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CROSS REFERENCE: This Declaration pertains to Instrument #2004007163 recorded on the 26th of August, 2004 and re-recorded as Instrument #2004007295 in the office of the Recorder of Shelby County, Indiana.



DECLARATION OF DEVELOPMENT STANDARDS, COVENANTS AND RESTRICTIONS FOR INTELLIPLEX PARK


Major Hospital, hereby declares and establishes the following standards, covenants and restrictions, which shall be binding upon and run with the Real Estate and shall inure to the benefit of and be binding upon the Owners and occupants thereof for purposes of:

(a) Maintaining and implementing minimum standards pertaining to the development, use and maintenance of Intelliplex Park;

(b) Insuring the stability and enhancement of values of the land and improvements within Intelliplex Park;

(c) Furthering development and improvement of Intelliplex Park in an aesthetic and architecturally harmonious manner and otherwise in accordance with the applicable zoning ordinances; and

(d) Establishing and apportioning rights and responsibilities with regard to facilities and services in, and required for the use and operation of, Intelliplex Park (hereinafter “Park”).




ARTICLE I
Definitions

As used herein, the following terms shall have the meanings indicated:


meanings indicated:

(a) “Annual Assessment Costs” shall mean the following:

(i) With respect to an Owner of all or any portion of the Non-Hospital Real Estate, the sum of the Common Facilities Maintenance Costs, as determined by the Association, plus the Association Operating Costs that are incurred by the Association in each respective calendar year and are specifically approved by the majority of the Directors elected by the Members in accordance with the Articles of Incorporation of the Association;

(ii) With respect to an Owner of all or any portion of the Hospital Real Estate, the sum of the Hospital Common Facilities Maintenance Costs, plus the Association Operating Costs that are incurred by the Association in each respective calendar year and are specifically approved by the majority of the Directors elected by the Members in accordance with the Articles of Incorporation of the Association.

(b) “Appropriate Zoning Authority” shall mean, with respect to any action regarding the administration of the zoning ordinance applicable to the Park, the appropriate administrator or agency with authority to administer the zoning laws of the City of Shelbyville, Shelby County, Indiana, or where such administrator or agency lacks the capacity to take the action or fails to take such action, the governmental official or body, administrative or judicial, in which authority is vested under applicable law to hear appeals from or review of such action or inaction or has the capacity to administer such zoning ordinance, and such term shall apply to the legal successors in interest to such administrator, agency or bodies.

(c) “Architectural Control Committee” shall mean the entity responsible for conducting the Architectural Review Process.

(d) “Architectural Review Process” shall mean the procedure set forth in Article 4 for obtaining the approval or disapproval of the Architectural Control Committee for any proposed plans and specifications for improvements to be constructed on a Parcel.

(e) “Association” shall mean and refer to Intelliplex Park Owners Association, Inc., an Indiana non-profit corporation.

(f) “Association Operating Costs” shall mean the necessary and appropriate costs (other than Common Facilities Maintenance Costs and Hospital Common Facilities Maintenance Costs) of operating the Association for the purposes set forth in this Declaration, including, but not limited to the cost of public liability insurance, officers and directors’ insurance, casualty insurance for improvements constituting a part of any Common Facility, and the costs of hiring employees, independent contractors and legal, accounting and other professional advisors in connection with the Association’s performance of its obligations hereunder.

(g) ”Benefitted Parties” shall mean the, from time to time Owners and their respective lessees, occupants, subtenants and licensees of all or any portion of the Real Estate; personnel of utility companies in connection with providing any utility service to any part of the Park; and personnel of any public or quasi-public body in connection with providing service to the Park or any person in the Park, including, but not limited to, police and fire protection, ambulance and other emergency traffic, trash and garbage collection, postal service and delivery service.

(h) “Intelliplex Park” or “Park” shall mean the Real Estate and the improvements constructed there on from time to time.

(i) “Common Facility” shall mean each facility located within a Common Facility Easement in the Park for the common use and enjoyment of the Owners and other Benefitted Parties, including, but not limited to sidewalks, islands, lighting, signs and landscaping within each easement; utility lines not located either in a dedicated road right-of-way or in an easement held by the utility company (and other than lines serving an individual Parcel); and storm water retention ponds, drainage pipes, outlet control structures, swales and other storm drainage facilities.

(j) “Common Facility Easement” shall mean each portion of the Park in which, pursuant to a duly recorded instrument, the Owners hold an easement for the common use and enjoyment of the Owners and other Benefitted Parties, together with each Common Facility located in or upon each such easement and those portions of the Park reflected as Common Area “A”, “B”, “C” and “D” in the Final Plat for the Park as recorded in the Office of the Recorder of Shelby County, Indiana on the 26th day of August, 2004 as Instrument #2004007163, and re-recorded as Instrument #2004007295 on the 31st day of August, 2004.

(k) “Common Facilities Maintenance Costs” shall mean the costs necessary for the Association to perform its obligations hereunder to keep each Common Facility (excluding, however, any Common Facility located on or within the boundaries of the Hospital Real Estate) in good operating condition and in attractive appearance, including, but not limited to, the cost of all upkeep, maintenance, repair, and replacement of all or any part of each Common Facility; payment of taxes imposed on either the Common Facility or on the underlying fee, easement or right-of-way; and any other expense reasonably necessary or prudent for the satisfactory operation of each Common Facility. Common Facilities Maintenance Costs shall in no event include the initial cost of constructing a Common Facility.

(l) “Co-Owners” shall mean two or more persons or entities which together are the record owners of all or any portion of the Real Estate as tenants-in-common, joint tenants (with or without right of survivorship) or tenants by the entirety.

(m) “Developer” shall mean Major Hospital or any successor in interest or assignee which is expressly designated as a successor Developer in a recorded instrument executed by the preceding Developer.

(n) “Hospital Real Estate” shall mean that portion of the Real Estate which is described as Block “G” and Common Area “A”, “B”, “C” and “D” in the Final Plat for the Park as recorded in the Office of the Recorder of Shelby County, Indiana on the 26th day of August, 2004 as Instrument #2004007163, and as re-recorded on the 31st of August, 2004 as Instrument 2004007295, comprising a total of 47.16 acres together with any additional land incorporated into the Park and identified as Hospital Real Estate by the Developer as provided in Section 9.01.

(o) “Hospital Common Facilities Maintenance Costs” shall mean the costs necessary to keep each Common Facility located on or within the boundaries of the Hospital Real Estate in good operating condition and in attractive appearance, including, but not limited to, the cost of all upkeep, maintenance, repair and replacement of all or any part of each Common Facility located upon or within the Hospital Real Estate; payment of taxes imposed on either the Common Facility or on the underlying fee, easement or right-of-way and any other expense reasonably necessary or prudent for the satisfactory operation of each such Common Facility. Hospital Common Facilities Maintenance Costs shall in no event include the initial cost of constructing any such Common Facility.

(p) “Integrated Project” shall mean a group of two or more buildings which are arranged to share facilities such as parking areas, walkways, driveways or truck loading areas. Each building in an Integrated Project may be owned by a separate Owner and either used by the Owner or leased in whole or in part to separate users. Multiple buildings may be permitted on a Parcel provided that either (i) the applicable zoning ordinance permits such multiple buildings or (ii) if not permitted by such ordinance, such multiple buildings are authorized by the Appropriate Zoning Authority and approved by the Architectural Control Committee.

(q) “Member” shall mean and refer to each member of the Association.

(r) “Non-Hospital Real Estate” shall mean that portion of the Real Estate which is described as Blocks “A”, “B”, “C”, “D”, “E”, “F”, and “H” in the Final Plat for the Park as recorded in the Office of the Recorder of Shelby County, Indiana on the 26th day of August, 2004 as Instrument #2004007163, and as re-recorded on the 31st of August, 2004 as Instrument #2004007295, comprising a total of 82.17 acres together with any additional land incorporated into the Park and identified as Non-Hospital Real Estate by the Developer as provided in Section 9.01.

(s) “Owner” shall mean each person or entity, including the Developer and any Co-Owner, which is a record owner of all or any portion of the Real Estate. In the case of a leasehold or contract vendee interest in any portion of the Real Estate, the lessee or contract vendee shall be considered the Owner for the term of the lease or the purchase contract only if designated as such by the record Owner in a duly recorded instrument.

(t) “Parcel” shall mean a portion of the Real Estate owned by the Developer or any Owner for the erection of and use as a single building or more than one building if it is an Integrated Project, together with the improvements on such portion.

(u) “Proportionate Share” shall mean the following:

(i) With respect to an Owner of all or any portion of the Hospital Real Estate, (a) as to that portion of the Annual Assessment Costs attributable to all Association Operating Costs, a fraction having the numerator equal to the acreage of the Owner’s User Specific Parcel and a denominator equal to the total acreage of the such multiple buildings are authorized by the Appropriate Zoning Authority and approved by the Architectural Control Committee.

(q) “Member” shall mean and refer to each member of the Association.

(r) “Non-Hospital Real Estate” shall mean that portion of the Real Estate which is described as Blocks “A”, “B”, “C”, “D”, “E”, “F”, and “H” in the Final Plat for the Park as recorded in the Office of the Recorder of Shelby County, Indiana on the 26th day of August, 2004 as Instrument #2004007163, and as re-recorded on the 31st of August, 2004 as Instrument #2004007295, comprising a total of 82.17 acres together with any additional land incorporated into the Park and identified as Non-Hospital Real Estate by the Developer as provided in Section 9.01.

(s) “Owner” shall mean each person or entity, including the Developer and any Co-Owner, which is a record owner of all or any portion of the Real Estate. In the case of a leasehold or contract vendee interest in any portion of the Real Estate, the lessee or contract vendee shall be considered the Owner for the term of the lease or the purchase contract only if designated as such by the record Owner in a duly recorded instrument.

(t) “Parcel” shall mean a portion of the Real Estate owned by the Developer or any Owner for the erection of and use as a single building or more than one building if it is an Integrated Project, together with the improvements on such portion.

(u) “Proportionate Share” shall mean the following:

(i) With respect to an Owner of all or any portion of the Hospital Real Estate, (a) as to that portion of the Annual Assessment Costs attributable to all Association Operating Costs, a fraction having the numerator equal to the acreage of the Owner’s User Specific Parcel and a

denominator equal to the total acreage of the Real Estate and (b) as to that portion attributable to Hospital Common Facilities Maintenance Costs, a fraction having a numerator equal to the acreage of the Owner’s User specific Parcel and a denominator equal to the acreage of the Hospital Real Estate;

(ii) With respect to an Owner of all or any portion of the Non-Hospital Real Estate, (a) as to that portion of the Annual Assessment Costs attributable to all Association Operating Costs, a fraction having the numerator equal to the acreage of the Owner’s User Specific Parcel and a denominator equal to the total acreage of the Real Estate and (b) as to that portion of the Annual Assessment Costs attributable to the Common Facilities Maintenance Costs, a fraction having a numerator equal to the acreage of the Owner’s User specific Parcel and a denominator equal to the acreage of the Non-Hospital Real Estate.

(v) “Real Estate” shall mean all of the land contained within Intelliplex Park (including the Hospital Real Estate and the Non-Hospital Real Estate) which is described in the Final Plat for the Park as recorded in the Office of the Recorder of Shelby County, Indiana on the 26th day of August, 2004 as Instrument #2004007163, and re-recorded as Instrument #2004007295 on the 31st day of August, 2004, comprising a total of 141.734 acres (including dedicated streets), together with any additional land incorporated into the Park by the Developer as provided in Section 9.01.

(w) “User Specific Parcel” shall mean the remaining portion of each Parcel after excluding each part of the Parcel contained within a Common Facility Easement.

ARTICLE 2

Real Estate Subject to this Declaration

The Real Estate, each portion thereof, and all improvements thereon shall be held, transferred, sold, conveyed, leased, mortgaged and occupied subject to the terms, provisions, covenants and conditions of this Declaration.

ARTICLE 3

Intelliplex Park
Owners Association, Inc.

Section 3.01. Membership. Every Owner, including the Developer, of all or any portion of the Real Estate shall be a Member. The membership of a person or entity in the Association shall commence upon becoming an Owner and shall terminate upon ceasing to be an Owner. Membership shall be appurtenant to the Parcel giving rise to such membership and shall not be assigned or transferred except as a part of and in connection with the conveyance of the parcel to the new Owner.

Section 3.02. Members Rights and Duties. Each Member shall have the rights, duties and obligations set forth in this Declaration and all amendments duly made hereto in accordance with Section 9.01.

Section 3.03. Votes of Members. With respect to each matter on which a Member is entitled to vote, the Member shall have the right to cast that number of votes equal to the number of acres of the User Specific Parcel of which the Member is then the Owner. Fractional acreage shall entitle a Member to fractional votes. The Developer shall make the determination of all acreage for purposes of determining the number of votes to which each Member is entitled, and such determination made in good faith shall be final and binding. Co-Owners shall have the right to cast in the aggregate only that number of votes to which a single Owner of the Co-Owners’ User Specific Parcel would be entitled. The aggregate vote of Co-Owners of any User Specific Parcel may be cast by any one of them unless an objection or protest is made by one of the Co-Owners, in which case the aggregate vote of all Co-Owners of the User Specific Parcel in question shall not be counted.

Section 3.04. Board of Directors. The number of directors of the Association shall be three (3). Until such time as the undeveloped acreage of the Real Estate is less than fifteen percent (15%) of the total acreage of the Real Estate, the Developer shall be entitled to appoint two (2) of the directors, and the remaining director shall be elected by the Members (other than the Developer). At the first annual meeting of the Members held after the date on which the undeveloped acreage of the Real Estate is less than fifteen percent (15%) of the total acreage of the Real Estate, all directors appointed by the Developer shall resign, and all directors of the Association shall thereafter be elected by the Members, including the Developer if the Developer is a Member at that time.

ARTICLE 4
Site Development Plan

Section 4.01. Composition of Architectural Control Committee. Prior to the first annual meeting of the Members held after the date on which the undeveloped acreage of the Real Estate is less than fifteen (15%) percent of the total acreage of the Real Estate, the Architectural Control Committee shall consist of five (5) persons and shall be the following: a) two (2) appointed by Major Hospital; b) the City Engineer for the City of Shelbyville, Indiana; c) the President of the City of Shelbyville Economic Redevelopment Commission; and d) one person selected by Owners by majority vote. Thereafter, the Architectural Control Committee shall consist of five (5) persons named by the Board of Directors of the Association.

Section 4.02. Architectural Control Committee Approval. All buildings, structures, alterations, additions, improvements, construction or remodeling on any Parcel, including any signs, lighting, landscaping, driveways, parking area or other changes in the character of the Parcel, shall be approved by the Architectural Control Committee prior to commencement of construction. Such approval shall be obtained in the following manner:

(a) Prior to obtaining detailed architectural plans, the Owner of the Parcel and its architect or engineer shall submit to the Architectural Control Committee preliminary renderings of elevations, a preliminary grading plan and a plot plan. The Architectural Control Committee shall, within thirty (30) days after receipt of such plans, either give written approval indicating such plans comply with this Declaration (“Initial Approval”) or give written disapproval specifically stating the reasons for such disapproval.

(b) After obtaining the Initial Approval of the Architectural Control Committee, the Owner shall submit to the Architectural Control Committee a site plan and a stamped set of final plans and specifications (the “Site Development Plan”) showing the size and location of each building and other improvements, building elevations, parking areas, driveways, exterior signage, exterior lighting, green areas and other landscaping, grading, site drainage, utilities, trash storage and handling facilities, vehicular access to and from the Parcel, and the type, quality and color of exterior building materials, no later than the date upon which such Site Development Plan is submitted to the appropriate governmental agency for its approval. Within thirty (30) days after receipt of the Site Development Plan, the Architectural Control Committee shall either give its written approval thereof (“Final Approval”) or give written disapproval specifically stating the reasons for such disapproval.

(c) Final Approval by the Architectural Control Committee will be based on the acceptability of the Site Development Plan with respect to all factors which, in the opinion of the Architectural Control Committee, affect the desirability or suitability of the proposed construction or alteration. Factors to be considered shall include, but not be limited to, compatibility of the proposed construction or alteration with the general nature and theme of the Park; quality of workmanship and materials; quality, color and texture of exterior materials and harmony of external design with surrounding structures; location with respect to topography; effect of the construction or alteration on the outlook from surrounding property (whether from within or outside the Park); the adequacy and location of on-site parking; percentage of building and parking area to total area of the Parcel; height of buildings; set backs from boundary lines; traffic flow; safety and health hazards; and appropriateness of landscaping, drainage and design. In each case, the proposed improvements, construction and other side work as well as the Owner’s use of the Parcel must comply with all applicable laws, ordinances, and regulations and with any specific standards or restrictions contained in this Declaration. In addition, all actual construction, improvements and other site work shall comply with the Site Development Plan for which Final Approval is given.

ARTICLE 5
Common Facility Easements

Section 5.01. Developer may, but shall not be obligated to convey its interest in and to that portion of the Real Estate which is within a Common Facility Easement to the Association to be held and maintained by the Association in accordance with this Declaration.

Section 5.02. Rights of Owners. Each Owner and other Benefitted Party shall have a non-exclusive right and easement to use, in common with every other Owner and Benefitted Party, each Common Facility Easement created pursuant to a duly recorded instrument which designates the easement as a Common Facility Easement or which provides for the common use and enjoyment thereof by all Owners and Benefitted Parties. The use by the Benefitted Parties of each Common Facility Easement shall be limited to the purposes set forth in the instrument creating the Common Facility Easement; provided, however, that the Owner of a Parcel subject to a Common Facility Easement shall retain the right to use the portion of the Owner’s Parcel burdened by such easement for other purposes to the extent not inconsistent with the purpose of the Common Facility Easement. Any Common Facility Easement granted to the Association shall constitute an easement for the common use and benefit of all Owners and Benefitted Parties. The rights of each Owner and Benefitted Party in and to each Common Facility Easement shall be subject to (i) the terms and provisions of the duly recorded instrument creating the easement including, but not limited to, any right of extinguishment or relocation set forth therein and (ii) the right of the Association to regulate the use of the Common Facility Easement for the benefit of all Owners and Benefitted Parties.

Section 5.03. Maintenance of Common Facility Easements.

(a) Each Owner shall (i) keep any portion of a Common Facility Easement located on the Owner’s Parcel free of litter, weeds, trash and debris and (ii) maintain all lawn areas and landscaping within each portion of a Common Facility Easement located on the Owner’s Parcel, including regular mowing of all lawn areas and trimming, maintenance and, when necessary, replacement of shrubbery.

(b) Except (i) as provided in foregoing Subsection (a) and (ii) repair, maintenance or replacement of a Common Facility which is the responsibility of any utility company or public or quasi-public body, the Association shall maintain each Common Facility in good order and repair. The Association shall not, however, be liable to any Owner, Benefitted Party or other person or entity for damages to property or injury or death to persons arising out of any failure to repair and maintain any Common Facility. Maintenance, repair or replacement by the Association of a Common Facility shall be performed in a manner which does not unreasonably delay or interfere with the Benefitted Parties’ use of the Common Facility or an Owner’s use of its Parcel. The Association shall have reasonable access over and across any parcel to a Common Facility Easement to the extend necessary to permit the Association to maintain, repair or replace such Common Facility. Maintenance by the Association of the Common Facilities shall include, but not be limited to, the following:

(i) The private roadways and any sidewalks within the Common Facility Easements shall be swept and, to the extent reasonably possible, snow and ice shall be removed therefrom.

(ii) The lighting signs, islands and other private street improvements located within a Common Facility Easement shall be maintained in good repair.

(iii) Landscaping, including lawn areas, trees and shrubbery within any Common Facility Easement at any entrance to the Park, shall be maintained in a first-class condition by cutting, trimming, feeding and weeding.

(iv) The detention ponds, drainage pipes, outlet control structures and other drainage facilities constituting a part of any Common Facility shall be maintained in good working order.
(v) The land and any improvements lawfully constructed in the Common Facility Easement shall be restored to the extent damaged in connection with maintenance, repair or replacement of any Common Facility by the Association.

The Association shall be entitled to replace any improvement constituting a part of a Common Facility when necessary for the proper functioning of the Common Facility.

ARTICLE 6
Certain Use and Development Standards

Section 6.01. Building to Land Ratio. The ratio of the building area to the total land area of each Parcel shall not exceed fifty percent (50%) of the land area of the Parcel. The Architectural Control Committee may waive or vary this requirement at the request of any Owner, considering the location within the Park of such building and the use thereof, but in no event shall the building area exceed seventy percent (70%) of the land area of any Parcel. Where more than one building is constructed on a Parcel as an Integrated Project, the building area shall be the sum of the areas of the buildings within the Parcel.

Section 6.02. Setback Requirements. No building shall be located on any Parcel in violation of any applicable building set-back requirements imposed by the Appropriate Zoning Authority or otherwise applicable pursuant to any law, statute, code, ordinance, rule or regulation or any special exception or variance thereto. The open areas located between property lines and the applicable building setback lines shall be maintained and preserved as green areas and landscaped in accordance with the Site Development Plan originally approved by the Architectural Control Committee or, with the prior written approval of the Architectural Control Committee, may be used as parking areas.

Section 6.03. Driveways and Parking. All driveways and parking areas located within a User Specific Parcel shall be paved in accordance with the specifications originally approved therefor by the Architectural Control Committee. Each Owner shall designate parking spaces on its User Specific Parcel and shall require all persons coming onto its User Specific Parcel to park in the designated spaces. All parking facilities on a User Specific Parcel must comply with the applicable zoning ordinance unless a waiver of the parking requirements is obtained from both the Appropriate Zoning Authority and the Architectural Control Committee. No parking shall be permitted on any driveway or street located within a User Specific Parcel, and no Owner shall permit parking related to is Parcel to encroach on the parking for other Parcels or nearby parking areas except with the express written consent of the Owners of such other areas. Each Owner shall be responsible for constructing the driveways and parking areas on its User Specific Parcel and shall maintain such areas including, but not limited to, keeping such areas clean and promptly removing ice and snow therefrom. Each Owner shall extend any driveway on its User Specific Parcel to the then existing access road upon or adjacent to the Owner’s Parcel even though a portion of the extension may extend beyond its User Specific Parcel and into the right-of-way of the access road.

 

Section 6.04. Height. Any portion of any building or other improvements located within five hundred (500) feet of any adjoining residential property shall not exceed thirty-five (35) feet in vertical height.

 

Section 6.05. Outside Storage. Outside storage of raw materials, finished products and equipment must be visually screened from all sides. The location and screening of all outside storage shall be subject to the approval of the Architectural Control Committee.

 

Section 6.06. Loading. Front yard loading shall be permitted on a Parcel only if approved by both the Appropriate Zoning Authority and the Architectural Control Committee. In determining whether to grant such approval, the Architectural Control Committee shall take into consideration the compatibility of front loading with the structures and uses both within and outside the Park in the vicinity of the Parcel, the appropriateness of screening the front loading area by use of closely planted, high-growing plants or other suitable screening, and the extent to which the efficient and economical use of the Parcel and

the building thereon requires multi-sided loading areas by reason of, among other things, the fronting of the Parcel on more than one street. Screening required by either the Appropriate Zoning Authority or the Architectural Control Committee shall be shown in detail on the Site Development Plan. The Appropriate Zoning Authority may require the Owner of the Parcel to post a bond in an amount sufficient to cover the cost of installing such screening.

 

Section 6.07. Signs. The location, size and construction of signs shall be in accordance with all applicable laws and ordinances and shall be subject to the prior approval of the Architectural Control Committee. All wall signs must be mounted flat on the surface of the walls and may not project above the roof line. No hand-painted, animated or flashing signs will be permitted.

 

Section 6.8. Maintenance of User Specific Parcels. Each Owner shall be responsible for the maintenance of its User Specific Parcel and the improvements thereon and shall keep the exterior of its building painted and in a sightly condition. All parking areas and driveways shall be paved with asphalt or concrete and maintained in good condition and repair. This maintenance obligation shall be in addition to each Owner’s maintenance obligations under Section 5.03 (a) with respect to each portion of a Common Facility Easement located upon its Parcel. Without limiting the generality of the foregoing, (i) each Owner shall maintain each of its buildings in good condition and repair and keep the exterior of each building as well as all other portions of its User Specific Parcel in an attractive condition; (ii) no nuisance shall be maintained within the Park; (iii) each Owner shall keep its User Specific Parcel free of litter, weeds, trash and debris; (iv) landscaping on the Owner’s User Specific Parcel shall be maintained in the locations and in at least the quality and quantity originally approved by the Architectural Control Committee; (v) the pavement of all parking areas and driveways within the Owner’s User Specific Parcel shall be maintained in good condition and repair, free of potholes and shall be re-striped as needed; and (vi) each User Specific Parcel and the improvements thereon shall at all times comply with governmental, health and police requirements.

 

Section 6.09. Landscaping and Site Work. Landscaping plans shall be submitted to the Architectural Control Committee at the same time as the Site Development Plan is submitted. Each Owner shall be required to demonstrate that its use of the Parcel in designing and constructing improvements thereon preserves to the greatest extent possible the natural condition of the Parcel, including any trees located thereon. Lawns, trees and shrubs shall be maintained by the Owners of each Parcel. Unpaved sections of each Parcel shall be maintained in grass and landscaping, including any portion of the Parcel within a public or street right-of-way. No fence, wall, tree, hedge or shrub-planting shall be maintained in such manner as to obstruct sight lines for vehicular traffic.

Section 6.10. Public Roadways and Roadways Constituting a Common Facility. Any roadways constructed by the Developer in the Park to be dedicated as public rights-of-way shall be constructed at the Developer’s expense in accordance with the specifications required by the appropriate governmental agency. Any road or roads constructed hereafter may be either public or private roads, at Developer’s option.

Section 6.11. Parking Prohibition. Parking of any vehicles on any dedicated street within the Park or on any roadway within a Common Facility Easement shall be prohibited.

Section 6.12. Prohibited Uses. The following uses shall be prohibited in the Park:

(a) The manufacture, storage or distribution of products which increase fire, explosion or radioactive hazards on adjacent Parcels or areas adjacent to the Park;

(b) Any business or operation which creates a public or private nuisance, noise, or causes emission of dust, odor, smoke or gases;

(c) Any residential dwellings;

(d) Any amusement or game rooms or similar establishments including, but not limited to, the use of pinball machines, electronic games or similar apparatus;

(e) A massage parlor or similar facility;

(f) The sale or display of pornographic or “adult” materials; and

(g) Any building, improvement or use which violates the applicable zoning ordinance or any other applicable law or regulation.

Section 6.13. Applicable Zoning Ordinance. The building lines, setbacks, permitted uses and other matters relating to the construction, maintenance or use of improvements in the enter shall be subject to the applicable zoning ordinance and building codes, as amended from time to time, and all other applicable laws, rules, regulations and ordinances, each of which shall remain fully enforceable by the proper governmental authority notwithstanding any provision of this Declaration. The validity and enforceability of any standard, restriction or condition under this Declaration which is more stringent than, or is in addition to, any standard or restriction imposed under applicable law shall remain valid and fully enforceable in accordance with the terms of this Declaration.

Section 6.14. Modification of Restrictions. The Architectural Control Committee shall have the authority, upon the affirmative vote of two thirds (2/3) of the members of such Committee, to vary any of the covenants, restrictions and standards contained in this Article 6.

ARTICLE 7
Assessments

Section 7.01. Covenant for Assessments. Each Owner (including the Developer) covenants and agrees, by the execution of this Declaration in the case of the Developer and by acceptance of a deed for the Owner’s Parcel in the case of each subsequent Owner (regardless of whether expressly stated in such deed), to timely pay the Association each payment of the Owner’s Proportionate Share of Annual Assessment Costs which becomes due and payable during the period in which such Owner owns its Parcel.

Section 7.02. Establishing Annual Assessments; Payment. Prior to February 28 of each calendar year, the Board of Directors of the Association shall adopt an estimated budget of Annual Assessment Costs for the calendar year (the “Annual Budget”) and provide a copy of the Annual Budget to each Owner on or before March 15 of such calendar year. Each Owner shall then pay its Proportionate Share of the estimated Annual Assessment Costs set forth in the Annual Budget in equal quarterly payments due on March 31, June 30, September 30 and December 31 of each calendar year. In the event of any extraordinary item of Annual Assessment Costs incurred by the Association during a calendar year but not included, in the Annual Budget for such year, each Owner shall pay to the Association its Proportionate Share of each such item within thirty (30) days after receiving a statement therefor from the Association. On or before March 15 of each calendar year, the Association shall furnish to each Owner a statement (the “Annual Statement”) setting forth the total amount of Annual Assessment Costs incurred by the Association for the preceding calendar year, the Owner’s Proportionate Share thereof and the amount thereof previously paid by the Owner or a predecessor Owner. The Association shall refund any overpayment to the then Owner at the time the Annual Statement is furnished, and in the case of an underpayment, the then Owner shall pay the amount thereof to the Association within thirty (30) days after receipt of the Annual Statement. In the event the Association fails to provide any Owner with an Annual Budget or Annual Statement on or before the applicable date specified above, the Owner shall not be relieved from its obligation to pay its Proportionate Share of Annual Assessment Costs, but in such event the Owner’s payment shall not be due and payable until thirty (30) days after receipt from the Association of an appropriate statement of the amount due from the Owner.

Section 7.03. Personal Obligation. The amount of each payment of Annual Assessment Costs for each calendar year attributable to ownership of a given Parcel shall constitute the personal obligation of the person or entity which is the record Owner of the Parcel on the date the payment of Annual Assessment Costs becomes due and payable, and no Owner shall be personally obligated to pay any payment of Annual Assessment Costs which becomes due and payable either before or after the period during which the Owner is the record Owner of its Parcel.

Section 7.04. Assessment Liens. In the event of an Owner’s failure to timely pay its Proportionate Share of any payment of Annual Assessment Cost, the delinquent amount owed by such Owner shall constitute a lien upon the Owner’s Parcel as of the date the Association records an affidavit with the Recorder of Shelby County, Indiana containing the legal description of the Owner’s Parcel and stating the name of the Owner, the delinquent amount owed by the Owner and the date on which such amount was due and payable. Such lien shall encumber the defaulting Owner’s entire interest in its Parcel, run in favor of the Association and be enforceable in the same manner as a mortgage, provided that any such lien shall be subordinate to the lien of any bona fide first mortgage to an unrelated third party then existing on the Parcel. The sale, conveyance or other transfer of any Parcel or interest therein shall not in any manner alter or impair any assessment lien on the Parcel or the right hereunder of the Association to enforce or impose an assessment lien upon the Parcel. Without limiting the generality of the foregoing, in the event a delinquency arises with respect to which the Association is entitled hereunder to impose and enforce a lien upon a Parcel, such right shall continue notwithstanding that the Parcel or any interest therein is sold, conveyed or otherwise transferred after such delinquency arises but before the assessment lien therefor is imposed as provided herein.

Section 7.05. Additional Costs. Each sum owed hereunder by an Owner shall be due and payable by such Owner without relief from valuation and appraisement laws and together with costs of collection, attorney fees and, if delinquent for more than thirty (30) days, with interest at the rate of eighteen percent (18%) per annum from the date due until paid. In the event a delinquent sum is made a lien upon a Parcel in accordance with the terms and provisions of this Declaration, the related collection costs, attorney fees and interest on such delinquent sum shall constitute a further lien upon the Parcel.

Section 7.06. Certificate of Unpaid Assessments. Within fifteen (15) days after written request by the Owner of a Parcel or the holder of a mortgage on a Parcel, the Association shall provide the Owner or holder of such mortgage with a certificate stating the delinquent amount, if any, of Annual Assessment Costs with respect to such Parcel.

ARTICLE 8
Enforcement

Section 8.01. General. The Association shall be entitled to enforce the covenants, conditions and restrictions imposed under or in accordance with this Declaration, and may pursue the rights and remedies provided in this Article and any other rights and remedies available to the Association under this Declaration or at law or in equity. The rights and remedies of the Association shall be cumulative; no one right or remedy shall be construed as exclusive of any other; and the exercise of any one right or remedy by the Association shall not preclude it from exercising any other right or remedy at the same or any subsequent time. The foregoing dedication, restrictions and protective covenants are to run with the land and shall be binding on all parties and all persons claiming under them until fifty (50) years from the date hereof, at which time said covenants or restrictions shall be automatically extended for successive periods of ten (10) years unless changed by the majority vote of the Members. Invalidation of any one or more of these covenants by judgment of a court of competent jurisdiction shall in no way affect any other covenants or restriction, which shall remain in full force and effect.


Section 8.02. Nonpayment of Assessments. If payment of an Owner’s Proportionate Share of Annual Assessment Costs is not timely made, the Association shall be entitled to recover the delinquency, together with collection costs, attorney fees and interest as provided in Section 7.05, by instituting legal action against the person or entity personally obligated to pay the delinquency. In addition, the Association may seek to recover the delinquency, together with collection costs, attorney fees and interest as provided in Section 7.05, by foreclosing the lien therefor imposed pursuant to this Declaration upon the Parcel to which the delinquency relates, and the Association or the Developer shall be entitled to purchase such Parcel at the foreclosure sale.

Section 8.03. Enforcement of Other Covenants. In the event an Owner, lessee, occupant or other user of a Parcel violates or fails to perform any covenant, condition or restriction of this Declaration (other than the covenant to pay Annual Assessment Costs) and such failure continues for thirty (30) days after written notice thereof from the Association to the Owner, the Association shall be entitled to institute an action for enforcement of this Declaration and for damages or injunctive relief, or both.

Section 8.04. Substituted Performance. At any time after thirty (30) days written notice to an Owner of a violation under this Declaration, the Association or its designee shall be entitled to enter upon the Owner’s Parcel and to cure such violation. The cost incurred by the Association in curing such violation shall be immediately due and payable, together with collection costs, attorney fees and interest as provided in Section 7.05, in the same manner as a delinquent payment of Annual Assessment Costs.

Section 8.05. Limitation on Personal Liability. The Owner of a Parcel shall be personally obligated to pay a sum of money payable under the terms of this Declaration by the Owner of such Parcel only if such sum becomes due and payable on a date during the period in which such Owner is the record Owner of the Parcel; and an Owner of a Parcel shall be personally obligated to perform any other obligation imposed hereunder upon the Owner of such Parcel only if and to the extent that such obligation is required to be performed during the period in which such Owner is the record Owner of such Parcel.

Section 8.06. No Forfeiture. There shall be no right of reversion or forfeiture of title resulting from any violation of this Declaration.

ARTICLE 9
General Provisions

Section 9.01. Amendments. This Declaration may be amended upon the subject to the following terms and conditions:

(a) During the period that the Developer is entitled to appoint a majority of the directors of the Association, the Developer reserves the right unilaterally to amend and revise the standards, covenants and restrictions contained in this Declaration. Any such amendment by the Developer shall be effective when executed by the Developer and recorded in the Office of the Recorder of Shelby County, Indiana. No such unilateral amendment shall, however, (i) restrict or diminish the rights, nor disproportionately increase the obligations, of any person or entity which is an Owner at the time the amendment becomes effective, or (ii) grant or establish any easement through, across or over any Parcel not owned by the Developer when the amendment becomes effective. The Developer shall also be entitled unilaterally to amend this Declaration to include additional land as a part of the Park subject to the covenants, restrictions and standards contained herein and, unless designated by the Developer as Hospital Real Estate, any such additional land shall be Non-Hospital Real Estate.

(b) At any time after the Developer is no longer entitled to appoint a majority of the directors of the Association, this Declaration may be amended by the affirmative vote of 75% or more of the votes of all Members of the Association. Any such amendment shall become effective when duly executed and recorded with the Office of the Recorder of Shelby County, Indiana.

Section 9.02. Binding Effect. The covenants, restrictions and conditions contained in this Declaration shall run with the land and bind the Developer and each immediate and remote successor Owner of any Parcel and their respective legal representatives, successors and assigns subject, however, to the limitation on personal liability set forth in Sections 7.03 and 8.05.

Section 9.03. Interpretation. The Article and Section headings or titles used in this Declaration are inserted and included solely for convenience and shall in no manner be considered or given any effect in construing this Declaration. All references in this Declaration to Articles and Sections are to Articles and Sections contained in this Declaration unless a different document is expressly specified. All pronouns used herein shall include the other genders whether used in the masculine, feminine or neuter gender, and the singular shall include the plural whenever and as often as may be appropriate.

Section 9.04. Severability. If any covenant, condition, restriction or other term or provision of this Declaration or the application thereof to any person, Parcel or circumstance, is ever held to be invalid or unenforceable, then in each such event the remainder of this Declaration or the application of such covenant, restriction, condition or other term or provision to any other person, Parcel or other circumstance (other than the extent to which it shall have been held invalid or unenforceable) shall not be thereby affected, and each covenants, restriction, condition or other term and provision of this Declaration shall remain valid and enforceable to the fullest extent permitted by law.

EXECUTED this ______ day of _______________, 2004.

 

MAJOR HOSPITAL

 

By________________________

________________________
(Printed Name & Office)

 

STATE OF INDIANA, COUNTY OF SHELBY, SS:


Before me, a Notary Public in and for said County and State, this _____ day of ____________, 2004, personally appeared Major Hospital, by ________________________, its ____________, who being first duly sworn upon oath, affirmed, under the penalties of perjury, that the foregoing representations are true.

________________________________
Notary Public

My Comm. Exp.: _____________

County of Residence: _______________

 

 


   
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Phone: (317) 421-5729
Email: rclaxton@majorhospital.org