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HomeMy WebLinkAboutDeclaration of Easements with Exhibits 5-29-01 ~ DECLARATION OF EASEMENTS, RESTRICTIONS A COVENANTS OF THE WOODS AT WilLIAMS CRE ~ 'i THIS DECLARATION OF EASEMENTS, RESTRICTIONS AND COVE The Woods at Williams Creek (hereinafter "Declaration"), made as of the_ May, 2001, by Williams Creek Woods LLC, an Indiana limited liability company, 4429 Blue Creek Drive, Carmel, Indiana 46033 (hereinafter "Williams Creek"). WIT N E SSE T H: WHEREAS, Williams Creek is the owner of the real estate located in Hamilton County, Indiana described on attached Exhibit A (hereinafter "Real Estate"), upon which Williams Creek intends to develop a residential subdivision to be known as The Woods at Williams Creek; WHEREAS, Declarant desires to provide for the preservation and enhancement of the property values in The Woods at Williams Creek and for the maintenance of the Real Estate and the improvements thereon, and to this end desires to subject the Real Estate to the covenants, restrictions, easements, charges and liens hereinafter set forth, each of which is for the benefit of the future subdivision of Real Estate and the future owners thereof; WHEREAS, Williams Creek believes it to be prudent to create an Indiana not for profit corporation (hereinafter "NP Corp. If) to administer and enforce the terms of this Declaration. NOW, THEREFORE, Williams Creek declares that the Real Estate as it now exists and as it shall be held, conveyed, hypothecated or encumbered, leased, rented, used, occupied and improved, are subject to the following terms and conditions, all of which are declared to be in furtherance of a plan for the improvement and sale of the Real Estate and each future lot to be situated therein, and are established and agreed upon for the purpose of enhancing and protecting the value, desirability and attractiveness of the Real Estate as a whole and of each of the future lots and improvements to be constructed thereon. The terms and conditions of this Declaration shall run with the land and shall be binding upon Williams Creek, its respective successors and assigns, and upon the parties having or acquiring any interest in the Real Estate or any part or parts thereof subject to this Declaration. The terms and conditions of this Declaration shall inure to the benefit of Williams Creek and its respective successors in title to the Real Estate or any part or parts thereof: 1 . Definitions. The following terms, as used in this Declaration, unless the context clearly requires otherwise, shall mean the following: 1 . ,; /:\ (a) "Architectural Review Board" means that entity established pursuant to Paragraph 11 of this Declaration for the purposes therein stated; (b) "Articles" means the Articles of Incorporation of the NP Corp., as amended from time to time; (c) "Assessments" means all sum lawfully assessed against the Members of the NP Corp., as amended from time to time; (d) "Board of. Directors" means the governing body of the NP Corp. elected by the Members in accordance with the By-Laws; (e) "By-Laws" means the Code of By-Laws of the NP Corp. elected by the Members in accordance with the By-Laws; (f) "The Woods at Williams Creek" means the name by which the Real Estate shall be known; (g) "Common Areas" mean Blocks A, B, C, D, E and F as depicted on the Plat; (h) "Community Area" means: (i) Common Areas; (ii) the Lake Control Structures; (iii) the Drainage System; (iv) the Lakes and the Lake Access Easements; (v) the Roadways to the extent not maintained by public authority; and (vi) any utility service lines or facilities not maintained by a public utility company or governmental agency that serve more than one Lot; (i) "NP Corp." means The Woods Association of Homeowners, Inc., an Indiana not-for-profit corporation, its successors and assigns; (j) "Williams Creek" means Williams Creek Woods LLC, an Indiana limited liability company, its successors and assigns to its interest in the Real Estate other than Owners purchasing Lots or Residences by deed from Williams Creek (unless the conveyance indicated or intends that the grantee assume the rights and obligations of Williams Creek); (k) "Development Period" means the period of time commencing with the execution of this Declaration and ending when Williams Creek has completed the development and sale of, and no longer owns, any Lot or any other portion of the Real Estate; (I) "Drainage Board" means the Hamilton County Drainage Board, Hamilton County, Indiana, its successors or assigns; ? . (m) "Drainage System" means the open drainage ditches and swales, the subsurface drainage tiles, pipes and structures, the dry and wet retention and/or detention areas, and the other structures, fixtures, properties, equipment and facilities (excluding the Lakes and the Lake Control Structures) located in the Real Estate and designed for the purpose of controlling, retaining or expediting the drainage of surface and subsurface waters from, over and across the Real Estate, including but not limited to those shown or referred to on the Plat, all or part of which may be established as legal drains subject to the jurisdiction of the Drainage Board; (n) "Lake" means any lake as depicted on the Plat; (0) "Lake Maintenance Access Easement" means an area designated on the Plat as a means of access, for purposes of maintenance, to a Lake or a Lake Control Structure; (p) "100 Year Floodway Easement" means an area designated on the Plat that defines the approximate 100 year floodway in accordance with the procedure of the Indiana Department of Natural Resources; (q) "Nature Conservation Zone" means an area depicted on the Plat; (r) "Lake Control Structures" means the structure, outfalls, pipes and appurtenances associated therewith or integral thereto, all or part of which may be established as a legal drain subject to the jurisdiction of the Drainage Board; (s) "Lot" means a platted lot as shown on the Plat; (t) "Lake Lot" means Lots 12 through 28 and 57 through 72 inclusive as depicted on the Plat; (u) "Lot Development Plan" means: (i) a site plan prepared by a licensed engineer or architect; (ij) foundation plan and proposed finished floor elevations; (iii) building plans, including elevation and floors plan; (iv) material plans and specifications; (v) landscaping plan; and (vi) all other data or information that the Architectural Review Board may request with respect to the improvement or alteration of a Lot (including but not limited to the landscaping thereof) or the construction or alteration of a Residence or other structure or improvement thereon; (v) "Maintenance Costs" means all the costs necessary to keep the facilities to which the term applies operational and in good condition, including but not limited to the cost of all upkeep, maintenance, repair, replacement of all or any part of any such facility, payment of all insurance with respect thereto, all taxes imposed on the facility and on the underlying land, leasehold, easement or right-of-way, and any other expense related to the continuous maintenance, operation or improvement of the facility; ~ . (w) "Manager" means the individuals (and/or any corporation such individuals own or control) identified in Williams Creek's Operating Agreement; (x) "Member" means a Class A or Class B member of the NP Corp. and "Members" means Class A and Class B members of the NP Corp.; (y) "Mortgagee" means the holder of a first mortgage on a Residence; (z) "Owner" means a Person, including Williams Creek, who at the time has or is acquiring any interest in a Lot except a Person who has or is acquiring such an interest merely as security for the performance of an obligation; (aa) "Person" means an individual, firm, corporation, partnership, association, trust or other legal entity, or any combination thereof; (bb) "Plat" means the final secondary plat of the Real Estate recorded in the Office of the Recorder of Hamilton County, Indiana; (cc) "Reserve for Replacements" means a fund established and maintained by the NP Corp. to meet the cost of periodic maintenance and repairs of the Lake Control Structures; (dd) "Residence" means any structure intended exclusively for occupancy by a single family together with all appurtenances thereto, including private garage and outbuildings and recreational facilities usual and incidental to the usage of a single family residential lot; (ee) "Restrictions" means the covenants, conditions, easements, charges, liens, restrictions, rules and regulations and all other provisions set forth in this Declaration and the Register of Regulations, as the same may from time to time be amended; (ff) "Register of Regulations" means the document containing rules, regulations, policies, and procedures adopted by the Board of Directors or the Architectural Review Board, as the same may from time to time be amended; (gg) "Roadway" means all or any part of a street, land or road (including the right-of-way) designated to provide access to one or more Lots which has not been accepted for maintenance by a public authority; (hh) "Zoning Authority" with respect to any action means the Director of the Department of Community Development of the City of Carmel, Indiana or, where he lacks the capacity to take action, or fails to take such action, the governmental body or bodies, administrative or judicial, in which authority is vested under applicable law 4 . to hear appeals, or review action, or the failure to act. 2. DAclan'ltion. Williams Creek hereby expressly declares that the Real Estate shall be held, transferred, used, and occupied subject to the Restrictions. The Owner of any Lot subject to these Restrictions by: (i) acceptance of a deed conveying title thereto, or the execution of a contract for the purchase thereof f whether from Williams Creek or a subsequent Owner of such lot; or (ij) by the act of occupancy or use of any lot, shall accept such deed and execute such contract subject to each Restriction and agreement herein contained. By acceptance of such deed or execution of such contract, each Owner acknowledges the rights and powers of Williams Creek and of the NP Corp., and the Owners of each of the Lots affected by these Restrictions to keep, observe, comply with and perform such restrictions and agreements. 3. ThA LakAS. Williams Creek shall convey title to the Lakes to the NP Corp. The NP Corp. shall be responsible for maintaining the Lakes. NP Corp. shall maintain the Lakes to preserve their purpose as a retention facility of the Drainage System. Each Owner of a Lot which abuts the Lake shall be responsible at all times for maintaining so much of the bank of the Lakes above the pool level as constitutes a part of, or abuts, his Lot and shall keep that portion of a Lake abutting his lot free of debris and otherwise in reasonably clean condition. No Owner shall pump water out of the Lakes. No boats shall be permitted upon any part of a lake and no dock, pier, wall or other structure may be extended into a lake without the prior written consent of the Architectural Review Board and such governmental authority as may have jurisdiction. No swimming or ice skating will be permitted in or on the Lakes unless authorized by the Board of Directors. Each Owner of a Lot abutting a Lake shall indemnify and hold harmless Williams Creek, the NP Corp. and each other Owner against all loss or damage incurred as a result of injury to any Person or damage to any property, or as a result of any other cause or thing, arising from or related to use of, or access to a Lake by any Person who gains access thereto from over or across such Owner's lot. Williams Creek shall have no liability to any Person with respect to a Lake, the use thereof or access thereof, or with respect to any damage to any Lot resulting from a Lake or the proximity of a Lot thereto, including loss or damage from erosion. 4. ThA I FlkA Control Strllr.tllrAS. Williams Creek shall convey title to the Lake Control Structures to the NP Corp. The NP Corp. shall be responsible for maintaining the lake Control Structures to the extent not maintained by the Drainage Board, and the Maintenance Costs thereof shall be assessed as a general Assessment against all lots. 5. DrainagA SystAm. Williams Creek shall maintain the Drainage System in good condition satisfactory for the purpose for which it was constructed until the earlier of June 30, 2002, or the date the Drainage System is accepted as a legal drain by the Drainage Board. After the earlier of such dates, the NP Corp. shall maintain !=\ -i . the Drainage System to the extent not maintained by the Drainage Board and the Maintenance Costs thereof shall be assessed against all Lots. Each Owner shall be individually liable for the cost of maintenance of any drainage system located entirely upon his Lot which is devoted exclusively to drainage of his Lot and is not maintained by the Drainage Board. 6. ROfldwflYs. Williams Creek shall maintain each Roadway in good condition satisfactory for the purpose for which it was constructed until the Roadway has been accepted as a public roadway. 7. Constn Iction of Residences. (a) Lflnd Use. Lots may be used only for single-family residential purposes. Only one Residence shall be constructed on a Lot. Such Residence shall not exceed the maximum height permitted by and measured pursuant to the Zoning Ordinance of the City of Carmel, Indiana. No portion of any Lot may be sold or subdivided such that there will be thereby a greater number of Residences in The Woods at Williams Creek than the number of Lots depicted on the Plat. Notwithstanding any provision in the applicable zoning ordinance to the contrary, no Lot may be used for any "Special Use" that is not clearly incidental and necessary to single family dwellings. No home occupation shall be conducted or maintained on any Lot other than one which does not constitute a "special use" and which is incidental to a business, profession or occupation of the Owner or occupant of such Lot and which is generally or regularly conducted at another location which is away from such Lot. No signs of any nature, kind or description shall be erected, placed, or permitted to remain on any Lot advertising a permitted home occupation. Notwithstanding the foregoing restrictions pertaining to the Lots, Lot 73 may be excepted from the foregoing restrictions if Williams Creek elects to build a clubhouse/pool on Lot 73. In such event upon Williams Creek sale of all the remaining 72 Lots, it shall quitclaim its interest in Lot 73 (and the improvements thereon) to NP Corp; (b) Size of Residence. Except as otherwise provided herein, no residence may be constructed on any Lot unless such Residence, exclusive of open porches, attached garages and basements, shall have a ground floor area of 3,200 square feet if a one-story structure, or 4,000 square feet if a multi-story structure. In the case of multi-story structure, at least 2,200 square feet must be included in the ground floor of such Residence; (c) Temporflry Strllctllres. No trailer, shack, tent, boat, basement, garage or other outbuilding may be used at any time as a dwelling, temporary or permanent, nor may any structure of a temporary character be used as a dwelling; (d) Building I oCfltion find Finished Floor Elevfltion. No building may be erected between the building line shown on the Plat and the front Lot line, and no structure or part thereof may be built or erected nearer than ten (10) feet to any side ~ ~ . Lot line or nearer than twenty (20) feet to any rear Lot line. The side yards of each Lot must aggregate thirty (30) feet. No accessory building may be erected in front of a main building or in the required front yard on the side of a corner lot unless the accessory building is attached to the main building by a common wall. All ground floor elevations must be supplied to the Architectural Review Board. Demonstration of adequate storm water drainage in conformity with both on-Lot and overall project drainage plans shall be a pre-requisite for finished floor elevations. The Architectural Review Board shall approve, in writing, such elevations. Before construction commences, the finished floor elevation shall be physically checked on the Lot and certified by a licensed professional engineer or a licensed land surveyor; (e) DrivAwt:lY!i. All driveways shall be paved asphalt or poured concrete and maintained dust free; (f) Yt:lrn I ight!i. Each Residence on each Lot shall include a yard light on such Lot at a location, having a height and of a type, style and manufacture approved by the Architectural Review Board. Each such light fixture shall also have a bulb of a maximum wattage approved by Architectural Review Board to insure uniform illumination on each Lot and shall be equipped with a photo electric cell or similar device to insure automatic illumination from dusk to dawn each day. The yard light thereafter shall be maintained in proper working order by the Lot Owner; (g) FirA PIt:lCA Cht:l!iA. All fireplace chases shall be of masonry veneer, dryvit, or a material which is equal to or better than masonry veneer or dryvit in quality and appearance. No fireplace chase shall be constructed of stucco board; (h) Stnrt:lgA Tt:lnk!i. All above or below ground storage tanks, with the exception of gas storage tanks (not to exceed 10 gallons) used solely in connection with gas grills for the purpose of grilling or cooking food, shall be and thereby are prohibited; (i) C:nn!itrLJctinn t:lnn Lt:lnn!ict:lping. All construction upon, landscaping of and other improvements to a Lot shall be completed strictly in accordance with the Lot Development Plan approved by the Architectural Review Board. Landscaping shall include a minimum of shrubs, evergreens and trees as further described and specified on attached Exhibit B. All landscaping specified on the landscaping plan approved by the Architectural Review Board shall be installed on the Lot strictly in accordance with such approved plan within thirty (30) days following substantial completion of the Residence unless the Board agrees to a later landscaping completion date. In the event the actual construction of the Residence fails to fully comply with all the details and specifications of the Lot Development Plan, Williams Creek and/or NP Corp. shall have the right (but not the obligation) to file suit in a court of appropriate jurisdiction. Such suit shall seek specific performance of the provisions of the Lot Development Plan. In addition to the remedy of specific performance, Williams Creek and/or NP Corp. shall be entitled to recover all costs of 7 ; . such litigation, including but not limited to, reasonable attorney fees, court costs, expert witness fees, deposition costs, etc.; (j) MFlilhoxes. All mailboxes installed upon Lots must be purchased from Williams Creek. Such mailboxes shall be approved by the Architectural Review Board; (k) Septic: Systems. No septic tank, absorption field or any other on-site sewage disposal system (other than a lateral main connected to a sanitary sewage collection system operated by the Clay Township Regional Waste District or a successor public agency or public utility) shall be installed or maintained on any Lot; (I) WFlter Systems. Each Owner must connect to a water line maintained by a public water utility to provide water for domestic use on the Lot and shall pay all connection, availability or other charges lawfully established with respect to connections thereto. Notwithstanding the foregoing, an Owner may establish, maintain and use an irrigation water well on his Lot; (m) DrFlinFlge. In the event storm water drainage from any Lot or Lots flows across another Lot, provision shall be made by the Owner of such Lot to permit such drainage to continue, without restriction or reduction, across the downstream Lot and into the natural drainage channel or course, although no specific drainage easement for such flow of water is provided on the Plat. To the extent not maintained by the Drainage Board, Drainage Easements (including but not limited to the 100 Year Floodway Easement) reserved as drainage swales shall be maintained by the Owner of the Lot upon which such easements are located such that water from any adjacent Lot shall have adequate drainage along such swale. Lots within The Woods at Williams Creek may be included in a legal drain established by the Drainage Board. In such event, each Lot in The Woods at Williams Creek will be subject to assessment by the Drainage Board for the costs of maintenance of the portion of the Drainage System and the Lake Control Structures included in such legal drain, which assessment will be a lien against the Lot. The elevation of a Lot shall not be changed so as to affect materially the surface elevation or grade of surrounding Lots. Perimeter foundation drains, sump pump drains, downspouts and water softeners, shall be connected whenever feasible into a subsurface drainage tile. Downspouts and drains shall be designed to disperse runoff for overland flow to street or swale collection systems. Each Owner shall maintain the subsurface drains and tiles located on his Lot and shall be liable for the cost of all repairs thereto or replacements thereof. During the course of construction, appropriate silt fencing shall be maintained to prevent any silt runoff; (n) VaC:Flnt lots. It shall be the duty and obligation of the Owner of a vacant Lot to maintain such Lot and mow the lawn thereof. Williams Creek and the NP Corp. shall have the right, but not the obligation, to mow the lawn and maintain vacant Lots; ~ ; . (0) Sheds. Out RIJildings. Out buildings, tree houses, playhouses and sheds are specifically prohibited except that Williams Creek or the NP Corp. may allow them on a case by case basis; (p) LimitRtions on 100 YeRr FloodwRY FRsement. Pursuant to the rules and regulations of the Indiana Department of Natural Resources, no Residence, temporary structure (as defined in subparagraph 7(c) hereof) swimming pools, tennis courts or other building may be built or maintained in the 1 00 Year Floodway Easement. 8. MRintenRnce of lots. (a) Vehicle PRrking. No camper, motor home, truck, trailer, boat, disabled vehicle, or vehicle without a properly issued license plate, may be parked or stored overnight or longer on any Lot in open public view; (b) Signs. Except for such signs as Williams Creek may in its absolute discretion display in connection with the identification or development of The Woods at Williams Creek and the sale of Lots therein, no sign of any kind shall be displayed to the public view on any Lot except that two (2) signs of not more than four (4) square feet may be displayed at any time for the purpose of advertising the Lot for sale, or may be displayed by a builder to advertise the Lot during construction and sale. A builder shall display a "sold" sign on the Lot when he has sold the property; (c) Fencing. No fence, wall, hedge or shrub planting higher than eighteen (18) inches shall be permitted between the front property line and the front building set-back line except where such planting is part of Residence landscaping and the prime root thereof is within four (4) feet of the Residence. Corner Lots shall be deemed to have two (2) front yards. Trees shall not be deemed "shrubs" unless planted in such a manner as to constitute a "hedge". No chain link fence shall be erected upon a Lot. All fencing shall be uniform in height, style and color and substantially similar material. All fences on Lake Lots and any Lots abutting the Community Areas, shall be wrought iron or similar material. No fence may be erected on a Lot without the prior approval of the Architectural Review Board, which may establish further restrictions with respect to fences, including limitations on (or prohibition of) the installation of fences in the rear yard of a Lot abutting a Lake and design standards for fences. All fences shall be kept in good repair. No fence, wall, hedge or shrub planting which obstructs sight lines at elevations between two (2) and six (6) feet above the street shall be placed or permitted to remain on any corner Lot within the triangular area formed by the street property lines and a line connecting points 25 feet from the intersection of said street lines, or in the case of a street line with the edge of a driveway pavement. No tree shall be permitted to remain within such distances of such intersections unless the foliage line is maintained at sufficient height to prevent obstruction of such sight lines. q .. ; i (d) Vp.get~tion. An Owner shall not permit the growth of weeds and volunteer trees and bushes on his Lot, and shall keep his Lot reasonably clear from such unsightly growth at all times. If an Owner fails to comply with this restriction, the Architectural Review Board may (but shall not be obligated to) cause the weeds to be cut and the Lot cleared of such growth at the expense of the Owner thereof and the Architectural Review Board shall have a lien against the cleared Lot for the expense thereof; (e) Nllis~ncp.s. No noxious or offensive activity shall be carried on or upon any Lot nor shall anything be done thereon which may be, or may become, an annoyance or nuisance to the neighborhood. Barking dogs shall constitute a nuisance; (f) C,~rb~gp. ~nrt Refusp. [)ispos~l. No Lot shall be used or maintained as a dumping ground for trash. Rubbish, garbage or other waste shall be kept in sanitary containers out of public view. All equipment for storage or disposal of such materials shall be kept clean and sanitary; (g) I ivp.stock ~nrt 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 purpose. The Owners of such permitted pets shall confine them to their respective Lots such that they will not be a nuisance. Owners of dogs shall so control or confine them so as to avoid barking which will annoy or disturb adjoining Owners; (h) Olltsirtp. Burning. No trash, leaves, or other material shall be burned upon a Lot if smoke therefrom would blow upon any other Lot and, then, only in acceptable incinerators and in compliance with all applicable requirements; (i) Antp.nnfls ~nrt Rp.cp.ivers. No antenna, satellite dish, or other device for the transmission or reception of radio, television, or satellite signals or any other form of electromagnetic radiation shall be erected, used or maintained outdoors and above ground, whether attached to a building or otherwise, on any Lot without the written approval of the Architectural Review Board, which approval shall not be unreasonably withheld; provided, however, that any such device may be installed and maintained on any Lot without the necessity of such written approval if: (a) it is not visible from neighboring Lots or streets; or (b) the Owner, prior to installation, has received the written consent of the Owners of all Lots who would have views of the device from their Lots; or (c) the device is virtually indistinguishable from structures, devices or improvements such as heat pumps, air conditioning units, barbecue grills, patio furniture, and garden equipment, which are not prohibited by these covenants; (j) Extp.rior I ights. No exterior lights shall be erected or maintained between the building line and rear lot line so as to shine or reflect directly upon another Lot; 1() .. ::: (k) Flflctric BlIg Killfln:;. Electric bug killers, "zappers", and other similar devices shall not be installed at a location or locations which will result in the operation thereof becoming a nuisance or annoyance to other Owners, and shall be operated only when outside activities require the use thereof and not continuously; (I) Tflnni~ COllrt~. No tennis courts shall be installed or maintained on any Lake Lots or in the 100 Year Floodway Easement; (m) Swimming Pools. No swimming pool or equipment or building related thereto shall be constructed without the prior approval of the Architectural Review Board. No swimming pool shall be located on a Lake Lot abutting within 35 feet from the water's edge of the Lake at normal pool elevation as established on the engineering design plans for the Lake filed with the Zoning Authority. Further, no swimming pool shall be located within the 100 Year Floodway Easement. If a variance permitting installation of a mechanical pool cover in lieu of fencing has been or may be obtained from the Zoning Authority, then the Architectural Review board may require, as a condition to the location of a swimming pool on a Lot, that the Owner install a mechanical pool cover. If the Architectural Review Board imposes such requirement, then a mechanical pool cover of a type and manufacture approved by the Architectural Review Board shall be installed by the Owner in compliance with all applicable legal requirements established by the Zoning Authority as a condition to such variance, and all requirements established by the Architectural Review Board. 9. Thfl Woorl~ Associ~tion of Homflownflr~. (a) Mflmhflrship. Each Owner shall automatically be a Member of the NP Corp. and shall enjoy the privileges and be bound by the obligations contained in the Articles and By-Laws. If a Person would realize upon his security and become an Owner, he shall then be subject to all the requirements and limitations imposed by this Declaration on other Owners, including those provisions with respect to the payment of Assessments; (b) POWflr~. The NP Corp. shall have such powers as are set forth in this Declaration and in the Articles and By-Laws, together with all other powers that belong to it by law; (c) CI~~~flS of Mflmhflr~hip ~nrl Voting Rights. The Association shall have the following two (2) classes of voting membership: CI~s~ A. Class A Members shall be all Owners with the exception of Williams Creek and the Managers of Williams Creek. Class A Members shall be entitled to one (1) vote for each Lot owned. When more than one person holds an interest in any Lot, all such persons shall be Class A Members. The vote for each Lot shall be exercised as the Members holding an interest in such 1 1 ? Lot determine among themselves, but in no event shall more than one vote be cast with respect to any Lot; CI~ss R. Class B Members shall be Williams Creek and its Managers. Williams Creek and its Managers shall be entitled to 1 00 (100) votes for each Lot owned by them. For purposes of this calculation, it shall be assumed that Williams Creek owns all Lots, which number shall be reduced as Lots are conveyed by Williams Creek to a Person other than Williams Creek or its Managers. The Class B membership shall cease and be converted to Class A membership on the happening of either of the following events, whichever occurs earlier: (a) when the total number of votes outstanding in the Class A membership are greater than the total number of votes outstanding In the Class B membership; or, (b) December 31, 2012; (d) Rp.sp.rvp. for Rp.pl~r.p.mp.nts. The Board of Directors shall establish and maintain the Reserve for Replacements by the allocation and payment to such reserve fund of an amount determined annually by the Board to be sufficient to meet the cost of periodic maintenance, repairs and renewal of the Community Areas. In determining the amount, the Board shall take into consideration the expected useful life of the Community Areas. The Reserve for Replacements shall be deposited in a special account with a lending institution, the accounts of which are insured by an agency of the United States of America or may, in the discretion of the Board, be invested in obligations of, or fully guaranteed as to principal by, the United States of America; (e) Mp.rgp.rs. Upon a merger or consolidation of another corporation with the NP Corp., its properties, rights and obligations may, as provided in its articles of incorporation or by operation of law be transferred to another surviving or consolidated corporation or, alternatively, the properties, rights and obligations of another corporation may by operation of law be added to the properties, rights and obligations of the NP Corp. as a surviving corporation pursuant to a merger. The surviving or consolidated corporation may administer the covenants and restrictions established by this Declaration within the Real Estate together with the covenants and restrictions established upon any other properties as one scheme. No other merger or consolidation, however, shall effect any revocation, change or addition to the covenants established by this Declaration within the Real Estate except as hereinafter provided; (f) Tp.rmin~tion of CI~ss R Mp.mbp.rship. Wherever in this Declaration the consent, approval or vote of the Class B Member is required, such requirement shall cease at such time as the Class B Membership terminates, but no such termination shall affect the rights and powers of Williams Creek set forth in Paragraph 1 5 (b); (g) Bo~rrl of Dirp.r.tors. During the Development Period, Williams Creek shall 1 ? ~ appoint all directors, shall fill all vacancies in the Board of Directors, and shall have the right to remove any Director at any time, with or without cause. After the Development Period, the Owners shall elect a Board of Directors of the NP Corp. as prescribed by the NP Corp.'s Articles and By-Laws. The Board of Directors shall manage the affairs of the NP Corp. Directors must be members of the NP Corp. after the termination of the Development Period. 10. A~~e~~ment~. (a) CreAtion of the Lien ami Per~onAI ObligAtion of A~~e~~ments. Williams Creek hereby covenants, and each Owner of any Lot by acceptance of a deed thereto, whether or not it shall be so expressed in such deed, is deemed to covenant and agree, to pay to the NP Corp. the following: (1) General Assessments;. (2) Special Assessments, to be established and collected as hereinafter provided. All Assessments, together with interest thereon and costs of collection thereof, shall be a charge on the Lots and shall be a continuing lien upon the Lot against which each Assessment is made until paid in full. Each Assessment, together with interest thereon and costs of collection thereof, shall also be the personal obligation of the Person who was the Owner of the Lot at the time when the Assessment became due; (b) GenerAl Asse~~ment. (1 ) PLJrro~e of Asse~~ment. The General Assessment levied by the NP Corp. shall be used exclusively to promote the recreation, health, safety, and welfare of the Owners of Lots and for the improvement, maintenance and operation of the Lake. The General Assessment shall also be levied for the payment of real estate taxes allocable to the Lake, which real estate taxes shall be paid by the NP Corp. from the date hereof, notwithstanding that Williams Creek may indefinitely retain title to all or part of the Lake. It shall further be the obligation of the NP Corp. to: (i) maintain and pay all costs of maintenance of all public lighting installed and existing in any right-of-way; (ii) pay the costs of all electricity and energy usage attributable to public lighting installed and existing on any right-of-way; and (iii) pay the costs of maintenance of any sidewalks which abut a right-of-way but are not within the right-of-way, and the General Assessment shall also be levied by the NP Corp. to comply and pay for with the foregoing maintenance requirements and obligations; (2) RA~i~ for A~~e~sment. (i) I ot~ GenerAlly. Each Lot owned by a Person other than Williams Creek or its Managers shall be assessed at a uniform rate without regard to whether a Residence has been constructed upon the 1~ Lot; (ii) lot!> Owned hy Willi~m!> Creek or .it!> M~n~ger!>. No Lot owned by Williams Creek or its Managers shall be assessed by the NP Corp.; (iii) Ch~nge in B~!>i!>, The basis for assessment may be changed with the assent of the Class B Members and of: (1) two-thirds (2/3) of the Class A Members (excluding Williams Creek or its Managers); or (2) two-thirds (2/3) of the Mortgagees (based on one vote for each first mortgage owned) who are voting in person or by proxy by a meeting of such Members duly called for this purpose; (3) Method of A!>sessment. By a vote of a majority of the Directors, the Board of Directors shall fix the General Assessment for each assessment year of the NP Corp. at an amount sufficient to meet the obligations imposed by this Declaration upon the NP Corp. The Board of Directors shall establish the date(s) the General Assessment shall become due, and the manner in which it shall be paid; (c) Speci~1 A!>!>e!>sment. The NP Corp. may levy in any fiscal year a special assessment applicable to that year and not more than the next four (4) succeeding fiscal years for the purpose of defraying, in whole or in part, the cost of any construction, repair, or replacement of a capital improvement upon or constituting a part of the Lake, provided that any such Assessment shall have the assent of all of the Class B Members and of a majority of the votes of the Class A Members who are voting in person or by proxy at a meeting of such members duly called for this purpose; (d) D~te of Commencement of A!>!>e!>sments. The General Assessment shall commence with respect to assessable Lots on the first day of the month following conveyance of the first Lot to an Owner who is not Williams Creek or its Managers, The initial Assessment on any assessable Lot shall be adjusted according to the number of whole months remaining in the assessment year; (e) Effect of Nonp~yment of A!>!>e!>sment!>, Remedie!> of the NP Corp Any Assessment not paid within thirty (30) days after the due date may upon resolution of the Board of Directors bear interest from the due date at a percentage rate of 1 2 % per annum. The NP Corp. shall be entitled to institute in any court of competent jurisdiction any lawful action to collect the delinquent Assessment plus any expenses or costs, including attorneys' fees, incurred by the NP Corp. in collecting such Assessment. If the NP Corp. has provided for collection of any Assessment in installments, upon default in the payment of anyone or more installments, the NP Corp. may accelerate payment and declare the entire balance of said Assessment due and payable in full. No Owner may waive or otherwise escape liability for the 14 .. Assessments provided for herein by abandonment of his Lot; (f) SlIhordination of the Lien to Mortgage~. The lien of the Assessments provided for herein against a Lot shall be subordinate to the lien of any recorded first mortgage covering such Lot and to any valid tax or special assessment lien on such Lot in favor of any governmental taxing or assessing authority. Sale or transfer of any Lot shall not affect the Assessment lien. The sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof shall, however, extinguish the lien of Assessments as to payments which became due more than twelve (1 2) months prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any Assessments thereafter becoming due or from the lien thereof; (g) Certificate~. The NP Corp. shall, upon demand by an Owner, at any time, furnish a certificate in writing signed by an officer of the NP Corp. that the Assessments on a Lot have been paid or that certain Assessments remain unpaid, as the case may be; (h) Fxempt Property. The following property subject to this Declaration shall be exempt from the Assessments, charge and lien created herein: ( 1) all properties to the extent of any easement or other interest therein dedicated and accepted by the local public authority and devoted to pubic use; and (2) the Lakes; (3) the Common Areas. (i) Annllal Blldget. By a majority vote of the Directors, the Board of Directors shall adopt an annual budget for the subsequent fiscal year, which shall provide for allocation of expenses in such a manner that the obligations imposed by the Declaration will be met; 11 . Architectural Control. (a) The Architectural Review Roard. Until the end of the Development Period, an Architectural Review Board consisting of three (3) Persons shall be appointed by Williams Creek. After the expiration of the Development Period, the Architectural Review Board shall be appointed by the Board of Directors; (b) Pllrpo~e~. The Architectural Review Board shall regulate the external design, appearance, use, location and maintenance of the Property and of improvements thereon in such manner as to preserve values and to maintain a harmonious relationship among structures, improvements and the natural vegetation and topography; Hi -, (c) Change in Conditions. Except as otherwise expressly provided in this Declaration, no improvements, alterations, repairs, change of colors, excavations, changes in grade, planting or other work that in any way alters any Lot or the exterior of the improvements located thereon from its natural or improved state existing on the date such Lot was first conveyed in fee by the Williams Creek to an Owner shall be made or done without the prior approval by the Architectural Review Board of a Lot Development Plan therefor. Prior to the commencement by an Owner other than Williams Creek of: (1) construction, erection or alteration of any Residence, building, fence, wall, swimming pool, tennis court, patio, pier, dock, recreational equipment, or other structure on a Lot; or (2) any plantings on a Lot, a Lot Development Plan with respect thereto shall be submitted to the Architectural Review Board, and no building, fence, wall, Residence, or other structure shall be commenced, erected, maintained, improved, altered, made or done, or any plantings made, by any Person other than Williams Creek without the prior written approval by the Architectural Review Board of a Lot Development Plan relating to such construction, erection, alteration or plantings. Such approval shall be in addition to, and not in lieu of, all approvals, consents, permits and/or variances required by law from governmental authorities having jurisdiction over The Woods at Williams Creek, and no Owner shall undertake any construction activity within The Woods at Williams Creek unless legal requirements have been satisfied. Each Owner shall complete all improvements to a Lot strictly in accordance with the Lot Development Plan approved by the Architectural Review Board. As used in this subparagraph (c), "plantings" do not include flowers, bushes, shrubs or other plants having a height of less than 18 inches; (d) Procedllres. In the event of the Architectural Review Board fails to approve, modify or disapprove in writing a Lot Development Plan within thirty (30) days after such plan has been duly filed with the Architectural Review Board in accordance with procedures established by Williams Creek or, if Williams Creek is no longer a Class B member, this approval will be deemed granted. If Williams Creek is no longer a Class B member, a decision of the Architectural Review Board may be appealed to the Board of Directors which may reverse or modify such decision by a two-thirds (2/3) vote of the Directors then serving; (e) [.;lIidelines and Standards. The Architectural Review Board shall have the power to establish such architectural and landscaping design guidelines and standards as it may deem appropriate to achieve the purpose set forth in subparagraph (b) to the extent that such design guidelines and standards are not in conflict with the specific provisions of this Declaration. If Williams Creek is no longer a Class B member, any such guideline or standard may be appealed to the Board of 1R 'i' Directors which may terminate or modify such guideline or standard by a two-thirds (2/3) vote of the Directors then serving. 12. F~~Amfmt~. (a) PI~t E~~AmAnt~. In addition to such easements as are created elsewhere in this Declaration and as may be created by Williams Creek pursuant to written instruments recorded in the Office of the Recorder of Hamilton County, Indiana, Lots are subject to drainage easements, sewer easements, utility easements and lake maintenance access easements, either separately or in any combination thereof, as shown on the Plat, which are reserved for the use of Owners, public utilities companies and governmental agencies as follows: (1) Dr~in~gA E~~AmAnt~. (DE) are created to provide paths and courses for area and local storm drainage, either overland or in adequate underground conduit, to serve the needs of The Woods at Williams Creek and adjoining ground and/or public drainage systems; and it shall be the individual responsibility of each Owner to maintain the drainage across his own Lot. Under no circumstances shall said easement be blocked in any manner by the construction or reconstruction of any improvement, nor shall any grading restrict, in any manner, the water flow. Said areas are subject to construction or reconstruction to any extent necessary to obtain adequate drainage at any time by any governmental authority having jurisdiction over drainage, by Williams Creek, and by the Architectural Review Board, but neither Williams Creek nor the Architectural Review Board shall have any duty to undertake any such construction or reconstruction. In the event Williams Creek or the Architectural Review Board undertakes any such construction or reconstruction, its obligations to restore the affected real estate after any such construction or reconstruction shall be limited to regrading and reseeding. Under no circumstances shall Williams Creek be liable for any damage or destruction to any fences, structures, or other improvements which are damaged, destroyed or remodeled by Williams Creek, or its agents or employees as a result of such construction or reconstruction. Said easements are for the mutual use and benefit of the Owners; (2) SAWAr E~~AmAnt~. (SE) are created for the use of the local government agency having jurisdiction over any storm and sanitary waste disposal system which may be designed to serve The Woods at Williams Creek for the purpose of installation and maintenance of sewers that are a part of said system; (3) Utility F~~AmAnt~. (UE) are created for the use of Williams Creek, the NP Corp. and all public utility companies, not including transportation companies, for the installation and maintenance of mains, ducts, poles, lines and wires, as well as for all uses specified in the case of sewer easements; 17 ,.- (4) Lt=lke Mt=lintent=lnce Access Et=lsements. (LMAE) are created for the use of Williams Creek, the NP Corp., the Drainage Board and the Clay Township Regional Waste District for the purpose of gaining access to the Lake, the Lake Control Structures, the Drainage System in the course of maintenance, repair or replacement of any thereof. 13. Nt=lture Conservt=ltion Zone. The Nature Conservation Zone, as depicted on the Plat, is designed to enhance preservation of the trees in accordance with the terms of the Trees Preservation Plan dated April 18, 2001 ("Plan"). Such Plan is incorporated herein by reference and attached hereto as Exhibit C. 14. Fnforcement. The NP Corp., any Owner or Williams Creek shall have the right to enforce, by proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration, but neither Williams Creek nor the NP Corp. shall be liable for damage or any kind to any Person for failure either to abide by, enforce or carry out any of the Restrictions. No delay or failure by any Person to enforce any of the Restrictions or to invoke any available remedy with respect to a violation or violations thereof shall under any circumstances be deemed or held to be a waiver by that Person of the right to do so thereafter, or an estoppel of that Person to assert any right available to him upon the occurrence, recurrence or continuation of any violation or violations of the Restrictions. In any action by Williams Creek, the NP Corp. or an Owner to enforce this Declaration, such party shall be entitled to recover all costs of enforcement, including attorneys' fees, if it substantially prevails in such action. 15. Amendments. (a) Genert=llly. This Declaration may be amended at any time by an instrument signed by both: (1) the appropriate officers of the N P Corp. acting pursuant to the authority granted by not less than two-thirds (2/3) of the votes of the Class A members cast at a meeting duly called for the purpose of amending this Declaration; and (2) Williams Creek, so long as Williams Creek still owns at least one (1) Lot; (b) Ry [)edt=lrt=lnt. Williams Creek hereby reserves the right unilaterally to amend and revise the standards, covenants and restrictions contained in this Declaration during the period prior to its sale of all the Lots. Such amendments shall be in writing, executed by Williams Creek, and recorded with the Recorder of Hamilton County, Indiana. Williams Creek shall give notice in writing to such Owners 1R ". and Mortgagees of any amendments. Williams Creek shall not have the right at any time by amendment of this Declaration to grant or establish any easement through, across or over any Lot which Williams Creek has previously conveyed without the consent of the Owner of such Lot; (c) FffACtivA ()~tA. Any amendment shall become effective upon its recordation in the office of the Recorder of Hamilton County, Indiana. 16. IntArprAt~tion. The underlined titles preceding the various paragraphs and subparagraphs of this Declaration are for convenience of reference only, and none of them shall be used as an aid to the construction of any provision of this Declaration. Wherever and whenever applicable, the singular form of any work shall be taken to mean or apply to the plural, and the masculine from shall be taken to mean or apply to the feminine or to the neuter. 17. DtJr~tion. The foregoing covenants and restrictions are for the mutual benefit and protection of the present and future Owners, the NP Corp., and Williams Creek, and shall run with the land and be binding on all parties and all Persons claiming under them until 2025, at which time said covenants and restrictions shall be automatically extended for successive periods of ten (10) years, unless changed in whole or in part by vote of those Persons who are then the Owners of a majority of the Lots in the Real Estate. 18. SAvAr~hility. Everyone of the Restrictions is hereby declared to be independent of, and severable from, the rest of the Restrictions and of and from every other one of the Restrictions, and of and from every combination of the Restrictions. Therefore, if any of the Restrictions shall be held to be invalid or to be unenforceable, or to lack the quality of running with the land, that holding shall be without effect upon the validity, enforceability or "running" quality of any other one of the Restrictions. 19. Non-l i~hility of Willi~ms CrAAk. Williams Creek shall not have any liability to an Owner or to any other Person with respect to drainage on, over or under a Lot or with respect to the completion of the Residence in accordance with the Lot Development Plan's specifications. Such drainage shall be the responsibility of the Owner of the Lot upon which a Residence is constructed and of the builder of such Residence, and an Owner, by an acceptance of a deed to a Lot, shall be deemed to agree to indemnify and hold Williams Creek free and harmless from and against any and all liability arising from, related to, or in connection with drainage on, over and under the Lot described in such deed. Williams Creek shall have no duties, obligations or liabilities hereunder except such as are expressly assumed by Williams Creek, and no duty of, or warranty by, Williams Creek shall be implied by or inferred from any term or provision of this Declaration. 20. ()AI~y in Constnlction of RAsirlAncA. Unless a delay is caused by strikes, 1q "II. e war, court injunction, or acts of God, the Owner of any Lot (which on the date of purchase is not improved with a Residence) shall commence construction of a Residence upon the Lot within two (2) years from the date the Owner acquired title thereto and shall complete construction of such Residence within one (1) year after the date of commencement of the building process, but in no event later than three (3) years after the date the Owner acquired title to the Lot unless such Lot is adjacent to a Lot upon which the Owner has constructed a Residence in which such Owner permanently resides. If the Owner fails to commence or complete construction of a Residence within the time periods specified herein, or if the Owner should, without Williams Creek's written approval, sell, contract to sell, convey, or otherwise dispose of, or attempt to sell, conveyor otherwise dispose of the Lot before completion of construction of a Residence on the Lot, then, in any of such events, Williams Creek may: (i) re-enter the Lot and divest the Owner of title thereto by tendering to the Owner or to the Clerk of the Circuit Court of Hamilton County the lesser of (a) the same net dollar amount as was received by Williams Creek from such Owner as consideration for the conveyance by Williams Creek of the Lot, together with such actual costs, if any, as the Owner may prove to have been incurred in connection with the commencement of construction of a Residence on the Lot or (b) the then fair market value of the Lot, as determined by averaging two (2) appraisals made by two (2) qualified appraisers appointed by the Judge of the Circuit or Superior Court of Hamilton County, Indiana; (ij) obtain injunctive relief to force the Owner to proceed with construction of a Residence per the terms of a Lot Development Plan which has been approved by the Architectural Review Board upon application by such Owner; or (iii) pursue such other remedies at law or in equity that may be available to Williams Creek. The failure of the Owner of a Lot to apply for approval of, or receive approval from, the Architectural Review Board of a Lot Development Plan shall not relieve such Owner from his obligation to commence and complete construction of a Residence upon the Lot within the time periods specified herein. For the purposes of this paragraph (20), construction of a Residence will be deemed "completed" when the exterior of the Residence (including but not limited to the foundation, walls, roof, windows, entry doors, gutters, downspouts, exterior trim, paved driveway and landscaping) has been completed in conformity with the Lot Development Plan. IN TESTIMONY WHEREOF, witness the signature of Williams Creek as of the date set forth above. ?O ~ WILLIAMS CREEK WOODS LLC By: Its Manager: Ralph Akard STATE OF INDIANA ) ) SS: COUNTY OF HAMILTON) Before me the undersigned, a Notary Public in and for said County and State, personally appeared Ralph Akard, Manager of Williams Creek Woods LLC, and he acknowledges that the facts alleged in the foregoing instrument are true. Witness my hand and Notarial Seal this day of May, 2001. Rachel D. Shelton, Notary Public My Commission Expires: October 4, 2001 County of Residence: Hamilton This instrument prepared by Michael S. Walsh, attorney at law, 11350 North Meridian Street, Suite 420, Carmel, Indiana 46032. OS/29/01 ?1 ~ . EXHIBIT A Part of the East Half of the Southeast Quarter of Section 22, T ownshi p 18 North, Rang~ 3 East of the Second Principal Meridian in Clay Township, Hamilton County, Indiana, described as follows: Commencing at the Southeast corner of the Southeast Quarter of Section 22, Township 18 North, Range 3 East~ thence North 00 degrees 08 minutes 08 seconds East (assumed bearing) on the East line of said Southeast Quarter 600.00 feet to the Northeasterly comer of real estate conveyed to the Board of Commissioners of Hamilton County, Indiana, per a Trustee's Deed recorded as Instrument Number 9335266 in the Office of the Recorder of Hamilton County, Indiana, said corner being also the PLACE OF BEGINNING of the within described real estate~ thence continuing North 00 degrees 08 minutes 08 seconds East on the East line of said Southeast Quarter 2039.00 feet to the Northeast comer of said Southeast Quarter~ thence South 89 degrees 17 minutes 14 seconds West on the North line of said Southeast Quarter 1313.02 feet to the Northwest corner of the East Half of said Southeast Quarter~ thence South 00 degrees 02 minutes 08 seconds West on the West line of the East Half of said Southeast Quarter 2338.96 feet to a point 300.00 feet North 00 degrees 02 minutes 08 seconds East of the Southwest corner of said East Half; thence North 89 degrees 17 minutes 11 seconds East parallel with the South line of said Southeast Quarter 549.50 reet~ thence South 00 degrees 02 minutes 08 seconds West parallel with the West line of said East Half300.00 feet to the South line of said Southeast Quarter~ thence North 89 degrees 17 minutes 11 seconds East on the South line of said Southeast Quarter 163.92 feet to the Southwesterly comer of the aloresaid real estate conveyed to the Board of Commissioners of Hamilton County, Indiana, said comer being 600.00 feet West orthe Southeast corner of said Southeast Quarter~ thence North 00 degrees 42 minutes 49 seconds East 40.00 feet; (this and the following four courses are on the westerly and northerly perimeter lines of said Board of Commissioners real estate) 1.) thence North 89 degrees 17 minutes 11 seconds East parallel with the South line of said Southeast Quarter 525.00 feet; 2.) thence North 44 degrees 38 minutes 32 seconds East 43.63 feet, by measurement (North 45 degrees 00 minutes 00 seconds East 42.43 feet, by the aforesaid deed) to a point that on a line that is 45.00 feet west of and parallel with the East line of said Southeast Quarter; 3.) thence North 00 degrees 08 minutes 08 seconds East parallel with the East line of said Southe,ast Quarter 530.00 feet to the Northwesterly corner of said real estate~ 4.) thence South 89 degrees 51 minutes 52 seconds East 45.00 feet to the place of beginning, containing 74.781 acres, more or less. '" !" EXHIBIT B LltNDSCAPING AUOWANCE AND SELECTION GUIDE LARGE Alowanee 10 (ten) 12 (twelve) 9 (Dine) 10 (ten) 1 (one) 2 (twO) 2 (two) S~l"t'rion Guide Qn Group A: Group B~ Group C: Group 0: PIanu wan Group A PIanP D-om Group B PIau1s fi'om Group C Plants ft'om Group D Plants fi'om Group Ii PllDts fiom Group F Plant, ftom Group G DISCRIPTION SVEaGllEEN AND SEW-EVERGREEN SHlUlBS AzIleas Yews PlM Rhododendron Mugho Pine Boxwood Holly OSCJDUOUS SHlWBS (small) BariJeny Cauoaca.stCr Spirea flowering QIlince DwarfFors)'thia B&m1in& Bush Dwarf Lilac H)'IkaPgca POlenliUa DECIDUOUS SHRUBS (large) . Reel Osier Dogwood W... ForsydUa Common Lilac Viburm.m1S Purp1eLeafPlums JUNJPEllS IS" TO 18," Blue Chip At1dorra Broadmoor Procumbens '"" .' EXHIBIT B Group E; SHADii TREES 2" Caliper Maple Oak LiDdell SWeet G\IIU Locust TWip Ash Group F: ORNAMENTAL TREES 2" Caliper Dogwood HaWlbon1 Mapolia Serviceben} Pear Redbud ~Apple Group G" CONlFEllS f/ TO T While Pine Douglas fir Colorado Spruce (GteenIBl\.ae) AUsuiaD Pine Hemlock ~ .. EXHIBIT C Ii Tree Preservation Plan Particulars The forest trees should be protected during the construction process. The following steps are suggested for their protection. Specifications for Site Clearing The following work must be accomplished before the construction occurs within the drlpline of tree: 1. The site contractor is required to meet with the consultant at the site prior to the beginning work to review all work procedures, access and haul routes, and tree protection measures. 2. The tree protection fencing Is to be installed and proper "Do not enter" signs affixed. 3. The lot clearing that is to be completed should be undertaken by qualified Arborists and not by the demolition or construction contractors. The Arborists should remove the trees in a manner that causes no damage to the mature trees that are to remain. 4. Small trees to be removed within the tree protective zones shall be removed by hand or with equipment sitting outside the tree protection zone. Stumps should be removed by the use of a stump grinder so as to cause as little root disturbance to the remaining trees. 5. All trees shall be pruned in accordance with the ANSI Z-133 Guidelines and the ANSI A 300 standards. Copies available upon request. 6. Any damage to trees due to site clearing activities shall be reported to the consulting Arborist within 6 hours so that remedial action can be taken. Timeliness is critical to tree health. 7. There Is to be no tree felled so as to touch the trees that are to remain. Any limbs that conflict with the crown of the remaining trees should be hand pruned off before felling. 8. There Is to be nothing roped off to the remaining trees during the site clearing process. 9. There is to be no parking within the tree protective zone. 10. There is to be no fuel storage or filling of equipment within the tree protective zones Iud Scott RCA# 392 Project #WWC-OS12oo Page 6 Copyright C 2001 Vme & Branch 04/18101 . EXHIBIT C ~ . Pruning Specifications for Trees to be Preserved 1. The preserved trees should be pruned to: a. clear the crown of diseased, crossing, weak, and dead wood to a minimum size of 1 inch in diameter; b. remove stubs, cutting outside the branch bark collar as it is defined in the ANSI A 300. 2. Where temporary clearance is needed for access, branches shall be tied back to hold them out of the clearance zone. 3. All pruning shall be performed by qualified Arborists. All pruning shall be in accordance with the Tree Pruning Guidelines (International Society of ArboriaJlture) and/or the ANSI A300 Pruning Standard (American National Standard for Tree Care Operations) and adhere to the more recent edition of ANSI Z133.1. 4. Interior branches shall not be stripped out. 5. Pruning cuts larger than 4 inches in diameter, except for dead wood, shall be avoided. 6. Pruning cuts that expose heartwood shall be avoided whenever possible. 7. No more than 20 percent of live foliage shall be removed within the trees. 8. While in the tree, the Arborists shall perform an aerial inspection to identify defects that require treatment. Any additional work needed shall be reported to the consultant. 9. Any Ughtning Protection system to be installed in the trees should use the standards set forth in the National Arborist 1987 Guide and consulting the yet to be released ANSI gUidelines (copies available upon request). Iud Scott ReM 392 Project #WWC-0812oo Page 7 Copyright C 2001 Vine & Branch 04/18101 .. EXHIBIT C \ ~ ~ IC Construction Specifications 1. All underground utilities, downspouts or irrigation lines and landscape lighting shall be routed outside the tree protection zone. If and utility lines must cross through the protection area, they shall be tunneled or bored under the tree. 2. No materials, equipment, spoil, or waste or washout water (especially concrete equipment and tools) may be deposited, stored, or parked within the tree protection zone (fenced area). 3. Additional tree pruning required for clearance during construction must be performed by a qualified Arborist and not by construction personnel. 4. Any herbicides placed under paving materials or in the foundation footings must be approved by the Consulting Arborist in writing and be safe for use around trees and labeled for that use. Any pestiddes used on site must be tree-safe and not easily transported by water. 5. Any grading, construction, demolition, or other work that is expected to encounter tree roots must be monitored by the Consulting Arborist. 6. A tensiometer should be installed within the critical root zone to monitor the moisture during the construction process. 7. The preserved trees shall be irrigated so that It will receive one inch of water per week. Usually this is a 1-2 hour drip irrigation. The desired irrigation shall wet the soil within the tree protection zone to a depth of 30 inches. 8. Mulch should be added to the critical root zone of preserved trees to keep the roots from drying out due to new climate that we are making for the tree. It will no longer be in a forest but will have to transition to a home site. 9. Before construction the preserved trees shall be root pruned cutting all roots cleanly to a depth of ten to eighteen inches. Roots shall be cut by manually digging a trench and cutting exposed roots with a saw, vibrating knife, rock saw, narrow trencher with sharp blades, or other approved root-pruning equipment. 10. Any roots on preserved trees that are damaged during grading or construction should be reported to the Consulting Arborist. They should be exposed to sound tissue and cut cleanly with a saw. 11. Spoil from the house foundation shall not be placed within the tree protection zone, either temporarily or permanently. It is suggested that the spoil be placed in a space away from the forest trees. Iud Scott RCA# 392 Project #WWC-081200 Page 8 Copyright 0 2001 Vine" Branch 04118/01 EXHIBIT C .. " v . Construction Specifications Continued 12. No bum piles or debris pits shall be placed within the tree protection zone. No ashes, debris, or garbage may be dumped or buried within the tree protection zone. 13. Maintain fire-safe areas around fenced areas. Also, no heat sources, flames, ignition sources, or smoking Is allowed near mulch or trees. 14. There is to be no parking within the tree protective zone. 15. There is to be nothing hung from, attached to, or roped off to, the tree during construction. 16. There Is to be no storage of anything within the protective root zone. tl- ~ I. 1J!~ d'--). Cj . ~~ e-)(~ c...::..~ Iud Scott ReA# 392 Project #WWC-081200 Page 9 Copyright C 2001 Vine & Branch 04/18/01