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HomeMy WebLinkAbout93-230 Recorded . FILED 1- i; KANE ILL. 93K68272 T3SEP -7 PH 1: 00 State of Illinois) County of Kane ) ss. `a City of Elgin ) RECORDER CERTIFICATE OF CITY CLERK I, Dolonna Mecum, DO HEREBY CERTIFY that I am the City Clerk of the City of Elgin, in the Counties of Kane and Cook in the State of Illinois, and that as such City Clerk I am the keeper and custodian of the files and records of said City of Elgin and the seal thereof . I DO FURTHER CERTIFY that the attached is a full, true, and correct copy of Resolution No. 93-230 entitled "Resolution Accepting and Approving Declaration of Covenants, Easements and Restrictions (Fox Bluff Corporate Center) " adopted August 25, 1993, the original of which is entrusted to my care for safe keeping. In Witness Whereof, I have hereunto set my hand and (-TN affixed the corporate seal of the City of Elgin at the said ` ^? City in the County and State aforesaid this 26th day of August, 1993 . ;I) • City Clerk (SEAL) Iy 11 c , rte: 0 CHICAGO TITLE INSURANCE CO. / Kane County Office Geneva,Minor 60134 Phony ..-2750 Resolution No. 93-230 RESOLUTION ACCEPTING AND APPROVING DECLARATION OF COVENANTS, EASEMENTS AND RESTRICTIONS (Fox Bluff Corporate Center) BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that the Declaration of Covenants, Easements and Restrictions for the property legally described in the Declaration and commonly known as the Fox Bluff Corporate Center be and is hereby approved, a copy of same being attached hereto and made a part hereof by reference. BE IT FURTHER RESOLVED that the City Clerk is hereby authorized and directed to cause the Declaration of Covenants, Easements and Restrictions to be recorded in the office of the Recorder of Deeds of Kane County, Illinois . s/ George VanDeVoorde George VanDeVoorde, Mayor Presented: August 25, 1993 Adopted: August 25, 1993 Vote: Yeas 7 Nays 0 Recorded: Attest: s/ Dolonna Mecum Dolonna Mecum, City Clerk Mail to: City Clerk City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 DECLARATION OF COVENANTS, EASEMENTS AND RESTRICTIONS FOR FOX BLUFF CORPORATE CENTER ARTICLE 1 Property Subject to Declaration Section 1 . 1 The real property ("Subject Property") that is and shall be held, transferred, sold, conveyed, leased and occupied, subject to this Declara- tion, is located in the City of Elgin, County of Kane, State of Illinois, and is legally de- scribed as: "The Fox Bluff Corporate Center, being a subdi- vision of part of Section 27, Township 41 North, Range 8, East of the Third Principal Meridian, recorded as Document 92K59007, in the City of Elgin, Kane County, Illinois. " Purpose Section 1.2 The Subject Property is hereby made subject to the conditions, covenants, restrictions, ease- ments and reservations contained herein, each in accordance with the terms and provisions hereof, all of which shall be deemed to run with the Subject Property and each and every parcel thereof, to assure proper use and appro- priate development and improvements of the Subject Property so as to (a) protect the Owners and Tenants of Lots against such improper development and use of surrounding Lots as will depreciate the value and use of their Lots (b) prevent the erection on the Subject Proper- ty of structures constructed of improper or unsuitable materials or with improper quality and methods of construction; UD w (c) assure adequate and reasonably consistent development of the Subject Property; cn (d) encourage and assure the erection of at- tractively designed permanent improvements and landscaping appropriately located within the Subject Property in order to achieve harmonious appearance and function; �.1y (e) preserve the attractive design and quality and atmosphere of the Subject Property; (f) provide adequate off-street parking and loading facilities; and (g) generally promote the welfare and safety of the occupants, Tenants and Owners of Lots . Section 1. 3 Nothing contained within this Declaration shall in any way be construed to waive or supersede the ordinances and regulations of the City of Elgin. To the extent that any current or future ordinances or regulations of the City of Elgin are more restrictive than the covenants and restrictions contained with- in this Declaration, then those more restric- tive ordinances and regulations of the City shall be deemed to apply and shall control activities within the subject property. ARTICLE 2 Definitions The following words, when used in this Declaration or any Supplementary Declaration, unless the context shall prohibit, shall have the following meanings: "Declaration" shall mean this Declaration of Protective Cove- nants, Easements, Conditions and Restrictions, as the same may be hereinafter modified, amended or extended in accor- dance with the terms hereof. "Developer" shall mean the City of Elgin, a municipal corpora- tion, its assigns or designated agent(s) . "Association" shall mean the Fox Bluff Corporate Center Prop- erty Owners Association, an Illinois Corporation, its succes- sors, assigns or designated agent(s) . "Improvements" shall mean and include, but are not limited 2- to, buildings, outbuildings, parking areas, loading areas, roads, driveways, curbs and curb cuts, pedestrian walkways, stairs, decks, hedges, landscaping, plantings, lakes, poles, r signs, ponds, fences, outdoor lighting, screening walls and barriers, retaining walls, transformers, window breaks, side- walks, planted trees and shrubs, and all other structures or landscaping improvements of every type and kind. (� 2 "Owner" shall mean any party or parties owning record fee title to a building site at a given time according to the records of the Recorder of Deeds of Kane County, Illinois. "Tenant" shall mean any occupant of any building located on a Lot, or any portion of such a building, whether such occupan- cy is pursuant to a written lease or an oral tenancy, includ- ing any occupant holding over possession upon expiration of its lease term. "Storm Water Control Facilities" - shall mean those facili- ties located within the Subject Property which function for the express purpose of maintaining and controlling proper runoff and drainage of storm water. "Subject Property" shall mean the real property described in both Exhibit "A" (Final Plat) attached hereto and incorporat- ed by references herein, plus such additional property, if any, which may hereafter from time to time be subject to this Declaration. "City" shall mean the City of Elgin, Illinois. "Lot" shall mean a lot of record as defined under the City of Elgin Zoning Ordinance and being a portion of the Subject Property, under common fee ownership, used for or intended to be used for the construction of a nonresidential structure which has frontage upon a street or accessway. "Final Plat" shall mean that Final Plat of Subdivision as recorded in the Office of the Recorder, Kane County, Illi- nois, on August 19, 1992, as amended by the vacation ordi- nance passed by the City of Elgin on August 28, 1993, provi- sions for the vacation of Chamber Drive and Cook Circle. ARTICLE 3 Easements 3. 1 Grant. Developer hereby grants to each and UD every Owner and Tenant, and their invitees, and to the Association, City of Elgin, Commonwealth Cy Edison, Illinois Bell Telephone Company, North- co ern Illinois Gas Company, the Fox River Water no Reclamation District, Jones Intercable, and to -.s such other parties as the Developer or the tv Association may hereafter designate, the follow- ing nonexclusive, perpetual easements: (a) Streets and Roads. An easement for the installation, operation, lighting, mainte- nance, repair and replacement of streets and roadways for access, ingress and egress, by vehicular and pedestrian traf- 3 fic, on, over and across those portions of the Subject Property as designated for roadway purposes on the Final Plat (Road- way Easement) , provided, however, that Developer may modify, adjust, amend and relocate such Roadway Easement Areas as may be reasonably necessary to accomplish the purposes of such easement. (b) Utilities. An easement for the installa- tion, operation, maintenance, repair, re- placement and relocation of underground lines, mains, conduits, pipes, cables, equipment and facilities for water, gas, electricity, sanitary sewers and other such utilities as Developer or the Associa- tion may designate, for the purpose of providing utility services to the various portions of the Subject Property, in, through and under those portions of the Subject Property designated on the Final Plat, and within the Roadway Easement (which areas are collectively referred to as the "Utility Easement Areas") , provid- ed, however, that Developer may modify, adjust, amend and relocate such Utility Easement Areas as may be reasonably neces- sary to accomplish the purposes of such easement. (c) Storm Water. An easement for the installa- tion, operation, maintenance, repair, replacement and relocation of underground storm water drainage sewers and above- ground storm water detention/retention ponds for the purpose of storm water con- trol, under, through and upon those por- tions of the Subject Property designated on the Final Plat (the "Storm Water Ease- ment Areas") , provided, however, that Developer may modify, adjust, amend and u:, relocate such Storm Water Easement Areas as may be reasonably necessary to accom- plish the purposes of such easement. c-; The Roadway Easement, the Utility Easement N% Areas, and the Storm Water Easement Areas are sometimes collectively referred to as the Ease- ment Areas. 3.2 Changes to Easement Areas (a) "As Built" Locations. Developer reserves the right to adjust the location of the 4 Easement Areas after instillation to re- flect the "as built" location thereof, provided, however, that the final size of the Easement Areas within which the above described utilities are placed shall at all times be adequate in the judgment of the City Engineer to permit the use of such Easement Areas for the purposes stat- ed herein, but nothing in this sub-para- graph (a) shall be deemed to authorize any substantial variation from the original location as described herein. 3. 3 Dedication of Roads. As soonas practicable after completion of construction of the streets required improvements thereon, the Roadway Easement Areas shall be dedicated to the City. Upon the acceptance of such dedication by the City, the rights of all grantees of the Roadway Easement Areas shall be subject to the rights of the City pursuant to such dedication. 3.4 Other Grantees. Developer reserves the right, in its sole discretion, to extend the benefit and right to use any or all of the foregoing easements to parties other than those specifi- cally designated in paragraph 3. 1 above, includ- ing without limitation for the benefit of other real property not located within the Subject Property (regardless of whether or not such other real property is contiguous to or separat- ed from the Subject Property) , provided, howev- er, that no such extension of the benefit or right to use any of said easements shall be made if, in the judgment of the City Engineer, such extension would overload or increase said particular easement beyond or above its intend- ed capacity. 3.5 Additional Maintenance Area Easements. Develop- er hereby reserves to itself, and grants to the Association, a nonexclusive and perpetual ease- UG ment for the purpose of maintenance, repair, CO and landscaping over, on and upon the following parts of the Subject Property: CT) c� (a) median strips within the Roadway Easement N Areas; (b) parkway areas between the lot lines of any Lot and the curbs of any street; (c) those portions of Lots on which are locat- ed retention or detention ponds serving 5 Lots other than solely the one on which said pond is situated; (d) Lot 44; The foregoing areas delineated in subparagraphs (a)-(d) above are sometimes collectively re- ferred to as the "Additional Maintenance Areas. 3. 6 Storm Water Management. In the event the Asso- ciation fails to properly maintain the above ground storm water detention/retention ponds in conformance with the ordinances of the City or so as to allow the continued proper function thereof, the City may enter the Subject Proper- ty to perform the necessary maintenance work and/or repairs to insure the proper maintenance and functions of said facilities, with the cost of said maintenance and repair work by the City to be borne by the Association and reimbursed to the City. Maintenance of said ground water detention/retention ponds shall include main- taining suitable landscaping in these areas which at the discretion of the Association may include on the banks of the ponds the placement of stone on the banks of said ponds. In the event stagnation problems occur in said ponds, the Association shall install aeration devices or other necessary devices to alleviate the stagnation of water. The Association shall and hereby does indemnify and hold the City harm- less from any and all costs, claims, causes of action or other expenses associated with the performance of such maintenance or repair work. 3.7 Common Area. (a) Developer hereby covenants for itself, its heirs, legal representatives, . successors or assigns and for all subsequent owners of lots which are part of the subject subdivision, that the areas on the final plat of said subdivision legally described in Exhibit A hereto, are hereby set aside as common area for storm water storage co retention/detention basins for so long as deemed necessary for that purpose by the City of Elgin and that Lot 44 on the final 0 plat of the subject subdivision is hereby r*� set aside as a common area for a landscape buffer for so long as deemed necessary for ti that purpose by the City of Elgin. Said cp entire "Common Area" is legally described on Exhibit A attached hereto. 6 (b) Developer shall grant and convey by appro- priate deed title to the Common . Area to the Association. The Association shall be responsible for the payment of taxes on and the maintenance of the Common Area. The Association shall also maintain liabil- ity insurance on the Common Areas in amounts as deemed appropriate by the Asso- ciation. The Association may not convey any portion of the Common Area unless and until receiving prior written consent from the City of Elgin. ARTICLE 4 Fox Bluff Corporate Center Property Owners Association 4. 1 Membership. There is hereby created the Fox Bluff Corporate Center Property Owners Associa- tion. Developer shall promptly take such steps as are necessary to incorporate the Association as an Illinois not-for-profit corporation. Each Owner of a Lot in the Subject Property shall automatically be a member of the Associa- tion. Membership shall be appurtenant to, and may not be separate from, and shall terminate upon the cessation of the ownership of a Lot in the Subject Property. The Developer shall also be a member for so long as the Developer owns any part of the Subject Property. Nothing herein shall preclude the Owner of a Lot from entering into a lease which, as between Owner and Tenant, shifts the rights and obligations of Owner unto the Tenant. 4.2 Voting Rights. The Association shall have two classes of voting membership: (a) Class A. Class A members shall be all Owners with the exception of Developer. Class A members shall be entitled to one co ( 1) vote for each one-tenth ( 1/10th) of an acre of fraction thereof of the Subject Property that it owns which is subject to assessment under this Declaration. When two or more persons or entities hold indi- -�: vidual interests in any Building Site, all such persons or entities shall be Class A members, and the vote for such Building Site shall be exercised as they may, among themselves, determine, but in no event shall more than one ( 1) vote be cast with respect to each one-tenth ( 1/10th) of an q acre or fraction thereof the Subject Prop- 7 / erty in which such members own undivided interests. (b) Class B. The Class B member shall be Developer. The Class B member shall be entitled to one ( 1) vote for each one-hun- dredth ( 1/100th) of an acre or fraction thereof the Subject Property that Develop- er owns which is subject to assessment under this Declaration. PROVIDED, HOWEV- ER, that from and after August 27, 1993, not withstanding any other provision of this Article, the Class B member shall be entitled to one ( 1) vote for each one- tenth ( 1/10th) of an acre or fraction thereof of the Subject Property that Devel- oper owns which is subject to assessment under this Declaration. Developer's votes may be cast by the Developer. 4 . 3 Board of Directors. The Association shall appoint a Board of Directors comprised of seven members. As long as the Developer continues to have an ownership in the Subject Property, the Developer shall appoint four members to the Board. The remaining members of the board will be elected by the Association membership. 4.4 By-Laws. The Association shall develop By-Laws by which the Association will be governed. 4.5 Powers of the Association and the Board. The Association shall have the powers and duties specifically conferred upon it by this Declara- tion and all other powers and duties reasonably necessary for the administration of the affairs of the Association, the ownership of the Common Area, the maintenance, management, operation, repair and replacement of the Additional Mainte- nance Areas and Common Area, and the protection of rights and enforcement of duties conferred under this Declaration. The Association's cAs powers and duties shall be exercised by the Board of Directors, in accordance with this CD Declaration, and the Articles and By-Laws of co the Association. The powers and duties shall ry include, without limiting the generality of the -�{ foregoing: N (a) The power and duty to pay for the follow- ing items of common expenses, if any, with respect to the Additional Maintenance Areas: �C. 8 (1) water, electrical, telephone and gas and any other necessary utility service; (ii) a policy or policies of fire insur- ance, with extended coverage en- dorsements; (iii) a public liability insurance policy or policies; (iv) such other insurance, including worker's compensation insurance, as required by law or as the Board may determine; (v) management services, to the extent deemed advisable by the Board, to who the Board, in its discretion, may delegate certain of its powers and duties, as well as the services of any other personnel as the Board may determine to be necessary; (vi) any legal and accounting services necessary or proper for the execu- tion of its functions; (vii) A fidelity bond covering the Trea- surer and any other representative of the Association (including mem- bers of the Board and other offi- cers who handle or are responsible for funds of the Association) , and such other persons as may be desig- nated by the Board; (viii) painting, maintenance, repair, gardening and landscaping; (ix) such furnishings, tools, equipment, appliances, and other personal property as the Board shall deter- mine are necessary or proper, and cothe Board shall have the right and duty to acquire the same; C) a; (x) provisions of security services for NJ the Subject Property (upon approval -- of a majority of the voting power n: of the Association) ; (xi) any other materials, supplies, labor, services, maintenance, re- f/ 9 pairs, structural alterations, insurance, taxes or assessments which the Board is authorized to secure or pay for pursuant to the terms of the Declaration, or By- Law, or which in its opinion shall be necessary or proper for the operation of the Additional Mainte- nance Areas, or for the enforcement of the Declaration, provided that if any such materials, supplies, labor, services, maintenance, re- pairs, structural alterations, insurance, taxes or assessments are provided for particular Building Sites, the cost thereof shall be specially assessed to the Owners of such Building Sites, unless other- wise authorized by this Declaration as a part of the common expenses. (b) The Board shall have the exclusive right to contract for all such goods, services and insurance referred to in this para- graph 4 .5, which right may be delegated by it. (c) The power and duty to designate a banking institution or institutions as depository for the Association's funds; and the offi- cer or officers from time to time author- ized to make withdrawals therefrom and to execute obligations on behalf of the Asso- ciation. (d) The power and duty to levy and collect assessments as provided in Article 5. 4 . 6 Indemnification. No member of the Board, nor any officers of the Association, shall be per- sonally liable to the Owners or the Association for any mistake of judgment or for any other acts or omissions of any nature whatsoever made in their capacity as such directors or offi- cers, except for any acts or omissions found by a court to constitute gross negligence or fraud. un The Association shall indemnify and hold harm- w less the directors and officers, their heirs and legal representatives, against all and 0) other liabilities to others arising out of their status as directors or officers, unless N' any such contract or act shall have been made fraudulently or with gross negligence. The / N 10 foregoing indemnification shall include indemni- fication against all costs and expenses (includ- ing, but not limited to, attorneys' fees, amount of judgments paid and amounts paid in settlement) actually and reasonably incurred in connection with the defense of any claim, ac- tion, suit or proceeding, whether civil, crimi- nal, administrative or other, in which any such direction or officer may be involved by virtue of being or having been such director or offi- cer; provided, however, that such indemnify shall not be operative with respect to any matter as to which such person shall have final- ly been adjudged by a court of competent and final jurisdiction to be liable for gross negli- gence of fraud in the performance of his/her duties as such director or officer. 4 .7 Rules and Regulations. The Board shall have the right, power and authority from time to time to establish such reasonable rules and regulations as deemed proper, for the effective implementation and administration of its powers and duties, including its power of enforcement, established under this Declaration. ARTICLE 5 Assessments 5. 1 Covenants for Assessments. The Developer, for each Lot owned by it within the Subject Proper- ty, hereby covenants, and each Owner of any Lot in the Subject Property, by acceptance of a deed or other conveyance therefore, whether or not it shall be so expressed in any such deed or other conveyance, shall be deemed to cove- nant to pay to the Association its Proportion- ate Share (as set forth in paragraph 5.7) of: ( 1) annual assessments or charges (as specified in Section 5. 3) , and (2) special assessments (as specified in Section 5.4) , all of such assessments to be fixed, established, and col- lected from time to time, as hereinafter provid- ed. In the case of an acceptance of deed or other conveyance at any time less than a full calen- (' dar year, the annual assessment shall be calcu- lated to reflect the Owner's pro rata share of the assessment based upon the time of convey- ance. ti tom.. 11 5.2 Purposes of Assessments. The assessments lev- ied by the Association shall be used exclusive- ly for carrying out the purposes, powers and duties of the Association, as stated in this Declaration, the Articles of Incorporation and by the By-Laws . The assessments shall be determined based upon the required costs to carry out the responsibil- ities of the Association relative to the Fox Bluff Corporate Center, including, but not necessarily limited to, sidewalk snow removal, lawn mowing, sign maintenance, landscaping maintenance, and maintenance of storm water detention/retention areas. 5.3 Annual Assessments. Annual assessments provid- ed for herein shall be levied, collected and administered on a calendar year basis. The first annual assessment provided for herein shall commence with the calendar year 1994, and shall continue thereafter from year to year. Assessments shall be paid annually in one pay- ment, which shall be due and payable on the first business day of the calendar year for which it is levied, and shall be considered delinquent if not paid in full to the Associa- tion by January 31 of said calendar year. The initial annual assessment for the calendar year 1994, shall be fixed by the Developer. Thereafter, on or prior to sixty (60) days before the end of each calendar year the Board shall estimate the common expenses to be re- quired during the twelve ( 12) month period commencing with the following January 1 (which may include a reasonable reserve for contingen- cies and replacements) less any estimated sur- plus in the common expense fund for the previ- ous fiscal year. The common expenses shall also include any amounts necessary to make up any anticipated excess of repair and restora- tion costs over insurance proceeds and any other amounts required by the terms of this Declaration. The total estimated amount of such common expenses shall be assessed to the Owners as of the following January 1. If said sum estimated proves inadequate for any reason, including nonpayment of any owner's assessment, r. . the Board may at any time levy a Special Assess- ment subject only to the provisions of para- -; graphs 5.4 and 5.5 hereof. Each Owner shall be obligated to pay to the Association its Propor- tionate Share of the total assessments for such / (27 12 a twelve ( 12) month period prior to the com- mencement of such a period. Failure of the Association to approve an assessment prior to January 1 shall not be deemed a waiver or modi- fication in any respect of the provisions here- of, or a release of the owners from the obliga- tion to pay the assessments, but the assessment fixed for the preceding twelve ( 12) month peri- od shall continue until a new assessment is fixed. No owner may exempt himself from liability for his Proportionate Share of the common expenses by waiver of the use or enjoyment of any of the Common Area or by abandonment of his Lot. 5.4 Special Assessments. The Association may, by vote of its members as set out in paragraph 5.5 hereof, levy in any assessment year or years a Special Assessment for the purpose of defray- ing, in whole or in part, the cost of any con- struction or reconstruction, unexpected repair or replacement of a capital improvement or for carrying out other purposes of the Association as stated in its Articles of Incorporation. Each owner shall pay such owner's Proportionate Share of such Special Assessments. The due date for any such Special Assessment shall be fixed by the Board. 5.5 Vote Required for Special Assessment. A Spe- cial Assessment of 50% of more of the annual assessment for the current year must be ap- proved by a two-thirds (2/3) majority of the votes of those Owners who shall vote in person or by proxy, at a meeting duly called for such purpose, written notice of which shall be given to all members at least thirty (30) days in advance and shall set forth the purpose of the meeting. 5.6 Intentionally omitted. 5.7 Proportionate Share. The "Proportionate Share" of any Owner shall mean the ratio which the total number of acres subject to assessment owned by such Owner bears to the total number of acres subject to assessment included within c: the Subject Property. For purposes of such calculations, acreage shall be calculated to the nearest two decimal places (i .e. , hun- dredths) . un- dredths) . / 13 Acres subject to assessment shall mean the total acreage included with the Subject Proper- ty, excluding the following exempt acreage: (a) all portions of the Subject Property dedi- cated to and accepted by any public author- ity; (b) all Additional Maintenance Areas; (c) all property included within the Road Easement Areas, whether or not such road has yet been dedicated or accepted; (d) properties owned by the federal government. 5 .8 Owner's Obligation for Payment of Assessments. It shall be the duty of every Owner of any portion of the Subject Property, except such portions exempted pursuant to paragraph 5.7 hereof, to pay its Proportionate Share of all assessments and special assessments, as provid- ed above. In the event legal title to a Lot is conveyed to a title holding land trust, no claim shall be made against such title holding land trustee personally for payment of said portion of assessments and/or special assess- ments. Said claim shall be made instead against the party or parties holding the benefi- cial interest under such a trust. In the event of default in the payment of any such assess- ment, the Owner of the Lot shall be obligated to pay interest at the Default Interest Rate as hereinafter defined on the amount of the assess- ment from the delinquent date thereof, together with all costs and expenses, including, but not limited to, attorney's fees incurred by the Association as a result of said default. The Default Interest Rate rate equals two per- centage points above the prime interest rate at NBD Elgin or its successor (or as listed in the Wall Street Journal) as of January 1 of each calendar year. 5.9 Assessment Lien and Foreclosure. All sums U2 assessed in the manner provided in this Article but unpaid, shall, together with interest as provided in Section 5.8 hereof, and the cost of a) collection, including attorney's fees as herein- after provided, constitute a continuing lien EN-) and charge on the Lot covered by such assess- ment, which shall bind such Lot in the hands of / the Owner thereof, and his heirs, devisees, -6 14 personal representatives, and assigns. The aforesaid lien shall be superior to all other liens, encumbrances and charges against the said Lot, except only for liens securing pay- ment of taxes, fees, special assessments and special taxes hereto or hereafter levied by any political subdivision or municipal corporation of this State, any other State or Federal taxes which by law are a lien on the interest of any such Owner prior to preexisting recorded encum- brances, and provided further, that such assess- ment lien shall be subordinate to the lien of a prior recorded institutional Mortgage encumber- ing a Lot, except for such amounts which become due and payable from and after the date on which the holder of such Institutional Mortgage either (i) takes possession of the Lot, or (ii) accepts a conveyance of any interest therein other than as security, or (iii) files suit to foreclose its mortgage. The Association shall have the power to subordinate the aforesaid assessment lien to any other lien. Such power shall be entirely discretionary with the Associ- ation. To evidence the aforesaid assessment lien, the Association shall prepare a written notice of assessment lien setting forth the amount of the unpaid indebtedness, the name of the Owner of such Lot covered by such lien and a description of such Lot. Such notice shall be signed by one of the officers of the Associa- tion and shall be recorded in the Office of the Recorder of Deeds of Kane County, Illinois. Such lien for payment of assessments shall attach with the priority above set forth from the date that such payment becomes delinquent, as set forth in Section 5. 3 above, and may be enforced by all available legal methods of collection including, but not limited to, the foreclosure of such lien by the Association in like manner as a mortgage on real property, subsequent to the recording of a notice of assessment lien as provided above, or the Asso- m ciation may institute suit against the Owner obligated to pay the assessment and/or for the foreclosure of the aforesaid lien judicially. ry In any foreclosure proceeding, whether judicial or not judicial, the Owner or beneficiary shall be required to pay the costs, expenses, and reasonable attorney's fees incurred by the Association. The Association shall have the power to bid on such Building Site at foreclo- sure or other legal sale and to acquire, hold, lease, mortgage, convey or otherwise deal with 15 the same. Upon the written request of any mortgagee holding a prior lien on any part of the Property, the Association shall report to said mortgagee any unpaid assessments remaining unpaid for longer than sixty (60) days after the same are due. 5. 11 Books and Records. The Association shall keep full and correct books of account in chronologi- cal order of all receipts and expenditures specifying and itemizing the maintenance and repair expenses of the Additional Maintenance Areas and Common Area and any other expenses in- curred. Such records shall be available for inspection by any Owner, at such reasonable time during normal business hours, upon request of said Owner. 5. 12 Annual Audit. The Association shall provide for an annual audit of all records . A copy of said annual audit shall be provided to all property owners. ARTICLE 6 Development Control Committee 6 . 1 Designation of Committee. The By-Laws of the Association shall establish a Development Con- trol Committee. It shall be the responsibility of the Development Control Committee to review plans and specifications for improvements to Lots in the Subject Property in order to assure compliance with the covenants and restrictions set forth in this Declaration and with City of Elgin development ordinances. 6 .2 Membership. The Development Control Committee shall consist of three (3) members. The ini- tial members of the Development Control Commit- tee shall be appointed by the Developer, and shall serve until the earlier of ( 1) the date on which the Developer, by written notice, relinquishes its right to appoint said members, or (2) January 1, 1996 provided, however, that until such date, Developer shall have the right, in its sole discretion, to replace any member of the Development Control Committee. After such date, the Board of Directors of the Association shall have the exclusive right and n= power, at any time and from time to time, to create and fill vacancies on the Development Control Committee. The vote of two (2) members /p- 16 shall constitute the action of the Development Control Committee. 6 . 3 Approval of Plans and Specifications. No im- provements shall be erected, constructed, placed, altered (by addition or deletion) , maintained or permitted to remain on any Lot until plans and specifications, as required pursuant to Section 6.4 hereof, shall have been submitted to and approved in writing by such committee. The Development Control Committee shall have the power to employ professional consultants to assist it in discharging its duties. 6 .4 Content of Plans and Specifications . The plans and specifications to be so submitted and ap- proved shall include the following: (a) A site plan showing existing and proposed contour grades and showing the location of all structures, walks, docks, driveways, and walls . Existing and finished grades shall be shown at lot corners and at cor- ners of proposed Improvements. Lot drain- age provisions shall be indicated as well as cut and fill details if any appreciable change in the lot contours is contemplated. (b) Exterior elevations and floor plan. (c) Exterior materials, colors, textures, and shapes. (d) Landscaping plan, including walkways and walls, elevation changes, watering sys- tems, vegetation, berms, and ground cover. (e) Parking area, including parking stalls, and driveway plan, and description of type of vehicles to be parked. (f) Screening, including size, location and method. (g) Signs, including size, shape, color, loca- �.y tion, and materials. cr. 6 .5 Conformance with City Development Standards. All plans and specifications submitted relative to improvements to a Lot in Subject Property must meet the City of Elgin standards governing land development. The City will review these plans and specifications for compliance prior 72. 17 to submission to the Development Control Commit- tee. At the option of any Owner, or prospective purchaser from any Owner, the Development Con- trol Committee will review preliminary or sche- matic plans, comprised of a site plan (includ- ing driveways and parking) , floor plans, and elevations (including materials therefore) . Based on such preliminary submissions, the Committee shall endeavor to give the applicant such assistance, guidance and preliminary ap- proval as may be available. Final plans and specifications detailed as set forth above, provided they conform to preliminary plans which have been approved by the Committee and otherwise comply with all of the requirements of this Declaration, will ordinarily meet with the approval of the Committee. 6 .6 Basis of Approval. Approval of plans and speci- fications shall be based, among other things, on generally accepted engineering principles, adequacy of site dimensions, architectural design, quality of proposed construction, con- formity and harmony of external design and of location with neighboring structures and sites, relation of finished grades and elevations to neighboring sites, conformity to the protective covenants set forth in this Declaration and conformity with any design criteria which may be adopted by the Committee, a copy of which shall be made available in the Association's offices to any Owner or prospective owner. The decision of the Development Control Committee, if consistent with this Declaration, shall be final, conclusive, and binding upon the appli- cant. In no event, however, shall plans and specffications violate City ordinances govern- ing land development. 6 .7 Failure of the Committee to Act. If the Devel- opment Control Committee fails to approve or to disapprove such plans and specifications or to reject them as being inadequate within sixty (60) days after submittal thereof, or, with respect to revisions to said plans which do not materially alter the plans which have previous- ,;� ly been approved by the Development Control Committee, within thirty (30) days after submit- tal thereof, it shall be conclusively presumed that such committee has approved such plans and ry specifications or revisions . If plans and specifications or revisions are not sufficient- 18 ly complete or are otherwise inadequate, the Development Control Committee may reject them as being inadequate or may approve part, condi- tionally or unconditionally, and reject the balance. 6. 8 Continued Compliance with Declaration. The Development Control Committee shall also have the power to monitor, supervise, administer and verify the continued compliance of Improvements on Lots with the provisions of this Declara- tion, and shall have such reasonable rights of inspection as are necessary, provided however that all such inspections shall be conducted at reasonable times, and in a manner which shall not unreasonably interfere with the business operations of any Owner. 6.9 Limitations of Liability. Neither the Develop- er, the Association, the Board of Directors, the Development Control Committee, nor any of the members of such committee or board, shall be liable, in damages or otherwise, to anyone submitting plans and specifications for approv- al, or to any Owner affected by this Declara- tion, by reason of mistake of judgment, negli- gence, or nonfeasance arising out of or in connection with the approval or disapproval or failure to approve or disapprove any plans and specifications. Every person who submits plans to the Development Control Committee for approv- al agrees, by submission of such plans, and every Owner, Tenant and mortgagee of any of the Lots agrees, by acquiring title thereto or an interest therein, that he will not bring any action or suit against the Developer, the Asso- ciation, the Board of Directors, the Develop- ment Control Committee, or any member of such committee or board, to recover damages. Not- withstanding anything to the contrary contained in this Section 6. 9, the aforesaid limitation of liability and waiver of right to sue shall not be applicable to damages arising out of the gross negligence or willful misconduct of Devel- oper, the Association, the Board of Directors, the Development Control Committee, or any of LO the members of such committee or board. tJ ARTICLE 7 CL Municipal Regulation of Improvements N 7. 1 Municipal Regulations. All improvements to N Lots in the Subject Property are subject to the 19 provisions of City of Elgin development ordi- nances. ARTICLE 8 Development and Design Standards 8. 1 The purpose of the Design Standards is to as- sist applicants in achieving a style, character and quality of architectural design which serves to enhance not only the individual facil- ity, but also the overall aesthetic goals of the Subject Property. 8.2 All buildings located on the Property shall be constructed with one or more of he following materials: (a) Face brick; stone. (b) Architectural precast concrete panel with decorative finish. (c) Combination architectural metal/glass curtain wall construction. (d) Approved equal as approved in writing by the Developer. 8.3 All buildings on an individual site shall be of similar, compatible design and materials. 8.4 Any roof top equipment, vents and ducts, visible from adjacent sites, streets and side- walks shall be screened. 8.5 Objects such as water towers, storage tanks, processing equipment, cooling towers, communica- tion towers, vents and any other improvements or equipment shall be compatible with the building architecture or screened from adjacent sites, streets and sidewalks. u: 8.6 All trash receptacles and storage areas, service c�" yards, electrical cage enclosures, incinerators and similar equipment for the disposal of materi- als, and storage tanks, shall be screened from view from access streets and adjacent properties by means of a fence, berm, or wall of dense opaque landscaping materials. All outside stor- age shall be confined to the rear one-half of the Lot. All outside storage shall be limited to ten feet in height. � Z 20 8 .7 Outside Storage and Equipment (a) No articles, goods, materials, fixed ma- chinery or equipment, trash, animals or similar items shall be stored or kept in the open or exposed to view. (b) Vehicles shall be stored in approved areas only. If vehicles are to be stored for more than 72 hours, they shall be stored in an area screened from adjacent sites, streets and sidewalks. (c) Approval shall not be required for the temporary storage of materials, equipment and supplies needed for the construction of permanent improvements upon a site, provided they are completely removed imme- diately upon completion of construction. 8 . 8 Fences. No fence other than those provided for screening or vehicular parking area security shall be constructed unless written approval is secured from the Development Control Committee. 8. 9 Signs. No permanent or temporary signs (includ- ing temporary construction period signs) shall be permitted without prior written approval of the Development Control Committee. A City of Elgin permit must also be obtained after Commit- tee approval. No signs, billboards or advertising devices of any kind shall be placed or otherwise installed on any Lot or improvement, except such signs as may be necessary to identify the business con- ducted on such Lot, directional signs, informa- tion signs, and signs offering the premises for sale or lease. (a) Identification Signs (1) All identification signs are to be free standing, ground mounted units -,; no taller than eight feet high, and eighty square feet in size. (ii) No more than one sign per street NJ frontage per Lot is allowed. (iii) All identification signs shall be internally illuminated only. No flood lighting is permitted. 21 (iv) All identification signs shall be placed a minimum of ten feet from the curb of the driveway and fif- teen feet from the front property line along Bowes Road and ten feet from the front property line along other roads. Signs shall be single faced and mounted parallel to the street. (v) Identification signs may include the names of up to two occupants in a multi occupant building. Signs for buildings with more than two occupants shall include only the building address and name. Individ- ual occupancy identification shall be confined to on-site directories and/or building mounted identifica- tion. (b) Directional Signs (i) Directional signs are to be free- standing post and panel units with a standard height of four feet. (ii) All directional signs shall be double-faced and mounted perpendicu- lar to the street. Placement must be a minimum of ten feet from the curb of the driveway and conform to City setback requirements. (iii) Directional signs shall be non-illu- minated. (c) Temporary Signs There are two types of temporary signs allowed within the Subject Property - construction and real estate marketing. Only one of each type of temporary sign shall be permitted on a site at any given ' time and must be removed immediately upon completion of the construction or market- ing activity. Temporary signs shall be non-illuminated. (i) Temporary signs shall be of post and panel wood construction, and shall have a maximum total height of ten feet. All temporary signs shall have a 4 foot X 8 foot sin- czO 22 y a gle-faced panel and conform to City setback requirements . (d) Prohibited Signs All signs not expressly permitted in this Section are prohibited on the Subject Property. Such prohibited signs include, but are not limited to: Beacons Pennants Projecting Signs Roof Signs String of lights not permanently mounted Inflatable signs and tethered balloons 8. 10 Utility Installation (a) All permanent utility lines shall be under- ground. (b) No private sewage disposal facility shall be erected or maintained upon any part of the Subject Property. (c) All utility appurtenances, including tele- phone pedestals, utility meters, transform- ers, etc. , shall be screened. 8. 11 Site Lighting (a) Lights shall not be placed to cause glare or excessive light spillage on other sites; intensity shall be no greater than required for vehicle and pedestrian safety. (b) All parking area and driveway lighting shall be Gardco - Form 10 EH Arm Mount or similar fixture with rotatable segmented optical system and square pole, all with dark bronze anodized finish, and metal halide luminare. All pole bases are to w have matching base covers. All concretepole bases are to be at grade except in CD paved areas . In parking areas poles shall co not exceed twenty-one (21) feet in height. N ro (c) Building mounted lighting is restricted to loading and storage locations or similar service areas, side and rear building areas . Building mounted light fixtures shall be shielded and shall not project a y-� 23 above the fascia or roof line. The shields shall be painted to match the surface to which they are attached. 8. 12 Explosive Materials Prohibited The storage and use of explosive materials is prohibited. ARTICLE 9 Duration, Amendment and Variances 9 . 1 Each of the Covenants set forth herein shall continue and be binding through 20 years from the date of adoption, unless the then existing Owners elect to extend the Declaration for terms of ten ( 10) years. Such extensions must be by a two-thirds (2/3) vote of the Property Owners of record as of that date. The election must be completed sixty (60) days prior to said expiration date. Each Owner of record shall have voting rights as outlined in Section 4 .2 according to voting rights . 9 .2 The Developer, with the written consent of the Owners of record of one-half of the total acre- age in the Subject Property may alter, amend, change, modify, or revoke any of the provisions of this Declaration. Any of powers and rights, whether or not contained in this paragraph, conferred by this Declaration upon the Develop- er may be assigned by the Developer to any per- son, firm or corporation and may be exercised by any such assignee. 9. 3 Requests for deviations (variances) from the covenants shall be made in writing to the Devel- opment Control Committee, which shall hold a meeting, review all pertinent facts regarding the request(s) and make a report of the find- ings to all the Owners. The Owners, by a two- thirds (2/3) majority vote, may grant the re- .c quest(s) . Each Owner shall be entitled in voting rights as outlined in Section 4 .2 . U ARTICLE 10 Enforcement tom: 10. 1 The Covenants herein set forth shall run with the land and be binding on the Developer, the Owners, the Owners' Tenants, and all other parties having right, title or interest in the 2 C 24 t • Subject Property and shall be equally binding on their successors, assigns and all parties claiming by, through and under them. 10.2 Court-held invalidity of any one covenant or part thereof shall not impair or invalidate the remaining covenants or parts thereof. 10.3 All covenants, liens and other conditions here- in shall be subject and subordinate to existing laws, mortgages, tax liens, and other prior encumbrances or properties in the Subject Prop- erty. 10.4 The Developer shall have the right to assign its duties under these covenants to any person or entity. Developer shall assign its duties under these covenants to the Association at such time as seventy-five percent (75%) has been transferred from the Subject Property to other Owners for development. This percentage shall be computed by dividing the total number of square feet of real property in Subject Property into the number of square feet still held by the Developer. The Developer shall then be relieved and discharged from his duties. 10.5 The failure of the Developer or of any other person, firm or corporation to enforce any restriction contained herein shall not be deemed a waiver by it or them of the right to thereafter enforce the same, nor shall any liability attach to the Developer or any other person, firm or corporation for failure to enforce such restriction. 10 .6 If any person, firm or corporation violates any of the restrictions contained herein and said violations continue after ten ( 10) days notice (delivered personally or by mail) to said per- son, firm or corporation (hereinafter for conve- nience sometimes called the "violator") , or his or its agent, to abate said violation, the a: Developer, the Association or any Owner, in c: addition to all other remedies provided by law, may obtain an order from a court of competent :;) jurisdiction permitting it to enter upon the portion of the property upon which or as to r\"' which such violations exist, and summarily to abate or remove the same, using such force as may be reasonably necessary, at the expense of the violator and neither the person entering nor the organization directing the entry shall be liable for any such abatement or removal, in- 25 • cluding reasonable attorney's fees and other costs in connection with seeking such order. The cost of such abatement or removal shall, when due, become a lien enforceable at law or in equity by the Developer, the Association or any such Owner, upon the Lot upon which the violation occurs, subject or subordinate only to the lien of any mortgage or trust deed now or hereafter placed on the said portion of the property. The foreclosure of the lien hereof shall not operate to affect or impair the lien of any such mortgage or trust deed, but the foreclosure of the lien is such a mortgage or trust deed or the acceptance of a deed in lieu of foreclosure shall not operate to affect or impair a lien, if any, acquired hereunder for a violation subsequent to the date of foreclosure or acceptance of a deed in lieu of foreclo- sure. Any individual or entity which violates the provisions of these Covenants shall be responsible for all costs of abatement, plus court costs and attorneys' fees caused by any such violation. Said costs and expenses shall constitute a continuing lien on the Lot where the violation was located. w Ri N a2/ 26 LEGAL DESCRIPTION OF COMMON AREA EXHIBIT A That part of Lot 12 of Fox Bluff Corporate Center, being a subdivision of part of Section 27, Township 41 North, Range 8 East of the third principal meridian, described as follows: Commencing at the Southwest corner of said Lot 12; thence North 00 degrees 54 minutes 05 seconds West, along the West line of said Lot 12, a distance of 456 . 10 feet for the point of beginning; thence North 89 degrees 58 minutes 24 seconds East, a distance of 227. 03 feet to the East line of said Lot 12; thence North 00 degrees 54 minutes 05 seconds West, along the East line of said Lot 12, a distance of 461 .09 feet to the Northeast corner of said Lot 12; thence South 89 degrees 29 minutes 06 seconds West, along the North line of said Lot 12. A distance of 2 .91 feet; thence Southwesterly, along the Northerly line of said Lot 12, being along a curve to the left having a radius of 680. 00 feet, tangent to the last described course, an arc distance of 228.09 feet to the North- west corner of said Lot 12; thence South 00 degrees 54 min- utes 05 seconds East, along the West line of said Lot 12, a distance of 421.25 feet to the point of beginning. Being situated in the City of Elgin, Kane County, Illinois and containing 101,647 .28 square feet more or less. AND That part of Lot 13 of Fox Bluff Corporate Center, being a subdivision of part of Section 27, Township 41 North, Range 8 East of the third principal meridian. Described as follows: Commencing at the Southeast corner of said Lot 13; thence North 00 degrees 54 minutes 05 seconds West, along the East line of said Lot 13, a distance of 456 . 10 feet for the point of beginning; thence South 89 degrees 58 minutes 24 seconds West, a distance of 137 .99 feet to a point on the Northwester- ly line of said Lot 13 that is 381. 19 feet Northeasterly of the most Westerly corner of said Lot 13; thence North 39 degrees 13 minutes 03 seconds East, along the said Northwest- erly line, a distance of 214 . 12 feet to the most Northerly corner of said Lot 13; thence South 00 degrees 54 minutes 05 seconds East, a distance of 165. 84 feet to the point of begin- ning. Being situated in the City of Elgin, Kane County, Illinois and containing 11,441.29 square feet more or less. AND That part of Lot 14 of Fox Bluff Corporate Center, being a subdivision of part of Section 27, Township 41 North, range 8 N; East of the third principal meridian, described as follows: Commencing at the most Southerly corner of said Lot 14; thence North 39 degrees 13 minutes 03 seconds East, along the Southeasterly line of said Lot 14, a distance of 381. 19 feet 27 • for the point of beginning; thence North 50 degrees 46 min- utes 57 seconds West, perpendicular to the last described course, a distance of 262 .00 feet to the Northwesterly line of said Lot 14; thence North 39 degrees 13 minutes 03 seconds East, along said Northwesterly line, a distance of 58 .72 feet; thence Northeasterly, along said Northwesterly line, being along a curve to the right having a radius of 680 .00 feet, tangent to the last described course, an arc distance of 368.49 feet to the most Northerly corner of said Lot 14; thence South 00 degrees 54 minutes 05 seconds East, along the East line of said Lot 14, a distance of 255.41 feet to an Easterly corner of said Lot 14; thence South 39 degrees 13 minutes 03 seconds West, along the aforesaid Southeasterly line of Lot 14, a distance of 214. 12 feet to the point of beginning. Being situated in the City of Elgin, Kane County, Illinois and containing 80, 158. 11 square feet more or less. AND Lot 44 of Fox Bluff Corporate Center, being a subdivision of part of Section 27, Township 41 North, Range 8 East of the third principal meridian, in the City of Elgin, Kane County, Illinois . �r{ ace J ) ,_0„C Cosley QD arty o-s ELT1/1 j 5 O -Q X+e i c l qty) I )._ bolZd N 28 FILED FU i-t 1.:ECORD MANE curry, ILL. • 93K68272 rn SEP -7 PH 1: 00 hECOFiDER