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HomeMy WebLinkAboutSewer and Water Main Extension Agreement - Private Extension of Public Water Main – The Reserve at Blackthorn, LLC1316 COUNTY -CITY BUILDING 227 W.JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601-1830 CITY OF SOUTH BEND JAMES MUELLER, MAYOR BOARD OF PUBLIC WORKS June 23, 2020 Mr. Tim Firestone The Reserve at Blackthorn, LLC 6100 Nimtz Pkwy. 46111 South Bend, IN 46628 RE: Sewer and Water Main Extension Agreement Dear Mr. Firestone: PHONE 574/235-9251 FAx 574/ 235-9171 The Board of Public Works, at its meeting held on June 23, 2020, approved the above referenced agreement for a private extension of the public water main while contemplating the connection of a private sewer. Enclosed please find a copy of the agreement for your records. If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, s/Linda M. Martin, Clerk Enclosure GARY A. GILOT ELIZABETH A. MARADIK THERESE J. DORAU JORDAN V. GATHERS JOSEPH R. MOLNAR SEWER AND WATER MAIN EXTENSION AGREEMENT This Sewer and Water Main Extension Agreement ("Agreement") is made on the 23rdday of June 2020 by and between The Reserve at Blackthorn, LLC ("Owner") and the City of South Bend; a municipal corporation existing under the laws of Indiana, acting by and through its Board of Public Works ("City"). WHEREAS, Owner intends to develop 13.8 acres located on Nimtz Parkway just east of St. Joseph Valley Parkway within the existing Blackthorn Golf Club site; and WHEREAS, Owner plans to extend and make additions to the existing water system and connect a private sanitary sewer system to a public sanitary sewer system to serve said development as shown on the Exhibit A, attached and incorporated hereto (the "Dedicated Improvements"), and desires certain commitments from City; and WHEREAS, the engineering design for said Dedicated Improvements has been, or will be, accomplished by competent professional engineers registered and licensed in the State of Indiana; and NOW, THEREFORE, in consideration of the obligations, terms and conditions contained herein, the adequacy of which the parties expressly acknowledge, Owner and the City agree as follows: 1. Design The Owner shall consult the City and allow the City Engineer or her designee input prior to designating the project engineer who shall be responsible for the engineering design and inspection in connection with the installation of the Dedicated Improvements (the "Project Engineer"). The Owner shall inspect the site during construction to ensure the Project Engineer's conformance to area planning requirements, adequacy of design, and conformance to the City's specifications and standards regarding location, size and depth of line, and quality of construction of the Dedicated Improvements. The Owner shall provide the plans with a City of South Bend cover sheet and specifications for the Dedicated Improvements along with a cost estimate to the City. The Owner shall also provide to the City a statement from the Project Engineer certifying that the materials and workmanship including pipes, bedding, thrust blocks, valves, fire hydrants, and other related materials and work meet the City's specifications and standards. Upon request of the City, the certification shall be substantiated by material affidavits from suppliers and by applicable test results for inflow/infiltration, exfiltration, deflection, pressure, leaks, bacteria, compaction and other tests required by the City. All construction, engineering and inspection cost in connection with the Dedicated Improvements shall be borne by the Owner. The Owner, either itself or through a Homeowner's Association established by Owner ("HOA"), will place funds each month into an escrow account that shall be used for the maintenance and repair of sewer system, basins, and other privately owned infrastructure, in accordance with the requirements set forth in Exhibit B. Each property owner not served by separate gravity connection to the private sewer system will have individual grinder pumps/force mains (owned by each property owner) that connect to the private sewer, with one gravity connection to the public sewer system. At all times, the Owner, private owners, and the HOA (if applicable) will have sole ownership and maintenance responsibilities for the private road, basins (drainage), sanitary and storm sewer systems. 2. Construction Inspection The Owner has provided the City with Exhibit A, which depicts drawings of the Dedicated Improvements, which the City acknowledges conforms to the City's standards. The Owner shall allow the City to inspect the Dedicated Improvements during construction to ensure conformance to the agreed standards set forth in Exhibit A, in particular with regard to area planning requirements, adequacy of design, and quality of construction. The Owner shall contact the City's Engineering Department at least two (2) business days in advance to arrange for the attendance of a City inspector at key milestones throughout work. Key milestones shall include but not limited to: sanitary sewer taps and water main taps. The Owner agrees to perform any necessary adjustments as reasonably required by the City Engineer (or her designee) in her sole discretion, as a result of such inspections. The failure of Owner to comply with this Section shall be a material breach of this Agreement. 3. Permits It shall be Owner's sole responsibility and expense to obtain any and all permits associated with the construction and installation of the Dedicated Improvements. 4. Performance Bond Concurrently upon the execution of this Agreement or within seven (7) days thereof, Owner shall provide the City with a performance bond for an amount equal to one hundred twenty—five percent (125%) of the construction cost covering all work performed or to be performed pursuant to this Agreement. Owner's failure to provide the performance bond as prescribed herein shall cause this Agreement to be immediately terminated and of no effect, without the requirement of notice. Surety shall be posted in perpetuity until the acceptance of the Completion Affidavit, Maintenance Bond, and Waiver of Lien. 5. Maintenance Bond Within ten (10) days of City's acceptance of the Dedicated Improvements, Owner shall provide the City with a maintenance bond equal to ten percent (10%) of the construction cost covering all work performed or to be performed pursuant to this Agreement, and such bond shall remain in effect for three (3) years after dedication as described in Section 7 below. 6. Capital Contribution The City acknowledges that system development charges (the "SDC") for the access to the City's water and sanitary sewer systems will be paid on an individual basis by each customer. For purposes of this Agreement, an equivalent residential unit ("ERU") shall mean a single-family residence. For purposes of customers that are not single-family residences, one ERU shall equal estimated wastewater and water flows of 310 gallons per day, respectively. No customer will be less than one ERU. For every new connection to the South Bend Municipal Sewer Works, a capital contribution of $1,145 shall be collected per ERU. For every new connection to the South Bend Municipal Water Works, a system development charge of five hundred dollars ($500.00) shall be collected per ERU and additional portion thereof to be connected. All charges shall be paid to the City at the time the application for connection is filed. For all other types of structures, the ERU calculation shall be based upon the ratio of Average Daily Flow as computed pursuant to 327 IAC 3-6-11 in relationship to 310 gallons per day. For structures not listed in 327 IAC 3-6-11, the ERU shall be calculated as the relationship between the Average Daily Flow reported in the sewer capacity certification for the structure and 310 gallons per day. Notwithstanding the foregoing, the SDC is subject to adjustment in accordance with applicable City ordinances. 7. Dedication Upon completion of the construction of the Dedicated Improvements substantially as depicted in Exhibit A, the Owner shall convey easements for public water main that exists through the site, and dedicate to the City within such easement the Dedicated Improvements as public infrastructure. It is understood by the Owner that no dedication shall be accepted by the City until all required easements have been conveyed, accepted, and recorded by the City. The Owner shall use its best efforts to work with the City to ensure that the Dedicated Improvements are dedicated to the City in a timely manner. Additionally, prior to dedication, the following must be satisfied: a. All parts and labor must meet the standards and requirements stated in the design specifications as presented to and accepted by the City Engineering Department. b. Lien waivers must be received with regard to all workmanship and materials used in connection with these improvements. c. The Completion Affidavit must be furnished to Owner by the Board of Public Works. d. Owner must provide copies of test reports or cut sheets on all materials supplied. e. Owner must provide As -Built drawings in accordance with the City of South Bend Prevailing Specifications for Public Works, which may be found at https://southbendin. gov/wp-content/uploads/20l 8/O7/SBN-Spec-Stand-FINAL-062618- REV-2 BPWSi nature.pdf Owner's failure to comply with this Section 7 shall be a material breach of this Agreement. 8. Indemnification Owner agrees and undertakes to indemnify and hold the City, and its respective agents, employees, successors, and assigns, harmless from any liability, loss, costs, damages or expenses, including attorneys' fees, which the City may suffer or incur as a result of any claims or actions which may be brought by any person or entity arising out of this Agreement. If any action is brought against the City or its respective agents, employees, successors, or assigns, in connection with this Agreement, Owner agrees to defend such action or proceedings at its own expense and to pay any judgment rendered therein. 9. Insurance Owner, at Owner's sole expense, shall maintain during the term of this Agreement commercial general liability insurance covering the Company and the Activity in an amount not less than Five Million Dollars ($5,000,000.00) per occurrence. Owner agrees to include the City as an additional insured on any such policy and produce to the City a certificate of insurance evidencing the same. To the extent that the City is harmed as a result of the Owner's connection to the City's water and sanitary sewer systems, Owner hereby grants the City first priority on any proceeds received from the Owner's insurance. Notwithstanding anything in this Agreement to the contrary, the City does not waive any governmental immunity or liability limitations available to it under Indiana law. 10. Assignment This Agreement may not be assigned by the Owner without the express written consent of the City which such consent may be withheld for any reason. Any violation of this limitation shall terminate the City's obligation and forfeit the Owner's rights under this Agreement. 11. Governing Law This Agreement shall be construed and interpreted according to the laws of the State of Indiana. It is further agreed that all provisions of law now or hereafter in effect relating to water and sewer service by the City shall be applicable to this Agreement. 12. Entire Agreement This Agreement sets forth the entire agreement and understanding between the Owner and the City as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, and understanding of any and every nature between them. 13. Corporate Authority The person signing on behalf of the Owner represents that he/she has been duly authorized to execute this Agreement on behalf of said Owner. (Signature Page Follows) IN WITNESS WHEREOF, the Owner and the City, through their duly authorized representatives, have caused this Agreement to be executed as of the date first written above. The parties have read and understand the foregoing terms of this Agreement and do, by their respective signatures, hereby agree to its terms. "OWNER" The Reserve at Blackthorn, LLC By: Tim Firestone, President "CITY" BOARD OF PUBLIC WORKS Gary A. Gilot, President Elizabeth A. Maradik, Member Therese J. Dorau, Member Jordan V. Gathers, Member Joseph R. Molnar, Member ATTEST: �IiZ�Ct CYfm�iir Linda M. Martin, Clerk EXHIBIT A DEDICATED IMPROVEMENTS — c �. m z o E O C y y LL� , v WEB c� a V t N �� O ,vv vv W a JNZ a ai (n LU , v yo yo0> CD aUo11iz CD —yam a� a) =3 3 a $m Co, I � aLW m>� M -; (LfL) °.° CL �:� d-:S2 � z Z � ° tea: �Z N N 8 0 I I I \ w U O v i a °m�ryE w LO 0 o Ckc I CL N W 1 1 I Q�0 1 11 0-Kc Z > e I I i aZ I I a p Q �, m % ' I qc m I I — N y T— c � n \ X LU c Q a v n >W C Z n I am � W � � o �N COX 3 3� �I i 1 I 1 pZc §Q W 'n k n H �` Z W cn n I // — << I W n / / \✓<< W / -a v �n Q. n / +/!►/ J � �G cc x .qc W n M/ O:a o UZ = t CO n �— VzH -- ---- m �Q p a EXHIBIT B PROTECTIVE RESTRICTIONS, COVENANTS, LIMITATIONS AND EASMENTS FOR THE RESERVE AT BLACKTHORN PROTECTIVE RESTRICTIONS, COVENANTS, LIMITATIONS AND EASEMENTS FOR THE RESERVE AT BLACKTHORN E w c E W toT� ----- --- >-10 c c v a� 32 WEco cai v W am V •�•, Q v o v W �I a) y " QLZ ceZE Z N �41 v 3 u=ox° o co fA O •�., �M, ,V :� Ci O N>O M Z U �aZ n� N N O I N3 co OctTp. a � s i O N N O N 1ol 4- Lol c. 1 1 Z a \� I Q> c 1 1 vQ o z cp Q CL II I a � o � vQi� m II a I cp 3 c oo I \% c� U ^ c'n \ -oc LU Ct _ o n I I I �� t m oo� a a I ( R cc � Cox °p�m�, 1 \ ��- �~ p W 00 LU LU � i a �^ ' /�/ VZ i Z L C m O W nO� o UZ _ �I I 00�0 Co� hie0 3 a V Z v� R 01 n -- --- m DO Q O Q PROTECTIVE RESTRICTIONS, COVENANTS, LIMITATIONS AND EASMENTS FOR THE RESERVE AT BLACKTHORN Consisting of 36 lots, as more particularly described in Exhibit "A" attached hereto and hereby made a part hereof Saint Joseph County, Indiana The Reserve at Blackthorn (the "Subdivision") is a subdivision being developed by The Reserve at Blackthorn, LLC, in Indiana limited liability company (hereinafter the "Developer"), on land more particularly described in Exhibit "A" which is attached hereto and made a part hereof (the "Plat"). The Plat has received final approval and has been recorded in the office of the Recorder of St. Joseph County, Indiana as Document No. , and the Plat is incorporated herein by reference. The Subdivision consists of thirty-six (36) lots (each a "lot") as well as common areas, as depicted in the Plat. Each and every lot in the Subdivision shall be subject to and impressed with these Protective Restrictions, Covenants, Limitations and Easements (the "Covenants"), which shall be considered a part of the conveyance of any lot in the Subdivision without being written therein. The Covenants are for the mutual benefit and protection of the owners, present or future, of any and all lots in the Subdivision and shall run with the land and inure to the benefit of and be enforceable by the owner, or owners, of any land or lots included in the Subdivision, their respective legal representatives, heirs, successors, grantees and assigns. The owner, or owners, present or future, of any land or lot included in the Subdivision shall be entitled to injunctive relief against any violation or attempted violation of the Covenants and also damages for any injuries resulting from any violation hereof, but there shall be no right of reversion or forfeiture of title resulting from such violation. The Covenants are as follows: 1. ARCHITECTURAL CONTROL COMMITTEE. In order to maintain harmonious structural design, no building for the principal use of residential dwelling or any other structure may be erected on any lot, unless and until the plans and specifications therefore have been approved in writing by the Architectural Control Committee (the "Committee"), which Developer hereby creates by these Covenants. The Committee shall consist of three (3) persons appointed by the Developer, who shall serve until they are removed by the Developer or have resigned. In the event of any vacancy on the Committee, the Developer shall appoint a replacement. The Committee shall have the authority to approve all plans and specifications for all structures to be erected in the Subdivision. No construction of any structure shall be commenced until the Committee shall have issued its written approval. The decision of the Committee shall be entirely within its discretion. The authority of the Committee shall expire twenty (20) years after the date of the recording of the Covenants, unless otherwise amended or extended in accordance with the terms herein. The Committee shall have the authority to enforce its decisions through the Developer and all rights, remedies and enforcement provisions available to the Developer shall be available to the Committee after receiving approval from the Developer. The Developer shall have no responsibility or liability for any actions taken or decisions made by the Committee after the Developer has vacated its position of appointment on behalf of the Committee. 2. LAND AND USE AND BUILDING TYPE. (a) No dwelling shall be erected, altered, placed or permitted to remain on any lot other than single-family dwellings not to exceed two and one-half (2-1/2) stories in height and a private side load garage for not more than three (3) cars. In some instances, non -side load garages with a drywalled and textured interior will be approved by the Committee. (b) In all dwellings, a) the front exterior of all dwellings shall be constructed of brick,wood, stone, or combination vinyl siding with a brick, wood, or stone front subject to approval by the Committee; b) all front walks shall be constructed of cement; and c) all roof shingles shall be of the "Fiberglass" type. (c) No lot shall be used for any purpose other than as a single-family residence, except that a home occupation, defined as follows, may be permitted. As used herein, "home occupation" means any use conducted entirely within the residence dwelling and participated in solely by a member of the immediate family residing in said residence, which use is clearly incidental and secondary to the use of the dwelling for dwelling purposes and does not change the character thereof and in connection with which there is: a) No sign or display that will indicate from the exterior that the building is being utilized in whole or in part for any purpose other than that of a dwelling; b) No commodity sold upon the premises; c) No person is employed other than a member of the immediate family residing on the premises; and d) No mechanical or electrical equipment is used; provided that, in no event shall a barber shop, styling salon, beauty parlor, nail salon, tea room, fortune-telling parlor, animal hospital, or any form of animal care treatment such as dog trimming, be constructed as a home occupation. (d) In order to maintain quality in the structure, design and construction of residential dwellings in the Subdivision, Developer hereby requires that all residential dwellings in the Subdivision be constructed by Place Homes or its assigns, unless Developer otherwise agrees in writing. Furthermore, no residential dwelling construction may begin unless prior written approval of the contractor has been given by the Developer. (e) No dwelling on any lot may be rented, in whole or in part, unless agreed to in writing by the Developer. 3. ARCHITECTURAL CONTROL. No building or other structure shall be erected, constructed, placed, maintained, or altered on any lot, nor shall the natural topography or drainage of any lot be altered, until the construction plans for the structure or for the topographical alterations have been approved by the Committee. The plans must show floor plan, quality of construction, materials, outside colors to be used, harmony of external design with existing structures and location with respect to lot fines, topography and finish grade elevations. Two (2) sets of complete plans must be submitted. One (1) will be retained in the Developer's office and one will be returned to the builder. The Committee's approval or disapproval as required in these Restrictions and Covenants shall be in writing. No structure of any kind which does not comply fully with such approved plans shall be erected, constructed, placed, or maintained upon any lot, and no changes or deviations in or from such plans as approved shall be made without the Committee's prior written consent. Neither the Developer, the Committee, nor any member thereof, nor any of their respective heirs, personal representatives, successors or assigns, shall be liable to anyone by reason of any mistake in judgment, negligence or nonfeasance arising out of or relating to the approval or disapproval or failure to approve any plans so submitted, nor shall they, or any of them, be responsible or liable for any structural defects in such plans or in any building or structure erected according to such plans or any drainage problems resulting therefrom. Every person and entity who submits plans to the Committee agrees, by submission of such plans, that he or it will not bring any action or suit against the Committee or the Developer to recover any damages or to require the Committee or the Developer to take, or refrain from taking, any action. Neither the submission of any complete sets of plans to the Developer's office for review by the Committee, nor the approval thereof by that Committee, shall be deemed to guarantee or require the actual construction of the building or structure therein described, and no adjacent lot owner may claim any reliance upon the submission and/or approval of any such plans or the buildings or structures described therein. 4. DWELLING SIZE No dwelling shall be permitted on any lot with a living floor area of the main structure, exclusive of one-story open porches and garages, of less than the following number of square feet for the following types of dwellings. Such minimum square footage will be the following: Type of Home Ranch Style 2 Story 1-1/2 Story 5. GARAGES AND PARKING. Minimum Square Footage 1,600 square feet 1,800 square feet 1,800 square feet All dwellings must have a full-size attached garage which is capable of storing at least two (2) automobiles but not to exceed space for three (3) automobiles. Garages and parking must be located in such a way that no cars or garage doors are readily visible from the street and are effectively screened from any other lot in this Subdivision, (unless the lot does not allow it) and no vehicle shall be parked upon the grass or landscaped portion of any lot at any time. Additionally, no vehicle shall be parked on a regular, recurrent or permanent basis on any right-of-way. 6. MAILBOXES. There shall at all times be constructed and maintained in good condition and repair, on each lot, a mailbox in conformity with the design criteria set by the Committee. 7. BUILDING LOCATION. No building shall be located on any lot nearer to the right-of-way fine than the minimum building setback lines as shown on Exhibit A. Side yard setbacks will be in accordance with Exhibit A, one side will be 10' and the other side will encompass O'lot line. No dwelling shall be located closer than twenty-five (25). feet to any rear lot line. For the purpose of this Section, eaves, steps and open porches shall not be considered as a part of the building; provided, however, that this shall not be constructed so as to permit any portion of a building on a lot to be located nearer that ten (10) feet from any side lot line or ten (10) feet from any building on an adjacent lot, whichever distance is greater. 8. EASEMENTS. There are strips of ground variable in width that are located in the Subdivision, as shown on Exhibit A and marked "Easement," which are reserved for use as roads, Blackthorn Golf Club, South Bend International Airport and for the use of public utilities for the installation of water and sewer mains, poles, ducts, lines and wires, and overland drainage flows, subject at all times to the proper authorities and to the easement herein reserved. No permanent structures shall be erected or maintained upon said strip of land except as noted in Paragraphs 9 and 10, regarding screening of non -access easements. No changes shall be made in the grading of any lot areas used as drainage swales as initially provided which would alter the flow of overland storm drainage runoff, but owners of lots in this Subdivision shall take their titles subject to the rights of the public utilities. Furthermore, any utility company, in setting utility poles, shall have the right to set anchor poles at any change of direction of their lines. Such anchor poles may be set on any lot line outside the easement and not more than ten (10) feet from the rear line of any lot. All utility pedestals and transformers shall be erected on or within five (5) feet of the nearest comer lot. Furthermore, all lots in the Subdivision are bound by and subject to the Easements, including but limited to that certain Avigation and Hazard Easement dated May 15, 2019 and recorded June 26, 2019 in the office of the Recorder of St. Joseph County, Indiana as Document No. 2019- 14877, a copy of which is attached as Exhibit B and incorporated herein by reference. 9. PROTECTIVE SCREENING. Protective screening areas are established as shown on Exhibit A and are noted as "non -access easement'. Except as otherwise provided herein regarding street intersections under "Sight Distance at Intersections", plantings shall be retained and maintained throughout the entire length of such areas by the owner or the owners of the lots at their own expense to form an effective screen for the protection of the residential area. No building or structure, except a screen fence or landscaping or wall or utilities or drainage facilities, shall be placed or permitted to remain in such areas. No vehicular access over the area shall be permitted except for the purpose of installation and maintenance of screening, utilities and drainage facilities. No live trees of any size located within ten (10) feet of the perimeter of any lot may be cut without prior approval of the Committee. In addition, no screen planting over thirty-six (36) inches high shall be permitted between the building setback line and front lot line on all lots. 10. FENCING. There will be no perimeter fencing. No privacy fencing will be allowed on lots 21-36. Fencing around lots 1-20 is allowed but must be approved by architectural Committee. 11. NUISANCES. No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may become an annoyance or nuisance in the neighborhood. 12. PROHIBITED STRUCTURES. No trailer, modular home, manufactured home, pre -built home, tent, shack, barn, outbuilding or any structure of a temporary character shall be moved onto, assembled or constructed on any lot and used at any time as a residence, either temporarily or permanently. 13. POOLS. No above ground pools shall be permitted. Inground pools shall be permitted with the Committee prior approval. Inground pools must use a hard cover rather than fencing as part of code. 14. DETACHED BUILDING The construction and placement of any detached storage to be used for the storage of golf carts, lawn tools, toys, swimming pool apparatus, or any other personal property must be of a quality construction and match the exterior of the home so as to blend with the established home and be submitted to the Committee for approval before beginning construction. Approval for the construction of the structure must be obtained from the Committee as provided for in herein. 15. DRIVEWAYS. No brick, stone or cinder driveways shall be permitted. All driveways are to be a minimum of sixteen (16) feet wide and must be constructed of concrete. The driveway shall be at least four (4) inches thick, 16. SIGNS. No sign of any kind shall be displayed to the public view on any lot, including any signs advertising the property for sale or rent, or a sign of any dimension used by a builder to advertise the property during the construction and sales period, unless prior written approval is given by the Developer. There is reserved to the Developer, its successors and assigns, the right to construct signs as they desire in order to foster the promotion and effect sales of lots or structure in the Subdivision. 17. LIVESTOCK AND POULTRY. No animals, livestock or poultry of any kind shall be raised, bred or kept on any lot, except that dogs, cats, or other household pets may be kept, provided that they are not kept, bred or maintained for any commercial purposes and are not permitted to become a neighborhood nuisance or hazard in any manner. 18. GARBAGE AND REFUSE DISPOSAL. No lot shall be used or maintained as a dumping ground for rubbish. Trash garbage or other waste shall not be kept except in sanitary containers. All incinerators or other equipment for the storage or disposal of such material shall be kept in a clean sanitary condition. 19. SIGHT DISTANCE AT INTERSECTIONS. No fence, wall, hedge or shrub planting which obstructs sight lines at elevations between two (2) and six (6) feet above the roadways shall be placed or permitted to remain on any comer lot within the triangular area formed by the street property lines and a line connecting them at points twenty-five (25) feet from the intersection of the street lines; or, in the case of a rounded property comer, from the intersection of the street property lines extended. The same sight -line limitations shall apply on any lot within ten (10) feet from the intersection of a street property fine with the edge of a driveway. No tree shall be permitted to remain within such distances of such intersection unless the foliage line is maintained at sufficient height to prevent obstruction of such sight lines. 20. DEFORESTATION. No live trees with a diameter in excess of four inches (4), measured 12 inches above ground, no trees which are generally known as flowering trees (such as dogwood, or redbud) or as broad leaf evergreens, nor live vegetation on slopes of greater that twenty per cent gradient, may be cut without prior approval of the Committee. The Developer shall set rules for cutting such trees to allow for selective clearing or cutting. 21. COMPLETION DATE Any structure begun must be completed within a period of one (1) year from the date of beginning. The side, front and rear yards of each lot shall be planted with grass seed, sod or ground cover, unless otherwise approved by the Committee, within one hundred and twenty (120) days after the structure is completed, or the structure is occupied as a home, whichever is earlier. 22. DEVELOPER'S OPTION TO REPURCHASE. In the event that a residential dwelling meeting the requirements of these Restrictions and Covenants is not completed on any lot within a period of two (2) years from the date on which such lot is conveyed by the Developer to the purchaser thereof, unless such two (2) year period is extended by written instrument duly executed by the Developer, the Developer shall thereupon have the right during the ensuing twelve (12) month period commencing on the second anniversary date of such conveyance to repurchase such lot from the current owner of such lot, free and clear of all liens and encumbrances except current property taxes which shall be prorated to the date of closing, at the same price at which the Developer sold such lot to the original purchaser thereof, without payment of interest or any other charges, upon the Developer serving written notice upon the current owner of such lot of Developer's intention to exercise its option and effect such repurchase, notwithstanding whether the current owner of such lot was also the original purchaser thereof The closing of such repurchase shall take place at the Developer's office not later than thirty (30) days from the date of the giving of such written notice to the current owner of such lot, who shall take such actions and shall execute such documents, including a warranty deed to such lot, as the attorneys for the Developer shall deem reasonably necessary to convey good title to such lot to the Developer, free and clear of all liens and encumbrances as aforesaid. 23. FUEL STORAGE TANKS. No oil or fuel storage tanks may be installed above or underground or concealed within the main structure of the dwelling, basement, or attached garage. 24. LOT DIVISION. There shall be no subdivision or sale of any lot by a homeowner for the purpose of building an additional dwelling. 25. LIGHTING. A dusk to dawn light (or gas light) of the type approved by the Committee shall be installed by the builder or lot owner on each lot in front of the front building setback line. If electric, post lights shall be equipped with automatic operators (electric eye) to provide light from sundown to dawn. 26. RECREATIONAL AND COMMERCIAL VEHICLES. No recreational or commercial vehicles (campers, trailers, trucks, or boats) maybe kept in open areas in this Subdivision, whether such open areas are on or off the lot of any lot owner. 27. MANAGEMENT AND ASSESSMENTS. (a) Subject to Section 27(c) of the Covenants, Developer (or its assignee) shall be responsible for maintaining and supporting financially all park areas, all landscaped entrance ways, and all street lighting, and the provision of such security services as may be deemed advisable and practical in the sole discretion of the Developer. The Developer shall impose, and the lot owners agree to pay, monthly assessments (the "Assessments") for the installation and operation of street lighting, and maintenance and improvement of park areas or other common areas of the Subdivision, and the provision of the aforesaid security services in the amount of not less than Two Hundred Twenty Five ($225.00) per lot per month but not more than Two Hundred -Fifty Dollars ($250.00) per lot per month. The Assessments shall be levied equally on each lot of the Subdivision and failure to pay said Assessments shall be a violation of these Covenants. The Assessments shall be billed by the Developer to the owner of each lot monthly. All lots in this Subdivision shall, from and after the recording of these Covenants, be subject to said Assessments. The Assessments, including interest, costs of collection and attorneys' fees, if any, as hereinafter provided, shall be a lien in favor of the Developer upon the lot against which such Assessments are charged until discharged by payment or released by the Developer, which lien may, but need not, be enforced in the same manner as is provided in the mechanic's lien statutes of the State of Indiana. Notwithstanding anything to the contrary herein, the Developer need not file or record or send any notice with respect to any lien or liens or bring suit thereon within any time specified in the mechanic's lien statues of the State of Indiana to enforce the same. The Developer may, but need not, publicly record such notices of undischarged liens arising hereunder as it deems appropriate and may, but need not, bring a separate independent action in any court to enforce payment of, or to foreclose, the lien created hereunder. Provided further, that any person purchasing or dealing with said lot may rely upon a certificate signed by an authorized representative of the Developer showing the amount of such certificate, and the Developer shall not be entitled to enforce any lien for such charge accruing prior to the date of any such certificate unless the amount thereof is shown in the said certificate. The within above -described lien is subordinate to any first mortgage lien on the lot. The Developer may also enforce the restrictions concerning accumulations of rubbish, weeds, or trash, and may own any land for use by an or less than all of the lot owners as a "common area". Any past -due Assessments or other charges assessable hereunder shall bear interest at the rate of eight percent (8%) per annum commencing thirty (30) days after same become due and with attorneys fees, and shall be due and payable without relief from valuation and appraisement laws. (b) The Developer agrees to create a separate escrow account (the "Deferred Maintenance Account") and to deposit into the Deferred Maintenance Account, on a monthly basis, twenty-five dollars ($25) of each Assessment received, per lot. Funds in the Deferred Maintenance Account shall be used exclusively for the maintenance and repair of sewer, basins, private roads, sidewalks, and other privately owned infrastructure in the Subdivision (collectively the "Subdivision Infrastructure"). The Developer and the lot owners shall be solely responsible for owning, repairing, and maintaining the Subdivision Infrastructure. (c) Developer's rights and obligations under this Section 27 shall terminate upon occurrence of any of the following (each a "Termination Event"): (1) the real estate adjacent to the Subdivision, commonly known as Blackthorn Golf Course, ceases to be used as a golf course; or (2) Developer, at its sole discretion, assigns its rights and obligations under this Section 27 to a home -owners association, created by Developer, for the benefit of the lot owners (the "HOA"). Upon a Termination Event, Developer will cooperate with the lot owners to create the HOA and make sure the management of the Subdivision is appropriately transferred to the HOA. 28. UTILITIES AND TELEVISION ANTENNAS. All public utility services, either in the streets or on any lots, including but not limited to electric, gas and telephone service, and cable television, shall be located underground, und, and shall not be visible. No outside above -ground television, A.M., FK or short wave radio antennas of any type, including but not limited to any type of antenna (not including Dish or DirectTV), shall be erected or maintained on any lots or structures in this Subdivision. All street or lot lighting shall be situated on posts with no fines visible. To assure the enforcement of this restriction, the Developer, for itself, its successors, and assigns, does hereby agree: (a) To prohibit the erection and use of overhead wires, poles, and other facilities of any kind, including but not limited to those associated with electrical, television from poles and overhead wires around the perimeter of the Subdivision or development. Nothing herein should be construed to prohibit street lighting or ornamental yard lights if serviced by underground wire or cable; (b) To require that the owner of any building erected on the property install an electric service entrance of sufficient capacity to meet present and future requirements of the occupants in accordance with the. engineering standards of the electric utility company; (c) To require owners to assume all landscaping responsibility and restoration of paved or planted areas made necessary by maintenance, replacement, or expansion of the underground service facilities; (d) To require accessibility to all strips in which underground service is located for operation, maintenance, or replacement of facilities; and (e) To require that the owner of any building erected on the property must pay any cost differential for underground service laterals. 29. FIRES. No fire shall be permitted to burn on any street or roadway in this Subdivision. 30. CONVEYANCE OF COMMON AREAS TO ASSOCIATION. The Developer hereby covenants for itself, its successors and assigns, that it will convey fee simple title to all common areas in this Subdivision to the HOA not later than one (5) years after a Termination Event. 31. POND Pond shall mean and refer to the pond identified on the Plat and also referred to as a draining retention area. 32. AMENDMENTS OF COVENANTS. It is expressly provided that the Developer, its successors, or assigns, shall have the exclusive right for a period of five (5) years from date of recording of these Covenants to amend any of the terms and conditions contained herein except Developer may not, during such five-year period, increase the Two Hundred -Fifty Dollar ($250.00) limitation on the Assessments which may be levied monthly by the Developer against any lot pursuant to Section 27(a). Any such amendment shall be evidenced by the recording of a written amendment signed and recorded in the Office of the Recorder of St. Joseph County and shall become effective upon such recording. This shall include the right to waive any part of the restrictions or conditions as to any particular lot. After five (5) years from the date of recording of these Covenants, the Developer may amend any term or condition contained in these Covenants at any time by the recording of such amendment executed by the owners of the fee title of not less than seventy-five percent (75%) of the lots in the Subdivision. 33. DURATION OF COVENANTS. These covenants and restrictions are to run with the land and shall be binding on all parties and all persons claiming under them until December 31, 2030, at which time said covenants and restrictions shall be automatically extended for successive periods of ten (10) years, unless by a vote of the then owners of the fee title of not less than seventy-five percent (75%) of the lots covered by these Covenants, it is agreed to change such covenants and restrictions in whole or in part. 34. SEPARABILITY OF COVENANTS. Invalidation of any one of the covenants or restrictions by judgment of a Court of competent jurisdiction shall in no way affect any of the other covenants or restrictions and all other provisions of these covenants and restrictions shall remain in full force and effect. 35. ENFOREMENT OF COVENANTS. The right to enforce these Covenants by injunction, together with the right to cause the removal by due process of law of any structure, is hereby vested in the Developer and also each owner of a lot in the Subdivision, as well as their respective successors and assigns. These Covenants may all be enforced by a civil action for damages and by any other appropriate remedy at law or in equity. In the event that any lot owner or the Developer should employ counsel to enforce any of these Covenants, the costs incurred in such enforcement, including reasonable attorneys' fees, shall be paid by the owner of such lot or lots against whom such enforcement action is brought. 36. EFFECTIVE DATE. These Covenants shall become effective upon their recording in the office of the Recorder of St. Joseph County, Indiana. [remainder of page left blank — signatures on following pages] IN WITNESS WHEREOF, the undersigned Developer does hereby execute and make effective these Protective Restrictions, Covenants, Limitations and Easements for The Reserve at Blackthorn, in St. Joseph County, Indiana, which is done the 1('y day of -Tvnie, , 2020. THE RESERVE AT BLACKTHORN, LLC By: Tim Firestone, Member STATE OF INDIANA ) ) SS: COUNTY OF ST. JOSEPH ) Before me, the undersigned, a Notary Public in and for said County and State, on this 16,14 day of u h e. , 2020 personally appeared Tim Firestone, Member of The Reserve at Blackthorn, LLC and acknowledge the execution of the above and foregoing Protective Restrictions, Covenants, Limitations and Easements for The Reserve at Blackthorn, LLC for and on behalf of said limited liability company as being its voluntary act and deed. JANICE L. MUELLER Signed: 1yL4-L-U 10tary Public - Seal Printed: JANI t& L. [MUELL_EF— state of Iddiaoa Residing in Sr J 17he't4 County, IN 1 1 Josepo-Qourity My drnMi1SS!L" Expires Dec 4, 2022 Commission expires: 12_04.. Zn Z7 --- EXHIBIT A RECORDED PLAT OF THE RESERVE AT BLACKTHORN [ATTACHED] BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 6/17/20 Department Name Kyle Silveus Engineering BPW Date 6/23/20 Phone Extension 9083 Review and Approval Required Prior to Submittal to Board Diversity Compliance and Inclusion Officer ❑ Officer Name BPW Attorney ® Attorney Name Clara McDaniels Dept. Attorney ❑ Attorney Name Purchasing 0 Check the Appropriate Item Type — Required for All Submissions ❑ Professional Services Agreement ❑ Contract ❑ Proposal ❑ Open Market Contract ❑ Amendment/Addendum ❑ Special Purchase, QPA ❑ Bid Opening ❑ Bid Award ❑ Req. to Advertise ❑ Title Sheet ❑ Quote Opening ❑ Quote Award ❑ Reject Bids/Quotes ❑ Proposal Opening ❑ C/O & PCA No. ❑ PCA ❑ Chg. Order, No. ❑ Traffic Control ❑ Resolution N Other: Agreement n Ease./Encroach Company or Vendor Name New Vendor MBE/WBE Contractor Proj ect Name Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description Amount of ❑ El Previous Amount Current Percent of Change New Amount Total Percent of Change: Time Extension Amount: New Combletion Date: Information The Reserve at Blackthorn, LLC ❑ Yes❑ If Yes, Approved by Purchasing ❑ No El MBE ❑ WBE Completed E-Verify Form Attached The Reserve at Blackthorn Sewer and Water Extension Agreement ❑❑ Yes No DP19-005 N/A N/A N/A N/A Outlines terms of a private extension of public water main, while contemplating the connection of private sewer. For Change Orders Only Increase $ Decrease Increase % Decrease ( %) Increase % Decrease ( % BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 6/17/20 Department Name Kyle Silveus Engineering BPW Date 6/23/20 Phone Extension 9083 Review and Approval Required Prior to Submittal to Board Diversity Compliance ❑ Officer Name and Inclusion Officer BPW Attorney ® Attorney Name Clara McDaniels Dept. Attorney ❑ Attorney Name Purchasing ❑ Check the Appropriate Item Type — Reuirec or All Submissions ❑ Professional Services Agreement ❑ Contract ❑ Proposal ❑ Open Market Contract ❑ Amendment/Addendum ❑ Special Purchase, QPA ❑ Bid Opening ❑ Bid Award ❑ Req. to Advertise ® Title Sheet ❑ Quote Opening ❑ Quote Award ❑ Reject Bids/Quotes ❑ Proposal Opening ❑ C/O & PCA No. ❑ PCA ❑ Chg. Order, No. ❑ Traffic Control ❑ Resolution ❑ Other: ❑ Ease./Encroach Reauired Information Company or Vendor Name The Reserve at Blackthorn, LLC ❑ Yes❑ If Yes, Approved by Purchasing New Vendor ❑ No MB ❑❑ Yes MBE/WBE Contractor E Completed E-Verify Form Attached ❑ No Project Name Blackthorn Reserve Water Main Extension Project Number DP 19-005 Funding Source N/A Account No. N/A Amount N/A Terms of Contract N/A Purpose/Description Private extension of public water main. 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