Declaration of Covenants Conditions and RestrictionsDECLARATION OF
COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR
THE BLUFFS AT LAKE LUCY
THIS PECLARATION is made in the County of Hennepin, State of Minnesota, on this
day of p r, 2020, by Chan Three Development, Inc., a Minnesota corporation
(the "Declarant"), for the purposes of creating The Bluffs at Lake Lucy, a planned community.
WHEREAS, Declarant is the owner of certain real property located in Carver County,
Minnesota, legally described on Exhibit "A", attached hereto (the "Property"), and
WHEREAS, Declarant desires to establish on the Property 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 structural
quality, and the original architectural and aesthetic character of the Property, and
WHEREAS, The Bluffs at Lake Lucy is not subject to the Common Interest Ownership
Act ("MCIOA"), Chapter 515B of the Minnesota Statutes. The Bluffs at Lake Lucy is exempt
from MCIOA pursuant to Minn. Stat. §515B.1 -102(e)(2), because the units consist solely of
separate parcels of real estate designed or utilized for detached single family dwellings, and the
Association has no obligation to maintain any building containing a dwelling or any agricultural
building, and the Declarant has not elected to subject the Property to MCIOA.
WHEREAS, the Property is not subject to an ordinance referred to in Section 515B.1-106
of MCIOA, governing conversions of common interest ownership, and
WHEREAS, the Property is not subject to a Master Association as defined in MCIOA.
WHEREAS, the Property does include Shoreland, as that term is defined in Minn. Stat.
§ 103F.205.
THEREFORE, Declarant hereby declares that this Declaration shall constitute covenants
to run with the Property described herein, and that the Property shall be owned, used, occupied
and conveyed subject to the covenants, restrictions, easements, charges and liens set forth herein,
which are for the purpose of protecting the value and desirability of and shall run with the Property,
and shall be binding upon all persons owning or acquiring any right, title or interest in the Property,
and their heirs, personal representatives, successors and assigns, and shall inure to the benefit of
each owner thereof.
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SECTION 1
DEFINITIONS
The following words when used in the Governing Documents and Rules and Regulations
shall have the following meanings (unless the context indicates otherwise):
1.1 "Articles of Incorporation" shall mean and refer to the Articles of Incorporation for
The Bluffs at Lake Lucy Homeowners' Association, a Minnesota nonprofit
corporation under Chapter 317A of the laws of the State of Minnesota, and filed with
the Minnesota Secretary of State, and which govern the operation of the Association,
defined below.
1.2 "Assessment" shall mean and refer to any assessment for Common Expenses,
determined by the Board, and levied by the Association, pursuant to the Governing
Documents.
1.3 "Association" shall mean The Bluffs at Lake Lucy Homeowners' Association, a
nonprofit corporation which has been created pursuant to Chapter 317A of the laws
of the State of Minnesota.
1.4 "Board" shall mean the Board of Directors of the Association as provided for in
the Bylaws.
1.5 "Bylaws" shall mean the Bylaws governing the operation of the Association, as
amended from time to time.
1.6 "C� shall mean the City of Chanhassen, a Minnesota municipal corporation.
1.7 "Common Elements" shall mean property owned by the Association for the
common benefit of the Owners and Occupants. The Common Elements are further
described in Section 3. 1, below.
1.8 "Common Expense" shall mean and include all expenditures made or liabilities
incurred by or on behalf of the Association and incident to its operation, including
without limitation allocations to reserves and those items specifically identified as
Common Expenses in the Declaration or Bylaws.
1.9 "Declarant Control Period" shall mean the period commencing on the date of
filing of this Declaration and continuing until the earlier of. 1) the date Declarant no
longer owns any Unit; or 2) the date Declarant voluntarily turns over control of the
Association to the Owners. Notwithstanding the termination of the Declarant
Control Period, Declarant shall retain certain architectural control rights, as
specifically set forth below.
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1.10 "Dwelling" shall mean a building 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 within the boundaries of the Unit
in which the Dwelling is located.
1.11 "Eligible Mortgagee" shall mean 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.
1.12 "Governing Documents" shall mean 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.
1.13 "Homebuilder" shall mean and refer to a builder in the business of constructing
residential properties, and who has purchased one or more Units for purposes of
construction of a Dwelling thereon and resale of the Unit containing a completed
Dwelling, and not for personal use by the builder.
1.14 "Improvement" shall mean and refer to all structures or improvements of any kind
located on the Property, on or under any lake, pond or wetland bordering the
property, including without limitation any building, wall, fence, sign, swimming
pool, spa, patio, tennis court, dock, gazebo, trail, fountain(s), screen enclosure or
screening, utilities system, communications system, security system, driveway,
roadway decorative structure, planting, landscape, grading or any other type of
structure or physical improvement whether the purpose is decorative or otherwise
and any additions or changes thereto.
1.15 "Limited Assessment" shall mean and refer to an assessment levied by the
Association against fewer than all of the Units in the Association pursuant to
Section 6.1, below.
1.16 "Limited Common Elements" Limited Common Elements include: 1) portions of
the Common Elements that are designated for the exclusive use of the Unit Owners
of the Unit or Units to which the Limited Common Elements are allocated, and 2)
fixtures or Improvements located wholly or partially outside the Unit's boundaries,
that serve one or more but fewer than all of the Units, and shall be allocated solely
to the Unit or Units served. Limited Common Elements are subject to the rights
granted to the Association herein or in a separate recorded easement, including the
Association's right to improve, inspect, use, repair, replace, maintain and regulate.
The Limited Common Elements are further described in Section 3.2, below.
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1.17 "Member" shall mean 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.
1.18 "Occupant" shall mean any person or persons, other than an Owner, in possession
of or residing in a Unit.
1.19 "Owner" shall mean and refer to the record owner, whether one or more persons
or entities, of the fee simple title to any Unit except that if (i) a Unit is being sold
in a contract for deed, (ii) the contract vendee is in possession of the Unit and (iii)
the contract so provides, then the vendee and not the vendor shall be deemed the
"Owner".
1.20 "Person" shall mean a natural individual, corporation, limited liability company,
partnership, trustee, other or legal entity capable of holding title to real property.
1.21 "Plat" shall mean the plat of The Bluffs at Lake Lucy, recorded in the offices of
the County Recorder or Registrar of Titles, Carver County, Minnesota, and any
amendments or supplements thereto, and replats thereof.
1.22 "Property" shall mean all of the real property submitted to this Declaration,
including the Dwellings and all other structures and Improvements located thereon
now or in the future. The Property as of the date of this Declaration is legally
described on Exhibit A, attached hereto.
1.23 "Retaining Wall" shall mean and refer to any retaining wall installed by Declarant
on the Property or within an encroachment agreement running in favor of the
Association, in the locations depicted on Exhibit B, attached hereto.
1.24 "Rules and Regulations" shall mean the Rules and Regulations of the Association
as approved from time to time pursuant to Section 5.6.
1.25 "Special Assessment" shall mean and refer to an assessment levied against the
Units in accordance with Section 6.3 of this Declaration.
1.26 "Special Declarant Rights" means rights reserved in the Declaration for the
benefit of a Declarant to: (i) complete improvements indicated on the Plat;
(ii) subdivide Units or convert Units into Common Elements, Limited Common
Elements and/or Units; (iii) maintain sales offices, management offices, signs
advertising the Property, and model homes; (iv) use easements through the
Common Elements for the purpose of making improvements within the Property or
any additional real estate; (v) merge or consolidate a planned community with
another planned community of the same form of ownership; or (vi) appoint or
remove any officer or director of the Association and any member of the
Architectural Control Committee, where applicable, for as long as Declarant or a
Homebuilder owns a Unit.
1.27 "Stormwater Reuse System" shall mean and refer to an irrigation system owned
and maintained by the Association, and located within a separately recorded
encroachment agreement between the City and Declarant, over a portion of Outlot
A, Outlot B and within the boulevard areas of Della Drive, as legally described
therein, which may include, but is not limited to, pumps, filtrations systems,
pretreatment filters, water intake system, interior treatment skid components, flow
meter, electrical power, irrigation lines and sprinkler heads. Maintenance of the
Stormwater Reuse System shall be the responsibility of the Association, as
provided in Section 9, below.
1.28 "Unit" shall mean any platted lot subject to this Declaration upon which a Dwelling
is located or intended to be located, as shown on the Plat, including all
improvements thereon, but excluding the Common Elements.
SECTION 2
DESCRIPTION OF UNITS AND APPURTENANCES
2.1 Units. There are thirty-one (3 1) Units, all of which are restricted exclusively to
residential use. Each Unit is comprised of a separate parcel of real estate. No
additional Units may be created by the subdivision or conversion of Units, except
as allowed in Section 15, below. The Unit identifiers and locations of the Units are
as shown on the Plat, which is incorporated herein by reference, and a schedule of
Units is set forth on Exhibit A. The Unit identifier for a Unit shall be 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.
2.3 Use and Enjoyment Easements. Each Unit shall be the beneficiary of appurtenant
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 Declaration.
2.4 Utility and Maintenance Easements. Each Unit shall be subject to and shall be
the beneficiary of appurtenant easements for all services and utilities servicing the
Units and the Common Elements, and for maintenance, repair and replacement as
described in Section 12.
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2.5 Declarant's Easements. Declarant shall have and be the beneficiary of easements
for construction and sales activities as described in Section 14.
2.6 Recorded Easements. The Property shall be subject to such other easements as
may be recorded against it or otherwise shown on the Plat.
2.7 Easements are Appurtenant. All easements and similar rights burdening or
benefitting a Unit, or any other part of the Property shall be appurtenant thereto,
and shall be permanent, subject only to termination in accordance with the terms of
the easement. Any recorded easement benefitting or burdening the Property shall
be construed in a manner consistent with, and not in conflict with, the easements
created by this Declaration.
2.8 Impairment Prohibited. No person shall materially restrict or impair any
easement benefitting or burdening the Property; subject to the Declaration and the
right of the Association to impose reasonable Rules and Regulations governing the
use of the Property.
2.9 Benefit of Easements. All easements benefitting 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 easement rights in the
Property during such delegated occupancy, except as a guest of an Owner or
Occupant or in connection with the inspection of the Unit or recovery of possession
of the Unit from the Occupant pursuant to law.
SECTION 3
COMMON ELEMENTS AND LIMITED COMMON ELEMENTS
3.1 Common Elements. The Common Elements and their characteristics are as
follows:
a. The Common Elements shall be owned by the Association for the common
benefit of the Owners and Occupants. The Common Elements include
Improvements and Fixtures installed by Declarant and located within one
or more easements running in favor of the Association, including, without
limitation, any entrance monuments, lighting, landscaping, the Stormwater
Reuse System, Retaining Walls, and fencing.
b. The Common Elements shall be subject to appurtenant easements for
services, public and private utilities and storm sewer, access, use and
enjoyment in favor of each Unit and its Owners and Occupants; subject to
(i) the right of Owners and Occupants in Limited Common Elements
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appurtenant to their Units and (ii) the right of the Association to establish
reasonable Rules and Regulations governing the use of the Property.
C. Subject to Sections 5, 6 and 9, all maintenance, repair, replacement,
management and operation of the Common Elements shall be the
responsibility of the Association.
d. Common Expenses for the maintenance, repair, replacement, management
and operation of the Common Elements shall be assessed and collected from
the Owners in accordance with Section 6.
3.2 Limited Common Elements. The Limited Common Elements include: 1)
portions of the Common Elements that are designated for the exclusive use of the
Unit Owners of the Unit or Units to which the Limited Common Elements are
allocated, 2) fixtures or Improvements located wholly or partially outside a Unit's
boundaries, that serve one or more but fewer than all of the Units, and which are
allocated solely to the Unit or Units served. Limited Common Elements are
subject to the rights granted to the Association herein or in a separate recorded
easement, including the Association's right to construct, reconstruct, inspect, use,
improve, repair, replace, maintain and regulate. Any Improvement installed by
the Declarant within an easement benefitting the Association and burdening a
Unit, shall be considered a Limited Common Element, allocated to the Unit
burdened by the easement, but subject to the rights and duties of the Association
granted herein and in any such recorded easement.
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 of the Association by virtue of Unit
ownership, 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 of the Association, but multiple ownership of a
Unit shall not increase the voting rights allocated to such Unit nor authorize the
division of the voting rights.
4.2 Voting and Common Expenses. Voting rights and Common Expense obligations
are allocated equally among the Units; except that special allocations of Common
Expenses shall be permitted as provided in Section 6.1.
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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, obligations and interests, and the title to the Units, shall not be separated or
conveyed separately. The allocation of the rights, obligations and interests
described in this Section may not be changed, except in accordance with the
Governing Documents.
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; provided, that 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.
4.5 Declarant Control. Notwithstanding the vote of any Unit Owner to the contrary,
the Declarant hereby reserves a period of Declarant control of the Association
(hereafter, "Declarant Control Period") during which the Declarant, or persons
designated by the Declarant, may appoint and remove the officers and directors of
the Association. Said reservation of Declarant control is subject to the following:
a. The Declarant Control Period shall extend from the date of the filing of this
Declaration until the earliest of: 1) the date that neither Declarant nor a
Homebuilder has ownership of any Unit; or 2) the date Declarant voluntarily
turns over control of the Association to the Owners.
b. Within thirty (60) days of termination of the Declarant Control Period, the
Unit Owners shall hold a meeting for the purpose of electing a Board of
Directors of at least three (3) members, a majority of whom shall be Owners,
or a duly authorized representative of the Owner if the Owner is a
corporation, partnership, limited liability company, trust or other entity
which has the capacity to hold title to real estate. The number of Directors
may thereafter be changed by a vote of the Owners for a future year or years.
No two directors may be Owners of the same Unit. All Unit Owners,
including the Declarant and its affiliates, may cast the votes allocated to any
Unit owned by them. The Board shall elect the officers. The directors and
officers shall take office upon election.
C. Except as otherwise provided in this subsection, meetings of the Board of
Directors must be open to all Unit Owners. To the extent practicable, the
Board shall give reasonable notice to the Unit Owners of the date, time and
place of a Board meeting. If the date, time and place of meetings are
provided for in this Declaration, the Articles of Incorporation or Bylaws of
the Association, were announced at a previous meeting of the Board, posted
M.
in a location accessible to the Unit Owners and designated by the Board
from time to time, or if an emergency requires immediate consideration of
a matter by the Board, notice is not required. "Notice" has the meaning
given in Minnesota Statutes Section 317A.011, subdivision 14. Meetings
may be closed to discuss the following:
(1) personnel matters;
(2) pending or potential litigation, arbitration or other potentially
adversarial proceedings, between Unit Owners, between the Board
or Association and Unit Owners, or other matters in which any Unit
Owner may have an adversarial interest, if the Board determines that
closing the meeting is necessary to discuss strategy or to otherwise
protect the position of the Board of the Association or the privacy of
a Unit Owner or occupant of a Unit; or
(3) criminal activity arising within the Property if the Board determines
that closing the meeting is necessary to protect the privacy of the
victim or that opening the meeting would jeopardize the
investigation of the activity.
Nothing in this subsection imposes a duty upon the Board to provide special
facilities for meetings. The failure to give notice as required by this subsection
shall not invalidate the Board meeting or any action taken at the meeting.
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 General. The operation and administration of the Association and the Property
shall be governed by the Governing Documents and the Rules and Regulations.
The Association shall, subject to the rights of the Owners set forth in the Governing
Documents, be responsible for the operation, management and control of the
Property. The Association shall have all powers described in the Governing
Documents, and the statute under which it 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. All
references to the Association shall mean the Association acting through the Board
unless specifically state to the contrary.
5.2 Operational Purposes. The Association shall operate and manage the Property
for the purposes of (i) administering and enforcing the covenants, restrictions,
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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 for which it is responsible and (iii) preserving the value and architectural
uniformity and 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 shall be binding upon all Owners and Occupants, and their
lessees, guests, heirs, personal representatives, successors and assigns, and all
secured parties.
5.4 Bylaws. The Association shall have Bylaws. The Bylaws and any amendments
thereto shall govern the operation and administration of the Association.
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; provided, however, that such delegation shall not relieve
the officers and directors of the ultimate responsibility for the performance of their
duties as described 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. 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.
SEC'T'ION 6
ASSESSMENTS FOR COMMON EXPENSES
6.1 General. Assessments for Common Expenses shall be determined and assessed
against the Units by the Board, in its discretion; subject to the limitations set forth
in Sections 6.2 and 6.3, and the requirements of the Bylaws. Assessments for
Common Expenses shall include annual assessments and may include special
assessments. Assessments shall be allocated among the Units according to the
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Common Expense allocations set forth in Section 4.2, subject to the following
qualifications:
a. Any Common Expense associated with the maintenance, repair, or
replacement of a Limited Common Element undertaken by the Association
may be assessed exclusively against the Unit or Units to which that Limited
Common Element is assigned, on the basis of (i) equality, or (ii) the actual
cost incurred with respect to each Unit. Such assessment may sometimes
be referred to as a "Limited Assessment".
b. Any Common Expense or portion thereof benefitting fewer than all of the
Units may be assessed exclusively against the Unit or Units benefited, on
the basis of (i) equality, or (ii) the actual cost incurred with respect to each
Unit.
C. The costs of insurance obtained by the Association, if any, may be assessed
in proportion to value, risk or coverage, and the costs of utilities may be
assessed in proportion to usage.
d. Reasonable attorneys' fees and other costs incurred by the Association in
connection with (i) the collection of assessments and (ii) the enforcement
of the Governing Documents, or the Rules and Regulations, against an
Owner or Occupant or their guests, may be assessed against the Owner's
Unit, whether or not an enforcement action is commenced or filed, and
whether or not a court or arbitrator ultimately issues an order or ruling in
favor of the Association.
e. Fees, charges, late charges, fines and interest may be assessed for failure to
pay assessments when due, as determined by the Board of Directors.
f. If any damage to the Common Elements or another Unit is caused by the
act or omission of any 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.
g. If any installment of an assessment becomes more than thirty (30) days past
due, then the Association may, upon ten (10) days written notice to the
Owner, declare the entire amount of the assessment immediately due and
payable in full.
h. If Common Expense liabilities are reallocated for any purpose, Common
Expense assessments and any installment thereof not yet due shall be
recalculated in accordance with the reallocated Common Expense
liabilities.
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i. Assessments under Subsections 6.1 a. -g. shall not be considered special
assessments as described in Section 6.3.
6.2 Annual Assessments. Annual assessments shall be established and levied by the
Board. Each annual assessment shall cover all of the anticipated Common
Expenses of the Association for that year. Annual assessments shall provide,
among other things, for contributions to a separate reserve fund sufficient to cover
the periodic cost of maintenance, repair and replacement of the Common Elements.
The entire Annual Assessment shall be due and payable in full at the time it is
levied, but, in the discretion of the Board, may be paid in monthly, quarterly, or
semi-annual installments, or as otherwise determined by the Board.
a. Until the first Unit is sold to an Owner other than a Homebuilder, Declarant
shall pay all accrued expenses of the Association.
b. After the first Unit is sold to an Owner other than a Homebuilder, whether
or not a Common Expense assessment has been levied, the Declarant may
expend funds for the benefit of the Association or make advances to the
Association, to pay the Common Expenses of the Association in excess of
the amount of assessments collected by the Association from the Owners.
Any such expenditures or advances shall be considered a loan to the
Association.
C. After a Common Expense assessment is levied, the annual assessment may
be subsequently increased by the Board, subject to the following restriction.
Until such time as neither the Declarant nor a Homebuilder has ownership
of any Unit, and Declarant no longer has the right to add additional property,
the annual assessment established by the Board for any given year may not
be increased by more than five percent (5.0%) of the annual assessment
applicable to the prior year, without written approval of Declarant.
6.3 Special Assessments. In addition to annual assessments, the Board may levy in
any assessment year a special assessment against all Units for the purpose of
defraying in whole or in part (i) the cost of any unforeseen or unbudgeted Common
Expense, (ii) general or specific reserves for maintenance, repair or replacement,
and (iii) the maintenance, repair or replacement of any part of the Property, and any
textures or other property related thereto.
6.4 Liability of Owners for Assessments. The obligation of an Owner to pay
assessments shall commence at the later of (i) the time at which the Owner acquires
title to the Unit, or (ii) the due date of the first Assessment levied by the Board;
with the following exceptions:
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a. Neither Declarant nor any unsold Unit owned by Declarant shall be liable
for any Assessment allocated to such Unit, nor subject to any Assessment
lien levied on such Unit, as long as there is no one residing in a Dwelling
located on such Unit.
b. Neither any Homebuilder, nor any unsold Unit owned by a Homebuilder
shall be liable for any Assessment allocated to such Unit, nor subject to any
Assessment lien levied on such Unit until the earliest of the following: a.)
one (1) year after the date of closing on the sale and purchase of the Unit
from the Declarant to the Homebuilder, or b.) the date a person begins to
reside in the Dwelling.
C. An Owner who purchases a Unit from Homebuilder shall not be liable for
any Assessment allocated to such Unit, nor subject to any Assessment
levied on such Unit until the earliest of the following: a.) one (1) year after
the date of closing on the sale and purchase of the Unit from the Declarant
to the Homebuilder, or b.) the date the Owner obtains a Certificate of
Occupancy from the City.
Subject to the foregoing exemption, the Owner 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. The liability is absolute and unconditional.
No Owner is exempt from liability for payment of his or her share of Common
Expenses 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 Documents.
The Association may invoke the charges, sanctions and remedies set forth in
Section 13, in addition to any remedies provided elsewhere in the Governing
Documents, the Rules and Regulations or by law, for the purpose of enforcing its
rights hereunder.
6.5 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 are liens, and are enforceable as
assessments, under this Section. Recording of the Declaration constitutes record
notice and perfection of any lien under this Section, and no further recordation of
any notice of or claim for the lien is required.
6.6 Foreclosure of Liens; Remedies. A lien for Common Expenses may be foreclosed
against a Unit under the laws of the State of Minnesota (i) by action, or (ii) by
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advertisement as a lien under 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, 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.
6.7 Lien Priority; Foreclosure. A lien under this Section is prior to all other liens and
encumbrances on a Unit except (i) liens and encumbrances recorded before the
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 a first mortgage on a Unit is foreclosed, and the first mortgage was
recorded on or after the date hereof, and no Owner redeems during the Owner's
period of redemption provided by Chapters 580, 581, or 582, then the holder of the
sheriff's certificate of sale from the foreclosure of the first mortgage or any person
who acquires the title to the Unit by redemption as a junior creditor shall take title
to the Unit subject to a lien in favor of the Association for the unpaid assessments
for Common Expenses levied and which became due, without acceleration, during
the six months immediately preceding the first day following the end of the
Owner's period of redemption.
6.8 Voluntary conveyance; 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 satisfied.
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.
6.9 Working Capital Fund. There shall be established a working capital fund to meet
unforeseen expenditures, to purchase additional equipment or services of the
Association, and/or to cover the administrative costs associated with the transfer of
ownership of a Unit. At the time of sale of any improved Unit, whether initial sale
or resale, the Purchaser shall pay a Working Capital Fund Contribution to the
Association in the amount of $300.00 for each Unit being conveyed.
Notwithstanding the foregoing, the requirement to contribute to the Working
Capital Fund shall not apply to the following: i) any sale of an unimproved Unit;
and ii) any sale to a Homebuilder, unless the Homebuilder is purchasing the Unit
for personal, rental and/or residential use, and not for construction and resale. If
anyone resides in the Dwelling on a Unit during a period of Homebuilder
14
ownership, it will be presumed that the Homebuilder's intent was for residential
use, and the Homebuilder shall be required to contribute to the Working Capital
Fund, as provided herein. The amounts paid into this fund are in addition to the
regular monthly installments of assessments, and should not be considered an
advance payment of regular assessment installments. The funds shall be deposited
into the Association's account and may be used to pay or defray the expenses of the
Association in connection with any Unit transfer, any other operating expense of
the Association, or as a contribution to the Association's reserves.
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 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 and Rules and Regulations, as
amended from time to time. All covenants, restrictions and obligations set forth in
the Governing Documents and Rules and Regulations 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 Subdivision Prohibited. Unless otherwise provided herein, no Unit or 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, vacation rental, commercial, business or other non-residential
purposes, except as specifically permitted 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 180 days, or any occupancy which includes services customarily furnished to
hotel guests, shall be presumed to be for transient, hotel or vacation rental purposes.
7.4 Business Use Restricted. 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; except (i) an Owner or Occupant residing in a Unit may keep
and maintain his or her business or professional records in such Unit and handle
matters relating to such business by correspondence, telephone, facsimile,
computer or other electronic means, provided that such uses are incidental to the
residential use, do not involve physical alteration of the Unit and do not involve
15
any observable business activity such as signs, advertising displays, bulk mailings,
deliveries, or visitation or use of the Unit by customers or employees and (ii) the
Association may maintain offices on the Property for management and related
purposes.
7.5 Leasing. Leasing of the Units shall be allowed, subject to reasonable regulation by
the Board, and subject to the following conditions: (i) that no Unit shall be leased
for transient, hotel or vacation rental purposes, and shall include a minimum lease
period of at least six (6) consecutive months; (ii) that no Unit may be subleased
without written consent of the Association; (iii) that all leases shall be in writing;
(iv) that all leases shall provide that they are subordinate and subject to the
provisions of the Governing Documents and the Rules and Regulations, and that
any failure of the lessee to comply with the terms of such documents shall be a
default under the lease; (v) that Owner has obtained a Rental Dwelling License
from the City, if applicable; and (vi) that no more than 20% of the total units are
leased at any given time. The Association may impose such reasonable Rules and
Regulations as may be necessary to implement procedures for the leasing of Units,
consistent with this Section.
7.6 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 in writing by the Association. Vehicles
that have been modified for commercial advertising purposes may not be parked on
the Property, nor upon any public streets within the Property. Vehicles that are too
large to fit inside a garage located on the Property may not be parked on the
Property or on any Unit. No trailer, boat, truck, recreational vehicle, inoperable
motor vehicle, or other motorized or non -motorized equipment may be parked
anywhere on a Unit at any time, nor upon any public streets within the Property,
and if maintained on the Property, must be stored inside a Unit's garage. No more
than a total of two (2) operable automobiles or pick-up trucks may be parked
overnight in a driveway on the Property for more than four consecutive nights. The
use of garages, driveways and other parking areas on the Property, and the types of
vehicles and personal property permitted thereon, shall be subject to further
regulation by the Association, including, without limitation, the right of the
Association to tow illegally parked vehicles or to remove unauthorized personal
property. Notwithstanding the foregoing, a moving van or trailer, or a motor home,
boat, or personal recreational vehicle, may be parked or kept overnight upon a
Unit's hard -surfaced driveway up to four times per month (but not on successive
nights) for the exclusive purpose to either facilitate an Owner or Occupant's move,
or the Owner or Occupant's preparations for a personal vacation or recreational
activity/trip. All units shall be constructed with a minimum of a two -car garage.
7.7 Animals. No animal may be bred, kept or maintained for business or commercial
purposes anywhere on the Property. The Board shall have the exclusive authority
16
to prohibit, or to allow and regulate, by Rules and Regulations, the keeping of
animals on the Property for personal use. The Association shall have the authority
to remove dangerous animals from the Property. Full or partial pit bull dogs are
strictly prohibited. No backyard dog houses, dog runs or other enclosure for
housing animals exterior to the home shall be permitted on the Property. "Invisible"
electronic fencing shall be permitted only in the portion of the Unit located in back
of the Dwelling. The word "animal" shall be construed in its broadest sense and
shall include all living creatures except humans.
7.8 Quiet Enioyment, Interference Prohibited. All Owners and Occupants and their
guests shall have a right of quiet enjoyment in their respective Units, and shall use
the Property in such a manner as will not cause a nuisance, nor unduly restrict,
interfere with or impede the use of the Property by other Owners and Occupants
and their guests.
7.9 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.
7.10 Alterations. Except for those made by Declarant, or a Homebuilder assigned such
exemption by Declarant, no alterations, changes, improvements, repairs or
replacements of any type, temporary or permanent, structural, aesthetic or
otherwise (collectively referred to as "Alterations") shall be made, or caused or
allowed to be made, by an Owner or Occupant, or their guests, in any part of the
Common Elements, or to any fixture or improvement that the Association is
required to maintain as provided in Section 9, or in any part of the Unit which
affects the Common Elements or which is visible from the exterior of the Unit,
including, without limitation, landscaping, fencing and retaining walls, without the
prior written authorization of the Board, or a committee appointed by it, as provided
in Section 8. The Board, or the appointed committee if so authorized by the Board,
shall have authority to establish reasonable criteria and requirements for alterations,
and shall be the sole judge of whether the criteria are satisfied. Any Alterations
must be in compliance with City and State regulations and any required permits
must be obtained.
7.11 Time Shares Prohibited. The time share form of ownership, or any comparable
form of lease, occupancy rights or ownership which has the effect of dividing the
ownership or occupancy of a Unit into separate time periods, is prohibited.
7.12 Structures, landscaping changes and Improvements outside of the Dwelling:
Generally, structures, landscaping changes and other Improvements shall be
17
permitted, subject to: 1) Architectural approval set forth in Article 8, below; 2)
compliance with all other covenants and restrictions contained herein; 3) the
restrictions set forth in the Rules and Regulations, as may be amended by the Board
from time to time; and 4) the following specific restrictions:
a. Fences:
i. Front Yards. No fences of any kind (including "invisible" pet fences) shall
be permitted between the front elevation of the Dwelling and the street (the
"Front Yard").
ii. Side Yards. Fencing in the side yard may be prohibited, or may be
permitted subject to restrictions based on the sole discretion of the ACC.
iii. Back Yards. Invisible fencing is permitted on the portion of a Unit in back
of the rear elevation of the Dwelling (the "Back Yard"). Other fencing shall
be permitted in Back Yards, subject to the following restrictions, and any
additional restrictions imposed by the ACC: The fencing material shall be
steel, iron or aluminum, and shall be uniformly black in color. The fencing
shall be of a see-through, 3 rail, wrought iron or metal picket style. The
maximum height of any fencing, except for decorative post finials, shall be
forty-eight inches (48"), except that fencing surrounding an in -ground pool
may be a maximum height of sixty inches (60"). Fences surrounding an in -
ground pool can have a maximum height of greater than sixty inches (60")
only in the event that municipal code requires a greater height than 60". It
is the intent that back -yard areas shall not, for aesthetic reasons, be blocked
from view by "privacy" fencing of any kind. All fencing shall also be
placed and maintained in accordance with all applicable laws and
ordinances.
iv. Fencing installed by Declarant. Notwithstanding the above, Declarant
reserves the right to install fences: i.) within any easement running in favor
of the Association that permits such fencing; ii) on any Unit, prior to initial
sale of the Unit to an Owner other than a Homebuilder; and iii) on public
property with the consent of the City, in such materials and style as
determined in the sole discretion of the Declarant. No Owner shall be
permitted to remove or alter, in any way, fencing initially installed by the
Declarant on the Property.
b. Swimming Pools and Hot Tubs: No swimming pools or hot tubs shall be
permitted in the Front Yards or Side Yards. Temporary and portable
children's pools which are less than ten feet (10') in diameter and less than
two feet (2') in depth shall be permitted in the Back Yards, provided the use
of any such pool shall not violate the provisions of Section 7.8 hereof, any
other covenant or restriction contained in this instrument, or any City
regulation. In ground swimming pools, hot -tubs and Jacuzzi -type
installations may be permitted, subject to applicable City regulations and
prior approval and conditions of the ACC. Any such Hot Tub or Jacuzzi
shall be permanently, fully screened from view from surrounding areas, by
approved lattice, evergreen vegetation, or other ACC -approved screening.
Swimming pools and hot tubs shall be subject to a setback of at least 15'
from any other Unit and any applicable City setback regulations.
C. Flags: The American flag may be proudly displayed on the front elevation
of any Dwelling utilizing a mounting bracket affixed to the Dwelling and a
removable flag and flagstaff. Permanent flagpoles use to display the
American flag shall be regulated by the ACC.
d. Play Equipment: Play Equipment shall not be permitted in the Front Yards
or Side Yards. Subject to the restrictions contained herein, including the
requirements set forth in Section 8, play -sets, swing sets, and similar
installations intended primarily for children may be permitted on the Back
Yards, subject to the following restrictions, and any additional regulation
imposed by the ACC or the City. Any play -set or similar installation shall
be constructed of cedar or redwood, shall have a maximum dimension of
twelve feet (12') by twenty-four feet (24') or the equivalent total square
footage (288 square feet), and shall not be higher than twelve feet (12') as
measured from the ground to the top most portion of the play -set. Any
canvas, plastic, or other component of any play -set or similar installation
shall be green or earth tone in color unless otherwise approved in advance
by the ACC, and no multi -color or bright colored slides, swings or other
components shall be allowed. No lighting of play equipment is permitted
anywhere on the Property. All play equipment shall be subject to a setback
of at least 10 feet from any other Unit and is subject to any applicable City
setback regulations. No substantial trees located on any Unit may be
removed for the purpose of locating any equipment permissible under this
subsection. All such equipment shall be placed and maintained in
accordance with all applicable laws and ordinances.
e. Basketball Hoops. One basketball hoop and backboard (permanently
affixed in -ground pole mounting only) may be permitted by the ACC, on a
case-by-case basis, in the front driveway area, provided that the use thereof
does not involve any interference with adjacent Units and Owners,
including the right to quiet enjoyment.
E Storage Structures. Other than as specifically provided herein, no
temporary or permanent storage structure, shed, barn, or other outbuilding
shall be used or allowed. Notwithstanding the above, a "Pod -style" storage
container may be placed in the driveway of a home for up to seven (7) days
19
to facilitate owner moving. Playhouses for children that are not used for
storage may be permitted, subject to section d. above, ACC approval, and
the Rules and Regulations.
g. All other Structures, landscape alterations and Improvements. The
ACC and the Board, through its Rules and Regulations, shall have the right
to prohibit, or to allow and regulate, the placement of all other temporary
and permanent structures, Improvements and landscape alterations outside
of a Dwelling, or which is visible from the exterior of the Dwelling
7.13 Rights of Declarant and Homebuilders. Notwithstanding anything contained
herein to the contrary, until the last Unit is sold and conveyed to an Owner other
than the Declarant or a Homebuilder, the following action by said persons, and their
agents and assigns, will not be deemed violations of the foregoing restrictions:
a. Use of a Dwelling for model and sales office purposes;
b. Storage of equipment, materials or earth during the construction of new
Dwellings on Units owned by the person doing such storage or construction;
and
C. Display of signs advertising Units in the Property as allowed by the City.
d. Display of a temporary flagpole(s) at the Homebuilder's Unit, until such
time that the Unit is occupied by an Owner other than the Homebuilder.
The Homebuilder may display the American Flag, State of Minnesota Flag,
and a flag with the Homebuilder's logo.
7.14 Wetland Buffers, Conservation and Preservation Areas. Lots adjacent to
wetlands will have wetland buffer posts and signs saying "Wetland Buffer"
delineating the wetland buffer edge. No structures may be placed within the
wetland buffer (the area between the wetland buffer posts and the wetland) nor shall
vegetation be cleared, with the exception of noxious vegetation, such as thistles.
The wetland buffer is intended to remain as unmaintained native vegetation
adjacent to the wetland. Any areas with conservation or preservation easements
placed over them shall be subject to the terms of such easement.
7.15 Retaining `galls. No Owner shall be allowed to construct any retaining wall within
fifteen feet (15') of any Declarant -installed retaining wall. No Owner shall be
allowed to modify any Declarant -installed retaining wall. An Owner may construct
and maintain a retaining wall that is not located within 15' of a Declarant installed
retaining wall, on such Owner's Unit, only if such Owner satisfies all of the
following requirements.
20.
a. Owner shall obtain written consent from the ACC and from the Declarant,
unless neither Declarant nor a Homebuilder own any of the Property, in
which case written consent of Declarant shall be waived;
b. A Minnesota state licensed structural engineer is required to design and
confirm viability of any proposed retaining wall alteration or additions;
Owner shall obtain all building permits and other permits required by the
City or other governmental authority;
d. Upon completion of any retaining wall alteration or addition, Owner must
submit to the ACC a letter of satisfaction from the engineer of record stating
that the retaining wall was constructed according to the approved plans; and
e. Documentation from the City reflecting any conditions of the permit and
final inspection, and final closeout of the permit.
7.16 Tree Preservation Area. Lots 1 and 2, Block 1, The Bluffs at Lake Lucy, Carver
County, Minnesota (hereafter, "Lots 1 and 2"), are subject to the restrictions
contained in that certain Tree Preservation Easement between Declarant and the
City, and separately recorded against Lots 1 and 2, with respect to the area legally
described therein ("Tree Preservation Area"). The Declarant intends to install
irrigation lines across a portion of Lots 1 and 2, to assist with the reforestation of
the Tree Preservation Area. The Owners of Lots 1 and 2 shall not be permitted to
remove or alter, in any way, any irrigation lines or components installed by the
Declarant on Lots 1 and 2.
SECTION 8
ARCHITECTURAL CONTROL
8.1 Restrictions on Alterations. The following restrictions and requirements shall
apply to alterations on the Property:
a. Units. Except as expressly provided in this Section 8, and except for
Improvements and alterations made by Declarant or a Homebuilder
assigned such exemption by Declarant, no structure, building, addition,
deck, patio, fence, wall, enclosure, window, exterior door, sign, display,
decoration, color change, shrubbery, material topographical or landscaping
change, nor any other exterior Improvements to or alteration of any yard,
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 is visible from the exterior
of the Unit (collectively referred to as "alterations"), shall be commenced,
erected or maintained in a Unit, unless and until the plans and specifications
21
showing the nature, kind, shape, height, color, materials and locations of the
alterations have been approved in writing by the Board of Directors or a
committee appointed by it and any required permits are obtained.
Notwithstanding the foregoing, Declarant's written consent shall also be
required for alterations until such time as there are no Units owned by
Declarant or a Homebuilder, and Declarant has voluntarily turned over
control of the Association.
b. The Architectural Control Committee. The Architectural Control
Committee (the "ACC") shall consist of at least three (3) members. The
Declarant shall have the exclusive authority to appoint and remove
members of the ACC for a period of time extending until Declarant
voluntarily surrenders such control. Specifically, Declarant's right to
control the ACC may extend beyond Declarant's Control Period over the
Association, as described in Section 4.5, above. After the Declarant has
surrendered control over the ACC, the committee members shall be
appointed and removed by the Board of Directors. At any time, if no ACC
is in existence, the Board of Directors shall serve as the ACC. All
references in the Declaration to the ACC shall apply to the Board of
Directors, if no ACC is in existence. In addition, Declarant's written
consent shall be required for alterations until such time as there are no Units
owned by Declarant or a Homebuilder.
C. Design Criteria. The criteria for approval of any improvement or alteration
shall include and require, at a minimum, (i) substantial uniformity of color,
size, location, type and design in relation to existing improvements and
topography, (ii) comparable or better quality of materials as used in existing
improvements, (iii) ease of maintenance and repair, (iv) adequate protection
of the Property, the Association, Owners and Occupants from liability and
liens arising out of the proposed alterations, (v) compliance with
governmental laws, codes and regulations, (vi) that, in the reasonable
judgement of the ACC, such improvement or alteration shall not diminish
the quiet enjoyment of other Unit Owners; and (vii) that such improvement
or alteration shall not direct more water or runoff to any neighboring
property than is being directed to any neighboring property in the existing
condition. At all times the Board shall have the right to add, delete, or
modify the criteria for approval of any improvement or alteration in a
reasonable manner.
d. Encroachments. Approval of alterations which encroach upon another
Unit or the Common Elements shall create an appurtenant easement for
such encroachment in favor of the Unit with respect to which the
alterations are approved; provided, that any easement for a deck or patio
other than as originally constructed shall be approved by resolution of the
22
8.2
Board of Directors and a file of such resolutions shall be maintained
permanently as a part of the Association's records.
e. Declarant and Homebuilder Exemption. As set forth above,
Improvements and alterations made by Declarant or a Homebuilder
assigned such exemption by Declarant shall be exempt from the review and
approval requirements set forth in this Section 8.
Review Procedures. The following procedures shall govern requests for
alterations under this Section.
a. Detailed plans, specifications and related information regarding any
proposed alteration, in form and content acceptable to the ACC, shall be
submitted to the ACC at least forty-five (45) days prior to the projected
commencement of construction. No alterations shall be commenced prior
to approval.
b. The ACC shall give the Owner written notice of approval. If the ACC fails
to approve or disapprove within forty-five (45) days after receipt of said
plans and specifications and all other information requested by the ACC,
then approval will not be required, and this Section shall be deemed to have
been fully complied with so long as the alterations are done in accordance
with the plans, specifications and related information which were
submitted.
C. If no request for approval is submitted, approval is denied, unless (i) the
alterations are reasonably visible and (ii) no written notice of the violation
has been given to the Owner in whose Unit the alterations are made, by the
Association or another Owner, within six months following the date of
completion of the alterations. Notice may be direct written notice or the
commencement of legal action by the Association or an Owner. The Owner
of the Unit in which the alterations are made shall have the burden of proof,
by clear and convincing evidence, that the alterations were completed and
reasonably visible for at least six months following completion and that the
notice was not given.
8.3 Remedies for Violations. The Association may undertake any measures, legal 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
costs of enforcement, whether or not a legal action is commenced and to the extent
such legal action is commenced, whether or not the Declarant or Board obtains a
favorable judgment, order, ruling or decision. Such attorneys' fees and costs shall
be a lien against the Owner's Unit and a personal obligation of the Owner. In
addition, the Association shall have the right to enter the Owner's Unit and to
23
restore any part of the Dwelling or Unit to its prior condition if any 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 Protection from Liability. Neither Declarant, the Association nor its directors or
officers, the members of the ACC, nor any person acting on behalf of any of them,
shall be liable for any costs or damages incurred by any person due to any alleged
mistakes in judgment, negligence or any action of the ACC in connection with the
approval or disapproval of plans and specifications. The Association shall
indemnify, defend and hold harmless the ACC and each of its members from all
costs, expenses and liabilities, including attorneys' fees, of all nature resulting by
virtue of the acts of the ACC or its members. Neither Declarant, the directors or
officers of the Association, the members of the ACC, nor any person acting on
behalf of any of them, shall be responsible for any defects in any plans or
specifications, nor for any defects in any Improvements constructed pursuant
thereto. Each person submitting an application for approval shall be solely
responsible for the sufficiency of all plans and specifications submitted and for the
quality of construction of the Improvements constructed, and shall hold harmless,
indemnify and defend the Declarant, Association, and their respective officers,
directors, committee personnel and agents, from and against all claims, damages
and liabilities arising out of the approval or construction of the Improvements to
which their application relates.
8.5 No Representation of Compliance. No approval of plans and specifications and
no publication of standards by the ACC shall be construed as representing or
implying that such plans, specifications; or standards will, if followed, result in
properly designed Improvements. Such approvals and standards shall not be
construed as representing or guaranteeing that any Dwelling or other Improvement
built in accordance therewith was built in a good and workmanlike manner. Neither
Declarant, the Association, nor the ACC shall be responsible or liable for any
defects in any plans or specifications submitted or approved; any loss or damages
to any person arising out of the approval or disapproval of any plans or
specifications, any loss or damage arising from the noncompliance of such plans
and specifications with any governmental ordinances and regulations; nor any
defects in construction undertaken pursuant to such plans and specifications.
8.6 Additional Standards. The ACC is authorized to promulgate from time to time
additional written architectural standards, guidelines and other regulations
governing the construction, location, landscaping, and design of alternations and
Improvements located or to be located on the Property.
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SECTION 9
MAINTENANCE
9.1 Maintenance by Association. The Association shall provide the following
maintenance on the Property, to the extent deemed necessary or desirable by the
Board:
a. Maintenance of the entrance monument, landscaping and any lighting
installed by Declarant within that encroachment agreement running in favor
of the Association over Outlot A or Outlot B, The Bluffs at Lake Lucy,
Carver County, Minnesota (hereafter, "Outlot A" and "Outlot B",
respectively). Such Maintenance shall include, without limitation,
irrigation, planting, trimming, mowing, weed control, inspection, repair and
replacement, to the extent deemed desirable by the Board.
b. Maintenance of the entrance monument, landscaping and any lighting
located within that easement running in favor of the Association over Lot 1,
Block 3, The Bluffs at Lake Lucy, Carver County, Minnesota. Such
Maintenance shall include, without limitation, planting, trimming, mowing,
weed control, inspection, repair and replacement, to the extent deemed
desirable by the Board.
C. Maintenance of certain retaining walls and fencing located on the Property
or within easements running in favor of the Association, as depicted on
Exhibit B, attached hereto, and described below. Such Maintenance shall
not include mowing, trimming or weed control:
i. Those retaining walls located in the southwest corner of Outlot A and
a portion of the NE 1/4 NW 1/4, Section 10, Township 116, Range 23,
Carver County, Minnesota, as legally described in a separately recorded
encroachment agreement running in favor of the Association.
ii. That retaining wall located in the southeast corner of Outlot A, as legally
described in a separately recorded encroachment agreement running in
favor of the Association.
iii. That retaining wall and fence located on Lots 2 through 9, Block 2, The
Bluffs at Lake Lucy, Carver County, Minnesota.
iv. That retaining wall and fence located on Lot 2, Block 5, The Bluffs at
Lake Lucy, Carver County, Minnesota.
V. That retaining wall and fence located on Lots 1 and 2, Block 1, The
Bluffs at Lake Lucy, Carver County, Minnesota.
vi. That retaining wall and fence located on Lots 2 and 3, Block 1, The
Bluffs at Lake Lucy, Carver County, Minnesota; and
vii. That retaining wall and fence located on Lots 3, 4 and 5, Block 3, The
Bluffs at Lake Lucy, Carver County, Minnesota.
d. Maintenance of the Stormwater Reuse System defined above, in accordance
with the requirements of that separately recorded Encroachment Agreement
25
between the City and the Association, and consistent with all applicable
federal, state and local laws and regulations; and
e. Maintenance of the irrigation lines, sprinkler heads and other components
located on a portion of Lots 1 and 2, Block 1, within that separately recorded
Tree Preservation Easement between the City and Declarant, as legally
described therein ("Tree Preservation Easement Area"). Such irrigation
lines will be connected to the Stormwater Reuse System, referenced above.
Such maintenance shall include, without limitation, inspection,
winterization and other maintenance, repair, reconstruction and
replacement, as deemed necessary or desirable by the Board.
f. Maintenance of trees located within the Tree Preservation Easement Area
to the extent deemed necessary or desirable by the Board or as otherwise
required by the City;
g. Maintenance of trees, grasses, plants, vegetation and other landscaping
located on that portion of Outlots A and B, as depicted on Exhibit C,
attached hereto. Such maintenance may include mowing, irrigation, weed
control, and plant and tree maintenance, repair and replacement, to the
extent deemed necessary or desirable by the Board or as required by the
City.
h. Mowing and weed control of the boulevard located within the City's right
of way along Della Drive on Outlots A and B.
9.2 Additional Maintenance. In addition to the Maintenance set forth in Section 9.1,
above:
a. Upon Action of the Board of Directors, the Association may provide
additional Maintenance of improvements within any easement benefitting
the Association, whether now existing or granted in the future, to the extent
deemed appropriate by the Board.
b. With the approval of a majority of votes cast in person or by proxy at a
meeting called for such purposes, the Association may undertake to provide
additional Maintenance to the Units, except that under no circumstances
shall the Association provide for Maintenance on any Dwelling.
9.3 Maintenance by Owner. Except for the Maintenance required to be provided by
the Association above, all Maintenance of the Dwellings and Units shall be the sole
responsibility and expense of the Owners thereof. The Association or the ACC
nay require that any exterior Maintenance of a Unit to be performed by the Owner
be accomplished pursuant to specific uniform criteria established by the
Association. The Association may undertake any exterior Maintenance of a Unit
which the responsible Owner fails to or improperly performs and assess the Unit
and the Owner for the cost thereof, other than Maintenance of a Dwelling.
26
9.4 Damage Caused by Owner. Notwithstanding any provision to the contrary in this
Section, if, in the judgment of the Association, the need for Maintenance of any
part of the Property is caused by the willful or negligent act or omission of an Owner
or Occupant, or their guests, or by a condition in a Unit which the Owner or
Occupant has willfully or negligently allowed to exist, the Association may cause
such damage or condition to be repaired or corrected (and enter upon any Unit to
do so), and the cost thereof may be assessed against the Unit of the Owner
responsible for the damage.
9.5 Easements for Maintenance. The Association shall have easements as described
in Section 12 to perform its obligations under this Section 9.
9.6 Garbage Service. The Association shall have the right, but not the obligation, to
hire one garbage hauler to serve the entire Property and to charge a reasonable fee
for this service to be included in the Assessments. In the event the Association
elects to not provide garbage service to the Units, the Association retains the right
to limit and/or designate the garbage haulers that may be used by the Owners, as
required by the City as a condition of approval.
SEC'T'ION 10
INSURANCE
10.1 Required Insurance. The Association shall obtain and maintain, at a minimum, a
master policy of insurance in accordance with the requirements set forth herein,
issued by a reputable insurance company or companies authorized to do business
in the State of Minnesota, as follows:
a. The Association shall have the option, but not the obligation to obtain and
maintain property insurance covering the risk of physical loss of the
Common Elements, if any, and any additional portion of the Property that
the Association is required to maintain. The policy or policies may cover
personal property owned by the Association, if any. The type and amount
of any such coverage shall be determined by the Board.
b. Comprehensive public liability insurance covering the use, operation and
Maintenance of Common Elements, if any, and which may include any
additional areas over which the Association has an easement or
Maintenance responsibilities, with minimum limits of $1,000,000 per
occurrence, against claims or death, bodily injury and property damage
(excluding damage to the Dwellings) 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 "severability of interests"
endorsement which shall preclude the insurer from denying the claim of an
Owner or Occupant because of negligent acts of the Association or other
27
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 or FNMA as a precondition to their
insuring, purchasing or financing a mortgage on a Unit.
C. 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 the FHA or
FNMA as a precondition to the purchase or financing of a mortgage on a
Unit. The fidelity bond or insurance shall name the Association as the
named insured and shall, if required by the regulations of the FHA or
FNMA as a precondition to their insuring, purchasing or financing of a
mortgage on a Unit, be written in an amount equal to the greater of (i) the
estimated maximum of Association funds, including reserves, in the
custody of the Association or management agent at any given time while
the bond is in force, or (ii) a sum equal to three months aggregate
assessments on all Units plus reserves. 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.
d. Worker's Compensation insurance as required by law.
e. Such other insurance as the Board may determine from time to time to be
in the best interests of the Association and the Owners.
10.2 Property Insurance for Units. Each Owner shall obtain and maintain the Owner's
own property and liability insurance coverage relating to the ownership of the
Owner's Unit and any structures constructed thereon.
10.3 Premiums; Improvements; Deductibles. All premiums for insurance coverage
maintained by the Association shall be assessed and paid as a Common Expense.
10.4 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). 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.
10.5 Waivers of Subrogation. All policies of insurance shall contain waivers of
subrogation by the insurer against the Association, or an Owner, members of the
Owner's household, officers or directors, as applicable, and, if available, waivers
of any defense based on co-insurance or of invalidity from any acts of the insured.
10.6 Cancellation; Notice of Loss. All policies of property insurance and
comprehensive liability insurance maintained by the Association shall provide that
the policies shall not be cancelled or substantially modified, for any reason, without
at least thirty (30) days prior written notice to the Association, to the FHA or FNMA
(if applicable), all of the insureds and all Eligible Mortgagees.
10.7 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 not 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.
10.8 No Contributions. All policies of insurance maintained by the Association shall
be the primary insurance where there is other insurance in the name of the Owner
covering the same property and may not be brought into contribution with any
insurance purchased by Owners or their Eligible Mortgagees.
10.9 Effect of Acts Not Within Association's Control. All policies of insurance
maintained by the Association shall provide that the coverage shall not be voided
by or conditioned upon (i) any act or omission of an Owner or Eligible 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.
SECTION 11
RECONSTRUCTION, CONDEMNATION AND EMINENT DOMAIN
11.1 Reconstruction. Any repair or reconstruction shall be substantially in accordance
with the plans and specifications of the Property as initially constructed and
subsequently improved. Notice of substantial damage or destruction shall be given
pursuant to Section 17.
11.2 Condemnation and Eminent Domain. In the event of a taking of any part of the
Property by condemnation or eminent domain, notice shall be given pursuant to
Section 17. Eligible Mortgagees shall be entitled to priority for condemnation
awards in accordance with the priorities established by the Governing Documents,
as their interests may appear.
11.3 Notice. All Eligible Mortgagees shall be entitled to receive notice of any
condemnation proceedings or substantial destruction of the Property, and the
W61
Association shall give written notice thereof to an Eligible Mortgagee pursuant to
Section 17.
SECTION 12
EASEMENTS
12.1 Easement for Maintenance, Repair, Replacement and Reconstruction. Each
Unit, and the rights of the Owner and Occupants thereof, shall be subject to the
rights of the Association to an exclusive, appurtenant easement on and over the
Units for the purposes of maintenance, inspection, repair, replacement and
reconstruction, to the extent deemed necessary by the Board to fulfill the
Association's obligations under the Governing Documents, including, without
limitation, the Association's obligation to maintain the retaining walls, fencing,
entrance monument areas, irrigation lines and other components connected to the
Stormwater Reuse System and certain landscaping areas, as more specifically
described in Section 9, above.
12.2 Utilities Easements. The Property shall be subject to non-exclusive appurtenant
easements for all utilities, public and private storm sewer, water and sewer, and
similar services, which exist from time to time, as constructed or referred to in the
Plat, or as otherwise described in this Declaration or any other duly recorded
instrument. Each Unit, and the rights of the Owners and Occupants thereof, shall
be subject to a non-exclusive easement in favor of the other Units for all such
services, including without limitations any sewer or water lines servicing other
Units. Each Unit shall also be subject to an exclusive easement in favor of the
Association and all utilities companies providing service to the Units for the
installation and maintenance of utilities metering devices.
12.3 Continuation and Scope of Easements. Notwithstanding anything in this
Declaration to the contrary, in no event shall an Owner or Occupant be denied
reasonable access to his or her Unit or the right to utility services thereto. The
easements set forth in this Section shall supplement and not limit any easements
described elsewhere in this Declaration or recorded and shall include reasonable
access to the easement areas through the Units and the Common Elements for
purposes of maintenance, repair, replacement and reconstruction.
SECTION 13
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 Governing Documents, the Rules and
Regulations, the decisions of the Association, and such amendments thereto as may be made from
time to time. A failure to comply shall entitle the Association to the relief set forth in this Section,
30
in addition to the rights and remedies authorized elsewhere by the Governing Documents or Rules
and Regulations.
13.1 Entitlement to Relief. The Association may commence legal action to recover
sums due, for damages, for injunctive relief or to foreclose a lien owned by it, or
any combination thereof, or an action for any other relief authorized by the
Governing Documents or Rules and Regulations or available at law or in equity.
Legal relief may be sought by the Association against any Owner, or by an Owner
against the Association or other Owner, to enforce compliance with the Governing
Documents, the Rules and Regulations, or the decisions of the Association.
However, no Owner may withhold any assessments payable to the Association, or
take (or omit) other action in violation of the Governing Documents or the Rules
and Regulations, as a measure to enforce such Owner's position, or for any other
reason.
13.2 Sanctions and 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 or the Rules and Regulations:
a. Commence legal action for damages or equitable relief in any court of
competent jurisdiction.
b. Impose late charges of up to 15% of each late payment of an assessment or
installment thereof, and to charge interest on delinquent amounts due at a
rate determined by the Board and set forth in the Rules and Regulations, but
not to exceed the maximum rate permitted by applicable law.
In the event of default of more than 30 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 full if all delinquent assessments,
together with all costs of collection and late charges, are not paid in full
prior to the effective date of the acceleration. Reasonable advance written
notice of the effective date of the acceleration shall be given to the
defaulting Owner.
d. Impose reasonable fines, penalties or charges for each violation of the
Governing Documents or the Rules and Regulations of the Association.
Suspend the rights of any Owner or Occupant and their guests to use any
Common Element amenities; provided, that this limitation shall not apply
to Limited Common Elements appurtenant to the Unit, and those portions
31
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 30 days thereafter, for each violation.
f. Restore any portions of the Common Elements 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
or Rules and Regulations, and to assess the cost of such restoration against
the responsible Owners and their Units.
g. Enter any Unit or Limited Common Element in which, or as to which, a
violation or breach of the Governing Documents or Rules and Regulations
exists which materially affects, or is likely to materially affect in the near
future, the health or safety of the other Owners or Occupants, or their guests,
or the safety or soundness of any Dwelling or other party of the Property or
the property of the Owners or Occupants, and to summarily abate and
remove, at the expense of the offending Owner or Occupant, any structure,
thing or condition in the Unit or Limited Common Elements which is
causing the violation; provided, that any improvements which are a part of
a Unit may be altered or demolished only pursuant to a court order or with
the agreement of the Owner.
h. Foreclose any lien arising under the provisions of the Governing Documents
or under law, in the manner provided for the foreclosure of mortgages by
action or under a power of sale in the state where the property is located.
13.3 Rights to Hearing. In the case of imposition of any of the remedies authorized by
Section 13.2.d., e., or f. of this Section, the Board shall upon written request of the
offender, grant to the offender a fair and equitable hearing. The offender shall be
given notice of the nature of the violation and the right to a hearing, and at least 10
days within which to request a hearing. The hearing shall be scheduled by the
Board and held within thirty (30) days of receipt of the hearing request by the
Board, and with at least ten (10) days prior written notice to the offender. If the
offending Owner fails to appear at the hearing, then the right to a hearing shall be
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 (10) days following the hearing, if not delivered
to the offender at the hearing.
13.4 Lien for Charges, Penalties, Etc. Any assessments, charges, fines, penalties or
interest imposed 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
32
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
gives written notice 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 right to pursue any others.
13.5 Costs of Proceeding and Attorney's Fees. With respect to any collection
measures, or any measures or action, legal administration, or otherwise, which the
Association takes to enforce the provisions of the Governing Documents or Rules
and Regulations, whether or not legal action is commenced, and whether or not the
Association obtains a favorable ruling, order, judgment or decision, the Association
may assess the party against whom such enforcement measures were taken and his
or her Unit with any expenses incurred in connection with such enforcement,
including without limitation fines or charges previously imposed by the
Association, reasonable attorneys' fees, costs, and interest (at the highest rate
allowed by law) on the delinquent amounts owed to the Association.
13.6 Liability for Owners' and Occupants' Acts. 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 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.
13.7 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, as provided therein.
SECTION 14
SPECIAL DECLARANT RIGHTS
Declarant, its agents and assigns, hereby reserves exclusive and unconditional authority to exercise
the following special declarant rights for as long as it owns a Unit, or for such shorter period as
may be specifically indicated:
14.1 Complete Improvements. To complete all of the Improvements included in
Declarant's development plans or allowed by the Declaration, and to make
alterations in the Units and Common Elements to accommodate its sales facilities.
14.2 Relocate Boundaries and Alter Units. To relocate boundaries between Units and
to otherwise alter Units owned by it, to the extent permitted by Section 15.
33
14.3 Sales Facilities. To construct, operate and maintain a sales office, management
office, model Units and other development, sales and rental facilities within the
Common Elements and any Units owned by Declarant from time to time, located
anywhere on the Property.
14.4 Si ns. 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,
and to erect a permanent marker or markers at the entrances to the development.
14.5 Easements. To have and use easements, for itself, its employees, contractors,
representatives, agents and prospective purchasers through and over the Common
Elements for the purpose of exercising its special declarant rights.
14.6 Control of Association, Board and ACC. To control the operation and
administration of the Association, including without limitation the power to appoint
and remove the members of the Board and the ACC until the earlier of. (i) the date
Declarant no longer owns a Unit; or (ii) voluntary surrender of control by Declarant.
14.7 Consent to Amendments. As long as Declarant or a Homebuilder owns any
unsold Unit, Declarant's written consent shall be required for any amendment to
the Governing Documents or Rules and Regulations.
14.8 Use in Advertising. To photograph the exterior of the Units and use said
photographs or reproductions for advertising purposes.
14.9 Special Assignment of Declarant Rights. Declarant's Rights contained in the
Declaration are separately assignable by Declarant, and may be transferred by
Declarant executing and recording one or more Special Assignment of Declarant
Rights with the County Recorder, setting forth a description of the right being
assigned, and the identity of the assignee.
SECTION 15
DECLARANT'S RIGHT TO RELOCATE BOUNDARIES AND ALTER UNITS
15.1 Declarant's Right to Relocate Boundaries and Alter Units: Declarant shall have
the right, without the consent of the Owners or the Association, to: 1) relocate
boundaries between Units owned by the Declarant; 2) combine Units, by removing
boundaries between adjacent Units owned by Declarant; and 3) convert Units
owned by Declarant, or any part thereof, into additional Units or Common
Elements. Additionally, Declarant may amend this Declaration in order to
subdivide or convert Units owned by Declarant without the consent of the Owners.
SECTION 16
34
AMENDMENTS
16.1 Amendments. This Declaration may otherwise be amended by the consent of (i)
Owners of Units to which are allocated at least sixty-seven percent (67%) of the
votes in the Association; and (ii) the consent of Declarant as provided in Section
14. Consent of the Owners may be obtained in writing or at a meeting of the
Association duly held in accordance with the Bylaws. Consent of the Declarant
shall be in writing. The Amendment shall be effective when recorded. 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.
16.2 Consent Deemed Granted. Consent of a party required hereunder, including
consent of an Owner or the Declarant, shall be deemed to have been granted if the
party's written refusal to consent is not received by the Association within sixty
(60) days after the party receives from the Association notice and a copy of the
amendment, by certified U.S. Mail, postage prepaid, and return receipt requested.
SECTION 17
RIGHTS OF ELIGIBLE MORTGAGEES
17.1 Priority of Lien. Any holder of a first mortgage on a Unit or any purchaser of a
first mortgage at a foreclosure sale, that comes into possession of a Unit by
foreclosure of the first mortgage or by deed or assignment in lieu of foreclosure,
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 first mortgage holder
or purchaser except for (i) a lien in favor of the association for unpaid assessments
for common expenses levied pursuant to section 515B.3 -115(a), (e)(1) to (3), (f),
and (i) which became due, without acceleration, during the six months immediately
preceding the first day following the end of the owner's period of redemption; and
(ii) except that any unreimbursed assessments or charges may be reallocated among
all Units in accordance with their interests in the Common Elements.
17.2 Prioritv 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.
17.3 Priority for Condemnation Awards. No provision of the Governing Documents
shall give an Owner, or any other part, priority over any rights of the Eligible
Mortgagee of the Unit pursuant to its mortgage in 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 Association shall give written notice
35
to all Eligible Mortgagees of any condemnation or eminent domain proceeding
affecting the Property promptly upon receipt of notice from the condemning
authority.
17.4 Access to Books and Records/Audit. Eligible Mortgagees shall have the right to
examine the books and records of the Association upon reasonable notice 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 (120) days of the end of the Association's fiscal year. If a request is made
by FNMA or any institutional guarantor or insurer of a mortgage loan against a
Unit, for an audit of the Association's financial statements for the preceding year,
the Association shall cause an audit to be made and deliver a copy to the requesting
parry.
17.5 Notice Requirements. Upon written request to the Association, identifying the
name and address of the holder, insurer or guarantor of a mortgage on a Unit, and
the Unit number or address, the holder, insurer or guarantor shall be entitled to
timely written notice of:
a. a condemnation loss or any casualty loss which affects a material portion
on the Property or the Unit securing the mortgage;
b. a 60 -day delinquency in the payment of assessments or charges owned by
the Owner of a Unit on which it holds a mortgage;
C. a lapse, cancellation or material modification of any insurance policy
maintained by the Association; and
C. a proposed action which requires the consent of a specific percentage of
Eligible Mortgagees.
17.6 Consent Deemed Granted. Consent of a secured party, including an Eligible
Mortgagee, required hereunder is deemed to be granted if the secured party's
written refusal to consent is not received by the Association within sixty (60) days
after the secured party receives from the Association notice and a copy of the
amendment, by certified U.S. Mail, postage prepaid, and return receipt requested.
36
SECTION 18
MISCELLANEOUS
18.1 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 instrument or exhibits.
18.2 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 MCIOA, or
any section thereof, shall be deemed to include any statutes amending or replacing
MCIOA, and the comparable sections thereof. References to MCIOA shall not be
interpreted so as to subject the Association or the Declarant to any provision of
MCIOA, unless otherwise specifically set forth herein.
18.3 Notices. Unless specifically provided otherwise in the Governing Documents all
notices required to be given by or to the Association, the Board of Directors, the
Association officers or the Owners or Occupants shall be in writing and shall be
effective upon hand delivery, e-mail or other electronic means 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.
18.4 Conflicts Among Documents. In the event of any conflict among the provisions
of the Declaration, the Bylaws or any Rules or Regulations approved by the
Association, the Declaration shall control, and as between the Bylaws and the Rules
and Regulations, the Bylaws shall control. Notwithstanding the foregoing, where
two or more provisions of any documents to which the Property is subject address
the same matter, the more restrictive provision shall control.
SECTION 19
LIMITATION OF DECLARANT LIABILITY
19.1 Landscaping Liability. Declarant may, during the course of development, install
Improvements such as trees, shrubs, bushes or other landscaping for the purposes
of screening, required reforestation or any other purpose, and shall not be liable to
an Owner for the survival of the Improvements following the sale of any Unit.
Specifically, Declarant shall not warrant any trees, shrubs, or bushes within or near
the development, unless specifically required in a separate agreement with the City.
19.2 Disclosure. Declarant hereby discloses that the Declarant does not intend to build
the Dwellings located within the Property, and Declarant makes no representation
37
or warranty concerning the identity of the builders who may be constructing homes
on the Property.
IN WITNESS WHEREOF, the undersigned has
above set forth.
STATE OF MINNESOTA
) ss
COUNTY OF HENNEPIN )
Chan
By: j . /
Craig Alk
Its: President
the day and year first
Inc.
The foregoing instrument was acknowledged before me this 3r_4 day of Oetel�e , 2020,
by Craig Allen, President, of Chan Three Development, Inc., a Minnesota corporation, on behalf
of the corporation.
—LOR�I.L CLARK
Notary Public
Minnesota
axft
37 2023
THIS INSTRUMENT DRAFTED BY:
Gries Lenhardt Allen, P.L.L.P. (JMP)
1272543 rd Street NE, Suite 201
St. Michael, MN 55376
(763) 497-3099
4uo-'L
Notary Public
W
THE BLUFFS AT LAKE LUCY
EXHIBIT A TO DECLARATION
SCHEDULE OF UNITS/LEGAL DESCRIPTION OF UNITS
Lots 1 — 5, Block 1;
Lots 1 —11, Block 2;
Lots 1 — 5, Block 3;
Lots 1 — 3, Block 4; and
Lots 1 — 7, Block 5;
All in The Bluffs at Lake Lucy, Carver County, Minnesota.
39
THE BLUFFS AT LAKE LUCY
EXHIBIT B TO DECLARATION
RETAINING WALL LOCATIONS
RETAINING WALL LOCATION ,
m
THE BLUFFS AT LAKE LUCY
EXHIBIT C TO DECLARATION
ASSOCIATION LANDSCAPING MAINTENANCE AREAS
LANDSCAPING MAINTENANCE AREAS �`
wl
CONSENT TO DECLARATION OF COVENANTS, CONDITIONS, AND
RESTRICTIONS
Bridgewater Bank, a Minnesota banking corporation (the "Mortgagee") is the Mortgagee
of real property legally described as:
All Of The Bluffs At Lake Lucy
The above described property is subject to that certain Mortgage recorded on the 12th day
of October, 2020 in the Office of the County Recorder in and for Carver County, Minnesota, as
Document No. T215904 (the "Mortgage").
Mortgagee hereby consents to the Declaration of Covenants, Conditions, and Restrictions
on said property by Chan Three Development, Inc., a Minnesota corporation under the laws of
the State of Minnesota. The planned community shall be named The Bluffs at Lake Lucy.
Dated: / a
STATE OF MINNESOTA )
) ss.
COUNTY OF
For: Bridi?ewater Bank
By;
Thomas D. Johnson
ts: Senior Vice President
The foregoing instrument was acknowledged before me this day of k00tWxv , 2020,
by Thomas D. Johnson, the Vice President of Bridgewater Bank, a Minnesota banking
corporation.
NOTARY STAMP OR SEAL
This Instrument was drafted by:
Gonyea Company (JMB)
10850 Old County Road 15, Suite 200
Plymouth, MN 55441
(612)310-5889
42
-/ -s-, P,�,
Notary Public
NADIYA S. RINGEN
Notary Public
Minnesota
My Commission Expires
January 31, 2025