2006-07-28 Declaration of Covenants,Easements & Restrictions Shoppes @ Towne Lakes 2 » �w M
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R��U�N T0;
��� County Abst�ac� �� T�tl� Co,
122 12th .Ave N
PO Boz 1332 �OG. N�. /� ���
St. Cloud N"itV 56303
OFFICE OF THE COUNTY RECORDER
WRIGHT COUNTY, ►V1►NNESOTA
Certified Filed and/or Recorded on
08-17-200fi at 03:00
Check#: 1056 Fee: $46.00
Payment Code OZ
Addl. Fee
Larry q. Unger, County Recorder
THE SHOPPES AT TOW1vE LAKES TWp
DECLARATION OF CUVENANTS, EASEMENTS AND
Tlus Dec �ST�CTIONS
ation o Covenants,Easements and Restrictions(the "Declarati -
day of - a on")is made this �
liability com � 2006, by AI,BERTVILLE PHASE II, LLC, a �
y (the "Developer"). Minnesota limited
WHEREAS,Developer is the owner of certain real pro e 1
legally described in Exhibit A attached hereto, and De elo ocated in Wright Coun
and all Improvements constructed thereon now or in the future �'Ml�esota,
per desires to submit said real property
Declaration, arid (collectively the "Pro e
P rty")to this
WHEREAS,Developer desires to establish on the Pro e
be owned,occupied and operated for the benefit of the p�erretail,office and co
the Occu s and their successor�and�Si enser,to
a�'chitectural�cha�.c errof the pro fe r the
Purpose of preserving the value the � 'and
P rtY, and � quality and the �
WHEREAS, the Property i, not subject to Minnesota Sta
exemption contained in Se�;tion 51�t�.1 _ �tes Chapter S15B b
defined in said statute. 102(e)(4), arid is not subject to a master a so�at ontas
THEREFp�� the Property shall be subjected to this Decl
Towne La.kes Two,"arid this Declaration shall constitute co e tion under the n
Property�d�y real estaie added thereto shall be o �e ��The Shoppes at
nants to nui with the Property,arid the
the covenants, restrictions, easements, char es
bindin u g and 1 ens set forth hereln�d conveyed subject to
g pon all Persons owning or acquirin , all of which shall be
personal representatives, successors and assignsany right, title or interest therein, and their heirs,
SECTION 1
DEFINITIONS
The following v�,ords when used in the Governing Docurne
meanings (ur�ess the context indicates otherwise): nts shall have the followin�
1.1 "Act"means the Minnesota Nonprofit Corporation Act,Minnesota Statutes Chapter 317A,as
amended.
1 •2 "Assessments" means and refers to all Assessments levied by the Association pursuant to
Section 6 of this Declaration,including annual Assessments,special Assessments and limited
Assessments.
1.3 "Association" means The Shoppes at Towne Lakes Two Retail Owners' Association, a
nonprofit corporation which has been created pursuant to Minnesota Statutes Chapter 317A,
whose members consist of all Owners of Parcels.
1.4 "Board"means the Board of Directors of the Association, as provided for in the Bylaws.
1.5 "Building"means a building located on a Parcel.
1.6 "Bylaws" means the Bylaws governing the operation of the Association, as amended from
time to time.
1•7 ��City" means the City of Albertville, Minnesota.
1•g ��Common Expenses"means all expenditures made or liabilities incurred by or on behalf of
the Association and incident to its operation,including mamtenance.repair and replacement
by the Association as provided in Section 9 and items otherwise identified as Common
Expenses in the Declaration or Bylaws.
1.9 "Common Property" means all parts of the Pro e
Improvements thereon. As of the date of this Declara on, there is no Common p od e g all
P �'
1.10 "Developer Control Period"means the time period during which Developer has the exclusive
right to appoint the members of the Board, as provided in Section 12 of this Declaration.
1.11 "Development" means The Shoppes at Towne Lakes Two legally described in Exhibit A
attached hereto.
1.12 "Governing Documents" means this Declaration, and the Articles of Incorporation and
Bylaws of the Association, as amended from time to time, all of which shall govern the use
and operation of the Property.
1.13 "Improvement" means any physical improvement of any kind, including but not limited to
any Building, wall, fence, sign, enclosure, screening, utilities system, communications
system,irrigation or drainage system,pond,roadway,walkway,par� �ea landsca ui or
any other type of structure or physical improvement, and any additio n or changes he e to,
located on the Property.
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1.14 "Member" means a Person who is an Owner as defined in this Declaration. The words
"Owner" and "Member" may be used interchangeably in the Governing Documents.
1.15 "Mortgagee" means any Person owning a mortgage recorded against a Parcel, which
mortgage constitutes a first mortgage lien against the Parcel.
1.16 "Occupant" means any Person or Persons, other than an Owner, occupying or conducting a
business on a Parcel, including but not limited to tenants and their employees.
1.17 "Owner" means a Person who owns a Parcel, but excluding contract for deed vendors,
mortgagees, and other secured parties and holders of reversionary interests.
1.18 "Parcel" means a part of the Property, other than Common Property, upon which is
constructed or intended to be constructed a Building or Buildings designed and intended for
office, commercial or retail use. Each Parcel is identified on E�ibit A attached hereto, as
subsequently amended.
1.19 "Parcel Developer" means a Person which has acquired a Pazcel which has not been
improved with a Building for the purpose of constructing a Building and related
improvements thereon.
1.20 "Person" means an individual, corporation, limited liability company, partnership, limited
liability partnership, trustee, or other legal entity having the capacity to hold title to real
property.
1.21 "Plat" means the recorded plat depicting the Property pursuant to the requirements of
Minnesota Statutes Chapter 505, as amended from time to time.
1.22 "Property" means all of the real property subject to this Declaration,including all Buildings
and other Improvements located thereon, now or in the future.
1.23 "Reciprocal Street and Parking Easement"means that Non-Exclusive Declaration of Cross
Easements for Parking,Ingress and Egress,and Maintenance created by Developer and filed
against the Properiy in the office of the County Recorder for Wright County which
establishes non-exclusive easements upon each of the Parcels for vehicular parking,ingress
and egress for the benefit of each of the other Parcels,their Owners,Occupants,employees,
customers, vendors and other invitees.
1.24 "Regulations" means the Regulations of the Association as approved from time to time
pursuant to Section 3.9.
References to Section numbers refer to Sections of this Declaration, unless otherwise expressly
indicated.References to the singular shall include the plural where context requires,and conversely.
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SECTION 2
PROPERTY
2.1 Pro e . The Property subject to this Declaration is described in Exhibit A attached hereto.
Exhibit A may be amended from time to time to include other property, as authorized by
Sections 2.2 and 2.3.
2.2 Annexation of Property bv Developer. So long as the Developer owns a Parcel, the
Developer has the exclusive unilateral right, but not the obligation, to subject other real
property to this Declaration as part of the Property. Any property so annexed may be
designated as Common Property or Parcels, or a combination thereof. The Developer may,
without the consent of any Person, prepare, execute and record an amendment to this
Declaration, as necessary, to subject the additional property to this Declaration, and to
reallocate Common Expense obligations,voting rights and memberships in accordance with
the formulas described in this Declaration.
2.3 Annexation of Other Pr�ertv. In addition to property annexed by the Developer, other real
property may be annexed to the Property and subjected to this Declaration with the prior
written approval of(i)the Board,(ii)the Developer so long as the Developer owns an unsold
Parcel for sale; and (iii) the City. Any property so annexed may be designated as Common
Property or Parcels,or a combination thereof.The Governing Documents shall be amended,
as necessary,to subject the property to this Declaration,and to reallocate Common Expense
obligations,voting rights and memberships in accordance with the formulas described in this
Declaration.
2.4 De-annexation of Properiv. Portions of the Properiy may be de-annexed and released from
this Declaration,subj ect to the following requirements:(i)the Property sha11 be owned by the
Developer or the Association, (ii)the de-annexation shall be approved by the Developer(if
the Property is owned by the Developer),the Board and the City, and(iii)an amendment to
this Declaration describing the de-annexation and the Parcel being de-annexed shall be
executed by the Developer(if the Property is owned by the Developer)and the Association,
consented to by any mortgagee of the Parcel to be de-annexed and recorded. Upon recording
of the amendment,the de-annexed Parcel shall no longer be subject to this Declaration,and
all rights and obligations of the Owner of the Paxcel with respect to the Property and the
Association shall terminate.
2.5 Interests Subject to Plan of Development. Every Owner, secured party or other Person
holding or acquiring an interest in a Parcel,shall take title or hold such interest subj ect to the
Developer's rights pursuant to this Declaration.Notwithstanding anything to the contrary in
this Declaration,the Developer's rights or obligations under the Governing Documents may
not be changed in whole or in part without the prior written consent of the Developer,which
consent may be granted or denied in the Developer's sole and absolute discretion.
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SECTION 3
ASSOCIATION STRUCTURE, AUTHORITY AND MEMBERSHIP
3.1 Formation/Purposes.The Association has been created as a Minnesota nonprofit corporation
for the purpose of performing the following functions:
3.1.1 To maintain (i) any Common Property (if any) and all Improvements thereon, (ii)
common signs, entrance monuments and related design elements identifying The
Shoppes at Towne Lakes Two, whether located on the Property or not; and (iii)
certain Improvements of benefit to the Parcels and located on the Parcels.
3.1.2 To administer and enforce the covenants, conditions, restrictions, easements, and
other rights and obligations, set forth in the Governing Documents and the
Regulations.
3.1.3 To control,preserve and enhance the architectural and environmental character of the
Properiy.
3.2 Authoritv and Administration. The operation and administration of the Association and the
Property shall be governed by the Governing Documents, the Regulations and the Act.
3.2.1 The Association shall have and exercise all powers necessary to carry out its purposes
described in the Governing Documents on behalf of the Owners and Occupants.
3.2.2 The power and authority of the Association is vested in the Board, unless action or
approval by the Members is specifically required by the Governing Documents or the
Act. All references to the Association mean the Association acting through the
Board, unless expressly stated to the contrary.
3.2.3 All agreements and determinations made by the Association in accordance with its
authority under the Governing Documents are binding upon all Persons having any
interest in or using the Property.
3.3 Parcels. The Property is designed to accommodate various types of nonresidential
development, including offices and retail and service businesses, as approved by the
Developer and the City. The Property is divided into Parcels, each of which is designed to
accommodate an office Building, or a commercial, retail or service-oriented Building, and
related Improvements such as parking facilities,walkways,driveways and landscaping.The
Parcels are described in Exhibit A attached hereto. The Developer may create additional
Parcels out of real property added to the Property pursuant to Section 2.2.
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3.4 Membership. Membership in the Association is governed by the following qualifications:
3.4.1 Each Parcel shall have one membership in the Association, subject to the
qualifications set forth in this Section 3.4. Except as expressly provided in this
Declaration, a membership shall be appurtenant to and shall not be separated from
the Parcel to which it is attached, and shall be automatically transferred to any
successor Owner together with the title to the Paxcel.
3.4.2 Rights with respect to a membership shall be exercised by a director appointed to the
Board by the Owner or Owners of the Parcel to which the membership is attached,as
provided in the Bylaws.
3.4.3 No Person holding a security interest in any part of the Property shall be a Member
solely by reason of such interest.
3.4.4 Additional memberships in the Association may be created only by subjecting other
property to this Declaration, and designating one or more Paxcels on the annexed
property in accordance with the requirements of this Declaration.
3.5 Member Votin�. The Owners constitute the sole class of voting Members. One vote is
allocated to each Parcel. Each Owner or Owners of a Parcel are entitled to cast the vote
allocated to the Parcel they own. Multiple ownership of a Parcel shall not affect the voting
rights allocated to the Parcel. As Parcels are created on other property annexed to the
Property, or reduced in number by de-annexation, votes shall be reallocated to reflect the
changed number of Parcels. Member voting procedures are set forth in the Bylaws.
3.6 B• l�ws. The Association shall have Bylaws, which shall govern the operation and
administration of the Association, subject to this Declaration in the event of a conflict. The
Bylaws are binding upon all Owners and Occupants, and their invitees, all Mortgagees and
other secured parties,and all other Persons holding or acquiring any interest in the Property.
3.7 Board of Directors. The Association's affairs shall be administered and managed by the
Board,as provided in the Bylaws.Directors shall be elected, serve and exercise their powers
as provided in the Bylaws; provided, that the Developer has the exclusive right to appoint
certain directors of the Association during the Developer Control Period, as set forth in
Section 12.
3.8 Mana eg_ment. 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.
Such delegation of management authority shall not limit the authority of an Owner to retain a
manager for a Parcel or Parcels owned by it; provided, that the management of the Parcel
shall be conducted and coordinated with the Association's management, so as not to impair
or conflict with the management and operation of the Association and the Property as
prescribed by the governing Documents.Any delegation of management authority on behalf
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of the Association does not relieve the Association's officers and directors of the ultimate
responsibility for the performance of their duties as prescribed by the Governing Documents
and by law. The Developer and/or an affiliate of the Developer may be employed as the
manager of the Association and/or The Property pursuant to a separate,written agreement,
subject to termination if and as provided by the agreement.
3.9 Re�ulations. The Property and the conduct of Persons thereon is subject to regulation, as
follows:
3.9.1 The Board has the exclusive authority to approve and implement such reasonable
Regulations as it deems necessary from time to time for the purpose of facilitating the
operation of the Property and exercising its powers; provided that the Regulations
shall not be inconsistent with the Governing Documents or applicable law. The
inclusion in other parts of the Governing Documents of authority to approve
Regulations is in furtherance, and not in limitation, of the authority granted by this
Section.New or amended Regulations shall be effective only after thirty days' prior
notice,with copies of the changes to the Regulations,has been given to the Owners.
3.9.2 A Parcel Owner may establish reasonable rules relating to the conduct of persons
using or visiting the Owner's Parcel or individual business located thereon;provided
that the rules shall be consistent with and subject to the Governing Documents,the
Regulations and applicable law.
SECTION 4
PROPERTY AND PROPERTY RIGHTS
4.1 General. Those parts of the Property (if any) owned by the Association and not included
within the Parcels constitute Common Property,which shall be owned by the Association for
the benefit of the Owners and Occupants, and their invitees to the extent authorized by the
Governing Documents.The Owners and Occupants,and the public to the extent authorized,
shall have a reasonable right of use and enj oyment in the Common Property (if any). The
rights,interests,easements and obligations attributable to a Parcel shall pass with the title to
the Parcel as an appurtenance thereto, whether or not referenced in the instrument of
conveyance. As of the date of this Declaration, there is no Common Property
4.2 Mana�ement and O ern ation. Except as otherwise expressly authorized by the Governing
Documents,the Association shall manage,operate,maintain,repair and replace the Common
Property (if any) and perform all administrative functions relating to the operation of the
Association. Common Expenses for the operation of the Association,and the maintenance,
repair,replacement and management of the Property,shall be assessed against and collected
from the Owners in accordance with Section 6.
4.3 Title to Common Propertv. When real property is subjected to this Declaration,title to that
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portion of such property constituting Common Properiy (if any) shall simultaneously be
conveyed to the Association. Common Properiy shall be conveyed and owned subj ect to: (i)
building and zoning laws,and state and federal regulations;(ii)reservations of mineral rights
in the State of Minnesota; (iii)the lien of real estate taxes not yet due and payable; (iv)this
Declaration, and (v) other easements, covenants, conditions and restrictions of record.
4.4 Limitations on Rights and Easements. The easements and other rights of the Owners and
Occupants with respect to the Common Property shall be subject to the obligations,
conditions and restrictions described in or authorized by this Declaration and the Declaration
of Easements, all of which shall be appurtenant to and pass with the title to each Parcel.
SECTION 5
EASEMENTS
The following appurtenant easements and rights are hereby granted, conveyed, dedicated and
reserved on, over, under and across the Property, as applicable.
5.1 Utilities and Draina�e. There are nonexclusive easements in favor of authorized public and
private utilities providers, for the installation, use, maintenance, repair and replacement of
storm and sanitary sewers, drainage systems, storm water retention ponds and related
facilities, and electrical, natural gas,telephone and water lines benefitting the Property, on,
under and across the Property,as(i)constructed by the Developer,(ii)shown on the Plat,(iii)
described in this Declaration or other recorded instruments or(iv)approved by the Board on
any Common Property.
5.2 Communications. There are nonexclusive easements in favor of authorized public and
private providers,for the installation,use,maintenance,repair and replacement of telephone,
cable TV, fiber optic, security and other communication and electronic services benefitting
the Property, on, under and across the utilities easement areas as (i) constructed by the
Developer, (ii) shown on the Plat, (iii) described in this Declaration or other recorded
instruments, or(iv) approved by the Board on the Common Property(if any).
5.3 Encroachments. There is an exclusive easement for encroachments for the benefit of the
encroaching Improvement in the event that a Building or any other Improvement now or
hereafter constructed encroaches upon an adjoining Parcel due to nonmaterial inaccuracies in
survey, construction, reconstruction, settlement, movement or the like. The easement shall
continue for as long as the encroachment exists and shall not affect the marketability of title
to the Parcel. This easement for encroachments shall also include an easement for the
maintenance and use of the encroaching Improvements.
5.4 Entrance Si�ns and Monuments.There are nonexclusive easements in favor ofthe Developer
and the Association to erect,use,maintain,repair and replace entrance monuments,signs and
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related Improvements identifying the Property or specific Parcels or features,on and across
the Common Property(if any)and those parts of the Parcels identified as casement areas in
the Plat or any other recorded instruments.
5.5 Pedestrian Access.There are nonexclusive easements in favor of the Owners and Occupants
of the Parcels, and their customers and other invitees, for pedestrian access to businesses
located on the Pazcels on and over those parts of the Common Property (if any) and the
Parcels which are (i) designed, designated, surfaced or otherwise improved as walkways,
sidewalks, driveways, parking areas or plazas, or (ii) identified as such on the Plat, other
recorded instruments or site plans for the Property.
5.6 Parkin� and Vehicular Access. There is recorded against the Property that Non-Exclusive
Declaration of Cross Easements for Parking, Ingress and Egress, and Maintenance (the
"Reciprocal Street and Parking Easement")that grants nonexclusive reciprocal easements in
favor of all of the Owners and Occupants, and their customers and other invitees, for
vehicular access and parking on and over those parts of each of the Parcels which are
identified for such purposes in the site plan attached to and made a part of the Reciprocal
Street and Parking Easement. The easement is subject to the following qualifications:
5.6.1 Handicapped parking spaces shall be maintained adjacent to each Building for the
benefit of handicapped persons visiting that Building.
5.6.2 Except for authorized maintenance activities, no Person shall construct any
Improvement, nor obstruct, dump or store anything, on the parking areas or access
drives, nor undertake or permit any activity, which may impair access to or use of
such facilities.
5.6.3 Except for authorized maintenance activities, no Person shall stop, park or let any
motor vehicle stand unattended on any access drive(s),nor undertake or permit any
activity, which may otherwise impair use of any access drives to the facilities.
5.7 Maintenance Access. There is a non-exclusive easement in favor of the Association,
including any management agent or service vendor retained by the Association,for access on
and across the Common Property (if any) and the open space areas of the Parcels for the
purpose of perfortning maintenance, repair and replacement for which the Association is
responsible under the Governing Documents or any agreement with the City. The easement
rights shall be exercised,whenever practicable upon reasonable notice to any Owner whose
Parcel is directly affected.
5.8 Public Safety and Health. There are nonexclusive easements in favor of the City and other
applicable governmental authorities or agencies as shall from time to time have jurisdiction
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over the Property, on and across drives, walkways, paxking areas, plazas and other open
space areas of the Property for reasonable access to perform such duties related to law
enforcement,fire protection,life safety,health and sanitation as are reasonably required from
time to tune.
5.9 Developer Ri�. There are exclusive easements in favor of the Developer for the exercise
of its Developer rights under Section 12, which easements stall terminate when the
Developer no longer owns a Parcel or has a right to add additional real property to the
Property.
5.10 Duration,Restrictions and Use.The rights and easements granted or reserved by this Section
5 shall be permanent shall run with the land,unless otherwise expressly indicated,and shall
be subject to the following qualifications:
5.10.1 The easements shall supplement and not limit any easements described elsewhere in
this Declaration or any recorded instrument.
5.10.2 The easements shall be subj ect to reasonable regulation by the Association and shall
be subject to such reasonable limitations as to location and routing as may be
established by the Association or any governmental authority.
5.10.3 The easements shall include reasonable access over,under and across the Properiy to
maintain, repair, replace and reconstruct the easement areas and any Improvements
located thereon.
5.10.4 No Improvement shall be erected or maintained,no excavation,grading or reshaping
shall be undertaken, and no refuse, fill or other material shall be placed, in an
easement area, which may damage or interfere with the installation, use or
maintenance of such area,or which may change or impede the flow of water through
any drainage easement area.
5.10.5 Persons exercising easement rights shall (i)take reasonable care to avoid damaging
the Property or creating safety hazards; (ii) promptly repair any damage to the
Property which they or their employees or agents caused;(iii)promptly reimburse the
Association for all costs incurred by it for repairing damage to an easement area
caused by the Person exercising the easement rights; and (iv) hold harmless,
indemnify and defend the Association and other Owners, and their officers and
directors,from and against all claims,damages,losses and other liabilities arising out
of the exercise of the easement rights.
5.10.6 Except for rights under Section 5.13, the Developer's easement rights described in
this Declaration shall terminate when Developer no longer owns a Parcel or has the
might to add additional property to the Property.
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5.10.7 No grant, dedication or creation of an easement under this Declaration shall
constitute a dedication of the easement area or the use thereof to the public, it being
the intent of this Declaration that the Common Property (if any) be and remain
private property subject to operation,control and regulation by the Association, and
that the Parcels be and remain private property subject to operation, control and
regulation by the respective Owners thereof and/or the Association,as applicable,all
in compliance with the Governing Documents.
5.11 Restriction on Third Party Easement Grants. Except for the Developer in the exercise of its
rights under this Declaration, and the Board in the exercise of authority granted by the
Governing Documents,no Person shall create,grant or convey any easement or comparable
rights upon any portion of the Property without the prior written approval of the Board;
provided,that the Board shall grant such approval if(i)the easement will not adversely affect
the Common Property (if any) or another Parcel, (ii) the easement will not adversely and
materially affect the shared parking,ingress and egress rights of the Owners and Occupants
under the easement referenced in Section 5.6, and (iii) the easement is consistent with the
overall design and plan for the Property as established by the Developer and approved by the
City.Approval by the Board shall not be unreasonably withheld if the easement satisfies the
foregoing criteria.
SECTION 6
ASSESSMENTS
6.1 General. Assessments shall be determined and assessed against the Parcels by the Board, in
its discretion; subject to the requirements and procedures set forth in this Section 6 and the
requirements of the Bylaws.
6.2 Allocation of Assessments.Annual and special Assessments for Common Expenses shall be
allocated among the Parcels in accordance with the allocation schedule set forth in Exhibit B
attached hereto. Allocations of Common Expenses shall be adjusted according to the
allocation schedule set forth in Exhibit B, if and when additional Parcels are added to the
Property. If a Parcel is subdivided by the creation of a common interest community as
defined in Minnesota Statutes Chapter 51 SB,then the share of Common Expenses allocated
to that Parcel as originally platted shall be internally shared by and allocated among the
subdivided parts of the Parcel, as the Owners or owners associations owning or controlling
the Parcel mutually agree.
6.3 Annual Assessments. Annual Assessments shall be established and levied annually by the
Board. Each annual Assessment shall cover all of the anticipated Common Expenses of the
Association for that year which are to be shared by all Parcels in accordance with the
allocation formula referred to in Section 6.2.Annual Assessments shall be payable in equal
quarterly, semi-annual or annual installments, as established by the Board.
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6.4 �ecial Assessments. In addition to annual Assessments, and subject to the limitations set
forth hereafter,the Board may levy in any Assessment year a special Assessment against all
Parcels in accordance with the allocation schedule referred to in Section 6.2. Special
Assessments shall be used for the purpose of defraying in whole or in part the cost of any
unforeseen and unbudgeted, or underbudgeted, Common Expenses.
6.5 Limited Assessments. In addition to annual Assessments and special Assessments, certain
Common Expenses benefitting fewer than all the Parcels shall be allocated among the Parcels
as set forth in Exhibit B,unless unanimously agreed otherwise by the Board as provided in
the Bylaws. Common Expenses benefitting fewer than all Parcels, and not covered by
Exhibit B,may be allocated and levied by the Board,at its discretion,against only the Parcel
or Parcels benefitted. in addition,the Board may levy the following limited Assessments:
6.5.1 If any damage to the Common Property(if any)or another Parcel is caused by the act
or omission of any Owner or Occupant, or their employees, agents or invitees, the
Board may assess the costs of repairing the damage exclusively against the offending
Owner's Parcel to the extent not covered by insurance.
6.5.2 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, the Act, or the Regulations, against an Owner or Occupant, or their
invitees, may be assessed against the offending Owner's Parcel.
6.5.3 Late charges, fines and interest may be assessed as provided in Section 11.
Assessments levied under this Section 6.5 may,at the Boaxd's discretion,be assessed as a part of,or
in addition to, other Assessments levied under Section 6.
6.6 Liabilitv of Owners for Assessments. The obligation of an Owner to pay Assessments shall
be as follows:
6.6.1 The Owner or Owners of a Parcel at the time an Assessment is payable with respect
to the Parcel shall be personally liable for the Assessment;provided,that if part or all
of the Parcel is constituted as a common interest community as defined in Minnesota
Statutes Chapter S 15B, the owners association governing the common interest
community, as well as the Owner of the part of the Parcel outside the common
interest community(if any),shall be liable for Assessments levied against the Parcel.
Such liability shall be joint and several where there are multiple Owners of the
Parcel. Except as provided in Section 6.6.2, the liability is absolute and
unconditional, and no Owner or owners association is exempt from liability for
payment of Assessments by right of set-off,by waiver of use or enj oyment of any part
of the Properiy,by absence from or abandonment of the Parcel,by the waiver of any
other rights,or by reason of any claim against the Association or its officers,directors
12
or agents, or for their failure to fulfill any obligations under the Governing
Documents.
6.6.2 Notwithstanding anything to the contrary in the Governing Documents, the
Developer shall not be liable to pay any Assessment with respect to any Parcel owned
by it,nor shall the Parcel be subject to a lien for such Assessments,until the date on
which a Building located on the parcel has been substantially completed. The
Developer may grant to a Parcel Developer a similar partial or complete exemption
from liability for Assessments;provided that such exemptions shall(i)be in writing
and (ii) be granted and administered in a uniform, non-discriminatory manner as
among all Parcel Developers similarly situated.A substantially completed Building is
a Building with respect to which a certificate of occupancy or other comparable
certification has been issued by the City.
6.7 Assessment Lien. The Association has a lien on a Parcel for any Assessment levied against
that Parcel, from the time the Assessment is levied. If an Assessment is payable in
installments,the full amount of the Assessment is a lien against the Parcel from the time the
first installment thereof becomes due. Fees,charges,late charges,fines and interest charges
imposed by the Board against the Parcel or its Owner are also liens, and are enforceable as
Assessments. Recording of the Declaration constitutes record notice and perfection of any
lien under this Section 6, and no further recordation of any notice of or claim for the lien is
required. The release of the lien shall not release the Owner from personal liability unless
agreed to in writing by the Association.
6.8 Foreclosure of Lien; Remedies. A lien for Assessments may be foreclosed against a Parcel
under the laws of the State of Minnesota (i) by action, or (ii) by advertisement in a like
manner as a mortgage containing a power of sale. The Association, or its authorized
representative, shall have the power to bid in at the foreclosure sale and to acquire, hold,
lease, use, mortgage or convey any Parcel so acquired. The Owner or any other Person
claiming an interest in the Parcel,by the creation, acceptance or assertion of any interest in
the Parcel, grants to the Association a power of sale and full authority to accomplish the
foreclosure.The Association shall,in addition to its other remedies,have the right to pursue
any other remedy at law or in equity against the Owner who fails to pay any Assessment or
charge against the Parcel.
6.9 Lien Prioritv; Foreclosure. A lien for Assessments is prior to all other liens and
encumbrances on a Parcel except(I)liens and encumbrances recorded before the Declaration,
(ii) any first mortgage on the Parcel, and (iii) liens for real estate taxes and other
governmental assessments or charges against the Parcel;provided,that this Section shall not
prohibit the Association from subordinating, releasing or assigning its lien rights as
authorized by the Board.
6.10 Voluntary Conveyances; Statement of Assessments. In a voluntary conveyance of a Parcel
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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 Parcel 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 Parcel until released or satisfied.Any seller or buyer shall be entitled
to a statement from the Association setting forth the amount of the unpaid Assessments
against the Parcel, which statement shall be binding on the Association, seller and buyer.
SECTION 7
RESTRICTIONS ON USE OF PROPERTY
All Owners and Occupants,and all secured parties,by their acceptance or assertion of an interest in
the Property, or by their occupancy of part or all of a Parcel,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, as amended from time to time. All covenants,
restrictions and obligations set forth in the Governing Documents are in furtherance of a plan
for the Property, and shall run with the Property and be a burden and benefit to all Owners
and Occupants and to any other Person acquiring or owning an interest in the Property,their
heirs,persona) representatives, successors and assigns.
7.2 Subdivision.Except as permitted by this Declaration,no Parcel or Common Property may be
subdivided or partitioned without the written approval of(i)the Owner of the Paxcel,(ii)the
City, (iii)the Board and(iv)the Developer so long as it owns a Parcel.
7.2.1 A condominium or cooperative(collectively a"CIC")may be created within a Parcel
pursuant to Minnesota Statutes Chapter S 15B,subj ect to the terms of this Section 7.2.
7.2.2 Only one C 1 C shall be permitted on a Parcel,unless multiple CICs are approved by
the Association.
7.2.3 The Owner of the Parcel within which the CIC is proposed to be created shall first
obtain the written approval of(i)the Association and(ii)the Developer so long as the
Developer owns a Parcel. If the CIC is approved, the Owner of the Parcel shall
prepare and record, at its expense, a declaration and CIC plat as required by
Minnesota Statutes Chapter S 15B.The declaration and related documents governing
the CIC shall be subject to and consistent with the Governing Documents,and in the
event of a conflict, the Governing Documents shall control. Prior to the creation of
the CIC,the Declaration and related documents governing the CIC shall be reviewed
and approved by the Association's legal counsel to assure compliance with the
Governing Documents.
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7.2.4 The creation of a CIC within a Parcel shall not alter the voting rights or Common
Expenses allocated to the Parcel, and the Parcel shall retain a single membership in
the Association. The owners association governing the CIC and the Owner of the
remaining part of the Parcel (if any) shall collectively determine who shall be
authorized to cast the vote allocated to the Parcel and the internal sharing of the
Common Expenses allocated to the Parcel.If the entire Parcel is converted to a CIC,
the owners association governing the CIC(and not the individual unit owners in the
CIC shall have the rights and obligations of the Owner of the Parcel as originally
constituted, all in accordance with the Governing Documents.
7.2.5 The use of any units within the CIC shall be non-residential subject to the Governing
Documents and applicable governmental laws, ordinances or regulations.
7.3 Permitted/Prohibited Uses. The Parcels shall be primarily used for retail, commercial and
office purposes in compliance with the applicable City approvals, ordinances and zoning
regulations,and state and federal law.However,notwithstanding anything to the contrary in
the Governing Documents or laws or ordinances,(i)only one hotel or motel may be located
on the Property and(ii)none of the following businesses,trades,occupations or professions,
whether carried on for profit or otherwise, shall be conducted, maintained or permitted
anywhere on the Property: adult book store, adult theater, adult amusement facility, any
facility offering,selling,providing or displaying adult-oriented or sexually explicit materials,
liquidation facility, auction house, industrial use, place of worship, betting establishment,
bingo parlor, or any use which violates City ordinances.
7.3.1 Exclusivitv. In addition to the permittedlprohibited uses indicated in paragraph 7.3
above, in perpetuity, no restaurant or food service operation of any type will be
operated on Lot 4, Block 1, Towne Lakes Two (formerly known as Lot E), and
additionally,no other portion of the Development may be used as or for a restaurant
or business which(a)offers, serves,or sells any ready-made breakfast food items or
entree' and(b)derives more than twenty(20%)percent of its gross income from the
sale of ready made food entrees' during the hours of 11:00 a.m. to 1:30 p.m., local
time. The forgoing limitations and use restrictions shall run with the land and shall
be appurtenant to the subject Property
7.4 Parkin�. Surface parking on the Common Property (if any) and all of the Parcels shall be
available for use by all Owners and Occupants, and their customers and other invitees in
accordance with the easements described in Section 5.6.
7.4.1 Parking spaces shall be maintained adj acent to each Building in accordance with law
for the benefit of handicapped persons visiting that Building.
7.4.2 Unless otherwise agreed by the affected Parcel Owners and the Association,parking
areas located on a Parcel shall be primarily used for parking by Owners and
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Occupants of the Parcel, and their customers and other invitees.
7.4.3 Overnight parking, or storage or prolonged parking of vehicles, trailers or other
transportation devices, or other personal property of any type, is prohibited unless
(i)authorized by the Board, (ii)authorized by the Owner of any Parcel on which the
parking is located and (iii) in compliance with City ordinances.
7.4.4 The Reciprocal Street and Parking Easement recorded against the Property shall
control as against this Section 7.4.
7.5 Animals.The keeping,boarding, sheltering,breeding or sale of any animal on the Property is
prohibited;provided,that this prohibition shall not restrict(i)the operation of a pet store on a
Parcel or (ii) the legitimate use of qualified "service" animals by individuals who are
handicapped as defined under the Minnesota Human Rights Act or the Fair Housing
Amendments Act of 1988,as amended. The term"animal" shall be construed in its broadest
sense, and shall include all living creatures except humans.
7.6 Si ns. Sign or other displays of any type may be erected(i)only at locations established by
the Developer or subsequently approved by the Board, (ii) in compliance with City sign
ordinances and the design standards established for the Property by the Developer, and(iii)
approved pursuant to Section 8. However, an Owner may erect and post signs on the
Owner's Parcel as necessary to direct traffic, identify spaces, and facilitate other internal
operations of the Parcel. The Owner on whose Paxcel a sign or signs are located shall be
responsible for maintaining the signs in good condition and in a manner consistent with the
first-class maintenance and design standards applied to the Property as a whole,except that
any common signs advertising The Shoppes at Towne Lakes Two shall be maintained by the
Association.
7.7 Exterior Li�g. The location, size, color and design of all lighting fixtures or similar
equipment used or shown outside of a Building must be(i)in compliance with City lighting
requirements, (ii) consistent with the design standards established for the Property by the
Developer and (iii) approved pursuant to Section 8.
7.8 Outdoor Activities. Outdoor activities on the Property, such as promotional events,
demonstrations,displays,outdoor dining or other activities which have the potential to affect
any easement or use rights, or cause a nuisance or disruption,or create material liability for
the Association or any Member, shall be subject to approval by the Board and the Owner of
any Parcel on which the activity will take place. In determining whether to authorize an
activity, the Board shall take into consideration, among other things, the security of the
Property, the potential for disturbance or damage to the Property, the potential liability for
the Association or any Member, the health and safety of Persons occupying or using the
Property,and whether the activity unreasonably impairs any easement or other authorized use
of the Property.
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7.9 Development A�reement. The Developer has entered into that City of Albertville Master
Planned Unit Development Agreement Towne Lakes Third Addition, as amended for
Shoppes at Towne Lakes Two (the "Development Agreement") with the City. The
Development Agreement contains various restrictions and requirements with respect to the
development of the Properly,the construction of Buildings and other Improvements thereon,
and the use and maintenance of various spaces owned or maintained by the Association.The
Developer,Parcel Developers,Owners,Occupants and all other Persons owning,occupying
or using the Property shall comply in all respects with the Development Agreement.
7.10 Quiet Enj oyment;Interference Prohibited.All Owners and Occupants and their invitees sha11
have a right of quiet enjoyment in their respective Parcels,subject to the usual and customary
sights, sounds, odors and activities commonly associated with the operation of businesses
such as those located on the Property from time to time. Subject to the foregoing, the
Property shall be owned, occupied and used so as not to cause a nuisance or undue
disturbance, nor unduly restrict, interfere with or impede the use of the Common Property
and the Parcels by the respective Owners and Occupants and their invitees.
7.11 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 he
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 or their invitees.
7.12 Time Shares Prohibited.The time share form of ownership,or any comparable form of lease,
occupancy rights, ownership, or right-to-use programs,which has the effect of dividing the
ownership or Occupancy of a Parcel or any part thereof into separate time periods, is
prohibited.
SECTION 8
CONSTRUCTION AND ARCHITECTURAL STANDARDS
8.1 Construction of Buildin�s. The Parcel Developer or a subsequent Owner of a Parcel shall
have the right to construct a permanent Building or Buildings on the Parcel, subject to prior
approval of the plans and specifications by the Developer and by the City. All such
construction shall be subject to the following conditions:
8.1.1 A Parcel Developer or other Owner who wishes to construct a Building or other
Improvements on an unimproved Parcel shall submit to the Developer an application
requesting approval of the Improvements. The application shall include detailed
plans, specifications and related information regarding the proposed improvements,
in form and content acceptable to the Developer. The application and related
materials shall be submitted to the Developer at least 90 days prior to the proj ected
commencement of construction. No grading, site preparation or other construction
17
shall be commenced prior to approval of the proposed Improvements.The Developer
shall respond to the application in writing within the time frame and subj ect to the
procedures set forth in Sections 8.3.2 and 8.3.3.The Parcel Developer or Owner shall
also be subject to Sections 8.4 and 8.5. Additional construction or site alterations
made following completion
of the initial Improvements approved by the Developer shall be subject to Sections
8.2 through 8.5.
8.1.2 All construction activities shall be performed in compliance with all laws, rules,
regulations, orders, codes and ordinances of the City and other applicable
governmental authorities having jurisdiction over the Property. The Owner of the
Parcel shall be responsible for obtaining all permits and approvals prior to
commencing any site activity for which such approvals are required.
8.1.3 The Owner of the Parcel shall not permit any mechanic's or materialmens' liens or
other similar liens to attach to any part of the Property. Notwithstanding the
foregoing, the Owner undertaking or authorizing such construction may contest the
validity or amount of any such lien by paying an appropriate amount into court and
thereby causing the lien to be released at such Owner's expense.
8.1.4 The Owner of the Parcel shall hold harmless, indemnify and defend the Developer,
Association,other Owners,the Property and each individual Parcel,from and against
all liens, encumbrances losses, claims, damages, expenses and liabilities (including
reasonable attorneys' fees) arising out of construction activities undertaken or
allowed to be undertaken by the Owner on the Parcel.
8.1.5 Except as otherwise agreed by the Developer and the Association, all storage of
materials and parking of construction vehicles and equipment, including workers'
vehicles shall he restricted to the Parcel owned by the Owner or public streets
8.1.6 The Owner of the Parcel shall be responsible for repairing any damage to
Improvements located on that Parcel or elsewhere on the Property and arising out of
the construction activity. Said Owner shall promptly restore any damaged properiy to
substantially its condition immediately prior to the event causing the damage or to a
condition compatible with the current Improvements if further improvements have
been made.
8.1.7 Neither Developer nor any of its officers, directors or employees, nor any Person
acting on behalf of any of them, shall be responsible for any defects in plans and
specifications or construction undertaken by an Owner on a Parcel. Each Person
submitting plans and specifications to the Developer for approval shall be solely
responsible for the sufficiency of the plans and specifications submitted and for the
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quality of construction of the Improvements constructed, and shall hold harmless,
indemnify and defend the Developer,the Association and their officers,directors and
employees,from and against any and all claims,damages and liabilities arising out of
the approval, construction or use of any Improvements, including but not limited to
reasonable attorneys' fees and court costs.
8.1.8 The Developer may, from time to time, establish and provide to Parcel Developers
and other Owners design and construction standards with respect to Buildings and
other Improvements to be constructed on the Parcels. All such standards and
requirements shall be binding upon and apply to all Parcel Developers and other
Owners, and any other Person undertaking construction on a Parcel.
8.2 Restrictions on Alterations. One of the purposes of this Declaration is to ensure that the
Common Property, and those parts of the Buildings and other parts of the Parcels which are
visible from the exterior,be kept architecturally attractive and consistent in appearance with
the original proj ect design characteristics established by the Developer.Therefore,except as
set forth in Section 8.6,the following restrictions and requirements shall apply to alterations
on the Property subsequent to initial construction of the Improvements on a Parcel:
8.2.1 Except for initial construction subject to the Developer's exclusive approval under
Section 8.1 or as otherwise expressly provided in this Section 8, no structure,
Building, addition, deck, patio, fence, wall, enclosure, antenna or other type of
sending or receiving appaxatus, sign, display,material topographical or landscaping
change, grading or excavation,nor any other exterior Improvements to or alteration
of any Parcel (referred to as an "alteration" or "alterations"), shall be commenced,
erected or maintained, unless and until the plans and specifications showing the
nature,kind,shape,height,color,materials and locations of the alterations shall have
been approved in writing by the Board or a committee appointed by it.
Notwithstanding the foregoing,Developer's written consent shall also be required for
alterations for so long as Developer owns a Parcel for sale.
8.2.2 The Board may appoint, supervise and dis-establish an architectural committee,and
specifically delegate to it part or all of the functions which the Board exercises under
this Section 8, in which case the references to the Board shall refer to the
architectural committee where appropriate. The architectural committee shall be
subject to the supervision of the Board.
8.2.3 The Board may establish standards for approval of alterations, which shall, at a
minimum, (i) adequately protect the Property, the Association, Owners and
Occupants from liens and other liabilities axising out of the construction of the
alterations, (ii) maintain the design characteristics, exterior materials and colors of
the Building and other improvements located on the Parcel, and (iii) comply with
governmental laws,codes and regulations.The Board,or the appointed architectural
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committee if so authorized by the Board, shall be the sole judge of whether such
criteria are satisfied.
8.2.4 Approval of alterations which encroach upon another Parcel or the Common Properly
shall create an appurtenant easement for such encroachment in favor of the Parcel
with respect to which the alterations are approved, notwithstanding any contrary
requirement in the Governing Documents or the Act. A file of the resolutions
approving all alterations shall be maintained permanently as a part of the
Association's records.
8.3 Review Procedures.The following procedures shall govern requests for alterations tinder this
Section:
8.3.1 Detailed plans, specifications and related information regarding any proposed
alteration, in form and content acceptable to the Board, shall be submitted to the
Board (and to Developer if applicable) at least sixty days prior to the proj ected
commencement of construction. No alterations shall be commenced prior to
approval.
8.3.2 The Board (and/or Developer if applicable) shall give the Owner written notice of
approval or disapproval of the Board(and/or Developer if applicable)fail to approve
or disapprove within forty-five days after receipt of said plans and specifications and
all other information requested by the Board (and/or Developer if applicable), then
approval shall be deemed to be granted;provided,that the construction must be done
in accordance with the plans, specifications and related information which were
submitted or shall be deemed not approved.
8.3.3 If no request for approval is submitted, approval shall be deemed to be denied.
8.4 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
incurred by the Association,whether or not a legal action is started. Such attorneys' fees and
costs shall be a lien against the Owner's Parcel and a personal obligation of the Owner. In
addition,the Association shall,upon thirty days notice, have the right to enter the Owner's
Parcel and to restore any part of the Building or Parcel to its prior condition if any alterations
were made in violation of this Section,and the cost of such restoration,and any professional,
administrative or other fees or costs incurred in connection with the Association's remedial
actions, shall be a personal obligation of the Owner and a lien against the Owner's Parcel.
8.5 Owner Responsibilitv/Indemnity.The Owner who causes an alteration to be made,regardless
of whether the alteration is approved by the Board, shall be responsible for the construction
work and any claims,damages,losses or liabilities arising out ofthe alterations.The Owner
20
shall hold harmless, indemnify and defend the Association, and its officers, directors and
committee members, from and against any claims, damages, expenses, losses or other
liabilities, including but not limited to attorneys' fees or costs of litigation, arising out of(i)
any alteration which violates any governmental laws, codes, ordinances or regulations, (ii)
the inadequacy of the specifications or standards for construction of the alterations and(iii)
the construction of the alterations.
8.6 Exem tions.The requirements set forth in this Section 8(except Section 8.5)shall not apply
to original construction by the Developer or its affiliates.
SECTION 9
MAINTENANCE
9.1 Association Obli at�ons.The Association is obligated to provide the following maintenance,
repair and replacement on the Property:
9.1.1 Maintain, repair and replace the Common Property (if any), including all
Improvements thereon.
9.1.2 Maintain any medians in public streets located adj acent to the Property if required by
the City.
9.1.3 Maintain, repair and replace common entrance or directional signs and related
monuments identifying the Property,or businesses located thereon,whether located
on or adjacent to the Property. Notwithstanding the foregoing, signs erected by a
Parcel Owner or Occupant to advertise the business or businesses located on a Parcel
shall be maintained by the Owner or Occupant.
9.1.4 Maintain, repair and replace the decorative private street lighting, private street
medians, median landscaping and the surfaced private streets, including the Access
Area as defined in the Reciprocal Street and Parking Easement, located on the
Parcels in a commercially reasonable manner, including but not limited to seal
coating, striping, asphalt repair and replacement, sweeping and snow removal.
9.1.5 Maintain, repair and replace landscaping, sidewalks, surfaced parking areas,
including the Parking Area as defined in the Reciprocal Street and Parking Easement,
driveways, medians and curbs located on the Parcels in a commercially reasonable
manner, including but not limited to seal coating, striping, asphalt repair and
replacement, sweeping, snow removal, and signage(including but not limited to the
"No Parking" signs); provided, that one or more of said obligations may be
undertaken by an Owner with respect to that Owner's Parcel if agreed in writing by
the Association and the Owner of the Parcel in question. If such obligations are
undertaken by an Owner, the Owner shall, to the extent practicable, coordinate its
maintenance activities with those of the Association and shall maintain the areas in
21
question to the same or higher standards than those established by the Association.
9.1.6 Maintain,repair and replace rain gardens,depressions,storage and filtration systems
in a manner that allows them to function as designed and in accordance with the
Development Agreement.
9.1.7 Undertake such other additional maintenance,repair or replacement of the Property
as may be approved by a 75% majority vote of the Board; provided, that a Board
resolution authorizing such additional services must be approved for each calendar
year in which such services are to be undertaken and in the absence of such approval
the Association's obligation to perform those services shall terminate at the end of
the calendar year for which the Board authorization was effective.
9.1.8 Restore the Improvements on any Parcel to substantially their prior condition where
the Improvements have been damaged or destroyed by the Association's maintenance
activities.
9.1.9 Enter any Parcel and perform required maintenance which the Parcel Owner has
neglected or refused to perform, after thirty days' notice to the Parcel Owner, and
assess all costs thereof against the Owner's Parcel.
9.1.10 The Association's maintenance shall be performed in compliance with the (i)
Governing Documents,(ii)all applicable governmental laws,codes,ordinances and
regulations and(iii)the standards established for the Property by the Developer or the
Association.
9.1.11 The costs of maintenance, repair and replacement shall be allocated among the
Parcels in accordance with Section 6 and Exhibit B, except those costs for
maintenance undertaken by the Owner pursuant to Section 9.1.5.
9.2 Owner Obli atg ions. The maintenance obligations of the Owners are as follows:
9.2.1 Except for maintenance,repair or replacement performed by the Association,owners
shall maintain, repair or replace their respective Parcels and all Buildings and other
Improvements thereon in first class,clean,safe and sanitary condition,in compliance
with the (i) Governing Documents, (ii) all applicable governmental laws, codes,
ordinances and regulations,and(iii)the standards established for the Property by the
Developer and approved by the City.
9.2.2 If damage to the Property is caused by the acts or omissions of an Owner, or an
Occupant of the Owner's Parcel,or their employees,contractors, agents or invitees,
the Owner shall, promptly upon the request of the Association, (i) restore the
damaged property to substantially its prior condition or better condition, or (ii)pay
22
for the cost of restoration if undertaken by the Association.
9.3 Cit�ght to Maintain; Other Relief. In the event the Association fails to perform any of its
obligations as set forth in subsections 9.1.1 through 9.1.5 above, the City may provide
written notice to the Association regarding the Association's failure to perform its
obligations,which notice shall specifically describe the maintenance,repair or replacement
which the Association has failed to provide. If the Association fails to provide the
maintenance, repair or replacement described in the City's notice within thirty (30) days
following the Association's receipt of the City's notice, the City may, but shall not be
obligated, to enter upon Property and perform the maintenance, repair or replacement
described in the City's notice. The costs and expenses incurred by the City in performing
such maintenance, repair or replacement shall be deemed for the benefit of all Parcels
constituting part of the Property, notwithstanding that said work was not performed on all
parcels, and shall be considered a special chaxge which may at the City's option be charged
back proratably against the property taY bill of each Parcel constituting a part of the Property.
Notwithstanding the foregoing, in the event that the private streets are not maintained in
accordance with the terms hereof such that said private streets pose a safety hazard to the
general public,the City shall provide 48 hours notice of deficient maintenance to the Owners,
after which time the City may immediately require that commercial business not be
transacted on any Parcel to which access remains impaired or unsafe.
SECTION 10
INSURANCE AND RECONSTRUCTION
10.1 Association Insurance. The Association shall obtain and maintain the following insurance
relating to the Property:
10.1.1 Property insurance. Property insurance in broad form, covering all risks of physical
loss,for the full insurable replacement value of any insurable Improvements located
on the Common Property (if any). The insurance policy shall provide such other
coverages, limits and deductibles as the Board deems reasonable.
10.1.2 Liability Insurance. Commercial general liability insurance covering the Common
Property (if any), and the activities of the Association and its officers, directors,
volunteers or employees in connection with the performance of its and their duties.
Said liability insurance shall be in the minimum amounts of(i) $3,000,000 for an
accident affecting more than one person in or resulting from one occurrence and(ii)
$1,000,000 property damage for each occurrence.The insurance policy shall include
coverage relating to the Access Area and parking Area as defined in the Reciprocal
Street and Parking easements,shall name each of the Owners and Occupants of each
of the Parcels as additional insureds and shall provide the primary coverage for such
Access Areas and Parking Areas. The insurance policy shall provide for such other
coverages, limits and deductibles as the Board deems reasonable.
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10.1.3 Other Insurance. Such other types and amounts of insurance as may be determined by
the Board to be necessary or desirable, including but not limited to officers and
directors' liability insurance, workers' compensation insurance, and insurance or
fidelity bonds covering dishonest acts by those Persons having control or custody of
the Association's funds.
10.1.4 Association as Trustee/Premiums. All insurance coverage maintained by the
Association shall be written in the name of the Association as trustee for the Owner
or Owners, as applicable. The premiums for the insurance shall be a Common
Expense, except that the cost of any coverages or limits resulting from unique or
hazardous activities carried out on a particular Parcel or Parcels may be assessed
against that Parcel or Parcels.The Board shall have exclusive authority to negotiate,
settle and adjust claims under all policies obtained by the Association.
10.1.5 Policy Requirements. Insofar as permitted by law,the Association shall be required
to make every effort to secure insurance policies with the following provisions and
endorsements, if reasonably available:
10.1.5.1 Policies shall be written with a company licensed to do business in
the State of Minnesota and holding a rating of A-X1 (or comparable)
or better in such financial categories as established by Best's
Insurance Reports,if such a company is available,or if not available,
its equivalent rating or the best rating possible.
10.1.5.2 Policies shall contain a waiver by the insurer of its right to cancel
without first giving thirty days prior written notice of such
cancellation to the Association.
10.1.5.3 No policy or coverage shall be brought into contribution with
insurance purchased by Owners, and all policies shall contain
appropriate provisions to that effect.
10.1.5.4 Policies shall contain a waiver of subrogation by the insurer as to any
claims against the Association and Owners and their directors and
officers, and the Association's manager, if any.
10.1.5.5 Policies shall contain a provision that no policy may be canceled,
invalidated,or suspended on account of the conduct of one or more of
the Owners, or on account of the acts of any director, officer,
employee,or agent of the Association or of its manager,without prior
demand in writing delivered to the Association to cure the defect and
the allowance of a reasonable time thereafter within which to cure the
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defect.
10.1.5.6 Liability insurance shall contain cross-liability endorsements to cover
liability of the Association to an Owner and shall also name the
Developer as an additional insured for so long as the Developer owns
any part of the Property.
10.1.6 Deductibles. The Board shall determine the insurance deductible amounts. The
Association may pay insurance deductible amounts out of Common Expense funds or
to assess the deductible amounts against the Parcels involved in the claim, based
upon fault or any other reasonable criteria determined by the Board.
10.2 Owner Insurance. Each Owner shall obtain and maintain the following insurance, and
undertake the following indemnities relating to the Owner's Parcel:
10.2.1 Property insura.nce insuring all insurable Improvements on the Owner's Parcel for the
full insurable replacement value of such improvements.
10.2.2 Commercial general liability insurance covering the Owner's Parcel, and the
activities of the Owner, and its officers,directors, employees,agents and invitees in
connection with the Owner's operation,management and use of the Parcel,including
any additional coverages customarily carried for unique or hazardous activities
arising out of a business or activities conducted on the Parcel. Said liability insurance
shall be in the minimum amounts of(i) $3,000,000 for an accident affecting more
than one person in or resulting from one occurrence and (ii) $1,000,000 property
damage for each occurrence. Each Owner shall, upon request of the Association or
any other Owner, furnish a certificate or certificates of such insurance.
10.2.3 Each Owner shall hold harmless, indemnify and defend each other Owner, the
Developer and the Association,and their officers and directors,from and against all
claims, actions, damages and other liabilities arising out of incidents occurring on
such Owner's Parcel or arising out of the conduct of its Occupants, employees,
agents, contractors and invitees while on the Property, unless caused by the
intentional or negligent act or omission of the Association or the Owner to be
indemnified.
10.3 Damage or Destruction to Improvements. The repair or reconstruction of damaged or
destroyed Improvements to the Common Property(if any)shall be promptly undertaken and
completed by the Association. The repair or reconstruction of damaged or destroyed
Improvements located on a Parcel shall be promptly undertaken and completed by the Owner
of the Parcel.All repair or reconstruction shall restore the Improvements to substantially their
condition immediately prior to the casualty or better condition. If the Owner of the Parcel
25
which suffers the casualty does not wish to reconstruct the Improvements, and if each
Mortgagee of the Parcel and the Association agree in writing to such plan, then the
Improvements need not be rebuilt;provided,that all remains of the Improvements located on
the Parcel shall be removed from the Parcel or buried if permitted, and the Parcel shall be
graded and all debris shall be removed from the Parcel, all of which shall be done at the
expense of the Parcel Owner and to the satisfaction of the Association and the City.
SECTION 11
COMPLIANCE AND REMEDIES
11.1 Entitlement to Relief. The Association has authority to commence legal action to recover
sums due,for damages,for injunctive relief;or any combination thereof,or an action for any
other relief authorized by the Governing Documents 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 another Owner, to enforce compliance with the Governing Documents, the
Regulations or the decisions of the Association. However, no Owner may withhold any
Assessments, or take or omit other action in violation of the Governing Documents, the
Regulations or the Act as a measure to enforce such Person's position, or for any other
reason.
11.2 Remedies.In addition to any other remedies,express 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 or Members which violate the provisions of the Governing
Documents or the Regulations:
11.2.1 Commence legal action for legal or equitable relief in any court of competent
jurisdiction.
11.2.2 Impose late charges of up to the greater of$100, or 20%of the amount past due, for
each past due Assessment or installment thereof; and impose interest at the highest
rate permitted by law on all such unpaid amounts from the due date.
11.2.3 If any Assessment or installment thereof becomes more than thirty days past due,all
remaining installments of Assessments assessed against the Parcel may be
accelerated by the Board, and shall then be payable in full together with all costs of
collection and late charges.Ten days' advance written notice of the acceleration shall
be given to the defaulting Owner,during which time the Owner may cure the default
by payment of the past due Assessments and all related charges, interest and
attorneys' fees, if any,
11.2.4 Impose reasonable fines, penalties or charges for each violation of the Governing
Documents or the Regulations.
11.3 Ri�hts to Hearing.Before the imposition of any of the remedies authorized by Section 11.2.4,
26
the Board shall,upon written request of the offender,grant to the offender an opporlunity for
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 ten days within which to request a hearing.The hearing
shall be held within thirty days of receipt of the hearing request, and with at least ten days'
notice to the offender.If the offender 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 resulting decision shall be delivered in writing to the offender
within ten days following the hearing, if not delivered to the offender at the hearing.
11.4 Liabilit�for Owners' and Members' Acts. An Owner or Occupant shall be liable for the
expense of any maintenance,repair or replacement of the Property arising out of their acts or
omissions, or the acts or omissions of their invitees, to the extent that such expense is not
covered by the proceeds of insurance.
11 .5 Costs and Attorneys' Fees. With respect to or any measures, legal, administrative, or
otherwise, which the Association takes to enforce the provisions of the Governing
Documents,or the Regulations,the offender shall promptly pay or reimburse the Association
for any expenses incurred in connection with such enforcement,including without limitation
fines or charges previously imposed by the Association, fees of attorneys and other
professionals, court costs and collection agency contingent fees.
SECTION 12
DEVELOPER RIGHTS
The Developer hereby reserves exclusive and unconditional authority to exercise the following
Developer rights for as long as it owns a part of the Property or has the right to subject any
Additional Property to the Property, or for such shorter period as may be specifically indicated:
12.1 Complete Improvements.To complete all Improvements to the Property contemplated by the
Developer's development plans, contemplated by the Declaration or approved by the City,
and to make alterations on the Common Property (if any) or on Parcels owned by it to
accommodate its activities.
12.2 Development and Sales Facilities. To construct, operate and maintain sales and leasing
offices,management offices,models,and other development,sales and rental facilities on the
Common Property(if any) and within any part of the Properly owned by the Developer.
12.3 S�.To construct and maintain signs and other sales displays offering parts of the Properiy
for sale, on the Common Property (if any) and any part of the Property owned by the
Developer or subject to its easement rights.
27
12.4 Easements. To have and use access easements, for itself, its employees, contractors,
representatives, agents and prospective purchasers through and over the Property for the
purpose of exercising its Developer rights and other rights authorized by this Declaration.
12.5 Control the Association.To appoint and remove the members of the Board,until the earliest
of: (i) voluntary surrender of control by the Developer, (ii) sixty days after the date when
certificates of occupancy have been issued by the City for Buildings located on seventy-five
percent of the Parcels which the Developer has the right to create or develop based on City
approvals, or(iii)the date ten yeaxs following the date of recording of the Declaration.
12.6 Add, Combine or Subdivide Propertv. To add real property, or to combine, relocate or
subdivide parts of the Property pursuant to Sections 2.2, 7.2 and 13.
12.7 Approval of Certain Amendments. Subject to City approval,to approve any amendment or
other change to the Governing Documents or any Regulations for as long as the Developer
owns any part of the Property or has the unexpired right to subj ect any additional properly to
this Declaration.
12.8 Other Ri�. To exercise any other rights and powers granted or reserved to the Developer
by any other section of the Governing Documents.
12.9 Transfer of Developer Ri h�ts. Some or all of the Developer rights under Section 12 or 13
may be voluntarily transferred,temporarily or permanently,by the Developer by a separate
instrument signed by the Developer and the transferee;provided,that(i)written notice of the
transfer shall be given to all Parcel Owners at least thirty days prior to the effective date of
the transfer,and(ii)no further transfer of the Developer rights may be made by the transferee
without the prior written consent of the Developer. Upon the transfer of any Developer
rights, the Developer's liability shall be limited to matters arising from its acts occurring
before the transfer or relating to any Developer rights retained by the Developer, and the
Developer shall not be liable for any matters arising front the exercise of Developer rights by
any subsequent holder of the Developer rights.
SECTION 13
RIGHTS TO COMBINE,RELOCATE AND SUBDIVIDE PROPERTY
The Developer shall have the exclusive unilateral right to (i) combine, subdivide or relocate the
boundaries between Parcels; (ii) combine or subdivide Parcels; or(iii)replat Parcels subject to this
Declaration and create new Parcels or Common Property therefrom, as provided in this Section.
Subject only to approval by the City,the Developer may take such action while it owns the property
in question or thereafter as provided in this Section, subject to the following requirements:
28
13.1 The creation, combination or subdivision of a Parcel shall comply with all governmental
laws,codes and regulations applicable to the transaction,and shall be for purposes consistent
with those set forth in the Governing Documents.
13.2 Any membership, voting rights and Common Expense obligations accruing to an affected
Parcel shall, as necessary, be reallocated in accordance with Sections 3 and 6.
13.3 The creation,relocation, combination or subdivision shall be accomplished by Developer's
preparing, executing and recording an amendment to the Declaration, as needed.
13.4 If the change involves a Parcel not owned by the Developer,then the approval of the Owner
of the Parcel shall be required.
SECTION 14
AMENDMENTS
This Declaration may be amended by recording an amendment in the office of the applicable county
recording officer, subject to the following requirements:
14.1 Approvals. The amendment shall be approved as follows:
14.1.1 The amendment shall be approved by at least a seventy-five percent majority of the
votes of all members of the Board.The amendment may be approved by a voice vote
at a Board meeting or in writing.
14.1.2 An amendment which affects any rights or obligations of the Developer shall be
approved in writing by the Developer so long as the Developer owns an unsold
Parcel.
14.1.3 My amendment which affects any rights or obligations under the Development
Agreement, or rights or obligations granted to or assumed by the City under this
Declaration,shall be approved in writing by the City,and by the Developer so long as
it is obligated under the Development Agreement.
14.2 Recordin indin Eg ffect.All amendments shall be recorded,and sha11 run with the Property
and bind the Property for the same period and to the same extent as do the covenants and
restrictions set forth herein.
14.3 Affidavit of Compliance.An affidavit by the President or Secretary of the Association as to
the outcome of the vote or the execution of any written approvals shall be adequate evidence
thereof for all purposes, including without limitation the recording of the amendment.
SECTION 15
29
INDEMNIFICATION
The Association shall,to the extent the alleged liability is not covered by issuance,indemnify every
individual acting in any official capacity on behalf of the Association,pursuant to the provisions of
Minnesota Statutes 317A.521.
SECTION 16
MISCELLANEOUS
16.1 Governmental Assessments. If a City or any other governmental authority levies an
assessment under the applicable Minnesota Statutes for public Improvements to property
adjoining the Property,if such Improvements benefit substantially all of the Property,and if
the assessment is levied against fewer than all of the Parcels, then the Board may, by a
two-thirds majority vote, assess and allocate against those Parcels which were not assessed
by the governmental authority a share of the assessment, and reimburse the owners of the
Parcels against which the governmental assessment was levied, such that all Parcels are
paying a share of the assessment equal to their respective shares of general Common
Expenses set forth on
16.2 Severabilitv. 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.
16.3 Inter�retation. The Governing Document shall be construed in accordance with the laws of
the state of Minnesota. Where applicable,the masculine gender of any word shall mean the
feminine or neutral gender, or vice versa, and the singular of any word used herein shall
mean the plural,or vice versa.References to the Act,or any section thereof,shall be deemed
to include any statutes amending or replacing the Act, and the comparable sections thereof.
16.4 Notices.Unless specifically provided otherwise in the Governing Documents or the Act,all
notices required to be given by or to the Association,the Association officers, an Owner or
Occupant, or a Member, shall be in writing and shall be effective upon hand delivery, or
three business days following mailing if properly addressed with postage prepaid and
deposited in the United States mail,except as expressly provided otherwise in the Governing
Documents.
16.5 Conflicts Amon�Documents. In the event of any conflict among the provisions of the Act,
the Declaration, the Bylaws or the Regulations, the Act shall control unless it permits the
documents to control. As among the Declaration,Bylaws and Regulations,the Declaration
shall control,and as between the Bylaws and the Regulations,the Bylaws shall control. The
Governing Documents
30
shall control as against any contracts,covenants,regulations or similar instruments recorded
against a Parcel.
16.6 Duration of Covenants.The covenants,conditions,restrictions,easements,liens and charges
contained in this Declaration shall be perpetual, subject only to termination as provided in
this Declaration.
IN WITNESS WHEREOF,the undersigned has executed this instrument as of the day and year set
forth below.
ALBERTVILLE PHASE II, LLC
By; � c_ c::-.�c L'E�: -
, , �.
Its: ���--� �'' ����/Jl�_ -�--�_
, f, �
�.,
STATE OF MINNESOTA )
) ss.
COUNTY OF �' f r��
)
T e foregoing instrument was ac owled��d before me this � day of
� " , 2006, by �(?��� , the
• � � ,� of Albertville Phase II, LLC, a Minnesota limited liability
company, on be lf of said entity.
�__- � 1
�� � ^ � ��
Notary Public � �
THIS DOCUMENT WAS DRAFTED BY:
�
Joseph S. Mayers LYNN MARY FELDNEGE
NOTARY PUBLIC-�INNESOTA
KELM &REUTER, P.A. ` ;,,;;�! My Commission Expires Jan.31,2007
Attorney No. 0295747
1287 2nd Street North, Suite 101
Sauk Rapids, MN 56379
(320) 251-1423
EXHIBIT A TO DECLARATION
THE SHOPPES AT TOWNE LAKES TWO
DESCRIPTION OF PROPERTY AND DESIGNATION OF PARCELS
31
Lots 1 - 5 and Outlot A, Block 1, The Shoppes At Towne Lakes Two, according to
the recorded plat thereof, Wright County, Minnesota.
(Note: Each of the above described Lots constitutes a Parcel herein. At the date of the filing of this
Declaration there is no Common Property.)
EXHIBIT B TO DECLARATION
THE SHOPPES AT TOWNE LAKES TWO
ALLOCATION OF COMMON EXPENSES
The following Common Expenses for the operation and administration of the Association, and the
operation,maintenance,repair and replacement of the Property and certain Parcels,shall be allocated
and assessed against the Parcels as follows:
32
1. General Common Expenses of the Association shall be funded by annual or special
Assessments, as follows:
A Items covered:
(1) Maintenance of Common Property(if any).
(2) Maintenance of any medians in public streets located adjacent to the Property.
(3) Maintenance of common proj ect signs,monuments and related Improvements.
(4) Maintenance of decorative private street lighting, private street medians,
median landscaping and the surfaced private streets, including the Access
Areas as defined in the Reciprocal Street and Parking Easement, located on
the Parcels, including but not limited to seal coating, striping, asphalt repair
and replacement, sweeping and snow removal.
(5) Costs for advertising and promotion, and design features and enhancements
such as seasonal flowers, tents, banners or other displays, or promotional
events, relating to and promoting Shoppes at Towne Lakes as a whole.
(6) Premiums for Association insurance.
(7) Association management fees.
(8) General administrative expenses,including but not limited to accounting and
legal services,taxes,permits, and meeting and office expenses.
(9) Other expenses which are determined by the Board to benefit The Shoppes at
Towne Lakes Two as a whole.
B. Allocation: Allocated among and assessed against the Parcels in proportion to the
approximate gross square footage of the area of each Parcel, as determined by the
professional engineering/surveying firm or firms that prepare the plats and site plans
for the Property.
2. Except as provided in the Note referred to below, the following unique allocations of
Common Expenses shall be funded by annual or special Assessments, as follows:
A. Items covered: Maintenance, repair and replacement of the landscaping, sidewalks
surface parking axeas(including the Parking Areas as defined in the Reciprocal Street
and Parking Easement), medians and driveways located on the various Parcels,
including but not limited to seal coating, asphalt repair and replacement, striping,
33
sweeping, curb repair and snow removal.
B. Allocation: Allocated among and assessed against the Parcels in proportion to the
approximate square footage of the surfaced parking area on each Parcel, as
determined by the professional engineering/surveying firm or firms that prepare the
plats and site plans for the Property.
Note: If the maintenance obligations for the items listed in 2.A. above for one or more of
the Parcels are relinquished to the Parcel Owner pursuant to Section 9.1 .5 of the
Declaration,then the percentage shares allocated among the remaining Parcels shall
be recalculated and shared among the remaining Parcels based upon the relative
square footage of the surfaced parking areas located on the remaining Paxcels.
34
SHOPPES AT TOWNE LAI�S II RETAIL OWNERS' ASSOCIATION
BYLAWS
SECTION 1
GENERAL
The following are the Bylaws of Shoppes at Towne Lakes II Retail Owners' Association, a
Minnesota nonprofit corporation (the "Association"). The Association is organized pursuant to
Minnesota Statutes Chapter 317A (the "Act"), for the purpose of operating and administering
Shoppes at Towne Lakes II. The terms used in these Bylaws shall have the same meaning as they
have in the Declaration of Covenants, Easements and Restrictions governing Shoppes at Towne
Lakes II (the "Declaration").
SECTION 2
MEMBERSHIP
2.1 Members Defined.All Persons defined as Members in the Declaration shall be Members of
the Association.No Person shall be a member solely by reason of holding a security interest
in a Paxcel.
2.2 Registration of Members.Each Member sha11 register with the Secretary of the Association,
in writing, (i) the legal name of the Member and the address of each Parcel owned by the
Member, (ii) the nature of the Member's interest or estate in each Parcel owned; (iii) the
address at which the Member desires to receive notice of any meeting of the Members, if
other than the Parcel address;and(iv)the name and address of the secured party holding the
first mortgage on the Parcel, if any. Each Member shall have a continuing obligation to
advise the Association in writing of any changes in the foregoing information.
23 Transfers. The interests, rights and obligations of a Member in the Association may be
assigned,pledged,encumbered or transferred,but only along with and as a part of the title to
the Member's Parcel or as otherwise specifically authorized by the Governing Documents or
by law.
SECTION 3
VOTING
3.1 Entitlement.Votes shall be allocated to each parcel as provided in the Declaration.however,
no vote shall be exercised as to a Parcel (i)while the Parcel is owned by the Association or
(ii)while any Assessment levied against the Parcel is past due.
3.2 Authority to Cast Vote. At any meeting of the Members, a Member included on the voting
register presented by the Secretary in accordance with Section 4.6, or the holder of such
Member's proxy, shall be entitled to cast the vote which is allocated to the Parcel owned by
the Member.If there is more than one person who is a Member by reason of owning a single
Parcel with other persons,only one of the Members who own the Parcel may cast the vote.In
case of such multiple ownership of a Parcel,if the multiple Members fail to agree as to which
of them shall cast the vote, or fail to register pursuant to Section 2.2, the vote shall not be
cast.
3.3 Votin�y Proxy. A Member may Cast the vote which is allocated to the Member's Parcel
and be counted as present at any meeting of the Members by executing a written proxy
naming another Person entitled to act on that Member's behalf, and delivering the same to
the Secretary before the commencement of any such meeting. All proxies granted by a
Member shall be effective until the earliest of the following events: (i) revocation by the
granting Member by written notice or by personally attending and voting at the meeting for
which the proxy is effective,(ii)the date specified in the proxy,if any,(iii)the time at which
the granting Member is no longer a Member or(iv)three years after the date of the proxy.
3.4 Voting by Written Ballot. The entire vote on any issue, except the election or removal of
directors,may be determined by written ballots mailed to the Members along with a notice of
the vote, subject to the following requirements.
a. The notice of the vote shall: (i) clearly state the proposed action, (ii) indicate the
number of responses needed to meet the quorum requirements, (iii) state the
percentage of approvals necessary to approve each matter other than election of
directors and (iv) specify the time by which a ballot must be received by the
Association in order to be counted.
b. The ballot shall: (i) set forth each proposed action and(ii)provide an opportunity to
vote for or against each proposed action.
c. The Board shall set the time for the return of ballots, which shall not be less than
fifteen nor more than thirty days after the date of mailing of the ballots to the
Members. The Board shall provide notice of the results of the vote to the Members
within ten days after the expiration of the voting period.
d. �Approval by written ballot under this Section is valid only if(i)the number of votes
cast by ballot equals or exceeds the quorum required to be present at a meeting
authorizing the action, and (ii) the number of approval votes equals or exceeds the
number of votes that would be required to approve the matter at a meeting at which
the total number of votes cast was the same as the number of votes cast by ballot.
3.5 Vote Required. A majority of the votes cast at any properly constituted meeting of the
Members, or cast by written ballot in accordance with Section 3.4, shall decide all matters
properly brought before the Members, except where a different vote or voting procedure is
required by the Governing Documents or the Act. The term "majority" as used herein shall
2
mean in excess of fifty percent of the votes cast by the Members voting in accordance with
the voting procedures set forth in this Section 3. Cumulative voting for directors is
prohibited.
SECTION 4
MEETINGS OF MEMBERS
4.1 Place. All meetings of the Members shall be held at the office of the Association or at such
other place in the State of Minnesota reasonably accessible to the Members as may be
designated by the Board in any notice of a meeting of the Members.
4.2 Annual Meetin�s. An annual meeting of the Members shall be held in each fiscal year on a
date,and at a reasonable time and place,designated by the Board.At each annual meeting of
the Members, (i)the Persons who are to constitute the Board shall be elected or appointed
pursuant to Section 6, (ii) a report shall be made to the Members on the activities and
financial condition of the Association, and (iii) any other matter which is included in the
notice of the annual meeting, and is a proper subject for discussion or decision by the
Members, shall be considered and acted upon at the meeting.
4.3 Special Meetin�s. Special meetings of the Members may be called by the President as a
matter of discretion. Special meetings of the Members shall be called by the President or
Secretary within thirty days following receipt of the written request of a majority of the
members of the Board or of Members entitled to cast in excess of fifty percent of all the votes
in the Association. The meeting shall be held within sixty days following receipt of the
request. The request shall state the purpose of the meeting, and the agenda and business
transacted shall be confined to the purposes stated in the request. The purpose for which the
meeting is requested and held must be lawful and consistent with the Association's purposes
and authority under the Goverriing Documents.
4.4 Notice of Meetin�s. Not less than twenty-one nor more than thirty days in advance of any
annual meeting of the Members,and at least seven,hut no more than thirty,days in advance
of any special meeting of the Members, the Secretary shall send, to all persons who are
Members as of the date of sending the notice, notice of the time, place and agenda of the
meeting, by United States mail, or by hand delivery, at the Member's Parcel address or to
such other address as the Member may have designated in writing to the Secretary. Any
Mortgagee shall,upon request,be entitled to designate a representative to be present at any
meeting. Notice of ineetings to vote upon amendments to the Association's Articles of
Incorporation shall also be given separately to each officer and director of the Association.
4.5 Quorum/Adjournment. The presence of Members in person or by proxy, who have the
authority to cast in excess of fifty percent of all the votes in the Association shall be
necessary to constitute a quorum at all meetings of the Members for the transaction of any
business, except that of adjourning the meeting to reconvene at a subsequent time. Any
3
meeting may be adjourned from time to time, but until no longer than fifteen days later,
without notice other than announcement at the meeting as initially called. If a quorum is
present at the reconvened meeting, any business may be transacted which might have been
transacted at tha meeting as initially called had a quorum then been present. The quorum,
having once been established at a meeting or a reconvened meeting, shall continue to exist
for that meeting notwithstanding the departure of any Member originally in attendance in
person or hy proxy.
4.6 Voting Register. The Secretary shall have available at the meeting a list of the Parcel
numbers,the names of the Members,the vote attributable to each Parcel and the name of the
Person(in the case of multiple Members) authorized to cast the vote.
4.7 A_�enda. The agenda for meetings of the Members shall be established by the Board,
consistent with the Governing Documents, and shall be sent to all Members along with the
notice of the meeting.
SECTION 5
ANNUAL REPORT
The Board shall prepare an annual report, a copy of which shall be provided to each Member at or
prior to the annual meeting. The report shall contain, at a minimum:
5.1 Capital Expenditures.A statement of any capital expenditures in excess of two percent of the
Association's current budget or ten thousand dollars,whichever is greater, approved by the
Association for the current year or succeeding two fiscal years.
5.2 Reserve Funds. A statement of the balance in any reserve or replacement fund.
5.3 Financial Statements.A copy of the statement of revenues and expenses for the Association's
last fiscal year, and a balance sheet as of the end of said fiscal year.
5.4 Litigation and Judgments.A statement of the status of any pending litigation or judgments to
which the Association is a party.
SECTION 6
BOARD OF DIRECTORS
6.1 Number and Qualification. The affairs of the Association shall be governed by a Board of
Directors. The first Board shall consist of the persons appointed by Developer from time to
time, subject to the rights of Members to appoint directors as set forth in Section 6.2.Upon
the expiration of the terms of the members of the first Board,the directors shall be appointed
by the Owners of the Parcels (which may include the Developer), and the Board shall be
composed of a number of directors equal to the number of Parcels; provided, that if more
4
than one Parcel is owned by the same Person,or the Person's affiliate,then the Person and its
affiliate shall be entitled to appoint only one director who shall exercise all the votes
allocated to the Parcels owned by the Person and its affiliate. The term "affiliate" as used
herein shall have the meaning set forth in Minnesota Statutes Section S15B.1-103(2),
substituting the Developer for the declarant referenced in said statute. If the Member is an
entity rather than an individual, then the director shall be an authorized representative
appointed by the entity.
6.2 Term of Office. The terms of office of the members of the Board shall be as follows:
a. The terms of all directors appointed by Developer as authorized by the Declaration
shall terminate upon the earliest of(i)voluntary surrender of control by Developer,
(ii)an Association meeting which shall be held within sixty days after conveyance to
Members other than Developer of seventy-five percent of the total number of Parcels
in the Property or(iii)the date tell years following the date of the first conveyance of
a Parcel to a Member other than Developer.
b. The terms of office of the directors appointed by the Owners following the
termination of the terms of the Developer appointed Board shall be one year and shall
expire upon the appointment of a successor director at the appropriate annual meeting
of the Members;provided,that a director shall continue in office until a successor is
appointed. A director appointed to fill an uncompleted term shall serve until the
natural termination of that term, unless removed in accordance with these Bylaws.
6.3 Powers.The Board shall have all powers necessary for the administration of the affairs of the
Association, and shall exercise for the Association all powers and authority vested in or
delegated to the Association (and not expressly prohibited or reserved to the Members) by
law or by the Governing Documents. The powers of the Board shall include, without
limitation,the power to:
a. adopt, amend and revoke Regulations not inconsistent with the Governing
Documents to facilitate the operation, use and maintenance of those parts of the
Property which the Association is obligated to maintain or regulate;
b. adopt and amend budgets for revenues, expenditures and reserves, levy and collect
assessments for Common Expenses, subject to Section 6 of the Declaration, and
foreclose assessment liens incidental to its collection efforts;
c. hire and discharge managing agents and other employees, agents, and independent
contractors;
d. institute,defend,or intervene in litigation or administrative proceedings(i)in its own
name on behalf of itself or two or more Members on matters affecting any Common
5
Property or the Association, or, (ii) with the consent of the Owners of the affected
Parcels, on matters affecting only those Parcels;
e. make contracts and incur liabilities;
f. regulate the use,maintenance,repair,replacement and modification of any Common
Property;
g. cause improvements to be made as a part of any Common Property;
h. acquire, hold, encumber, and convey in its own name any right, title, or interest in
real or personal property;
i. grant easements through, over or under any Common Property for public or private
roads or trails, utilities or communications, or for any public purpose;
j. impose and receive any payments,fees,or charges for services provided to Members
in addition to services paid for through Assessments;
k. impose charges for late payment of assessments and,after notice and an opportunity
to be heard,levy reasonable fines for violations of the Governing Documents and the
Regulations;
1. provide for the indemnification of its ofFicers,directors and committee members,and
maintain directors and officers liability insurance;
m. provide for reasonable procedures governing the conduct of ineetings and the election
of directors;
n. appoint, regulate and dissolve committees;
o. exercise any other powers conferred by law or the Governing Documents, or which
are otherwise necessary and proper for the governance of the Association.
6.4 Meetings and Notices. An annual meeting of the Board shall be held promptly following
each annual meeting of the Members. At each annual meeting of the Board,the officers of
the Association shall be elected.
a. Unless otherwise unanimously agreed in writing by the directors,regular meetings of
the Board shall be held at least on a quarterly basis, at such times as may be fixed
from time to time by a majority of the directors. A schedule, or any amended
schedule, of the regular meetings shall be provided to the directors, and posted or
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published for the information of Members.
b. Special meetings of the Board shall be held when called (i) by the President of the
Association,or(ii)by the Secretary within ten days following the written request of a
maj oriiy of the voting directors.Notice of any special meeting shall be given to each
director not less than three days in advance thereof,subject to Section 6.S.c.Notice to
a director shall be deemed to be given when deposited in the United States mail
postage prepaid to the Parcel address of such director,or when personally delivered,
orally or in writing, by a representative of the Board.
c. Any director may at any time waive notice of any meeting of the Board orally, in
writing,or by attendance at the meeting.If all the directors are present at a meeting of
the Board, no notice shall be required, and any business may be transacted at such
meeting.
d. A conference among directors by a means of communication through which all
directors may simultaneously hear each other during the conference is a board
meeting, if(i)the same notice is given of the conference as would be required for a
meeting,and(ii)the number of directors participating in the conference is a quorum.
Participation in a meeting by this means constitutes personal presence at the meeting.
6.5 Quorum and Voting. A majority of the directors constitutes a quorum for the transaction of
business at any meeting thereo£A quorum,once established,continues to exist,regardless of
the subsequent departure of any directors. Each director is entitled to cast the vote allocated
to the Parcel or Parcels whose Owner appointed the director.A majority of the votes cast by
the directors present at any meeting at which a quorum is present is sufficient to adopt any
action,unless a greater vote is required by the Governing Documents.Proxies are prohibited.
6.6 Action Taken Without a Meetin�. The Board shall have the right to take any action in the
absence of a meeting which it could take at a meeting when authorized in a writing signed by
all the directors;provided,that a copy of the proposed written action is given to all directors
for review prior to its signing.
6.7 Vacancies.A vacancy in the directors,other than a vacancy under Section 6.2 or 6.8,sha11 be
filled by a person appointed within thirty days following the occurrence of the vacancy by the
Member entitled to appoint the director.
6.8 Removal. A director maybe removed by the Member entitled to appoint the director at any
time by providing written notice to the Board from the Member;provided,that a replacement
director is appointed simultaneously by the Member which appointed the director.A director
may also be removed by the Board(i)if the Member which appointed the director is past due .
with respect to the payment of Assessments or installments thereof against the Member's
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Parcel, or (ii) the director has had two unexcused absences from Board meetings andlor
Association meetings within any 12 month period.
6.9 Compensation. Except as authorized by a vote of the Members at a meeting thereof, the
directors of the Association shall receive no compensation for their services in such capacity.
Directors may be reimbursed for out-of-pocket expenses incurred in the performance of their
duties.A director or an entity in which the director has an interest may,upon approval by the
Board, be reasonably compensated under a contract for goods and services furnished to the
Association in a capacity other than as a director; provided(i)that the contract is approved
by a majority vote of the Board,excluding the interested director,and(ii)that the director's
interest is disclosed to the Board prior to approval.
6.10 Fideli , Bond.Fidelity bonds or insurance coverage for unlawful taking of Association funds
shall be obtained and maintained on all directors and officers authorized to handle the
Association's funds and other monetary assets.
SECTION 7
OFFICERS
7.1 Principal Officers. The principal officers of the Association shall be a President, a Vice
President, a Secretary and a Treasurer, all of whom shall be elected by the directors. The
Board may from time to time elect such other officers and designate their duties as the Board
deems necessary to conduct the affairs of the Association.A person may hold more than one
office simultaneously,except those of President and Vice President. Only the President and
Vice President must be members of the Board.No office may be held by the same person for
more than three consecutive years, unless unanimously agreed to by the Board.
7.2 Election.The officers of the Association shall be elected annually by the Board at its annual
meeting and shall hold office at the pleasure of the Board.
7.3 Removal. Upon an affirmative vote of a majority of the members of the Board, any office
may be removed, with or without cause, and a successor elected, at any regular meeting of
the Board, or at any special meeting of the Board called for that purpose.
7.4 President. The President shall be the chief executive ofFicer of the Association, and shall
preside at all meetings of the Board and the Association. The President shall have all of the
powers and duties which are customarily vested in the office of president of a corporation,
including without limitation the duty to supervise all other officers and to execute all
contracts and similar obligations on behalf of the Association.The President shall ha�e such
other duties as may from time to time be prescribed by the Board.
7.5 Vice President. The Vice President shall take the place of the President and perform the
duties of the office whenever the President shall be absent or unable to act. The Vice
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President shall also perform such other duties as shall from time to time be prescribed by the
Board. �
7.6 Secretarv.The Secretary is responsible for recording the minutes of all meetings of the Board
and the Association.The Secretary shall be responsible for keeping the books and records of
the Association, and shall give all notices required by the Governing Documents or the Act
unless directed otherwise by the Board. The Board may delegate the Secretary's
administrative functions to a managing agent;provided,that such delegation shall not relieve
the Secretary of the ultimate responsibility for the Secretary's duties.
7.7 Treasurer. The Treasurer is responsible for the financial assets of the Association,and shall
be covered by a bond or insurance in such sum and with such companies as the Board may
require.The Treasurer shall(i)be responsible for keeping the Association's financial hooks,
assessment rolls and accounts;(ii)cause an annual financial report to be prepared,subject to
review by the Association's accountants;(iii)cause the books of the Association to be kept in
accordance with generally accepted accounting practices and submit them to the Board for its
examination upon request; (iv) cause all moneys and other monetary assets of the
Association to be deposited in the name of or to the credit of the Association in depositories
designated by the Board;(v)cause the proper obligations of the Association to be paid when
due; and (vi) perform all other duties incident to the office of Treasurer. The Board may
delegate the Treasurer's administrative functions to a managing agent; provided,that such
delegation shall not relieve the Treasurer of the ultimate responsibility for the Treasurer's
duties.
7.8 Compensation.Except as authorized by a vote of the Members at a meeting thereof,officers
of the Association shall receive no compensation for their services in such capacity. OfFcers
may be reimbursed for out-of-pocket expenses incurred in the performance of their duties.
An officer or an entity in which the officer has an interest may be reasonably compensated
under a contract for goods and services furnished to the Association in a capacity other than
as an officer; provided (I) that the contract is approved by a majority vote of the Board,
excluding the interested party, and (ii) that the officer's interest is disclosed to the Board
prior to approval.
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SECTION 8
OPERATION OF THE PROPERTY
8.1 Assessment Procedures.The Board shall annually prepare a budget of Common Expenses for
the Association and assess such Common Expenses against the Parcels according to their
respective Common Expense obligations as set forth in the Declaration.
a. Subject to Section 6 of the Declaration,the Board shall fix the amount of the annual
Assessment against each Parcel, levy the Assessment and advise the Members in
writing of the Assessment at least thirty days prior to the beginning of the
Association's fiscal year when the first Assessment installment shall be due. The
failure of the Board to timely levy an annual Assessment shall not relieve the
Members of their obligations to continue paying Assessment installments in the
amount currently levied,as well as any increases subsequently levied and retroactive
to the beginning of the Assessment period.
(1) The Board may, by unanimous written resolution, waive and reallocate the
shares of Assessments referred to in Section 2 of E�ibit B to the Declaration
among the Parcels in such manner as the Board deems appropriate;provided,
that said unanimous resolution of the Board shall be valid only for a single
calendar year, at the end of which year the Board's reallocation of such
Common Expenses shall terminate and revert to the allocations contained in
Exhibit B of the Declaration unless renewed or changed by unanimous
resolution of the Board for the following calendar year.
(2) The Board shall not levy an Assessment against a Parcel for asphalt
maintenance where the maintenance work in question has been delegated to
and undertaken by the Parcel Owner pursuant to Section 9.1.4 of the
Declaration.
b. Subject to Section 6 of the Declaration, the Board may amend the budget and
Assessments,or levy a special Assessment,at any time.The levy shall be deemed to
occur upon the date specified in the resolution which fixes the Assessment.
c. The Board may, and must in certain cases, levy limited Assessments against only
certain Parcels as authorized by Section 6.5. Such Assessments may be included in
the annual Assessments levied against the affected Parcels or may be levied
separately during the yeaz. Such Assessments are not annual or special Assessments
as defined in the Declaration.
d. The annual budget shall include a general operating reserve,and an adequate reserve
fund for maintenance,repair and replacement of the Common Property and any parts
of the Parcels that must be maintained,repaired or replaced by the Association on a
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periodic basis.
e. The Association shall furnish copies of each budget on which the assessment is based to a
Member or to any Mortgagee, upon request of such Person.
8.2 Pavment of Assessments.Annual Assessments shall be due and payable in monthly,quarterly
or annual installments, as established by the Board, in advance on the first day of the
installment period, and special Assessments and limited Assessments shall be due when
designated by the Board. Members shall be absolutely and unconditionally obligated to pay
the Assessments when due. No Member shall have any right of withholding, offset or
deduction against the Association with respect to any Assessments, including late charges,
attorney's fees or costs of collection, regardless of any claims the Person may have against
the Association or its officers or directors. Any rights or claims alleged by an Member may
be pursued only by separate action.
8.3 Records. The Board shall cause to be kept at the registered office of the Association, and at
such other place as the Board may determine,records of the actions of the Board,minutes of
the meetings of the Board,minutes of the meetings of the Members,names of the Members
and Mortgagees, and detailed and accurate records of the receipts and expenditures of the
Association. With the exception of records that may be privileged or confidential
information, all Association records, including receipts and expenditures and any vouchers
authorizing payments,shall be available for examination by Members and Mortgagees for a
proper purpose,upon reasonable notice and during normal business hours. Separate accounts
shall be maintained for each Parcel setting forth the amount of the Assessments against the
Parcel, tlie date when due, the amount paid thereon and the balance remaining unpaid.
SECTION 9
AMENDMENTS
These Bylaws may be amended, and the amendment shall be effective,upon the satisfaction of the
following conditions:
9.1 Approval. The amendment must be approved by Members who have authority to cast in
excess of sixty-seven percent of the total votes in the Association,in writing or at a duly held
meeting of the Members; provided, that the amendment of any provision which requires
more than a majority vote of the directors or Members must be approved by Members who
have authority to cast a similar percentage of the total votes in the Association. Any
amendment shall also be subject to any approval rights of Mortgagees or the Developer, if
required by the Declaration.
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�,
9.2 Notice. A copy of the proposed amendment and, if a meeting is to be held, notice of such
meeting, shall be mailed by U.S. mail, or hand delivered,to all Members authorized to cast
votes.
9.3 Effective Date. The amendment shall be effective on the date of approval by the required
vote of the Members, and shall not be recorded.
SECTION 10
INDEMNIFICATION
The Association shall,to the extent the alleged liability is not covered by insurance,indemnify every
individual acting in any official capacity on behalf of the Association,pursuant to the provisions of
Minnesota Statutes Section 317A.521.
SECTION 11
MISCELLANEOUS
11.1 Notices.Unless specifically provided otherwise in the Act,the Declaration or these Bylaws,
all notices required to be given by or to the Association,the Board,the Association officers
or the Members shall be in writing and shall be effective upon hand delivery,or upon mailing
if properly addressed with postage prepaid and deposited in the United States mail; except
� that registrations pursuant to Section 2.2 shall be effective upon receipt by the Association.
11.2 Severabilitv. The invalidity or unenforceability of any part of these Bylaws shall not impair
or affect in any manner the validiiy, enforceability or effect of the balance of these Bylaws.
11.3 Captions.The captions herein are inserted only as a matter of convenience and for reference
and in no way limit or proscribe the scope of these Bylaws or the intent of any provision
hereof.
11.4 Conflicts in Documents. In the event of any conflict among the provisions of the Act, the
Declaration, these Bylaws or the Regulations, the Act shall control unless it permits the
documents to control. As among the Declaration, these Bylaws and the Regulations, the
Declaration shall control, and as between these Bylaws and the Regulations, these Bylaws
shall controL
11.5 Waiver.No restriction,condition,obligation or provision contained in these Bylaws shall be
deemed to have been abrogated or waived by reason of any failure to enforce the same,
irrespective of the number of violations or breaches thereof which may occur.
11.6 No Corporate Seal. The Association shall have no corporate seal.
11 .7 Fiscal Year. The fiscal year of the Association shall be as determined by the Board.
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The undersigned certifies that these Bylaws were adopted by the first Board of Directors of
Shoppes at Towne Lakes II Retail Owners'Association,a Minnesota nonprofit corporation,efFective
as of the date hereof.
Dated: '�I-��� —� �- C ' -�����
Secretary
Shoppes at Towne Lakes I Business Association
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