2006-04-28 Declaration of Covenants, Easements and RestrictionsLABEAUX STATION
;CLARATION OF COVENANTS, EASEMENTS AND RESTRICTIONS
Th~s Declaration of Covenants, Easements and Restrictions (the "Declaration") is made
this ~~ ~~ day of ~~~t-~ ~ ; 2006, by CASCADE II LAND CO., LLC, a Minnesota
limited liability company (the "Developer").
WHEREAS, Developer is the owner of certain real property located in Wright County,
Minnesota, legally described in Exhibit A attached hereto, and Developer desires to submit said
real property and all Improvements thereon (collectively the "Property") to this Declaration, and
WHEREAS, Developer desires to establish on the Property a retail, office and
commercial center, to be owned, occupied and operated for the benefit of Developer and its
successors and assigns, and their tenants, customers, invitees and mortgagees, and for the
purpose of preserving the value, the quality and the architectural character of the Property, and
WHEREAS, the Property is not subject to Minnesota Statutes Chapter S15B by reason of
the exemption contained in Section S15B.1-102(e)(4), and is not subject to a master association
as defined in said statute.
THEREFORE, the Property shall be subjected to this Declaration under the name
"LaBeaux Station," and this Declaration shall constitute covenants to run with the Property, and
the Property and any real estate added thereto shall be owned, used, occupied and conveyed
subject to the covenants, restrictions, easements, charges and liens set forth herein, all of which
shall be binding upon all Persons owning or acquiring any right, title or interest therein, and their
heirs, personal representatives, successors and assigns.
SECTION 1.
DEFINITIONS
The following words when used in the Governing Documents shall have the following
meanings (unless the context indicates otherwise):
l.l) "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 LaBeaux Station Business 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) "B lbws" means the Bylaws governing the operation of the Association, as
amended from time to time.
1.7) "City„ means the City of Albertville, Minnesota.
1.8) "Common Expenses" means all expenditures made or liabilities incurred by or on
behalf of the Association and incident to its operation, including Assessments and items
otherwise identified as Common Expenses in the Declaration or Bylaws.
1.9) "Common Property" means all parts of the Property except the Parcels, including
all Improvements thereon.
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) "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.
1.12) "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, parking area, landscaping, or
any other type of structure or physical improvement, and any additions or changes thereto,
located on the Property.
1.13) "Member" means a Person who is an Owner as defined in this Declaration. The
words "Owner" and "Member" maybe used interchangeably in the Governing Documents.
1.14) "Mortgagee" means any Person owning a mortgage recorded against a Parcel,
which mortgage constitutes a first mortgage lien against the Parcel.
1.15) "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.
1.16) "Owner" means a Person who owns a Parcel, but excluding contract for deed
vendors, mortgagees, and other secured parties and holders of reversionary interests.
1.17) "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 Exhibit A attached hereto, as
subsequently amended.
Z.
1.18) "Parcel Developer" means a Person which has acquired a Parcel which has not
been improved with a Building for the purpose of constructing a Building and related
Improvements thereon.
1.19) "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.
1.20) "Plat" means the recorded plat depicting the Property pursuant to the
requirements of Minnesota Statutes Chapter 505, as amended from time to time.
1.21) "Property" means all of the real property subject to this Declaration, now or in the
future, including all Buildings and other Improvements located thereon.
1.22) "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.
SECTION 2.
PROPERTY
2.1) Property. 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 by 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 Property. In addition to property annexed by the Developer,
other real property maybe 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 maybe 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.
3.
2.4) Deannexation of Property. Upon the prior written approval of the City, portions
of the Property maybe deannexed and released from this Declaration, subject to the following
requirements: (i) the Property shall be owned by the Developer or the Association, (ii) the
deannexation shall be approved by the Developer (if the Property is owned by the Developer)
and the Board, and (iii) an amendment to this Declaration describing the deannexation and the
Parcel being deannexed 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 deannexed
and recorded. Upon recording of the amendment, the deannexed Parcel shall no longer be
subject to this Declaration, and all rights and obligations of the Owner of the Parcel 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 subject 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
maybe granted or denied in the Developer's sole and absolute discretion.
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 and all Improvements thereon,
(ii) common signs, entrance monuments and related design elements identifying LaBeaux
Station, 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 Property.
3.2) Authority 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.
4.
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 Sections 2.2 and/or 2.3.
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 Parcel.
3.4.2 Rights with respect to a membership shall be exercised by a director appointed to
the Board by the Owner 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 maybe created only by subjecting
other property to this Declaration, and designating one or more Parcels on the annexed
property in accordance with the requirements of this Declaration.
3.5) Member Voting. 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 deannexation, votes shall be reallocated to reflect the changed number of
Parcels. Member voting procedures are set forth in the Bylaws.
3.6) B~ ly aws. 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
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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 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) Regulations. 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 (30) 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.
3.10) Dissolution. Subject to the City's prior written approval, the Association may be
dissolved in accordance with the provisions of the Articles of Incorporation of the Association
and the Bylaws.
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 enjoyment in the Common Property.
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.
6.
4.2) Management and O erp 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 Property. When real property is subjected to this Declaration,
title to that portion of such property constituting Common Property (if any) shall simultaneously
be conveyed to the Association. Common Property shall be conveyed and owned subject 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 Drainage. There are nonexclusive easements for 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 for 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.
7.
5.4) Entrance Signs and Monuments. There are non-exclusive easements in favor of
the Developer and the Association to erect, use, maintain, repair and replace entrance
monuments, signs and 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
easement 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 Parcels 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 or site plans
for the Property.
5.6) Parking and Vehicular Access. There are mutual nonexclusive 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 the Common Property (if any) and those parts of each of
the Parcels which are (i) designed, designated, surfaced or otherwise improved as access drives
or parking areas, or (ii) identified as such on the Plat or site plans for the Property, 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.
5.7) Maintenance Access. There is anon-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 performing 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) Private Street Maintenance. There is an exclusive easement in favor of the
Association to construct, maintain and repair private streets on the Common Property, pursuant
to the terms of that certain Private Street Maintenance Agreement by and between the Developer
and the Association.
5.9) 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 over the Property, on and across drives, walkways, parking 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 time.
8.
5.10) Developer Rights. There are exclusive easements in favor of the Developer for
the exercise of its Developer rights under Section 12, which easements shall terminate when the
Developer no longer owns a Parcel or has a right to add additional real property to the Property.
5.11) 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:
5.11.1 The easements shall supplement and not limit any easements described elsewhere
in this Declaration or any recorded instrument.
5.11.2 The easements shall be subject 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.
5.11.3 The easements shall include reasonable access over, under and across the Property
to maintain, repair, replace and reconstruct the easement areas and any Improvements
located thereon.
5.11.4 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.
5.11.5 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.
5.11.6 Except as otherwise provided in this Declaration, the Developer's easement rights
described in this Declaration shall terminate when Developer no longer owns a Parcel or
has the right to add additional property to the Property.
5.11.7 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 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.
5.12) 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
9.
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 not unreasonably withhold such approval (i) the easement will not adversely
affect the Common Property or another Parcel and (ii) 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.
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.
6.4) Special 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 formula 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 benefiting 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 benefiting fewer than all Parcels, and not covered
by Exhibit B, maybe 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 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
10.
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 Board's discretion, be assessed as a part
of, or in addition to, other Assessments levied under Section 6.
6.6) Liability of Owners for Assessments. The obligation of an Owner to pay
Assessments shall be as follows:
6.6.1 The Owner of a Parcel at the time an Assessment is payable with respect to the
Parcel shall be personally liable for the Assessment. 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 is exempt from
liability for payment of Assessments by right of set-off, by waiver of use or enjoyment of
any part of the Property, by absence from or abandonment of the Parcel, by the waiver of
any other rights, or by reason of any claim against the Association or its officers,
directors or agents, or for their failure to fulfill any 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, in writing, a similar partial or complete exemption from
liability for Assessments; provided that such exemptions shall 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. Alien for Assessments may be foreclosed
against a Parcel under the laws of the State of Minnesota (i) by action, or (ii) by advertisement in
alike 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
11.
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 Priority; Foreclosure. Alien 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 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 maybe 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,
personal representatives, successors and assigns.
7.2) Subdivision. Except as permitted by this Declaration, no Parcel or Common
Property maybe subdivided or partitioned without the written approval of (i) the Owner of the
Parcel, (ii) the City, (iii) the Board, and (iv) the Developer so long as it has the right to add
Additional Property.
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, 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
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sexually explicit materials, liquidation facility, auction house, flea market, sleeping quarters or
lodging, industrial use, place of worship, betting establishment, bingo parlor, or any use which
violates City ordinances.
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. 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.
7.5) 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 Commercial/Retail 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) Sigi s. 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 Parcel 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 LaBeaux Station shall be maintained by the Association.
7.7) Exterior Lighting. 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, 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.
7.9) Development Agreement. The Developer has entered into that certain City of
Albertville Master Planned Unit Development/Conditional Use Agreement Labeaux Station (the
"Development Agreement"), dated , 200_, and recorded as
Document No. with the Hennepin County Recorder with the City. The
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Development Agreement contains various restrictions and requirements with respect to the
development of the Property, 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 Enjoyment; Interference Prohibited. All Owners and Occupants and their
invitees shall 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
be permitted which could cause waste to the Property, cause a material increase in insurance
rates on the Property, or otherwise cause any unusual liability, health or safety risk, or expense,
for the Association, or any Owner or Occupant 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 Buildings. 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 projected commencement of
construction. No grading, site preparation or other construction shall be commenced
prior to approval of the proposed Improvements. The Developer shall respond to the
application in writing within the time frame and subject 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 the
initial approval by the Developer shall be subject to Sections 8.2 through 8.5.
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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 be 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 property 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
quality of construction of the Improvements constructed, and shall hold harmless,
indemnify and defend the Developer, and its 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.
15.
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 project 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
apparatus, 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 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 arising 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 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
Property 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 under 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 (60) days prior to the projected
commencement of construction. No alterations shall be commenced prior to approval.
16.
8.3.2 The Board (and/or Developer if applicable) shall give the Owner written notice of
approval or disapproval. If the Board (and/or Developer if applicable) fail to approve or
disapprove within forty-five (45) 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 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 shall be a personal obligation of the Owner and a lien against the
Owner's Parcel.
8.5) Owner Responsibility/Indemnity. The Owner who causes an alteration to be
made, regardless of whether the alteration is approved by the Board, shall be responsible for the
construction work and any claims, damages, losses or liabilities arising out of the alterations.
The Owner 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) Exemptions. 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 atg ions. The Association is obligated to, or may as indicated,
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, 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.
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9.1.3 Maintain the infiltration plantings in good working order at all times as required
by Paragraph 1, Section I of the Development Agreement.
9.1.4 Maintain, repair and replace the private street lighting (if any), private street
medians (if any), median landscaping (if any), and the surfaced private streets located on
the Common Property, 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,
driveways, medians and curbs located on the Parcels, including, but not limited to, seal
coating, striping, asphalt repair and replacement, sweeping and snow removal. .
9.1.6 Undertake such other maintenance, repair or replacement of the Property as may
be approved by a seventy-five percent (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.
9.1.7 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.
9.1.8 Enter any Parcel and perform required maintenance which the Parcel Owner has
neglected or refused to perform, after thirty (30) days' notice to the Parcel Owner, and
assess all costs thereof against the Owner's Parcel.
9.1.9 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) any standards established for the Property by the Developer and
approved by the City.
9.1.10 The costs of maintenance, repair and replacement shall be allocated among the
Parcels in accordance with Section 6 and Exhibit B. All such maintenance, repair and
replacement required under this Section 9.1 shall be performed in a commercially
reasonable manner as required by the Developer's Agreement.
9.2) Owner Obligations. 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, including but not limited to parking area lighting, 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) any standards established for the Property by the Developer and approved by the
City.
18.
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 for the cost of
restoration, if undertaken by the Association.
9.3) City Right to Maintain. In the event the Association fails to perform any of its
obligations as set forth in subsections 9.1.1 through 9.1.10 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. Notwithstanding the
foregoing, the City shall only be required to provide 48 hours notice to Association in the event
private streets are not maintained in accordance with the Development Agreement such that the
private streets pose a safety hazard to the general public as further outlined in Section 1(H) of the
Development Agreement. The Association shall be responsible for costs and expenses incurred
by the City in performing such maintenance, repair or replacement.
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 provide for such other
coverages, limits and deductibles as the Board deems reasonable.
10.1.3 Other Insurance. Such other types and amounts of insurance as maybe
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
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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 maybe 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 arating 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 maybe 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 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 shall have the right to 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
relating to the Owner's Parcel:
10.2.1 Property insurance insuring all insurable Improvements on the Owner's Parcel for
the full insurable replacement value of such Improvements.
20.
10.2.2 Commercial general liability insurance covering the Owner's Parcel, including,
but not limited to, the public streets and parking areas located thereon, 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, famish 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
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 perrnitted, 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 maybe 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
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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 (30) days past
due, all remaining installments of Assessments assessed against the Parcel maybe
accelerated by the Board, and shall then be payable in full together with all costs of
collection and late charges. Ten (10) 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) Rights to Hearing. Before the imposition of any of the remedies authorized by
Section 11.2.3 or 11.2.4, the Board shall, upon written request of the offender, grant to the
offender an opportunity 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 (10) days within which to
request a hearing. The hearing shall be held within thirty (30) 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 (10) days following the hearing, if not delivered to
the offender at the hearing.
11.4) Liability for Owners' and Occupants' 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.
22.
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 maybe 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 Property owned by the Developer.
12.3) Suns. To construct and maintain signs and other sales displays offering parts of
the Property for sale, on the Common Property (if any) and any part of the Property owned by
the Developer or subject to its easement rights.
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.
12.5) Control the Association. To control the operation and administration of the
Association, including but not limited to the power to appoint and remove the members of the
Board, until the earliest o£ (i) voluntary surrender of control by the Developer, (ii) sixty (60)
days after the date when certificates of occupancy have been issued by the City for Buildings
located on seventy-five percent (75%) of the Parcels which the Developer has the right to create
or develop based on City approvals, or (iii) the date ten (10) years following the date of
recording of the Declaration.
12.6) Add, Combine or Subdivide Property. To add real property, or to combine,
relocate or subdivide parts of the Property pursuant to Sections 2.2, 2.3 and 13.
12.7) Approval of Certain Amendments. 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 subject any Additional Property to this Declaration.
12.8) Other Rights. 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 Rights. 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 (30) days prior to the
23.
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 from 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:
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 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 maybe 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 aseventy-five percent (75%)
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.
24.
14.1.3 Any amendment which affects any rights or obligations under the Development
Agreement, or rights or obligations granted to or assumed by a City under this
Declaration, shall be approved in writing by the City, and the Developer so long as it is
obligated under the Development Agreement.
14.2) Recording/Binding Effect. All amendments shall be recorded, and shall 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.
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 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 atwo-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
Exhibit B.
16.2) Severability. If any term, covenant, or provision of this instrument or any exhibit
attached hereto is held to be invalid or unenforceable for any reason whatsoever, such
determination shall not be deemed to alter, affect or impair in any manner whatsoever any other
portion of this instrument or the exhibits attached hereto.
16.3) Interpretation. 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.
25.
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 (3) 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 Among 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 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.
STATE OF MINNESOTA )
ss.
COUNTY OF HENNFPIN )
The foregoing instrument was acknowledged before me this ~•:~ ~ "day of ~- ,~sr'~'-`` ,
2006, by l.~lr ~l ~~tr/u ,% ~ L'~~~ ~ . ,5~ff~;i:E7 ,the (~~~~~: r 112~C~~ « ~~~~..,. of CASCADE I LAND
CO., LLC, a Minnesota limited liability company, on behalf of "d entity. ,,
Notary Public
This instrument was drafted by:
Larkin Hoffman Daly & Lindgren Ltd.
1500 Wells Fargo Plaza
7900 Xerxes Avenue South
Minneapolis, Minnesota 55431
(952) 835-3800
1058214.2
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26.
EXHIBIT A TO DECLARATION
LABEAUX STATION
DESCRIPTION OF PROPERTY AND DESIGNATION OF PARCELS
Pro er
Lots 1 and 2, Block 1, and Outlot B, located in the plat of LaBeaux Station, City of Albertville,
County of Wright, Minnesota.
Parcels
Lots 1 and 2, Block 1, located in the plat of LaBeaux Station, City of Albertville, County of
Wright, Minnesota.
EXHIBIT B TO DECLARATION
LABEAUX STATION
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:
1. General Common Expenses shall be funded by annual or special Assessments, as
follows:
A. Items covered:
(1) Maintenance of Common Property (if any).
(2) Maintenance of common project signs, monuments and related
Improvements.
(3) Maintenance of private street lighting (if any), private street medians (if
any), median landscaping (if any), and the surfaced private streets located
on the Common Property, including but not limited to seal coating,
striping, asphalt repair and replacement, sweeping and snow removal.
(4) 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 LaBeaux Station as a
whole.
(5) Premiums for Association insurance.
(6) Association management fees.
(7) General administrative expenses, including but not limited to accounting
and legal services, taxes, permits, and meeting and office expenses.
(8) Other expenses which are determined by the Board to benefit LaBeaux
Station as a whole.
B. Allocation: Allocated among and assessed against the Parcels in proportion to the
approximate square footage of the buildable 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 areas, medians and driveways serving the various
Parcels, including but not limited to seal coating, asphalt repair and replacement,
striping, 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 9.1.4 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
Parcels.
2.
CONSENT TO DECLARATION
(Mortgagee)
LABEAUX STATION
The undersigned (the "Mortgagee") is a mortgagee of portions of real property described
in the Declaration of Covenants, Conditions and Restrictions of LaBeaux Station (the
"Declaration") under a Mortgage recorded against said real property (the "Mortgage").
Mortgagee hereby consents to this Declaration; provided, that by consenting to this Declaration,
the Mortgagee does not constitute itself or obligate itself as a Developer as defined in the
Declaration, nor does such consent modify or amend the terms and conditions of the Mortgage
and related loan documents; and provided further that the Mortgage shall be and remain as a lien
on the property described therein, prior to any Assessment liens or other liens imposed under the
Declaration, until released or satisfied.
WITNESS WHEREOF, the Mortgagee has caused this Consent to be executed on
the ~ day of , 20D(p .
STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ~ ~ day of
12..1 ! , 20 ~ ~' , by T ~L~C~-~tu..~, l~ ~0 ~ ~ Ld. ,the
t C ~ ~~b ~ ,dtl+.:~' of ~ l ~ r:.~t~~y ~ ,bC , a
y' pav! d ~, , on behalf of said e tity.
Notary Publi
THIS INSTRUMENT WAS DRAFTED BY:
Larkin Hoffman Daly & Lindgren Ltd.
1500 Wells Fargo Plaza
7900 Xerxes Avenue South
Minneapolis, Minnesota 55431
(952) 835-3800
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