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HomeMy WebLinkAbout2004-10-06 PACKET 08.BREQUEST OF CITY COUNCIL ACTION COUNCIL AGENDA MEETING ITEM # DATE 10/6/04 V • PREPARED BY Community Development Howard Blin ORIGINATING DEPARTMENT STAFF AUTHOR * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * COUNCIL ACTION REQUEST Consider approving a preliminary plat for Pinecroft, to be developed by U.S. Home Corporation, which will consist of 61 lots for single family homes and 2 outlots to be located on the northwest corner of 65th Street and Ideal Avenue South. STAFF RECOMMENDATION Adopt the resolution approving a the preliminary plat for Pinecroft. ADVISORY COMMISSION ACTION DATE REVIEWED APPROVED DENIED ® PLANNING 8/23/04 ❑ ® ❑ ❑ ❑ ® PUBLIC SAFETY 7/20/04 ® ❑ ❑ ❑ ❑ PUBLIC WORKS ® ❑ ❑ ❑ PARKS AND RECREATION 9/13/04 ❑ ❑ ❑ HUMAN SERVICES /RIGHTS ❑ ❑❑ ❑ ECONOMIC DEV. AUTHORITY ❑ � El SUPPORTING DOCUMENTS ® MEMO /LETTER: Memo from John McCool, Senior Planner dated 9 -30 -04 ® RESOLUTION: Draft ❑ ORDINANCE: ❑ ENGINEERING RECOMMENDATION: ❑ LEGAL RECOMMENDATION: ® OTHER: 1) Revised preliminary plat; 2) Revised grading plan; 3) Sketch plan; 4) General drainage map; 5) Revised landscaping plan; 6)Draft Homeowners Association doc.; 7) Utility Easement ADMINISTRATORS COMMENTS A t G Date * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * COUNCIL ACTION TAKEN: [APPROVED ❑ DENIED ❑ OTHER Po6 0�61 - / 76 CITY OF COTTAGE GROVE MINNESOTA To: Honorable Mayor and City Council Ryan Schroeder, City Administrator From: John McCool, Senior Planner Date: September 30, 2004 Re: U.S. Home Corporation — Pinecroft Preliminary Plat Update Proposal U.S. Home Corporation has filed a preliminary plat application to develop approximately 30.3 acres of land consisting of 61 single - family lots. The development is located on the northwest corner of Hinton Avenue and 65th Street. The developer also owns land on the east side of Hinton Avenue, but a preliminary plat application for this area will be filed at a later time. This 30 -acre parcel will probably be developed in two phases, Phase I being the south half of the site. One street connection is proposed onto Hinton Avenue and one onto 65th Street. Fu- ture roadway extensions are proposed at the northwest and southwest corners of this parcel. Two outlots are platted and generally represent low lying areas for stormwater ponding. The de- veloper proposes to start grading this fall. A revised preliminary plat is attached as Exhibit A. A revised preliminary grading plan are attached as Exhibits B and C. Background On August 23, 2004, the Planning Commission held a public hearing for this preliminary plat application. The Commission unanimously recommended approval. On September 1, 2004, the City Council reviewed the Planning Commission's recommendation and expressed concerns for the proposed development on the west side of Hinton Avenue and the sketch layout east of Hinton Avenue. Specifically, City Council expressed a desire that more green /open space be provided and more creativity is incorporated for the plat layout east of Hinton Avenue. Additional information relative to the managing stormwater drainage, whether or not the east and west parcels are one or two taxing parcels, and if a public or private park should be required for this residential neighborhood was also requested. City Council directed city staff and the developer to continue working together for purposes of addressing these issues and report back to the Council at a later date. Discussion Parks and Recreation's Comments On September 13, 2004, the Parks, Recreation, and Natural Resources Commission discussed the preliminary plat application filed by U.S. Home Corp. for purposes of developing 61 -lots for detached single - family homes. The primary focus by the Parks and Recreation Commission was for the parcel of land between Hinton Avenue and Ideal Avenue, north or 65 Street and its Mayor, City Council and Ryan Schroeder US Home Corporation — Pinecroft Preliminary Plat September 30, 2004 Page 2 of 6 relationship to neighboring public park amenities and development concepts for the East Ravine Study Area. The developer attended this meeting. The Parks and Recreation Commission acknowledged that the Parks Element in the adopted Comprehensive Plan 2020 does not identify the development of a public park for this property being platted as Pinecroft Addition and the future development phase(s) east of Hinton Avenue. The Parks and Recreation Commission supported the trailway linkages thru this site to connect to adjacent parks and did not object to the idea of a park after the developer's offer to provide land for open space. The Commission approved a motion that recommended to City Council that staff and developer work together to revised the subdivision layout that would: 1) Create a better transition between the West Draw and the East Ravine development areas. 2) Explore the concept of creating a park/open space area adjacent to Ideal Avenue on the future portion of the plat located on the west side of Hinton Avenue. 3) Create a trailway /green space corridor consisting of sidewalks and off -road trailways through the central portion of the subdivision consistent with the trailway master plan concepts. 4) Landscaped greenways along 65th Street and Hinton Avenue that are consistent with the concepts planned for the East Ravine Development District. Park Land Dedication and Fees The city will require that Outlot C and D be dedicated for public purposes, but no credit will be given to park and recreation fees because these parcels will be primarily for stormwater ponding. For this reason, a park fee in lieu of land dedication for public park purposes will be required to be paid to the city at the time the final plat is approved by the city. The current park fee in lieu of land dedication and recreation fee is $2,000 and $150 per lot, respectively. At the time the developer files a preliminary plat application for the east side, park fees and credits will be calculated. Details relating to the development of a park will be prepared and the associated costs will be determined. Stormwater Drainage Two stormwater drainage ponds are proposed to be graded on the 30 -acre site (west parcel). These ponds are located on parcels described as Outlots C and D of the revised preliminary plat (Exhibit A). The location of these two ponds is generally in the same low -lying area of U.S Home Corp.'s property. Some stormwater runoff from Dahlin's and Biachula's property currently flows to this existing low -lying area on U.S. Home Corp.'s property. Grading the ponds will be necessary to provide enough stormwater storage so that the normal 100 -year outflow rate does not exceed the 100 -year discharge rate established in the 1999 Surface Water Management Plan (SWMP). The City is requiring the emergency overflow elevation for the pond in Outlot C not be less than 913.8 feet above mean sea level. This elevation will allow 5 -year storm events to be contained within the pond rather than overflowing onto adjacent property. The storm sewer inlet located at the south end of this pond has a pipe invert elevation of 912.0 feet; which is the same elevation as the normal water level (NWL) for this pond. Stormwater above this NWL w ill e inter t his p ipe a nd d ischarge i nto t he s tormwater p and i n 0 utlot D. S torm events Mayor, City Council and Ryan Schroeder US Home Corporation — Pinecroft Preliminary Plat September 30, 2004 Page 3 of 6 greater than a 5 -year frequency will overflow onto Dahlin's property, which already occurs in heavy rainfall events. The high water level (HWL) for the pond in Outlot C and the existing depression on Dahlin's property have the same 915.0 foot HWL. The pond in Outlot D has a 911.0 foot NWL and has enough storage capacity up to a 5 -year event. Stormwater above the HWL elevation will also drain into the existing low -lying area on Dahlin's property. This drainage pattern exists today and will not be any different on the Dahlin property with the development of the Pinecroft project. The HWL for both properties will not change from existing conditions. If Dahlin's property develops, additional ponding and the discharge rate must be controlled the same way as required for the Pinecroft project. The discharge rate from this pond in Outlot D must not exceed 1.6 cfs. Stormwater exiting this pond enters into a storm sewer pipe that extends to an existing pond on Kemp's property. The post - development flow rate must not exceed rates established in the City's 1999 SWMP. The developer's revised sketch plan for the parcels of land east of Hinton Avenue includes two parcels (outlots) that provide open /green space and stormwater ponding. Both ponding areas will be required to provide sufficient flood storage so as not to flood adjacent homes. The northern one -third of this site drainages to the northwest corner of the site. Stormwater ponding will likely be graded in this general area. There is an existing storm sewer pipe beneath Hinton Avenue that allows runoff to drain toward the existing low -lying area where a pond will be graded in Outlot C of the Pinecroft project. Drainage on the southern two- thirds of this parcel flows to an existing storm sewer pipe lying along the east side of Hinton Avenue. This pipe extends south to 65 Street and turns west along 65 Street and discharges into the existing pond on Kemp's parcel. Development on this eastern parcel will require the developer to design all ponds so that the amount of stormwater storage and discharge rate does not exceed a portion of the total discharge rate for the pond on Kemp's property. Presently, the outflow from the pond in the southeast corner must not exceed 1.9 cfs. This rate will be re- evaluated at the time a preliminary plat application is filed with the City for this east parcel. A diagram showing general drainage patterns from both of U.S. Home's properties is attached as Exhibit D. No stormwater drainage from Woodbury enters into the drainage system for the Pinecroft plat. Conceptual Layout (East Parcel) U.S. Home Corp. has provided a sketch plan (Exhibit E) for the 63.75 acres located between Hinton and Ideal Avenues, north of 65 Street. This sketch plan is different than the original plat layout that accompanied the preliminary plat in the following ways: • Additional open /green space provided in the northwest corner. Tree plantings are proposed. • A open /green space and trail corridor extends from west entrance to a park area on the east side of the property. Tree plantings are proposed through this corridor. Mayor, City Council and Ryan Schroeder US Home Corporation — Pinecroft Preliminary Plat September 30, 2004 Page 4 of 6 • Dedication of 3.9 acres of land for public park purposes is proposed for the east side of the site. • Stormwater ponding and green space around the f ringe of the pond in the southwest corner of the parcel was enlarged. Tree plantings are proposed along the fringe of these outlots. • Additional stormwater ponding and green space shown south of the trail corridor, between the park and southwest stormwater pond. • The number of detached single - family lots has been reduced, thus reducing the gross density from 2.2 units per gross acres to below 2.0 units per acre. • A portion of existing I deal Avenue would be vacated a nd d iscontinued. A couple lots would access directly on that portion of Ideal Avenue that would not be vacated. Disconnecting this segment of Ideal Avenue would discourage motorists to travel this route unless living in this neighborhood. • Assuming additional land could be dedicated directly east of the 3.9 acre park site, this could be a transition into the west area of the East Ravine. When the preliminary plat for this area is prepared, it is suggested that a green space corridor be extended from the pond area in the northwest corner of the site to the roadway entrance east of Hinton Avenue. Additional landscaping should be provided within that area. 65 th R/W Corridor Additional right -of -way is required to be dedicated along the north side of 65 Street lying east of Hinton Avenue. The right -of -way width lying south of the section line is currently 50 feet. The developer is required to dedicate 75 feet on the north side of this section line for a total of 125 feet for this segment of 65 Street. The 65 Street right -of -way west of Hinton Avenue is 150 feet, but its width narrows to 135 feet west of the Pinecroft plat. Exhibit G is a graphic showing the right -of -way widths for this general area. Landscaping Improvements The developer has submitted a revised landscaping plan. This plan shows the planting of shrubs and 473 trees along Hinton Avenue, 65 Street, and rear lots abutting stormwater holding ponds and access corridors to the ponds. There are 132 additional trees as compared to the July 26, 2004 landscaping plan. A copy of this revised plan is attached as Exhibit G. The addition to this perimeter landscaping each lot will be required to have four trees and ten shrubs that each homeowner will be required to install as part of the homeowner association's covenants. The homeowner landscaping improvement will be installed after the construction of their home. For purposes of requiring a uniform fence design throughout the Pinecroft subdivision, the developer is considering a fence that is similar to the example in Exhibit H. The Homeowners Mayor, City Council and Ryan Schroeder US Home Corporation — Pinecroft Preliminary Plat September 30, 2004 Page 5 of 6 Association covenants (Section 7.9, page 11) specifies that the only fencing allowed is a fence complying with the height, material, and color selected by the Homeowners Association Board. If a fence must be installed along the rear of a lot abutting a public roadway, the fence must be installed inside the landscaped area. Staff suggests that this covenant also require that fencing paralleling Hinton Avenue and /or 65 Street be placed at the toe of the slope. Homeowners Association Covenants The developer has prepared draft of the Homeowners Association covenants for the Pinecroft neighborhood. A copy of this document is attached as Exhibit I. The covenants in this document are similar to Homeowner Association covenants that U.S. Home uses in other projects. This draft document includes a requirement that each yard must include a minimum of four trees and ten shrubs, in addition to one yard tree to be installed by the city and other landscaping improvements installed by the developer. One of the four trees is required to be a conifer tree. Staff recommends that the document included language requiring each homeowner or homeowners association to maintain the yard area all the w ay t o t he curb of roadways that abut the parcel. Utility Easements The City Attorney has worked with U.S. Home Corp.'s attorney in preparing a utility easement that allows the extension of a trunk sanitary sewer from the south to serve the Pinecroft neighborhood. A copy of this easement is attached as Exhibit J. The city resolution approving the preliminary plat application includes the requirement that U.S. Home Corp. must successfully obtain this utility easement and all temporary construction easements necessary to construct this trunk sanitary sewer before the city approves an agreement for the construction of any public utilities that will serve the Pinecoft project. If a trunk sanitary sewer is extended into Woodbury, it will need to be 25 to 30 feet deep. This requires a utility easement that is a minimum of 30 -feet wide. Its location will be between two homes that abut the Cottage Grove - Woodbury municipal boundary. A trunk watermain will also need to be extended into Woodbury and an additional utility easement 20 -feet wide would be needed. Combining these two utility easements as a 40 -foot wide easement might be possible. The lot widths for the 4 - 5 lots along the municipal border are not wide enough to have a 20 -25 foot wide utility easement along a side property boundary line without significantly limiting the width of a residential home. For this reason, if a decision is made to have city utilities extended to into Woodbury, one lot along this municipal boundary must be eliminated in the final plat for purposes of increasing lot widths in this area so that these utilities can be constructed. Lot of Record County records, as far back as July 1976 shows this 30.274 acre parcel (the Pinecroft plat) as a separate lot of record. No information was found that showed this parcel as part of another taxing parcel. County and city records do show that the fee ownership of the west parcel has been the same fee ownership as for the 28.34 acre parcel located at the northeast corner of Hinton Avenue and 65 Street for quite a few years. In 2001, U.S. Home Corp. purchased two 17.5. acre parcels from two 20 -acre property owners that increased their total land area on the east parcel to 63.75 acres. Mayor, City Council and Ryan Schroeder US Home Corporation — Pinecroft Preliminary Plat September 30, 2004 Page 6 of 6 Conclusion City Council's discussion at the September 1, 2004 meeting resulted in modifications to the Pinecroft preliminary plat application for land west of Hinton Avenue. The developer is requesting the City's approval of this preliminary plat for purposes of developing 61 lots on the 30.3 acre parcel west of Hinton Avenue and north of 65th Street. The developer has also made significant changes to the sketch plan for the parcel of land east of Hinton Avenue for purposes of providing more green /open space, trail corridors, and landscaping. This sketch plan is provided to you for general comment and direction. The developer understands that a separate preliminary plat application must be filed with the city for review and approval. The revised preliminary plat is substantially consistent with plat and information presented to the Planning Commission on August 23, 2004. The Planning Commission recommended to the City Council that the Pinecroft preliminary plat application be approved. Attachments: Exhibit A — Revised Preliminary Plat Exhibit B — Revised Grading Plan (Sheet 1 of 2) Exhibit C — Revised Grading Plan (Sheet 2 of 2) Exhibit D — Sketch Plan for East Parcel Exhibit E — General Drainage Routes Exhibit F — Right -of -way Graphic Exhibit G — Revised Landscaping Plan Exhibit H — Fence Photo Exhibit I — Homeowners Association Covenants Exhibit J — Utility Easement RESOLUTION NO.04 -XXX RESOLUTION APPROVING THE PRELIMINARY PLAT FOR PINECROFT WHEREAS, U.S. Home Corporation has applied for a preliminary plat for development of a residential subdivision known as "Pinecroft." The proposal consists of 61 lots for unattached sin- gle- family homes and 2 outlots on the northwest corner of 65th Street and Ideal Avenue, located on property legally described as: The East Half of the Northeast Quarter except the south 500 feet of the east 440 feet thereof and the East Half of the West Half of the Northeast Quarter all in Sec- tion 5, Township 27, Range 21, Washington County, Minnesota. WHEREAS, public hearing notices were mailed to surrounding property owners within 500 feet of the proposed development site and a public hearing notice was published in the South Washington County Bulletin; and WHEREAS, the Planning Commission of the City of Cottage Grove held a public hearing and reviewed the applications on August 23, 2004; and WHEREAS, testimony from the applicant and the public was received and entered into the public record; and WHEREAS, the Planning Commission unanimously recommended approval of the pre- liminary plat, subject to certain conditions. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Cottage Grove, Washington County, Minnesota hereby approves the preliminary plat for development of a residential subdivision known as "Pinecroft," which consists of 61 lots for unattached single - family homes and 2 outlots, to be located on the property legally described above, subject to the follow- ing conditions: The developer must enter into a subdivision agreement with the City of Cottage Grove for the installation of and payment for all public improvements in the subdi- vision, pursuant to Title 10 of the City Code. Resolution No. 04 -XXX Page 2 of 5 2. The developer receive appropriate building permits from the City, and permits or approvals from other regulatory agencies including, but not limited to, the South Washington Watershed District and the Minnesota Pollution Control Agency. 3. The revised grading and utility plan must be submitted to the City Staff for review and approval prior to the submission of the final plat plan application to the City. All emergency overflow swales must be identified on the grading and erosion control plan. 4. The developer must submit a final construction management plan that includes erosion control measures, project phasing for grading work, areas designated for preservation, a crushed -rock construction entrance, and construction - related vehi- cle parking for staff review and approval prior to issuance of a grading permit. The developer and their grading contractor must meet with City staff before a grading permit is issued and site work begins. The contractor shall provide the City with a project schedule for the various phases of construction. Erosion control devices shall be installed prior to commencement of any grading activity. Erosion control shall be performed in accordance with the recommended practices of the "Minne- sota Construction Site Erosion and Sediment Control Planning Handbook" and the conditions stipulated in Title 10 -5 -8, Erosion Control During Construction, of the City's Subdivision Ordinance. 5. The developer must pay area charges for trunk utilities at the rates adopted by the City Council that are in effect at the time of final plat approval. 6. Outlots C and D must be conveyed to the City of Cottage Grove. No credit will be granted to the developer for calculated area charges or park fees for deduction of these outlots, except for the area below the normal water elevation. The park fee in lieu of land dedication and recreation fees currently amount to $122,000.00 and $9,150.00 for a total of $131,150.00. This amount must be paid to the city prior to the city releasing the final plat to the developer for recording at the Washington County Recorder's Office. 7. A sidewalk six feet in width must be constructed along one side of "A" Street. An eight -foot wide bituminous trail must be constructed along the north side of 65th Street a nd a long t he west s ide of H inton Avenue f rom 6 5th S treet t o t he n orth boundary of the development. The cost to repair damaged sidewalks during the home construction process will be the developer's responsibility. 8. The developer must hire an arborist to assist with all facets of tree preservation on the site. The arborist will supervise installation and maintenance of tree preserva- tion fencing and tree /brush removal process. When or if grading occurs within the drip line of a tree slated for preservation, the arborist must be on site to review grading for those areas. Mitigative measures to aid in preservation of trees slated to remain will occur based upon the recommendations of the arborist. Should trees designated for preservation be removed, the developer will replace the trees Resolution No. 04 -XXX Page 3 of 5 in accordance with the ordinance criteria. Trees designated for preservation which are found to be diseased, dying, or not suited for location into the project may be removed based upon the recommendation of the arborist in agreement with the City and the developer. The developer is responsible for tree review, removal, and potential mitigation until such time as the property is sold to the homeowner. Prior to closing on the house the developer will review the status of the trees on the site and remove /replace any dead or dying trees. On the public property, the devel- oper will be responsible for the removal and replacement of dead, dying, or dis- eased trees until such time as the entire plat is built out and all private lots sold. 9. The developer submits appropriate engineering information for retaining walls. All fencing and retaining walls must be decorative and subject to staff review and approval. 10. The developer must reimburse the city all costs to fabricate an advisory sign that announces the future extension of "A" Street next to Lot 1, Block 11 and at the northwest corner of the plat. 11. Approval of the preliminary plat is contingent on the developer's success in acquir- ing the appropriate permanent utility and drainage easements and temporary con- struction easements across property outside the boundaries of this developing parcel. The easement agreements m ust be a pproved by the City before a final plat application or grading permit is approved by the City. 12. The revised grading and utility plan, which reflects changes recommended in the staff report and modifications to the grading plan to increase stormwater quality ponding must be submitted to the City for staff review and approval prior to the submission of the final plat applications to the City. All emergency overflow swales must be identified on the grading and erosion control plan. 13. Elevations at the foundation of all structures shall be a minimum of two feet above the emergency overflow elevation and /or high water elevation of any stormwater pond. 14. A letter of credit amounting to 150 percent of the landscaping estimate, street sweeping, paving and curbing, and irrigation systems should be submitted to and approved by the City. Upon completion of the landscaping improvements, the owner s hall, i n w riting, i nform t he C ity t hat s aid improvements have been com- pleted. The City shall retain the financial guarantee covering the landscape im- provements for a period of one year from the date of notice, to ensure survival of the plants. No building permit shall be issued until the required financial guarantee has been received and accepted by the City. 15. All monument signs shall comply with the City's Sign Ordinance and shall only be placed on private property. The Homeowners Association or the landowner where Resolution No. 04 -XXX Page 4 of 5 the monument signs are located is responsible for the maintenance of the sign on their property. 16. All monument signs, accessory lighting, and mailboxes must be uniformly de- signed with materials and color. 17. The developer must submit a copy of the private covenants which details the following: a. The homeowners association is responsible for all ownership and maintenance of common land area landscaping improvements, common fencing, and outlots as depicted on the final plat. If the outlot goes tax forfeited and the City obtains ownership, the City will bill annually each landowner within the Pinecroft plat a proportionate cost to maintain these areas. b. Monument signs shall be maintained by the homeowners association c. Fencing along Hinton Avenue and 65th Street must be constructed of all the same materials and color. Should an individual property owner choose to in- stall a fence paralleling the fencing along the above described roadways, then such a fence must be a black vinyl clad chain -link fence and be placed at the toe of an earth -berm closest to the home. d. No barrier or planting should encroach upon or over any public walkway system. e. The developer shall advise homebuyers that they are responsible to maintain the boulevard area that abuts their property to the curb of the street. This in- cludes the boulevard along Hinton Avenue and 65th Street. If the Homeowners Association is responsible for maintaining the boulevard along these public roadways, it should be stated as such in the private covenants. 18. Street names will be determined by the city. The developer must modify the final plat to include street names assigned by the City. 19. A temporary turn - around must be constructed at the northwest end of "A" Street. 20. A 10 -foot wide maintenance bench must be two -feet above a pond's normal water level. 21. Pond slopes above the 10 -foot maintenance bench should not be steeper than a 4:1 slope. 22. The developer may be required to dedicate right -of -way north of "A" Street for the possible future extension of a local street into a neighboring residential subdivision located in Woodbury. If a roadway is not required, then a utility and drainage Resolution No. 04 -XXX Page 5 of 5 easement of significant width would need to be platted along the side boundary lines of certain parcels to extend city utilities northward to the City of Woodbury. 23. The developer must comply with all city ordinances and policies. 24. Monument signs constructed for the development may not reference the de- veloper's company name. 25. All landscaped entrance features must be irrigated. Passed this 6 t day of October, 2004. Sandra Shiely, Mayor Attest: Caron M. Stransky, City Clerk EXHIBIT A 5 � s _ a z n 5 i a u �z 5 C g � a � � E e _ l � a n n _ r � e J CC�� � I P 8I it r § 3 m Y 4 - 111 ,a is _ \ o '� �I_ -,P_ .I 55TH 9TRE: Tf i� , N T ° a 1 p ` " °` T DO James R Hill, Inc. - PR fbll M1ARY N AT U HOME CORPORATION XHIBIT �3 H 1. a °' NEc2oF James R Hill, Inc. JR HO ARY 6R PORA PLAN a 1 in as Grv[Ea uN Ct1L US HUM[' CURPURA PIUN �" �.ro�. EX [BIT .E EXHIBIT F j I L� z A k y CP 3 r N � o R ETe. T b d l I I 5 � Ln \ h I il 7: m � I I> - - - Y1G 6 h Si4FT SOU "H ,39 ROAD 71; Ifv J L I N rs � s — i f6 ;q i� 5ffi e�E 94i e=1 IBIT G - $n Imo ,_ tip gf!s I� c I i _ PINECROFT James R Hill, Inc. PRELMIM1 4RY LiNDaC ANN, l71'v i� US HOME CORPORATION I _ _ „s� EXHIBIT H EXHIBIT I COMMON INTEREST COMMUNITY NUMBER (Planned Community) PINECROFT DECLARATION This Declaration is made in the County of Washington, State of Minnesota, on this day of , 2004, U. S. HOME CORPORATION, a Delaware corporation (the "Decla rant'), pursuant to the provisions of Minnesota Statutes Chapter 515B, known as the Minnesota Common Interest Ownership Act (the "Act'), for the purpose of creating Pinecroft, a planned community. WHEREAS, Declarant is the owner of certain real property located in Washington County, Minnesota, legally described in Exhibit A attached hereto and Declarant desires to submit said real property and all improvements thereon (collectively the "Property ") to the Act; and WHEREAS, Declarant desires to establish on the Property and any Additional Real Estate added thereto a plan for a permanent residential community to be owned, occupied and operated for the use, health, safety and welfare of its resident Owners and Occupants, and for the purpose of preserving the structural quality, and the original architectural and aesthetic character of the Property; and WHEREAS, the Property is not subject to an ordinance referred to in Section 515B.1 -106 of the Act, governing common interest ownership, and is not subject to a master association as defined in the Act. THEREFORE, Declarant makes the Declaration and submits the Property to the Act as a planned community under the name "Pinec roft," initially consisting of the Units referred to in Section 2, declaring that this Declaration shall constitute covenants to run with the Property, and that the Property shall be owned, used, occupied and conveyed subject to the covenants, restrictions, easements, charges and liens set forth herein, all of which shall be binding upon all Persons owning or acquiring any right, title or interest therein, and their heirs, personal representatives, successors and assigns. SECTION 1. DEFINITIONS The following words when used in the Governing Documents shall have the following meanings (unless the context indicates otherwise): 1.1 " Additional Real Estate shall mean the real property legally described in Exhibit C attached hereto, including all improvements located thereon now or in the future, and all easements and rights appurtenant thereto, which property Declarant has the right to add in whole at any time or in part from time to time to the common interest community and subject to this Declaration. 1.2 " Associa tion shall mean Pinecroft Association, Inc., a nonprofit corporation which has been created pursuant to Chapter 317A of the laws of the State of Minnesota and Minnesota Statutes Section 515B.3 -101, the members of which consist of all Owners as defined herein. 1.3 "Board " shall mean the Board of Directors of the Association as provided for in the Bylaws. 1.4 ' Boulevard Area shall mean that portion of the real property described on Exhibit D that has been subjected to this Declaration, as amended. 1.5 "B ylaws " shall mean the Bylaws governing the operation of the Association, as amended from time to time. 1.6 " Center Islands shall mean any curb enclosed area upon which grass, trees, shrubs and /or other vegetation is planted within the public streets serving the Common Interest Community. 1.7 " Common Elements shall mean all parts of the Property except the Units and all improvements on the Units, including all improvements thereon, owned by the Association for the common benefit of the Owners and Occupants. The initial Common Elements are legally described on Exhibit B attached hereto. 1.8 " Common Expenses shall mean all expenditures made or liabilities incurred by or on behalf of the Association that are incident to its operation, including without limitation allocations to reserves, those items specifically identified as Common Expenses in the Declaration or Bylaws. 1.9 " Common Interest Community means Pinecroft, Common Interest Community Number , Washington County, Minnesota including any Additional Real Estate subsequently added to the Common Interest Community. 2 1.10 " Decla rant means U.S. Home Corporation, a Delaware corporation; any person who executes an amendment to the Declaration adding Additional Real Estate to the Common Interest Community, other than persons holding interest in the real estate solely as security for an obligation; or any person who succeeds under the provisions of the Act to any Special Declarant Rights, as defined in the Act; 1.11 " Dwelling " shall mean a part of a building consisting of one or more floors, designed and intended for occupancy as a single family residence, and located within the boundaries of a Unit. The Dwelling includes any garage attached thereto or otherwise included within the boundaries of the Unit in which the Dwelling is located. 1.12 " Entrance Monument shall mean a structure identifying the Property constructed and maintained on a portion of the Property. 1.13 " Governing Documents shall mean this Declaration, and the Articles of Incorporation and Bylaws of the Association, as amended from time to time, all of which shall govern the use and operation of the Property. 1.14 " Member " shall mean all persons who are Owners as defined in this Declaration. The words "Owner" and "Member" may be used interchangeably in the Governing Documents. 1.15 "Oc cupant " shall mean any person or persons, other than an Owner, in possession of or residing in a Unit. 1.16 " Owner " shall mean a Person who owns a Unit, but excluding secured parties within the meaning of Section 515B.1- 103(29) of the Act. The term "Owner" includes, without limitation, contract for deed vendees and holders of a life estate. 1.17 " Person " shall mean a natural individual, corporation, limited liability company, partnership, trustee, other or legal entity capable of holding title to real property. 1.18 " Plat " shall mean the recorded plat depicting the Property pursuant to the requirements of Section 515B.2 -110 of the Act, and satisfying the requirements of Minnesota Statutes Chapters 505, 508 or 508A, as applicable, including any amended or supplemental Plat recorded from time to time in accordance with the Act. 1.19 " Private Driveway shall mean that part of a Unit paved to connect the Dwelling situated on such Unit to the public street. 1.20 " Private Yard Area shall mean that part of a Unit not covered by a Dwelling. 1.21 "Property " shall mean all of the real property submitted to this Declaration, including the Dwellings and all other structures and improvements located thereon now or in the future. The Property as of the date of this Declaration is legally described in Exhibit A attached hereto. 3 1.22 " Rules and Regulations shall mean the Rules and Regulations of the Association as approved from time to time pursuant to Section 5.6. 1.23 " Special Declarant Rights shall mean the rights reserved in Section 15 for the benefit of Declarant. 1.24 "Unit " shall mean any platted lot subject to this Declaration upon which a Dwelling is located or intended to be located, as shown on the Plat, including all improvements thereon, but excluding the Common Elements. Any terms used in the Governing Documents, and defined in the Act and not in this Section, shall have the meaning set forth in the Act. SECTION 2. DESCRIPTION OF UNITS AND APPURTENANCES 2.1 Units There are (_) Units which Declarant intends to develop, all of which are restricted exclusively to residential use. Each Unit constitutes a separate parcel of real estate. No additional Units may be created by the subdivision or conversion of Units pursuant to Section 515B.2 -112 of the Act except in accordance with Section 7.2. The Unit identifiers and locations of the Units are as shown on the Plat, which is incorporated herein by reference, and a schedule of Units is set forth on Exhibit A. The Unit identifier for a Unit shall be its lot and block number and the subdivision name. 2.2 Unit Boundaries The front, rear and side boundaries of each Unit shall be the boundary lines of the platted lot upon which the Dwelling is located or intended to be located as shown on the Plat. The Units shall have no upper or lower boundaries. Subject to this Section 2 and Section 3.2, all spaces, walls, and other improvements within the boundaries of a Unit are a part of the Unit. 2.3 Common Elements. Each Unit shall be the beneficiary of appurtenant easements for use and enjoyment on and across the Common Elements, subject to any restrictions authorized by the Declaration. 2.4 Other Easements Each Unit shall be subject to and shall be the beneficiary of appurtenant easements described in Section 13. 2.5 Declarant's Easements Declarant shall have and be the beneficiary of easements for construction and sales activities as described in Section 15.5. 2.6 Easements are Appurtenant All easements and similar rights burdening or benefiting a Unit or any other part of the Property shall be appurtenant thereto, and shall be permanent, subject only to termination in accordance with the Act or the terms of the easement. Any recorded easement benefiting or burdening the Property shall be construed in a manner consistent with, and not in conflict with, the easements created by this Declaration. 4 17 Impairment Prohibited No person shall materially restrict or impair any easement benefiting or burdening the Property, subject to the Declaration and the right of the Association to impose reasonable Rules and Regulations governing the use of the Property. SECTION 3. COMMON ELEMENTS 3.1 Common Elements The Common Elements and their characteristics are as follows: a. All of the Property not included within the Units constitutes Common Elements. The Common Elements include those parts of the Property described in Exhibit B or designated as Common Elements in the Act. b. The Common Elements shall be subject to appurtenant easements for services, public and private utilities, access, use and enjoyment in favor of each Unit and its Owners and Occupants; subject to (i) the right of the Association to establish reasonable Rules and Regulations governing the use of the Property and (ii) conservation easements in favor of the City of Cottage Grove. C. Subject to Sections 5, 6 and 9, all maintenance, repair, replacement, management and operation of the Common Elements shall be the responsibility of the Association. d. Common Expenses for the maintenance, repair, replacement, management and operation of the Common Elements shall be assessed and collected from the Owners in accordance with Section 6. SECTION 4. ASSOCIATION MEMBERSHIP; RIGHTS AND OBLIGATIONS Membership in the Association, and the allocation to each Unit of a portion of the votes in the Association and a portion of the Common Expenses of the Association shall be governed by the following provisions: 4.1 Membership Each Owner shall be a member of the Association by virtue of Unit ownership, and the membership shall be transferred with the conveyance of the Owner's interest in the Unit. An Owner's membership shall terminate when the Owner's ownership terminates. When more than one Person is an Owner of a Unit, all such Persons shall be members of the Association, but multiple ownership of a Unit shall not increase the voting rights allocated to such Unit nor authorize the division of the voting rights. 4.2 Voting Voting rights are allocated equally among the Units except that Declarant may appoint and remove the officers and directors of the Association between the date of the first conveyance of a Unit to an Owner other than Declarant and the fifth anniversary of said date (subject to Section 15.6 herein). F 4.3 Common Expenses Common Expense obligations are allocated equally among the Units except that special allocations of Common Expenses shall be permitted as provided in Section 6.1 and except, further, that assessments against Units owned by Declarant shall be in accordance with Section 6.6. 4.4 Appurtenant Rights and Obligations The ownership of a Unit shall include the voting rights and Common Expense obligations described in Sections 4.2 and 4.3. Said rights, obligations and interests, and the title to the Units, shall not be separated or conveyed separately. The allocation of the rights, obligations and interests described in this Section may not be changed, except in accordance with the Governing Documents and the Act. 4.5 Authority to Vote The Owner, or some natural person designated to act as proxy on behalf of the Owner, and who need not be an Owner, may cast the vote allocated to such Unit at meetings of the Association; provided, that if there are multiple Owners of a Unit, only the Owner or other Person designated pursuant to the provisions of the Bylaws may cast such vote. The voting rights of Owners are more fully described in Section 3 of the Bylaws. 4.6 Allocation After Addition of Units After each addition of Units pursuant to Section 20, voting rights and common expense obligations shall be reallocated in accordance with Sections 4.2 and 4.3. SECTION 5. ADMINISTRATION The administration and operation of the Association and the Property, including but not limited to the acts required of the Association, shall be governed by the following provisions: 5.1 General The operation and administration of the Association and the Property shall be governed by the Governing Documents and the Act. The Association shall, subject to the rights of the Owners set forth in the Governing Documents and the Act, be responsible for the operation, management and control of the Property. The Association shall have all powers described in the Governing Documents, the Act and the statute under which it is incorporated. All power and authority of the Association shall be vested in the Board, unless action or approval by the individual Owners is specifically required by the Governing Documents or the Act. All references to the Association shall mean the Association acting through the Board unless specifically stated to the contrary. 5.2 Operational Purposes The Association shall operate and manage the Property for the purposes of (i) administering and enforcing the covenants, restrictions, easements, charges and liens set forth in the Governing Documents and the Rules and Regulations; (ii) maintaining, repairing and replacing those portions of the Property for which it is responsible; and (iii) preserving the architectural uniformity and character of the Property. 5.3 Binding Effect of Actions All agreements and determinations made by the Association in accordance with the powers and voting rights established by the Governing Documents or the Act shall be binding upon all Owners and Occupants, and their lessees, guests, 3 heirs, personal representatives, successors and assigns, and all secured parties as defined in the Act. 5.4 Bylaws The Association shall have Bylaws. The Bylaws and any amendments thereto shall govern the operation and administration of the Association. 5.5 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 and the Act; provided, however, that such delegation shall not relieve the officers and directors of the ultimate responsibility for the performance of their duties as prescribed by the Governing Documents and by law. 5.6 Rules and Regulations The Board shall have the exclusive authority to approve and implement such reasonable Rules and Regulations as it deems necessary from time to time for the purpose of operating and administering the affairs of the Association and regulating the use of the Property; provided that the Rules and Regulations shall not be inconsistent with the Governing Documents or the Act. The inclusion in other parts of the Governing Documents of authority to approve Rules and Regulations shall be deemed to be in furtherance, and not in limitation, of the authority granted by this Section. New or amended Rules and Regulations shall be effective only after reasonable notice thereof has been given to the Owners. 5.7 Association Assets; Surplus Funds All funds and real or personal property acquired by the Association shall be held and used for the benefit of the Owners for the purposes stated in the Governing Documents. Surplus funds remaining after payment of or provision for Common Expenses and reserves shall be credited against future assessments or added to reserves, as determined by the Board. SECTION 6. ASSESSMENTS FOR COMMON EXPENSES 6.1 General Assessments for Common Expenses shall be determined and assessed against the Units by the Board, in its discretion; subject to the limitations set forth in Sections 6.2 and 6.3, and the requirements of the Bylaws. Assessments for Common Expenses shall include annual assessments and may include special assessments. Assessments shall be allocated among the Units according to the Common Expense allocations set forth in Section 4.3, subject to the following qualifications: a. Any Common Expense or portion thereof benefiting fewer than all of the Units may be assessed exclusively against the Units benefited, on the basis of (i) equality; (ii) square footage of the area being maintained, repaired or replaced; or (iii) the actual cost incurred with respect to each Unit. b. The costs of insurance may be assessed in proportion to value, risk or coverage, and the costs of utilities may be assessed in proportion to usage. 7 C. If any installment of an assessment becomes more than 30 days past due, then the Association may, upon 10 days written notice of the Owner, declare the entire amount of the assessment immediately due and payable in full. d. Assessments under Section 6.1 shall not be considered special assessments as described in Section 6.3. 6.2 Annual Assessments Annual assessments shall be established and levied by the board, subject only to the limitations set forth in Sections 6.2 and 6.3. Each annual assessment shall cover all of the anticipated Common Expenses of the Association for that year. Annual assessments shall provide, among other things, for contributions to a separate reserve fund sufficient to cover the periodic cost of maintenance, repair and replacement of the Common Elements, Entrance Monuments, Boulevard Area, Center Islands, and Units for which the Association is responsible. After a Common Expense assessment is levied, the annual assessment may be subsequently increased by the Board, subject to the limitation in the next sentence. The increase in the annual assessment for any fiscal year shall not exceed 10% of the total annual assessment for the Association's previous fiscal year, unless such increase is approved by the vote of a majority of those Owners voting, in person or by proxy, at a meeting called for that purpose. 63 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 Units for the purpose of defraying in whole or in part (i) the cost of any foreseen or unbudgeted Common Expense, (ii) general or specific reserves for maintenance, repair or replacement, and (iii) the maintenance, repair or replacement of any part of the Property for which the Association is responsible pursuant to Section 9, and any fixtures or other property related thereto. Notwithstanding the foregoing, any special assessment shall be subject to approval by the vote of two - thirds (2/3) of those Owners voting, in person or by proxy, at a meeting called for that purpose. 6.4 Liability of Owners for Assessments The obligation of an Owner to pay assessments shall commence at the later of (i) the recording of the Declaration or amendment thereto which creates the Owner's Unit, or (ii) the time at which the Owner acquires title to the Unit, subject to the alternative assessment program described in Section 6.6. The Owner at the time an assessment is payable with respect to the Unit shall be personally liable for the share of the Common Expenses assessed against such Unit. Such liability shall be joint and several where there are multiple Owners of the Unit. The liability is absolute and unconditional. No Owner is exempt from liability for payment of his or her share of Common Expenses by right of set -off, by waiver of use or enjoyment of any part of the Property, by absence from or abandonment of the Unit, by the waiver of any other rights, or by reason of any claim against the Association or its officers, directors or agents, or for their failure to fulfill any duties under the Governing Documents or the Act. The Association may invoice the charges, sanctions and remedies set forth in Section 14, in addition to any remedies provided elsewhere in the Governing Documents or by law, for the purpose of enforcing its rights hereunder. 0 6.5 Working Capital Fund Declarant shall establish a working capital fund to meet unforeseen expenditures or to purchase additional equipment or services during the period when Declarant is conducting its sales activities. There shall be contributed on a one -time basis for each Unit sold by Declarant an amount equal to two (2) month installments of the estimated Common Expense assessment for the Unit being conveyed. The contribution to the working capital fund shall be paid at the time of closing of sale of the Unit. The amounts paid into this fund are in addition to the regular monthly installments of assessments. The funds shall be deposited into the Association's account, and Declarant may not use the funds to defray any of its expenses, reserve contributions, or construction costs, or to make up any budget deficit while Declarant is in control of the Association. However, upon closing of an unsold Unit, Declarant may reimburse itself from funds collected at the closing for funds which it contributed to the working capital fund with respect to that Unit. 6.6 Declarant's Alternative Assessment Program Notwithstanding anything to the contrary in this Section 6, if a Common Expense assessment has been levied, any Unit owned by Declarant for initial sale shall be assessed at the rate of 25% of the assessment levied, excluding replacement reserves, on other Units of the same type until a certificate of occupancy has been issued with respect to such Unit by the municipality in which the Unit is located. There are no assurances that this alternative assessment program will have no effect on the level of services for items set forth in the Association's budget. 6.7 Assessment Lien The Association has a lien, as provided for in Section 51513.3- 116 of the Act, on a Unit for any assessment levied against that Unit as well as for fees, charges, late charges, fines and interest charges imposed by the Association pursuant to Section 515B.3- 102(a)(10), (11) and (12) of the Act. Recording of the Declaration constitutes record notice and perfection of any lien under this Section, and no further recordation of any notice of or claim for the lien is required. 6.8 Foreclosure of Lien; Remedies A lien under this Section is prior to all other liens and encumbrances on a Unit except (i) liens and encumbrances recorded before the Declaration, (ii) any first mortgage on the Unit, and (iii) liens for real estate taxes and other governmental assessments or charges against the Unit. Notwithstanding the foregoing, if (i) a first mortgage on a Unit is foreclosed, (ii) the first mortgage was recorded on or after June 1, 1994, and (iii) no Owner redeems during the Owner's period of redemption provided by Chapters 580, 581, or 582, then the holder of the sheriffs certificate of sale from the foreclosure of the first mortgage shall take title to the Unit subject to unpaid assessments for Common Expenses levied pursuant to Sections 515B.3- 115(a), (e)(1) to (3), (f), and (i) of the Act which became due, without acceleration, during the six months immediately preceding the first day following the end of the Owner's period of redemption. 6.9 Enforcement Proceedings to enforce an assessment shall be instituted within three (3) years after the last installment of the assessment becomes payable, or shall be barred. 6.10 Voluntary Conveyances: Statement of Assessments In a voluntary conveyance of a Unit the buyer shall not be personally liable for any unpaid assessments and other charges made by the Association against the seller or the seller's Unit prior to the time of conveyance to the buyer, W unless expressly assumed by the buyer. However, the lien of such assessments shall remain against the Unit until satisfied. SECTION 7. RESTRICTIONS ON USE OF PROPERTY All Owners and Occupants, and all secured parties, by their acceptance or assertion of an interest in the Property, or by their occupancy of a Unit, covenant and agree that, in addition to any other restrictions which may be imposed by the Act or the Governing Documents, the occupancy, use, operation, alienation and conveyance of the Property shall be subject to the following restrictions: 7.1 General The Property shall be owned, conveyed, encumbered, leased, used and occupied subject to the Governing Documents and the Act, as amended from time to time. All covenants, restrictions and obligations set forth in the Governing Documents are in furtherance of a plan for the Property, and shall run with the Property and be a burden and benefit to all Owners and Occupants and to any other Person acquiring or owning an interest in the Property, their heirs, personal representatives, successors and assigns. 7.2 Subdivision Prohibited Except as permitted by the Act, no Unit nor any part of the Common Elements may be subdivided or partitioned without the prior written approval of at least 75 % of the Owners and at least 75 % of any secured parties holding first mortgages on the Units of the approving Owners. 7.3 Residential Use The Units shall be used by Owners and Occupants and their guests exclusively as private, single family residential dwellings, and not for transient, hotel, commercial, business or other non - residential purposes, except as provided in Section 7.5. Any lease of a Unit (except for occupancy by guests with the consent of the Owner) for a period of less than 7 days, or any occupancy which includes services customarily furnished to hotel guests, shall be presumed to be for transient purposes. 7.4 Time Shares Prohibited The time share form of ownership, or any comparable form of lease, occupancy rights or ownership which has the effect of dividing the ownership or occupancy of a Unit into separate time periods, is prohibited. 7.5 Business Use Restricted Subject to the prior written approval of the Board, an Owner or Occupant residing in a Unit may keep and maintain his or her business or professional records in such Unit and handle matters relating to such business by telephone or correspondence therefrom, providing that such uses are incidental to the residential use, do not involve physical alteration of the Unit and do not involve any observable business activity such as signs, advertising displays, bulk mailings, deliveries, or visitation or use of the Unit by clients, customers, employees or independent contractors. The Association may maintain offices on the Property for management and related purposes. 7.6 Signs No signs of any kind shall be displayed to the public view on any Unit except for one sign of not more than five (5) square feet advertising the property for sale, except that Declarant shall be permitted to erect and maintain upon the Property such signs as Declarant deems appropriate to advertise the Property until the first anniversary of the date on which Declarant owns no Unit. 7.7 Antennas /Satellite Dish No television, radio, or other electronic towers, aerials, antennae, satellite dishes or device of any type for reception or transmission of radio or television broadcasts or other means of communication shall hereafter be erected, constructed, placed or permitted to remain on any Unit or upon any improvements thereon, except that this prohibition shall not apply to those antennae specifically covered by 47 C.F.R. Part 1, Subpart S Section 1.4000 (or any successor provision) promulgated under the Telecommunications Act of 1996, as amended from time to time. To the extent that reception of an acceptable signal would not be impaired, an antenna permissible hereunder may only be installed in a side or rear yard location, not visible from the street or neighboring property, and integrated with the dwelling and surrounding landscape. Antennae shall be installed in compliance with all state and local laws and regulations, including zoning, land -use, and building regulations. 7.8 Exterior Facilities No playground equipment, furnishings or furniture (including basketball hoops and swing sets), whether temporary or permanent, shall be erected or placed on any Unit except as approved by the Board, or the appointed committee if so authorized by the Board, and, if so approved, shall not be altered, modified or removed except if approved by the Board or such committee. No structure of a temporary character, trailer, basement, tent, shack, garage, barn, or other building shall be used on any Unit at any time as a residence, either temporarily or permanently. 7.9 Fences Along Hinton Avenue and 65' Street South, no fence, whether temporary or permanent, shall be erected or placed on any Unit except a fence of the design (including height, material and color) which has been selected by the Board, as part of the general landscape theme of the community. Elsewhere within the community, no fence, whether temporary or permanent, shall be erected or placed on any Unit except as approved by the Board, or the appointed committee if so authorized by the Board, and, shall not be altered, modified or removed except if approved by the Board or such committee. All fence approvals by the Board or the appointed committee are conditional upon proper future maintenance by the Owner. All fences must be installed within the boundary of the Unit and with regard to Units with berms located upon the same, must be installed on the inside of the berm. Fences are subject to removal at the expense of the Owner if any drainage or utility easement is interfered with. 7.10 Parkin e . Garages and parking areas on the Property shall be used only for parking of vehicles owned or leased by Owners and Occupants and their guests, and such other incidental uses as may be authorized in writing by the Association. The use of garages, driveways and other parking areas on the Property, and the types of vehicles and personal property permitted thereon, shall be subject to regulation by the Association, including without limitation the right of the Association to tow illegally parked vehicles or to remove unauthorized personal property. No boats, trailers, automobiles or other motor equipment, licensed or unlicensed, shall be stored or parked anywhere on any Unit except for short -term parking of less than 48 hours and then only on the Private Driveway of the Owner of said vehicles and equipment. Temporary guest parking and overnight parking on public streets are subject to City of Cottage Grove's pa rking ordinance. 11 7.11 Animals No animal may be bred, kept or maintained anywhere on the Property except that two (2) dogs, two (2) cats or two (2) other household pets may be kept on the condition that they are not kept, bred or maintained for any commercial purpose and upon the further condition that they comply with the City of Cottage Grove ordinance for domestic pets. The word "animal" shall be construed in its broadest sense and shall include all living creatures except humans. The person in charge of the pet must clean up after it and the owner of the pet(s) causing any damage to the landscaping upon the Common Elements and /or Private Yard Area. 7.12 Quiet Enjoyment; Interference Prohibited All Owners and Occupants and their guests shall have a right of quiet enjoyment in their respective Units, and shall use the Property in such a manner as will not cause a nuisance, nor unduly restrict, interfere with or impede the use of the Property by other Owners and Occupants and their guests. Nothing shall be done or kept on any Unit or part thereof which would (i) increase the rate of insurance on any other Unit over what the Owner of such other Unit, but for such activity, would pay without the prior written consent of the Board, or the appointed committee if so authorized by the Board; or (ii) which would be in violation of any statute, rule, ordinance, regulation, permit or other validly imposed requirement of any governmental body. No damage to, or waste of, the Property or the buildings situated thereon shall be committed by any Owner or any invitee of any Owner and each Owner agrees to indemnify and hold harmless the Association and the other Owners from and against all loss resulting from any such damage or waste caused by such Owner or such Owner's invitees. No noxious, destructive or offensive activity shall be allowed on any Unit, nor shall anything be done thereon which may be or may become an annoyance or nuisance to any other Owner or any other Person at any time lawfully residing on the Property. 7.13 Trash. No Unit shall be used or maintained as a dumping ground for rubbish, trash, garbage or other waste. No part of any Unit may be used at any time for the storage or abandonment of junked automobiles or other motor equipment. Garbage, rubbish and trash shall not be kept on any Unit except in sanitary containers. All equipment used or kept for the storage or disposal of such materials shall be kept in a clean and sanitary condition inside a garage. 7.14 Compliance with Law No use shall be made of the Property which would violate any then existing municipal codes or ordinances (including, but not limited to, the municipal 10- foot side yard setback [house and garage], 20 -foot side yard setback [street], 30 -foot front yard setback and 35 -foot rear yard setback requirements), or state or federal laws, nor shall any act or use be permitted which could cause waste to the Property, cause a material increase in insurance rates on the Property, or otherwise cause any unusual liability, health or safety risk, or expense, for the Association or any Owner or Occupant. 7.15 Soil Removal Except as approved by the Board, or the appointed committee if so authorized by the Board, no sod, soil or gravel shall be sold or removed from any Unit. All soil or gravel available from any excavation for the construction or alteration of any Dwelling or any appurtenance on any Unit and by whomsoever owned shall be hauled and disposed of to other points within the boundaries of the Property at the discretion of the Board or such committee. Except as approved by the Board, or committee thereof, the finished landscaping, sod and shrubbery shall not be removed, added to or altered in any manner. 12 7.16 Trees. No live trees or shrubs shall be removed, damaged or altered in appearance except in connection with initial construction by Declarant or except as approved by the Architectural Control Committee. N othing in this section, however, shall prevent careful removal of dead trees or diseased or damaged limbs of live trees. Nothing contained in the foregoing provisions of this Section 7 or in the following provisions of Section 8 shall be construed to limit the rights of Declarant to alter the Property or to construct or modify improvements thereon, or to limit the manner in which such improvements, alterations, or modifications may be made as to Units owned by Declarant. SECTION 8. ARCHITECTURAL CONTROL 8.1 Restrictions on Alterations The following restrictions and requirements shall apply to alterations on the Property: a. Except as expressly provided in this Section 8, and except for alterations made by Declarant in connection with its initial sale of a Unit, no structure, building, addition, deck, patio, fence (whether of vegetation or otherwise), wall, enclosure, window, exterior door, sign, display, decoration, color change, shrubbery, material topographical or landscaping change, nor any other exterior improvements to or alteration of any Dwelling or any other part of a Unit which is visible from the exterior of the Unit (collectively referred to as "alterations "), shall be commenced, erected or maintained in a Unit, unless and until the plans and specifications 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, Declarant's written consent shall also be required for alterations until Declarant no longer owns any unsold Unit and has no further rights to add Additional Real Estate to the Common Interest Community. In addition, any alteration shall comply with City of Cottage Grove building permit as applied to Property. b. The criteria for approval shall include and require, at a minimum, (i) substantial uniformity of color, size, location, type and design in relation to existing improvements and topography; (ii) comparable or better quality of materials as used in existing improvements; (iii) ease of maintenance and repair; (iv) adequate protection of the Property, the Association, Owners and Occupants from liability and liens arising out of the proposed alterations; (v) compliance with governmental laws, codes and regulations; (vi) compliance of color and exterior materials with City requirements; and (vii) that the requested alteration shall not result in identical building design and /or exterior color in adjacent Units. C. Approval of alterations which encroach upon another Unit or the Common Elements shall create an appurtenant easement for such encroachment in favor of the Unit with respect to which the alterations are approved; 13 provided, that any easement for a deck or patio other than as originally constructed shall be approved by resolution of the Board and a file of such resolutions shall be maintained permanently as a part of the Association's records. d. Alterations described in Section 16 shall be governed by that Section. 8.2 Review Procedures The following procedures shall govern requests for alterations under this Section: a. Detailed plans, specifications and related information regarding any proposed alteration (the "Plans "), in form and content acceptable to the Board shall be submitted to the Board at least sixty (60) days prior to the projected commencement of construction. No alterations shall be commenced prior to approval. b. In the event the Board has not delivered written approval of the Plans within sixty (60) days after the Plans have been submitted to it, the Plans will be deemed to be disapproved. C. The Plans are required to be submitted by first class mail, registered or certified, postage prepaid and return receipt requested or delivered personally to the Board. 8.3 Remedies for Violations The Association may undertake any measures, legal or administrative, to enforce compliance with this Section and shall be entitled to recover from the Owner causing or permitting the violation all attorneys' fees and costs of enforcement, whether or not a legal action is started. Such attorneys' fees and costs shall be a lien against the Owner's Unit and a personal obligation of the Owner. In addition, the Association shall have the right to enter the Owner's Unit and to restore any part of the Dwelling or Unit to its prior condition if any alterations were made in violation of this Section, and the cost of such restoration shall be a personal obligation of the Owner and a lien against the Owner's Unit. SECTION 9. MAINTENANCE 9.1 Common Area and Center Islands The Association shall provide for all maintenance, repair or replacement (collectively referred to as "Maintenance ") of the Common Elements, Entrance Monuments, Boulevard Area and Center Islands. With regard to the Center Islands, the Association's maintenance obligations shall continue until such time as the City of Cottage Grove directs the Association to discontinue the same, there exists no vegetation to maintain or upon the request of the Association, the City of Cottage Grove granting the Association permission to discontinue the maintenance of the Center Islands. 9.2 Maintenance by Owner Except for the exterior maintenance to be provided by the Association under Section 9. 1, all maintenance of the Dwellings and Units shall be the sole responsibility and expense of the Owners thereof. The Association may require that any exterior 14 maintenance to be performed by the Owner be accomplished pursuant to specific uniform criteria established by the Association. SECTION 10. DECLARANT'S LANDSCAPING REQUIREMENTS 10.1 Each Private Yard Area landscaping shall include as a minimum four (4) trees and ten (10) shrubs, including the one (1) city installed tree and any developer installed trees. One (1) of these four (4) trees shall be a conifer tree. SECTION 11. INSURANCE 11.1 Required Coverage The Association shall obtain and maintain, at a minimum, a master policy or policies of insurance in accordance with the insurance requirements set forth in the Act. The Association may also obtain and maintain the following types of insurance: a. Fidelity bond or insurance coverage against dishonest acts on the part, of directors, officers, manager, trustee, employees or persons responsible for handling funds belonging to or administered by the Association if deemed to be advisable by the Board. b. Workers' Compens ation insurance as required by law. C. Directors and officers liability insurance with such reasonable limits and coverages as the Board shall determine from time to time. d. Such other insurance as the Board may determine from time to time to be in the best interests of the Association and the Owners. 11.2 Premiums: Improvements; Deductibles All insurance premiums shall be assessed and paid as a Common Expense. 15 SECTION 12. RECONSTRUCTION, CONDEMNATION AND EMINENT DOMAIN 12.1 Reconstruction The obligations and procedures for the repair, reconstruction or disposition of the Property following damage to or destruction thereof shall be governed by the Act. 12.2 Approval of Board If a Unit is partially or totally damaged or destroyed by fire or other casualty, no such reconstruction shall be commenced without the written approval of the plans and specifications therefor by the Board. SECTION 13. EASEMENTS 13.1 Easement for Maintenance, Repair, Replacement and Reconstruction Each Unit, and the rights of the Owners and Occupants thereof, shall be subject to the rights of the Association to an exclusive, appurtenant easement on and over the Units for the purposes of maintenance, repair, replacement and reconstruction of the Units, utilities serving the Units, landscaping, waterways, lawn sprinkling, boulevards, signage and monuments, to the extent necessary to fulfill the Association's oblig ations under the Governing Documents. 13.2 Boulevard Easement. The Property shall be subject to a non - exclusive easement in favor of the Association over the Boulevard Area to maintain, repair and replace the boulevards located therein. 13.3 Continuation and Scope of Easements Notwithstanding anything in this Declaration to the contrary, in no event shall an Owner or Occupant be denied reasonable access to his or her Unit or the right to utility services thereto. The easements set forth in this Section shall supplement and not limit any easements described elsewhere in this Declaration or recorded, and shall include reasonable access to the easement areas through the Units and the Common Elements for purposes of maintenance, repair, replacement and reconstruction. SECTION 14. COMPLIANCE AND REMEDIES Each Owner and Occupant, and any other Person owning or acquiring any interest in the Property, shall be governed by and comply with the provisions of the Act, the Governing Documents, the Rules and Regulations, the decisions of the Association, and such amendments thereto as may be made from time to time. A failure to comply shall entitle the Association to the relief set forth in this Section, in addition to the rights and remedies authorized elsewhere by the Governing Documents and the Act. 14.1 Entitlement to Relief The Association may commence legal action to recover sums due, for damages, for injunctive relief or to foreclose a lien owned by it, or any combination thereof, or an action for any other relief authorized by the Governing Documents or 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 Rules and Regulations, the Act or the decisions of the Association. However, no Owner may withhold any assessments payable to the Association, or take (or omit) other action in violation of the Governing Documents, the Rules and Regulations or the Act, as a measure to enforce such Owner's posit ion, or for any other reason. 14.2 Consensus for Association Action a. Notwithstanding anything contained herein to the contrary and except as provided in this Section, the Association may not commence a legal proceeding or an action under this Section without the approval of at least two - thirds of the Members. A Member representing Units owned by Persons other than the Member shall not vote in favor of bringing or prosecuting any such proceeding unless authorized to do so by a vote of Owners of two - thirds of the total number of Units represented by the Member. This Section shall not apply, however, to (i) actions brought by the Association to enforce Governing Documents (including, without limitation, the foreclosure of liens); (ii) the imposition and collection of assessments; (iii) proceedings involving challenges to ad valorem taxation; or (iv) counterclaims brought by the Association in proceedings instituted against it. b. Notwithstanding anything contained herein to the contrary and prior to the Association or any Member commencing any proceeding to which Declarant is a party, including, but not limited to an alleged defect of any improvement, Declarant shall have the right to be heard by the Members, or the particular Member, and to access, inspect, correct the condition of, or redesign any portion of any improvement as to which a defect is alleged, or otherwise correct the alleged dispute. 14.3 Sanctions and Remedies In addition to any other remedies or sanctions, expressed or implied, administrative or legal, the Association shall have the right, but not the obligation, to implement any one or more of the following actions against Owners and occupants and /or their guests, who violate the provisions of the Governing Documents, the Rules and Regulations or the Act: a. Commence legal action for damages or equitable relief in any court of competent jurisdiction. b. Impose late charges of up to 15% of each late payment of an assessment or installment thereof. C. In the event of default of more than 30 days in the payment of any assessment or installment thereof, all remaining installments of assessments assessed against the Unit owned by the defaulting Owner may be accelerated 17 and shall then be payable in full if all delinquent assessments, together with all costs of collection and late charges, are not paid in full prior to the effective date of the acceleration. Reasonable advance written notice of the effective date of the acceleration shall be given to the defaulting Owner. d. Foreclose any lien arising under the provisions of the Governing Documents or under law, in the manner provided for the foreclosure of mortgages by action or under a power of sale. 14.4 Alternative Method for Resolving Disputes Declarant, its officers, directors, employees and agents; the Association, its officers, directors and committee members; all Persons subject to this Declaration; any builder, its officers, directors, employees and agents; and any Person not otherwise subject to this Declaration who agrees to submit to this Section (each such entity being referred to as a "Bound Party ") agree to encourage the amicable resolution of disputes, without the emotional and financial costs of litigation. Accordingly, each Bound Party covenants and agrees to submit those claims, grievances or disputes described in Section 14.5 (collectively, "Claims") to the procedures set forth in Section 14.6. 14.5 Claims Unless specifically exempted below, all Claims between any of the Bound Parties regardless of how the same might have arisen or on what it might be based including, but not limited to Claims (a) arising out of or relating to the interpretation, application or enforcement of the Governing Documents or the rights, obligations and duties of any Bound Party under the Governing Documents; (b) relating to the design or construction of improvements; (c) based upon any statements, representations, promises, warranties, or other communications made by or on behalf of any Bound Party shall be subject to the provisions of Section 14.6. Notwithstanding the above, unless all parties thereto otherwise agree, the following shall not be Claims and shall not be subject to the provisions of Section 14.6: a. any suit by the Association against any Bound Party to enforce the provisions of Section 6 (Assessment for Common Expenses); b. any suit by the Association or Declarant to obtain a temporary restraining order or injunction (or equivalent emergency equitable relief) and such other ancillary relief as the court may deem necessary in order to maintain the status quo and preserve the Association's ability to act under and enforce the provisions of Section 7 (Restrictions on Use of Property) or Section 8 (Architectural Control); C. any suit between or among Owners, which does not include Declarant, a builder or the Association as a party, if such suit asserts a claim which would constitute a cause of action independent of the Governing Documents; and d. any suit in which any suit in which any indispensable party is not a Bound Party. IE With the consent of all parties hereto, any of the above may be submitted to the alternative dispute resolution procedures set forth in Section 14.6. 14.6 Mandatory Procedures a. Notice Any Bound Party having a Claim ("Claimant") against any other Bound Party ( "Respondent ") (the Claimant and the Respondent referred to herein being individually as a "Party," or collectively as the "Parties ") shall notify each Respondent in writing (the "Notice "), stating plainly and concisely: (i) the nature of the Claim, including the persons involved and Respondent's role in the Claim; (ii) the legal basis of the Claim (i.e., the specific authority out of which the Claim arises); (iii) the proposed remedy; and (iv) the fact that Claimant will meet with Respondent to discuss in good faith ways to resolve the Claim. b. Negotiation and Mediation (i) The Parties shall make every reasonable effort to meet in person and confer for the purpose of resolving the Claim by good faith negotiation. If requested in writing, accompanied by a coy of the Notice, the Board may appoint a representative to assist the parties in negotiation. (ii) If the Parties do not resolve the Claim within 30 days after the date of the notice (or within such other period as may be agreed upon by the Parties) ( "Termination of Negotiations "), Claimant shall have 30 days to submit the Claim to mediation under the auspices of the American Arbitration Association ( "AAA ") in accordance with the AAA's Commercial or Construction Industry Mediation Rules, as appropriate. (iii) If Claimant does not submit the Claim to mediation within such time, or does not appear for the mediation, Claimant shall be deemed to have waived the Claim, and Respondent shall be released and discharged from any and all liability to Claimant on account of such Claim; provided, nothing herein shall release or discharge Respondent from any liability to any Person other than the Claimant. (iv) Any settlement of the Claim through mediation shall be documented in writing by the mediator and signed by the Parties. If the Parties 19 do not settle the Claim within 30 days after submission of the matter to the mediation, or within such other time as determined by the mediator or agreed to by the Parties, the mediator shall issue a notice of termination of the mediation proceeding ( "Termination of Mediation "). The Termination of Mediation notice shall set forth that the Parties are at an impasse and the date that mediation was terminated. Each Party shall bear its own costs of the mediation, including attorneys' fees, and each Party shall share equally all charges rendered by the mediator. If the Parties agree to a resolution of any Claim through negotiation or mediation in accordance with Section 14.6 and any Party thereafter fails to abide by the terms of such agreement, then any other Party may file suit or initiate arbitration proceedings to enforce such agreement without the need to again comply with the procedures set forth in Section 14.6. In such event, the Party taking action to enforce the agreement shall be entitled to recover from the non - complying Party (or if more than one non - complying Party, from all such Parties pro rata) all costs incurred in enforcing such agreement, including without limitation, attorneys' fees and court costs. C. Binding Arbitration (i) Upon Termination of Mediation, Claimant shall thereafter be entitled to initiate final, binding arbitration of the Claim under the auspices of the AAA in accordance with the AAA's Commercial or Construction Industry Arbitration Rules, as appropriate. Such Claim shall not be decided by or in a court of law. Any judgment upon the award rendered by the arbitrator may be entered in and enforced by any court having jurisdiction over such Claim. If the Claim amount exceeds $250,000.00, the dispute shall be heard and determined by three arbitrators. Otherwise, unless mutually agreed to by the parties, there shall be one arbitrator. Arbitrators shall have expertise in the area(s) of dispute, which may include legal expertise if legal issues are involved. (ii) Each Party shall bear its own costs and expenses and an equal share of the arbitrator's and administrative fees of arbitration. Notwithstanding the foregoing, if a Party unsuccessfully contests the validity or scope of arbitration in a court of law, the non- contesting party shall be awarded reasonable attorneys' fees and expenses incurred in defending such contest. All decisions respecting the arbitrability of any Claim shall be decided by the arbitrator(s). (iii) The award of the arbitrator(s) shall be accompanied by detailed written findings of fact and conclusions of law. Except as may be required by law or for confirmation of an award, neither a Party nor 20 an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the other Parties. 14.7 Costs of Proceeding and Attorneys' Fees With respect to any collection measures which the Association takes, whether or not finally determined by a court or arbitrator, the Association may assess the violator and his, hers, or its Unit with any expenses incurred in connection with such enforcement, including, without limitation, fines or charges previously imposed by the Association, reasonable attorneys' fees, and interest (at the highest rate allowed by law) on the delinquent amounts owed to the Association. 14.8 Amendment of Article Without the express prior written consent of Declarant, this Section may not be revoked and /or amended for a period of twenty (20) years from the effective date of this Declaration. SECTION 15. SPECIAL DECLARANT RIGHTS Declarant hereby reserves exclusive and unconditional authority to exercise the following Special Declarant Rights within the meaning of Section 515B.1- 103(32) of the Act for as long as it owns a Unit, or for such shorter period as may be specifically indicated: 15.1 Complete Improvements To complete all the Units and other improvements indicated on the Plat, or otherwise included in Declarant's development plans or allowed by the Declaration, and to make alterations in the Units and Common Elements to accommodate its sales facilities. 15.2 Relocate Boundaries and Alter Units To relocate boundaries between Units and to otherwise alter Units owned by it, to the extent permitted by Section 16. 15.3 Sales Facilities To construct, operate and maintain a sales office, management office, model Units and other development, sales and rental facilities within the Common Elements and any Units owned by Declarant from time to time, located anywhere on the Property. 15.4 Signs To erect and maintain signs and other sales displays offering the Units for sale or lease, in or on any Unit owned by Declarant and on the Common Elements. 15.5 Easements To have and use easements, for itself, its employees, contractors, representatives, agents and prospective purchasers through and over the Common Elements for the purpose of exercising its Special Declarant Rights. 15.6 Control of Association To control the operation and administration of the Association, including without limitation the power to appoint and remove the members of the Board pursuant to Section 515B.3 -103 of the Act, until the earliest of: (i) voluntary surrender of control by Declarant, (ii) an Association meeting which shall be held within 60 days after conveyance to Owners other than a Declarant of 75% of the total number of Units authorized to be 21 included in the Property or (iii) the date five (5) years following the date of the first conveyance of a Unit to an Owner other than a Declarant. Notwithstanding the foregoing, the Owners other than a Declarant shall have the right to nominate and elect not less than 33 1/3% of the directors at a meeting of the Owners which shall be held within 60 days following the conveyance by Declarant of 50% of the total number of Units authorized to be included in the Property. 15.7 Consent to Certain Amendments As long as Declarant owns any unsold Unit, Declarant's written consent shall be required for any amendment to the Governing Documents or Rules and Regulations which directly or indirectly affects or may affect Declarant's rights under the Governing Documents. 15.8 Add Additional Real Estate Add Additional Real Estate to the Property as described in Section 20 herein. SECTION 16. RIGHTS TO RELOCATE UNIT BOUNDARIES AND ALTER UNITS 16.1 Rights to Relocate Boundaries and Alter Units Existing or future Units may be altered and Unit boundaries may be relocated only in accordance with the following conditions: a. Combining Units An Owner may make improvements or alterations to such Unit or, may, after acquiring an adjoining Unit, remove or alter any intervening partition or create apertures therein in accordance with Section 515B.2 -113 of the Act and Subsection d of this Section. b. Relocation of Boundaries The boundaries between adjoining Units may be relocated in accordance with Section 515B.2 -114 of the Act and Subsection d of this Section. C. Subdivision or Conversion No additional Units may be created by the subdivision or conversion of a Unit (within the meaning of the Act) into two or more Units, nor into other Units or Common Elements except in accordance with Section 7.2. d. Requirements The alteration, relocation of boundaries or other modification of Units or the Dwellings or other structures located therein (collectively referred to herein as " alteration" or "alterations ") pursuant to this Section, Section 8, and the Act may be accomplished only in accordance with the following conditions: (i) No Unit may be altered if, thereafter, the Dwelling located therein, or any other Dwelling affected by the alteration, would no longer be habitable or practicably usable for its intended purpose or would violate any law, code or ordinance of any governmental authority having jurisdiction over the Property. 22 (ii) No alteration may be made which adversely affects the structural or functional integrity of any building system or the structural support or weather -tight integrity of any portion of any building or other structure. (iii) The prior written consent of the Association shall be required for any alteration, except alterations by Declarant. Where required, such consent shall be requested in writing by each Owner whose Unit is proposed to be altered, accompanied by such explanation, drawings and specifications relating to the proposed alterations as may be reasonably required by the Association or the first mortgagee of the Unit. The Association shall give such Owner(s) notice in an expeditious manner, granting, denying or qualifying its consent. (iv) As a precondition to consenting to alterations the Association may require, among other things, the following: (i) that all alterations will be done in a workmanlike manner and without impairing the structural, mechanical or weather -tight integrity of the Building; (ii) that the Common Elements and altered Units will be repaired and /or restored in the future as required by the Association; (iii) that the construction of the alterations will not create dangerous conditions for any Owners or Occupants; (iv) that the Property, the first mortgagees and the Owners and Occupants will be protected from liens and other liability arising from the alterations; and (v) that the alterations will be done in compliance with the applicable laws, regulations and ordinances of the governmental authorities having jurisdiction over the Property. (v) The Association may require that the Owners of the Units to be altered pay all costs of processing and documentation for the request and the preparation and recording of any necessary amendment to the Governing Documents, including without limitation such costs as filing, architects' and attorneys' fees incurred by the Association in connection with the alterations. SECTION 17. AMENDMENTS Except for amendments which the Declarant may execute to add Additional Real Estate to the Common Interest Community, this Declaration may be amended by the consent of (i) Owners of Units to which are allocated at least sixty -seven percent (67 %) of the votes in the Association and (ii) the consent of Declarant to certain amendments as provided in Section 15.7. Consent of the Owners may be obtained in writing or at a meeting of the Association duly held in accordance with the Bylaws. Consent of Declarant shall be in writing. Any amendment shall be subject to any greater requirements imposed by the Act. The Amendment shall be effective when recorded as provided in the Act. An affidavit by the Secretary of the Association as to the outcome of the vote, 23 or the execution of the foregoing agreements or consents, shall be adequate evidence thereof for all purposes, including, without limitation, the recording of the amendment. SECTION 18. MISCELLANEOUS 18.1 Severability If any term, covenant or provision of this instrument or any exhibit attached hereto is held to be invalid or unenforceable for any reason whatsoever, such determination shall not be deemed to alter, affect or impair in any manner whatsoever any other portion of this instrument or exhibits. 18.2 Construction Where applicable the masculine gender of any word used herein shall mean the feminine or neutral gender, or vice versa, and the singular of any word used herein shall mean the plural, or vice versa. References to the Act, or any section thereof, shall be deemed to include any statutes amending or replacing the Act, and the comparable sections thereof. 18.3 Tender of Claims In the event that any incident occurs which could reasonably give rise to a demand by the Association against Declarant for indemnification pursuant to the Act, the Association shall promptly tender the defense of the action to its insurance carrier, and give Declarant written notice of such tender, the specific nature of the action and an opportunity to defend against the action. 18.4 Notices Unless specifically provided otherwise in the Governing Documents or the Act, all notices required to be given by or to the Association, the Board, the Association officers or the Owners or Occupants shall be in writing and shall be effective upon hand delivery, or mailing if properly addressed with postage prepaid and deposited in the United States mail. 18.5 Conflicts Among Documents In the event of any conflict among the provisions of the Act, the Declaration, the Bylaws or any Rules or Regulations approved by the Association, the Act shall control. As among the Declaration, Bylaws and Rules and Regulations, the Declaration shall control, and as between the Bylaws and the Rules and Regulations, the Bylaws shall control SECTION 19. TERMINATION The Common Interest Community may be terminated, in whole or in part, only by the affirmative vote of 80% of the Owners, and the consent of at least 80% of the first mortgagees of the Units (each mortgagee having one vote per Unit financed). All procedures, appraisals and disposition of proceeds following any termination of the Common Interest Community shall be governed by the applicable provisions of the Act. FIB SECTION 20. ADDITIONAL REAL ESTATE 20.1 Rieht Declarant reserves the right to record one or more amendments to this Declaration adding all or any part of the Additional Real Estate to the Common Interest Community. The right to add Additional Real Estate will expire on the date which is ten (10) years after the date Declarant records this Declaration. If, prior to the expiration of the ten (10) year period, Declarant determines that will not add all or any portion of the Additional Real estate to the Common Interest Community, Declarant may record a statement to that effect in the office of the County Recorder of Washington County, and upon the recording of the statement Declarant's right to add the Additional Real Estate described in the statement to the Common Interest Community will terminate. 20.2 Additions Declarant may add portions of the Additional Real Estate at different times. Declarant makes no assurances regarding the configuration or boundaries of the portions of the Additional Real Estate which Declarant may add to the Common Interest Community. Declarant makes no assurances as to the order in which Declarant will add portions of Additional Real Estate to the Common Interest Community. Declarant makes no assurances that Declarant will add any of the Additional Real Estate to the Common Interest Community. 20.3 Number of Units Declarant may create a maximum of ( Units on the Additional Real Estate. All Units created on the Additional Real Estate shall be restricted to residential use subject to Section 7. 20.4 Compatibility Any and all buildings and Units on the Additional Real Estate, when and if added, will be compatible with the other buildings and Units in the Common Interest Community in terms of the quality of construction. In recognition of ongoing developments in the field of housing construction and energy supply, and changes in consumer demand for housing, Declarant makes no assurance with regard to the architectural style, the principal materials which may be employed in the construction or the size of the Units or buildings, if any, erected upon the Additional Real Estate when and if the Additional Real Estate is added to the Common Interest Community. 20.5 Restrictions All restrictions contained in this Declaration which affect the use, occupancy or alienation of Units will apply to all Units created on any Additional Real Estate which Declarant adds to the Common Interest community. An amendment which adds Additional Real Estate to the Common Interest Community may contain additional restrictions as may be necessary to reflect the different character of the Additional Real Estate which is the subject of the amendment. Any additional restrictions contained in an amendment to this Declaration shall affect only the Additional Real Estate described in the amendment. 20.6 Notice Before recording an amendment adding Additional Real Estate to the Common Interest Community, Declarant shall serve notice of its intention to add Additional Real Estate as provided for in the Act. If Declarant complies with the Act and the Declaration, Declarant may add the Additional Real Estate without the approval or consent of the Association or any Owner. Any assurances set forth in this Declaration regarding Additional Real Estate shall not 25 apply to the Additional Real Estate if Declarant does not add the Additional Real Estate to the Common Interest Community. If an Amendment adding Additional Real Estate to the Common Interest Community creates additional Units, the Fractional Allocation assigned to each Unit shall be reallocated pursuant to Section 4. 20.7 Effect The statements made in Sections 20.1 through 20.6 above shall not apply to any Additional Real Estate which is not added to the Property IN WITNESS WHEREOF, the undersigned has executed this instrument the day and year first set forth in accordance with the requirements of the Act. U.S. HOME CORPORATION, a Delaware corporation La STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) Lee Johnson Its Division Senior Vice President The foregoing instrument was acknowledged before me this day of , 2004, Lee Johnson, the Division Senior Vice President of U.S. Home Corporation, a Delaware corporation, on behalf of the corporation. Notary Public THIS INSTRUMENT WAS DRAFTED BY: MESSERLI & KRAMER P.A. (BAP) 150 South Fifth Street 1800 Fifth Street Towers Minneapolis, MN 55401 612 - 672 -3600 26 COMMON INTEREST COMMUNITY NO. PINECROFT EXHIBIT A TO DECLARATION SCHEDULE OF UNITS /LEGAL DESCRIPTION OF PROPERTY All in , Washington County, Minnesota NOTE: Each Unit's unit identifier is its lot and block number and the subdivision name. A -1 COMMON INTEREST COMMUNITY NO. PINECROFT EXHIBIT B TO DECLARATION LEGAL DESCRIPTION OF COMMON ELEMENTS All in , Washington County, Minnesota IN COMMON INTEREST COMMUNITY NO. PINECROFT EXHIBIT C TO DECLARATION LEGAL DESCRIPTION OF ADDITIONAL REAL ESTATE All in , Washington County, Minnesota 586940.2 G1 COMMON INTEREST COMMUNITY NO. PINECROFT EXHIBIT D TO DECLARATION D -1 EXHIBIT J PUBLIC UTILITY EASEMENT AGREEMENT THIS PUBLIC UTILITY EASEMENT AGREEMENT ( "Agreement ") is entered into as of 1 2004, by and among Daniel H. Kemp and Carol M. Kemp, husband and wife (collectively "Kemp "), the City of Cottage Grove, a Minnesota municipal corporation ( "City ") and U.S. Home Corporation, a Delaware corporation ( "U.S. Home "). Recitals A. Kemp is the owner of the following described real property in Washington County, Minnesota ('Burdened Property "): That part of the Northwest Quarter of the Southeast Quarter of Section 5, Township 27, Range 21, Washington County, Minnesota, described as follows: Beginning at the southwest corner of Parcel 7, WASHINGTON COUNTY RIGHT OF WAY PLAT NO. 136, according to the recorded plat thereof, Washington County, Minnesota said corner being a point on the south line of said Northwest Quarter of the Southeast Quarter and said south line is assumed to have a bearing of North 89 degrees 56 minutes 13 seconds East; thence North 00 degrees 03 minutes 47 seconds West a distance of 5.00 feet thence North 89 degrees 56 minutes 13 seconds East a distance of 228.00 feet; thence North 11 degrees 21 minutes 17 seconds East a distance of 30.61 feet to a line which is 35.00 feet north of, measured at a right angle to and parallel with the south line of said Northwest Quarter of the Southeast Quarter; thence South 89 degrees 56 minutes 13 seconds West along said parallel line a distance of 557.54 to the west line of said Northwest Quarter of the Southeast Quarter; thence South 01 degree 04 minutes 19 seconds West along said west line 35.01 feet to the southwest corner of said Northwest Quarter of the Southeast Quarter; thence North 89 degrees 56 minutes 13 seconds East along the south line of said Northwest Quarter of the Southeast Quarter a distance of 324.18 to said point of beginning; B. U.S. Home is the developer of land located adj acent to and northerly of the Burdened Property. U.S. Home's proposed development requires the extension of public sanitary sewer facilities to the U.S. Home property through the Burdened Property. C. The City has required, as a condition of approval of U.S. Home's proposed plat for the adjoining land, that U.S. Home obtain a public utility easement over the Burdened Property to permit the extension of the public sanitary sewer system across the Burdened Property to serve U. S. Home's proposed development. D. Kemp is willing to grant to the City a permanent easement for public utility purposes over, under, through and across that portion of the Burdened Property legally described on Exhibit A and graphically depicted on Exhibit B ( "Easement Area "), attached hereto and made a part hereof. Easement Terms THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, it is agreed as follows: 1. Easement Granted Kemp does hereby grant to the City a permanent public utility easement over, under and across the Easement Area. The easement granted herein includes the right of the City, its contractors, agents, and employees to enter the described easement area at all reasonable times for the purpose of locating, constructing, reconstructing, operating, maintaining, inspecting, altering and repairing within the described easement area public storm sewer, sanitary sewer and water facilities, ground surface drainage ways, and related appurtenances. The easement granted herein also includes the right to cut, trim, or remove from the easement area trees, shrubs, or other vegetation as in the City's judgment unreasonably interfere with the easement or facilities of the City, its successors or assigns. 2. Condition of the Property The City shall, after construction and any construction, reconstruction and/or repairs, return the surface of the Easement Area to its original condition to the extent reasonably possible, including backfilling, grading, leveling, seeding or sodding, and repairing or replacing fencing, as appropriate. Kemp specifically agrees that City shall have no obligation to replace or repair surface improvements installed by Kemp or their successors within the Easement Area, other than sod or agricultural post and wire fencing. 3. Maintenance of System The City shall be solely responsible for the maintenance of the public utility system constructed within the Easement Area in accordance with applicable rules and regulations. 4. Grantor's Use Subject to the limitations in this paragraph, Kemp reserves the right to use the land included within the Easement Area, subject to all governmental rules and regulations, and provided that such use will not unreasonably disturb or interfere with the public facilities or appurtenances located therein or prevent reasonable ingress and egress thereto for the purposes of operation, use, maintenance and repair (including reconstruction) thereof. Kemp shall not erect, or cause to be placed upon the Easement Area, any structures, material, device, thing, or matter which could possibly obstruct or impede the City's use of the Easement Area and shall not alter the Easement Area without obtaining the prior written approval of City. The City consents to the installation and maintenance of agricultural post and wire fencing within the Easement Area. Kemp shall not change the grade, elevation or contour of any part of the Easement Area without obtaining the prior written consent of the City. 5. Right of Access The City, its respective invitees, licensees, employees, contractors, suppliers and /or agents, shall have the right of access to the Easement Area and have all rights of ingress and egress including, but not limited, the right to remove any unauthorized obstructions or structures placed or erected on the Easement Area and the right, but not the obligation, to improve, repair and maintain the Easement Area. In furtherance thereof, Kemp grants to the City a temporary construction easement located thirty -five (35) feet to the East and ten (10) feet to the North of the boundaries of the Easement Area for use during and in connection with the initial construction of the improvements located or to be located in the Easement Area. The temporary construction easement shall expire on 6. Duration The public utility easement granted in paragraph 1 herein shall be perpetual, and shall be binding upon the Burdened Property and shall run with the land unless terminated by mutual agreement of Kemp and City or their successors or assigns. 7. Relocation The parties acknowledge that the Burdened Property is undeveloped and that, at such time as the Burdened Property is subdivided, the City may require relocation of the public facilities to be constructed within the Easement to a new location on the Burdened Property, depending upon the specific development plan proposed for the Burdened Property. Kemp and the City agree that the cost of any such relocation is the responsibility of the owner of the Burdened Property at the time of subdivision, but that the developer of the Burdened Property may agree to pay such costs as part of a development agreement entered into with the City at the time of subdivision. 8. Governing Law This agreement shall be governed by and interpreted under the laws of the State of Minnesota. In the event one party fails to perform as required by this Agreement, the non - defaulting party may pursue any remedy provided by law or in equity. The prevailing party in any litigation shall pay all attorney's fees and costs of litigation, including expert witness fees of the other party. If any part or term of this Agreement shall be found to be unenforceable, that shall not affect the enforceability of the remaining terms of the agreement. 9. Notices Any notices or other correspondence under the terms of this agreement shall be sent to the following addresses: Daniel H. and Carol M. Kemp 7489 65`" Street South Cottage Grove, MN 55106 The City of Cottage Grove 7516 80` Street South Cottage Grove, MN 55106 Attn: City Administrator In the event of a change of mailing address by either party, notice of such change of address shall be sent to the other party. 10. Complete Document, Amendment This document sets forth the entire agreement and understanding between the parties and there are no oral agreements, understandings or assumptions which have not been made part of this agreement. Any future changes or amendments to this agreement shall be in writing and signed by the respective parties before such changes or amendments will be enforceable. 11. Ownership Kemp does hereby warrant to the City that Kemp holds the Burdened Property by title in fee simple free and clear of any liens or encumbrances created, permitted or incurred by Kemp (including any mortgages) which are not subject and subordinate to this Agreement, and that Kemp has good and lawful authority to enter into and perform this Agreement. 12. Successors This Agreement is for the benefit of the City and shall be binding upon Kemp and Kemp's successors and/or assigns in ownership of the Burdened Property and all covenants, easements and agreements herein contained shall run with, and be appurtenant to, the land. 13. No Cancellation No breach of this Agreement will entitle any party hereto to cancel, rescind or otherwise terminate this Agreement. 14. Consideration U.S. Home will benefit directly and/or indirectly from the easement rights granted to the City herein. In consideration of Kemp's execution of this Agreement, and provided that the City approves and executes this Agreement, U.S. Home shall pay to Kemp, within thirty (30) days of the date hereof, Twenty -Three Thousand and 00 /100 Dollars ($23,000.00). THE CITY OF COTTAGE GROVE, a Minnesota municipal corporation 6 Its: Mayor Daniel H. Kemp Carol M. Kemp STATE OF MINNESOTA ) ss COUNTY OF ) By: Its: City Clerk U.S. HOME CORPORATION, a Delaware Corporation John J. Liberacki Its: Vice President M This instrument was acknowledged before me this day of 2004, by Daniel H. Kemp and Carol M. Kemp, husband and wife. Signature of Notary Public STATE OF MINNESOTA ) ) ss COUNTY OF This instrument was acknowledged before me this day of , 2004, by Sandra Shiely and Caron M. Stransky, the mayor and city clerk, respectively, of the City of Cottage Grove, a Minnesota municipal corporation, on behalf of the corporation. Signature of Notary Public STATE OF MINNESOTA ) ) ss COUNTY OF This instrument was acknowledged before me this day of , 2004, by John J. Liberacki, Vice President of U.S. Home Corporation, a Delaware corporation, on behalf of the corporation. Signature of Notary Public This Instrument was Drafted By: Brett A. Perry MESSERLI & KRAMER P.A. 1800 Fifth Street Towers 150 South Fifth Street Minneapolis, MN 55402 -4218 (612) 672 -3600 EXHIBIT A EASEMENT AREA LEGAL DESCRIPTION A 20.00 feet wide permanent drainage and utility easement and a 35.00 feet wide temporary construction easement over, under and across the following described tract of land: The Northwest Quarter of the Southeast Quarter of Section 5, Township 27, Range 21, Washington County Minnesota, EXCEPT the north 417.40 feet of the west 208.70 feet of said Northwest Quarter of the Southeast Quarter, and also EXCEPT Parcel 2 and Parcel 3, WASHINGTON COUNTY HIGHWAY RIGHT OF WAY PLAT NO. 136, according to the recorded plat thereof, Washington County, Minnesota. Said permanent drainage and utility easement being 20.00 feet to the right of the following described line and said temporary construction easement being 35.00 feet to the left of the following described line. Said line is described as follows: Commencing at the most southeasterly corner of Parcel 6, said WASHINGTON COUNTY RIGHT OF WAY PLAT NO. 136; thence South 89 degrees 57 minutes 44 seconds West, assumed bearing, along the south line of said Parcel 6 a distance of 52.53 feet to a point on a line which is 20.00 feet easterly of, measured at a right angle to and parallel with the easterly line of Parcel 7, said WASHINGTON COUNTY HIGHWAY RIGHT OF WAY PLAT NO. 136 and said point being the point of beginning of the line to be described; thence South 11 degrees 21 minutes 17 seconds West parallel with said easterly line of Parcel 7 a distance of 725.58 feet to the south line of said Northwest Quarter of the Northeast Quarter and said described line there terminating. The side lines of said easements are prolonged or shortened to terminate at the south line of said Parcel 6 and at the south line of said Northwest Quarter of the Southeast Quarter of Section 5. A -1 A permanent drainage and utility easement and a temporary construction easement over under and across the following described tract of land: That part of the Northwest Quarter of the Southeast Quarter of Section 5, Township 27, Range 21, Washington County, Minnesota, described as follows: Beginning at the southwest corner of Parcel 7, WASHINGTON COUNTY RIGHT OF WAY PLAT NO. 136, according to the recorded plat thereof, Washington County, Minnesota said corner being a point on the south line of said Northwest Quarter of the Southeast Quarter and said south line is assumed to have a bearing of North 89 degrees 56 minutes 13 seconds East; thence North 00 degrees 03 minutes 47 seconds West a distance of 5.00 feet thence North 89 degrees 56 minutes 13 seconds East a distance of 228.00 feet; thence North 11 degrees 21 minutes 17 seconds East a distance of 30.61 feet to a line which is 35.00 feet north of, measured at a right angle to and parallel with the south line of said Northwest Quarter of the Southeast Quarter; thence South 89 degrees 56 minutes 13 seconds West along said parallel line a distance of 557.54 to the west line of said Northwest Quarter of the Southeast Quarter; thence South 01 degree 04 minutes 19 seconds West along said west line 35.01 feet to the southwest corner of said Northwest Quarter of the Southeast Quarter; thence North 89 degrees 56 minutes 13 seconds East along the south line of said Northwest Quarter of the Southeast Quarter a distance of 324.18 to said point of beginning; Said temporary construction easement being over, under and across the north 10.00 feet of the above described tract of land, and said permanent drainage and utility easement being over, under and across that part of the above described tract of land lying south of said north 10.00 feet of the above described tract of land. A -1