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Home My WebLink About2013-01-02 PACKET 08.E.REQUEST OF CITY COUNCIL ACTION COUNCIL AGENDA MEETING ITEM # DATE 01/02/201 Community Development ORIGINATING DEPARTMENT Jenifer Levitt STAFF AUTHOR COUNCIL ACTION REQUEST Consider Donald and Bonnie Bialucha's request to amend city Resolution No. 2012 -048, a resolution approving the final plat for Pinecliff 5 Addition for purposes of deleting the requirement that their property be part of the Pinecliff Homeowners Association. STAFF RECOMMENDATION No action to amend Resolution No. 2012 -048. BUDGET IMPLICATION $ N/A $ N/A BUDGETED AMOUNT ACTUAL AMOUNT N/A FUNDING SOURCE ADVISORY COMMISSION ACTION DATE REVIEWED APPROVED DENIED ❑ PLANNING ❑ ❑ ❑ ❑ PUBLIC SAFETY ❑ ❑ ❑ ❑ PUBLIC WORKS ❑ ❑ ❑ ❑ PARKS AND RECREATION ❑ ❑ ❑ ❑ HUMAN SERVICES /RIGHTS ❑ ❑ ❑ ❑ ECONOMIC DEV. AUTHORITY ❑ ❑ ❑ ❑ ❑ ❑ ❑ SUPPORTING DOCUMENTS ® MEMO /LETTER: Memo from John McCool, Senior Planner dated 12/28/12 ❑ RESOLUTION: ❑ ORDINANCE: ❑ ENGINEERING RECOMMENDATION: ❑ LEGAL RECOMMENDATION: ® OTHER: Bialucha's Letter dated December 26, 2012 Lennar's Letter dated December 13, 2012 Agreement between U.S. Home Corporation and Bialucha dated June 7, 2012 Exhibit A — 2005 Preliminary Plat — Pinecliff Second Addition Exhibit B — 2005 Boundary Survey for Pinecliff Second Addition Pinecliff 5th Addition — May 16, 2012 Resolution No. 2012 -048 approving the final plat for Pinecliff 5th Addition Supplemental Declaration — Exhibit 2 ADMINISTRATOR'S COMMENTS City ministrator ate ***************** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** COUNCIL ACTION TAKEN: ❑ APPROVED ❑ DENIED ❑ OTHER CITY OF COTTAGE GROVE MINNESOTA TO: Mayor and Members of the City Council Ryan Schroeder, City Administrator FROM: John McCool, Senior Planner DATE: December 28, 2012 RE: Donald and Bonnie Bialucha's Request — Exclusion from Pinecliff Homeowners Association Introduction Donald and Bonnie Bialucha, 6120 Ideal Avenue South are requesting the City Council to amend Resolution No. 2012 -048, a city resolution approving the final plat for the Pinecliff 5th Addition. Their request is to delete condition No. 14 from Resolution No. 2012 -048 which reads as follows: 14. Ownership of the two existing residential parcels at 6120 and 6240 Ideal Avenue must be part of the Homeowner's Association for the entire Pinecliff neighborhood. A copy of Bialucha's request and a copy of Resolution No. 2012 -048 are attached. The Bialucha's have also submitted the following documents which are also enclosed: • A letter from Joe Jablonski, Development Area Manager for Lennar Corporation dated December 13, 2012. • Exhibit 2 from the Supplemental Declaration for the Pinecliff 5 Addition • A letter of agreement and its Schedule A between U.S. Home Corporation and the Bialucha dated June 7, 2012. Background In the year 2001, Don and Bonnie Bialucha owned a 20 acre parcel of land at 6120 Ideal Avenue and Tom and Cheri Shannon owned a 20 acre parcel of land at 6240 Ideal Avenue. At that time, both filed a simple lot division application with the City to subdivide each of their 20 acre parcels into a 2.5 acre and 17.5 acre parcels. Both retain ownership of their respective 2.5 acre parcel and sold their 17.5 acre parcel to U.S. Home Corporation for the future residential development now known as Pinecliff Addition. The Bialucha's and Shannon's existing dwellings and accessory structures exist on each of their respective 2.5 acre parcel. In the year 2005, U.S. Home Corporation filed a preliminary plat application to develop about 69 acres of land consisting of 118 single - family lots. This residential subdivision plat was initially named Pinecroft — Phase 11 but was later renamed to Pinecliff Second Addition. The Honorable Mayor, City Council, and Ryan Schroeder Don and Bonnie Bialucha's Resolution Amendment Request December 28, 2012 Page 2 of 3 Bialucha's and Shannon's properties were part of the preliminary plat application. Attached are Exhibit A and Exhibit B that were attached to the planning staff report for this preliminary plat application. The two existing dwellings for Bialuchas and Shannons are shown on both documents. Pinecliff Second addition was developed in 2005, Pinecliff Third addition in 2010 and Pinecliff Fourth Addition in 2011. The Bialucha's and Shannon's 2.5 acre parcels were platted as exception parcels in each of these phases. In 2012, the Bialuchas and Shannons were part of the Pinecliff Fifth Addition plat. Each of their 2.5 acre parcels were subdivided and incorporated into the plat. Both landowners signed the final plat application and both signed the final plat in order for it to be recorded at the Washington County Recorder's office. The Shannons signed the final plat application on April 20, 2012 and the Bialuchas signed on May 2, 2012. The City Council approved the Pinecliff 5th Addition final plat at their meeting on May 16, 2012. The City Council unanimously approved the resolution approving the Pinecliff 5 Addition final plat. This resolution was assigned No. 2012 -048 and contained 76 conditions. A copy of Resolution No. 2012 -048 is attached. On June 7, 2012, U.S. Home Corporation entered into an agreement with Bialuchas and Shannons that effectively indemnified and reimbursed both parties with respect to any liabilities and costs asserted against or incurred from U.S. Homes' work developing the site. Effectively, the Bialuchas and Shannons were not responsible to pay any of the public improvements that benefited each of their lots. In addition, U.S. Home agreed that each of their homesteads and the two vacant lots each landowner will own would not be part of the Pinecliff Homeowners Association. This action by U.S. Home is inconsistent with condition No. 14 stipulated in the city Resolution No. 2012 -048 that was approved by the City Council on May 16, 2012. Discussion As early as 2001, the Bialucha's were familiar with the Pinecliff residential development. With the development of this project's final phase, the Bialuchas were part of the platting process. City staff was unaware that certain platted parcels would excluded from having to abide by the declarations of covenants for this neighborhood. The declarations of covenants for the Pinecliff neighborhoods are created to generally benefit the residents within the neighborhood to ensure proper use and appropriate development and improvements for each lot. The private covenants address matters of assessments levied by the Homeowners Association for expenditures made or liabilities incurred by or on behalf of the Association, the membership and voting rights, architectural control prior to construction, landscaping, nuisances, outdoor storage, fences, exterior lighting, gardens, antennas, and other provisions intended to maintain certain standards within the neighborhood. The Bialuchas are in the process of selling their two vacant parcels to a builder. The builder is not Lennar Homes. The builder agrees that the eventual owners of these two lots will be part of the Homeowners Association as long as neither owner has to pay any Association fee. Lennar agreed to this condition. Honorable Mayor, City Council, and Ryan Schroeder Don and Bonnie Bialucha's Resolution Amendment Request December 28, 2012 Page 3 of 3 Lennar supports Bialucha's request that condition No. 14 in Resolution No. 2012 -048 be modified so that the parcel where Bialucha's existing dwelling is located upon does not have to be part of the Pinecliff Homeowner's Association. Recommendation City staff recommends that city Resolution No. 2012 -048 not be amended based on the idea that all the platted parcels within the Pinecliff 5 Addition should abide by the same standards. The requirement that the existing properties at 6120 and 6240 Ideal Avenue should be included in the Pinecliff Homeowners Association was stipulated in Resolution No. 2012 -048 on May 16, 2012. The Bialuchas co- signed the final plat application on May 2, 2012 and signed the final plat. Their property was integral to the subdivision platting process and Lennar's agreement with Bialuchas dated June 7, 2012 was after the City adopted Resolution No. 2012 -048. December 26, 2012 City of Cottage Grove 12800 Ravine Parkway South Cottage Grove, MN 55016 RE: Pinecliff 5th Addition Dear Mayor Bailey and City Council Members: We are requesting the requirement that Lot 4, Block 3, Pinecliff 5th Addition (6120 Ideal Avenue) be included in the Pinecliff Homeowners Association (HOA), be amended or deleted to exclude this property from the HOA. We request that this request be placed on the City Council agenda for January 2, 2013. Condition number 14 of City Resolution No. 2012 -048, approving the final plat of Pinecliff 5th Addition, (approved on May 16, 2012) states the following: 14. Ownership of the two existing residential parcels at 6120 and 6240 Ideal Avenue must be part of the Homeowner's Association for the entire Pinecliff neighborhood. Lennar has also drafted a letter dated December 13, 2012, stating that they support the request to exclude our homesite from the HOA. This letter was previously sent to John McCool and has been attached to the this letter. Once again we are requesting that condition number 14 is amended or deleted so that our existing residence is excluded from the Pinecliff HOA. Thank you for your time. Sincerely, DEC 2 7 2012 Donald and Bonnie Bialucha LE N NAR December 13, 2012 City of Cottage Grove 12800 Ravine Parkway South, Cottage Grove, MN 55016 Dear Honorable Mayor and members of the Council; The purpose of this letter is to request your consideration to modify condition #14 of the approval resolution (No. 2012 -048) relating to Pinecliff 5th Addition. The condition obligates all of the hornesites within the 5 addition to be included in the Pineeliff Homeowners Association. There are two existing homes, currently owned by the Bialucha's and Shannon's that have requested exclusion from the HOA. Even though each of the homes are located within the physical boundary of the Pinecliff neighborhood, both were constricted in the 1980's and have unique circumstances that warrants careful thought for this request. Lennar supports this request and would like the City to approve the same. I appreciate your consideration and look foreword to your support. If you have questions or concerns feel free to contact me at (952) 249 -3000. Sin ere , '6e lonski Development Area Manager Lennar Corporation CC: Donald and Bonnie Bialucha Tom and Cheri Shannon John Anderson Jon Aune DEC 2 7 2012 16305 36th Ave N . Suite 600 • Plyi i of i is i, IUIN 55446 -4270 LENNAR.COM June 7, 2012 Re: Letter Agreement between U.S. Home Corporation and Donald Bialucha and Bonnie Bialucha regarding Pinecliff 5th Addition property in Washington County, Minnesota (the "Development ") Dear Don and Bonnie: We appreciate your cooperation in the process we have been going through to obtain municipal approvals for our proposed Development. In consideration for your signatures needed on various applications and agreements with the City and for your continued cooperation with all such items, we agree to indemnify and reimburse you with respect to any liabilities and costs asserted against or incurred by you by reason of or arising out of our work on the Development. This includes all assessments and costs relating to the "Public Improvements" and "On -Site Improvements" required to be completed by the "Developer" under the terms of the Development Agreement ( Pinecliff 5th Addition) entered into with the City of Cottage Grove on or about the date of this letter. In addition, we agree to complete the Developer Items identified on the attached Schedule A at no cost to you. U.S. Home Corporation, a Delaware corporation By: Name: J e Its: V' sident, MN Land Division Consent and Acknowledgement Bonnie Bialucha "-ale/ A A-_7 Donald Bialucha DEC 2 7 2012 8945401v1 SCHEDULE A U.S. Home Corporation agrees to complete the following items: We will move the shed to a new location on the retained prop construction of a new concrete slab to place the structure on. P P ny; p rovided you are respon sibl e for • Cap existing well. • Remove and haul away existing drain field and tanks; either sod or seed. restore yard where items are removed with • Replace driveway. • Hook up electrical as • , gas, phone, cable once new services are installed Run a sewer and a water service to within 5 feet of the current foundation of the existing home. We Will solicit information from our contractors that you can use to hire for the in ternal hook up water and sewer service. We will also investigate the most efficient way to hook up the services However, you will be responsible for the actual cost and completion of the h • Move and replant up to three existing trees on the retained property) trees are not warranted. • You will not be responsible for any closing costs associated with P P trans action, ups. deed costs, saction, including recording • Exterior improvements on your retained ro e of Pinecliff. P p rty will be grand- fathered in as approved to the HOA • responsible for the a Y You will not be res P n f l 5th. y Payment of assessments for what we will be constructing in • Your homestead and 2 retained lots will not be in the Pinecliff HOA, will n rules and regulations and will not be required to pay HOA dues. P is sold they will not be a of have to abide to the Part of the HOA for the new owners W hen the lots or homestead 0E�2012 8945401vi Exhibit 2 Proposed Classifications and Dispositions of Lots and Outlots The following classifications and dispositions of Lots and Outlots in the plats in which the Annexed Property and nearby Community areas are located are based on information as of the recordation of this Supplemental Declaration. Classifications and dispositions of lots and outlots are subject to change. This Supplemental Declaration does not encumber or affect title to, or annex into the land subject to the Declaration, any real property other than the Lots in the Annexed Property described in Exhibit 1 attached hereto. PLAT. OF PINECLIFF 5 TH ADDITION Lots 1 -5, Block 1 Lots 1 -4, Block 2 Lots 1 and 2, Block 3 These are Lots in the Community that are being developed with Lot 1, Block 4 detached single family residences and related residential amenities Lots 1, 2, 3 and 7 through 10, Block 5 Lots 1 and 2, Block 6 These six Lots are not part of the Community; are owned by private individuals; and contain pre- existing dwellings and related Lots 3 -5, Block 3 improvements. For a limited period of time and with Declarant's Lots 4 -6, Block 5 consent, the owners of these Lots may annex them into the Community. It is unknown if this will ever occur. Not part of the Community and planned to be deeded to the City of Outlots A, B & C Cottage Grove for public parks and trails, although the City of Cottage Grove, at its discretion, may use these Outlots for any purpose. PLAT OF PINECLIFF 4 TH ADDITION Lots 1 -9, Block 1 These are Lots in the Community that are being developed with Lots 1 -5, Block 2 detached single family residences and related residential amenities Outlot A Replatted as part of Pinecliff 5`' Addition (see above). PLAT OF PINECLIFF 3 RD ADDITION Lots 1 -5, Block 1 These are Lots in the Community that are being developed with Lots 1- 6, Block 2 detached single family residences and related residential amenities. 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'p�•� '•= ��,- ,gor -1 - 1 ., •t:m• y 1 � ` g ( - : { _` =�na• _ ev 1 (4 1 1�6 °I ill � _/° _ I 14 A i � I li N - • t ao -/ `i_ xr -�- 'Uw / • I_ e, N I 114 If i 11 187.94 N88 1 '-- - - - - -� L_� � =l" °:a `� ?io r • „� Z s� OUTLOT A Np °I� N W , 7a r.i 191.36 S89 °4011 "E 154 40 \ 9�9�\ N78 39'51'8, -' 5 \94L 00 °\l �gS I It 6L\ 1 � N BZ - 3oZ5�ZL �W 1+1 r o • o�oFe� �a m °-o� _ mg -� -- a o� ism -p _ . _° m m m zN F r c ^ Z \/ RESOLUTION NO. 2012-048 RESOLUTION APPROVING THE FINAL PLAT NAMED PINECLIFF 5TH ADDITION WHEREAS, U.S. Home Corporation has applied for final plat approval of a residential subdivision named "Pinecliff 5th Addition." This plat consists of 27 lots for detached single- family homes and three outlots, all of which are located on property legally described as: Outlot D, PINECLIFF 2ND ADDITION, according to the recorded plat thereof, Washington County, Minnesota A .I Outlot A, PINECLIFF 4TH ADDITION, according to the recorded plat thereof, Washington County, Minnesota And The East 507.30 feet of the North 214.64 feet of the South 1,976.36 feet of the East Half of the Northeast Quarter of Section 5, Township 27, Range 2, Washington County, Minnesota A The East 494.94 feet of the South 220.00 feet of the North 660.51 feet of the South 1,761.72 feet of the East half of the Northeast Quarter of Section 5, Township 27, Range 21, Washington County, Minnesota A�• That part of the west half of vacated Ideal Avenue lying southerly of the easterly extension of the northerly line of Outlot A, PINECLIFF 4TH ADDITION, according to the recorded plat thereof, Washington County, Minnesota and lying northerly of the easterly extension of the northerly line of Outlot D, PINECLIFF 2ND ADDITION, according to the recorded plat thereof, Washington County, Minnesota. WHEREAS, the Planning Commission held a public hearing on March 28, 2005, to re- view the preliminary plat application filed by U.S. Home Corporation. The Planning Commission unanimously recommended approval of this application, subject to certain conditions; and WHEREAS, the City Council subsequently accepted the Planning Commission's recom- mendation and approved the preliminary plat (Res. No. 05 -065) on April 20, 2005; and WHEREAS, City staff found the final plat substantially consistent with the approved prelimi- nary plat. Page 2 NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Cottage Grove, Washington County, Minnesota, hereby approves the final plat application filed by U.S. Home Corporation for development of a residential subdivision named Pinecliff 6th Addition consisting of 27 lots for detached single - family homes and three outlots, subject to the following conditions: 1. The developer must abide by the 16 conditions stipulated in Resolution No. 05 -065, approving the preliminary plat. 2. The developer must enter into a development agreement with the City of Cottage Grove, pursuant to Title 10 -3 -3 of the City's Subdivision Ordinance. 3. All utility, drainage, and development plans with specifications must conform to the plans that are approved by the City Engineer. The developer may start rough grading of the lots before the plat is filed, if a MPCA Construction Storm Water Permit has been issued and the City has been furnished with a $30,000 cash escrow or Letter of Credit. 4. The development of this project must comply with the grading and erosion control plans as approved by the City Engineer. 5. All emergency overflow swales must be identified on the Grading and Erosion Control Plan. 6. Erosion control must be performed in accordance with the recommended prac- tices of the "Minnesota Construction Site Erosion and Sediment Control Planning Handbook" and the conditions stipulated in Title 10 -6 -8, Erosion Control During Construction, of the City's Subdivision Ordinance. 7. Upon completing site grading, four copies and one pdf format of the "As- Built" survey for the site grade elevations must be submitted to the City. 8. It is the developer's responsibility to keep active and up to date the developer's con- tract and financial surety (e.g. Letter of Credit, etc.). These documents must remain active until the developer has been released from any further obligation by City Council motion received in writing from the City Engineer. 9. The developer must furnish an irrevocable letter of credit for the on -site improvements to ensure that the developer will construct or install and pay for the following: a. Pave streets b. Concrete curb and gutter c. Hard surface driveways d. Street lights e. Mailboxes f. Water system (trunk and lateral) and water house service stubs Page 3 g. Sanitary sewer system (trunk and lateral) and sanitary house service stubs h. Storm sewer system i. Street and traffic control signs /signals j. Shaping and sodding drainage ways and berms in accordance with the drainage development plan approved by the City Engineer k. Adjust and repair new and existing utilities 1. Sidewalks and trails m. Erosion control, site grading and ponding n. Surveying and staking o. Park and storm water basin boundary markers These Improvements must be in conformance with City approved plans and specifi- cations and will be installed at the sole expense of the developer in conformance with Title 10, Chapter 5 of the City Code; or if in lieu of the developer making said improvements, the City proceeds to install any or all of said improvements, under the provisions of Chapter 429 of the Minnesota Statutes, the City Council may re- duce said Letter of Credit by the amounts provided, upon the ordering, for those public improvements so undertaken. The Letter of Credit must have the same expi- ration date as the developer's contract. The bank and form of the security is subject to the reasonable approval of the City. The security shall be automatically renewing. The term of the security may be ex- tended from time to time if the extension is furnished to the City at least forty -five (45) days prior to the stated expiration date of the security. If the required public im- provements are not completed, or terms of the Development Agreement are not satisfied, at least thirty (30) days prior to the expiration of a letter of credit, the city may draw down the letter of credit. The City may draw down the security without prior notice for any default of the Development Agreement. 10. The developer must deposit a cash escrow with the City that will be specified in the development agreement. This escrow must be posted with the City's Finance Director in a non - interest bearing account to cover engineering, legal and administrative costs incurred by the City. If this account becomes deficient it shall be the developer's responsibility to deposit additional funds. This must be done before final bonding obligations are complete. 11. An engineering cash escrow that will be specified in the development agreement must be posted with the City's Finance Director in a non - interest bearing account to cover costs of City services, expenses, and materials provided in reviewing and processing of the final plat, including but not limited to staff time, legal expenses, office and field inspections, general inspections, and all other city staff services performed. 12. Payment of park dedication fees in the amount of $41,990.40 is based on 27 lots and 48.6 percent of the $3,200 per lot park fee because park land dedication was only partially satisfied. The park fee is due and payable at the time of executing the development agreement. Page 4 13. The Homeowner's Association for this phase of development must be part of the Homeowner's Association for the entire Pinecliff neighborhood. The Homeowner's Association is responsible for the maintenance of all vegetation and landscaping lying within the stormwater basins within the Pinecliff neighborhood. The City will rough cut the vegetation within the stormwater basins twice per year if the Home- owner's Association does not maintain these areas. 14. Ownership of the two existing residential parcels at 6120 and 6240 Ideal Avenue must be part of the Homeowner's Association for the entire Pinecliff neighborhood. 15. The Developer pays a storm water area charge. This fee is due and payable at the time of executing the development agreement. 16. The Developer pays a waterworks area charge. This fee is due and payable at the time of executing the development agreement. 17. The Developer pays a sanitary sewer area charge. This fee is due and payable at the time of executing the development agreement. 18. The City will supply the street light poles and luminaries. The Developer will pay the City for street light poles and street light luminaries. This fee is due and payable at the time of executing the development agreement. 19. The developer shall pay the City $2,138.40 for street light utility and surcharge fee, This fee is due and payable at the time of executing the development agreement. 20, The developer agrees to pay a fee for initial sealcoating of streets in the subdivision. This fee shall be deposited in the City's street sealcoating fund upon execution of the development agreement. The City agrees to sealcoat the streets in the subdivision no later than two years after 24 houses within the subdivision have been constructed. 21. The Developer is responsible for establishing the final grades, topsoil, and seed- ing of all the residential lots within Pinecliff 5th Addition. The City is responsible for planting 35 deciduous trees within the Pinecliff 5th Addition. The City will plant these trees as a yard tree shown in Exhibit "A" of the July 2, 2008 Settlement Agreement between the City and U.S. Home Corporation. The developer is re- sponsible for site restoration and seeding after the City completes the landscaping within 4utlots A and B. 22. After the site is rough graded, but before any utility construction commences or building permits are issued, the erosion control plan shall be implemented by the Developer and inspected and approved by the City. The City may impose additional erosion control requirements if it is determined that the methods implemented are insufficient to properly control erosion. Page 5 23. All areas disturbed by the excavation and back - filling operations shall be fertilized, mulched and disc anchored as necessary for seed retention. Time is of the essence in controlling erosion. If the Developer does not comply with the erosion control plan and schedule, or supplementary instructions received from the City, or in an emer- gency determined at the sole discretion of the City, the City may take such action as it deems appropriate to control erosion immediately. The City will notify the Devel- oper in advance of any proposed action, but failure of the City to do so will not affect the Developer's and the City's rights or obligations. If the Developer does not reim- burse the City for any costs of the City incurred for such work within thirty (30) days, the City may draw down the letter of credit to pay such costs. 24. The Developer is responsible for Erosion Control inspection fees at the current rates. If the Developer does not reimburse the City for the costs the City incurred for such work within thirty (30) days, the City may draw down the letter of credit to pay such costs. 25. Burying construction debris, trees, shrubs, and other vegetation is prohibited on the site. 26. Dust control measures must be in place to prevent dust and erosion, including, but not limited to daily watering, silt fences, and seeding. The City Engineer may impose reasonable measures to reduce dust at the site. 27. During construction, streets must be passable at all times, free of debris, materials, soils, snow, and other obstructions. 28. The Developer shall comply with the 1991 Wetlands Conservation Act, as amended. 29. Approval of Title by the City Attorney. 30. No building permit will be issued until such time as adequate public utilities, in- cluding street lights, and streets have been installed and determined to be available to use. Also, the City must have all the necessary right -of -way and /or easements needed for the property to be serviced. A building permit may be issued for Lots 1 and 2, Block 5 and Lots 1 and 2, Block 3 if that portion of temporary roadway and utilities are available to the frontage of these parcels. 31. A final plat showing the correct square footage for each lot area must be submitted prior to recording the final plat with the Washington County Recorder's office. 32. All drainage and utility easements as recommended by the City Engineer must be shown on the final plat and dedicated to the City for public purposes. 33. The final plat and declaration of private covenants must be recorded with the Washington County Recorder's Office before any building permit can be issued. Page 6 34. Before final financial guarantees are released, a certificate signed by a registered engineer must be provided. This certificate will state that all final lot and building grades are in conformance to drainage development plan(s) approved by the City Engineer. 35. Adequate dumpsters must be on site during construction of streets, utilities, and houses. When the dumpsters are full, they must be emptied immediately or re- placed with an empty dumpster. The developer is responsible to require each builder to provide an on -site dumpster to contain all construction debris, thereby preventing it from being blown off -site. 36. Adequate portable toilets must be on -site at all times during construction of utilities, roadways, and houses. At no time shall any house under construction be more than 250 feet away from any portable toilet. Toilets must be regularly emptied. 37. The Developer is responsible for completing the final grade on all lots and ensuring all boulevards and yards have a minimum of four inches of organic topsoil or black dirt on them. Placement of organic topsoil or black dirt, sod, and shrubs must not be transferred to homeowners. 38. irrigation systems installed within City right of way are solely the developers, home- owners association or individual homeowner's responsibility and risk. The City is not responsible or liable for any damage or relocation as a result of City use of or future changes in the right of way. 39. Retaining walls with 1) a height that exceeds four feet or 2) a combination of tiers that exceed four feet or 3) a three -foot wall with a back slope greater than four -to- one shall be constructed in accordance with plans and specifications prepared by a structural or geotechnical engineer licensed by the State of Minnesota. Following construction, a certification signed by the design engineer shall be filed with the City Engineer as evidence that the retaining wall was constructed in accordance with the approved plans and specifications. 40. Upon completion of the work, the Developer shall provide the City with a full set of as -built plans for City records and transmitted to the City in a DWG Autocad format and pdf format. Developer must also furnish the City with a pdf format of the final plat and four prints of the recorded plat. If the Developer does not provide as- builts, the City will produce them at the Developer's expense. 41. The City will not have any responsibility with respect to any street or other public im- provement unless the street or other public improvement has been formally ac- cepted by the City. Upon completion of the improvements, the developer may request, in writing, their acceptance by the City. This request must be accompanied by proof that there are no outstanding judgments or liens against the land upon which the public improvements are located. Upon the City's receipt of a written re- quest for acceptance from the developer, the City Engineer will conduct a final in- Page 7 spection of the public improvements and will furnish a written list of any deficiencies noted. The City Engineer will base - the inspection on compliance with the approved construction plans, profiles and specifications, as required by the city ordinance. Upon satisfactory completion of all construction in accordance with the approved plans, profiles, and specifications, as certified by a registered engineer in the State of Minnesota, and receipt of reproducible record drawings and satisfactory test re- sults, the City Engineer will notify the developer in writing of the City's approval of the public improvements and schedule the request for acceptance for review by the City Council. 42. Upon acceptance by the City Council, all responsibility for the improvements must be assumed by the City, except that the developer is subject to a one year warranty on the construction of the improvements from the time of acceptance by the City of all public improvements. 43. The plat shall be developed in one phase. 44. All sidewalks to be constructed as part of the development must be completed be- fore building permits will be issued. If a sidewalk exists on or next to a parcel that is to be built upon and if any part of that sidewalk is damaged; the builder must repair the damaged walkway before a Certificate of Occupancy is issued for that particular parcel. 45. The Developer grants the City, its agents, employees, officers, and contractors permission to enter the site to perform all necessary work and/or inspections during the installation of public improvements by the City. 46. The Developer shall weekly, or more often if required by the City Engineer, clear from the public streets and property any soil, earth or debris resulting from con- struction work by the Developer. or its agents or assigns. All debris, including brush, vegetation, trees and demolition materials shall be properly disposed of off - site. Burning of trees and structures is prohibited, except for fire training only. 47. The Developer will be required to conduct all major activities to construct the public improvements during the following hours of operation: Monday through Friday Saturday Sunday 7:00 A.M. to 7:00 P.M. 8:00 A.M. to 5:00 P.M. Not Allowed This does not apply to activities that are required on a 24 -hour basis such as dewatering, etc. Any deviations from the above hours are subject to approval of the City Engineer. Violations of the working hours will result in a $500 fine per occurrence. 48. The Developer is responsible to require each builder within the development to provide a Class 5 aggregate entrance for every house that is to be constructed in = the development. This entrance is required to be installed upon initial construction of the home, but a paved driveway must be completed before the City will issue a certificate of occupancy for that property, See City Standard Plate ERO -7 for con- struction requirements. The water service line and shut -off valve shall not be located in the driveway. 49. The Developer is responsible for the control of grass and weeds in excess of eight inches on vacant lots or boulevards within their development. Failure to control grass and weeds will be considered a Developer's default and the City may, at its option, perform the work and the Developer shall promptly reimburse the City for any expense incurred by the City. 50. The Developer agrees to furnish to the City a list of contractors being considered for retention by the Developer for the performance of the work by this Develop- ment Agreement. 51. Developer will provide to the City copies of bids, change orders, suppliers, subcontractors, etc., relating to the work to be performed by the Developer. 52. Developer is responsible for all street maintenance, upkeep and repair of curbs, boulevards, sod, and street sweeping until the project is complete. All streets must be maintained free of debris and soil until the subdivision is completed. Warning signs shall be placed when hazards develop in streets to prevent the public from traveling on said street(s) and directing them to detour routes. If and when the street becomes impassible, such streets shall be barricaded and closed. In the event residences are occupied prior to completing streets, the Developer must maintain a smooth driving surface and adequate drainage on all streets until they are completed and accepted by the City. Developer hereby agrees to indemnify and hold the City harmless from any and all claims for damages of any nature whatsoever arising out of Developer's acts or omissions in performing the obliga- tions imposed upon Developer by this paragraph. 53. The Developer shall contact the electric, telephone, gas and cable companies that are authorized to provide service to the property for the purpose of ascertaining whether any of those utility providers intend to install underground lines within the development. The Developer agrees to comply with applicable requirements of franchise ordinances in effect in the City, copies of which are available from the city administrator. 54. The Developer must place iron monuments at all lot and block corners and at all other angle points on property lines. Iron monuments must be placed after all site and right -of -way grading has been completed in order to preserve the lot markers for future property owners. 55. The Developer must make all necessary adjustments to the curb stops, gaffe valves, and metal castings to bring them flush with the topsoil (after grading). • = • • 56. The Homeowner's Association(s) or the homeowner that has a sidewalk on their property is responsible for maintaining the sidewalks. Such maintenance includes, but is not limited to, sweeping and promptly removing ice and snow or other obstruction to ensure the safe passage of pedestrians. 57. The Developer must remove all dead and diseased trees, all other debris, and fencing materials that serve no practical use. This work must be completed prior to the issuance of a building permit. 58. The City will provide to the Developer the street name plates and poles. The De- veloper must pay the City for the costs of labor and materials for these street name signs before any building permit is issued. 59. The City's curb replacement policy must be complied with. 60. The Special Provisions — Divisions 1, 2, and 16 of Pinecliff 2nd Addition will have precedence when specifying applicable products or materials for the Pinecliff 4th project to ensure that the Approved Plans meet City expectations when conflicts exist with the CEAM specifications, plan sheets, etc. 61. The developer must deed to the City Outlots A, B and C. The City will accept ownership of these outlots once all the improvements are installed, silt fence barriers are removed and ground vegetation exists on these parcels. 62. The developer must install 17 park and open space boundary markers as shown in Exhibit C. The Developer must pay the City $1,955.00 for the park and open space boundary markers and install these markers before the City will issue a building permit for a house within the Pinecliff 5th Addition. 63. The City must complete the landscaping within the Pinecliff 5th Addition as stipulated in the Settlement Agreement dated July 2, 2008. A copy of the landscaping improvements required to be installed by the City is shown in Exhibit "C" of the Development Agreement for Pinecliff 5th Addition. The City shall complete the landscaping improvements within Outlots A and B before November 1, 2013. 64. The developer is responsible for the costs and removal of the roadway materials, sub -base materials, relocate all existing utilities and grading the former public roadway and placing a minimum of six inches of topsoil within that segment of Ideal Avenue between 60 Street and 63 Street. The City agrees to vacate and discontinue the public use of this segment of Ideal Avenue once the new Ideal Avenue roadway is constructed. The City agrees to contribute $112,101.00 toward the costs associated with the reconstruction of Ideal Avenue for the west one -half of the roadway between 60 Street and 63� Street as stipulated in the Settlement Agreement dated July 2, 2008. Resolution Flo. 2012 -048 Page 10 65. The developer agrees to remove all existing septic and drainfield systems and private wells in accordance with applicable County and State laws. A copy of the documents certifying that the private wells and septic / drainfield systems have been removed must be filed with the City before any building permit is issued on Lots 3, 4 and 5, Block 3 and Lots 3, 4 and 5, Block 5. 66. The accessory structure at 6120 Ideal Avenue must be removed from its current location. It may be relocated to Lot 4, Block 3 of Pinecliff 5th Addition, but a building permit application must be filed with the Cottage Grove Building Inspections Division and a building permit issued by the City. The minimum setback requirements for accessory structures must be met. 67. The accessory structure at 6240 Ideal Avenue is permitted to remain on Lot 4, Block 5 of Pinecliff 5 Addition as along as the land ownership for Lots 4 and 5, Block 5 is the same. Once a new home is proposed to be constructed on Lot 4, Block 5 or if the current land owners Thomas V. and Sharon L. Shannon sell Lot 4, Block 5, then the existing accessory structure on Lot 4, Block 5 must be removed from the property. Replacement of the existing accessory structure must comply with the City ordinance regulations. A demolition permit application must be filed with the Cottage Grove Building Inspection Division. 68. Developer responsible for the replacement of the private access drives for the two existing residential properties. The developer is responsible for paving all residential driveways within Pinecliff 5 th Addition. The developer must also provide reasonable vehicular access to the homeowners at 6120 and 6240 Ideal Avenue and for public safety emergency vehicles and equipment during site grading and construction process. 69. The temporary bituminous trail segments located between Lots 1 and 2, Block 3 and along the west side of Lot 1, Block 4 shall be removed by the developer. 70. The proposed city sanitary sewer service to Lot 5, Block 5 must be provided to Ideal Avenue and the existing temporary sanitary sewer line extending from Lot 5, Block 5 to the northwest and between Lots 1 and 2, Block 5 must be removed by the developer. 71. The developer must comply with all the recommendations provided in Stantec's letter to the City Engineer dated May 10, 2012. 72. The City Engineer must approve the developer's grading and construction plans before site grading for the Pinecliff 5 th Addition can begin. 73. The existing gravel private driveway located on Lot 4, Block 5 can remain on the Page 11 Block 5 of Pinecliff 5th Addition. The developer must stake the location of the future private driveway for Lot 4, Block 5 of Pinecliff 5th Addition so that a driveway apron can be constructed. 74. City approval of the Pinecliff 5 th Addition final plat is contingent to City conducting a public hearing for the vacation and discontinuance of that part of existing Ideal Avenue South lying between 60 Street and 63 Street. The City will not release the final plat mylars until the vacation and discontinuance of this section of right- of-way is completed. 75. City approval of the Pinecliff 5 th Addition final plat is subject to the relocation and/or removal of private utilities within that segment of existing Ideal Avenue lying between 60 Street and 63 Street and executing certain agreements with abutting property owners and utility companies. 76. City approval of the Pinecliff 5 th Addition final plat is subject to the dedication of certain temporary and permanent easements dedicated for public purposes from landownership east of existing Ideal Avenue. Passed this 16th day of May, 2012. Attest: Myr Bailey, M or L aic-, A - , Caron M. Stransky, City Clerk THIS INSTRUMENT WAS DRAFTED BY AND WHEN RECORDED MAIL TO: U.S. Home Corporation Minnesota Land Division 16305 36th Ave. N., Suite 600 Plymouth, MN 55446 - 4270 (Space Above For Recorder/Registrar Use) SUPPLEMENTAL DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR PINECLIFF [Annexing Blocks 1 & 2, Pinecliff 0 Addition] THIS SUPPLEMENTAL DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR PINECLIFF ( "Supplemental Declaration ") is made as of November 3, 2011, by U.S. HOME CORPORATION, a Delaware corporation ("Declarant "). PREAMBLE A. Declarant has executed that certain Declaration of Covenants, Conditions and Restrictions recorded December 6, 2005, as Document No. 3556269, as amended by that certain First Amendment to Declaration of Covenants, Conditions and Restrictions recorded December 28, 2005, as Document No. 3561117, in the office of the County Recorder for Washington County, Minnesota (collectively, the "Declaration "). B. The Declaration encumbers real property in Washington County, Minnesota, comprising the Pinecliff community (the "Community ") as described in the Declaration. C. Section 2.1 of the Declaration provides, in part, that Declarant reserves the right to unilaterally add to the Community some or all of the property described on Exhibit B of the Declaration ( "Future Development Area "), subject to certain conditions specified in the Declaration, all of which have been satisfied. D. Declarant owns and wishes to annex into the Community certain land as set forth below. NOW, THEREFORE, Declarant hereby declares as follows: SUPPLEMENTAL DECLARATION 1. Definitions. Except as otherwise expressly defined herein, words and phrases in this Supplemental Declaration have the same meanings as defined in the Declaration. 2. Annexed Property; Land Classification. Pursuant to Section 2.1 of the Declaration, the Future Development Area described in Exhibit 1 attached hereto ("Annexed Property ") is 8277487v2 NORTH AMERICAN TITLR COMPANY SOUTHGA►TE OFFICra PLAZA 6001 AMERICAN BLVD, W., STE. 255 BLOOMINGTON, MN 55437 LID 0 7 -v 0391 3863334 Receipt#: 176291 DCR $46,00 Certified Filed and /or recorded on: 11/22/2011 9:51 AM 3863334 Office of the County Recorder Retum to: Property Records & Taxpayer Services NORTH AMERICAN TITLE CO Washington County, MN 5001 AMERICAN BLVD W SUITE 255 KeWnJCorbid, CountyReeorder BLOOMINGTON MN 55437 THIS INSTRUMENT WAS DRAFTED BY AND WHEN RECORDED MAIL TO: U.S. Home Corporation Minnesota Land Division 16305 36th Ave. N., Suite 600 Plymouth, MN 55446 - 4270 (Space Above For Recorder/Registrar Use) SUPPLEMENTAL DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR PINECLIFF [Annexing Blocks 1 & 2, Pinecliff 0 Addition] THIS SUPPLEMENTAL DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR PINECLIFF ( "Supplemental Declaration ") is made as of November 3, 2011, by U.S. HOME CORPORATION, a Delaware corporation ("Declarant "). PREAMBLE A. Declarant has executed that certain Declaration of Covenants, Conditions and Restrictions recorded December 6, 2005, as Document No. 3556269, as amended by that certain First Amendment to Declaration of Covenants, Conditions and Restrictions recorded December 28, 2005, as Document No. 3561117, in the office of the County Recorder for Washington County, Minnesota (collectively, the "Declaration "). B. The Declaration encumbers real property in Washington County, Minnesota, comprising the Pinecliff community (the "Community ") as described in the Declaration. C. Section 2.1 of the Declaration provides, in part, that Declarant reserves the right to unilaterally add to the Community some or all of the property described on Exhibit B of the Declaration ( "Future Development Area "), subject to certain conditions specified in the Declaration, all of which have been satisfied. D. Declarant owns and wishes to annex into the Community certain land as set forth below. NOW, THEREFORE, Declarant hereby declares as follows: SUPPLEMENTAL DECLARATION 1. Definitions. Except as otherwise expressly defined herein, words and phrases in this Supplemental Declaration have the same meanings as defined in the Declaration. 2. Annexed Property; Land Classification. Pursuant to Section 2.1 of the Declaration, the Future Development Area described in Exhibit 1 attached hereto ("Annexed Property ") is 8277487v2 NORTH AMERICAN TITLR COMPANY SOUTHGA►TE OFFICra PLAZA 6001 AMERICAN BLVD, W., STE. 255 BLOOMINGTON, MN 55437 LID 0 7 -v 0391 hereby annexed into the Community and made subject to the Declaration. The Lots and the Common Elements, if any, in the Annexed Property are identified on Exhibit 1 hereto. . 3. Covenants Binding. The Annexed Property is hereby subject to the Declaration and is part of the Community. 3.1. The Annexed Property shall be transferred, held, sold, conveyed and developed always subject to all of the easements, covenants, restrictions, conditions and other terms and provisions of the Declaration, to the same extent as though the Annexed Property had been designated as part of the Community in the Declaration as originally executed, but subject to the provisions of this Supplemental Declaration to the extent not inconsistent with the general plan and scheme of the Declaration. 3.2. This Supplemental Declaration does not revoke or modify the covenants, conditions, restrictions, reservation of easements, or equitable servitudes established by the Declaration and other Supplemental Declarations with respect to the remainder of the Community which is not a part of the Annexed Property described in this Supplemental Declaration. 4. Voting and Assessment Allocation. The allocation to each Lot in the Annexed Property of Association voting rights, expenses and assessments is determined pursuant to Sections 3.1, 3.2 and 4.6 of the Declaration. 5. Lot and Outlot Disposition. See Exhibit 2 for the proposed disposition of the Lots and outlots in the plats in which the Annexed Property and nearby Community areas are located. See Paragraph 6 below for further requirements relating to Outlot A, Pinecliff 3 rd Addition ( "City Outlot"), The City Outlot is located westerly of the Annexed Property adjacent to Hinton Avenue South. 6. City Outlot,. The City Outlot is not part of the Community and is to be deeded to the City of Cottage Grove (the "City ") for stormwater and storm pond purposes. The City, as a condition of its approval of the plat of Pinecliff 3 rd Addition, required that the Association maintain all vegetation and landscaping on the City Outlot. If the Association does not maintain such vegetation and landscaping on the City Outlot, the City will rough -cut the vegetation twice per year and may assess the cost thereof against the Lots and/or the Association. Notwithstanding anything to the contrary contained herein or in the Declaration or any other Community Supplemental Declaration, all maintenance obligations associated with the vegetation and landscaping on the City Outlot are the Association's responsibility. 7. Drainage Improvements; Overflow Swales. Declarant may construct emergency overflow swales and pipes, catch basins and other drainage improvements throughout the Annexed Property and the Community as necessary to accommodate proper drainage. No person may obstruct or change the grade of such swales or obstruct or modify such drainage improvements without the approval of the Association and the City of Cottage Grove. 8. Street Circulation. Some streets in or adjacent to the Annexed Property may be closed to through or circulating traffic during periods of construction. However, at the conclusion of Community development activities streets may be extended to provide traffic circulation throughout the Community and to developments outside the Community. Until streets are extended, they may terminate in temporary cul -de -sacs for which Declarant reserves easements over the affected Lots and/or Common Elements for such purposes. Temporary 2 8277487v2 cul -de -sacs, if any, will be removed when the streets are extended. There is no assurance whether or when such street extensions and temporary cul -de -sac removals will occur. 9. Easements. Declarant hereby reserves easements for itself and grants easements to the Association over the Annexed Property for access, ingress, egress, maintenance, repair, replacement and other purposes all in accordance with the Declaration. and this Supplemental Declaration. 10. Future Development Area. Subject to the terms and conditions hereof, having been added to the Community pursuant to this Supplemental Declaration, the Annexed Property is no longer part of the Future Development Area described in Section 2.1 and, Exhibit B of the Declaration. Declarant's right to annex any remaining Future Development Area continues unchanged. Until Future Development Area is annexed and added to the Community, it is not subject to the Declaration. 11. Amendment or Revocation. This Supplemental Declaration may be revoked by an instrument executed by Declarant and the record owner(s) of a majority of the Lots in the Annexed Property. For so long as Declarant owns a Lot in the Annexed Property, Declarant may amend this Supplemental Declaration by recording an amendment signed by Declarant. Any other amendment of this Supplemental Declaration must satisfy the requirements for amending the Declaration. 12. Declaration Continues. Except as specifically supplemented herein with respect to the Annexed Property, the Declaration continues unmodified, in full force and effect. IN WITNESS WHEREOF, Declarant has executed this Supplemental Declaration effective as of the date first set forth above. DECLARANT: U.S. HOME CORPORATION, a Delaware corporate o . By: X 6626s ' ident Its: V - Minnesota Land Division LIST OF EXHIBITS Exhibit I Annexed Property Added to the Community Exhibit 2 Proposed Classifications and Dispositions of Lots and Outlots STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) This instrument was acknowledged before me on the A. Aune, as Vice President - Minnesota Land Divisio corporation, on behalf of the corporatio ,,"� -' day P. of November, 2011, by Jonathan T S. Home Corporation, a Delaware CAROLE L. TOOHEY NOTARY PUBLIC - MINNESOTA ___` y- Notary MY COMMISSION EXPIRES 01312012 3 I i I Exhibit I Annexed Property Added to the Community I The following real property located in the City of Cottage Grove, Washington County, Minnesota, i is added to the Pinecliff Community as follows: Lots Lots 1 -9, Block 1; and Lots 1 -5, Block 2; all in PMCLIFF 4Tx .ADDITION, according to the recorded Plat thereof. Common Elements None in PINECLIFF 4 th ADDITION. 8277487v2 i i I Exhibit 2 Proposed Classifications and Dispositions of Lots and Outlots i The following classifications and dispositions of Lots and Outlots in the plats in which the Annexed Property and nearby Community areas are located are based on information as of the recordation of this Supplemental Declaration. Classifications and dispositions of lots and outlots are subject to change. This Supplemental Declaration does not encumber or affect title to, or annex into the land subject to the Declaration, any real property other than the Lots in the Annexed Property described in Exhibit 1 attached hereto. riAid{�^ + ik f�` aY?�OF PIFiCT , /N��i I'3'" !( "t S �jA ` 'nL�2� ' l s� 2 S �i91 5 ' `l' ; KS fit .r FS.T F 1 Jt �r i AD��N� "�?tt� '' , 4 �� r , t� t'F PRO.�1 i{� S �1. s' ,k -I'M sa '! .SN'251� 4 •Y&.aa av r,.x Lots 1 -9, Block 1 These are Lots in the Community, which are being developed with Lots 1 -5, Block 2 detached single family residences and related residential amenities This outlot is Future Development Area which may but need not be annexed into the Community. Currently this outlot is expected to be Outlot A developed with detached single family residences and related residential amenities, although product types and development plans can change. gtr•,w.� .g �,y^c, r cs r § t t+�tzt�' r '^° v p,{• Zft ' mi �` O W # �sYe2; Lots 1 -5, Block 1 These are Lots in the Community, which are being developed with Lots 1- 6, Block 2 detached single family residences and related residential amenities. Lots 1 -11, Block 3 Not part of the Community and is planned to be deeded to the City of Cottage Grove for stormwater and storm pond purposes, although the Outlot A City of Cottage Grove, at its discretion, may use the City Outlot for ( "City Outlot") any purpose. The Association is required to maintain the vegetation and landscaping on the City Outlot. Outlot B Replatted as Pinecliff e Addition (see above). Proposed dispositions of land which is not part of the Community and future uses and development plans (including product types and densities) can change 8277487x2 ENTERED IN TRANSFER RECORD W D � HINGTO COUN MINNESOTA 220'711 , 'U��' MOLLY . O'ROURKE, AU IT R - EASURER BY 9 1PU TY DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS WWWW .va I if 111 111111 11111 llllf llllf 11111 11111 11111 lfli 1111 Office of the County Recorder Washington County, MN Gorlllled filed and/or recorded on: 2005/12/66 4:10,00 PR 3556269 01ndy Kooemenn * y* county Recorder THIS DECLARATION, made on this 1 I' tday of � o bey 2005, by U.S. Home Corporation, a Delaware corporation (hereinafter referred to as "Declarant "); WITNESSETH: WHEREAS, Declarant is the owner of the real property described on Exhibit A attached hereto and by this reference incorporated herein for all purposes, and desires to create thereon a residential community for the pleasure, recreation and general benefit of the residents of said community; and WHEREAS, Declarant is desirous of. establishing certain minimum standards for the development of a residential development or developments located in the City of Cottage Grove, County of Washington, State of Minnesota, described on Exhibit A attached hereto and,made a part hereof, to ensure proper use and appropriate development and improvement of each residential site therein contained as to: (a) protect the Owners of Lots against such improper use of such surrounding buildings and Lots as will depreciate the value of their property; (b) guard against the erection thereon of structures constructed of improper or unsuitable materials; (c) ensure adequate and reasonable development of said Property; (d) encourage the erection of attractive improvements appropriately located to prevent inharmonious appearance and function; (e) provide adequate setbacks, offstreet parldug; and (f) in general, to benefit and burden the Lots for the purpose of facilitating the development and maintaining the desired tone of the community, and J��U� �D4� AMERICiSIJ BLlI�W. .. . 1 BLOO"TOK MR am? thereby securing to the Owner of each Lot the full benefit and enjoyment thereof, with no greater restriction on the free and undisturbed use of the Lots than is necessary to ensure the same advantages to the other Lots which are subject to the terms of this Declaration. (Letters (a), (b), (c), (d), (e) and (f) above are sometimes hereinafter collectively called the "Criteria for Standards ".) WHEREAS, Declarant has deemed it desirable for the pleasure and recreation of said community, and for the efficient preservation of the values and amenities in said community, to create an agency to receive the power to attend to and effectuate policies and programs that will enhance the pleasure and value of said community, and maintain, administer and enforce the covenants and restrictions, and collect and disburse the assessments and charges hereinafter created; and WHEREAS, Declarant has incorporated, under the laws of the State of Minnesota, Pinecliff Homeowners' Association, Inc. for the purpose of exercising the functions as aforesaid; and WHEREAS, the Lots subject to this Declaration consist solely of separate parcels of real estate designed or utilized for detached single - family Living Units; and WHEREAS, Pinecliff Homeowners' Association, Inc., a Minnesota non -profit corporation, has no obligation to maintain any building containing a Living Unit. NOW, THEREFORE, in consideration of the premises, the Declarant hereby declares that the real property described on Exhibit A and such additions thereto as may hereafter be made pursuant to Article II hereof is and shall be held, transferred, sold, conveyed and occupied subject to the conditions, restrictions, casements, charges and liens hereinafter set forth, which covenants, restrictions and easements shall ran with the real property described on Exhibit A and any additional property annexed thereto pursuant to the provisions set forth in Article II, and be binding on all parties having any right, title or interest in the hereinafter described properties or any part thereof, their heirs, successors and assigns, and shall inure to the benefit of each Owner thereof. ARTICLE I. Definitions 1.1 Definitions. The following words, when used in this Declaration, shall have the following meanings; (a) "Association" shall mean and refer to Pinecliff Homeowners' Association, Inc., a non-profit corporation organized and existing under the laws of the State of Minnesota, and its successors and assigns. 2 (b) "Declarant" shall mean and refer to U.S. Home Corporation, a Delaware corporation, its successors and assigns, if such successor or assign shall acquire more than one undeveloped Lot from the Declarant for the purpose of development. Notwithstanding the foregoing, no individual or entity acquiring an undeveloped Lot from the named Developer shall become a "Developer" or "Declarant" solely by reason of such acquisition, but only as a result of a specific assignment of Developer and /or Declarant rights, which assignment shall not be effective unless incorporated in the instrument of conveyance. (C) "Developer" shall mean and refer to the Declarant. (d) "Living Unit" shall mean and refer to a residential housing unit consisting of a group of rooms and hallways and attached garage which are designed and intended for use as living quarters for one family and located or to be located upon one Lot. (e) "Lot" shall mean and refer to any tract or parcel of land designated as a Lot shown upon any recorded plat or subdivision map of the Property, with the exception of any tracts or parcels designated as outlots. (f) "Member" shall mean and refer to every person or entity who is a record Owner of a fee or undivided fee simple interest in any Lot which is or shall be subject by covenants of record to assessment by the Association pursuant to Article IV of this Declaration (excluding contract sellers and including in place thereof their contract purchasers, except as to any Lot where Declarant is the contract seller, in which case Declarant shall continue to be deemed the Owner of such Lot or Lots). (g) "Mortgage" shall mean and refer to any mortgage or other security instrument by which a Lot, or any part thereof, or any structure thereon, is encumbered. (h) "Mortgagee" shall mean any person or entity named as the Mortgagee under any Mortgage, or any successors or assigns to the interest of such person or entity under a Mortgage. (i) "Owner" shall mean and refer to the record Owner, whether one or more persons or entities, of a fee simple title to any Lot (excluding contract sellers and including in place thereof their contract purchasers, except as to any Lot where Declarant is the contract seller, in which case Declarant shall continue to be deemed the Owner of such Lot or Lots) and excluding any person except Declarant having such interest merely as security for the performance of an obligation. (j) "Permit" shall mean any Conditional Use Permit and/or other permit or agreement or ordinance approved by the City Council of the City of Cottage Grove authorizing and imposing restrictions and requirements for the development of the Property and/or all real property, as applicable, as the same maybe amended or modified by the City of Cottage Grove. (k) "Private Driveway" shall mean that part of a Lot paved to connect and provide access to the Living Unit located on such Lot to a main thoroughfare /public street. (1) "Private Yard Area" shall mean and refer to that portion of a Lot not covered by a Living Unit or by a Private Driveway. (m) "Property" shall mean and refer to all the real property subject to this Declaration, all of which is more fully described on Exhibit A attached hereto and by this reference incorporated herein for all purposes and such additions thereto as may hereafter be made pursuant to Article 11 hereof. (n) "Common Elements" shall mean all parts of the Property, except the Lots and improvements on the Lots, including the improvements thereon, owned by the Association. The initial Common Elements are legally described on Exhibit C. (o) "Entrance Monument" shall mean a structure identifying the Property that is constructed and maintained on a portion of the Property (or properties lying contiguous to the Property) over which an easement has been granted to the Association for maintenance, repair and replacement purposes in this Declaration or another recorded document. The initial Entrance Monument is contemplated being located on Lot 1, Block 5, Pinecliff, Washington County, Minnesota, but additional Entrance Monuments may be constructed. ARTICLE T.C. Additional Property Subject to this Declaration 2.1 Additions to Existing Property. Additional real property may become subject to this Declaration in the following manner: (a) Additions in Accordance with General Plan of Development. The Developer shall have the right, without the consent of the Members, to bring within the scheme of this Declaration the additional real property described on Exhibit B attached hereto and by this reference incorporated herein for all purpose, in future stages of development by December 31, 2013. (b) Additions Authorized by Members. Additional residential property may also become subject to this Declaration upon approval of 2 /3rds of the Members. 2.2 Manner of Annexation. Additions authorized under this article shall be made by filing a Supplementary Declaration of Covenants, Conditions and Restrictions with respect to the additional property, and after such filing, such additional property shall be subject to the 9 covenants and restrictions of this Declaration, Such Supplementary Declaration shall contain such complementary additions and modifications of the covenants and restrictions contained in this Declaration as may be necessary to reflect the different character, if any, of the added properties and shall not be inconsistent with the scheme of this Declaration. In no event, however, shall such Supplementary Declaration revolve, modify or add to the covenants established by this Declaration within the existing Property. ARTICLE III. Membership and Voting Rights in the Association 3.1 Membership. Every person or entity who is an Owner of a fee or - Lmdivided fee simple interest in any Lot which is or shall be subject by covenants of record to assessment by the Association pursuant to Article IV of the Declaration (excluding contract sellers and including in place thereof their contract purchasers, except as to any Lot where Declarant is the contract seller, in which case Declarant shall continue to be deemed the Owner of such Lot or Lots) shall be a Member of the Association. The foregoing is intended to - exclude persons or entities except Declarant who hold an interest merely as a security for the performance of an obligation until such time such person acquires a fee simple interest in such Lot by foreclosure or by any proceeding in lieu thereof. Membership shall be appurtenant to and may not be separated from the ownership of any Lot which is or shall be subject to assessment by the Association pursuant to Article IV of the Declaration. Ownership of such Lot shall be the sole qualification for membership. 3.2 Voting Rights. The Association shall not have nor shall it issue any capital stock, and may only have 2 classes of voting membership, (a) Class A. Class A members shall be all those Owners as defined in Section 1.1, with the exception of the Declarant. Each Class A member shall be entitled to 1 vote for each Lot in which he or she holds the interest required for membership by Section 3.1. When more than I person holds such interest in any Lot, all such persons shall be Members. The vote for such Lot shall be exercised as they, among themselves, shall determine, but in no event shall more than 1 vote be cast with respect to any Lot. (b) Class B. The Declarant shall be the sole Class B member and shall be entitled to 3 votes for each Lot owned, including any Lot in which Declarant has an interest as the contract seller. Class B membership shall cease and be converted to Class A membership upon the occurrence of the first of the following events: (i) when the total number of votes outstanding in the Class A membership equals or exceeds the total number of votes outstanding in the Class B membership; or (ii) on December 31, 2013. 3.3 Suspension of Voting Rights. The right of any Member to vote shall be suspended during any period in which such Member shall be delinquent in the payment of any assessment levied by the Association. Such rights may also. be suspended, after notice and hearing, for a period not to exceed 60 days for any infraction of any rules or regulations published by the Association. ARTICLE IV. Covenants for Assessments 4.1 Creation of Lien and Personal Obligation of Assessments. The Declarant, for each Lot owned within the Property, hereby covenants, and each Owner of any Lot by acceptance of a conveyance therefore, whether or not it shall be so expressed in the deed or other conveyance, shall be and hereby is deemed to covenant and agree to pay the Association: (a) general assessments or charges; and (b) special assessments for capital improvements, such assessments to be established and collected from time to time as hereinafter provided. The general and special assessments, together with such interest thereon and costs of collection thereof as hereinafter provided, shall be a charge on each such Lot and shall be a continuing lien on each such Lot against which each such assessment is made. Each such assessment, together with interest thereon and all costs of collection thereof as hereinafter provided, shall also be the personal obligation of each person who was the Owner of each such Lot at the time when the assessment fell due. The personal obligation for delinquent assessments shall not pass to such Owner's successors in title unless expressly assumed by them. All such assessments shall be fixed, established and collected from time to time in the manner provided in this article. 4.2 Purpose of Assessments. The assessments levied by the Association shall be used exclusively for expenditures made or liabilities incurred by or on behalf of the Association that are incident to its operation and that promote the health, safety and welfare of the Owners and residents of the Property, including those necessary for fulfillment of the Association's maintenance, repair and replacement responsibilities (which includes the Common Elements). Assessments may include contributions to a separate reserve fund as determined in the discretion of the Board of Directors of the Association. 4.3 Maximum General Assessments. The amount of the maximum general assessments shall be determined by the Board of Directors as hereinafter provided, but subject, however, to the following restrictions: (a) Until January 1 of the year immediately following the conveyance of fee title to the first Lot by the Developer to an Owner, the maximum general assessment shall be at the monthly rate of $20.84 per Lot. (b) From and after January 1 of the year immediately following the year of the conveyance of the first Lot by the Developer to an Owner, the general assessment may not be increased each year more than 10% above the general assessment for the previous year without a vote of the membership. (c) The general assessment may be increased above such 10% amount by a vote of 2 /3rds of each class of Members who are voting in person or by proxy at a meeting, called for such purpose (d) The Board of Directors of the Association may, after consideration of the current assessment costs and future needs of the Association, fix the actual assessment for any year at any lesser amount. 4.4 Special Assessments for Capital Improvements. In addition to the general assessments authorized by Section 4.3, the Association may levy, in any assessment year, a special assessment applicable to that year only for the purpose of defraying in whole or in part the cost of any construction or reconstruction or unexpected repair or replacement of a capital improvement; provided, however, that any such assessment shall require the assent of 2 /3rds of the votes of each class of Members who are voting in person or by proxy at a meeting duly called for this purpose. 4.5 Notice of Meetings. Written notice of any meeting called for the purpose of taking any action authorized under Section 4.3 or 4.4 shall be sent to all Members, and to any Mortgagee who shall request such notice in writing, no less than 30 days nor more than 60 days in advance of such meeting. At the first such meeting called, the presence of Members or 'of proxies entitled to cast 60% of all votes shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement, and the required quorum at the subsequent meeting shall be 1/2 of the required quorum at the preceding meeting. No such subsequent meeting shall be held later than 60 days following the preceding meeting. 4.6 Uniform Rate of Assessment. General and special assessments must be fixed at a uniform rate for all Lots owned by persons, firms or corporations, except as provided in Section 43. 4.7 Date of Commencement of Assessments; Due Dates. Subject to the following sentence, the assessments provided for herein shall commence on the first day of the month following the conveyance by Declarant of a Lot to a third party and shall thereafter be payable upon demand. Notwithstanding anything herein the contrary, if those portions of the real property described on Exhibit B owned by Thomas V. Shannon and Cheri L. Shannon (collectively, "Shannon ") or Donald L. Bialucha and Bonnie M. Bialucha (collectively, 'Bialucha ") as of the date of this Declaration are annexed pursuant to Article II subsequent to the date hereof, then the assessments as to those parcels shall commence as follows: (a) as to those lots actually occupied by Shannon or Bialucha for single family 7 residential purposes as of the date of this Declaration, (i) if such lots are owned and occupied for residential purposes by Shannon or Bialucha at the time of annexation, the assessments shall not commence until said lots are conveyed to a third party, or (ii) if such lots are not owned and occupied for residential purposes by Shannon or Bialucha at the time of annexation, the assessments shall commence upon the date said lots are annexed; and (b) as to those lots not actually occupied by Shannon or Bialucha for single family residential purposes as of the date of this Declaration, the assessments shall commence upon the later of issuance of a Certificate of Occupancy for the applicable parcels or the date said parcels are annexed. Additionally, assessments shall be allocated among the Lots in accordance with Section 4.6, subject to the following qualifications: (a) Any expense incurred by the Association benefiting fewer than all of the Lots may be assessed exclusively against the Lots 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 Lot; (b) Reasonable attorneys' fees and costs incurred by the Association in connection with (i) the collection of assessments and, (ii) the enforcement of this Declaration, the Articles of Incorporation, Bylaws and /or Rules and Regulations of the Association against an Owner may be assessed against that Owner's lot. 4.8 Duties of the Board of Directors. The Board of Directors of the Association shall fix the date of commencement and the amount of the assessment against each Lot for each assessment period at least 30 days in advance of such date of commencement of such period, and shall at that time prepare a roll of the Lots and assessments applicable thereto which shall be kept in the office of the Association and shall be open to inspection by any Owner. Written notice of the assessment shall thereafter be sent to each Owner subject to such assessments. The Association shall, upon demand and upon the payment of a reasonable charge, furnish a written certificate signed by an officer of the Association setting forth whether or not assessments upon particular Lots have been paid. Such certificate shall be conclusive evidence of payment of any assessments therein stated to have been paid. The failure of the Board to prepare a proposed budget or to adopt an annual budget or levy annual assessments as provided herein shall not constitute a wavier or release in any manner of an Owner's obligation to pay the amounts assessed against the Owner's Lot and in the absence of any proposed or annual budget, the Owners shall continue to pay the monthly assessment established for the previous period until a new annual budget is mailed or delivered to the Owner and a new assessment is levied 4.9 Effect of Nonpayment of Assessment; the Personal Obligation of the Owner; the Lien; Remedies of Association. (a) If any assessment is not paid on the date when due, then such assessment shall become delinquent and shall, together with such interest thereon and costs of collection thereof as hereinafter provided, thereupon become a continuing lien on such Lot or Lots, which shall bind such Lot or Lots in the hands of the then Owner, his heirs, devisees, personal representatives, successors and assigns. The personal obligation of the then Owner to pay such assessment, however, shall remain his personal obligation and shall not pass to his successors in title unless expressly assumed by them. Such lien shall run in favor of the Association and shall be superior to all other liens and encumbrances on such Lot except for the following: (i) liens for general real estate taxes and special assessments levied by any governmental authority; and (ii) the lien of any first Mortgage as provided in Section 4.10 hereof. (b) All other lienors acquiring liens on any Lot after this Declaration shall have been recorded, and whose liens shall also have been recorded, shall be deemed to consent that their liens shall be and remain inferior to future liens provided for herein, whether or not such consent has been expressed in the instruments creating their liens, (c) . To evidence a lien for sums assessed pursuant to this article, the Association may prepare a written notice of lien setting forth the amount of the assessment, the date due, the amount remaining unpaid, the name of the Owner of the Lot and a description of the Lot, and shall file or record the same, but such notice of lien shall not be recorded until such assessment has been wholly or partially unpaid for at least 30 days from the due date. Such lien maybe enforced and foreclosed by the Association, either by action or advertisement, in the same manner in which mortgages on real property may be foreclosed in Minnesota or, alternatively, in the manner prescribed by Minnesota Statutes for the foreclosure of a mechanic's lien. Each Owner, by acceptance of a deed for any Lot, does farther hereby give full and complete power of sale to the Association and does consent to a foreclosure of the assessment lien by advertisement. In the event that the Association shall prevail in any such foreclosure, the person personally obligated to pay the same shall be required to pay all costs of foreclosure, including but not limited to reasonable attorneys' fees. All such costs and expenses and any assessments against the Lot which shall become due during the period of foreclosure and redemption shall be added to and become a part of the amount secured by said lien. The Association shall have the right and power to bid at the foreclosure sale or other legal sale and to acquire, hold, convey, lease, rent, encumber, use and otherwise deal with the Lot as the Owner thereof A release of the notice of lien shall be executed by an officer of the Association and recorded upon payment of all sums secured by such lien. (d) Any encumbrancer holding a lien on any Lot may pay, but shall not be required to pay, any amounts secured by the lien created and authorized by this section, and upon payment of such sums, such encumbrancer shall be subrogated to and shall W be entitled to an assignment of all rights of the Association with respect to such lien, including but not limited to priority as to any other lien or interest in such Lot, except the right of first mortgagees as provided in Section 4.10. (e) The Association shall, upon written request, report to any first Mortgagee or other encumbrancer of a Lot the amount of the assessments remaining unpaid for a period longer than 30 days after the same shall become due. (f) Any assessments not paid within 30 days after the due date shall bear interest from the due date until paid at the rate of 8% per annum or the maximum rate allowed by law in the discretion of the Board of Directors of the Association. No Owner may waive or otherwise escape personal liability for the assessments provided for herein by abandonment of his/her Lot or use of the Common Elements. A suit to recover a money judgment for such expenses, with costs of collection and interest as provided for herein, shall be maintainable by the Association without foreclosing or waiving the lien securing the same. 4.10 Subordination of Lien to First Mortgages. The lien of assessments provided for herein shall be subordinate to the lien of any first Mortgage, and the sale or transfer of any Lot shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant to the foreclosure of a first Mortgage, or pursuant to any other proceeding or arrangement in lieu of such foreclosure, shall extinguish the lien of such assessments as to installments which became due prior to the effective date of such sale, transfer or acquisition by the Mortgagee to the end that no assessment liability shall accrue to an acquiring Mortgagee except with respect to installments of assessments becoming due after possession has passed to such acquiring Mortgagee, whether such possession has passed at the termination of any period of redemption or otherwise, and in the event of the extinguishment of such assessment lien as aforesaid, the entire amount of such unpaid assessment shall be reallocated and assessed against and payable by the Owners of all other Lots exclusive of such mortgaged Lot. No such sale, transfer or acquisition of possession shall relieve an Owner of a Lot from liability for any assessments thereafter becoming due or from the lien thereof, or shall relieve the person personally obligated to pay the assessments which were levied prior to the transfer of such property from the personal obligation to pay the same. ARTICLE V. Easements 5.1 Easements. In addition to the easements, covenants, restrictions and conditions concerning 'architectural and exterior controls, all Living Units and Lots shall be subject to easements and covenants hereinafter specifically described for the benefit of the Property or for the limited benefit of specified adjoining Lots, all as more fully set forth hereinafter in this article. 5.2 Easements for Utilities and Drainage. Utility and drainage easements are reserved as dedicated and shown on the recorded plat of the Property. Within said easements, no building, structure, planting, fill or other material shall be placed or permitted to remain which 10 may damage or interfere with the installation and maintenance of utilities or which may change the direction or impede the flow of water over said easements. 5.3 Public Underground Utility Easements. Each Lot and Common Element over which a public utility easement has been dedicated, as shown on the recorded plat of the Property, shall be subject to a right and easement for underground general utility purposes over that portion of such Lot which is burdened with such dedicated public utility easements. Such utility purposes shall include but not be limited to sewer, water, electrical, cable television and telephone purposes, including the right to build, construct, reconstruct, rebuild, repair, maintain and operate underground sewer, water, electrical mains and telephone cables, and any surface connections to such underground mains, along with the right to enter upon and open the ground for such purposes, providing that all such openings shall be filled and the surface restored to its former condition. All such utility easements shall jointly run in favor of and inure to the benefit of the Owners of the Lots and the Association (as the case may be) and any and all public authorities or utility companies maintaining or operating any utility facility upon such easement area. 5.4 Easement for Maintenance, Repair and Replacement. Each Lot 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 Lots for the purposes of the maintenance, repair and replacement of those items and areas for which the Association is responsible, including Entrance Monuments, to the extent necessary to fulfill the Association's maintenance, repair and replacement obligations. 5.5 Appurtenant Easements. Each Lot shall be the beneficiary of any appurtenant of record easement(s) noted on the plat of the Property, subject to any restrictions noted within the recorded easement(s) or within this Declaration. 5.6 Continuation and Scope of Easements. Notwithstanding anything in this Declaration to the contrary, in no event shall an Owner be denied reasonable access to his or her Lot or the right to utility services thereto. The easements set forth in this Article 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 Lots for purposes of maintenance, repair, replacement and reconstruction. 5.7 Common Elements. Each Lot 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 or rules and regulations promulgated by the Board of Directors of the Association. 5.8 Declarants Easements. Declarant declares and reserves a non - exclusive easement for the benefit of Declarant, its employees, contractors and agents, for ingress and egress over and upon the Common Elements described herein or created out of such additions thereto as may hereafter be made pursuant to Article Il hereof for the purposes of laying foundations for and otherwise constructing Living Units in the Lots subject to this Declaration or on such additions thereto as may hereafter be made pursuant to Article If hereof and for 11 completing construction and landscaping of the Lots and the Common Elements; provided, however, that the easements herein described shall terminate no later than sixty (60) days after completion by the Declarant of the construction of all Living Units on Lots subject to the Declaration and on such additions thereto as may hereafter be made pursuant to Article II hereof and all construction and landscaping of the Lots and Common Elements now or hereafter constructed pursuant to this Declaration. Additionally, for so long as Declarant owns a Lot, Declarant hereby reserves an easement, for itself, its employees, contractors, representatives, prospective purchasers and agents, through and over the Common Elements for the purpose of construction of all improvements contemplated in its development plan or allowed in the Declaration. ARTICLE VI. Approval by Architectural Control Committee Prior to Construction 6.1 Purpose and Authority. In order to maintain the Criteria for Standards, to prevent the impairment of the attractiveness of the individual Lots and to maintain the desired tone of the residential community, and thereby secure to each Owner the full benefit and enjoyment of its Lot with no greater restriction on the free and undisturbed use of a Lot than is necessary to ensure the same advantages for the other Owners, an Architectural Control Committee is hereby established. 6.2 Membership. The Architectural Control Committee (hereinafter referred to as "Committee ") shall be established and composed as follows: (a) Until a Certificate of Occupancy has been issued for Living Units constructed upon all of the Lots described on Exhibit A and Exhibit B, the Declarant shall name 3 individuals to serve as the Committee. (b) following the issuance of Certificates of Occupancy as provided in Section 6.2(a) above, the Architectural Control Committee shall be composed of the Board of Directors of the Association or 3 or more representatives appointed by the Board of Directors. (c) In the event of the death or resignation of any member of the Committee, the remaining members shall have fall authority to designate a successor. (d) The members of the Committee or its designated representatives shall be entitled to reasonable compensation for services performed pursuant to Article VI. 6.3 Procedure. Except for improvements made by Declarant in connection with its initial sale of a Lot, before commencing any permanent improvement or material topographical change on or to any of the described Lots, including landscaping, color change, the construction or external alteration of any building, enclosure, fence, addition, deck, patio, wall window, exterior door, sign, display, decoration, shrubbery, or any other structure, the Owner shall first 12 submit a site plan and plans and specifications in conformance with the requirements of the Permit and, including as applicable, in the sole discretion of the Committee, architectural, engineering and landscape plans, for the written approval of the Architectural Control Committee, The Committee shall be entitled to charge, and the person or persons submitting the plans shall pay, a fee of $100.00 for each set of plans submitted for approval which will not be refunded whether or not the plans are ultimately approved. Fees collected shall be payable to the Association. . The Committee's approval or disapproval shall be in writing. In the event the Committee or its designated representative fails to approve or disapprove within 30 days after plans and specifications have been received by it, or within said 30 -day period submit the issue to .arbitration as hereinafter provided, approval will not be required. The Committee shall take into consideration the planned location of the proposed improvement or alteration, its conformity and harmony • of external design with existing or planned improvements in the development and the location of the improvement with respect to topography and finished ground elevation. Conformity by the Owner with such requirements as may be imposed by the City of Cottage Grove in connection with the issuance of a building permit for the Lot shall not create a presumption that such planned improvement is compatible and in harmony with the existing or planned development of other Lots. Conformity by the Owner with such requirements as may be imposed by the Committee in connection with the issuance of Committee approval shall not create a presumption that such planned improvement is in accordance with such requirements as may be imposed by the City of Cottage Grove in connection with issuance of a permit upon the Lot. All Owners are responsible for ensuring their proposed improvement is in conformance with requirements of the City of Cottage Grove. In the event the approval of the Committee is not obtained within the 30 -day period and a dispute exists between the Owner and the Committee in regard to a proposed improvement requiring Committee approval, the matter shall be determined by arbitration in the following manner: (a) Either party may, by written notice to the other within the 30 -day period required for approval or disapproval of plans and specifications, appoint an arbitrator, which appointment shall be noted in writing to the other party. The other party shall, by written notice within 10 days after receipt of such notice by the first party, appoint a second arbitrator and in default of such second appointment, the first arbitrator appointed shall be the sole arbitrator. (b) If 2 arbitrators hereinabove provided have been appointed, they shall, if possible, agree on a third arbitrator and shall appoint him or her by written notice, signed by both of them, with a copy mailed to each party therein within 5 days after such appointment. (c) In the event 5 days shall elapse after the appointment of the second arbitrator without notice of appointment of a third arbitrator as hereinabove provided, then either party or both may, in writing, within 10 days after the original appointments, request the City Planner (or an individual within a similar position) of the City of Cottage Grove, State of Minnesota to appoint the third arbitrator. 13 (d) On appointment of arbitrators as hereinabove provided, such arbitrators shall hold an arbitration hearing at such place as they may designate within 30 days after such appointments. At the hearing, the rules of evidence of the State of Minnesota shall apply and the arbitrators shall allow each party to present its case, evidence and witnesses, if any, in the presence of the other party, and shall render their decision, including a provision for payment of costs and expenses of arbitration to be paid by one or both of the parties hereto as the arbitrators deem just. Any costs and expenses charged to the Committee shall be paid by the Association. (e) The decision of the majority of the arbitrators shall be binding on the parties hereto. Nothing contained in the foregoing provisions of this Article VI or in this Declaration 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 Lots owned by Declarant. ARTICLE VII. Restrictions Applicable to Lots 7.1 Residential Use. No Lot shall be used except for residential purposes. No Living Unit shall be erected, altered, placed or permitted to remain on any Lot other than one single - family dwelling not to exceed 2 stories in height and an attached garage for at least 2 cars. No garages shall be erected on any site except attached garages and no attached garage for more than 3 cars shall be permitted without the express written approval of the Architectural Control Committee, 7.2 Subdivision Prohibited. No Lot shall be used except for residential purposes and no Lot shall be subdivided or split by any means whatsoever into any greater number of residential Lots, nor into any residential plot of smaller size, without the express written consent of the Developer and the City of Cottage Grove. 7.3 Compliance with Laws. All uses of the Lots shall, as a minimum, comply with the Permit and with the zoning and other applicable ordinances and regulations of the City of Cottage Grove. The standards herein contained shall be considered as requirements in addition to said Permit and zoning and other applicable ordinances and regulations. No use shall be made of the Property which would violate any then existing municipal .codes or ordinances, or state or federal laws, nor shall any act or use be permitted which could cause waste to the Property, cause a material increase in insurance rates on the Property, or otherwise cause any unusual liability, health or safety risk, or expense, for the Association or another Owner. 7.4 Minimum Square Footage and Setback Provisions. No Living Unit shall be erected, altered, placed or permitted to remain on any Lot unless such dwelling contains at least the minimum residential square footage for said Lot as defined in the Permit or other applicable 14 government land use control. Setbacks from Lot lines shall be in accordance with the specific requirements set forth in the Permit or other applicable government land use control (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, as of the date of this Declaration) as the same may be amended from time to time. Notwithstanding any setbacks established by the Permit or other applicable government land use control, the Committee shall have the right to farther restrict setbacks taking into consideration its obligations to maintain the Criteria for Standards. 7.5 Landscaping. In order to preserve the uniform and high- standard appearance of the Property, each Owner undertakes responsibility for landscape, irrigation and other maintenance on the Lot and for maintenance and repair of the exterior of his or her Living Unit and maintenance and repair of the Private Driveway located on the Lot. The responsibility for maintaining the Lot and improvements thereon shall include, but not be limited to, the maintenance and repair of exterior surfaces of all buildings on the Lot, including without limitation the painting of the same as often as necessary, the replacement of trim and caulking, and maintenance and repair of roofs, gutters, downspouts and overhangs, the maintenance and repair of exterior windows and doors, necessary painting, staining and repair of patio structures. 7.6 Signs. No "For Sale" signs larger than 432 square inches (standard 18" x 24 ") will be permitted on any Lot (except those of Developer or third parties designated by Developer prior to the conveyance of the last Lot by Developer) . No other signs (including, without limitation, garage sale, identification, advertising or directional signs) shall be permitted without the prior approval of the Committee. 7.7 Animals. No birds, animals or insects shall be kept on any Lot except a cumulative total of four (4) dogs, cats or other common household pets, provided that they are not kept, bred or maintained for any commercial purposes. The person in charge of the pet must clean up after it and the owner of the pet causing any damage to the landscaping upon any Lot shall be responsible for its repair. 7.8 Home Occupation. No profession or home industry shall be conducted in any Living Unit or on any Lot without the specific written approval of the Developer (as long as it has Class "B" votes as hereinbefore defined) or by the Committee thereafter. The Developer or the Committee, whichever has authority at the time in question, in its discretion, upon consideration of the circumstances in each case and particularly the effect on surrounding property, may permit a Lot to be used in whole or in part for the conduct of a profession or home industry. No such profession or home industry shall be permitted, however, unless it is considered by the Developer or by the Committee, whichever then has authority, to be compatible with the residential neighborhood. 7.9 Nuisances. No clotheslines or drying yards shall be permitted on any Lot. No weeds, underbrush or other unsightly growths shall be permitted to grow or remain upon a Lot. No refuse pile or unsightly objects shall be allowed to be placed or suffered to remain on a Lot. No firewood shall be stored on a Lot unless concealed by screening acceptable to the Committee. In the event that an Owner of any Lot shall fail or refuse to keep such premises free from weeds, 15 underbrush or refuse piles or other unsightly growths or objects, then the Developer or the Committee may enter upon such lands and remove the same at the expense of the Owner and such entry shall not be deemed as trespass, and in the event of such a removal, a lien shall arise and be created in favor of the Association and against such Lot for 125% of the fall amount chargeable to such Lot, and such amount shall be due and payable within 30 days after the Owner is billed therefore, No Lot shall be used in whole or in part for the storage of rubbish of any character whatsoever, nor for the storage of any property or thing that will cause such Lot to appear in an unclean .or untidy condition or that will be obnoxious to the eye; nor shall any substance, thing or material be kept upon any Lot that will emit foul or obnoxious odors, or that will cause any noise that will or might disturb the peace, quiet, comfort or serenity of the occupants of surrounding property. The outside storage of an unlicensed motor vehicle upon a Lot shall be considered a nuisance. 7.10 Storage. Outside storage of any items including, but without limiting the generality of the foregoing, sporting equipment, toys, outdoor cooking equipment, yard and garden tools and equipment, and trash and garbage containers, shall not be allowed unless effectively screened from view outside the Lot. The design of any screening enclosures must be approved by the Committee. Household trash and garbage shall be regularly collected and may be kept outside only if in tightly- covered containers. Garbage service collection shall be independently contracted for by each Owner. Without the express written approval of the Committee, which approval may be withheld without stated reason, the following restrictions apply: (a) Motorhomes, boats, snowmobiles, trailers, camping vehicles, tractors /trailers or vehicles rated in excess of 7,000 pounds gross weight shall not be stored or parked upon any Lot outside of a garage. (b) Except as may be incidental to delivery or providing service, no commercial vehicle shall be stored or parked on any Lot outside of a garage. 7.11 Leasing. Any lease between an Owner and a non -owner occupant shall be in writing and shall provide that the terms of the lease shall be subject in all respects to the provisions of this Declaration, the Articles of Incorporation and By -Laws of the Association, and shall provide that any failure by the non -owner occupant to comply with the terms of such documents shall be default under the lease. Other than the foregoing and as otherwise contained in this Declaration, there shall be no restrictions on the use of a Living Unit by a non -owner occupant. 7.12 Fences, Walls and Hedges. Boundary walls, fences and hedges are inconsistent with the intended plan of development for the Property. No wall or fence shall be constructed or hedge planted on any Lot unless and until the height, type, design and location have been previously approved in writing by the Committee. The height or elevation of any wail, fence or hedge shall be measured from the existing elevations on the property at or along the applicable point or lines. Any question as to such heights may be completely determined by the Committee. A refusal by the Committee to allow or permit a fence, wall or hedge (including tennis court enclosures and swimming pool fences) on any particular Lot or in any particular 16 location shall not be construed to be an abuse of discretion. In addition to the provisions of Article VI and the foregoing, all fences approved by the Committee shall be black chain link and shall not exceed four feet in height. Further, if a fence approved by the Committee is installed along the rear of a Lot abutting a public roadway, the fence must be installed inside the landscaped area or, if the fencing parallels Hinton Avenue and/or 65 Avenue, it must be placed at the toe of the slope abutting these roadways. 7.13 Private 'Water Supply Systems. No private potable water supply system shall be permitted on any Lot. Any private water supply system installed and used in connection with the maintenance of a landscaping scheme upon a Lot shall be subject to approval by the Committee. 7.14 Storage Tanks. No permanent storage tanks of any kind shall be erected, placed or permitted on any Lot. 7.15 Temporary Structures. No structure of temporary character, trailer, basement, tent, shack, garage, barn or other building shall be used on any Lot at any time as a residence, either temporarily or permanently. 7.16 Driveways. Driveways must be constructed of concrete, bituminous or other hard surface material. Material and installation shall be subject to approval of the Architectural Control Committee. Driveways must be installed within 1 year of the date a Certificate of Occupancy is issued for any dwelling constructed upon a Lot. 7.17 Exterior Lighting. All exterior lighting fixtures and standards shall be shown on submitted plans and shall comply with any applicable provisions of the Permit and the overall lighting plan of the Declarant. All forms of exterior lighting shall be subject to approval by the Committee. 7.18 Exterior Ornaments. Exterior ornaments, including but not limited to precast concrete, plastic or wood figurines, wishing wells and windmills, shall be prohibited unless approved by the Conunittee prior to installation or construction. 7.19 Gardens. Vegetable and /or flower gardens shall not exceed 300 square feet on any Lot, shall be located to the side or rear of the Living Unit, shall contain no plantings over 4 feet in height as measured from surrounding area and shall conform to the Permit. No garden shall be located closer than 10 feet to any Lot line. The Committee may, in its discretion, vary the strict limitations imposed by this section based upon an application for approval pursuant to Article VI of this Declaration. Further, the limitations imposed by this paragraph shall not be applicable to the integration of flower beds in conjunction with an overall landscape site plan approved by the Committee. 7.20 Antennas. 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 Lot or upon any improvements thereon unless it is approved in 17 advance in writing by the Committee, except that this prohibition shall not apply to the extent it is inconsistent with 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 federal, state and local laws and regulations, including zoning, land -use, and building regulations. 7.21 Completion of Construction of Improvements. All construction work shall, upon approval of plans by the Committee, be completed within one year of the date of approval; all improvements shall be constructed in conformity with the then existing codes of the City of Cottage Grove, Minnesota, and all building plans shall be prepared by or under the supervision of a registered architect, a builder or a qualified design professional. If any structure is begun after approval of the plans as provided in Article VI and is not completed within one year after the date of approval of said construction and, in the judgment of the Developer or the Committee, is offensive or unsightly in appearance, the Developer or the Committee may take such steps as may be necessary to make the Property harmonious with other properties, such steps including completion of the exterior of the structure, screening or covering the structure, or any combination thereof, or similar operations. The amount of any expenditure made in so doing shall be the personal, joint and several obligation of the Owner or Owners and shall be a lien on the Lot and may be foreclosed in the same manner as provided in Section 4.9(c). The lien herein shall not be valid as against a subsequent bona fide purchaser of the Lot in question, unless a statement setting forth the claim shall have been filed for record in the office of the County Recorder and/or Registrar of Titles of Washington County, whichever is appropriate, or unless a suit and appropriate Lis Pendens to foreclose the lien shall have been filed of record in the office of the County Recorder and /or Registrar of Titles of Washington County prior to the recordation of the deed conveying the Lot in question to said purchaser. 7.22 Trees. No live trees shall be removed, damaged or altered in appearance except in connection with the initial construction by Declarant or except as approved by the Committee; provided, however, careful removal of dead trees or diseased /damaged limbs of live trees shall be allowed. ARTICLE VIII. Enforcement of Easements, Restrictions and Covenants Each Owner, and any other person owning or acquiring any interest in the Property, shall be governed by and comply with the provisions of this Declaration, the governing documents of the Association, 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 this Declaration and the governing documents of the Association. 8.1 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 18 combination thereof, or an action for any other relief authorized by this Declaration or the governing documents of the Association 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 this Declaration or the governing documents of the Association 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 this Declaration or the governing documents of the Association, as a measure to enforce such Owner's position, or for any other reason. 8.2 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 action under this Section without the approval of at least two- thirds of each class of the Members. A Member representing Lots 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 Lots represented by the Member. This Section shall not apply, however, to (i) actions brought by the Association to enforce this Declaration or governing documents of the Association (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. 8.3 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 this Declaration or the governing documents of the Association: 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 19 assessments assessed against the Lot owned by the defaulting Owner may be accelerated and shall then be payable in full if all delinquent assessments, together with all costs of collection and late charges, are not paid in full prior to the effective date of the acceleration. Reasonable advance written notice of the effective date of the acceleration shall be given to the defaulting Owner. d. Foreclose any lien arising under the provisions of this Declaration or the governing documents of the Association or under law, in the manner provided for the foreclosure of mortgages by action or under a power of sale. 8.4 Alternative Method for Resolving Disputes Declarant, its officers, directors, employees and agents; the Association, its officers, directors and committee members; all persons /Owners 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 8.5 (collectively, "Claims ") to the procedures set forth in Section 8.6. 8.5 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 this Declaration or the governing documents of the Association or the rights, obligations and duties of any Bound Party under this Declaration or the governing documents of the Association; (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 8.6. 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 8.6: a. any suit by the Association against any Bound Party to enforce the provisions of Article 4 (Covenants for Assessments); 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 Article 7 (Restrictions Applicable to Lots) or Article 6 (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 of the Association; and 20 d. any suit in which any indispensable party is not a Bound Party. With the consent of all parties hereto, any of the above may be submitted to the alternative dispute resolution procedures set forth in Section 8.6. 8.6. 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 (Le., 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 copy 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 3 0 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 21 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 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 8.6 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 8.6. 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 areas) 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 22 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 an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the other Parties. 8.7 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 Lot 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. 8.8 Amendment of Article Without the express prior written consent of Declarant, this Article may not be revolted and /or amended for a period of twenty (20) years from the effective date of this Declaration. ARTICLE IX. Insurance 9.1 Liability Insurance; Fidelity Bonds. The Board of Directors of the Association or its duly authorized agent shall obtain a broad form of public liability insurance insuring the Association, with such limits of liability as the Association shall determine to be necessary, against all acts, omissions to act and negligence of the Association, its officers, directors and its employees and agents, and for the members of the Architectural Control Committee. The Association's Board of Directors shall also provide fidelity bonds providing protection to the Association against loss by reason of acts of fraud or dishonesty on the part of the Association's directors, managers, officers, employees or volunteers who are responsible for the handling of funds of the Association, in an amount sufficient to provide no less protection than one and one -half times the estimated annual operating expenses and reserves . of the Association. The Board of Directors of the Association may obtain any other insurance it determines in its discretion to be in the best interests of the Association and the Owners. Insurance shall be assessed under Article IV. 9.2 Annual Review of Policies. All insurance policies shall be reviewed at least annually by the Board of Directors in order to ascertain whether the coverage contained in the policies is sufficient. ARTICLE X. Notice of First Mortgagees 10.1 Mortgagee's Rights. Notwithstanding any 23 other provisions of this Declaration, the Articles of Incorporation or the By -Laws of the Association, the provisions of this Article X shall control, and in the event of a conflict between the provisions of this article and the provisions of such Declaration, Articles or By -Laws, the provisions of this article shall control. 10.2 Notice of Default. Any Mortgagee holding a first Mortgage on a Lot, who shall have previously filed a written request with the Association, shall be entitled to written notification of any default by the mortgagor or Owner of such Lot or his or her heirs, successors or assigns in the payment of any assessment or the performance of any other duties or obligations herein set forth which shall have remained in default for a period of 30 days or more. The neglect or failure of the Association to tender such notice to the Mortgagee shall toll the running of any time limits applicable to the procedure for the collection of such assessment or remedies available to the Association on account of such default. 10.3 Consent Required. Without the prior written approval of 66 -2/3% of the holders of first mortgage liens against all Lots, the Association shall not be entitled to: (a) change the method of determining the. obligations, assessments, dues or other charges which may be levied against a Lot; (b) abandon the scheme of exterior and architectural controls, as hereinabove set forth. ARTICLE XI. Characteristics of Common Elements and Maintenance 11.1 Characteristics of Common Elements. The Common Elements and their characteristics are as follows: (a) All of the Property not included within the Lots and owned by the Association constitutes Common Elements. The initial Common Elements include those parts of the Property described in Exhibit C. (b) The Common Elements shall be subject to appurtenant easements for services, public and private utilities, access, use and enjoyment in favor of each Lot and its Owners; subject to the right of the Association to establish reasonable Rules and Regulations governing the use of the Property. (c) All maintenance, repair, replacement, management and operation of the Common Elements shall be the responsibility of the Association. 24 11.2 Maintenance. The Association shall be responsible for all maintenance, repair and replacement of the Common Elements and the Entrance Monuments, Additionally, pursuant to that certain Development Agreement dated April 6, 2005, by and between U.S. Home Corporation and the City of Cottage Grove, recorded on in the office of the County Recorder/Registrar of Titles for Washington County, as Document No. [recording information not yet available], the Owners shall be responsible for maintaining that portion of the grass area adjacent to their Lots and located within the public right-of-way up to the curbing; provided, however, that the grass area along 65 Avenue and Hinton Avenue adjacent to the Lots and located within the public right-of-way shall be maintained by the Association up to the curbing (this shall not include any center islands within Hinton Avenue or 65"' Avenue). Solely for purposes of determining the individual Owners' maintenance responsibilities in the preceding sentence, their respective Lot lines shall be extended into the public right- of-way consistent with the Lot lines depicted in the recorded plat applicable to the Property. In the event the real property described on Exhibit B is annexed pursuant to Article Il of this Declaration, the maintenance obligations of the Association and the Owners, respectively, shall be applicable to such annexed real property consistent with this Declaration. Except for the maintenance to be provided by the Association under this Section, all maintenance of the Lots, including the Living Units, shall be the sole responsibility, and at the expense, of the Owners thereof. The Association may require that any exterior maintenance to be performed by an Owner be accomplished pursuant to specific uniform criteria established by the Association. ARTICLE XII. Declarant's Landscaping Requirements 12.1 Each Private Yard Area shall have a minimum of four (4) trees and ten (10) shrubs planted, not including the one (1) yard tree planted by the City of Cottage Grove. One (1) of the four (4) trees required to be in each Private Yard Area shall be a conifer tree and shall be planted in the front yard. ARTICLE XIII. Existing Structures and Improvements 13.1 There are existing single :family residences (with attached garages) and outbuildings (i.e. buildings not attached to the single family residences) located on certain areas of real property contemplated being subjected to this Declaration by Declarant pursuant to Article II hereof. In the event such areas containing the foregoing existing improvements are subj ected to the Declaration in the future, the existing single family residences (with attached garages) and those outbuildings under 150 square feet shall be permitted for so long as they remain in place, despite any provisions to the contrary in this Declaration. However, if said permitted improvements shall be replaced or expanded, the replacement or the expansion (as the case may be) shall comply with all of the provisions of this Declaration, In no event, however, shall an outbuilding 150 square feet or greater be permitted. The pertinent Supplementary Declaration shall legally describe the lot and block upon which these existing improvements are 25 located if /when said real property is subjected to this Declaration. ARTICLE XIV Additional Developer Right 14.1 The Developer shall have the right to prohibit, stop or remedy any action to be, being or taken by the Association, as the case may be, if such action is or may be in violation, or has or may have a detrimental effect on Developer, because of Developer's covenants and/or other person's /entities' covenants and agreements under Development Agreements and /or Subdivision Agreements with the City of Cottage Grove or Conditional Use Permits and /or other permits issued by the City of Cottage Grove, or as the same may be amended or modified by the City of Cottage Grove. The jurisdiction of the Association shall be subject to any and all agreements between the Developer and/or other person/entity and the City of Cottage Grove covering the property subject to the Declaration or any part thereof, whether such agreement or agreements are entered into before or after the date of filing Articles of Incorporation for the Association. It is provided, however, that the Developer shall exercise the rights provided for above only if the Association shall fail to remedy an action which is or may be a violation of such agreements after notice from the Developer to do so. The Association shall comply with the terms of the above - described agreements. These rights shall be exercised by the Developer to the extent consistent with the aforementioned agreements and as long as Developer holds Class A or Class B membership in the Association. ARTICLE XV. General Provisions 15.1 Severability and Headings. The invalidation of any one of these covenants or restrictions by legislation, judgment or court order shall in no way affect any other provision which shall remain in full force and effect. All headings herein are inserted only for convenience and ease of reference and are not to be considered in the construction or interpretation of any provision of this Declaration. 15.2 Amendments. The provisions of this Declaration may be amended during the first 20 years by an instrument signed by Members entitled to cast no less than 90% of the votes of each class of membership, and thereafter by an instrument signed by Members entitled to cast no less than 75% of such votes. No amendment shall be effective until it shall have been properly recorded. Amendments or modifications of the Permit by the City of Cottage Grove shall not be construed as an amendment to this Declaration. 15.3 Limitation on Declaration. The covenants, restrictions, easements, conditions and reservations imposed or established by or created under this Declaration, or any amendment hereto, shall run with and bind the Property for a period of 20 years from the date of the recordation of this Declaration and may be enforced as provided herein. After the expiration of said 20 -year period, all of such covenants, restrictions, easements, conditions and reservations shall continue to run with and bind the Property for successive periods of 10 years each unless removed, changed or amended in whole or in part by Members entitled to cast 75% 26 of each class of votes and evidenced by a recorded instrument executed by duly authorized officers of the Association. 15.4 Construction and Conflict. In the event of any apparent conflict between the Articles of Incorporation and the By-Laws 'of the Association and terms of this Declaration, this Declaration shall control. In the event of any apparent conflict between the Articles of Incorporation and the By� -Laws of the Association, the terms of the Articles shall control. 15.5 Rules and Regulations. The Board of Directors of the Association may from time to time adopt such rules and regulations as the Board, in -its sole discretion, deems appropriate or necessary in operating and administering the affairs if the Association and regulating the use of the Property, including, without limiting the generality of the foregoing, rules and regulations concerning the use of parking areas and concerning the appearance of each Lot. Such rules and regulations shall not be inconsistent with the provisions of this Declaration. 15.6 Rights of Declarant. Notwithstanding any provision to the contrary, until the last Lot is sold and conveyed to an Owner other than the Declarant, the following activities by Declarant, or with the written consent of Declarant, will not be deemed violations of restrictions contained in this Declaration: (a) the use of a Lot or Lots for model and sales office purposes; (b) the storage of a construction trailer, equipment, materials and earth during the construction of new Living Units; (c) the display of signs advertising the Property or new Living Units and the maintenance of temporary fencing, walkways, landscaping and berming in the vicinity of model and sales units. 15.7 Variances. The restrictions applicable to Lots as specified in Article VII of this Declaration are intended for the benefit of all property Owners. The Declarant, however, acknowledges that exceptional conditions of a particular Lot may create peculiar and practical difficulties mitigating against the strict enforcement of a provision contained in Article VII. In the event an Owner believes that such exceptional conditions on a Lot create a hardship or special situation, an application for a variance may be made by an Owner to the committee in accordance with Section 6.3 of this Declaration. An application for. variance shall state on the application the reasons for allowing the variance, including: (a) that there are special circumstances or conditions affecting the Lot such that the strict application of a provision of Article VII would deprive the Owner of the reasonable use of the Lot; (b) the variance is necessary for the preservation and enjoyment of a substantial property right of the Owner; 27 (c) the granting of the variance will not be detrimental to the public welfare or injurious to other Owners or Lots subject to the Declaration; (d) that the issuance of the variance will not have an adverse effect upon the health, welfare and safety of the Owners benefited by this Declaration. In considering a request for a variance from the strict application of Article VII of this Declaration, the Committee shall make a finding showing that all of the foregoing conditions exist and the Committee may impose any reasonable condition in the granting of such variance in order to protect other Lots and Owners. Absent such a finding, such request for variance shall be deemed denied. The decision of the Committee shall be final in regard to any application for variance and such decision shall not be subject to appeal either by arbitration or litigation. The granting of a variance by the Committee shall not be binding upon the City of Cottage Grove, nor shall the granting of the variance by the City of Cottage Grove be binding on the Committee. IN WITNESS WHEREOF, the undersigned has executed this instrument the day and year first set forth above. U.S. HOME CORPORATION, a Delaware corporation B " , - , G y acki Its: Vice President STATE OF MINNESOTA ) ss, COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of 2005, by John J. Liberacki, the Vice President of U.S. Home Corporation, a Delaware corporation, on behalf of the corporation. S I �2" Notary (Pub THIS INSTRUMENT DRAFTED BY MESSERLI & KRA.MER P.A. (MAK) 1800 Fifth Street Towers 150 South Fifth Street MARGARET D.DOLAN NOTARY PUBLIC MINNESOTA r My Commission Expiles Jan. 31, 2010 fr�:j Minneapolis, MN 55402 (612) 672-3647 29 EXHIBIT A Lots 1 through 20, inclusive, Block 1; Lot 1, Block 2; Lots 1 through 15, inclusive, Block 3; Lots 1 through 10, inclusive, 13lock 4; Lots 1 through 15, inclusive, Block 5; All in Pinecliff, Washington County, Minnesota 1(3 �3 9C The East half of the Northeast Quarter except the South 500 feet of the East 440 feet thereof, Section 5, Township 27, Range 21, Washington County, Minnesota. 31 EXHIBIT C Outlot C; Pinecliff, Washington County, Minnesota 620232.4 32 vvvvi. R v 1 11111 111111 11111 11111 111 l illll 11111 11111 1111 1111 No dalinr•LVMt taxes and trta' feY no d t required certificate Office of the r,; net<i t. , CState V NO ) County Recorder Washington County, MN foollyr F. O ourke, "er Genllied tiled and/or recorded on: w tlt 2005/12/06 4:10 :00 PM /i /A r 0nl0 355fi27D Cindy Kooemenn County Recorder J QUIT CLABI DIELD ey. (Corporation to Corporation) STATE DEED TAX DUE HEREON: $ 1 '1 b5 Date: 10-11 , 2005 FOR VALUABLE CONSIDERATION, U.S. HOME CORPORATION, a Delaware corporation, Grantor, hereby conveys and quitclaims to PINECLIFF HOMEOWNERS' ASSOCIATION, INC., a Minnesota nonprofit corporation, Grantee, real property in Washington County, Minnesota, described as follows: Outlot C, Pinecliff, together with all hereditaments and appurtenances belonging thereto. Consideration given for this transfer is less than $500.00, Affix Deed Tax Stamp Here WASHINGTON COUNTY Receipt No: 217067 Date: 12/6/2005 Registration tax hereon of: $1.65 PAID MN Conservation Fund M.S. 473h $5.00 PAID Molly F. O'Rourke, Auditor by BJStarzl U.S. HOME CORPORATION, a Delaware corpora ion By: (JO4 f I Li eracki Its: e P ent 5M AMMRIXVD W KoomfttoN, M scar V L 13G lq,,L_ STATE OF MINNESOTA ) ss. COUNTY OF HENNEPIN ) The foregoing was acknowledged before me this � `�—� day of JAI" 2005, by John J. Liberacki, the Vice President of U.S. HOME CORPORATION, a Delaware corporation, on behalf of corporation. (O� CAROLE L TOOHEY� NOTARY PUBLIC - MMESOTA Notary Public M'y GwMsslon Expires Jan. 31, 2007 DRAFTED BY: Brett A. Perry, Esq. MESSERLI & KRAMER P.A. 1800 Fifth Street Towers 150 South Fifth Street Minneapolis, Minnesota 55402 (612) 672 -3600 SEND TAX STATEMENTS TO: Pinecliff Homeowners' Association, Inc. 935 East Wayzata Blvd. Wayzata, MN 55391 620709.1