DECLARATION OF COVENANTS, CONDITIONS AND
The City of Georgetown
through its Industrial Development Authority created pursuant to KRS
Chapter 154, which Authority is known as the Georgetown Business Park
Authority [Authority], imposes the following Covenants, Conditions and
Restrictions [CCRs] on the
[Park]. These CCRs are
recorded in the Scott County Clerk’s Office and establish the terms
and conditions for all development and use of the property within the
Park. The Park property is
described in attached Exhibit A, incorporated by the reference.
These CCRs constitute a
covenant running with the land, binding upon the users and owners of
property within the Park, including the Authority, their successors and
These CCRs will enhance and protect the value, quality,
desirability and appearance of the Park lots to the mutual benefit of
both the City and the lot owners. The
CCRs are consistent with or more restrictive than the provisions of
Ordinance and the Subdivision Regulations.
To ensure compliance, the CCRs authorize the Authority to review
development plans for all proposed development or construction within
the Park. The CCRs also
establish procedures and responsibilities for maintenance of the Park
and properties within it through both, its own regulations.
All of this internal regulation of the development and use of the
property shall be in addition to all applicable
zoning and subdivision regulation.
1.1. Intent of CCRs. The
Authority imposes these CCRs on the Park property, its owners and users
for the purposes set out above.
Operations and Uses.
Uses and Development.
All land uses and
development in the Park shall be in accordance with applicable zoning
and subdivision regulations pertaining to Industrial, I-1, and Business,
Research, and Technology
BP-1, as provided in the Georgetown–Scott County Zoning Ordinance and Subdivision Regulations, as amended
from time to time. Attached
and incorporated by this reference is a copy of the current BP-1
regulation. Also attached
and incorporated by this reference is a map of the Park.
That area designated on the map as enhanced I-1, shall comply
with all provisions of the I-1 zoning classification, except that this
area shall comply with the design and construction standards otherwise
applicable to the BP-1 zone classification.
These CCRs shall be given priority over the applicable zoning and
subdivision regulations where they are more stringent.
2.2. Approval of Proposed
Use, Design and Construction. No subdivision, building(s), building
addition(s), modifications, site improvements, alterations, signs or
other structures shall be constructed within the Park without prior
written approval of the Authority and the Planning Commission.
This prior written approval shall be obtained for the specific
use proposed by the owner or developer of each lot and for all
development, construction, grading and erosion control plans otherwise
required by the Planning Commission. Authority approval shall not be
2.3. Nuisances. No
owner or user of any property within the Park shall permit a nuisance to
exist. For the purposes of
these CCRs, nuisance is defined as a use or activity which is offensive
or detrimental to the use, value or appearance of the lot on which the
nuisance exists or of any other property within the Park.
For the purpose of these CCRs, a nuisance includes, but is not
necessarily limited to, any of the following conditions:
Any use, excluding reasonable construction activity, that emits
dust, sweepings, dirt or cinders into the atmosphere, discharges liquid,
solid wastes, or other matter onto the land or into any waterway, and
that, in the discretion of the Authority, may adversely affect the
health, safety, comfort, of intended users of Park property or
properties neighboring Park property, or which may adversely affect the
intended use or value of Park property.
2.4. Condition of Property. At all times, the Owner and Occupant of any
lot within the Park shall keep the premises, buildings and improvements
in a safe and clean condition, comply, at its own expense, with
applicable governmental regulations and comply with all obligations set
out in these CCRs.
2.5 Maintenance and
Repairs. At all times, the Owner and Occupant of any lot within the
Park shall maintain all improvements on its lot, including, but not
limited to, buildings, fencing, storm drains, parking areas and
landscaping, in substantially the same condition required by the
original approved plans for that lot.
The adequacy of such repairs shall be determined by the
Authority, according to the same standards required for the original
design and construction.
2.6. Excavation: There
shall be no excavation on
Park property, except as part of approved construction of any
improvement or reasonable maintenance and repair of improvements.
Upon completion, exposed openings shall be immediately backfilled
and disturbed ground graded, leveled, seeded and restored to its
2.7. Other Operations and
Uses: Operations and uses that are neither specifically prohibited
nor specifically authorized by these CCRs and applicable zoning and
subdivision regulations may be permitted, if consistent with the intent
of these CCRs and applicable regulations, upon submission and approval
of development plans which otherwise satisfy the requirements of
applicable plan review by the Authority and Planning Commission.
2.8. Snow/Ice Removal:
Owners and Occupants of each Park lot are responsible for snow and ice
removal from all private walks, drives, drainage structures, entrances,
parking and loading areas. All access areas and utility structures shall
be promptly cleared in a manner that does not interfere with public
traffic, business and employee access or the proper operation of utility
Maintenance of Authority/City Lots and Common Areas
Maintenance Responsibility: The Authority/City shall maintain each
lot to which it holds title. Maintenance
of the Authority/City’s lots shall be undertaken to the same standard
required of any lot owner in the Park.
3.1.1. Common Areas and
Facilities. The Authority/City shall maintain the common areas and
facilities. To defray the
costs of maintaining the common areas and facilities, the Authority/City
may assess each lot owner the reasonable cost of that maintenance.
3.1.2. Determination of
Owner(s) Share of Cost. The
actual cost of maintenance of the common areas and facilities shall be
prorated between the lot owners, including the Authority/City.
The proration shall be based upon the ratio of the net
developable area owned by each lot owner to the net developable area in
the developing phase(s). As
each additional phase is opened for sale of lots, the applicable ratio
shall be adjusted to include the total net developable area of the
cumulative phases from which lots are offered for sale.
3.1.3. Determination of
the Date on which Assessment Begins and Notice.
Assessment shall begin thirty (30) days after the project
engineer certifies completion of the common areas and facilities
according to the approved project plans.
Upon that certification, the Authority shall notify all owners in
the phase(s) in which the common area is complete.
3.1.3. Determination of
Actual Cost. The actual
cost of maintenance of the common areas and facilities shall be
determined by the actual expense incurred from thirty (30) days after
the date on which completion of the common areas and facilities is
3.1.4. Payment of
Assessment. Upon the
determination of actual expenses, the Authority shall give the Owner (s)
thirty (30) days’ written notice of their respective prorata share.
The first payment of the assessment shall be due within thirty (30) days
of the written notice of the assessment.
The assessment of each subsequent year shall be determined in the
3.1.5. Maintenance and
Repair Activities for which
Assessment shall be Made, and Exclusion. The
Authority/City’s maintenance and repair of common areas and
facilities shall include, without limitation:
A. Cleaning, maintenance and relamping of any external lighting
fixtures, except such fixtures that are the property of a utility.
B. Maintenance of landscaping, including trimming, watering and
fertilization of grass, ground cover, decorative plantings, shrubs and
trees, removal of dead or waste material and replacement of dead or
diseased grass, groundcover, decorative plantings, shrubs or trees.
C. Removal of rubbish.
D. Cleaning, maintenance and repair of all storm water management
areas and systems that are not otherwise located upon a lot privately
E. Maintenance of the
streets is expressly excluded from the common areas and facilities for
which cost assessment is authorized.
All streets shall be publicly owned and maintained.
3.3. General Public
Liability Insurance. The City shall maintain general public
liability insurance for the benefit of Authority and lot Owners against
claims for bodily injury, death, or property damage related to the
common areas, i.e., occurring on, in or about the common areas and
facilities. The Authority
shall not provide such coverage for claims arising within the boundaries
of any lot or resulting from the improvements located or originating on
a private lot or other area within the exclusive control of an Owner.
3.4. Private fixtures on
Owners of lots shall not install private fixtures on the
common areas without written approval from the Authority.
The owner of an individual lot who, with permission, installs
private fixtures on the common areas shall be responsible for all
maintenance and repair of such fixtures.
The Owner shall indemnify and hold the Authority/City harmless
from any liability arising out of the Owner’s installation and
maintenance of the private fixture on the common area.
4.1 Amendments to the CCRs by Authority. The Authority may amend the
provisions of these CCRs at any time, provided that:
4.1.1. Consistent with
Intent. Any such
amendment shall be within the spirit and overall intention of the
development as set forth herein;
4.1.2. Necessary Approval.
Prior to any amendment, the Authority shall obtain the approval of all
governmental agencies from which such approval is otherwise required;
4.1.3. Necessary Writing.
All proposed amendments to these CCRs shall be served, in writing, on
each of the lot owners not less than thirty (30) prior to the scheduled
meeting at which the proposed amendment is to be considered.
4.1.4. Opportunity for
presenting concerns. All meetings of the Authority being open
meetings, lot owners, or their representatives, may appear before or
otherwise petition the Authority concerning the proposed amendment.
4.1.5. Adoption of
Proposed Amendment. The amendment of these CCRs requires a minimum
vote of seventy-five percent (75%) of the full Authority Board.
4.1.6. Notice of Amendment.
An adopted amendment of these CCRs shall be effective only after
service of the amendment, in writing, executed, acknowledged, to each
person or entity owning property within the Park.
Enforcement of CCRs.
5.1. Default and Remedies.
Any failure to conform to the requirements set out in these CCRs,
whether by Owner or user of property within the Park, shall constitute a
breach of these CCRs. In
the event of any breach of these CCRs, the Authority/City or any lot
Owner is authorized to enforce compliance of these CCRs.
Prior to any enforcement action, notice shall be served on the
Owner of the lot on which the apparent violation exists.
The breach shall be cured within thirty (30) days from the date
of the written notice of violation.
A copy of the notice shall be served on the Authority and other
affected Owners. Reasonable
extensions shall be given of the time in which the breach must be cured.
Enforcement options include, but are not limited to: civil
actions seeking injunctive relief and/or damages and district court
criminal actions. Nothing in
these CCRs precludes the Authority from properly amending these CCRs to
provide for civil penalties to be imposed by appropriate regulation.
All remedies provided herein or by law or equity shall be
Authority/City or Owner(s) may bring suit for damages for any
compensable breach or for noncompliance with any of the CCRs or for
declaratory relief and determination of the enforceability of these CCRs.
5.1.2. Abatement and Lien
Rights: Any breach or violation of these CCRs, which is not cured
within the notice provided under Section 5.1, above, is declared to be a
Authority/City, upon three (3) business days’ notice, may enter the
lot or portion of the Park property on which the breach or violation
exists for the purpose of abatement and/or removal of that nuisance.
Such entry and remedy may be resorted to without further legal
process to the extent otherwise permitted by law.
In the event of emergent circumstances, which threaten the
immediate health, safety and welfare of the public or persons working or
otherwise doing business on the subject lot, the Authority/City may
enter any premises without advance notice for the purpose of repairing
or otherwise stabilizing the threatening situation.
The circumstances necessitating the emergency action without
notice shall be timely documented with a copy of that documentation
delivered to a responsible person on the property.
The foregoing notwithstanding, the Authority/City may not damage
any property, which does not constitute part of the nuisance.
All such action shall be at the sole cost and expense of the
Owner of the offending lot. Any
costs or expenses paid or incurred by Authority/City in abating such
nuisance or prosecuting any such remedy, including all reasonable
attorneys' fees and costs of collection, together with interest thereon
at the legal rate of eight (8) percent per annum, shall be charged to
the Owner, which charge shall be secured by lien on the lot(s) on which
the breach or violation exists.
In addition to any other rights or remedies provided in these
CCRs, the Authority/City shall have a lien on the offending lot(s),
recordable to the extent of applicable Kentucky law.
In the event such amounts as are recited in a duly recorded
statement of lien pursuant to this section is not paid within thirty
(30) days of filing, the Authority/City or its authorized
representatives, may file an action in the Scott Circuit Court seeking
enforcement of its lien.
If after filing a lien statement, the violations recited in such
statement are timely cured and all costs recited in the statement are
timely paid, the Authority/City shall release the lien.
The filing of the lien release shall be at the Owner's expense.
5.2. Waiver: No
failure to enforce any of these CCRs shall be construed as a waiver of
such a breach, unless in writing from the Authority/City and affected
lot Owner(s). No written waiver of a breach of these CCRs shall be
construed as a waiver of any subsequent breach of the same or any other
of these CCRs.
5.3. Costs of Enforcement:
In the event any legal or equitable action or proceedings are initiated
to enforce any provision(s) of these CCRs, the prevailing party in such
action shall be entitled to recover from the losing party all of its
costs, including court costs and reasonable attorney's fees.
5.4. Non-Exclusive Rights
of Enforcement: The rights of enforcement granted to Authority/City
or Owner(s) are not exclusive and may be exercised by Authority/City or
Owner(s) as long as the entity or person seeking to enforce the
obligation owns an interest in Park property.
5.5. Enforcement by the
City of Georgetown: The City shall have the same enforcement rights
as the Authority and may exercise those rights independently of the
Authority/City may make reasonable inspections of Park lots and
improvements for the purpose of certifying compliance with applicable
standards. Reasonable inspections shall be made only after written
notice is delivered to a responsible person employed on the property to
be inspected not less than two business days prior to the scheduled
inspection. In the event the
desired inspection is necessitated by emergent circumstances which
threaten the immediate health, safety and welfare of the public or
persons working or otherwise doing business on the subject lot, the
Authority/City may inspect the premises without advance notice.
The circumstances necessitating the inspection without notice
shall be timely documented with a copy of that documentation delivered
to a responsible person on the property.
6. Commencement and Completion of
Owner of any Park lot shall undertake no excavation or construction
prior to obtaining all required approvals.
After commencement of construction of any improvements on a Park
lot, the Owner shall diligently prosecute the work.
The improvements shall not remain incomplete longer than
reasonably necessary. The Owner of any Park lot on which improvements
are being constructed shall, at all times, keep public and private
property and streets free from any dirt, mud, or other debris generated
by construction on that lot.
Constructive Notice and Acceptance.
Every person or entity who,
after the date these CCRs are filed of record, acquires any right, title
or interest in any portion of the Park property, is deemed to have
consented to every provision of these CCRs, which constitute a covenant
running with the land, binding all subsequent owners of the property
within the Park, including the Authority, its successors and assigns.
Claim Arises Out of Enforcement or Non-enforcement of CCRs.
No Owner or Occupant of Park
property shall acquire a claim against the Authority/City or its
members, its successors or assigns, by reason of any mistake in
judgment, negligence, nonfeasance, action or inaction related to the
enforcement or failure to enforce any provision of these CCRs.
Rights of Mortgagees.
No breach or violation of these
CCRs shall defeat or render invalid the interest created by any
mortgage, deed of trust, or similar instrument securing a loan made in
good faith and for value, with respect to the development of or
permanent financing for any Park lot.
However, it is expressly understood that these CCRs apply and
govern the actions of any mortgage holder and any subsequent purchaser
of Park property whose title is acquired by foreclosure, trustee's sale,
deed in lieu of foreclosure, or otherwise pursuant to such lien rights,
of these restrictions shall be binding upon and effective against any.
Captions of the CCRs provisions
are used for convenience only. They
are not intended to be part of the substance of the CCRs and shall not
in any way define, limit or expand the scope and intent of the
particular provision to which they refer.
If any provision of these CCRs
is held to be invalid by any Court, the invalidity of any particular
provision shall not affect the validity of the remaining provisions.
during which CCRs Shall Remain in Effect.
CCRs shall continue in full force and effect for a term of fifty (50)
years from the date the executed original is filed of record in the
Scott County Clerk’s Office. Absent
written notice signed by a majority of the lot owners served upon the
Authority/City evidencing the signors’ intent that the CCRs terminate,
the CCRs shall be renewed automatically for successive terms of ten (10)
Variances. Whenever it
appears that a provision[s] contained in these CCRs would work an
unreasonable hardship upon the Owner of Park property, the Owner may
receive a variance permitting deviation from that provision to the
extent necessary to alleviate the unreasonable hardship while
maintaining the spirit and intended effect of these CCRs.
Variances must be approved by
the Authority and, as applicable, the Planning Commission and/or the
Board of Adjustments. Prior
to decision on a requested variance, the reviewing bodies shall consider
the applicability of the factors set out in KRS 100.243. Variances
granted under this provision shall be prepared in the form provided in
KRS 100.3683 and recorded in the Scott County Clerk's office. The
decisions of the reviewing bodies shall be final without recourse to
judicial appeal, except as otherwise provided by law.
Right of Rescission upon Failure to Construct. The Authority/City,
in its sole discretion, may rescind the sale of any Park property, if
the Owner of that property fails to begin construction, in good faith,
according to approved plans within three (3) years from the date the
Owner takes title to the property. Upon rescission of the property, the
City shall refund ninety (90%) of the purchase price, without interest.
Upon the City’s offer of the refunded amount, the Owner shall deliver
a deed re-conveying to the City an unencumbered, fee simple title to the
property. The deed shall be
in such form as directed by the City.
This Declaration of Covenants, Conditions and Restrictions
governing the Georgetown Business Park was adopted by the Georgetown
Business Park Authority at its regular meeting March 31, 2003, and
executed by the undersigned authorized officer, in his official capacity
only, that same date.