claims to such Lot except mortgages and delinquent real property tax, as well as an enforceable personal obligation of the Owner. The Association, or its successors and assigns, may upon failure of an Owner to pay any statement tendered by the Association, record notice of its claim of lien against any such Lot and thereafter pursue an action to foreclose said lien in any manner now or in the future permitted by law or equity. The Association may, in addition to, or instead of, foreclosure, obtain a personal judgment against the Owner. 16 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft ARTICLE VII COMMON AREAS AND EASEMENTS 7.1 Common Areas. Common Areas in Blackthorn shall consist of all real and /or personal property which the Declarant and /or the Association owns or has an interest in for the common use of the members of the Association, including, but not limited to, landscape, entry features, drainage, landscape medians, security, safety, bicycle paths, roads, project lighting and recreational areas or any other use to which a majority of the membership of the Association may accede. Common Areas, as described and defined in Exhibit "D," will also include the strip of land between the outer edge of the curb and the edge of the right -of -way line along all Public Rights of Way. Improvements including, without limitations, Signs and landscaping will be designed and constructed by the Declarant at such time Declarant sees fit. Common Areas will be maintained by the Association, until such time as the adjacent property is developed. 7.2 Reservation of Landscape Easements. The Declarant hereby reserves unto itself, its successors, successors in interest and assigns a perpetual easement under, over, along, across and upon those areas of Blackthorn that is within thirty feet of all Public Rights -of -Way as Landscape Easement Areas for the purposes and uses which in the Declarant's sole judgment are reasonable in order to create and maintain such attractive landscape areas in furtherance of this Declaration. These said purposes and uses may include without limitation: entering upon, planting, locating, installing, replanting, relocating, reinstalling, maintaining, removing, treating, repairing, irrigating, fencing and husbanding all trees, hedges, shrubs, bushes, plantings, plants, grasses, flowers and other vegetation, as well as the installation and use of Bike Paths as stated in Section 8.4 herein. 7.2.1 Exclusive use by the Declarant of the Landscape Easement Areas is not hereby reserved. The Owner's right to use the Landscape Easement Areas is not hereby reserved. The Owner's right to use the Landscape Easement Areas for purposes not incompatible with their use for landscaping and for uses not incompatible with the other Covenants set forth in this Declaration is hereby granted. In the event of a conflict between the use of such areas for the purposes set forth in this Declaration and a different use by the Owner or Occupant of a Site, the use for the purposes set forth in this Declaration shall prevail. 17 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft 7.2.2 The Declarant for itself, its successors, successors in interest and assigns expressly reserves the right to assign all or any of the easements hereby created and all its right, title and interest therein to any third party including without limitation the City, other public authorities or the Association. No such assignment or the acceptance thereof will extinguish, limit or modify the easements hereby created unless expressly so stated in such instrument. 7.2.3 All the provisions of these easement reservations, including the benefits and burdens, run with the land and are binding upon and shall inure to the benefit of the successors, successors in interest, assigns, heirs, tenants, and personal representatives of the Owners and Occupants from time to time of Blackthorn. 7.2.4 The rule of strict construction does not apply to the easement reservations herein above set forth. Such reservations shall be given a reasonable construction so that the intention of the Declarant as set forth in Article II of the Declaration is carried out. 7.3 Reservation of Conservation Easements. In furtherance of Article 11 herein, the Declarant may reserve unto itself, its successors, successors in interest and assigns a perpetual easement under, over, along, across and upon certain areas of Blackthorn to be known as Conservation Easement Areas for the exclusive purpose and use of conserving portions of Blackthorn in its pre - development, natural state and to further the intent of this Declaration. It is the intent of these Conservation Easement Areas to preserve certain unique natural systems located within Blackthorn. 7.3.1 Upon review of the plans and specifications for proposed improvements, the Committee may decide to reserve no more than ten percent (10 %) of the area of a Lot as a Conservation Easement. The Conservation Easement will be included in the calculation as part of the Open Space requirement as described in the Guidelines. An Owner may reserve for the Declarant, as much as twenty -five percent (25 %) of the Owner's Lot as a Conservation Easement, upon approval of the Committee. 7.3.2 No alterations, modifications, or changes, including without limitation; planting, locating, installing, removing, treating, repairing, irrigating, may be made to any natural system found in such Conservation Easement, nor shall any man -made Improvement be built, constructed, erected or suffered within the boundaries of such Conservation Easement, nor shall the Owner, its representatives, successors, successors in interest and assigns, or employees, or 18 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft the Declarant, assigns, or employees, attempt to mow, prune, irrigate, scythe or otherwise or artificially maintain the natural systems found in such Conservation Easement without prior written approval of the Committee. 7.3.3 All the provisions of these easement reservations, including the benefits and burdens, run with the land and are binding upon and shall inure to the benefit of the successors, successors in interest, assigns, heirs, tenants, and personal representatives of the Owners and Occupants from time to time of Blackthorn. 7.3.4 The rule of strict construction does not apply to the easement reservations herein above set forth. Such reservations shall be given a reasonable construction so that the intention of the Declarant as set forth in Article II of the Declaration is carried out. 7.4 Installation and Maintenance Responsibilities of Landscape Areas. In furtherance of the purpose of these Declarations as stated in Article II herein, the following establishes installation and maintenance responsibilities of the Common Areas, the Landscape Easement Areas, Open Space and Parking Landscape Areas, and Conservation Easement Areas. 7.4.1 Common Areas. All those areas shown as "Common Areas" on Exhibit "D" initially will be landscaped and certain decorative Improvements constructed thereon by the Association. However, the Owner of developed lots may supplement these plantings on the Common Areas adjacent to their site. After initial installation, the landscaping shall be maintained by the Association in accordance with the provisions of this Declaration and the Guidelines. The lawn in the Common Areas between the outer - edge of the curb and the right -of -way line of all Public Rights of Way, when adjacent to a developed Blackthorn Site, will be maintained by the Owner of said Site. 7.4.2 Landscape Easement Areas. All those areas shown as "Landscape Easement Areas" on Exhibit "E" initially will be landscaped and certain decorative Improvements constructed thereon by Owner in accordance with the plans and specifications submitted to and approved by the Committee. After initial installation the landscaping in such areas shall be maintained by the Owner until such landscaping has remained healthy for a minimum of twelve (12) consecutive calendar months. Thereafter, the Association shall maintain landscaping in accordance with the provisions of this Declaration and the Guidelines. 19 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft 7.4.3 Open Space and Parking Landscape Areas. All those areas described as Open Space and Parking Landscape Areas in the Guidelines shall be landscaped by the Owner in accordance with the plans approved by the Committee. The landscaping in such areas shall be maintained by the Owner until such time as a Certificate of Completion is issued. Thereafter, the lawn in the Open Space and Parking Landscape Easement Area will be maintained by the Owner of said Site. The plantings in the Open Space and Parking Landscape Areas will be maintained by the Association in accordance with the provisions of this Declaration and the Guidelines. (Amended 3/2/07 - Doc # 0716486) 7.4.4 Conservation Easement Areas. Conservation Easements are established in this Declaration to preserve and protect the natural systems found in Blackthorn. No Improvements or alterations of any type are to be made to the Conservation Easement Areas. The Owner must protect the natural systems found in the Conservation Easement from any external, man -made interference; including without limitation; construction processes, site and parking lot drainage, lawn chemicals and snow storage. Artificial maintenance of the vegetation in said Conservation Easement Areas is prohibited without prior written approval of the Committee. 7.5 Owner's Rights of Enjoyment. Every Owner shall have a right and easement of enjoyment in and to the Common Area which shall be appurtenant to and shall pass with the title of portions of the Property, subject to the following: a. All provisions of this Declaration and of the Bylaws of the Association; b. Rules and regulations governing use and enjoyment of the Common Area adopted by the Association; and C. Restrictions contained on any and all plats of any part of the Common Areas or filed separately with respect to all or any part of Blackthorn. ARTICLE Vlll REGULATION OF IMPROVEMENTS 8.1 Construction and Maintenance of Improvements. Improvements on any 20 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft Site shall be constructed and maintained by the Owner or the Occupant of such Site in accordance with the applicable approved standards and limitations set forth herein and in the Guidelines, including, but not limited to standards relating to building height, construction materials, exterior wall finish, concealment of exterior electrical and mechanical apparatus, equipment and fixtures, lighting and accessory structures, driveways, loading facilities, landscaping, parking, storage, fences, sound systems, Site Furniture and Signs. 8.2 Building Setback Areas. Except as hereinafter provided, no Improvement or any portion thereof shall be permitted within the Building Setback Areas as herein defined except for Improvements below the surface of the ground, landscaping, Signs, driveways which do not run parallel to an existing rights -of -way, walks, and bike paths. 8.3 Bike Paths. Owners are - encouraged to construct a bike across their Site to connect with the city's multi -use trail system. The bike path must be continuous from side property line to side property line. The bike path must meet with the bike paths already constructed on adjacent Sites. The path must be constructed in accordance with the provisions of the Guidelines. 8.4 Parking. Parking shall not be permitted on Streets. It shall be the responsibility of each Owner and Occupant to provide sufficient Parking facilities on its respective Site to serve the Businesses conducted thereon without the need for any on- street parking. Said facilities shall be designed, constructed, landscaped, screened and maintained in accordance with the applicable standards provided in the Guidelines. If parking requirements increase for any Site as the result of a change or an expansion in use or number of employees, additional off - street parking shall be provided by the Owner or Occupant in accordance with the preceding provisions. No parking, visitor or employee, shall be permitted in the Setback Area. 8.5 Mail Delivery. The Owner and each Occupant shall make provisions for mail delivery on each Site as stated herein. All Site must have one reserved, ten - foot -wide parking space near the main entrance of each building for use by postal delivery vehicles. A single delivery point must be established within each building within ten (10) feet of the main entry door. Each Owner will be required to establish interior mail handling facilities on the ground floor of all multi- tenant buildings and to provide for the distribution of mail within each building. In multi- tenant buildings that have multiple entries and no suitable common area lobby, the Owner must 21 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft establish a convenient exterior drop point to accommodate mail delivery. 8.6 Loading and Servicing Areas. No loading or servicing areas shall be located between a Building and any Street or shall be visible from any public street, bike path, or adjacent properties. All loading and unloading of materials from vehicles shall be conducted entirely upon the Sites. No loading facilities shall be placed so as to permit loading vehicles to extend beyond the Site boundary line. 8.7 Signs. No Signs, as defined herein and in the Guidelines, or other advertising devices of any character shall be permitted upon any part of a Building, or a Site, except with the prior written approval of the Committee. Such Signs and other advertising devices shall be approved only if their size, design, color, texture, illumination, number, locations, means of support and construction and other characteristics conform with the standards prescribed from time to time by the Guidelines. In this regard, any Owner or Occupant which desires to erect any Sign or advertising device shall first submit plans therefor to the Committee in a form sufficient to convey the total impression created by the device. The provisions of this Article VIII, Section 8.7 shall not affect the Use Restrictions set forth at Article IV, Section 4.1(k) hereinabove. (Amended 6116195, Doc. # 9520538 & # 9520537) 8.8 Site Amenities. No Site Amenities as defined herein and in the Guidelines, of any type shall be permitted without the prior written approval of the Committee. Design of such Site Amenities shall compliment the architectural design of the Building and the landscape design of the Site. Any Owner or Occupant who desires to place any type of Site Amenities on a site must first submit specifications and plans for such Site Amenities to the Committee. Said plans and specifications should include the style, color, material, texture, number, site locations and any other information about the character of said Site Amenities 8.9 Waste and Refuse. All waste materials and refuse shall be stored within the Building or within a four -sided enclosure screened from view from any street or lot 8.10 Landscaping Installation. Landscaping plans for all Sites shall initially be submitted in accordance with the provisions of Article V and such plans shall be implemented and completed within 120 days after occupancy or Building completion whichever occurs first, unless the Committee agrees in writing to an extension of the time permitted to complete landscaping. Every effort shall be made to preserve as many existing trees as is reasonably practicable. In the event a healthy tree of � six (6) or more inches in caliper must be removed or 22 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft destroyed to permit construction the replacement of the tree must be addressed either by installing new plantings or replacing the tree. New plant materials shall compliment the existing natural landscape and should be selected from among those varieties appearing in the Guidelines. 8.11 Outside Storage and Equipment. No vehicles, material, supplies, equipment or products shall be stored, installed or permitted to remain on any portion of Blackthorn outside a permanent structure. Temporary storage of materials, equipment and supplies in relation to and as a part of the construction of the Improvements upon a Site is permitted, provided that such materials, equipment and supplies are completely removed immediately upon completion of construction. 8.12 Fences and Walls. No fence, wall, or similar structure shall be erected or installed on any Site without the prior written approval of the Committee. Chain -link fencing is prohibited from all Blackthorn Sites without specific approval of the Committee. 8.13 Exterior Lighting. Each Owner and Occupant shall be responsible for installing, maintaining and operating adequate exterior lighting on the Site to provide for the safety of its customers and employees and all such lighting shall require prior written approval of the Committee. 8.14 Maintenance during Construction. During the construction of an Improvement, the Site on which the Improvement is being constructed and adjacent areas and Streets impacted by the construction shall be cleaned on a regular basis. All trash, rubbish and debris shall be removed from the Site within thirty (30) days of Building completion or issuance of certificate of occupancy. 8.15 Maintenance of Improvements. a. Owners and Occupants shall maintain their Improvements in good and sufficient repair and in an aesthetically pleasing manner. b. Improvements which are damaged by the elements, vehicles, fire or any other cause shall be repaired as promptly as the extent of the damage will permit. Buildings which cannot be repaired due to such extensive damage, shall be demolished within sixty (60) days of the date of the damage. C. Buildings which happen to be vacant for any reason, shall be kept secured and maintained. d. Sites shall be maintained in a safe, clean and neat condition free of 23 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft rubbish and weeds. Roads and pavements shall be kept true to line and grade and in good repair. e. Landscaping which is the responsibility of the Owner or the Occupant, as more particularly set forth in Section 7.4 herein, shall be maintained in a neat and healthy growing condition in accordance with the Guidelines. 8.16 Maintenance Compliance. If minimum maintenance standards are not met by the Owner or Occupant, the Board shall issue a notice to the Owner or Occupant requesting action. If the maintenance deficiency is not remedied within ten (10) days, the Board shall have the maintenance work performed and shall charge said Owner or Occupant all costs incurred. If such costs or any part thereof are not paid within ten (10) days after written demand therefore, the amount unpaid shall bear interest from the date thereof until the date of payment at the rate of interest set forth in Section 6.7 herein. If any such fees or costs are not paid on the due date thereof, the Association shall proceed as permitted in Article IX herein. ARTICLE IX VIOLATION OF PROVISIONS 9.1 Abatement and Suite. The Declarant, the Committee and the Association are each hereby granted the right to enter upon any Lot in Blackthorn at any reasonable time or times to inspect the same for purposes of determining compliance with Committee approved plans and specifications, the Covenants and the Guidelines. In the event any such violations and breaches are not cured within fifteen (15) days after written demand made upon the Owner or Occupant by the Declarant, Committee or Association, as the case may be, the Declarant and the Association jointly and separately have the right to enter upon the Lot upon which such violation or breach exists, and summarily abate and remove, or correct, repair or maintain, at the expense of the Owner and Occupant thereof, any Improvement, thing or condition that may be or exist thereof contrary to the intent and meaning of the provisions hereof as interpreted by the Declarant, the Committee and the Association, and the Declarant, the Committee and the Association shall not, by reason thereon, be deemed guilty in any manner of trespass or conversion for such entry, abatement, removal, correction, repair, or maintenance or incur any liability on account thereof. The Declarant, the Association and every Owner (or Occupant, but only with the respective Owner's consent) of Blackthorn are further 24 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft separately empowered to see by legal proceedings, either in law or in equity, appropriate remedies to abate or to otherwise prevent a continuing breach of any provision of the Declaration. The amounts of all expenses incurred by Declarant, the Committee and /or the Association pursuant to the provisions of this Section 9.1 which are not paid by Owner immediately on demand shall constitute a lien against the subject Site, shall bear interest until paid at the rate set forth in Section 6.7 hereof and may be foreclosed by the appropriate legal proceeding. 9.2 Attorney's Fees and Liens. If in connection with any enforcement of this Declaration, with respect to any Site, it shall be reasonably necessary to secure the services of attorneys, then the reasonable fees of such attorneys, and all other costs of enforcement shall be payable by the Owner of such Site. If such fees and other costs or any part thereof are not paid within ten (10) days after written demand therefore, the amount unpaid shall bear interest from the date thereof until paid at the rate of interest set forth in Section 6.7. If any such fees or costs are not paid on the due date thereof, the amount thereof together with interest thereon as aforesaid shall be and become a lien against such Site and may be foreclosed by any appropriate legal proceedings. In any legal or equitable proceedings for the interpretation or enforcement of or to restrain the violation of this Declaration or any provision hereof, the losing party or parties shall pay the reasonable attorneys' fees of the prevailing party or parties in such amount as may be fixed by the court in such proceedings. 9.3 Subordination of Liens. Any lien created pursuant to the provisions of this Declaration shall be subordinate to the lien of any Mortgage or Mortgages now or hereafter placed upon all or any portion of a Site or Sites which runs to an institutional lender. 9.4 Deemed to Constitute a Nuisance. The result of every action or omission whereby any Covenant set forth in this Declaration is violated in whole or in part, is hereby declared to be and shall constitute a nuisance and may be excised or abated by the Declarant, the Association, the City, any Owner (or Occupant who has been given such rights by the Owner of such Site) of a Site, or any of them. 9.5 Remedies Cumulative. All remedies provided herein or available at law or in equity shall be cumulative and not exclusive. 9.6 Failure to Enforce Not a Waiver of Rights. The failure of Declarant, or any other Person entitled to enforce this Declaration, to enforce any Covenant herein contained shall in no event be deemed to be a waiver of the right to do so nor of the right to enforce any other Covenant. 25 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft 9.7 Damages Inadequate. Damages for any breach of the Covenants are hereby declared no to be adequate compensation and such breach and /or the continuance thereof may be mandated, enjoined or abated by appropriate proceedings by any Person entitled to enforce this Declaration as provided in this Article IX. ARTICLE X ACCEPTANCE OF COVENANTS 10.1 Owner and Occupant Acceptance. Each Owner and Occupant, by the acceptance of a deed of conveyance, lease, sublease, license or other right to enter on or occupy any Lot of Blackthorn, and every other person at any time having or acquiring any right, title, interest, lien, or estate in, on or to any portion of Blackthorn, accepts the same, subject to all of the provisions of this Declaration and the jurisdictions, rights, and powers of the Declarant, the Committee, and the Association. Said Owner, Occupant and /or Person also accepts all easements, rights, benefits and privileges of every character hereby granted, reserved or created and thereby covenants and agrees for themselves, their successors, successors in interest, heirs, personal representatives and assigns to be bound by the Covenants. All obligations hereby imposed are covenants running with the land and shall bind every Owner and Occupant of every part and parcel of Blackthorn and interest therein, and every such other Person and inure to the benefit of every Owner and Occupant and such other persons and as though the provisions of the Declaration were recited and stipulated at length in each and every deed of conveyance, lease, sublease, license or other agreement granting any right of entry or occupancy, or in any other instrument or document by which any such right, title, interest, lien, or estate id created or acquired. All Covenants, and agreements contained herein are made for the direct, mutual and reciprocal benefit of each and every part and parcel of Blackthorn and shall create mutual, equitable servitudes upon each portion of Blackthorn in favor of every other portion of Blackthorn. ARTICLE XI ASSIGNMENT AND LIMITATION OF LIABILITY 11.1 Assignment of Owners. No Owner may assign all or any part of its rights, benefits, duties or obligations hereunder, except as an appurtenance to and in conjunction with the sale of the Owner's land. 26 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft 11.2 Assignment by Declarant. Any and all of the duties, rights, powers, privileges and reservations of Declarant herein contained may be assigned to any party (herein called "Successor Declarant "), either in toto or pro tanto as to any portion of Blackthorn specifically described and identified in any assignment of such duties, rights, powers, privileges and reservations, who will assume the duties of Declarant pertaining to the particular right, power and reservations assigned. Any such assignment shall be conclusively evidenced by a written assignment and acceptance thereof duly executed and acknowledged by Declarant and Successor Declarant and Recorded in the Official Records. Such Successor Declarant shall, to the extent of such assignment, have the same rights and powers and be subject to the same obligations and duties as are given to and assumed by Declarant herein. If at any time Declarant ceases to exist and has not made an assignment, a Successor Declarant may be appointed by the Board with approval of at least fifty -one percent (51 %) of the Association membership. 11.3 Limitation of Liability. Neither the Declarant, the City, the Committee, the Association or the Board or any member, staff member, consultant, director, officer, agent or employee of the Declarant, the City, the Committee, the Association or the Board shall be liable to any Owner or to any person for any loss, damage, or injury, or claim thereof, arising out of, or in any way connected with, the performance of the Declarant's, the City's, the Committee's, the Association's or the Board's duties under this Declaration unless due to the willful misconduct or bad faith of the Declarant, the City, the Committee, the Association or the Board, or any one of their directors, officers, agents, or employees, as the case may be. The Committee shall review and take action on all plans and specifications submitted to it for any proposed Improvement, including the construction, alteration or addition thereof or thereto, or any proposed property use, and shall make determinations with respect to the Character and Purpose of Blackthorn as set out in Article II herein and the provisions as set forth in this Declaration. The Committee shall not be responsible for reviewing any plans or specifications from the standpoint of structural safety, engineering soundness, or conformance with building or other codes, nor shall the Committee's approval of any plans or specifications verify the structural safety, engineering soundness, or conformance of the Improvement to the building or other codes. Furthermore, the Committee shall not be responsible or liable for structural, engineering, or other building defects in the Improvements for which plans were approved or for violations of building, zoning or other land -use codes or regulations. 27 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft ARTICLE XII MISCELLANEOUS 12.1 Amendment. This Declaration and its covenants and restrictions shall run with the land and be binding until December 31, 2023. So long as the Declarant owns any part of Blackthorn, these restrictions may be amended or extended, only in writing, and then only upon the affirmative vote of the Declarant and a majority of the members of the Association, based on voting rights established in Section 6.4 herein. At such time as the Declarant does not own any part of Blackthorn or the Declarant relinquishes rights to appoint a member of the Board, these covenants may be amended or modified by action of the Association, with voting rights as established in Section 6.4 herein. Amendments shall become effective ten (10) days after notice of adoption of said amendment, together with a copy of the recorded amendment, is mailed to all Blackthorn Owners. Notwithstanding the forgoing provisions of this Section 12.1, the easements reserved and granted in this Declaration under Article VII shall be binding perpetually, and no amendment shall modify or terminate such easements. 12.2 Termination and Extension. This Declaration shall be and remain in full force and effect until December 31, 2023 after which date this Declaration may be extended for successive periods of ten (10) years by the Recording in the Official Records a written instrument declaring the extension of the term hereof, duly executed by Declarant, if the Declarant owns some portion of Blackthorn, not including easements reserved and granted herein under Article VII, and, if the Declarant does not own any portion of Blackthorn, so described, the written instrument shall be executed and acknowledged by a majority of the members of the Association, with voting rights as established in Section 6.4. 12.3 Owner's Liability Subsequent to Sale. Upon sale of a Site, the Owner so selling shall have no further liability for the obligations with respect thereto which accrue against the Site sold after the date of conveyance, provided, however, that nothing herein shall be construed so as to relieve an Owner of any Site from any liabilities or obligations which shall have accrued prior to the date of such conveyance. 12.4 Notices. Any notice, demand, request, consent, approval, designation or other communication which any party is required or desirous to give or make to any other party shall be in writing and shall be given or made by United States registered or certified mail, return receipt requested, with postage fully prepaid thereon, and addressed to the parties at their current addresses. Any notice, demand, request, consent, approval, designation 28 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft or other communication so sent shall be deemed to have been given or made on the date delivered, or on the date delivery was refused. 12.5 Headings. The headings of the Articles and Sections hereof are for convenience only and are not intended to be part of this Declaration nor in any way to define, limit or describe the scope or intent of the particular provision to which they refer. 12.6 Singular and Plural. Words used herein, regardless of the number and gender specifically used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine or feminine, as is reasonable in the context. 12.7 Effect of Invalidation. If any provision of this Declaration is held to be invalid, the invalidity of such provision shall not affect the remaining provisions hereof. 12.8 Interpretation. The provisions of this Declaration shall be construed pursuant to the laws of the State of Indiana and shall be liberally construed to effectuate the purpose of creating a uniform plan for the development and use of the property. 12.9 Time. Time is of the essence of this Declaration. 12.10 Waiver. No waiver or failure to enforce any of the provisions of this Declaration shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver be a continuing waiver. 12.11 Binding Effect. The provisions of this Declaration will be binding on the parties hereto and their respective successors, assigns and mortgagees to the extent herein provided. 12.12 Governing Law. These Covenants shall be construed in accordance with the laws of the State of Indiana. 29 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft AMENDMENTS I. Original Declaration On March 19, 1993, the South Bend Redevelopment Authority and the South Bend Redevelopment Commission, jointly and severally established the Declaration of Protective Covenants & Restrictions for the Blackthorn Corporate Park. The Commission approved the Covenants with its Resolution No. 1147, recorded with the Office of the Recorder, St. Joseph County, Indiana as Document No. 9324608. The Authority approved the Covenants with its Resolution No. 73, recorded with the Office of the Recorder, St. Joseph County, Indiana as Document No. 9322505. IL Hotel Site Amendment The original declaration of Covenants for Blackthorn did not include the intended site for a hotel- conference center as part of Blackthorn, nor did it specifically allow for such use in Blackthorn. This amendment added Lot 3 of the Blackthorn Corporate Office Park to the Covenants definition of Blackthorn AND added the Hotel use to list of Permitted Uses in Blackthorn. The Commission approved the amendment with its Resolution No. 1232, recorded with the Office of the Recorder, St. Joseph County, as Document No. 9410875. The Authority approved the amendment with its Resolution No. 87, recorded with the Office of the Recorder, St. Joseph County, as Document No. 9408339. Ill. Billboard Amendment This amendment added outdoor advertising signs or billboards to the list of prohibited uses at Blackthorn. This Commission approved this amendment with its Resolution No. 1361, recorded with the Office of the Recorder, St. Joseph County, as Document No. 9520538. The Authority approved the amendment with its Resolution No. 98, recorded with the Office of the Recorder, St. Joseph County, as Document No. 9520537. IV. Conference and Catering Site Amendment This amendment created a fifth Permitted Use, Conference and Catering. The amendment also limits the new Permitted Use to Lot 1A of Blackthorn Corporate Office Park Minor #3. The Declarant and all current Owners approved the amendment. The Commission's approval was through its Resolution No. 1445; the Authority's approval was through its Resolution No. 108. The Amendment was recorded in the Office of the Recorder, St. Joseph County as Document No. 9707058. 30 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft V. Office /Research and Open Space and Parking Landscape Areas Amendment This amendment changed the Support Office /Research floor requirement from 50% to 33% and revised the maintenance responsibilities for open space and parking landscape areas to the Owners Association. It also removed the 3 foot minimum requirement for shrubs planted as screen. Additionally, the entire set of Protective Covenants and Restrictions and Development Guidelines were re- approved with multiple smaller changes. VI. Education Amendment This amendment, approved by Resolution No. 2868 on 4/12/11, added Educational Use as a Permitted Use on Lot 3A. Educational Use includes the operation of a middle school (grades 7 -9) and high school (grades 10 -12), as well as adult education programs, as is authorized in areas zoned as "LI Light Industrial" per S.B. Municipal Code Section 21-04.01 (a)(1)(13). The Amendment was recorded in the Office of the Recorder, St. Joseph County as Document No. 1112455. Executed copies of the above documents are available for inspection at the Redevelopment Commission's office or at the Office of Recorder, St. Joseph County. IN WITNESS WHEREOF, the SOUTH BEND REDEVELOPMENT COMMISSION, jointly and severally with the SOUTH BEND REDEVELOPMENT AUTHORITY, have declared the above and foregoing Protective Covenants and Restrictions for the Blackthorn Corporate Park. For the Declarant: SOUTH BEND REDEVELOPMENT COMMISSION Paula N. Auburn, President ATTEST: Theo F. Sharp, Secretary State of Indiana ) ) SS: St. Joseph County ) Before me the undersigned, a Notary Public, in and for said County and State, personally appeared the South Bend Redevelopment Commission, by Paula N. Auburn, and Theo F. Sharp, 31 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft President and Secretary, respectively, and acknowledged the execution of the forgoing Declaration. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day of 19_ Notary Public Residing in St. Joseph County, Indiana My Commission Expires: For the Declarant: SOUTH BEND REDEVELOPMENT AUTHORITY Joseph Wroblewski, President ATTEST. Donald K. Fewell, Secretary State of Indiana ) ) SS: St. Joseph County ) Before me the undersigned, a Notary Public, in and for said County and State, personally appeared the South Bend Redevelopment Authority, by Joseph Wroblewski and Donald K. Fewell, President and Secretary, respectively, and acknowledged the execution of the forgoing Declaration. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day of . 19_ Notary Public Residing in St. Joseph County, Indiana Commission Expires: 32 Blackthorn Corporate Park - Covenants & Restrictions 2123112 draft Exhibit "A" Lot Designation %!• i (��,1 f I I ` 1 r NORTH A part of Sections 19, 20,29 and 30, Township 38 North, Range 2 East, German Township, South Bend, St. Joseph County, Indiana: All of Lots Numbered 1, 2, 3 and 4 as defined in the recorded plat of Blackthorn Corporate Office Park, recorded as Document No. 9438010 on October 4, 1994 in the Office of the Recorder of St. Joseph County, Indiana. Lot No. 3 A part of the Southwest Quarter (SW %) of Section 20 and a part of the Northwest Quarter (NW %) of Section 29, all located in Township 38 North, Range 2 East, German Township, St. Joseph County, Indiana, more particularly described as follows: Commencing at the southwest comer of the Southwest Quarter (SW Y4) of said Section 20, also being the northwest comer of the Northwest Quarter (NW %.) of said Section 29; thence South 89 27'09" East a distance of 848.77 feet along the south line of the Southwest Quarter (SW %) of Section 20, also being the north line of the Northwest Quarter (NW %) of Section 29, thence South 00 17' 19" West 45.00 feet to a point which is 45 feel south of the north line of the Northwest Quarter (NW %) of Section 29, said line also being the centerline of Old Cleveland Road, to the Point of Beginning of this description; thence South 63 27' 49" West a distance of 315.00 feet; thence North 38 59' 52" West a distance of 375.00 feet to the southeast right or way line of Nimtz Parkway, also being the point of curvature of a nontangent curve to the left having a radius of 790.00 feet, an internal angle of 31 35' 05" and subtended by a long chord having a bearing of North 39 56'30' East a chord length of 430.00 feel; thence northeasterly a distance of 435.49 feet along said southeast right of way line of Nimtz Parkway, also along said curve to the point of tangency of said curve; thence South 57 33'26" East a distance of 288.39 feet; thence South 00 17' 19" West a distance of 325.68 feet to the Point of Beginning and containing 4.463 acres, more or less. Said parcel of ground is subject to all easements of record. Blackthom Corporate Park - Covenants & Restrictions 2/23/12 draft Exhibit "B" Use Designation Blackthorn Corporate Park - Covenants & Restrictions 2/23/12 draft 14 1 Acre M 2 Acre NnRT14 Blackthorn Corporate Park - Covenants & Restrictions 2123/12 draft Li (' I ICI ?I I Exhibit "D" Common Areas A- Retention /Natural NORTH - Streetscape Blackthorn Corporate Park - Covenants & Restrictions 2/23/12 draft