HomeMy WebLinkAboutNo. 2317 approving an amendment to the Declaration of Protective and Restrictive Covenants of the Blackthorn Corporate Center and Blackthorn Center Development Guidelinesr~
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RESOLUTION NO. 2317
A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT
COMMISSION APPROVING AN AMENDMENT TO THE
DECLARATION OF PROTECTIVE AND RESTRICTIVE COVENANTS
OF THE BLACKTHORN CORPORATE CENTER AND BLACKTHORN
CORPORATE CENTER DEVELOPMENT GUIDELINES
WHEREAS, the South Bend Redevelopment Authority (the "Authority") has been
created pursuant to Ind. Code § 36-7-14.5 as a separate body, corporate and politic, and as an
instrumentality of the City of South Bend, Indiana (the "City") to finance local public
improvements for lease to the South Bend Redevelopment Commission (the "Commission") on
behalf of the City of South Bend, Indiana, Department of Redevelopment; and
WHEREAS, the Commission is the owner of certain real property situation in
northwest St. Joseph County, Indiana, more commonly known as the Blackthorn Corporate
Center (the "Office Park"); and
WHEREAS, the Authority further owns property in the Office Park and leases said
property to the Commission; and
WHEREAS, the Commission, in conjunction with the Authority, intends to maintain
the Office Park as afirst-class, planned business campus, composed of corporate office; support
• office and research, and general business uses and associated facilities; and
WHEREAS, to ensure that the Office Park will be maintained as an attractive campus-
like setting for businesses, with ample landscaping areas, attractive high quality structures,
proper and desirable uses, and appropriate development; to protect against undesirable uses, to
guard against the construction of improvements built of improper materials or design; to
encourage the construction of attractive improvements in appropriate locations; to prevent
hazardous and inharmonious development of the Office Park; to secure and maintain proper
setbacks and adequate free spaces between structures; and generally to provide a high type and
quality of development at the Office Park, to have prepare certain covenants and restrictions for
the Office Park; and
WHEREAS, the Declaration of Protective Covenants & Restrictions of the Blackthorn
Corporate Center and Blackthorn Corporate Center Development Guidelines were established
jointly by the Authority pursuant to Resolution 73, recorded as Instrument No. 9322505 and by
Resolution No. 1147 of the Commission recorded as Instrument No. 9324608, which were
subsequently amended by (i) an Addendum to the Declaration of Protective Covenants and
Restrictions of Blackthorn Corporate Center jointly approved by Authority Resolution No. 87
adopted on March 17, 1994 and recorded as Instrument No. 9408339 and by Commission
Resolution No. 1232 adopted on February 18, 1994 and recorded as Instrument No. 9410875;
(ii) an Addendum to the Declaration of Protective Covenants and Restrictions of Blackthorn
Corporate Center approved by Authority Resolution 98 adopted on June 7, 1995 and recorded
as Instrument No. 9520537 and by Commission Resolution No. 1361 adopted on June 16, 1995
and ~ recorded as Instrument No. 9520538; and (iii) an Addendum to the Declaration of
• Protective Covenants and Restrictions of Blackthorn Corporate Center approved by Authority
Resolution No. 108 and by Commission Resolution No. 1445 adopted on July 3, 1996, as
recorded as Instrument No. 9707058 (collectively, the "Covenants and Guidelines") and
WHEREAS, the Owners' Association at Blackthorn, which is comprised of
owners of land within the Office Park, have approved and presented certain
amendments to the Covenants and Guidelines, and the Commission and the
Authority providing for:
4.7.2 Support Office/Research. A reduction in the floor area requirement for
office from 50% to 33%.
7.4.3 Open Space and Parking Landscape Areas. Rather than the property owner
maintaining all landscaping, the lawn in the Landscape Easement Area will
be maintained by the Owner of said Site. The plantings in the Landscape
Easement Area will be maintained by the Association in accordance with
the provisions of this Declaration and the Guidelines.
Development Guidelines
Landscaping
4.b. Shrubs no longer have to be of 3 foot in height at time of
planting when used as a screen for parking
;and
WHEREAS, the Commission and the Authority desire to amend the Covenants and
Guidelines in the manner presented and to enact the Covenants and Guidelines with the
amendments as set forth in Exhibit A; and
NOW, THEREFORE, BE IT RESOLVED by the South Bend Redevelopment
Commission that:
1. The Covenants and Guidelines are hereby amended and shall be as set forth in
Exhibit A attached hereto and incorporated herein by reference.
2. The Covenants and Guidelines, as amended, are hereby approved and ordered
executed and attested by the Commission President or Vice-President and attested by the
Commission Vice-President or Secretary, respectively.
3. The Secretary of the Commission is hereby directed to record in the Office of the
St. Joseph County Recorder a copy of this Resolution, along with all attachments and a copy of
any resolution concerning the same approved by the Authority.
4. This resolution shall be in filll force and effect from and after its adoption.
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ADOPTED at a meeting of the South Bend Redevelopment Commission held at 1308
. County-City Building, 227 W. Jefferson Boulevard, South Bend, Indiana 46601 on March 2,
2007
SOUTH BEND REDEVELOPMENT
COMMISSION, on behalf of the City of South
Bend, Indiana Departure of Redevelopment
Signature
ATTEST• Marcia I. Jones, esident
Primed Nmue and Tit e
~~~~~, / South Bend Redevelopment Commission
S. Downes, Secretes
South Bend Redevelopment Commission
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EXHIBIT A
Covenants and Guidelines
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BLACKTHORN
CORPORATE PARK
Development Guidelines
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City of South Bend, Indiana
South Bend Redevelopment Commission
South Bend Redevelopment Authority
as revised.' 30 May, 2001
Blackthorn Corporate Park -Development Guidelines 5/30/01
TABLE O~F CONTENTS
Introduction ..................................................... 1
Design Review and Approval Process............ 1
Required Information ...................................... 2
Architectural Design ........................................ 3
Setbacks ......................................................... 4
Fencing ........................................................... 4
Loading and Service Areas ............................. 5
Vehicular Circulation and Parking ................... 5
Pedestrian and Bicycle Circulation ................. 7
Site Utilities ..................................................... 7
Site Signage ................................................... 8
Construction Phase ....................................... . 9
Landscaping ................................................. 10
Maintenance ................................................. 11
Appendix: additional Information ................... 12
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Blackthorn Corporate Park -Development Guidelines 5/30/01
INTRODUCTION
These Development Guidelines are cited in the Declaration of Protective Covenants &
Restrictions for the Blackthorn Corporate Center (Covenants) as Recorded at the Office
of the Recorder, St. Joseph County, Indiana. The purpose of these Guidelines is to
assist the Applicant in achieving a certain level of quality in site development, consistent
with the concepts for Blackthorn. The Development Guidelines are intended to aid the
Applicant in achieving a style, character and quality of development conforming to the
goals and objectives for Blackthorn as described in Article II of the Covenants.
These Development Guidelines do not supersede, but rather supplement, the
Covenants and the specific requirements and provisions included therein. The
Applicant should refer to the Covenants for a variety of specific requirements. The
intent of the Covenants is to ensure consistent high quality development, thus protecting
and enhancing the investment of all Blackthorn Owners.
The Development Guidelines shall apply to all properties in Blackthorn and are an
addition to the requirements of the City of South Bend Municipal Code. All standards
set forth herein are subject to the criteria established in the current Federal, State, or
City of South Bend regulations, whichever criteria are the most restrictive.
The Applicant should refer to the Covenants, the City of South Bend Zoning Code, the
• Airport Economic Development Area Development Plan, and any other applicable
instruments governing development within Blackthorn.
The Development Guidelines are enforced by the Architectural and Site Plan Review
Committee of the Association, and may be amended from time to time by the
Commission at its determination.
DESIGN REVIEW AND APPROVAL PROCESS
The Design Review and Approval Process is a two step procedure. The first step is to
submit to the Architectural and Site Plan Committee (Committee) a preliminary
conceptual plan which includes: building elevation, types of materials, and a site plan.
Step two is to submit more detailed plans and specifications as stated in section 5.4 of
the Declaration of Protective Covenants & Restrictions for the Blackthorn Corporate
Park.
In order to ensure the orderly marketing and development of the property, the
Committee will act promptly on any Applications seeking Committee approval. All
building construction and site improvements must be reviewed and approved by the
Committee before local or state building permits are secured and any on-site construction
begins.
1 Blackthorn Corporate Park -Development Guidelines 5/30/01
Prior to the Committee taking action, plans and specifications of the proposed project
must be reviewed by the Committee. The Committee will act on each application within
thirty (30) days of the receipt of the Application and Required Information. For a typical
building project, three (3) sets of plans and specifications must be submitted as part of
each Application. The following section, "Required Information," details the information
that must be included in the Application. One copy of the Application will remain on file
with the Committee.
REQUIRED INFORMATION
The Applicant starts the formal review process with the submission of an Application for
Design Review. Each Application must include the following information for Committee
action.
The following list identifies the information that must be included in each Application to
the Committee. The Applicant shall complete form, Application for Design Review, in its
entirety, and submit it with the required data. Each Applicant is encouraged to submit
preliminary drawings and information to the Committee for review before the formal
review process begins.
Required Information is as follows:
a. Architectural plans and specifications including Building elevations, types of
materials, exterior colors, exterior Site 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. Including identifying all trees of six (6) or
more inches in caliper which are specimen caliper plantings that will be removed
or destroyed.
d. Sign and/or Signage plans showing size, height, design, color, materials,
location, construction and lighting with respect to each intended Sign;
e. Such other information as the Committee may require which is pertinent to the
evaluation of the plans and specifications.
Variances to the requirements of these Guidelines may be permitted when deemed
appropriate by the Committee. In order to obtain a variance, the Applicant must request
2 Blackthorn Corporate Park -Development Guidelines 5/30/01
the~variance in writing, documenting the reason for the request and providing evidence
to clearly demonstrate the merits of the proposed variance.
ARCHITECTURAL DESIGN
The purpose of the Architectural Guidelines is to produce orderly and aesthetically
pleasing development of high quality architecture in harmony with the character of
Blackthorn and existing improvements, which serves to enhance not only the individual
building, but also the entire Blackthorn development. It is the intent of these Guidelines
to encourage innovative architectural design. All buildings, shall conform with the
following requirements.
Overall design: Buildings shall be designed in such a way that all sides of the
building are equally attractive, rather than placing all emphasis on the front
elevation and neglecting the aesthetics of the side and/or rear elevations. Any
accessory buildings and enclosures, whether attached to or detached from the
main building, shall be compatible to the main building in design and materials.
2. Exterior materials: The approval of exterior materials, including type, color,
texture and durability, and the extent of use of any single material or combination
of materials shall be solely at the discretion of the Committee. Exterior materials
shall conform to and be in harmony with the external design of neighboring
structures and natural landscape. The Committee shall not arbitrarily or
unreasonably withhold its approval of such use of exterior materials. Common
brick, concrete block, corrugated metal, pre-engineered metals installed with
exposed fasteners, vinyl siding and wood siding are prohibited on the exterior
wall of any building. The use of masonry materials as the dominant finish is
strongly encouraged.
3. Rooftops: All rooftop surfaces, equipment and accessories shall be approved by
the Committee according to the following guidelines:
a. The roof surface materials, texture, and reflectivity shall be reviewed
considering their effects on the views of other Blackthorn Lots and
structures.
b. Rooftop mechanical equipment, vents and ducts shall be screened,
covered and installed in a manner which hides said mechanical equipment
from the view of other Blackthorn Lots, public streets, common areas, and
buildings. Screening height shall be a minimum of twelve inches above
materials being screened.
c. Rooftop solar collectors, skylights and other potentially reflective rooftop
building elements shall be designed and installed in a manner which
prevents reflected glare and obstruction of views of other Blackthorn Lots
3 Blackthorn Corporate Park -Development Guidelines 5/30/01
• ~ and buildings.
d. Rooftop antennas and towers must be specifically approved by the
committee upon recommendation by the St. Joseph County Airport
Authority, as to their height and location.
SETBACKS
The purpose of the Setback Requirements is to establish a coordinated streetscape
image, provide sufficient space between buildings to ensure adequate light and privacy
and to provide sufficient space between roads, buildings and parking to ensure privacy,
and sound control.
Minimum setbacks for buildings and parking lots from adjacent street rights-of-
way and Lots shall be as follows:
Setback from Nimtz Parkway / Moreau Court right of way 70 feet
Setback from all other public street right of way 50 feet
Setback from Side and Rear Lot Lines (not adjacent to public streets) 25 feet
2. Driveways shall be setback from adjacent property lines at least twenty-five feet,
except where access driveways are shared by adjacent owners. Access drives
. shared by two or more adjacent Sites is encouraged.
3. All setback areas shall be planted and landscaped in accordance with the
Landscape Guidelines.
FENCING
The purpose of the Fencing Guidelines is to provide for security; for screening of
unsightly areas; and for visual relief and buffering where appropriate. Fencing
Guidelines are as follows:
No fence or wall of any kind shall be constructed unless specifically
approved by the Committee.
2. Objects such as trash dumpsters, vents, mechanical equipment and other
structures or equipment shall be compatible with the building architecture
or screened from view of adjacent properties, parking areas, public
streets, common areas, and bike paths by using fences and/or walls and
shall be approved, in writing, by the Committee before construction or
erection of said structures or equipment. The St. Joseph County Airport
Authority may have final approval or disapprove of such structures or
4 Blackthorn Corporate Park -Development Guidelines 5/30/01
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equipment concerning height and location.
3. Screen fences or walls shall be of a height at least equal to that of the
equipment to be screened.
4. Materials and colors of fences and walls shall be compatible with the
building architecture.
5. Chain link and/or barbed wire fencing is not permitted in Blackthorn.
6. No fence or wall shall be located within the setback areas of any lot
LOADING AND SERVICE AREAS
The purpose of the Loading and Service Area Guidelines is to provide for the design of
loading and servicing areas in a functional and aesthetically pleasing manner. The
guidelines are as follows:
Loading and servicing areas, including any overhead doors, shall not be
visible from any public street or adjacent properties.
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2. Loading and servicing areas shall be designed as an integral part of the
building architecture.
3. Loading and servicing areas shall be designed so that the entire loading
and servicing operation is conducted within the confines of the building
site. No loading or servicing shall be conducted between a building and a
street.
4. Installation of one or more truck bays or docks must be specifically
approved by the Committee.
VEHICULAR CIRCULATION AND PARKING
The purpose of the Vehicular Circulation and Parking Guidelines is to provide for safe
and convenient movement of motor vehicles, to limit vehicular/pedestrian conflicts, to
limit paved areas, to provide for screening or paved areas, and to soften the visual
impact of parking lots by providing interior planting. The guidelines are as follows:
Number of parking stalls: All parking facilities on each site shall be
sufficient to serve the business conducted without using adjacent streets
or parking lots. In the case of multiple use buildings, such as office and,
research parking requirements shall be determined for each use
Blackthorn Corporate Park -Development Guidelines 5/30/01
separately. Minimum parking space requirements are as follows:
Office 1 space per 250 sg. ft.
Support Office/Research 1 space per 600 sg. ft.
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2. Minimum parking stall dimensions shall be in accordance with the City of
South Bend Zoning Code.
3. No parking is permitted on lawn, dirt, gravel, slag, or other unpaved
surfaces. Each Owner and Occupant shall be responsible for enforcing
this requirement on their respective Lot.
4. Parking will not be permitted on any street or in Setback Areas.
5. Visitor drop-off zones and parking should be provided near visitor
entrances, however, visitor parking is not permitted within the Setback
Area.
6. Employee parking shall be separated from visitor and front entrance
traffic.
7. All parking shall be screened from public streets by appropriate
landscaping (see Landscaping Guidelines).
8. In parking lots, landscaped islands must be installed in intervals of not less
than every twenty parking spaces; and at the end of all rows of parking.
Parking islands shall have a minimum width of nine feet. A continuous
poured-in-place concrete curb shall be installed around parking islands to
protect lawns and landscaping from vehicular traffic.
9. The use of parking bumpers in surface parking lots is prohibited.
10. A continuous poured-in-place concrete curb shall be installed around all
vehicular parking and circulation areas.
11. All curb cuts onto public streets shall be on-grade curb return types.
Residential type, ramped curb cuts are not permitted.
12. Parking areas shall be broken into sections not to exceed 100 cars.
Parking areas shall be separated by a major landscaped buffer to provide
visual relief.
13. All parking spaces must be designated by painted lines.
14. All parking lot and road pavement sections shall be designed by a
Blackthorn Corporate Park -Development Guidelines
5/30/01
registered engineer.
ICYCLE CIRCULATION
PEDESTRIAN AND 8
The purpose of the Pedestrian and Bicycle Circulation Guidelines is to promote free and
safe movement of pedestrians and bicyclists throughout Blackthorn. The guidelines are
as follows:
2. All sidewalks within the site shall have an unobstructed width of at least
four feet (minimum width of six feet where attached to a curb adjacent to
parking stalls).
3. A bikepath system for Blackthorn is cited in the Covenants. Each Owner
shall construct a bikepath within a thirty (30) foot corridor from the Site's
boundary with public rights-of-way.
a. Each newly constructed section of bikepath shall align with the
bikepath sections on adjacent properties.
b. Owners are encouraged to wind the path through berms and
landscaping. The bikepath shall not run parallel with the right of
way. All paths shall be designed in accordance with the latest
standards per the Americans with Disabilities Act.
c. The bikepath shall be of a standard width as set by the Committee
d. The location of bikepaths on the site shall be shown on the
Landscape Plan.
SITE UTILITIES
The purpose of the Site Utilities Guidelines is to promote the coordinated development
of utilities in Blackthorn and to minimize utility costs and adverse visual impacts caused
by utility structures and appurtenances. The guidelines are as follows:
All permanent utility line shall be underground.
2. No cesspool, septic tank or sewage disposal plant shall be erected or
maintained upon any part of Blackthorn. The proper use of constructed or
reconstructed wetland technology is encouraged for any on-site
stormwater treatment.
3. Transformers shall be grouped with utility meters where possible and shall
be screened in a manner approved by the Committee.
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Blackthorn Corporate Park -Development Guidelines
5/30/01
4. Utility appurtenances including telephone pedestals, utility meters,
irrigation system backflow preventers, transformers, etc. are not to be
visible from adjacent sites, parking areas, public streets, pedestrian
walkways and bikepaths and shall be screened in a manner approved by
the Committee.
SITE SIGNAGE
The purpose of the Signage Guidelines is to establish a coordinated graphic program
that provides for individual Occupant identification and directional communication in a
distinctive and aesthetically pleasing manner. This graphic system is a major factor in
creating and preserving the design character and integrity of Blackthorn. Size and
placement of all signage shall be considered an integral part of site development, and a
signage plan shall be submitted for the approval of the Committee.
The Signage Guidelines apply to the categories of signage as follows:
1. Identification Signage: The first category applies to signs used for
identification of buildings and/or Owner/Occupants. Each site is limited to
one Identification sign. The design, style and material of the Identification
sign shall match and compliment the design, style and material of the
building. The sign should include the full street address of the building.
The design of all identification signs must be approved by the Committee.
a. Identification signs shall be constructed of masonry or stone
materials. Where Identification signs use aluminum or other such
metal, box construction, masonry or stone materials must represent
more than fifty percent of the total area of the sign face.
b. In the case of multiple tenants, all may be identified on the same
sign, up to a maximum of three tenants. Where there are more
than three tenants, the building should be identified with a name
and the tenants listed on a Directory inside the Building.
c. No sign shall exceed forty (40) sq. ft. per face. It is the intention of
the guidelines that sign size be in aesthetic balance with the site
and building sizes.
d. The sign shall be placed no closer than twenty-five (25) feet and no
further than thirty (30) feet from the curb of the street.
e. The sign must be placed so it does not obscure any other
identification, information, or vehicular control signs.
f. Building mounted identification signs must be specifically approved
8 Blackthorn Corporate Park - Development guidelines 5/30/01
by the Committee.
m ora Si na e: Tem ora si ns can be used for real estate sales or
4. Te p ry g g p ry g
leasing, construction and design team information or future Occupant
identification. Temporary signs, including real estate signage, must be
approved by the Committee in writing.
CONSTRUCTION PHASE
The purpose of the Construction Phase Guidelines is to minimize the adverse impacts
of construction on the site's natural systems and other related activities:
Prior to starting construction of each major project phase, apre-
construction conference with the Committee shall be conducted by the
Applicant. The Applicant shall arrange for representatives of the following
organizations to attend the conference:
a. General Contractor
b. Applicant's development team
c. Applicable utility companies as necessary
The general purpose of the pre-construction conference is to outline the
phasing and responsibilities of key tasks such as:
a. Utility connections
• b. Final grading and drainage construction
c. Project driveway and bikepath interface with existing roads
and bikepaths
d. Fine grading and landscaping
2. It is the responsibility of the Applicant to protect the area designated as
Conservation Easement and the Blackthorn Golf Course from all
construction processes. This protection should include without limitation,
enclosing the area and the area's drip line with a temporary fence and
construction of a temporary ditch to prevent runoff from reaching the
Conservation area.
3. Construction sites shall be maintained in a neat and orderly manner. All
trash shall be kept in enclosed containers and emptied frequently.
4. At the end of the construction period, the Applicant shall submit to the
Committee reproducible copies of record drawings (as-builts) showing the
actual locations of all underground utilities and irrigation systems.
9 Blackthorn Corporate Park -Development Guidelines 5/30/01
LANDSCAPING
The Landscape Guidelines recognize that landscaping is of primary importance to the
establishment of the design character of Blackthorn. The Guidelines are intended to
promote the establishment of compatible and continuous landscape development to
enhance and unify Blackthorn. More specifically, the guidelines are intended to provide
for a neat and well maintained appearance in areas not covered by buildings, or
parking, or Conservation Easements; to enhance and preserve the existing site
character; to minimize the adverse visual and environmental impacts of large paved
areas. The landscaping requirements are as follows:
Applicants must submit a proposed landscape plan and budget. As a
general rule, Applicants are required to spend no less than four percent of
total project construction costs on landscape improvements. Earth work,
Lighting, Site Utilities and Bike paths are not intended to be included in the
costs of landscaping.
2. The landscape plan as required for review by the Committee must be
prepared by a qualified Landscape Professional.
3. Landscaping in accordance with the approved plan must be implemented
and completed within one hundred twenty (120) days, weather permitting,
after building occupancy.
4. All ar '
p king lots shall be landscaped as follows:
a. Provide landscaped islands in parking lot interiors per the
requirements of the Vehicular Circulation and Parking Guidelines.
b. The setback space between public streets and parking lots shall be
fully landscaped. Where possible, berming shall be provided in
order to screen parked cars. Berms shall conform to the
Committee's requirements.
Where Berms are not possible due to space limitations, the parking
shall be screened through the use of coniferous trees and or
appropriate shrub planting or screen walls
5. A minimum of fifty percent (50%) of the space between the public street
and parking lots of buildings shall be planted in irrigated lawn with the
lawn on the street side of the landscaped area, in order to preserve a
visually continuous lawn planting along public streets. This lawn planting
may be interrupted with shrub beds at entry points and in key accent
areas as appropriate.
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10 Blackthorn Corporate Park -Development Guidelines 5/30/01
6. All Plant Materials installed
planting, as follows:
a. Shade trees
b. Coniferous trees
c. Ornamental trees
d. Shrubs
shall be of minimum size at the time of
3 inch caliper
6 feet height
2 inch caliper
3 feet height or 1 gallon
9. All areas not paved or built upon, but disturbed during the construction
period must be landscaped with trees and irrigated lawn or planted with
native grasses and ground covers. Large uninterrupted areas of gravel or
bare soil is prohibited.
10. All irrigation systems are to be below ground, fully automatic systems in
compliance with applicable building code requirements.
MAINTENANCE
The purpose of the Maintenance Guidelines is to define the minimum maintenance
standards to promote a uniform, neat and clean appearance throughout Blackthorn.
Maintenance requirements are as follows:
1. Owners and Occupants shall maintain their Improvements in good and
sufficient repair and in an aesthetically pleasing manner.
• 2. Im rovements which are dama ed b the elements, vehicles, fire or an
P 9 Y Y
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 damage.
3. Buildings which happen to be vacant for any reason, shall be secured and
maintained.
4. Sites shall be maintained in a safe, clean and neat condition free of
rubbish and weeds. Roads and pavements shall be kept true to line and
grade in good repair.
5. Landscape Areas: The following lists the maintenance responsibilities of
the different landscape areas:
a. Common areas are landscaped and maintained by the Association.
b. Landscape Easements are initially landscaped and maintained by
the Owner until such time as they are accepted by the Association.
Thereafter, the lawn in the Landscape Easements will be
maintained by the Owner and the plantings will be maintained by
11 Blackthorn Corporate Park -Development Guidelines 5/30/01
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the Association.
c. Site and parking landscape areas are to be landscaped and
maintained by the Owner in accordance with these guidelines.
d. Conservation Easements are to be reserved by the Commission.
These areas are to be left natural and are not to be maintained.
6. Landscape Maintenance: Maintenance requirements of the landscaped
areas in Blackthorn are as follows:
a. All plantings shall be maintained in a healthy growing condition.
Fertilization, weeding and pruning are to be carried out on a regular
basis.
b. Dead or dying plants shall be removed and replaced as quickly as
possible (thirty days maximum).
c. All plantings are to be irrigated as often as necessary to maintain
healthy growing conditions.
d. Adjust tree guys, stakes, etc. on a regular basis to maintain neat
appearance and to prevent damage to trees.
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7. If minimum maintenance standards are not achieved by the Owner or
Occupant, the Association may take action as set forth in the Covenants.
ADDITIONAL INFORMATION
The following information is not required by the Committee, however, Developer are
encouraged to submit the information as it may avoid unnecessary delays.
a. Complete grading and drainage plans showing all relevant elevations of drainage
and retention areas, flow points and storm detention, and provisions for erosion
control;
The purpose of the site grading plans are to unify the grading of Blackthorn in
terms of earth form, preservation of topographic features and compatibility of
relationships between buildings, parking areas, roads, and adjacent properties.
All site grading shall conform to the following requirements:
1. Lot grading will be done in such a way as to preserve the existing
12 Blackthorn Corporate Park -Development Guidelines
5/30/01
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topographic features and to provide positive drainage. All site grading
shall be designed to meet the following standards:
Minimum Maximum
Slope Slope
Landscape areas 2% 3:1
Parking Lots 2% 4%
Driveways 2% 5%
Pedestrian paths 1 % 8%
2. No cut or fill slopes of any type shall be steeper than 3:1 with smooth
vertical transitions. Where space limitations demand, terracing with
approved retaining walls shall be utilized.
3. Where retaining walls are required, they shall be of a material compatible
with the building architecture.
4. Berms, channels, swales, etc., shall be grades in such a way as to be an
integral part of the grading, and paved surface designed with smooth
transitions between changes in slope.
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b. Proposed construction schedule covering each phase of construction on the Site;
c. Description of proposed operations and/or uses, including number of employees
expected and proposed for the future;
d. Characteristics of the intended use of the Site with emphasis on measures taken
to mitigate any adverse effects caused by the development;
e. Anticipated water and sewer demands, with supporting data;
Site Amenities specifications showing size, height, design, color, materials,
location, and construction with respect to Site Amenities;
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g. Architect's total estimated cost of construction of the proposed improvements.
Owners are encouraged to construct additional paths on each lot and provide bike
storage areas on each Site for employees.
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5/30/01
BLACKTHORN
CORPORATE PAR K
Declaration of
Protective Covenants & Restrictions
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City of South Bend, Indiana
South Bend Redevelopment Commission
South Bend Redevelopment Authority
as revised: 5/20/2001
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Table of Contents
ARTICLE I
DEFINITIONS .............................................................................................................................................. 1
ARTICLE II
CHARACTER &PURPOSE ........................................................................................................................ 4
ARTICLE III
DEVELOPMENT RESTRICTIONS .............................................................................................................. 5
ARTI CLE I V
USE RESTRICTIONS ................................................................................................................................... 6
ARTICLE V
ARCHITECTURAL AND SITE REVIEW COMMITTEE ............................................................................... 8
ARTICLE VI
OWNER'S ASSOCIATION AT BLACKTHORN ......................................................................................... 12
ARTICLE VII
COMMON AREAS AND EASEMENTS ...................................................................................................... 14
ARTICLE Vlll
REGULATION OF IMPROVEMENTS ........................................................................................................ 18
ARTICLE IX
VIOLATION OF PROVISIONS ................................................................................................................... 21
ARTI CLE X
ACCEPTANCE OF COVENANTS .............................................................................................................. 22
ARTI CLE XI
ASSIGNMENT AND LIMITATION OF LIABILITY ...................................................................................... 23
ARTI CLE Xll
MISCELLANEOUS ..................................................................................................................................... 24
AMENDMENTS ........................................................................................................................................... 26
`A
1~
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 1
• 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 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
1 Blackthorn Corporate Park Covenants and Restrictions 5/30/01
under a mortgage.
1.6 Blackthorn. "Blackthorn" shall mean the real ro ert described in "A" hereto
p P Y
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.
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,
2 Blackthorn Corporate Park Covenants and Restrictions
5130101
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.
1.15 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.
1.16 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.
1.17 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.
1.18 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 Official Records. "Official Records" shall mean the records of the Office of the
Recorder, St. Joseph County, Indiana.
1.21 Owner. "Owner" shall mean, at any time, any Person, including the Declarant,
and the successors and assigns of any thereof, that owns fee 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.
1.22 Owner's Association. "Owner's Association" (sometimes referred to as the
"Association") shall mean the association of Owners created and described in
Article VII.
1.23 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.
1.24 Record/Recorded. "Record" or "Recorded" shall mean, with respect to any
document, the recording of said document in the Official Records.
1.25 Sign. "Sign" shall mean any structure, device or contrivance and all parts
3 Blackthorn Corporate Park Covenants and Restrictions
5/30101
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.
1.26 Site. "Site" shall mean a contiguous area of land within Blackthorn which is
owned of Record by the same Owner, whether or not shown as one Lot or
whether shown 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.
1.27 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. Byway of illustration and not
limitation Flagpoles, fountains, statues, benches, tables and decorative walls
are "Site Amenities".
1.28 Street. "Street" shall mean any publicly dedicated thoroughfare within or
adjacent to Blackthorn and shown on any Recorded subdivision map or
survey.
1.29 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.
ARTICLE 11
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.
estrictions 5/30101
4 Blackthorn Corporate Park Covenants and R
• ARTICLE 111
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, 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 acceptor 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.
5 Blackthorn Corporate Park Covenants and Restrictions
5130101
. 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.
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
d. noise and/or vibration
e. intense glare or heat
outdoor storage of any type
g. drive-up facilities of any type
h. 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 6/16/95, Doc. # 9520538 & # 9520537)
4.2 Uses not specifically permitted. Uses not specified as permitted are prohibited
• unless approved by the Commission.
6 Blackthorn Corporate Park Covenants and Restrictions
5/30/01
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 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",
and (C) "General Business", and (D) "Hotel." (Amended 2/18/94 -Doc. #
9410875 & Doc. # 9408339)
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.
Covenants and Restrictions 5130/01
7 Blackthorn Corporate Park
4.7 Description of Uses. The following describes each of the three 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
area 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 2/18/94 -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 ordrive-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 7/17/96 - Doc. # 907058)
4.8 Lot Size. No Blackthorn Lot shall be smaller than two (2) acres in size, 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
nts and Restrictions 5130101
8 Blackthorn Corporate Park Covena
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 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
9 Blackthorn Corporate Park Covenants and Restrictions 5/30/01
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, and refuse collection;
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
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;
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
receipt by the Committee of said plans and specifications and Review
10 Blackthorn Corporate Park Covenants and Restrictions
5130101
Fee, 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, without an
additional Review Fee, 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
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
11 Blackthorn Corporate Park Covenants and Restrictions 5/30/01
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 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 ofAssociation. The Declarant shall cause to be incorporated anot-
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 ai7d the Bylaws.
6.2 Purposes of fhe 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;
Review Fees, dues, or assessments; for the operation,
maintenance and/or benefit of the Owners at Blackthorn;
d. to pay the expense of the Committee as budgeted herein;
e. to appoint the members of the Committee from and after the
12 Blackthorn Corporate Park Covenants and Restrictions 5/30/01
t
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 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 whom 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
areas); and
~J
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
13 Blackthorn Corporate Park Covenants and Restrictions 5130/01
•
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 bylaw or equity. The Association may, in addition to, or
instead of, foreclosure, obtain a personal judgment against the Owner.
ARTICLE Vll
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
14 Blackthorn Corporate Park Covenants and Restrictions
5130101
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 judgement 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 8.3 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.
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
15 Blackthorn Corporate Park Covenants and Restrictions 5/30101
forth in Article II of the Declaration is carried out.
• 7.3 Reservation of Conservation Easements. In furtherance of Article II 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 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.
16 Blackthorn Corporate Park Covenants and Restrictions
5/30101
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.
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 Landscape Easement Area will be
maintained by the Owner of said Site. The plantings in the Landscape
Easement Area will be maintained by the Association in accordance
with the provisions of this Declaration and the Guidelines.
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;
17 Blackthorn Corporate Park Covenants and Restrictions 5/30/01
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 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 required to construct a bike path across their Site. 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. The bike path must follow the
corridor 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
18 Blackthorn Corporate Park Covenants and Restrictions 5/30/01
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 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 effect the Use
Restrictions set forth at Article IV, Section 4.1 (k) hereinabove. (Amended
6/16/95, Doc. # 9520538 & # 9520537)
8.8 Site Furniture. 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 six (6) months to one (1) year 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 four (4) or more inches in caliper
must be removed or destroyed to permit construction the replacement of the
19 Blackthorn Corporate Park Covenants and Restrictions 5/30/01
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.
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 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
20 Blackthorn Corporate Park Covenants and Restrictions 5/30101
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 lX
VIOLATION OF PROVISIONS
9.1 Abatement and Suit. 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 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
21 Blackthorn Corporate Park Covenants and Restrictions
5/30/01
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.
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
22 Blackthorn Corporate Park Covenants and Restrictions
5/30/01
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.
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 Declarants, the City's, the Committee's, the
Association's or the Board's duties under this Declaration unless due to the
23 Blackthorn Corporate Park Covenants and Restrictions 5/30/01
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.
ARTICLE X11
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.
•
24 Blackthorn Corporate Park Covenants and Restrictions 5/30101
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 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.
25 Blackthorn Corporate Park Covenants and Restrictions 5/30/01
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AMENDMENTS
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 ahotel-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.
•
lll. 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.
•
26 Blackthorn Corporate Park Covenants and Restrictions 5/30/01
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
Marcia 1. Jones, President
ATTEST:
Greg S. Downes, 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 Marcia 1. Jones, and Greg S. Downes,
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 , 20
Notary Public
Residing in St. Joseph County, Indiana
My Commission Expires:
For the Declarant:
SOUTH BEND REDEVELOPMENT AUTHORITY
Catherine Pfotenhauer, President
ATTEST:
• Donald K. Fewell, Secretary
27 Blackthorn Corporate Park Covenants and Restrictions 5/30/01
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:
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•
28 Blackthorn Corporate Park Covenants and Restrictions 5/30/01
EXHIBIT "A"
BLACKTHORN CORPORATE PARK
•
LJ
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.
29 Blackthorn Corporate Park Covenants and Restrictions 5/30/01
EXHIBIT "8"
USE DESIGNATION
•
30 Blackthorn Corporate Park Covenants and Restrictions 5/30/01
EXHIBIT "C"
LOT SIZE DESIGNATION
•
1 Acre Minimum
?Acre Minimum
31 Blackthorn Corporate Park Covenants and Restrictions 5130/01
EXHIBIT "D"
COMMON AREAS
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32 Blackthorn Corporate Park Covenants and Restrictions 5/30/01
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