HomeMy WebLinkAbout2014-11-07 Newberg Ltr Forwarding Declarations DAVID M NEWBERG
ATTORNEY AT LAW
1940 So. Greeley St,Suite 105
Stillwater,MN 55082
651-439-0700
Fax 651-439-8892
November 7,2014
To Whom it may concern:
RE: Pine Grove Gardens
Dear Sir or Madam:
The original Declarations for Pine Grove Gardens treated lots 1 through 6, Block 3 Pine Grove
Gardens as additional real estate which could be added to the Association by the unilateral action
of the Declarant. The rights of the Declarant transferred to St Croix Home Buyers, Inc.upon
purchase of the property. Pursuant to the Declarations I have drafted the Second Supplemental
Declaration to add Lots 1 through 5,Pine Grove Gardens 2nd Addition(formerly lots 1-6, Block
3 of Pine Grove Gardens)to the Association.
Sincerely, ")
rte:
David M.Newberg -7
illl
COMMON INTEREST COMMUNITY NO. 321
PLANNED COMMUNITY
PINE GROVE GARDENS
SECOND SUPPLEMENTAL DECLARATION
This Second Supplemental Declaration(the"Supplemental Declaration") is made this /a-t4 day
of /'L4 4.esn Zee'. ,2014 by St.Croix Home Buyers,Inc.,Minnesota Corporation successor to
the Declarants rights of Pine Grove Development,LLC,a Minnesota limited liability company(the
"Declarant"),pursuant to the provisions of Minnesota Statutes,Chapter 515B,known as the Minnesota
Common Interest Ownership Act(the"Act"),and specifically pursuant to Section 515B.2-111 of the Act.
WHEREAS,the Declaration of Pine Grove Gardens was recorded in the office of the County
Recorder in and for Washington County,Minnesota,as Document No.3626538(the"Declaration"),and
WHEREAS,the Declaration provides for the addition to Pine Grove Gardens of Additional Real
Estate as defined in the Declaration,and grants to Declarant the unilateral authority to add said
property,all in accordance with the Act,and
WHEREAS,Declarant desires to add and incorporate into Pine Grove Gardens the Additional
Real Estate legally described in Exhibit D attached hereto which Additional Real Estate includes 5
additional Units as described herein,and
WHEREAS,the Declarant Control Period,as defined in the Declaration and the time for adding
additional real estate has not terminated as of the date of this Supplemental Declaration,and neither
the Property nor the above-referenced Additional Real Estate including any shoreland as defined in
Minnesota Statutes Section 103F.205,and
NOW THEREFORE,the undersigned hereby enacts this Supplemental Declaration,in accordance
with the requirements of the Declaration and the Act,for the purpose of subjecting the Additional Real
Estate described above to the Act as a part of Pine Grove Gardens,and hereby declares that said
Additional Real Estate shall be held,sold,conveyed and occupied subject to the covenants, restrictions,
easements,charges and liens provided for in the Declaration and this Supplemental Declaration,all of
which shall be binding upon all person having or hereafter acquiring any right,tile or interest therein,
including their heirs,personal representatives,grantees,successors and assigns. Unless otherwise
specifically set forth herein,all words and terms used in this Supplemental Declaration shall have the
same meaning set forth in the Declaration.
A. IDENTIFICATION OF UNITS
Section 2.1 of the Declaration shall be amended to read as follows:
2.1 Units. There are Twenty-five(25)Units,subject to the right of the Declarant to add additional
units pursuant to Section 18. All Units are restricted exclusively to residential use. Each Unit
constitutes a separate parcel of real estate. No additional Units may be created by the subdivision
or conversion of Units pursuant to Section 5158.2-112 of the Act. The Unit identifiers and location
of the Units are as shown on the Plat and on the re-plat of Lots 1 through 6,Block 3, Pine Grove
Gardens,re-platted as Lots 1 through 5 and Outlot A,Pine Grove Gardens 2"d Addition and which are
incorporated herein by reference. The Unit identifier for a Unit is its lot and block numbers and the
subdivision name.
B. REALLOCATION OF VOTING RIGHTS AND COMMON EXPENSE OBLIGATIONS
Voting rights and Common Expense obligations are reallocated among all Units created by the
Declaration and this Supplemental Declaration in accordance with the formulas set forth in Section
4.2 of the Declaration,effective as of the date of recording of this Supplemental Declaration. The
Unit identifier of each Unit is set forth on Exhibit A attached hereto.
C. DESCRIPTION OF LIMITED COMMON ELEMENTS
Any Limited Common Elements created in the Additional Real Estate added by this Supplemental
Declaration include those items contained in said Additional Real Estate which fall within the
descriptions of Limited Common Elements contained in Section 3 of the Declaration or the Act. Said
Limited Common Elements are allocated among the Units created in said Additional Real Estate
pursuant to the allocation provisions contained in Section 3.2 of the Declaration,
D. LEGAL DESCRIPTION OF PROPERTY AND ADDITIONAL REAL ESTATE
Exhibit A to the Declaration containing the legal description of the Property shall be amended and
replaced by Exhibit A attached hereto. All references to Exhibit A in the Declaration shall refer to
Exhibit A attached hereto.
Exhibit C to the Declaration containing the legal description of the Additional Real Estate shall be
amended and replaced by Exhibit C Attached hereto. All references to Exhibit C in the Declaration
shall refer to Exhibit C attached hereto.
E. APPLICABILITY AND BINDING EFFECT
Except as specifically modified by this Supplemental Declaration,the Declaration,as amended or
supplemented,shall remain in full force and effect,and all of the rights, benefits, restrictions and
obligations conferred by the Declaration,as amended or supplemented,shall apply to the Additional
Real Estate added hereby and all Units created therein.
IN WITNESS WHEREOF,the Declarant has executed this instrument the day and year first set forth
above.
St.Croix Home Buyers, Inc.,
a Minnesota Corporation
By: 1 '.iii! ia!"
Its: ler ''
STATE OF MINNESOTA
)ss.
COUNTY OF WASHINGTON )
The foregoing instrument was acknowledged before me this I v 0.4 .day of.4141:4".....
2014 by Norman Dupre III,the President of St.Croix Home Buyers,Inc,a Minnesota Corporation,on
behalf of the corporation.
qty ' ;_: DAVID P,1 NEWBERG
1016, NOTARY PUBLIC
Notary Public MINNESOTA
My Commission Expires Jan.31,2016
Drafted by:David M Newberg
1940 So.Greeley St.
Suite 105
Stillwater, MN 55082
it
COMMON INTEREST COMMUNITY NO.321
PINE GROVE GARDENS
EXHIBIT ATO SECOND SUPPLEMENTAL DECLARATION
LEGAL DESCRIPTION OF PROPERTY
Lots 1 through 7 inclusive,Block 1; Lots 1 through 3 inclusive, Block 2;Lots 1 through 3 inclusive,Block 4;
Lots 1 through 7 inclusive, Block 5;and Outlot A; Pine Grove Gardens,Washington County, Minnesota
And
Lots 1 through 5,and Outlot A,Pine Grove Gardens 2'd Addition,Washington County,Minnesota
COMMON INTEREST COMMUNITY NO.321
PINE GROVE GARDENS
EXHIBIT C TO SECOND SUPPLEMENTAL DECLARATION
DESCRIPTION OF ADDITIONAL REAL ESTATE
Lot 1, Block 6,Pine Grove Gardens,Washington County,Minnesota
COMMON INTEREST COMMUNITY NO.321
PINE GROVE GARDENS
EXHIBIT D TO SECOND SUPPLEMENTAL DECLARATION
LEGAL DESCRIPTION OF ADDITIONAL REAL ESTATE
ADDED BY THIS SUPPLEMENTAL DECLARATION
Lots 1 through 5 and Outlot A,Pine Grove Gardens 21'd Addition,Washington County,Minnesota
(formerly part of Lots 1 through 6,Block 3,Pine Grove Gardens,Washington County, Minnesota)
3626538
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Office of the County Recorder
Washington County,MN
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dtor recorded o
1/24/2007 12:31 PM
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ENTERED IN TRANSFER RECORD
• ' ' 3626538
eyW SHINGTON CQ TYa/ j SOTA e Ream ta r�dt
LAND TITLE-RECORDINGS/ LAKE ROAD F 'RO RKE,AUDIT* -TREASURER
SUITE 200
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BY _ . dA I A - ad1
NEW ORIGHTON MN 551 t2
DEPUTY -
(Above Space Reserved for Recording Data)
COMMON INTEREST COMMUNITY NO.321
Planned Community
PINE GROVE GARDENS RETURNS T7 ,
DECLARATION 1Atil T U,, INC.
nn 'his Decl ation is made in the County of Washington, State of Minnesota, on this
NV day of J pv rgETL , 20 04, by Pine Grove Development, LLC, a Minnesota
limited liability company (the "Declarant"), pursuant to the provisions of Minnesota Statutes
Chapter 515B, known as the Minnesota Common Interest Ownership Act (the "Act"), for the
purpose of creating Pine Grove Gardens as a planned community under the Act.
WHEREAS, Declarant is the owner of certain real property located in Washington
County, Minnesota, legally described.in Exhibit A attached hereto, and Declarant desires to
submit said real property and all improvements thereon (collectively the "Property")to the Act
as a planned community, and
WHEREAS, Declarant also owns or may acquire, and add to the Property, the real
property legally described in Exhibit C attached hereto(the"Additional Real Estate'),and
WHEREAS, Declarant desires to establish on the Property, and any Additional Real
Estate added thereto, a plan for a permanent residential community to be owned, occupied and
operated for the use, health, safety and welfare of its resident owners and occupants, and for the
purpose of preserving the value,the quality and the character of the Property,and
WHEREAS, the Property (i) is not subject to an ordinance referred to in
Section 5158.1-106 of the Act, governing conversions to common interest ownership; (ii) is not
subject to a master association as defined in the Act; and(iii)does not include any shoreland, as
defined in Minnesota Statutes Section 103F.205. •
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THEREFORE,Declarant subjects the Property to this Declaration under the name"Pine
Grove Gardens," initially consisting of the Units referred to in Section 2, declaring that this
Declaration shall constitute covenants to run with the Property, and that the Property, and all
Additional Real Estate added thereto, shall be owned, used, occupied and conveyed subject to
the covenants, restrictions, easements, charges and liens set forth herein, all of which shall be
binding upon all persons owning or acquiring any right, title or interest therein, and their heirs,
personal representatives,successors and assigns.
SECTION 1
DEFINITIONS
The following words when used in the Governing Documents shall have the following
meanings(unless the context indicates otherwise):
1.1 "Act"means the Minnesota Common Interest Ownership Act,Minnesota Statutes
Chapter 515B,as amended now and in the future.
1,2 "Additional Real Estate" means the real property legally described in Exhibit C
attached hereto, including all improvements located thereon now or in the future,
and all easements and rights appurtenant thereto, which property Declarant owns
or has the right to acquire and add to the common interest community,
1.3 "Assessments" means and refers to all assessments levied by the Association
pursuant to Section 6.
1.4 "Association" means Pine Grove Gardens Association, a nonprofit corporation
which has been created pursuant to Minnesota Statutes Chapter 317A and
Section 515B.3-101 of the Act,whose members consist of all Owners.
1.5 "Board" means the Board of Directors of the Association as provided for in the
Bylaws.
1.6 `Bylaws" means the Bylaws governing the operation of the Association, as
amended from time to time.
1.7 "City"means the City of Oak Park Heights,Minnesota.
1.8 "Common Elements"means all parts of the Property including private streets and
other improvements thereto, except the Units. The Common Elements are legally
described in Exhibit B attached hereto.
1.9 "Common Expenses"means all expenditures made or liabilities incurred by or on
behalf of the Association and incident to its operation, including Assessments and
items otherwise identified as Common Expenses in this Declaration or the
Bylaws.
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1.10 "Declarant Control Period"means the time period during which Declarant has the
exclusive right to appoint the members of the Board,as described in Section 17.7.
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1.11 "Dwelling" means a building or part thereof consisting of one or more floors,
designed and intended for occupancy as a single family residence, and located
within the boundaries of a Unit. The Dwelling includes any garage attached
thereto or otherwise included within the boundaries of the Unit in which the
Dwelling is located.
1.12 "Eligible Mortgagee" means any Person owning a mortgage on any Unit, which
mortgage is first in priority upon foreclosure to all other mortgages that encumber
such Unit, and which has requested the Association, in writing, to notify it
regarding any proposed action which requires approval by a specified percentage
of Eligible Mortgagees.
1.13 "Governing Documents"means this Declaration,and the Articles of Incorporation
and Bylaws of the Association, as amended from time to time, all of which shall
govern the use and operation of the Property.
1.14 "Limited Common Elements"means a portion of the Common Elements allocated
by this Declaration or by operation of Section 515B.2-102(d)or(f) of the Act for
the exclusive use of one or more but fewer than all of the Units.
1.15 "Member" means all Persons who are members of the Association by virtue of
being Owners as defined in this Declaration. The words"Owner"and"Member"
may be used interchangeably in the Governing Documents.
1.16 t"means any Person or Persons, other than an Owner, in possession of
or residing in a Unit.
1.17 "Owner" means a Person who owns a Unit, but excluding contract for deed
vendors,mortgagees, holders of reversionary or remainder interests in life estates
and other secured parties within the meaning of the Act. The term "Owner"
includes,without limitation,contract for deed vendces and holders of a life estate.
1.18 "Person" means a natural individual, corporation, limited liability company,
partnership,trustee,or other legal entity capable of holding title to real property.
1.19 "Plat" means the recorded plat depicting the Property pursuant to the
requirements of Section 515B.2-110(d)of the Act,and satisfying the requirements
of Minnesota Statutes Chapter 505, 508 or 508A, as applicable, including any
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amended or supplemental Plat recorded from time to time in accordance with the •
Act.
1.20 "Property"means all of the real property subjected to this Declaration, now or in
the future, including the Dwellings and all other structures and improvements
located thereon. The Property is legally described in Exhibit A attached hereto.
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1.21 "Rules and Regulations" means the Rules and Regulations of the Association as
approved from time to time pursuant to Section 5.6.
1.22 "Unit"means any platted lot subject to this Declaration upon which a Dwelling is
located or intended to be located, as described in Section 2.1 and shown on the
Plat,including all improvements thereon,but excluding the Common Elements.
Any terms used in the Governing Documents, and defined in the Act and not in this Section,
shall have the meaning set forth in the Act. References to section numbers shall refer to sections
of this Declaration, unless otherwise indicated. References to the singular may refer to the
plural,and conversely,depending on context.
SECTION 2
DESCRIPTION OF UNITS,BOUNDARIES AND.RELATED EASEMENTS
2.1 Units. There are ten(10)Units,subject to the right of Declarant to add additional
Units pursuant to Section 18. All Units are restricted exclusively to residential use. Each Unit •
constitutes a separate parcel of real estate. No additional Units may be created by the
subdivision or conversion of Units pursuant to Section 515B.2-1 12 of the Act. The Unit
identifiers and locations of the Units are as shown on the Plat, which is incorporated herein by
reference. The Unit identifier for a Unit is its lot and block numbers and the subdivision name.
2.2 Unit Boundaries. The front, rear and side boundaries of each Unit_shall be the
boundary lines of the platted lot upon which the Dwelling is located or intended to be located,as
shown on the Plat. The Units shall have no upper or lower boundaries. Subject to this Section 2
and Section 3, all spaces, walls, and other improvements within the boundaries of a Unit are a
part of the Unit.
2.3 Appurtenant Easements. The Units shall be subject to and benefited by the
easements described in Section 13.
SECTION 3
COMMON ELEMENTS,LIMITED COMMON ELEMENTS •
AND OTHER PROPERTY
3.1 Common Elements. The Common Elements and their characteristics are as
follows: •
3.1.1 All of the Property not included within the Units constitutes Common
Elements. The Common Elements.include,but are not limited to, the private streets and
other areas or items listed in this Section 3, and those parts of the Property described in
Exhibit B attached hereto or designated as Common Elements in the Act. The Common
Elements are owned by the Association for the benefit of the Owners and Occupants.
3.1.2 . The Common Elements shall be subject to (i) easements as described in
this Declaration and any other easements recorded against the Common Elements; (ii)the
MPLS-Word 129293.2 4
rights of Owners and Occupants in Limited Common Elements allocated to their
respective Units; and (iii) the right of the Association to establish reasonable Rules and
Regulations governing the use of the Property.
3.2 Limited Common Elements. The Limited Common Elements are those parts of
the Common Elements reserved for the exclusive use of the Owners and Occupants of the Units
to which they are allocated. The rights to the use and enjoyment of the Limited Common
Elements are automatically conveyed with the conveyance of such Units. The Limited Common •
Elements are described and allocated to the Units,as follows:
3.2.1 Chutes, flues, ducts, pipes, wires, conduit or other utility installations,
bearing walls, bearing columns, or any other components or fixtures located wholly or
partially outside the Unit boundaries, and.serving only a certain Unit or Units, are
allocated to the Unit or Units which they serve. Any portion of such installation serving
or affecting the function of the Common Elements is part of the Common Elements.
3.2.2 Improvements, if any, such as decks, patios, porches, balconies, shutters,
awnings, exterior doors and windows, window boxes, chimneys, driveways, walks,
doorsteps or stoops,constructed as part of the original construction to serve a single Unit
or Units, and replacements and modifications thereof authorized pursuant to Section 8,
and located wholly or partially outside the Unit boundaries, are allocated to the Unit or
Units which they serve.
3.2.3 Heating, ventilating or air conditioning equipment serving only a certain
Unit or Units,and located wholly or partially outside the Unit boundaries, are allocated to
the Unit or Units served by such equipment.
3.3 Annexation of Other Property. In addition to the Additional Real Estate, other
real property may be annexed to the common interest community as Units or Common Elements,
or any combination thereof,and subjected to this Declaration,in accordance with procedures and
requirements set forth in the Act.
SECTION 4
ASSOCIATION MEMBERSHIP:RIGHTS AND OBLIGATIONS
Membership in the Association,and the allocation to each Unit of a portion of the votes
in the Association and a portion of the Common Expenses of the Association,shall be governed
by the following provisions:
4.1 Membership. Each Owner shall be a Member solely by reason of owning a Unit,
and the membership shall be transferred with the conveyance of the Owner's interest in the Unit.
An Owner's membership shall terminate when the Owner's ownership terminates. When more
than one Person is an Owner of a Unit, all such.Persons shall be Members, but multiple
ownership of a Unit shall not increase the voting rights allocated to such Unit nor authorize the
division of the voting rights.
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4.2 Voting and Common Expenses. Each Unit is assigned one vote. Common •
Expense obligations (subject to Sections 6.4 and 6.7) are allocated equally among the Units.
Said rights and obligations shall be automatically reallocated on the same basis among all Units
as and if additional Units are added to the Property.
4.3 Appurtenant Rights and Obligations. The ownership of a Unit shall include the
voting rights and Common Expense obligations described in Section 4.2. Said rights and
obligations, and the title to the Units, shall not be separated or conveyed separately, and any
conveyance, encumbrance, judicial sale or other transfer of any allocated interest in a Unit,
separate from the title to the Unit shall be void. The allocation of the rights and obligations
described in this Section shall not be changed, except in accordance with the Governing
Documents and the Act.
4.4 Authority to Vote. The Owner,or some natural person designated to act as proxy
on behalf of the Owner,and who need not be an Owner,may cast the vote allocated to such Unit
at meetings of the Association. However,if there are multiple Owners of a Unit,only the Owner
or other Person designated pursuant to the provisions of the Bylaws may cast such vote. The
voting rights of Owners are more fully described in Section 3 of the Bylaws.
SECTION 5
ADMINISTRATION
The administration and operation of the Association and the Property, including but not
limited to the acts required of the Association,shall be governed by the following provisions:
5.1 going. The operation and administration of the Association and the Property
shall be governed by the Governing Documents, the Rules and Regulations and the Act. The
Association shall,subject to the rights of the Owners set forth in the Governing Documents and
the Act, be responsible for the operation, management and control of the Property. The
Association shall have all powers described in the Governing Documents,the Act and the statute
under which the Association is incorporated. All power and authority of the Association shall be
vested in the Board, unless action or approval by the individual Owners is specifically required
by the Governing Documents or the Act. All references to the Association shall mean the
Association acting through the Board,unless specifically stated to the contrary.
5.2 Optional Purposes. The Association shall operate and manage the Property for
the purposes of(i)administering and enforcing the covenants, restrictions, easements, charges
and liens set forth in the Governing Documents and the Rules and Regulations; (ii)maintaining,
repairing and replacing those portions of the Property and other property for which it is
responsible;and(iii)preserving the value and the architectural character of the Property.
5.3 Binding Effect of Actions. All agreements and determinations made by the
Association in accordance with the powers and voting rights established by the Governing
Documents or the Act shall be binding upon all Owners and Occupants,and their lessees,guests,
heirs, personal representatives, successors and assigns, and all secured parties as defined in the
Act.
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5.4 Bylaws. The Association shall have Bylaws. The Bylaws shall govern the
operation and administration of the Association, and shall be binding on all Owners and
Occupants.
5.5 Management. The Board may delegate to a manager or managing agent the
management duties imposed upon the Association's officers and directors by the Governing
Documents and the Act. However,such delegation shall not relieve the officers and directors of
the ultimate responsibility for the performance of their duties as prescribed by the Governing
Documents and by law.
5.6 Rules and Regulations. The Board shall have exclusive authority to approve and
implement such reasonable Rules and Regulations as it deems necessary from time to time for
the purpose of operating and administering the affairs of the Association and regulating the use
of the Property; provided, that the Rules and Regulations shall not be inconsistent with the
Governing Documents or the Act. The inclusion in other parts of the Governing Documents of
authority to approve Rules and Regulations shall be deemed to be in furtherance, and not in
limitation,of the authority granted by this Section. New or amended Rules and Regulations shall
be effective only after reasonable notice thereof has been given to the Owners.
5.7 Association Assets: Surplus Funds. All funds and real or personal property
acquired by the Association shall be held and used for the benefit of the Owners for the purposes
stated in the Governing Documents. Surplus funds remaining after payment of or provision for
Common Expenses and reserves shall be credited against future Assessments or added to
reserves,as determined by the Board.
5.8 Resale Disclosure Certificates. Pursuant to Section 515B.4-107 of the Act,in the
event of a resale of a Unit by an Owner other than Declarant, that Owner shall furnish to the
purchaser a resale disclosure certificate containing the information required by Section 515B.4-
107(b) of the Act. Pursuant to Section 51SB.4-107(d) of the Act, the Association shall, within
ten days after a request by an Owner or the Owner's authorized representative, furnish the resale
disclosure certificate. The Association may charge a reasonable fee for furnishing the resale
disclosure certificate and any documents related thereto.
SECTION 6
ASSESSMENTS
6.1 general. Assessments shall be determined and assessed against the Units by the
Board,in its discretion, subject to the requirements and procedures set forth in this Section 6 and
the requirements of the Bylaws. Assessments shall include annual Assessments under
Section 6.2, and may include special Assessments under Section 6.3 and limited Assessments
under Section 6.4. Annual and special Assessments shall be allocated among the Units in
accordance with the allocation formula set forth in Section 4.2. Limited Assessments under
Section 6.4 shall be allocated to Units as set forth in that Section.
6.2 Annual Assessments. Annual Assessments shall be established and levied by the
Board, subject to the limitations set forth hereafter. Each annual Assessment shall cover all of
the anticipated Common Expenses of the Association for that year which are to be shared by all
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Units in accordance with the allocation formula set forth in Section 4.2. Annual Assessments
shall be payable in equal monthly or quarterly installments,as established by the Board. Annual
Assessments shall provide,among other things, for an adequate reserve fund for the replacement
of the Common Elements and those parts
ent is funded by for
imited AssessmA Association
pursuant to Section
except to the extent that the replacement
6.4.
6.3 Special Assessments. In addition to annual Assessments, and subject to the
le
limitations set forth hereafter,the Board may levy in any Assessment year a special Assessment
, and for the
against all Units in accordance with the allocation formula set forth Section
nts shall be usee
purposes described in this Declaration. Among other things, special Assessm
for the purpose of defraying in whole or in part the cost of any unforeseen and unbudgeted
Common Expense.
6.4 f tmited Assam• In addition to annual Assessments and special
Assessments,the Board has the authority to levy and allocate limited Assessments among one or
more,but not all,Units in accordance with the following requirements and procedures'
6.4.1 Any Common Expense associated with the maintenance, repair, or
replacement of a Limited Common Element shall be assessed exclusively against
or Units to which that Limited Common Element is allocated, equally,by actual cost per
Unit or by such other reasonable allocation as may be approved by the Board.
6.4.2 Any Common Expense benefiting fewer than all of the Units but not
falling within Section 6.4.1 may,at the Board's discretion,be assessed against the Unit or
Units'benefited equally,by actual cost per Unit or by such other reasonable allocation as
may be approved by the Board.
6.4.3 The costs of insurance may be assessed equally or by actual cost per Unit,
and the costs of common utilities may be assessed equally, in proportion to usage or by
such other reasonable,allocation as may be approved by the Board.
6.4.4 Reasonable attorneys' fees and other professional fees and costs incurred
by the Association in connection with (1)the collection of Assessments, and (ii)the
enforcement of the Governing Documents, the Act,or the Rules and Regulations against
an Owner or Occupant or their guests,may be assessed against the Owner's Unit.
6.4.5 Late charges,fines and interest may be assessed as provided in Section 14.
6.4.6 Assessments levied under Section 515B.3-116(a) of the Act to pay a
judgment against the Association may be levied only against the Units existing at the
time the judgment was entered,in proportion to their Common Expense liabilities.
6.4.7 If any damage to the Common Elements or another Unit or any portion of
the Owner's Unit that the Association is obligated to maintain hereunder is caused by the
act or omission of an Owner or Occupant,or their guests,the Association may assess the
costs of repairing the damage exclusively against the Owner's Unit to the extent not
covered by insurance.
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6.4.8 If Common Expense liabilities are reallocated for any purpose authorized
by the Act, Assessments and any installment thereof not yet due shall be recalculated in
accordance with the reallocated Common Expense liabilities.
Assessments levied under Sections 6.4.1 through 6.4.7 may, at the Board's discretion, be
assessed as a part of,or in addition to,other Assessments levied under Section 6.1 or 6.2.
6.5 Working Capital Fund. There shall be established a working capital fund to meet
unforeseen expenditures or to purchase additional equipment or services for the Association.
The Board may include in each subsequent annual budget a reasonable amount of working
capital,based upon the anticipated needs of the Association for the year in question. There shall
be contributed, on a one-time basis for each Unit sold by Declarant, an amount equal to two
months installments of the estimated annual Assessments for the Unit. The contribution shall be
paid by the purchasers of the Units at the time of closing of the initial sales of the Units by
Declarant. The contributions to this fund are in addition to the regular installments of annual
Assessments. The funds, including an advance by Declarant of uncollected contributions for
unsold Units, shall be deposited into a segregated Association account no later than the
termination of the Declarant Control Period. Funds deposited in said account shall not be used to
defray any of Declarant's expenses, reserve contributions or construction costs, nor to make up
any budget deficits during the Declarant Control Period. However,upon the closing of the initial
sale of a Unit, Declarant may reimburse itself from funds collected from the purchaser at the.
closing for any prior contributions made by Declarant to the working capital fund with respect to
that Unit.
6.6 Liability of Owners for Assessments. The Owner of the Unit at the time an
Assessment is payable with respect to the Unit shall be personally liable for the share of the
Common Expenses assessed against such Unit. Such liability shall be joint and several where
there are multiple Owners of the Unit. Subject to Section 6.7, the liability is absolute and
unconditional and no Owner is exempt from liability for payment of Assessments by right of set-
off, by waiver of use or enjoyment of any part of the Property,by absence from or abandonment
of the Unit, by the waiver of any other rights,or by reason of any claim against the Association
or its officers, directors or agents, or for their failure to fulfill any duties under the Governing
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Documents or the Act.
6.7 Declarant's Liability for Assessments. Pursuant to Section 515B.3-115(a) of the
Act,Declarant's liability for Assessments shall be subject to the following limitations.
6.7.1 Notwithstanding anything to the contrary in the Governing Documents, if -
an Assessment has been levied, Declarant may elect to have any unsold Unit owned by it
assessed at the rate of twenty-five percent of the Assessments (exclusive of replacement
reserves) levied on that Unit and other similarly situated Units until a certificate of
occupancy or comparable City approval has been issued with respect to the Dwelling
located within such Unit.
6.7.2 The provisions of Section 6.7.1 shall not affect the share of replacement
reserves for Units owned by Declarant, which reserves must be funded by Declarant as
required by Section 515B.3-115 of the Act. However, there are no assurances that
MPLS-Word 129293.2 9
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Declarant's reduced Assessment obligation will not affect the level of services for other
items set forth in the Association's budget. In the event that Declarant pays a reduced
Assessment in accordance with Section 6.7.1, Declarant shall be obligated, within sixty
days following the termination of the Declarant Control Period,to make up any operating
deficit incurred by the Association during the Declarant Control Period.
6.7.3 Declarant's reduced Assessment obligation shall apply to each Unit owned
by Declarant at the time that any Assessment is levied against the Unit, and shall
terminate with respect to each such Unit upon the issuance of a certificate of occupancy
or comparable City approval with respect to the Dwelling located within such Unit.
6.8 Assessment Lien. The Association has a lien on a Unit for any Assessment levied
against that Unit from the time the Assessment becomes due. If an Assessment is payable in
installments, the full amount of the Assessment is a lien from the time the first installment
thereof becomes due. Fees, charges, late charges, fines and interest charges imposed by the
Association pursuant to Section 515B.3-102(ax10), (11) and (12) of the Act are liens, and are
enforceable as Assessments, under this Section 6. Recording of this Declaration constitutes
record notice and perfection of any lien under this Section 6, and no further recordation of any
notice of or claim for the lien is required. The release of the lien shall not release the Owner
from personal liability unless agreed to in writing by the Association.
6.9 Foreclosure of Lien: Remedies. A lien for Assessments may be foreclosed
against a Unit under the laws of the State of Minnesota(1)by action,or(ii)by advertisement in a
like manner as a mortgage containing a power of sale. The Association, or its authorized
representative, shall have the power to bid in at the foreclosure sale and to acquire, hold, lease,
mortgage and convey any Unit so acquired. The Owner and any other Person claiming an
interest in the Unit, by the acceptance or assertion of any interest in the Unit, grants to the
Association a power of sale and full authority to accomplish the foreclosure. The Association
shall, in addition to its other remedies, have the right to pursue any other remedy at law or in
equity against the Owner who fails to pay any Assessment or charge against the Unit.
6.10 Lien Priority; Foreclosure. A lien for Assessments is prior to all other liens and
encumbrances on a Unit except (i)liens and encumbrances recorded before this Declaration;
(ii)any first mortgage on the Unit; and (iii)liens for real estate taxes and other governmental
assessments or charges against the Unit. Notwithstanding the foregoing,if(i)a first mortgage on
a Unit is foreclosed; (ii) the first mortgage was recorded on or after the date of recording of this
Declaration; and (iii) no Owner redeems during the Owner's period of redemption provided by
Minnesota Statutes Chapters 580, 581, or 582,then the holder of the sheriff's certificate of sale "
from the foreclosure of the first mortgage shall take title to the Unit subject to a lien in favor of
the Association for unpaid Assessments or installments thereof levied pursuant to
Sections 515B.3-115(a), (e)(l) to (3), (f) and (i) of the Act which became due, without
acceleration, during the six months immediately preceding the first day following the end of the
Owner's period of redemption.
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6.11 Real Estate Taxes and Assessments. Real estate taxes, special assessments, and
other charges and fees'which may be levied against the Common Elements by governmental
authorities, shall be allocated equally among and levied against the Units, and shall be a lien
MPLS-Word 129293.2 10
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against each Unit in the same manner as a lien for real estate taxes and special assessments
levied against the Unit alone.
6.12 Voluntary Conveyances; Statement of Assessments. In a voluntary conveyance
of a Unit,the buyer shall not be personally liable for any unpaid Assessments and other charges
made by the Association against the seller or the,seller's Unit prior to the time of conveyance to
the buyer, unless expressly assumed by the buyer. However, the lien of such Assessments shall
remain against the Unit until released. Any seller or buyer shall be entitled to a statement, in
recordable form, from,the Association setting forth the amount of the unpaid Assessments
against the Unit, including all Assessments payable in the Association's current fiscal year,
which statement shall be binding on the Association,seller and buyer.
SECTION 7 •
RESTRICTIONS ON USE OF PROPERTY
All Owners and Occupants,and all secured parties, by their acceptance or assertion of an
interest in the Property, or by their occupancy of a Unit, covenant and agree that, in addition to
any other restrictions which may be imposed by the Act or the Governing Documents, the
occupancy, use, operation, alienation and conveyance of the Property shall be subject to the
following restrictions:
7.1 General. The Property shall be owned, conveyed, encumbered, leased, used and
occupied subject to the Governing Documents, the Rules and Regulations and the Act, as
amended from time to time. All covenants, restrictions and obligations set forth in the
Governing Documents are in furtherance of a plan for the Property, and shall run with the
Property and be a burden and benefit to all Owners and Occupants and to any other Person
acquiring or owning an interest in the Property, their heirs,personal representatives, successors
and assigns.
7.2 Certain Subdivisions and Conveyances Prohibited. Except as permitted by this
Declaration, no Unit nor any part of the Common Elements may be subdivided or partitioned
without the prior written approval of all Owners and all secured parties holding first mortgages
on the Units.
7.3 Residential Use. The Units shall be used by Owners and Occupants and their
guests exclusively as private, single family residential dwellings, and not for transient, hotel,
commercial, business or other non-residential purposes, except as provided in Section 7.4. Any -
lease of a Unit(except for occupancy by guests with the consent of the Owner) for a period of
less than ninety days, or any occupancy which includes services customarily furnished to hotel
guests, shall be presumed to be for transient purposes. The number of occupants per Unit may
be restricted in accordance with any applicable municipal ordinances and standards acceptable
under applicable federal and state Iaw.
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7.4 Business Usc jtestricted. No business, trade, occupation or profession of any
kind, whether carried on for profit or otherwise, shall be conducted, maintained or permitted in •
any Unit or the Common Elements,except:
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7.4.1 An Owner or Occupant may maintain a home occupation in such Owner
or Occupant's Dwelling; provided, that such use (i)is incidental to the residential use;
(ii)does not involve physical alteration of the Dwelling or Unit visible from the exterior;
(iii)is in compliance with all governmental laws, ordinances and regulations; (iv)does
not involve observable business activity such as signs, advertising displays, unusual
numbers of deliveries,or unusual levels of pedestrian or vehicular traffic to and from the
Unit; (v) does not involve employees;and (vi)does not otherwise involve activity which
disturbs the quiet enjoyment of the Property by other Owners or Occupants.
7.4.2 The Association may maintain offices on the Property for management'
and related purposes.
7.4.3 Declarant may maintain offices,models,sales facilities and other business
facilities on the Property in connection with the exercise of its declarant rights reserved
herein.
7.5 L asi g. Leasing of Units shall be allowed, subject to reasonable regulation by
the Association, and subject to the following conditions: (i)no Unit shall be leased for transient
or hotel purposes; (ii)no Unit may be subleased;(iii)a Unit must be leased in its entirety(not by
room)unless simultaneously occupied by the Owner; (iv)the lease shall be in writing;(v)unless
otherwise required in connection with the financing,guarantee or insuring of a Unit mortgage,no
lease shall be for a period less than three or more than 12 months, except for extenuating
situations approved by the Board; and (vi)the lease shall provide that it is subject to the
Governing Documents,the Rules and Regulations and the Act, and that any failure of the lessee
to comply with the terms of such documents shall be a default under the lease. The Association
may impose such reasonable Rules and Regulations as may be necessary to implement non-
discriminatory procedures for the leasing of Units, consistent with this Section and applicable
law.
7.6 Serge and Par ing. Personal property may not be stored,displayed or otherwise
left outside the Units,except as authorized by the Board The streets, walkways, driveways and
portions of the Common Elements used for access to and from the Units, may not be obstructed,
or used for parking, storage, activities or any purpose other than access and authorized parking.
Garages and parking areas on the Property shall be used only for parking of vehicles owned or
leased by Owners and Occupants and their guests, and such other incidental uses as may be
authorized by this Declaration or in writing by the Board. The use of garages and driveways on
the Property,and the types of vehicles and personal property permitted thereon,shall be subject
to regulation by the Association, including without limitation the right of the Association to tow -
illegally parked vehicles or to remove unauthorized personal property.
7.7 Pets. Only dogs, cats, small birds and fish, and other animals generally
recognized as domestic household pets (collectively referred to as "pets") may be kept on the
Property,subject to the conditions set forth in this Section.
7.7.1 Rules and Regulations may be adopted by the Association to regulate pets
on the Property;including, but not limited to the type and number of pets allowed to
kept in a Dwelling.
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7.7.2 Pets shall be kept solely as domestic household pets and/or as statutorily .•
authorized "service animals" used by handicapped persons, and not for any other
purpose. No animal of any kind shall be raised or bred, or kept for business or
commercial purposes by any Person upon any part of the Property.
7.7.3 Pets shall not be allowed to make an unreasonable amount of noise,nor to
become a nuisance or a threat to the safety of others. •
7.7.4 Pets shall be housed only within the Dwellings. No structure, fence or
enclosure for the care, housing or confinement of any pet. shall be constructed or
maintained on any part of the Property,except as approved pursuant to Section 8.
7.7.5 Pets shall be under control at all times when outside the Dwelling.
7.7.6 Owners and Occupants keeping pets within their Dwellings are
responsible for the pet's behavior and for complying with municipal pet laws,ordinances
and regulations. An Owner or Occupant is liable to the Association for the cost of repair
of any damage to the Property, or the expenses associated with any personal injury,
caused by an animal kept within that Owner or Occupant's Dwelling.
7.8 Ouiet Enjoyment. All Owners and Occupants and their guests shall have a right
of quiet enjoyment in their respective Units,subject to the rights of other Owners and Occupants
and the owners and occupants of adjacent property to reasonable use of their respective property
and the normal and customary sights, sounds and activity generated thereby given the existing
and contemplated future use of such property. The Property shall be occupied and used in such a
manner as will not cause a nuisance, nor unduly restrict, interfere with or impede the use and
quiet enjoyment of the Property by other Owners and Occupants and their guests.
7.9 Prohibited Conduct No Owner or Occupant shall(1)cause or permit any physical
changes to their Dwelling that could jeopardize or.impair the weather-tight soundness or safety
of the Dwelling or other improvements located on the Property; (ii)interfere with any easement;
or(iii)cause or permit any physical changes to their Dwelling which could affect or damage the
sound barriers installed between the Dwellings within the ceilings, floors or walls of the Unit.
No improvement shall be erected or maintained, no excavation, grading or reshaping shall be
undertaken, and no refuse, fill or other material shall be placed, on the Property, which may •
impede access on, about or through the Property, cause damage to the Property or interfere with
the installation, use or maintenance of the improvements to the Property, or which may change
or impede the flow of water through any natural,designed,improved or graded drainage area.
7.10 Compliance with Law. No use shall be made of the Property which would violate
any then existing municipal codes or ordinances, or state or federal laws,nor shall any act or use
be permitted which could cause waste to the Property, cause a material increase in insurance
rates on the Property, or otherwise cause any unusual liability, health or safety risk, or expense, •
for the Association or any Owner or Occupant.
7.11 Alterations. Except for those made by Declarant in connection with the exercise
of its declarant rights,no alterations(as defined in Section 8)shall be made, or caused or allowed
to.be made, in any part of the Common Elements, or in any part of the Unit or Dwelling which
MPLS-Word 129293.2 13
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affects the Common Elements or another Unit or which is visible from the exterior of a
Dwelling,without the prior written authorization of the Board,or a committee appointed by it,as
provided in Section 8.
7.12 Time Shares Prohibited. The time share form of ownership, or any comparable
form of lease, occupancy rights, ownership, or right-to-use plans, which has the effect of
dividing the ownership or occupancy of a Unit into separate time periods,is prohibited. •
7.13 Access to Units. In case of emergency, the Units are subject to entry, without
notice and at any time, by an officer or member of the Board, by the Association's management
agents or by any public safety personnel. Entry is also authorized for maintenance purposes
under Sections 9 and 13,and for enforcement purposes under Section 14.
7.14 Developer's Agreement. The Property is subject to that Developer's Agreement
by and between the City and Oak Park Heights Development, LLC (the "Developer's
Agreement") which imposes certain conditions and obligations relating to the development, use
and maintenance of the Property. To the extent any provision in the Governing Documents
conflicts with any provision of the Developer's Agreement, the provisions of the Developer's
Agreement shall control.
SECTION 8
ARCHITECTURAL STANDARDS
8.1 estrictions on Alterations. One of the purposes of this Declaration is to ensure
that those parts of the Dwellings and other parts of the Units which are visible from the exterior
be kept architecturally attractive and substantially uniform in appearance. Therefore, except as
set forth in Section 8.5, the following restrictions and requirements shall apply to alterations on
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the Property:
8.1.1 Except as expressly provided in this Section 8, no structure, building,
addition,deck,patio, fence,wall,enclosure,window,exterior door,antenna or other type
of sending or receiving apparatus, sign, display, decoration, color change, shrubbery,
material topographical or landscaping change,nor any other exterior improvements to or
alteration of any Dwelling or any other part of a Unit which affects the Common
Elements or another Unit, or which is visible front the exterior of the Dwelling
(collectively referred to as "alterations"), shall be commenced, erected or maintained,
unless and until the plans and specifications showing the nature, kind, shape, height,
color, materials and locations of the alterations shall have been approved in writing by •
the Board or a committee appointed by it. In addition, Declarant's written consent shall
also be required for alterations until such time as Declarant no longer owns any Unit for
initial sale and no longer has the right to add Additional Real Estate to the Property.
8.1.2 The Board may appoint, supervise and disestablish an architectural
committee, and specifically delegate to it part or all of the functions which the Board
exercises under.this Section 8,in which case the references to the Board shall refer to the •
architectural committee where appropriate. The architectural committee shall be subject
to the supervision of the Board.
MPLS-Word 129293.2 14
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8.1.3
The Board shall establish the criteria for approval of'alterations, which
shall include and require,at a minimum:
8.1.3.1 substantial uniformity of color, location, type and design in
relation to existing Dwellings and other improvements to the Property;
8.1.3.2 comparable or better quality of materials as used in existing
improvements on the Property;
8.1.3.3 ease of maintenance and repair; •
8.1.3.4 adequate protection of the Property, the Association, Owners and
Occupants from liability and liens arising out of the proposed alterations;
8.1.3.5 substantial preservation of other Owners' sight lines, if material;
and
8.1.3.6 compliance with governmental laws,codes and regulations.
The Board, or the appointed architectural committee if so authorized by the
Board, in its sole discretion, may impose standards for design,'appearance or
construction which are greater or more stringent than standards prescribed by the
Governing Documents,or by building,zoning,or other governmental laws,codes,
or regulations; provided that such standards shall be consistent with the
architectural character and use of the Property as planned and developed by
Declarant. The Board,or the appointed architectural committee authorized by the
Board, shall be the sole judge of whether such criteria are satisfied, and its
determination shall be binding upon the Owners, Occupants and any other Person
holding or acquiring an interest in the Unit.
8.1.4 Approval of alterations which cause a minor encroachment upon the
Common Elements or another Unit shall create an appurtenant easement for such
encroachment in favor of the Unit with respect to which the alterations are approved,
notwithstanding any contrary requirement in the Governing Documents or the Act A file
of the Board resolutions approving or denying all requests for alterations shall be
maintained permanently as a part of the Association's records.
8.2 Review Procedures. The following procedures shall govern requests for
alterations under this Section:
8.2.1 Detailed plans, specifications and related information.regarding any
proposed alteration,in form and content acceptable to the Board,shall be submitted to the
Board and to Declarant (if applicable) at least sixty days prior to the projected
commencement of construction. No alterations shall be commenced prior to approval.
8.2.2 The Board and Declarant (if applicable) shall give the Owner written
notice of approval or disapproval. The Board shall have the right and authority to
approve, conditionally approve or deny requests for alterations in its sole absolute
MPLS-word 129293.2 15
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discretion. If the Board and Declarant(if applicable)fail to approve or disapprove within
sixty days after receipt of said plans and specifications and all other information
requested by the Board and Declarant(if applicable),then approval shall be deemed to be
denied.
8.2.3 If no request for approval is submitted, approval shall be deemed to be
denied.
8.3 Remedies for Violations. The Association may undertake any measure, legal,
equitable or administrative, to enforce compliance with this Section and shall be entitled to
recover from the Owner causing or permitting the violation all attorneys' fees and other
professional fees and costs of evaluation, investigation and enforcement incurred by the
Association, whether or not a legal action is started. Such fees and costs shall be a lien against
the Owner's Unit and a personal obligation of the Owner. In addition, upon reasonable notice,
the Association shall have the right to enter the Owner's Unit and to restore any part of the
Dwelling or Unit to its prior condition if the alterations were made in violation of this Section, •
and the cost of such restoration shall be a personal obligation of the Owner and a lien against the
Owner's Unit.
8.4 Owner Responsibility/Indemnity. The Owner who causes an alteration to be
made, regardless of whether the alteration is approved by the Board, shall be responsible for the
construction work and any claims,damages,losses or liabilities arising out of the alterations,and
to ensure that the work approved by it satisfies all applicable municipal requirements. The
Owner shall hold harmless, indemnify and defend the Association,and its officers,directors and
committee members, from and against any expenses, claims, damages, losses or other liabilities,
including without limitation attorneys' fees and other professional fees and costs,arising out of
(i)any alteration which violates any governmental laws,codes,ordinances or regulations;(ii)the
adequacy of the specifications or standards for construction of the alterations; and (iii) the
construction of the alterations.
8.5 Exemptions. The requirements set forth in this Section 8 (except Section 8.4)
shall not apply to the following:
8.5.1 Construction undertaken or authorized by Declarant in connection with its
completion of the Common Element improvements and the completion and sale of the
Dwellings and Units.
8.5.2 Certain types of antennae and satellite dishes may be installed, following -
application to the Board, to the extent permitted by federal law and the Rules and
Regulations consistent therewith.
8.5.3 Storm doors installed and maintained in accordance with the Rules and
Regulations.
MPLS-word 1292932 16
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SECTION 9
MAINTENANCE AND REPAIR
9.1 Maintenance by Association. The Association shall provide for all maintenance,
repair and replacement(collectively referred to as"maintenance")as follows:
9.1.1 The Association shall provide for all maintenance of the Common
Elements including but not limited to the private streets, driveways and other
improvements thereon.
9.1.2 The Association shall provide for all maintenance of the storm water pond
and any associated storm sewer components-benefiting the Property as provided in the
Storm Water Pond Easement and Maintenance Agreement referenced in Section 13.5 of
this Declaration.
9.1.3 The Association shall maintain, repair and replace the Limited Common
Elements. Without limiting the foregoing, the Association shall maintain, repair and
replace the Limited Common Element driveways and sidewalks. In addition, the
Association shall provide for lawn, shrub and tree maintenance in the yard areas
benefiting the Units,and for the watering of lawns.
9.1.4 For the purpose of preserving the architectural character,quality,and high
standards for appearance of the Property, the Association shall provide for exterior
maintenance upon the Dwellings and/or Units,subject to the following:
9.1.4.1 The Association shall maintain, repair and replace roofs, gutters,
downspouts,exterior siding and other building surfaces.
9.1.4.2 The Association shall maintain, repair and replace garage doors
and exterior entry doors and frames (except hardware and mechanical equipment
and storm doors installed by or at the direction of Owners pursuant to Section
8.5.3),exterior window frames,porches,patios,decks and chimney exteriors.
9.1.4.3 The Association may,upon thirty days' prior notice to the Owner,
also undertake any exterior maintenance for which an Owner is obligated under
Section 9.4 and which the Owner fails to perform to standards established by the
Association, and assess the Owner's Unit for the cost thereof. Such cost shall be
a personal obligation of the Owner and a lien against the Owner's Unit.
9.1.4.4 The Association may, upon reasonable notice, elect to maintain,
repair or replace mechanical, structural or other components within the Unit and
assess the costs against the Unit, if the failure or impairment of the component
could result in damage to the Common Elements or other Units, impair the
function of any common operating system,or create a health or safety hazard.
9.1.5 ' The Association's obligations for maintenance shall exclude any items not
specifically required to be maintained by the Association under this Section 9.1,
MPLS-Word 1292932 17
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including but not limited to foundations and foundation walls,Dwelling walls, floors and
ceilings, structural components, interior parts of the Dwellings, door and window
hardware,mechanical, electrical,heating,air conditioning and plumbing systems,private
fences,screens and glass,unless such items are expressly approved under Section 9,2.
9.1.6 The Association shall maintain, repair and replace the Property in
accordance with the requirements of the applicable City zoning approvals and permits
and other applicable regulations.
9.1.7 The costs associated with the Association's maintenance obligations under
this Section 9.1 shall be funded by Assessments determined and levied in accordance
with Section 6.
9.2 Optional Maintenance by Association. In addition to the maintenance described
in Section 9.1, the Association may, with the approval of the Board and a majority of the total
Owners' votes in the Association, undertake to provide additional exterior maintenance to the
Units or Dwellings.
9.3 Maintenance by Owner. Except for the exterior maintenance required to be
provided by the Association under Section 9.1 or 9.2,all maintenance of the Dwellings and Units
shall be the sole responsibility and expense of the Owners thereof. Subject to Section 9.1 and
Section 9.2,the Limited Common Elements allocated to a Unit shall be maintained by the Owner
of that Unit. The Association may require that any exterior maintenance to be performed by the
Owner be accomplished pursuant to specific uniform criteria established by the Association. The
Owners and Occupants shall have a duty to promptly notify the Association of defects in or
damage to those parts of the Property which the Association is obligated to maintain.
9.4 Damage caused by Owner. Notwithstanding any provision to the contrary in this
Declaration, if, in the judgment of the Association, the need for maintenance of any part of the
Property is caused by the act or omission of an Owner or Occupant, or his or her guests, or by a
condition in a Unit which the Owner or Occupant has caused or allowed to exist after notice
from the Association, the Association may cause such damage or condition to be repaired or
corrected (and enter the yard area of upon any Unit to do so), and the cost thereof may be
charged and assessed against the Unit of the Owner responsible for the damage. Such coat shall
be a personal obligation of the Owner and a lien against the Owner's Unit. In the case of party
walls between Dwellings, the Owners of the affected Dwellings shall be liable as provided in
Section 10.
SECTION 10
PARTY WALLS
I0.1 General Rules of I,,aw to Apply. Each wall built as part of the original
construction of Dwellings and located or intended to be located on the boundary line between
Units shall constitute a party wall,the Units shall be subject to easements for any encroachments
resulting from or attributable to such walls pursuant to Section 13.4 hereof, and, to the extent not
inconsistent with the provisions of this Section, the general rules of law regarding party walls
and liability for property damage due to negligent or willful acts or omissions shall apply thereto.
Mars-word 129293.2 18
10.2 Repair and Maintenance. The Owners of the Units which share a party wall shall
be responsible for the maintenance, repair and replacement of the party wall in equal
proportions; provided, (i)that any maintenance, repair or replacement necessary due to the acts
or omissions of a certain Owner or Occupant sharing such party wall shall be paid for by such
Owner, and(ii)that the Association may contract for and supervise the repair of damage caused
by an Owner or Occupant and assess the Owners for the cost thereof to the extent not covered by
insurance. Such cost shall be a personal obligation of the Owner and a Iien against the Owner's
Unit(s).
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10.3 Destruction by Fire or Other Casualty. If a party wall is destroyed or damaged by
fire or other casualty,any Owner who has use of the party wall may, with the consent of the
Association, restore it, and the other Owner shall promptly reimburse the Owner who restored
the wall for his or her share of the cost of restoration thereof;provided,however,that the cost of
restoration resulting from destruction or other casualty caused by the acts or omissions of an
Owner shall be the financial responsibility of such Owner, and the Association may assess the
responsible Owner for their share of the costs, without prejudice to the right of an Owner to
recover a larger contribution from the other Owner. Insurance claims shall be made promptly
following any casualty.
10.4 Weatherproofing. Notwithstanding any other provision of this Section, any
Owner who, by his or her negligent or willful act, causes a party wall to be exposed to the
elements shall bear the whole cost of the repairs necessary for protection against such elements.
10.5 Right to Contribution Runs With Land. The right of any Owner to contribution
from any other Owner under this Section shall be appurtenant to the Unit and shall pass to such
Owner's assigns and successors in title.
10.6 Arbitration. In the event of any dispute arising concerning a party wall,and if the
Owners of the affected Units do not resolve the dispute by a written agreement within thirty days
of the event causing the dispute, the matter shall be submitted to binding arbitration under the
rules of the American Arbitration Association (or under such other rules as the parties may
unanimously agree), upon the written demand of the Association or any Owner whose Dwelling
shares the party wall. A single arbitrator shall be used unless multiple arbitrators are agreed to
by the parties. The Association shall, upon its request, be made a party to the arbitration, but
cannot be compelled to be a party. Each party agrees that the decision of the arbitrators shall be
final and conclusive of the questions involved. The fees of the arbitrators shall be shared equally
by the parties, but each party shall pay its own attorneys' fees or other costs incurred in the
arbitration.
SECTION 11
INSURANCE
' II
11.1 Required Coverage. The Association shall obtain and maintain, at a minimum,a
master policy or policies of insurance in accordance with the insurance requirements set forth in
the Act and the additional requirements set forth herein, issued by a reputable insurance
company or companies authorized to do business in the state of Minnesota,as follows:
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11.1.1 Property insurance in broad form covering risks of physical loss in an
amount equal to one hundred percent of the insurable"replacement cost"of the Property,
less deductibles, exclusive of land, footings, excavation and other items normally
excluded from coverage (but including all building service equipment and machinery).
The Association may or may not, as determined by the Board, insure the improvements
and betterments referred to in Section 515B.3-113(b)(i)through(vii)of the Act, but must
do so if required by the FNMA,•FHLMC, FHA or VA, as referred to hereafter. The
policy or policies shall cover personal property owned by the Association. The policy or
policies shall also contain "Inflation Guard" and "Agreed Amount" endorsements, if
reasonably available. Such policy or policies shall include such additional endorsements,
coverages and limits with respect to the foregoing and other hazards as may be required
from time to time by the regulations of the Federal Housing Administration("FHA"),the
U.S. Department of Veterans' Affairs ("VA"), the Federal National Mortgage
Association("FNMA")or the Federal Home Loan Mortgage Corporation("FHLMC")as
a precondition to their insuring,purchasing or financing a mortgage on a Unit.The Board
may also, on behalf of the Association, enter into binding written agreements with a
mortgagee, insurer or servicer, including without limitation the FHA, VA, FNMA or
FHLMC, obligating the Association to keep certain specified coverages or endorsements
in effect.
11.1.2 Commercial general liability insurance covering the use, operation and
maintenance of the Common Elements and the activities of the Association, with
minimum limits of one million dollars per occurrence, against claims for death, bodily
injury and property damage, and such other risks as are customarily covered by such
policies for projects similar in construction,location and use to the Property. The policy
shall contain a "severability of interest" endorsement which shall preclude the insurer
from denying the claim of an Owner or Occupant because of negligent acts of the
Association or other Owners or Occupants. The policy shall include such additional
endorsements, coverages and limits with respect to such hazards as may be required by
the regulations of the FHA, VA, FNMA or FHLMC as a precondition to their insuring,
purchasing or financing a mortgage on a Unit.
11.1.3 Fidelity bond or insurance coverage against dishonest acts on the part of
directors, officers, managers, trustees, employees or persons responsible for handling
funds belonging to or administered by the Association, if deemed to be advisable by the
Board or required by the regulations of any financing-related institution as a precondition
to the purchase, insuring, guarantee, or financing of a mortgage on a Unit. The fidelity
bond or insurance shall name the Association as the named insured, and shall comply
with the regulations of the FNMA, FHA, VA or FHLMC, respectively, if required by
such agency as a precondition to its purchase, financing, insuring, or guaranteeing of a
mortgage on a Unit. An appropriate endorsement to the policy to cover any persons who
serve without compensation shall be added if the policy would not otherwise cover
volunteers, or a waiver of defense based upon the exclusion of persons serving without
compensation shall be added.
11.1.4 Workers' Compensation insurance as applicable and required by law.
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11.1.5 Directors and officers liability insurance with such reasonable limits and •
coverages as the Board shall determine from time to time.
11.1.6 Such other insurance as the Board may determine from time to time to be
in the best interests of the Association and the Owners.
11.2 Premiums: Improvements; Deductibles. Except as provided in Section 6.4 and
this Section, all insurance premiums shall be assessed and paid as an annual Assessment. Policy
deductibles amounts shall be determined by the Board. If improvements and betterments to the
.Units are covered, any increased cost may be assessed against the Units affected. The
Association may, in the case of a claim for damage to a Unit or Units, (1) pay the deductible
amount as a Common Expense; (ii) assess the deductible amount against the Unit or Units
affected in any reasonable manner; or (iii) require the Owner of.any Unit affected to pay the
deductible amount directly. The Association's decision as to who shall be charged with paying
the deductible amount may,but need not,be based on fault.
11.3 Loss Payee: Insurance Trustee. All insurance coverage maintained by the
Association shall be written in the name of, and the proceeds thereof shall be payable to, the
Association (or a qualified insurance trustee selected by it) as trustee for the benefit of the
Owners and secured parties which suffer loss. The Association,or any insurance trustee selected
by it, shall have exclusive authority to negotiate, settle and collect upon any claims or losses
under any insurance policy maintained by the Association.
11.4 ,Required Policy Provisions. All policies of property insurance carried by the
Association shall provide that: •
11.4.1 Each Owner and secured party is an insured Person under the policy with
respect to liability arising out of the Owner's interest in the Common Elements or
membership in the Association.
11.4.2 The insurer waives its right to subrogation under the policy against any
Owner or member of the Owner's household and against the Association and members of •
the Board.
11.4.3 The coverage shall not be voided by or conditioned upon (i) any act or
omission of an Owner or mortgagee,unless acting within the scope of authority on behalf
of the Association, or(ii)any failure of the Association to comply with any warranty or
condition regarding any portion of the Property over which the Association has no
control.
11.4.4 If at the time of a Ioss under the policy there is other insurance in the name
of an Owner covering the same property covered by the policy, the Association's policy
is primary.
11.5 Cancellation: Notice of Loss. Property insurance and comprehensive liability
insurance policies maintained by the Association shall provide that the policies shall not be
■
canceled or substantially modified, for any reason, without at least thirty days prior written
notice to the Association and to all secured parties holding first mortgages on Units.
MPLS-wore 1292931 21
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11.6 Restoration in Lieu of Cash Settlement All policies of property insurance
maintained by the Association shall provide that, despite any provisions giving the insurer the
right to elect to restore damage in lieu of a cash settlement, such option shall hot be exercisable
(i)without the prior written approval of the Association(or any insurance trustee),or(ii)when in
conflict with provisions of any insurance trust agreement to which the Association may be a •
party,or any requirement of law.
11.7 Owner's Personal Insurance. Each Owner shall obtain additional personal
insurance coverage(commonly known as"gap coverage"or an"H06"policy)at his or her own
expense covering fire and other casualty to the interior of the Unit, personal property and the
Owner's personal liability. Insurance policies maintained by Owners are without contribution as
against the insurance purchased by the Association, except as to deductible amounts or other
items not covered under the Association's policies.
SECTION 12
RECONSTRUCTION,CONDEMNATION AND EMINENT DOMAIN
12.1 Reconstruction. The obligations and procedures for the repair, reconstruction or
disposition of the Property following damage or destruction thereof shall be governed by the Act.
Any repair or reconstruction shall be commenced as soon as practicable after the casualty and
shall be substantially in accordance with the plans, specifications and design of the Property as
initially constructed and subsequently improved. Notice of substantial damage or destruction
shall be given as provided in Section 16,10.
12.2 Condemnation and Eminent Domain. In the'event of a taking of any part of the
Property by condemnation or eminent domain, the provisions of the Act shall govern; provided,
(1) that notice shall be given as provided in Section 16.10; (ii)that the Association shall be the
attorney-in-fact to represent the Owners in any related proceedings, negotiations, settlements or
agreements; and (iii)that any awards or proceeds shall be payable to the Association for the
benefit of the Owners and the mortgagees of their Units. Mortgagees shall be entitled to priority
for condemnation awards in accordance with the priorities established by the Act and the
Governing Documents,as their interests may appear.
12.3 Tenninat qn and Liquidation. The termination of the common interest
community, and the distribution of any proceeds therefrom, shall be governed by the Act. Any
distribution of funds shall be based upon the value of the Units as determined by their relative
value for property insurance purposes, and shall be made to Owners and their mortgage holders, -
as their interests may appear,as provided in the Act.
12.4 Notice. The Association shall give written notice of any condemnation
proceedings or substantial destruction of the Property to the Eligible Mortgagees entitled to •
notice under Section 16.10.
12.5 Association's Authority. In all cases involving reconstruction, condemnation,
eminent domain, termination or liquidation of the common interest community, the Association
shall have authority to act on behalf of the Owners in all proceedings, negotiations and
settlement of claims. All proceeds shall be payable to the Association to hold and distribute for
MPLs.wcrd 129293.2 22
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the benefit of the Owners and their mortgage holders, as their interests may appear, in
accordance with the Act.
SECTION 13
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EASEMENTS
Each Unit and the Common Elements, and the rights of the Owners and Occupants
therein, shall be subject to the appurtenant easements and rights granted and reserved in this
Section 13.
13.1 Access. Each Unit shall be the beneficiary of a non-exclusive easement for access
to and from.a public roadway on and across those portions of the Common Elements designated
for use as roadways or.walkways, as originally constructed, shown on the Nat or otherwise
designated by the Association, subject to any restrictions authorized by the Governing
Documents or the Rules and Regulations.
13.2 Use and Enjoyment. Each Unit shall be the beneficiary of nonexclusive
easements for use and enjoyment on and across the Common Elements, and for use and
enjoyment of any Limited Common Elements allocated to the Unit, subject to any restrictions
authorized by the Governing Documents.
13.3 Structural Support. Each Unit and the.Common Elements shall be subject to and
the beneficiary of nonexclusive easements for structural support in all wails, columns, joists,
girders and other structural components located in or passing through or shared with another Unit
or the Common Elements.
• 13.4 Encroachments. Each Unit and the Common Elements, and the rights of the
Owners and Occupants therein, shall be subject to nonexclusive easements in favor of the
adjoining Units for minor encroachments caused by the construction, reconstruction, repair,
shifting, settlement or movement of any part of'the Property, and for improvements which are
part of the original construction of the Property or which are added in compliance with Section 8.
If there is an encroachment upon another Unit or the Common Elements as a result of any of the
aforementioned causes, an appurtenant easement shall exist for the encroachment, for the use,
enjoyment and habitation of any encroaching improvement, and for the maintenance thereof.
However, with respect to improvements or alterations added pursuant to Section 8,no easement
shall exist unless the resulting encroachment is minor and the proposed improvements have been
approved and constructed as required by this Declaration. Such easements shall continue for as
long as the encroachment exists and shall not affect the marketability of title.
13.5 Storm Water Pond and Drainage Easements. The Property is benefited by a
nonexclusive easement pursuant to a Storm Water Pond Easement and Maintenance Agreement
for the drainage, ponding and storage of surface water and storm water from the Property over
and on Lot 1, Block 6, Pine Grove Gardens. The Storm Water Pond Easement requires the
Association to maintain, repair and replace the pond, any and all pipes, conduits, mains and
related equipment as shall be necessary in connection with the easement. In addition, the
Common Elements and the yard areas of the Units shall be subject to and benefited by
MPhs-word 1212932 23
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nonexclusive easements for storm water drainage over those parts of the Property which are
designed, improved or graded for such purposes as part of the development of the Property.
13.6 Maintenance.Repair.Replacement and Reconstruction. Each Unit,and the rights
of the Owners and Occupants thereof, and the Common Elements shall be subject to and
benefited by nonexclusive easements in favor of the Association for the maintenance, repair,
replacement and reconstruction of the Common Elements, the Dwellings and other
improvements located within the Units,and utilities serving the Units,to the extent necessary to
fulfill the Association's obligations under.the Governing Documents, Each Owner shall afford
to the Association and its management agents and employees, access at reasonable times and
upon reasonable notice, to and through the Unit and its Limited Common Elements for
maintenance,repair and replacement;provided that access may be had without notice and at any
time in case of emergency.
13.7 Utilities. Services and Operating Systems. The Common Elements and the Units
shall be subject to and benefited by nonexclusive easements in favor of the City, the Association
and all utility companies and other service providers for the installation,use, maintenance,repair
and replacement of all utilities, services and common operating systems, such as natural gas,
electricity, telephone, cable TV, internet and other electronic communications, water, sewer,
septic systems, wells, and similar services, irrigation systems, fire control systems and other
common operating systems, and metering and control devices, which exist, which are
constructed as part of the development of the Property or the Additional Real Estate, which are
approved by the City, which are approved by the Association under authority contained in the
Governing Documents or the Act, or which are described or referred to in the Plat, this
Declaration or other recorded instruments. Each Unit, and the rights of the Owners and
Occupants thereof,shall also be subject to and benefited by a non-exclusive easement in favor of
the other Units, the Common Elements and the Association for all such utilities, services and
systems installed in accordance with the foregoing provision of this Section. Utilities and related
services or systems shall be installed, used,maintained and repaired so as not to interfere with
the use and quiet enjoyment of the Units by the Owners and Occupants,nor affect the structural
or architectural integrity of the Dwellings or Common Element improvements.
13.8 Emergency Access to Units. In case of emergency, all Units and Limited
Common Elements are subject to an easement, without notice and at any time, in favor of the
Association for access by the Association's management agents, and in favor of fire, police or
other public safety personnel.
13.9 Project Signs. Declarant and the Association shall have a non-exclusive easement
and right to erect and maintain temporary and permanent signs and related monuments
identifying the common interest community on the Common Elements and on Units owned by
Declarant. Those parts of the Property on which permanent monument signs or related
improvements are located shall be subject to non-exclusive easements in favor of the Association
for the continuing use,maintenance,repair and replacement of said signs and improvements.
13.10 Maneuvering and Driveway Easements. If any Unit shares a driveway, or a
portion thereof, with another Unit, each such Unit shall be subject to and the beneficiary of a
non-exclusive easement for reasonable vehicular maneuvering and access on and across the
MPL$-word 1292932 24
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shared driveway,subject to any restrictions authorized by the Governing Documents or the Rules
and Regulations.
13.11 Declarant's Easements. The Units and Common Elements are subject to
exclusive easements in favor of Declarant for the exercise of its declarant rights as described in
the Governing Documents.
13.12 Other Easements. The Property shall be subject to such other easements as may
be authorized by the Association under authority contained in the Governing Documents or the
Act or recorded against the Property by reason of the City's requirements in connection with the
development of the Property or Additional Real Estate.
13.13 Continuation. Scope and Conflict of Easements. The easements set forth in this
Section(i)shall run with the land and shall be appurtenant to the benefited Property; (ii)shall
supplement and not limit any easements described elsewhere in this Declaration, or otherwise
recorded;(iii)shall be permanent,subject only to termination in accordance with the terms of the
easement; and (iv)shall include reasonable access to the easement areas over and through the
Property for purposes of construction,maintenance,repair,replacement and reconstruction.
13.14 Non Interference; Impairment Prohibited. All Persons exercising easement rights
shall do so in a reasonable manner so as not to materially interfere with the operation of the
Property or cause damage to the Property,and shall be financially liable for all costs of repair of
any part of the Property which is damaged by the Person's exercise of the easement rights. No
Person shall impair, obstruct or cause damage to any easement area, or improvements or
equipment installed therein. Notwithstanding anything in this Declaration to the contrary, no
Owner or Occupant shall be denied reasonable access to his or her Unit or the right to utility
services thereto.
13.15 Benefit of Easements. All easements benefiting a Unit shall benefit the Owners
and Occupants of the Unit,and their families and guests. However,an Owner who has delegated
the right to occupy the Unit to an Occupant or Occupants,whether by a lease or otherwise, does
not have the use and other easements rights in the Property during such delegated occupancy,
except (i)as a guest of an Owner or Occupant, or (ii)in connection with the inspection of the
Unit or recovery of possession of the Unit pursuant to law.
SECTION 14
COMPLIANCE AND REMEDIES
Each Owner and Occupant, and any other Person owning or acquiring any interest in the
Property, shall be governed by and comply with the provisions of the Act, the Governing
Documents,the Rules and Regulations,and such amendments thereto as may be made from time
to time, and the decisions of the Association. A failure to comply shall entitle the Association to
the relief set forth in this Section, in addition to the rights and remedies authorized elsewhere by
the Governing Documents or the Act.
14.1 Entitlement to Relief. Legal relief may be sought by the Association, at its
discretion, against any Owner, or by an Owner against the Association or another Owner;to
MPLS-Word 129293.2 25
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enforce compliance with the Governing Documents, the Rules and Regulations, the Act or the
decisions of the Association. However,no Owner may withhold any Assessments payable to the
Association, nor take or omit other action in violation of the Governing Documents, the Rules
and Regulations or the Act, as a measure to enforce such Owner's position, or for any other
reason.
14.2 Remedies. In addition to any other remedies or sanctions, expressed or implied,
administrative or legal,the Association shall have the right,but not the obligation,to implement
any one or more of the following actions against Owners and Occupants and/or their guests,who
violate the provisions of the Governing Documents,the Rules and Regulations or the Act:
14.2.1 Commence legal action for damages or equitable relief in any court of
competent jurisdiction.
14.2.2 Impose late charges of up to the greater of twenty dollars, or fifteen
percent of the amount past due, for each past due Assessment or installment thereof, and
impose interest at the highest rate permitted by law accruing beginning on the first day of
the month after the Assessment or installment was due.
14.2.3 In the event of default of more than thirty days in the payment of any
Assessment or installment thereof, all remaining installments of Assessments assessed
against the Unit owned by the defaulting Owner may be accelerated and shall then be
payable in Ml if all delinquent Assessments or installments thereof, together with all
attorneys' fees and other professional fees, costs and late charges, are not paid in full
prior to the effective date of the acceleration. Not less than ten days advance written
notice of the effective date of the acceleration shall be given to the defaulting Owner.
14.2.4 Impose reasonable fines,penalties or charges for each violation of the Act,
the Governing Documents or the Rules and Regulations.
14.2.5 Suspend the rights of any Owner or Occupant and their guests to use any
Common Element amenities;provided,that the suspension of use rights shall not apply to
Limited Common Elements allocated to the Unit, and those portions of the Common
Elements providing utilities service and access to the Unit. Such suspensions shall be
limited to periods of default by such Owners and Occupants in their obligations under the
Governing Documents,and for up to six months thereafter, for each violation.
14.2.6 Restore any portions of the Common Elements,Unit,or Limited.Common
Elements damaged or altered, or allowed to be damaged or altered, by any Owner or
Occupant or their guests in violation of the Governing Documents, and to assess the cost
of such restoration against the responsible Owners and their Units.
14.2.7 Enter any Limited Common Element or yard area of a Unit in which,or as
to which, a violation or breach of the Governing Documents or Rules and Regulation
exists which materially affects,or is likely to materially affect,the health or safety of the
other Owners or.Occupants,or their guests,or the safety or soundness of any Dwelling or
other part of the Property or the property of the Owners or Occupants, and to summarily
abate, remove or demolish, at the expense of the offending Owner or Occupant, any
MPLS-word 129293. 26
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structure, thing or condition which is causing the violation; provided, that any
improvements which are a part of a Dwelling may be altered, removed or demolished
only pursuant to a court order or with the agreement of the Owner.
14.2.8 Foreclose• any lien arising under. the provisions of the -Governing
Documents or under law,in the manner provided by the Governing Documents.
14.3 Rights to Hearing. Before the imposition of any of the remedies authorized by
Section 14.2.4, 14.2.5, 14.2.6 60 4.2.7, the Board shall, upon written request of the offender,
grant to the offender'an opportunity for a fair and equitable hearing as contemplated by the Act.
The offender shall be given notice of the nature of the violation and the right to a hearing, and
ten days within which to request a hearing. The hearing shall be scheduled by the Board and
held within thirty days of receipt of the hearing request by the Board,and with at least ten days'
prior written notice to the offender. If the offender fails to timely request a hearing or to appear
at the hearing, then the right to a hearing shall be deemed waived and the Board may take such
action as it deems appropriate. The decision of the Board and the rules for the conduct of
hearings established by the Board shall be final and binding on all parties. The Board's decision
shall be delivered in writing to the offender within ten days following the hearing, if not
delivered to the offender at the hearing.
14.4 Lien for Charges. Penalties. Etc. All charges, fines, expenses,penalties, interest
or other impositions under this Section shall be a lien against the Unit of the Owner or Occupant
against whom the same are imposed and the personal obligation of such Owner in the same
manner and with the same priority and effect as Assessments under Section 6. The lien shall
attach as of the date of imposition of the remedy, but shall not be final as to violations for which
a hearing is held until the Board makes a written decision at or following the hearing. All
remedies shall be cumulative,and the exercise of,or failure to exercise,any remedy shall not be
deemed a waiver of the Association's right to pursue any others.
14.5 Costs and Fees. With respect to any collection measures,or any other measure or
action, legal, administrative or otherwise,which the Association takes pursuant to the provisions
of the Act, Governing Documents or Rules and Regulations, whether or not finally determined
by a court or arbitrator, the Association may assess the Unit owned by the violator with any
expenses incurred in connection with such enforcement, including without limitation fines or
charges previously imposed by the Association,reasonable attorneys' fees and other professional
fees, costs and interest (at the highest rate allowed by law) on the delinquent amounts owed to
the Association. Such expenses shall also include any collection or contingency fees or costs
charged to the Association by a collection agency or other Person acting on behalf of the
Association in collecting,any delinquent amounts owed to the Association by an Owner or
Occupant. The foregoing fees and costs shall be the personal obligation of the Owner of the Unit
and shall be a lien against such Owner's Unit.
14.6 Liability for Acts of Owners and Occupants. An Owner shall be liable for the
expense of any maintenance, repair or replacement of the Property rendered necessary by such
Owner's acts or omissions, or by that of Occupants or guests in the Owner's Unit,to the extent
that such expense is not covered by the proceeds of insurance carried by the Association or such
Owner or Occupant. However, any insurance deductible amount and/or increase in insurance
MPLS-word 1292932 27
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rates, resulting from the Owner's acts or omissions may be assessed against the Owner
responsible for the condition and against his or her Unit.
14.7 Enforcement by Owners. The provisions of this Section shall not limit or impair
the independent rights of other Owners to enforce the provisions of the Governing Documents,
the Rules and Regulations,and the Act as provided therein.
SECTION 15
AMENDMENTS
15.1 Approval Requirements. Except for amendments by Declarant pursuant to
Section 17,this Declaration may be amended only by the approval of:
15.1.1 The Board
15.1.2 Owners of Units to which are allocated at least sixty-seven percent of the
total votes in the Association,except as otherwise provided by the Act.
15.1.3 The percentage of Eligible Mortgagees (based upon one vote per Unit
financed)as and if required by Section 16.
15.1.4 Declarant as to certain amendments as provided in Section 17.8.
15.1.5 The City as to Sections 7.14 and 9,1.2.
15.2 P, rogi . Approval of the Owners may be obtained in writing or at a meeting
of the Association duly held in accordance with the Bylaws. Consents of Eligible Mortgagees or
Declarant, if required, shall be in writing. Any amendment shall be subject to any greater
requirements imposed by the Act. The amendment shall be effective when recorded as provided
in the Act. An affidavit by the Secretary of the Association as to the outcome of the vote,or the
execution of the foregoing agreements or consents, shall be adequate evidence thereof for all
purposes,including without limitation,the recording of the amendment.
SECTION 16
RIGHTS OF ELIGIBLE MORTGAGEES
Notwithstanding anything to the contrary in the Governing Documents,but subject to the -
Act or other laws,Eligible Mortgagees shall have the following rights and protections:
16.1 Consent to Certain Amendments. Subject to Declarant's rights under Section 17,
the written consent of Eligible Mortgagees representing at least fifty-one percent of the Units that
are subject to first mortgages held by Eligible Mortgagees (based upon one vote per Unit
financed) shall be required for any amendment to the Governing Documents which causes any
change in provisions including the following; (i)voting rights; (ii)increases in Assessments
over twenty-five percent; (iii)Assessment liens, or priority of Assessment liens; (iv)reductions
in reserves for maintenance,repair and replacement of Common Elements; (v)responsibility for
MPLS-Word 1292932 28
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maintenance and repairs; (vi)reallocation of interests in the Common Elements or Limited
Common Elements, or rights to their use; (vii)redefinition of any Unit boundaries;
(viii)convertibility of Units into Common Elements or vice versa; (ix)expansion or contraction
of the Property or the addition, annexation or withdrawal of property to or from the Property; •
(x)hazard or fidelity insurance requirements; (xi)imposition of restrictions on the leasing of •
Units;(xii)imposition of any restrictions on an Owner's right to sell or transfer his or her Unit;
(xiii)a decision by the Association (if the common interest community involves fifty or more
Units) to establish self management when professional management is in effect as required
previously by the Governing Documents or an Eligible Mortgagee; (xiv)restoration or repair of
the Property (after a hazard damage or partial condemnation) in a manner other than that
specified in the Governing Documents; (xv)any action to terminate the legal status of the
common interest community after substantial destruction or condemnation occurs; or (xvi)any
provisions that expressly benefit Eligible Mortgagees,or insurers or guarantors of mortgages.
16.2 Consent to Certain Acions. Subject to Declarant's rights under Section 17, the
written consent of Eligible Mortgagees representing at least sixty-seven percent of the Units that
are subject to first mortgages held by Eligible Mortgagees (based upon one vote per Unit
financed) shall be required to (i)abandon or terminate the common interest community;
(ii)change the allocations of voting rights, Common Expense obligations or interests in the
Common Elements; (iii)partition or subdivide a Unit except as permitted by statute;
(iv) abandon, partition, subdivide, encumber or sell any Common Elements; or (v)use hazard
insurance proceeds for other than the repair, replacement or reconstruction of the Property,
except as otherwise provided by law.
16.3 Consent to Subdivision. Except as authorized by this Declaration,no Unit may be
partitioned or subdivided without the prior written approval of the Owner, the mortgagee of the
applicable Unit and the Association,
16.4 No Right of First Refusal. The right of an Owner to sell, transfer or otherwise
convey his or her Unit shall not be subject to any right of first refusal.or similar restrictions.
16.5 Priority of Lien. Any Person who comes into possession of a Unit by foreclosure
of the first mortgage on a Unit, or by deed or assignment in lieu of foreclosure of the first
mortgage on a Unit, takes the Unit free of any claims for unpaid Assessments or any other
charges or liens imposed against the Unit by the Association which have accrued against such
Unit prior to the acquisition of possession of the Unit by said
y Person; (i)except as provided in
Section 6.10 and the Act, and(ii)except that any unreimbursed Assessments or charges may be
reallocated among all Units in accordance with their interests in the Common Elements.
16.6 Priority of Taxes and Other Charges. All taxes, assessments and charges which
may become liens prior to the first mortgage under state law shall relate only to the individual
Units and not to the Property as a whole.
16.7 Priority for Condemnation Awards. No provision of the Governing Documents
shall give an Owner, or any other party, priority over any rights of the mortgagee t3' Y 8h gagee of the Unit
pursuant to its mortgage in the case of a distribution to such Owner of insurance proceeds or
condemnation awards for losses to or a taking of the Unit and/or the Common Elements. The
MPts-wad 1292932 29
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Association shall give written notice to all Eligible Mortgagees of any condemnation or eminent
domain proceeding affecting the Property promptly upon receipt of notice from the condemning
authority.
16.8 Requirements for Management Agreements. The term of any agreement for
professional management of the Property shall not exceed two years. Any such agreement shall
provide for termination without penalty or termination fee by either party as follows: (i)with
cause, upon a minimum of thirty days prior written notice, and (ii)without cause, upon ninety
days prior written notice.
16.9 Access to Books and Records/Audit. Eligible Mortgagees shall have the right to
examine the books and records of the Association upon reasonable notice and during normal
business hours, and to receive free of charge, upon written request,'copies of the Association's
annual reports and other financial statements. Financial statements, including those which are
audited, shall be available within one hundred twenty days after the end of the Association's
fiscal year. If the common interest community consists of fewer than fifty Units,FNMA,or any
institutional guarantor or insurer of a mortgage loan against a Unit, may require that, at its own
expense, an audit of the Association's financial statements be made for the preceding year, in
which case the Association shall cooperate in having an audit made and a copy given to the
requesting party. If the common interest community consists of fifty or more Units, the
Association shall provide the requested audit at its expense.
16.10 Notice Requirements. Eligible Mortgagees and, upon written request to the
Association, any institutional guarantor or insurer of a mortgage loan against a Unit shall be
entitled to timely written notice of:
16.10.1 a condemnation loss or any casualty loss which affects a material portion
of the Property or the Unit securing the mortgage;
16.10.2 a sixty day delinquency in the payment of Assessments or charges owed
by the Owner of a Unit on which it holds a mortgage;
16.10.3 a lapse, cancellation or material modification of any insurance policy
maintained by the Association;and
16.10.4 a proposed action which requires the consent of a specified percentage of
Eligible Mortgagees.
SECTION 17
DECLARANT RIGHTS
Declarant hereby reserves exclusive and unconditional authority to exercise the following
special declarant rights within the meaning of Section 515B.1-I03(32) of the Act, and other
development rights specified herein, for as long as it owns a Unit, or for such shorter period as
may be specifically indicated:
MPLS-Word 129293,2 30
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17.1 Complete Improvements. To complete all the Dwellings, Units and other
improvements indicated on the Plat, or otherwise included in Declarant's development plans or
authorized by the City or by this Declaration, and to make alterations in the Units owned by
Declarant and the Common Elements to accommodate the exercise of any declarant rights
reserved herein.
•
17.2 Add Additional Real Estate. To add Additional Real Estate to the Property as
described in Section 18.
17.3 Relocate Boundaries and Alter Units. To relocate boundaries between Units.and
to otherwise alter Units owned by it,to the extent permitted by the Act.
17.4 Sales Facilities. To construct, operate and maintain a sales office,.management
office, model Dwellings, and other development, sales and rental facilities within the Common
Elements, and within any Units owned or leased by Declarant from time to time located
anywhere on the Property or the Additional Real Estate.
17.5 Signs. To erect and maintain signs and other sales displays offering the Units for
sale or lease, in or on any Unit owned by Declarant and on the Common Elements or on the
Additional Real Estate.
17.6 Easements. To have and use easements, for itself, its employees, contractors,
representatives, agents, prospective purchasers or other invitees through and over the Common
Elements and the yard areas of the Units for the purpose of exercising its declarant rights
reserved herein.
17.7 Control of Association. To control the operation and administration of the
Association, including without limitation the power to appoint and remove the members of the
Board pursuant to Section 5158.3-103 of the Act,until the earliest of: (1)voluntary surrender of
control by Declarant; (ii)an Association meeting which shall be held within sixty days alter
conveyance to Owners other than Declarant of seventy-five percent of the total number of Units
authorized to be included in the Property;or(iii)the date five years following the date of the first
conveyance of a Unit to an Owner other than Declarant. Notwithstanding the foregoing, the
Owners other than Declarant shall have the right to nominate and elect not less than thirty-three
and one-third percent of the directors at a meeting of the Owners which shall be held within sixty
days following the conveyance by Declarant of fifty percent of the total number of Units
authorized to be included in the Property.
17.8 Consent to Certain Amendments. Until such time as Declarant no longer owns
any Unit for initial sale and no longer has the right to add Additional Real Estate to the Property,
Declarant's written consent shall be required for any amendment to the Governing Documents or
Rules and Regulations.
MPLS-Word 129293.2 31
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SECTION 18
RIGHTS TO ADD ADDITIONAL REAL ESTATE
Declarant hereby expressly reserves the exclusive right to add the.Additional Real Estate
to the Property, following its acquisition of title to the parcel being added, by unilaterally
executing and recording a Supplemental Declaration pursuant to Section 5158.2-111 of the Act, •
subject to the following conditions. No additional Units may be created by the subdivision or
conversion of Units pursuant to Section 515B.2-112 of the Act.
18.1 Time Limitations. The right of Declarant to add the Additional Real Estate to the
common interest community shall terminate ten years after the date of recording of this
Declaration or upon earlier express written withdrawal of such right by Declarant or a successor
Declarant, unless extended by a vote of the Owners pursuant to Section 5158.2-106(2) of the
Act. There are no other limitations on Declarant's rights hereunder, except as may be imposed
by law.
18.2 Sequence to Add. The Additional Real Estate is described in Exhibit C attached
hereto. The Additional Real Estate may be added to the Property in parcels consisting of one or
more platted or unplatted lots,or portions thereof,and in any sequence.
18.3 No Assurances of Addition. Declarant has no obligation to add the Additional
Real Estate to the Property. There are no assurances that any part of the Additional Real Estate
will be added to the Property, the order in which it will be added, the time it will be added, the
number of parcels per phase nor the size of the parcels. The Additional Real Estate may be
developed by Declarant or its successors in interest for other purposes, subject only to approval
by the appropriate governmental authorities.
18.4 Maximum Number of Units. The maximum number of Units that may be created
within the Additional Real Estate described as such on the date of this Declaration is thirty-six
(36). All Units created on the Additional Real Estate shall be restricted exclusively to residential
use.
18.5 Architectural Style and Compatibility. Any Units, Dwellings and other structures
created upon the Additional Real Estate shall be compatible with the other Units, Dwellings and
other structures which are part of the Property in terms of architectural style, quality of
construction, principal materials employed in construction and size; subject (i)to any changes
required by governmental authorities or lenders,and(ii)to any interior or exterior changes made
by Declarant to meet changes in the market.
18.6 Applicability of Covenants. All covenants and restrictions contained in this
Declaration affecting the use, occupancy and alienation of Units shall apply to all Units created
on the Additional Real Estate.
The statements made in this Section 18 shall not apply to any Additional Real Estate
which is not added to the Property.
MPLS-word 129293.2 32
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SECTION 19 •
MISCELLANEOUS
19.1 Severability. If any term,covenant,or provision of this.instrument or any exhibit
attached hereto is held to be invalid or unenforceable for any reason whatsoever, such
determination shall not be deemed to alter, affect or impair in any manner whatsoever any other
portion of this Declaration or exhibits attached hereto.
19.2 Construction. Where applicable, the masculine gender of any word used herein
shall mean the feminine or neutral gender, or vice versa, and the singular of any word used
herein shall mean the plural,or vice versa. References to the Act,or any section thereof;shall be
deemed to include any statutes amending or replacing the Act, and the comparable sections
thereof. Any amendment to the Act shall retroadtively apply to the Association and the Property,
except as expressly prohibited or qualified by the Governing Documents.
19.3 Tender of CIaims. In the event that any incident occurs which could reasonably
give rise to a demand by the Association against Declarant for indemnification pursuant to the
Act,the Association shall promptly tender the defense of the action to its insurance carrier, and
give Declarant (i)written notice of such tender; (ii)written notice of the specific nature of the
action;and(iii)an opportunity to defend against the action.
19.4 Notices. Unless specifically provided otherwise in the Governing Documents or
the Act, all notices required to be given by or to the Association, the Board, the Association
officers, or the Owners or Occupants shall be in writing and shall be effective upon hand
delivery, or mailing if properly addressed with postage prepaid and deposited in the United
States mail; except that registrations pursuant to Section 2.2 of the Bylaws shall be effective
upon receipt by the Association.
19.5 Conflicts Among Documents. In the event of any conflict between the provisions
of this Declaration,the Bylaws and the Rules and Regulations,the Declaration shall control. The
Bylaws shall control as against the Rules and Regulations.
19.6 Duration of Covenants. The covenants, conditions, restrictions, easements, liens
and charges contained in this Declaration shall be perpetual, subject only to termination as
provided in this Declaration and the Act.
MPLS-word 129293.2 33
• 4 .
IN WITNESS WHEREOF, the undersigned has executed this instrument the day and •
year first set forth above.
PINE GROVE DEVELOPMENT, LC
By: ice% .4d 4r.d •
Title: �w,J
STATE OF MINNESOTA ) vv
) ss.
COUNTY OF 14101143413h )
The foregoing instrument was acknowledged before me this I day of De c e.M.�;
Zoole , by C.or+. J• A r iLiLl , the Vk a.rt.u.
of Pine Grove Development, LLC, a Minnesota limited liability co parry, on beMif of said
entity.
Notary Pu i
THIS INSTRUMENT WAS DRAFTED BY:
J.Patrick Brinkman Esq.
FELHABER,LARSON,FENLON&VOOT,P.A.
Attorneys at Law
220 South Sixth Street,Suite 2200 AMY LOUISE JACO$$ON
Minneapolis,Minnesota 55402 } "'>
(6 i 2)373 4420 „ ' Notary PublioStete of Minnesota
My commission Expires
".t�, �� . January 31,2010
MPLS-Word 129293.2 34
a
• w .
COMMON INTEREST COMMUNITY NO.321
PINE GROVE GARDENS
EXHIBIT A TO DECLARATION
LEGAL DESCRIPTION OF PROPERTY
•
Lots 1 through 3 inclusive, Block 4; Lots 1 through 7 inclusive, Block 5; and Outlot A; Pine
Grove Gardens, Washington County,Minnesota.
NOTE: ALL OF THE ABOVE DESCRIBED LOTS, EXCEPT OUTLOT A, CONSTITUTE
UNITS.
MPLS-word 129293.2
• ' 4 •
COMMON INTEREST COMMUNITY NO.321
PINE GROVE GARDENS
EXHIBIT B TO DECLARATION
LEGAL DESCRIPTION OF COMMON ELEMENTS
Oudot A, Pine Grove Gardens,Washington County,Minnesota.
MPLS-Wad 129293.2
$ • •
f 1. JI •
COMMON INTEREST COMMUNITY NO.321
PINE GROVE GARDENS
EXHIBIT C TO DECLARATION
DESCRIPTION OF ADDITIONAL REAL ESTATE
Lots 1 through 7 inclusive, Block 1; Lots 1 through 3 inclusive, Block 2; Lots 1 through 6
inclusive, Block 3 and Lot 1, Block 6, Pine Grove Gardens, Washington County, Minnesota.
•
MPLS-Wad 129293.2
•
.0 4101
COMMON INTEREST COMMUNITY NO.321
PINE GROVE GARDENS
CONSENT AND JOINDER BY MORTGAGEE
The undersigned (the"Mortgagee')is a mortgagee of portions of real property described
in the Declaration of Pine Grove Gardens (the "Declaration"). The Mortgagee hereby consents •
to and joins in this Declaration; provided,that by consenting to and joining in this Declaration,
(i)the Mortgagee does not in any manner constitute itself or obligate itself as a Declarant as
defined in the Declaration, and (ii)such mortgage shall remain as a lien on the property
described therein, prior to any Assessment liens or other liens imposed under the Declaration,
until released or satisfied.
IN WITNES Mortgagee has caused this Consent and Joinder to be
executed on thee day of riri&s.R4,1 ,pZCbfo .
rerdite£t4 a Uu/e Sri 62 o :►.,
By:
Its:
STATE OF MINNESOTA )
) ss.
COUNTY OF )
PeX) The fore oin ins' worsts acknowledged before me this d'+✓ day of 024l tvt 10 x"
( ,by —...1 , t o -te_ .s r e t. c e — Aes.`�a
of 77 e r M e ,a /hole,SAM Cow fa14s•..,on
behalf of said entity.
N -. Public
THIS INSTRUMENT WAS DRAFTED BY:
J.Patrick Brinkman Esq.
FELHABER,LARSON,FENLON&VOOT,P.A.
Attorneys at Law
220 South Sixth Street,Suite 2200 Uaa M.G3ttittdl
Minneapolis,Minnesota 55402 NOTARY PUBLIC
(612)373-8420 Minnesota
My Commission Expires 01/314011
MPLS-Word 129293.2