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HomeMy WebLinkAbout93-91 Resolution No. 93-91 RESOLUTION AUTHORIZING EXECUTION OF AN EXCLUSIVE AGENCY AGREEMENT WITH BENNETT & KAHNWEILER INCORPORATED BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that George VanDeVoorde, Mayor, and Dolonna Mecum, City Clerk, be and are hereby authorized and directed to execute an Exclusive Agency Agreement on behalf of the City of Elgin with Bennett and Kahnweiler Incorporated for the sale of property within the Fox Bluff Corporate Center, a copy of which is attached hereto and made a part hereof by reference. s/ George VanDeVoorde George VanDeVoorde, Mayor Presented: April 14, 1993 Adopted: April 14 , 1993 Vote: Yeas 6 Nays 0 Recorded: Attest: s/ Dolonna Mecum Dolonna Mecum, City Clerk (� • EXCLUSIVE AGENCY AGREEMENT FOR AND IN CONSIDERATION of the covenants and conditions herein contained, the undersigned, City of Elgin (hereinafter referred to as the "Owner"), does hereby appoint BENNETT & KAHNWEILER INCORPORATED, an Illinois corporation (hereinafter referred to as the "Agent"), as the sole and exclusive agent to perform the sale of land and the sale of property within the Fox Bluff Corporate Center to be developed by Owner on the real estate located in Elgin , Illinois and legally described on Exhibit "A" attached hereto and by this reference incorporated therein (all of said real estate is hereinafter referred to as the "Property"), which Property is owned by owner. ARTICLE I SALE AND LEASE OF PROPERTY Section 1.1 Agent's Agreement. Agent agrees to use its best efforts to procure sales of land within the Property, at sales prices to be determined by Owner in its sole discretion. Owner will, from time to time, advise Agent of the sales prices the other terms and conditions to be inserted in each contract for sale in the Property. Agent and Owner agree that generally: (a) the sale prices and terms shall be subject to the approval of Owner from time to time; and (b) that each contract shall be in the form as may be from time to time provided by Owner. Section 1.2 Owner's Agreement. Owner agrees to refer all inquiries relating to the sale of any portion of the Property now or hereafter existing within the Property to Agent, to fully cooperate with Agent in any such sale, and to conduct solely and exclusively through Agent all negotiation with respect to sales of the Property or of any portion of the Property. Section 1.3 Property Representative. Agent shall appoint a representative or representatives of Agent who shall be designated as the Property Representative to be primarily responsible for the sale of the Property. Such individual(s) may, upon notice from Agent to Owner be replaced by Agent. Any such Property Representative shall be subject to Owner's approval, which approval shall not be unreasonably withheld. Keith Stauber and Greg Pacelli shall be the initial representatives of agent. ARTICLE II COMMISSION Section 2.1 Amount of Commissions. Owner agrees to pay Agent the following commissions: Unimproved Real Estate. During the term of this Agreement and thereafter as herein provided, Owner shall pay Agent a commission with respect to a sale of any portion of the Property in an amount equal to: (i) Six (6%) percent of the total consideration payable in connection with any such sale should the Agent be the procuring broker. (ii) Six (6%) percent to the procuring broker if the procuring broker is other than the assigned Property Representative and three (3%) percent of the total consideration payable in connection with any sale to the Agent. Total fee paid would be nine (9%) percent of the total consideration of a sale. Section 2.2 Time of Payment of Commission. All sale commissions due to Agent and any cooperating broker pursuant to this Agreement shall be payable on the date of consummation of any such transaction. ARTICLE III COOPERATING BROKERS Agent agrees to actively solicit the cooperation of other real estate brokers in finding purchasers and tenants in the Property. In the event a cooperating broker is involved in securing a tenant or purchaser, Owner shall pay the commission provided for in Article II. ARTICLE IV POST TERMINATION If within one hundred eighty (180) days of the termination of this Agreement, a sale contract is entered into with any purchaser to whom any portion of the Property was submitted for sale prior to such termination or was in active negotiation on the termination date with Agent, Agent shall be entitled to a commission equal to that which would have been payable hereunder if the Agreement had continued in full force and effect. Within thirty (30) days of the termination of this Agreement, Agent shall submit to Owner a listing of prospective purchasers to whom any portion of the Property was submitted during the terms of this Agreement. ARTICLE V TERM The term of this Agreement shall commence as of the date of this Agreement, and shall terminate on a date which is one.(1) year after the date hereof. ARTICLE VI INDEMNITY Section 6.1 Management and Maintenance of Property. Owner acknowledges that Agent is not responsible for the management, maintenance, repair, upkeep, or operation of the Property, and agrees at all times to indemnify, defend and hold harmless Agent against any and all actions, claims, demands, and costs relating to damage or injury to persons or property resulting from, or occurring on, the Property, except as same is caused by the sole negligence of Agent. Section 6.2 Owner Indemnity. Owner hereby indemnifies and holds Agent harmless from and against any and all actions, claims, demands, and costs relating to any claim for a commission or fee made by any person or entity having dealt with Owner but not with Agent in connection with any lease of any portion of the Property. Section 6.3 Agent Indemnity. Provided Owner complies with the provisions of this Agreement, Agent hereby indemnifies and holds Owner harmless from and against any and all actions, claims, demands, and costs relating to any claim for a commission or fee made by any person or entity having dealt with Agent in connection with any lease of any portion of the Property entered into while Agent is the sole and exclusive rental Agent pursuant to the terms of this Agreement. Section 6.4 Environmental Conditions. Owner acknowledges and agrees that Agent has not made investigations regarding toxic wastes, hazardous materials, or related matters concerning the Property. Owner further acknowledges and agrees that Agent shall not be required to make any such investigation. In the event Owner has obtained environmental reports, Owner hereby authorizes Agent to make available to Buyer any such report, investigation, or other information in Agent's possession. Agent is not an owner or operator of the subject property and is not responsible for the activities at any time prior to closing conducted at or upon the Property. ARTICLE VII COSTS AND EXPENSES Section 7.1 Contracts and Leases. Owner shall be responsible for the payment of all costs relating to the preparation of contracts for the Property, including, but not limited to, attorneys' fees, environmental reports and surveys. Section 7.2 Marketing Costs. Owner will directly pay to vendors or promptly reimburse Agent upon presentation of an invoice for all direct, marketing costs incurred by agent provided Owner has approved such expenditures. Direct marketing expenses include, but are not limited to such items as signage, site plans, brochures, photographs, artwork, mailing costs, and open houses. Initial anticipated cost is $12,700. ARTICLE VIII MISCELLANEOUS PROVISIONS Section 8.1 Successors. This agreement shall be binding upon and inure to the benefit of the parties hereto, their respective successors and assigns, however, Agent shall not assign its interest hereunder except to an entity approved by Owner, which approval shall not be unreasonably withheld. Section 8.2 Governing Law. This agreement shall be governed by the laws of the State of Illinois. Captions herein contained are for convenience and shall not govern the terms thereof. Section 8.3 Notices. All notices delivered hereunder shall be in writing and shall be served upon the parties at the following addresses: To Agent: Bennett & Kahnweiler Incorporated 9700 West Bryn Mawr Avenue Rosemont, Illinois 60018 Attn: Keith S. Stauber/Gregory J. Pacelli To Owner: City of Elgin 150 Dexter Court Elgin, Illinois 60120 Attn: Deborah Nier The mailing of notice by registered or certified mail, return receipt requested, shall be sufficient service. Section 8.4 Anti-discrimination. Pursuant to the General Rules and Regulations for The Administration of the Illinois Real Estate brokers and Salesman License Act of 1973, it is illegal for an owner or lessee of property or the real estate broker to refuse to display or sell or lease to any person because of their race, national origin, sex, or physical disability. Section 8.5 Activity Reports to Owner. Agent shall provide a written report to the Owner every thirty (30) days outlining Agent's marketing efforts during that period and other pertinent market activity. Section 8.6 Cancellation of Contract. Both parties shall have the right to cancel this contract with thirty (30) days written notice with just cause. N WITNESS WHEREOF, the parties hereto have executed this Agreement this .2dday o , 1993 OWNER: CITY OF ELGIN MAYOR: CITY CLERK: g,-(44,„(2 AGENT: BENNETT & KAHNWEILER INCORPORATED, an Illinois corporation. By: _GjIAA/viA,fria' I I I vs EXHIBIT A THAT PART OF SECTION 27, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: : BEGINNING AT THE NORTHEAST CORNER OF THE SOUTH 2/2 OF THE NORTHEAST 1/4 OF SAID SECTION 27; THENCE SOUTHERLY ALONG THE EAST LINE OF THE NORTHEAST 1/4 OF SECTION 27, 1331.6 FEET TO THE EAST 1/4 CORNER OF SECTION 27; THENCE SOUTHERLY ALONG THE EAST LINE OF THE SOUTH EAST 1/4 OF SECTION 27, 495 FEET; THENCE WESTERLY PARALLEL WITH THE NORTH LINE OF THE SOUTH EAST 1/4 OF SAID SECTION 27, 2628 FEET TO THE NORTH AND SOUTH CENTER LINE OF SAID SECTION 27; THENCE NORTHERLY ALONG SAID NORTH AND SOUTH CENTER LINE OF SECTION 27, 161.9 FEET TO A POINT 333.1 FEET SOUTH OF THE CENTER OP SAID SECTION 27; THENCE WESTERLY PARALLEL WITH THE NORTH LINE OF THE SOUTHWEST 1/4 OF SECTION 27, 954.5 FEET TO THE CENTER LINE OF MCLEAN BLVD (STATE AID ROUTE 18) ; THENCE NORTHERLY ALONG SAID CENTER LINE, BEING ALONG A CURVE TO THE LEFT, AN ARC DISTANCE OF 899.85 FEET; THENCE NORTHERLY ALONG SAID CENTER LINE, BEING TANGENT TO THE LAST DESCRIBED CURVE, A DISTANCE OF 653.89 FEET; THENCE NORTHERLY ALONG SAID CENTER LINE, BEING ALONG A LINE THAT FORMS AN ANGLE OP 00 DEGREES, 02 MINUTES, 0 SECONDS TO THE RIGHT WITH THE PROLONGATION OF THE LAST DESCRIBED COURSE, 100 FEET TO THE NORTH LINE OF THE SOUTH EAST 1/4 OF THE NORTHWEST 1/4 OF SAID SECTION 27; THENCE • EASTERLY ALONG THE NORTH LINE OF THE SOUTH EAST 1/4 OF THE NORTHWEST 1/4, 837.5 FEET TO THE NORTHWEST CORNER OF THE SOUTH 1/2 OF THE NORTHEAST 1/4 OF SAID SECTION 27; THENCE EASTERLY ALONG THE NORTH LINE OF THE SOUTH 1/2 OF SAID NORTHEAST 1/4, 2637.10 FEET TO THE POINT OF BEGINNING; (EXCEPT THAT PART OF THE SOUTHEAST 1/4 OF THE NORTHEAST 1/4 OF SECTION 27, TOWNSHIP 41 NORTH, RANGE 8, EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF THE SAID SOUTHEAST 1/4 OF THE NORTHEAST 1/4 OF SECTION 27; THENCE SOUTH 87 DEGREES 55 XNUTES, 52 SECONDS WEST ALONG THE NORTH LINE OF THE SAID SOUTHEAST 1/4 OF THE NORTHEAST 1/4, 1188.00 FEET; THENCE SOUTH 02 DEGREES, ' 04 MINUTES, 08 SECONDS EAST, PERPENDICULAR TO THE LAST DESCRIBED COURSE, 596.29 FEET; THENCE SOUTH 50 DEGREES, 46 MINUTES 57 SECONDS EAST 418.91 FEET; THENCE NORTH 39 DEGREES, 13 MINUTES 03 SECONDS EAST PERPENDICULAR TO THE LAST DESCRIBED COURSE, 413.72 FEET; THENCE NORTHEASTERLY ALONG A CURVE TO THE RIGHT, TANGENT TO THE LAST DESCRIBED COURSE, HAVING A RADIOS OF 760.00 FEET, AN ARC DISTANCE OF 666.77 FEET; THENCE NORTH 89 DEGREES, 29 MINUTES, 06 SECONDS EAST, TANGENT TO THE LAST DESCRIBED CURVE, 2.37 FEET TO THE EAST LINE OF THE SAID SOUTHEAST 1/4 OF THE NORTHEAST 1/4 OF SECTION 27; THENCE NORTH 00 DEGREES, 54 MINUTES, 05 SECONDS VEST ALONG THE SAID EAST LINE 303.69 FEET TO THE POINT OF BEGINNING, AND ALSO EXCEPT THAT PART DEDICATED FOR ROADWAY PURPOSES BY DOCENT 92K10974 RECORDED FEBRUARY 19, 1992) , IN THE CITY OF ELGIN, !CANE COUNTY, ILLINOIS. Committee of the Whole Meeting February 10, 1993 Page 3 1990 BOCA Property Maintenance Code Councilman Walters made a motion, seconded by Councilwoman Moylan, directing staff to prepare the ordinance for adoption of the 1990 BOCA National Property Maintenance Code as amended. Yeas : Councilmembers Fox, Gilliam, Moylan, Popple, Walters, Yearman, and Mayor VanDeVoorde. Nays : None. Change order #6 and final for the Lords Park Pavilion Councilwoman Popple made a motion, seconded by Councilman Fox, to approve the aforementioned change order. Yeas : Councilmembers Fox, Gilliam, Moylan, Popple, Walters, Yearman, and Mayor VanDeVoorde. Nays : None. Real estate marketing services for the Fox Bluff Corporate Center Councilman Fox made a motion, seconded by Councilwoman Popple, to approve the firm of Bennett and Kahnweil.er to provide marketing services for the Fox Bluff Corporate Center. Yeas : Councilmembers Fox, Gilliam, Moylan, Popple, Walters, Yearman, and Mayor VanDeVoorde. Nays : None. Councilman Gilliam left the meeting at 11 : 02 p.m. Work order with Commonwealth Edison for services to the Fox Bluff Corporate Center Councilwoman Popple made a motion, seconded by Councilwoman Yearman, to approve the aforementioned work order. Yeas : Councilmembers Fox, Moylan, Popple, Walters, Yearman, and Mayor VanDeVoorde. Nays : None. Proposals for environmental testing on South Grove Avenue Councilwoman Moylan made a motion, seconded by Councilwoman Yearman, to enter into an agreement with ATEC Associates, Inc . for a Phase I audit report for South Grove Avenue and additional testing at 240 South Grove Avenue. Yeas : Councilmembers Fox, Moylan, Walters, Yearman, and Mayor VanDeVoorde. Nays : Councilwoman Popple. Proposals for environmental testing at 573 North Crystal Street Councilman Fox made a motion, seconded by Councilwoman Popple, to enter into an agreement with ATEC, Associates for environmental testing at 573 North Crystal Street. Yeas : Councilmembers Fox, Moylan, Popple, Walters, Yearman, and Mayor VanDeVoorde. Nays : None. Elm SA endstem NO. April 8, 1993 TO: Mayor and Members of the City Council FROM: Larry L. Rice, City Manager SUBJECT: Agency Agreement with Bennett and Kahnweiler for Brokerage Services PURPOSE To present an Agency Agreement with Bennett and • Kahnweiler for brokerage services relative to the Fox Bluff Corporate Center. BACKGROUND At its February 10 meeting, the City Council approved Bennett and Kahnweiler, Inc. as the firm to provide brokerage services for the Fox Bluff Corporate Center and directed staff to negotiate an agreement with the firm. Attached is the proposed Agency Agreement. FINANCIAL IMPACT The Commission to be paid Bennett and Kahnweiler under this agreement is as follows: a) A six percent ( 6%) commission on sales of property bro- kered by Bennett and Kahnweiler exclusively. b) If the transaction were broker-assisted, a six percent (6%) commission would be paid to the procuring broker and a three percent (3%). fee to the listing broker (Bennett and Kahnweiler) . 111 Mayor and Members of the City Council April 8, 1993 Page 2 • RECOMMENDATION It is recommended that the City Council approve the Agency Agreement with Bennett and Kahnweiler to provide mar- keting services for the Fox Bluff Corporate Center. x' • U na _ Larry-- i y Manager LLR:daw Attachment • 411 , y J ._ . .: Agenda Item No. 1, ,,,,vi__ , litiag .7i Gq /:4 ;' +��u ne February 3, 1993 TO: Mayor and Members of the City Council FROM: Larry L. Rice, City Manager SUBJECT: Real Estate Marketing Services for Fox Bluff Corporate Center PURPOSE: To present a recommendation for a firm to provide real estate marketing services for the Fox Bluff Corporate Center. BACKGROUND: SWith the development of Fox Bluff Corporate Center it became apparent that the sale of parcels could best be achieved by involving a professional real estate marketing firm. The Council directed staff to request proposals from and interview the three brokerage firms interviewed by the Elgin Development Corporation when that organization still owned the property. Those firms were: Anderson Associates, Inc./CB Real Estate Group Bennett and Kahnweiler Companies Cushman Wakefield • Staff contacted all three firms and invited each to submit a proposal for providing marketing services . Two responded: Anderson Associates/CB Real Estate Group and Bennett and Kahnweiler Companies. Staff interviewed both firms. As a result of those interviews and a review of the proposals, staff reached a consensus to recommend Bennett and Kahnweiler Companies to market the Fox Bluff Corporate Cen- ter. Although both companies presented themselves very well, staff felt that the Bennett and Kahnweiler proposal was stronger on the following points: a) Based on their experience, the firm felt confident in the success of marketing the property with the IIIORI, Office Research Industrial, classification. • b) The firm's opinion of pricing of the property was in keeping with earlier research on comparables in Mayor. and Members of the City Council February 3, 1993 Page 2 Sthe market provided by Steffens and Associates, MAI . The pricing also complimented calculations by staff of what would be a desirable return given the City's investment in the property in development costs . c) The exhibited high quality promotional materials and a comprehensive strategy for marketing the property. FINANCIAL IMPACT: Bennett and Kahnweiler would receive a six percent (6%) commission per transaction. If the transaction were broker assisted, a six percent (6%) commission would be paid to the procuring broker and a three percent ( 3%) fee to the listing broker (Bennett and Kahnweiler) . RECOMMENDATION: Staff would recommend approval of Bennett and Kahnweiler as the firm to provide marketing services for the Fox Bluff Corporate Center and authorize staff to negotiate a one year Agency Agreement. Larry L. Mice '` 'ty Manager LLR:daw Attachment • B K THE BENNETT&KAHNWEILER COMPANIES 9700 West Bryn Mawr Rosemont Illinois 60018-5275 Telephone: 708-671-7911 Telefax: 708-671-7931 April 23, 1993 Ms Debra K. Nier City of Elgin 150 Dexter Court Elgin IL 60120-5555 Dear Debra: I am pleased to enclose your copy of the fully executed agency agreement for the Fox Bluff Corporate Center. Keith and I look forward to working with you and the City of Elgin in successfully selling land sites in the park and we sincerely appreciate this opportunity. Thank you for your time and consideration. Sincerely, BENNETT & KAHNWEILER INCORPORATED iCOLLIE S INTERNATIONAL Gregory J. acelli, SIOR Principal kai Enclosure cc: Keith Stauber Bennett& Kahnweiler Incorporated I Bennett&Kahnweiler Asset Management Co. Bennett&Kahnweiler Financial Group I Bennett&Kahnweiler Realty Advisors I Bennett&Kahnweiler Realty Investors r �c Individual Membership COI.i I ERS Society of Industrial and International Property Consultants Office Realtors. • _ _s Eltrin OEE t► Agenda Item No . ,.ems, c4+�rocce April 12, 1993 TO: Mayor and Members of the City Council FROM: Larry L. Rice, City Manager SUBJECT: Marketing of Fox Bluff Corporate Center PURPOSE The purpose of this memorandum is to introduce a discus- sion of marketing strategies for the sale of property in the Fox Bluff Corporate Center. BACKGROUND Since their selection as the firm to provide brokerage • services for the City of Elgin, Bennett and Kahnweiler repre- sentatives have met with City staff to discuss marketing for the Fox Bluff Corporate Center. Discussion focused on four primary areas : a. Zoning b. Pricing c. Protective Covenants d. Promotional materials and strategies Greg Pacelli and Keith Stauber, of Bennett and Kahnweiler, will be present at the April 14 Committee of the Whole meeting to address the Council on these, and other items . Attached is correspondence from Pacelli and Stauber regarding their thoughts on zoning for the Fox Bluff Corporate Center. In it are offered some suggestions for zoning which the brokers feel are more responsive to the current real estate market. This is one of the issue areas with which the presentation will deal . Protective covenants for the property will also be dis- cussed with the Council . It would be . the purpose of these covenants to establish design standards for development and to establish responsibility for future management of the proper- ty. These covenants will establish standards beyond the existing zoning regulations which will assure that the goal of a quality development is achieved. The covenants will become part of the marketing package. A draft of these covenants is attached. Mayor and Members of the City Council April 12 , 1993 Page 2 • FINANCIAL IMPACT None at this time. These issues may effect the pricing and revenue from the property. RECOMMENDATION Bennett and Kahnweiler request input from the City Coun- cil regarding marketing strategies for the Fox Bluff Corporate Center. Larry L-. Rice, y Manager LLR:daw Attachment BIK THE BENNETT&KAHNWEILER COMPANIES 9700 West Bryn Maya . Rosemont Illinois 60018-5275 Telephone: 708-671-7911 Telefax: 708-671-7931 April 7, 1993 Ms. Deborah Nier .City of Elgin 150 Dexter Court Elgin, IL 60120 VIA FACSIMILE 708-931-5610 Re: Zoning for the Fox Bluff Corporate Center • Dear Deborah: • We have truly enjoyed working with you and the rest of the staff of the City of Elgin on the Fox Bluff Corporate Center and are eagerly looking forward to implementing our marketing plan at the earliest possible date. After meeting with the City's staff on numerous occasions and gaining a better understanding of what the City of Elgin's objectives are for this park in terms of aesthetics as well as financial gain, we would strongly suggest that the easternmost 120 acres be returned to its original zoning of general industrial while the westernmost ')(� acres keep its C1T?T zoning. v Vl allla...r: V acres keep jJ its ORI L.Vaa111C. It is our understanding that the City of Elgin's intent is to create a first-class, highly landscaped business park for image-conscious office, research, warehousing and light assembly users. While the ORI zoning can accomplish this aesthetic objective, it has been our experience that this same objective can be met through a more generous •zoning of general industrial in conjunction with the implementation of covenants, codes and restrictions that dictate what building materials and construction type may be used within the park. The less restrictive general industrial zoning in conjunction with a set of covenants, codes and restrictions such as those we have reviewed with the City staff can accomplish the goals the City has in mind while allowing a broader range of uses within the park that may otherwise be unwittingly denied under an ORI . 111 zoning. Bennett&Kahnweiler Incorporated I Bennett & Kahnweiler Asset Management Co. Bennett&Kai-timelier Financial Group I Bennett & Kahnweiler Realty Advisors I Bennett&Kahnweiler Realty Investors =1 Individual Membership COLLI ERS Society of Industrial and International Hopery Consultants / Office Realtors. Ms. Deborah Nier • April 7, 1993 Page Two We have prepared a number of slides of buildings located within the City of Elgin that we feel are all aesthetically pleasing and were constructed in areas with a general industrial zoning. The buildings are located at 1675 Homes Road, 825 Tollgate and several within the Fox River Business Center. We believe that the City is attempting to obtain the type of construction as exhibited by these buildings to. the Fox Bluff Corporate Center. Through a less restrictive zoning, we would anticipate the City would obtain its second objective, that being financial gain. This would come as a result of quicker land sales because the park would now have a broader base of potential purchasers, which in turn would create the additional tax base the City is seeking through development of this park. We are excited about the potential of this park and look forward to working with both the staff and City Council of Elgin to create the high-image development all parties have envisioned. Should you have any questions, please feel free to call us. Sincerely, • BENNETT & KAHNWEILER INCORPORATED COL ' ERS INTERNATIONAL Greg P elli `` eith Stauber Principal Associate KSS:mak • April 14, 1993 DRAFT 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 : ( Insert Legal Description) Purpose Section 1 . 2 The Subject Property is hereby made subject to the conditions, covenants, restrictions, ease- ments and reservations contained herein, each in 111 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 appropriate 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; (c) assure adequate and reasonably consistent development of the Subject Property; (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; • (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 within this Declara- tion, then those more restrictive 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 accordance 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 to, buildings, outbuildings, parking areas, loading areas, roads, driveways, curbs and curb cuts, pedestrian walkways, stairs, decks, hedges, landscaping, plantings, lakes, poles, signs, ponds, fences, outdoor lighting, screening walls and barriers, retaining walls, transformers, window breaks, sidewalks, planted trees and shrubs, and all other structures or land- scaping improvements of every type and kind. "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 . 2 "Tenant" shall mean any occupant of any building located on a lot, or any portion of such a building, whether such occupancy is pursuant to a written lease or an oral tenancy, including any occupant holding over possession upon expiration of its lease term. "Storm Water Control Facilities" "Subject Property" shall mean the real property described in both Exhibit "A" (Final Plat) attached hereto and incorporated 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, Illinois, on August 19 , 1992 . ARTICLE 3 Easements 3 . 1 Grant. Developer hereby grants to each and every Owner and Tenant, and their invitees, and to the Association, City of Elgin, Commonwealth Edison, Illinois Bell Telephone Company, North- ern Illinois Gas Company, the Fox River Water Reclamation District, Jones Intercable, and to such other parties as the Developer or the 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- fic, on, over and across those portions of the Subject Property as designated for roadway purposes of the Final Plat (Roadway Easement) , provided, however, that Develop- er may modify, adjust, amend and relocate 411 such Roadway Easement Areas as may be reasonably necessary to accomplish the purposes of such easement. 3 411 (b) Utilities . An easement for the installa- tion, operation, maintenance, replacement 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 Association may designate, for the purpose of providing utility ser- vices to the various portions of the Sub- ject 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 Ar- eas" ) , provided, however, that Developer may modify, adjust, amend and relocate such Utility Easement Areas as may be reasonably necessary 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 411 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 Easement Areas" ) , provided, however, that Developer may modify, adjust, amend and relocate such Storm Water Easement Areas as may be rea- sonably necessary to accomplish the purpos- es of such easement. The Roadway Easement, the Utility Easement 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 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 judgement of the City Engineer to permit the use of such Easement Areas for the purposes stated herein, but nothing in this sub-paragraph (a) shall be deemed to authorize any sub- 4 411 stantial variation from the original loca- tion as described herein. 3 . 3 Dedication of Roads . As soon as 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 judgement of the City Engineer, such 411 extension would overload or increase said par- ticular easement beyond or above its intended capacity. 3 . 5 Additional Maintenance Area Easements . Develop- er hereby reserves to itself, and grants to the Association, a nonexclusive and perpetual ease- ment for the purpose of maintenance, repair, and landscaping over, on and upon the following parts of the Subject Property: (a) median strips within the Roadway Easement 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 located retention or detention ponds serving 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 . 5 • 3 . 6 Storm Water Management. In the event the Asso- ciation fails to properly maintain the above ground storm water detention/retention ponds in a manner consistent with its purpose, the City shall have the right to enter the property to perform the necessary work, the cost of which shall be borne by the Association. The Associa- tion shall indemnify and hold harmless the City for performing such work. 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. Each Owner of a Lot in the Subject Prop- erty shall automatically be a member of the Association. Membership shall be appurtenance 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 Devel- oper owns any part of the Subject Property. 411 Nothing herein shall preclude the Owner of a Lot from entering into a lease which, as between Owner and Tenant, shifts the rights and obliga- tions 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 ( 1) vote for each one-tenth ( 1/10th) of an acre of fraction thereof of the Total Site that it owns which is subject to assessment under this Declaration. When two or more persons or entities hold individual inter- ests 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 acre or fraction thereof the Total Site in which such mem- bers 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 6 • thereof the Total Site that Developer owns which is subject to assessment under this Declaration. PROVIDED, HOWEVER, that from and after , 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 Total Site that Developer owns which is subject to assess- ment 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 members, the Developer shall appoint members to the Board as long as the Developer has an ownership interest in the Subject Proper- ty. The remaining members will be chosen 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 maintenance, management, operation, repair and replacement of the Addi- tional Maintenance Areas, and the protection of rights and enforcement of duties conferred under this Declaration. The Association' s powers and duties shall be exercised by the Board of Direc- tors, in accordance with this Declaration, and the Articles and By-Laws of the Association. The powers and duties shall include, without limiting the generality of the foregoing: (a) The power and duty to pay for the following items of common expenses, if any, with respect to the Additional Maintenance Areas : ( i ) 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; 7 ll • ( 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 whom 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 officers who handle or are responsible for funds of the Association) , and such other persons as may be designated by the Board; 411 (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 the Board shall have the exclusive right and duty to acquire the same; (x) provisions of security services for the Subject Property (upon approval of a majority of the voting power of the Association) ; (xi) any other materials, suppliers, labor, services, maintenance, re- 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 opera- ., tion of the Additional Maintenance Areas, or for the enforcement of the Declaration, provided that if any such materials, suppliers, labor, 8 • services, maintenance, repairs, 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 otherwise 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 paragraph 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 judgement or for any other acts or omissions of any nature whatsoever made in their capacity as such directors or officers, except for any acts or omissions found by a court to constitute gross negligence or fraud. The Association shall indemnify and hold harm- less the directors and officers, their heirs and legal representatives, against all and other liabilities to others arising out of their status as directors or officers, unless any such contract or act shall have been made fraudulent- ly or with gross negligence. The foregoing indemnification shall include indemnification against all costs and expenses ( including, but not limited to, attorneys ' fees, amount of judgements paid and amounts paid in settlement) actually and reasonably incurred in connection with the defense of any claim, action, suit or proceeding, whether civil, criminal, administra- tive or other, in which any such direction or . officer may be involved by virtue of being or having been such director or officer; provided, however, that such indemnify shall not be opera- tive with respect to any matter as to which such 9 person shall have finally been adjudged by a court of competent and final jurisdiction to be liable for gross negligence 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 implementa- tion and administration of its powers and du- ties, including its power of enforcement, estab- lished under this Declaration. ARTICLE 5 Assessments - Legal Comment particularly needed here 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 such 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 covenant to pay to the Association its Proportionate Share (as set forth in paragraph 5 . 7 ) of : ( 1) annual assessments or charges (as specification in Section 5 . 3 thereof) , and (2 ) special assess- ments (as specified in Section 5 .4 thereof) , all of such assessments to be fixed, established, and collected from time to time, as hereinafter provided. In the case of an acceptance of deed or other conveyance at any time less than a full calendar year, the annual assessment shall be calculated to reflect the Owner' s pro rata share of the assessment based upon the time of conveyance. 5 .2 Purposes of Assessments . The assessments levied by the Association shall be used exclusively 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 . 5 . 3 Annual Assessments . Annual assessments provided for herein shall be levied, collected and admin- istered on a calendar year basis . The first annual assessment provided for herein shall commence with the calendar year , and shall continue thereafter from year to year. Assess- 10 • ments shall be paid annually in one payment, 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 Association by January 31 of said calendar year. The initial annual assessment for the calendar year , shall be fixed by the Developer, in its reasonable discretion, provided, however, that said amount shall not exceed per each acre subject to assessment. Thereafter, on or prior to sixty ( 60) days before the end of each calendar year the Board shall estimate the common expenses to be required during the twelve ( 12 ) month period commencing with the following January 1 (which may include a reasonable re- serve for contingencies and replacements) less any estimated surplus in the common expense fund for the previous fiscal year. The common ex- penses shall also include any amounts necessary • to make up any anticipated excess of repair and restoration costs over insurance proceeds and any other amounts required by the terms of this Declaration. The total estimated amount of such 411 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, 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 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 period 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 defraying, in whole or in part, the cost of any construc- 11 I. • tion 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 Special Assessment of 50% of more of the annual assess- ment for the current year must be approved 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 Maximum Amount of Annual Assessments . Notwith- standing the powers given to the Board in para- graph 5 . 3 above, the annual assessment per assessable acre for any calendar year after shall not exceed the product of , increased by 10% per annum on a cumulative basis for each successive calendar year after ; provided, however, that the limitations imposed by this paragraph 5 . 6 shall not apply for a particular calendar year, if for said particular calendar year a majority of the votes of those Owners who shall vote in person or in proxy at a special meeting duly called for such purpose by written notice given to all members at least 30 days in advance setting forth the purpose of said meet- ing, shall vote to suspend the limitations for said particular year, but no such suspension shall have any application to any year except to the particular year at issue. 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 the Subject Property. For purposes of such calcula- tions, acreage shall be calculated to the near- est two decimal places ( i .e. , hundredths) . Acres subject to assessment shall mean the total acreage included with the Subject Property, 111 excluding the following exempt acreage: (a) all portions of the Total Site dedicated to and accepted by any public authority; 12 (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 provided above. Said claim shall be made instead against the party or parties holding the beneficial interest under such a trust. 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 pay- ment of said portion of assessments and/or special assessments . In the event of default in the payment of any such assessment, the Owner of the Lot shall be obligated to pay interest at • the Default Interest Rate on the amount of the assessment 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 that level of interest charged the Association on money loaned to the Association to carry out the purposes, powers and duties of the Association which was not met by assessment payments . 5 . 9 Assessment Lien and Foreclosure. All sums 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 collection, including attorney' s fees as herein- after provided, constitute a continuing lien and charge on the Lot covered by such assessment, which shall bind such Lot in the hands of the Owner thereof, and his heirs, devisees, 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 payment 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 13 • prior to preexisting recorded encumbrances, and provided further, that such assessment lien shall be subordinate to the lien of a prior recorded institutional Mortgage encumbering 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 Association. 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 Association and shall be record- ed 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 be- !" comes 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 Association may institute suit against the Owner obligated to pay the assessment and/or for the foreclosure of the aforesaid lien judicial- ly. 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 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- 14 • cal order of the receipts and expenditures affecting the Additional Maintenance Areas, specifying and itemizing the maintenance and repair expenses of the Additional Maintenance Areas and any other expenses incurred. 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 . 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 to City of Elgin development ordinances .• 6 .2 Membership. The Development Control Committee shall consist of three ( 3) members . The initial members of the Development Control Committee 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 ) provided, however, that until such date, Devel- oper shall have the right, in its sole discre- tion, 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 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 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 15 • 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 systems, vegetation, berms, and ground cover. • (e) Parking area, including parking stall, 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- tion, and materials. 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 to submission to the Development Control Committee. 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 (including driveways and parking) , floor plans, and eleva- tions ( including materials therefore) . Based on • such preliminary submissions, the Committee shall endeavor to give the applicant such assis- tance, guidance and preliminary. approval as may be available. Final plans and specifications 16 • 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 Declara- tion, 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 consis- tent with this Declaration, shall be final, conclusive, and binding upon the applicant. In • no event, however, shall plans and specifica- tions violate City ordinances governing 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 previously been approved by the Development Control Commit- tee, within thirty (30) days after submittal thereof, it shall be conclusively presumed that such committee has approved such plans and specifications or revisions . If plans and specifications or revisions are not sufficiently complete or are otherwise inadequate, the Devel- opment Control Committee may reject them as being inadequate or may approve part, condition- ally 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 411 on Lots with the provisions of this Declaration, and shall have such reasonable rights of inspec- tion as are necessary therefore, provided howev- er that all such inspections shall be conducted 17 1 • 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 judgement, 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 Development Control Committee, or any member of such commit- tee or board, to recover damages . Notwithstand- ing anything to the contrary contained in this Section 6 . 9, the aforesaid limitation of liabil- ity and waiver of right to sue shall not be applicable to damages arising out of the gross negligence or willful misconduct of Developer, the Association, the Board of Directors, the Development Control Committee, or any of the members of such committee or board. ARTICLE 7 Municipal Regulation of Improvements 7 . 1 Municipal Regulations . All improvements to Lots in the Subject Property are subject to the provisions of City of Elgin development ordi- nances . ARTICLE 8 Development and Design Standards 8 . 1 The purpose of the Design Standards is to assist the Applicant in achieving a style, character and quality of architectural design which serves . to enhance not only the individual facility, but also the overall aesthetic goals of the Subject Property. 18 • 8 . 2 All buildings located on the Property shall be construction with one or more of he following materials : (a) Face brick; stone. (b) Architectural precast concrete panel with decorative finish. (c) Architectural metal and glass curtain wall construction. (d) Approved equal as approved in writing by the Developer. (e) All buildings on an individual site shall be of similar, compatible design and ma- terials . ( f) Roof top equipment, vents and ducts, shall be screened from adjacent sites, streets and sidewalks . (g) Objects such as water towers, storage tanks, processing equipment, cooling tow- • ers, communication towers, vents and any other improvements or equipment shall be compatible with the building architecture or screened from adjacent sites, streets and sidewalks . 8 . 3 All trash receptacles and storage areas, service yards, electrical cage enclosures, incinerators and similar equipment for the disposal of ma- terials, and storage tanks, shall be screened from view from access streets and adjacent properties by means of a fence, berm, wall of dense opaque landscaping materials . All outside storage shall be confined to the rear one-half • of the Lot. All outside storage shall -be limit- ed to ten feet in height. 8 .4 Outside Storage and Equipment (a) No articles, goods, materials, fixed ma- chinery or equipment, vehicles, 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 . 19 • (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, provid- ed they are completely removed immediately upon completion of construction. 8 .5 Fences . No fence other than those provided for screening shall be constructed unless written approval is secured from the Committee. 8 . 6 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 (i) 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 frontage per lot is allowed. ( iii) All identification signs shall be internally illuminated only. No flood lighting is permitted. ( iv) All identification signs shall be placed a minimum of ten feet from the curb of the driveway and fifteen 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 tenants in a mufti tenant building. Signs for buildings with more than two occu- pants shall include only the build- 20 • ing address and name. Individual 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 marketing activity. Temporary signs shall be non-il- luminated. ( 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 single-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 21 • mounted Inflatable signs and tethered balloons 8 . 7 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 Business Park. (c) All utility appurtenances, including tele- phone pedestals, utility meters, transform- ers, etc . , shall be screened. 8 . 8 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 luminaire. All pole bases are to have matching base covers . All concrete. pole bases are to be at grade except in paved areas . In smaller parking areas ( less than 100 car parking) poles shall not exceed twelve ( 12 ) feet in height. In large parking areas (greater than 100 car parking) lighting pole fixtures shall not exceed twenty-five (25) feet in height. (c) Building mounted lighting is restricted to loading and storage locations or similar service areas and shall not be used for lighting parking areas or sidewalks . Building mounted light fixtures shall be shielded and shall not project above the fascia or roof line. The shields shall be painted to match the surface to which they are attached. 8 . 9 Explosive Materials Prohibited • The storage and use of explosive materials is prohibited. 22 • 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 Property Owners elect to extend the covenants . 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 Prop- erty Owner of record shall have voting rights as outlined in Article 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 Total Site 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 Developer to any person, 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- oper. The Developer shall hold a meeting, review all pertinent facts regarding the re- quest(s) and make a report of the findings to all the Property Owners . The Property Owners, by a two-thirds (2/3) majority vote, may grant the request(s) . Each Property Owner shall be entitled in voting rights as outlined in Article 4 . 2 . ARTICLE 10 Enforcement 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 Subject Property (i .e. , the Total Site) 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. 23 i • • 10 . 3 All covenants, liens and other conditions herein 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 may assign its duties under these covenants to a Property Owners 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 in trust. The Property Owners shall then formulate a plan for carrying on these relin- quished duties and functions, and the Developer shall be relieved and discharged from his du- ties . 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 thereaf- ter enforce the same, nor shall any liability attain 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 Developer or any Owner, in addition to all other remedies provided by law, may obtain an order from a court of competent jurisdiction permit- ting it to enter upon the portion of the proper- ty upon which or as to which such violations exist, and summarily to abate or remove the same, using such force ass 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, including 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 24