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96-115 . . . CITY OF SHOREWOOD RESOLUTION NO. 96-115 A RESOLUTION APPROVING THE FINAL PLAT OF MANITOU WOODS WHEREAS, the final plat of Manitou Woods has been submitted in the manner required for the platting of land under the Shorewood City Code and under Chapter 462 of Minnesota Statutes, and all proceedings have been duly had thereunder; and WHEREAS, said plat is consistent with the Shorewood Comprehensive Plan and the regulations and requirements of the laws of the State of Minnesota and the City Code of the City of Shorewood. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Shorewood as follows: 1. 2. conditions: That the plat of Manitou Woods is hereby approved. That the approval is specifically conditioned upon the following terms and a. Development of the site shall include the construction of four quest parking spaces and an adequate turn-around, as shown on Exhibit A, attached hereto and made a part hereof. b. Plans for sewer and water utilities are subject to review and approval by the City Engineer. c. Separate sewer and water services will be provided for each dwelling unit. d. Development of the lots is subject to the requirements of Section 1201.03 Subd. 16 of the Shorewood City Code, as may be amended. e. The Developer shall submit a landscape plan including tree preservation measures, tree replacement, foundation plantings and screening along County Road 19. The landscape plan is subject to review and approval by the Planning Director. Landscaping must be provided prior to issuance of certificates of occupancy for any of the units. f. The Developer shall record the Declaration of Covenants, Conditions and Restrictions, attached hereto as Exhibit B, and made a part hereof, with the Hennepin County Recorder. 3 . That the Mayor and City Administrator/Clerk are authorized to execute the Certificate of Approval for the plat on behalf of the City Council. 4. That the final plat, together with this resolution and the Declaration of Covenants, Conditions and Restrictions for Manitou Woods Home Owners Association attached hereto, shall be recorded within thirty (30) days of the date of certification of this Resolution. . . . BE IT FURTHER RESOLVED, that the execution of the Certificate upon said plat by the Mayor and City Administrator/Clerk shall be conclusive, showing a proper compliance therewith by the subdivider and City officials and shall entitle such plat to be placed on record forthwith without further formality, all in compliance with Minnesota Statutes and the Shorewood City Code. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 16th day of December, 1996. " ,)" i) hk ~ ")" ,,' ,'" ,~'-t::UU~'1 <')' ,{\..C~- Robert B. Bean, Mayor 2 . DECLARA nON OF COVENANTS CONDITIONS. AND RESTRICTIONS FOR MANITOU WOODS HOME OWNERS ASSOCIATION THIS DECLARATION, Made on the day of . 19-, by OMEGA DEVELOPMENT, INC. (hereafter referred to as the "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 communit}': for the. pleasure7 recreation and general benefits of the residents of said community: and, WHEREAS, Declarant desires to provide for the preservation of the values and amenities in said community and to this end desires to subject the real property described on Exhibit ~ together with such additions as may hereafter be made thereto, as provided in Article II, to the covenants, restrictions, easements, charges and liens hereinafter set forth,eac~and.alIof which is. and are for the benefit of said real property and each owner thereof: and, . WHEREAS, Declarant has deemed itdesirable 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 andrestrictions and collect and disburse the assessments and charges hereinafter created: and, WHEREAS, Declarant has incorporated, under the laws of the State of Minnesota, the Manitou Woods Home Owners Association for the purpose of exercising the functions as aforesaid: 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, easements, charges and liens hereinafter set forth, which covenants and restrictions shall run 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 rights, title or interest in the hereinafter described properties or any part thereot: their heirs, successors and assigns,and shall inure to the benefit of each owner thereof. . . ARTICLE I Definitions 1. Definitions. The following words, when used in this Declaration, shall have the following meanings: 1.1 "Association" shall mean and refer to Manitou Woods Home Owners Association, a nonprofit corporation organized and existing under the laws of the State of Minnesota, its successors and assigns. 1.2 ''Declarant'' shall mean and refer to Omega Development, Inc. and its successors or assigns..if such successors. or assigns should acquire more than one undeveloped Lot from Omega Development, Inc. for the purpose of development. 1.3 "Developer" shall. mean and refer to the Declarant and its successors or assigns if such successors or assigns should acquire more than one undeveloped Lot from the Declarant for the purpose of development. . 1.4 "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. 1.5 "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. 1.6. "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 subject by covenants of record to assessment by the Association, including, but not limited to, contract vendors. 1.7 ''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. 1.8 ''Mortgagee'' shall mean any person Of entity named as the mortgagee under any Mortgage, or any successors or assigns to the interest of such person or entity undef a Mortgage. . 1.9 "Owner" shall mean and refer to the record owner, whether one or more person or entities,offee simple title.toany Lot, including. . contract sellers, but excluding any person having such interest merely as security for the performance of an obligation. 1. 10 '<Private Common Driveway" shall mean and refer to access driveways from public streets to the Living Units 1. 11 "Private Yard Area" shall mean and refer to that portion of a Lot not covered by Living Unit or by a Private Common Driveway. 1. 12 "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 all additional real property made subject to this Declaration.in accordance with the provisions of Article II. ARTICLE II Additional Property Subiect 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 Develooment. The Developer, its successors and assigns, shall have the right, without the consent of the Members to bring within the scheme of this Declaration additional. real. property in future stages of development by December 31, 1998; provided, however, that the Federal Housing Administration and the Veteran's Administration shall have the right to veto any such future additions in the event that either of such agencies determines that any such future additions is not in accordance with. the general plan of development heretofore approved by each of them (b) . Additions Authorized by Member. Additional. residential property may become subject to this Declaration upon approval of two-thirds (2/3) of the Members of each class of Association 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 covenants and restrictions of this Declaration. Such Supplementary Declaration shall contain such complementary additions and modifications as 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 revoke, . . 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 wh<}is a record owner ofa fee or undivided fee simple interest in any Lot which is subject by covenants of record to assessment by the Association, including, but not limited to, contract vendors, shall be a member of the Association. The foregoing is intended to exclude persons or entities 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 subject to assessment by the Association. 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 two (2) classes of voting membership: . (a) Class A. Class A members shall be all those Owners as defined in Section 1.9, with the exception of the Declarant. Each class A member shall be entitled to one (I) vote for each Lot in which he holds the interest required for membership by Section 3.1. When more than one 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 one (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 three (3) votes for each Lot owned. Class B membership shall cease and be converted to the Class A membership upon the occurrence of the first of the following events: (i) When the total number of votes outstanding in Class A membership equal or exceed the total number of votes outstanding in the Class.B membership; or (ii) On December 31,1999 3.3 Suspension of Voting Rights. The right of any Member to vote and the right of any Member, his family or guest to use any recreational facilities that may be acquired by the Association shall be suspended during any period in which such Member shall be in default 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 sixty (60) days for any infraction of any rule or regulations published by the Association. . ARTICLE.IV Covenant for Maintenance 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 deed thereof, whether or not it shall be so expressed in any such Deed or other conveyance, shall be and hereby is deemed to covenant and agree to pay to the Association: (a) general annual 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 annual 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 such 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 Owners 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 the purpose of promoting the pleasure, health, safety and welfare of the residents of the Property and, in particular, for the maintenance of the Property, services and facilities devoted to this purpose and related to the use and enjoyment of the improvements erected upon each Lot. 4.3. Maximum Annual Assessments. The amount of the maximum annual assessments shall be determined by the Board of Directors as hereinafter provided but subject, however, to the following restrictions: (a) Until January I_of the year immediately following the conveyance of the first Lot by the Developer to an Owner, the Maximum annual general assessment shall be $1,500.00. (b) From and after January I of the year immediatelyJollowing the year of the conveyance of the first Lot by the Developer to an Owner, the maximum annual general assessment may be increased each year in an amount not to exceed the greater of: (i) five percent (5%) above the maximum annual general assessment for the prevIous year; or (ii) the actual percentage increase over the most recent twelve (12) month period in the Minneapolis-St. Paul All Items Consumer Price Index for All . . Urban Consumers, CPI "U", 1967= 100, (hereinafter referred to as the "CPI"). If publication of the CPlshall be discontinued, the Association's members shall thereafter accept comparable statistics on the cost ofliving for Minneapolis- St. Paul, as they shall be computed and published by an agency of the United States or by a responsible financial institution selected by the Association's Board of Directors. ( c) The maximum annual general assessment maybe increased above such amounts established in paragraph (b) herein above by vote of two-thirds (2/3) of each class of members who are voting in person or by proxy at a meeting duly called for such purpose. (d) The Board of Directors of the Association may, after consideration of the current assessment costs and future need 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 annual 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, unexpected repair or replacement of a capital improvement; provided, however, that any such assessment shall require the assent of two-thirds (2/3) 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 Section4.3 or 4.4 shall be sent to all Members, and to any Mortgagee who shall request such notice in writing. noless than Thirty (30) days no more than sixty (60) days in advance of such meeting. At the first such meeting called, the presence of Members or of proxies entitled to cast sixty (60%) percent 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 one-half(l/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held later than sixty (60) days following the preceding meeting. . 4.6 Uniform Rate of Assessment. Both general annual and special assessments must be fixed at a uniform rate for all Lots; and such uniform rate may not be changed or altered without the prior written consent of all Mortgagees having a first lien on each Lot; provided, however, that any Lots owned by the Developer shall be assessed an amount equal to one-fourth (1/4) of the amount assessed against Lots owned by persons other than the Developer; provided, further, that notwithstanding anything set forth in the preceding clause to the contrary, a Lot owned by the Developer shall be assessed on the same basis as a Lot owned by any person other than the Developer from and after the time that a building constructed upon such Lot"is (a) used by the Developer as a model for regular public inspection, (b) finally inspected by the United States Department of Housing and Urban Development or Federal Housing Administration, or ( c) occupied by a tenant of the Developer as a residential dwelling. . . . . 4.7 Date of Commencement of Annual Assessments:.. Due Dates_ The annual assessments provided for herein shall commence as to all Lots on the first day of the calendar month following the conveyance of a Lot to an Owner. In addition, in the event that additional properties are subsequently brought within the scope of this Declaration by the Developer in accordance with. the general. plan of development pursuant to Section 2.1 ( a), annual assessments shall commence as to all Lots within such additional properties on the first day of the calendar month following the conveyance of the first Lot therein by the Developer to an Owner. In the event that the annual assessments, with respect to any Lot, shall commence during any calendar year on any day other than January 1, the amount of such assessments payable for such year shall be that proportion of the full amount applicable to the entire calendar year which the number of remaining fulLcalendar months in such year bears to.the number twelve.. All.assessments, both general and special may be collected on a monthly, or other periodic basis, and with such due dates as the Board of Directors. may determine and establish. 4.8 Duties of the Board of Directors. The Board of Directors of the Association shall fix the date of commencement, and theamoun! of the assessment against each Lot for each annual assessment period at least thirty (30) days in advance of such date of commencement of such period and shall at that time prepare a roll of the properties 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 every 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. 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 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 infavor of the_Association and shall be superior to allother 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 4.11 hereof. (b) All other lienors acquiring liens on any Lot after this Declaration shall have been recorded and whose liens.shallalso.have been recorded, shall be deemed to consent that . . . their liens shall be and rernain.inferior to future liens provided for herein whether or not such consent has been expresses in the instruments creating their liens. (c) To evidence a lien for sums assessed pursuant to the 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 names of the Owner of the Lot and a description of the Lot and file or record the same, but such notice of lien shall not be recorded until such assessment as been wholly or partially unpaid for at least thirty (30) days from the due date. Such lien may be enforced and foreclosed either by judicial foreclosure by the Association in the same manner in which mortgages on real property. may be foreclosed in Minnesota or by foreclosing the lien 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 further 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 of any such foreclosure, and in the further 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 0 f foreclosure including, .but not limited to, reasonable attorneys' fees. All such costs and expenses shall be further secured by the lien being foreclosed. The person personally obligated to pay such lien, shall also be required to pay the Association any assessments against the Lot which shall become due during the period of foreclosure. 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 or 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 all rights of the Association witti respect to such lien, including, but not limited to, priority as to any ottier lien or interest in such Lot. (e) Any assessment not paid within thirty (30) days after the due date shall bear interest from the due date until paid at the rate of eight percent (8%) per annum. No Owner may waive or otherwise escape personal. liability for ttie assessments provided for herein by abandonment of his Lot. 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 . . . . paid assessment shall be reallocated and assessed against, and payable by the Owners of all other Lots in the Association, exclusive of such mortgaged Lot.. No such sale,. transfer or acquisition of possession shall relieve an Owner or 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 of Article VI concerning party walls and of Article VII concerning architectural and exterior controls, allLiving 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 Driveway Easements. Declarant has, or will by separate declaration, establish limited private common driveway easements for ingress and. egress to and from each. of the Living Units served by such driveways.. Maintenance of such driveways, as well as maintenance of the private apron from the common driveway to a Living Unit., shall be performed.. by the Association. and assessable .against all Lots in the Association as a part of exterior maintenance. 5.3 Private Yard Easements. Except as hereinafter provided, each. Owner shall be fully entitled to the exclusive use and occupancy of the Private Yard Area in his Lot to the exclusion of all others; provided, however, the Property generally and all other Owners shall be entitled to a visual easement over all Private Yard Area, subject to and limited by the original structures erected thereon by the developer. No Owner shall erect or cause to be erected..any structure of any sort upon his Lot,. or plant any trees or shrubs prior to obtaining the written approval of the Association in accordance with the procedure described in Article VII. Except as permitted under the limited circumstances described in the preceding sentence, all planting, landscaping and private yard maintenance shall be performed by the Association and the costs thereof shall be and constitute a portion of the general annual assessment by the Association ueon all Lots in the Property. SA Utility Easements. The Declarant has, or will by separate declaration,. provide easements for utility purposes to and from all Lots in the Property. The Association or its proper representatives shall have the right offree access.to any Lot or Living Units for the purpose of maintaining any utility service to any Lot on the Property. The Association shall also have the right to tap onto and maintain the water line stopcock located on the exterior wall of each Living Unit and to draw water therefrom for yard maintenance purposes~ provided, however, that if the Association shall draw water from any Living Unit as aforesaid, the Association shall reimburse the Owner of such Living Unit for all water charges and fees imposed by the water utility upon the Owner of such Living Unit in excess of the minimum periodic water charges, ifany, during the billing period when the Association shall have drawn water from such Living Unit. . . . ARTICLRVI Party Walls 6.1 General Rules of Law to Aoply. Each wall which is built as part of the original construction of the Living Units upon the Property and placed upon the dividing line between the Lots shall constitute a party. wall and to the extent not inconsistent with the provisions of this Article, the general rules of law regarding party walls and of liability for property damage due to negligence or willful acts or omissions shall apply thereto. 6.2 Sharing of Repair and Maintenance. The cost of reasonable repair and maintenance of a party wall shall be shared by the Owners who make use of the wall in proportion to such use. 6.3 Destruction by Fire or other Casualty. If a party wall is destroyed or damaged by fire or other casualty, any Owner who has used the wall may restore it, and if the other Owners thereafter make use of the wall.- they. shall.contribute to the cost of restoration thereof in proportion to such use without prejudice, however, to the right of any such Owners to call for a larger contribution from the others under any.rule of law regarding liability for negligent or willful acts or omissions. 6.4 Weatherproofing.. Notwithstanding any other provisions of this Article, any Owner who, by his negligent or willful act, causes the party wall to be exposed to the elements shall bear the whole cost of furnishing the necessary protection against such elements 6.5 Right to Contribution Runs with Land: . The right. or any Owner to contribution from any other Owner under this Article shall be appurtenant to the land and shall pass to such Owner's successors in title. 6.6 Encroachments. If.- for whatever reason, a wall intended to .be a party wall is not precisely constructed on the dividing line between two Lots, during the life of the building containing such wall, the Lot upon. which such party wall encroaches shall be subject to an easement for the life of such building which shall be in favor of and appurtenant to the other Lot, to the end that for all purp.oses of this. Declaration, such wall shall be treated as if it were centered precisely upon the common Lot line. 6.7 Arbitration. In the event .of any dispute arising concerning a party wall, or under the provisions of this Article, each party shall choose one arbitrator and such arbitrators shall choose one additional arbitrator and .the decision of a majority of all the arbitrators shall be final and conclusive on the question involved . . . ARTICLE VII Architectural and Exterior Controls 7.1 Architectural Control and Committee Authority: . no exterior additions, removals or alterations (including changes in color or appearance) to any building on the Property, additional fences, hedges, walls, walkways and other structures shall be commenced, erected or maintained, except such as are installed or approved by the Developer in connection with the initial construction of the buildings on the Property, until the plans and specification showing the nature, kind" shape, height,.. materials, location and approximate cost of same shall have been submitted to and approved in writing as to harmony of the external design and location in relation to surrounding buildings erected upon the Property by an architectural committee composed of the Board of Directors of the association or three (3) or more representatives appointed by the Board of Directors. No such submission shall be deemed to have been completed until all of the plans and specifications thereof has been delivered to the applicant. In the event said Board, or its designated committee, fails to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to it, as evidenced by the dated written receipt, such approval shall be deemed to have been given.. Ifno application has been made to the architectural committee or their representatives, or if such application has been rejected, a suit to enjoin or remove such additions, alterations, or changes may be instituted at any time by the Association or any Owner~ provided, however, no suit to enjoin or remove such additions, alterations or changes may be. commenced. if unapproved improvements having been completed for a period of ninety (90) days and thereafter a deed to a new owner is recorded, such improvements having been deemed to have been approved by the architectural committee. None of the members of the architectural committee shall be entitled to any compensation for their services performed pursuant to this paragraph" but compensation may be allowed to independent professional advisors retained by such committee. Exterior antennae shall not be placed on any building without the express written approval of the architectural committee. During the time in which the Association has a Class B member, all decisions of the architectural committee may be vetoed by the Developer. 7.2 Exterior Maintenance. In order to preserve the uniform and high standards or appearance of the Property, the Association shall provide and be solely responsible/or the maintenance and repair of the exterior of all Living Units, and the walks, yard areas and driveways of the Lots which responsibility shall include, but not be limited to, the fol1owing: The maintenance and repair of the exterior surfaces of all buildings on the Property, including, without limitation, the painting of the same as often as necessary, the replacement of trim and caulking, the maintenance and repair of roofs, gutters, down spouts and overhangs, (but excluding all maintenance and repair to glass and other window surfaces), mowing, trimming, watering and other care of grass, trees, and other plants, and the maintenance and repair of walks, driveway aprons, driveways and walkways, including snow removal therefrom. The Association shall also maintain that portion of all private service water and sewer pipelines from the exterior walls . . . of each Living Unit to the point at which such service pipelines connect to the lateral water and sewer pipelines located within the street right of way. All expenditures by the Association for the above stated purposes shall be uniformly assessed against all Lots in the Property as provided in Section 4.6 hereof; provided, however, all costs and expenses of any maintenance or repairs necessitated or caused by willful or negligent acts of an Owner, the Owner's family, invitees, tenants or vendees shall be specifically assessed against the Lot of such Owner in the manner provided herein.. . All maintenance and repair of individual Living Units and garages shall be the sole obligation and responsibility and expense of the individual Owners thereof, except to the extent that the.exterior maintenance and repair is provided by the Association.. The Association shall be responsible for all damage done to the Lots and the improvements thereon in the course of such maintenance and repair. and . shall perform or pay for the restoration of and repairs to such improvements. ARTICLE VIII Insurance and Reconstruction 8.1 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 employees and agents. 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 Directors, managers, officers, employees or volunteers who are responsible for handling of funds of the Association in an amount sufficient to provide no Jess protection than one and one-half ( 1 1/2) times the estimated annual operating expenses and reserve of the Association. 8.2 Destruction and Reconstruction. In the event that a building or buildings containing a Living Unit is partially or totally destroyed and in the further event that a decision is made by the Owners of the Living Units in such building or buildings whose Living Units are affected by such destruction or casualty to repair or reconstruct such building or buildings, then such repairs or reconstruction must be substantially commenced no later than ninety (90) days following the date upon which such decision has been made by such Owners. No such reconstruction or repairs shall be commenced without (i) the unanimous written consent of all the Owners in the buildings whose Living Units are affected by such destruction or casualty and (ii) the written approval of the plans and specifications of the proposed .repairs and reconstruction by. the Architectural Control Committee. 8.3 Manner of Reconstruction.. On reconstruction,. the design, plan and specifications of any building or Living Unit may vary from that of the original upon approval of the Architectural Control Committee~ provided,. however, that the.nurnber of square feet of any Living Unit may not vary by more than 5% from the number of square feet for such Living Unit as originally constructed, and the location of the buildings shall be substantially the same as prior to the damage or destruction. All reconstruction costs and expenses shall be the sole obligation of . the affected Owners only, and shall not be assessed to any other Owners. ARTICLE IX Notice to First Mortgagees 9.1 Mortgagee's Rights. Notwithstanding any other provisions of this Declaration, the Articles of Incorporation or the By-Laws of the Association, the provisions of this Article IX 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. 9.2. Notice of Default. Any Mortgagee holding a first mortgage on a Lot, and 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 their, heirs, successors, or assigns, in the payment of any assessments or the perfonnance of any other duties or obligations herein set forth which shall have remained in default for a period of thirty (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. . 9.3 Consent Required. Without the prior written approval of the Members entitled to cast seventy-five (75%) percent of the votes of each class of membership, the Association shall not be entitled to: (a). By act or omission,.seek.toabandon,.partition , subdivide,. encumber, sell or. transfer any property which the Association shall have acquired for the benefit of the Owners: (b) Change the method .of detennining. the obligations,. assessments,. due or other charges which may be levied against a Lot; (c) By act or omission, change,..walve or abandon the scheme of exterior and Architectural controls, exterior maintenance, maintenance of parties walls, or lawn maintenance as herein above set forth. ARTICLE X General Restrictions. Obli9;ations and Ricl1ts of Owners 10.1 Livin9; Unit Restriction. No Living Unit shall be used for purposes other than as a single family residence, nor shall any garage be used for or occupied as living or sleeping . quarters, nor shall any trade or business of any kind be carried on within a Living Unit or upon a . Lot, nor shall any Lot or any part thereof be leased, sublet, assigned or suffered to be used for hotel or transient occupancy~ provided, however, that none of the following activities shall be considered to be in violation of these restrictions: . (a) The maintenance of a business and sales office by the Developer during the construction and sale-periods. (b) The maintenance of an office by the Association or its designated manager for the purposes of management of the Property ( c) Lease or rental of a Lot for purposes consistent with this Sectioni provided, however, that any such lease between an Owner and a lessee shall (i) be in writing, (il) state that such lease is subject. to the restrictions of this - Declaration, any Declaration of Easements applicable. to such Lot and the Articles ofIncorporation and By-Laws of the Association and (iii) state that the failure of the lessee to comply with suchrestnction shall constitute an event of default under such lease. 10.2 Prohibition of Damage and Certain Activities. Nothing shall be done or kept on any Lot or any part thereof (i) to increase the rate of insurance on any other Lot over what the Owner of such other Lot, but for such activity would pay, without the prior written consent of the Association, or (ii) which would be in violation of any statute, rule, ordinance, regulation, permit or other validly imposed requirement of any governmental body. No damage to, or waste of, the Property or the buildings situated thereon, shall be committed by any Owner or any invitee of any Owner and each Owner agrees to indemnify andhold harmless the Association and the other Owners from and against all loss resulting from any such damage or waste caused by him or his invitees. No noxious, destructive or offensive activity shall be allowed on any Lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to any other Owner or to any other person at any time lawfully residing on the Property. 10.3 Animals. No animals, rabbits, livestock, fowl or poultry of any kind shall be raised, breed or kept in or upon any Lot or any part thereof, except that the Association may, by regulation, rule or otherwise develop rules for the keeping of dog, cats or other household pets; provided, however, that no such pet shall be kept, _bred or maintained for any commercial purposes. 10.4 Si9;ns. No signs of any kind shall be displayed to the public view on any Lot, provided, however, one sign, if not more than five (5) square feet in area and which may only be placed upon Private Yard Area of a Lot and which shall not be attached or affixed to a Living Unit, may be used to advertise such Living Unit for sale or rent; provided, further, the Developer reserves for itself and its agents;the right to maintain a business and sales office during the construction and sales period and to place any advertising sign upon the Property during such period. 10.5 Maintenance of Garages. All garage facilities, as originally erected by the Developer, shall be retained as and used for a garage facility for the off-street interior storage of the vehicles and no such facility shall be converted by construction or usage to any other purpose. . . 10.6 Parking and Storage of Motor Homes and Recreational Vehicles. No motor homes, recreational vehicles, trailers, boats, snowmobiles or other similar vehicles shall be parked, stored of kept on any Lot unless such vehicle is kept entirely within the garage facilities as originally erected by the Developer~ provided, however, any such vehicle may be temporarily parked or left unattended by the Owner, his guests, invitees.andvisitors wholly or partially outside of the garage facilities for a reasonable period of time, but not to exceed forty-eight (48) hours in any thirty (30) day period for each such vehicle. 10.7 Prohibition Uoon Erection of Storage Sheds. No detached storage structures, including, but not limited to, storage sheds, tool sheds or other outbuilding whose principal intended use is the storage of goods or mat~rials, shall be erected, whether temporary or permanently, upon any Lot, except by the Developer but only in connection with the initial development and sale of the Property and, all such structures shall be removed by the Developer upon the completion thereof. Notwithstanding anything to the apparent contrary, the provisions of this section shall prevail over the provisions of Section 7.1 hereof. . 10.8 General Rules and Regulations. By acceptance of any deed or other conveyance of a Lot, each Owner delegates to the Association the right and power to adopt, amend. repeal and enforce reasonable rules and regulations, of general application to all of the Lots in the Property, relating to the use and conduct permitted on the Private Yard Area of each Lot. Each Owner expressly agrees to observe such rules and regulations and to be bound thereby, and to prevent the breech thereof by the members of such Owner's families, guests, invitees, lessees, contract for deed purchasers and all other persons lawfully on such Owner's Lot with the Owner's consent. Notwithstanding the foregoing". any such rules and regulations must satisfy the following requirements: (a) All such rules and regulations must be consistent with the object and purposes of this Declaration and shall be directed at protecting the value and desirability of the residential community to be created on the Property and enhancing the general welfare of the residents of such community, all as determined by the Board of Directors of the Association in their sole discretion. (b) All such rules and regulations may only be directed at activities occurring on the Private Yard Area of each Lot and may not restrict the activities of any residents of the community occurring within each Living Unit. (c). All such rules and regulations.shallbe uniformly applicable to allLots and all Lots and all persons on the Property. . The Board of Directors of the Association shall have the sole authority to make, modify and repeal any rules and regulations under this Section 10.8 and neither the members of the Association nor the members of the Board of Directors. shall be liable to anyone as a result of the adoption, modification, repeal or enforcement of any rule or regulation made under this Section 10.8 if such action is taken by the Board of Directors in good faith. Without limiting the generality of the foregoing, the following subjects shall be proper objects of any rules and . regulations under this Section 10.8: (a) . Storage of materials. (b) Pets. (c). Use of recreationaL equipment. (d) Parking of vehicles. (e)_Garbage collection procedures. (f) Lawn furniture. (g). Motor vehicle repairs conducted outside of the garage. ARTICLE Xl . General Provisions 11.1 Enforcement. The Association or any Owner, shall have the right to enforce, by a proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration including, but not limited to, the collection of all assessments and the enforcement of all rules and regulations adopted by the Association under Section 10.8. In the event that the Association should employ the services of an attorney in connection with a breach of the terms hereof by a Member, his family, guests, tenants or contract purchasers, or in connection with the enforcement of the terms hereof, and if the Association shall prevail in any such action, such member shall pay, in addition to all other sums due, the Association's reasonable attorneys' fees, costs and expenses. The failure by the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to du so thereafter. If these restrictions are enforced by appropriate proceedings by anyone or more of such heretofore described persons, such persons may be reimbursed by the Association for all or any part ofthe cost incurred, as the Board of Directors of the Association shall, in its sole discretion determine. . 11.2 Access. Solely for the purpose of performing the maintenance authorized by this Declaration, the Association through its duly authorized Agents or employees, shall have the right, after reasonable notice to the. Owner.- to enter upon any Lot. . 11.3 Severability. The invalidation of anyone 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. 11.4 Amendments. The provisions of this Declaration may be amended during the first twenty (20) years by an instrument signed by Members entitled to cast no less than ninety (90%) percent of the membership votes, and thereafter by an instrument signed by Members entitled to cast no less than seventy-five (75%) percent of such votes. No amendment shall be effective until it shall have been properly recorded. 11.5 FRANA Aporoval. As long as there are Class B Members, the following actions shall require the prior approval of the Federal Housing Administration or the Veteran's Administration: . Annexation of additional properties and the amendment of this Declaration of Covenants, Conditions and Restriction. 11.6 Limitation on Declaration. The covenants, restrictions, conditions and reservation imposed or established by or created under this Declaration shall run with and bind the Property for a period of thirty (30) years from the date of the recordation of this Declaration and may be enforced as provided in Section 11.1 herein above. After the expiration of said thirty (30) year period, all of such covenants, restrictions, conditions and reservations shall automatically continue to run with and bind the Property for successive periods often (10) years each unless revoked, changed or amended in whole or in part, by an instrument signed by not less than seventy-five . (75%) of the Lot Owners. Any amendment must be recorder. IN WITNESS WHEREOF , the undersigned has caused this document to be executed as of the day and year first above written. OMEGA DEVELOPMENT, INC. By: Jerome. Allan Hertaus President. . . . . 'y STATE OF MlNNESOT A) ) SS COUNTY OF HENNEPIN On this. day of 19--, before me, a Notary Public within and for said County, appeared Jerome Allan Hertaus, to me personally known, who being by me duly sworn, did say that he is the President of OMEGA DEVELOPMENT, INe., that the seal affixed to the foregoing instrument is the corporate seal and said corporation, and that said instrument was executed on behalf of said corporation by authority of it Board of Directors and the said JEROME ALLAN HERT AUS acknowledged said instrument to be the free act and deed of said corporation. Notary Public. This document was drafted by: Omega Development, Inc. 4100 Berkshire Lane North PlYmOUth, Minnesota.. 55446 . . . EXHIBIT "A" PROPERTY DESCRIPTION Lots 1 through 4, inclusive, Block 1; , .~ //. , "l. ~'I'~'~'-"""-' all in Manitou Woods Plat One, accordingto the plat thereof of record and on file in the Office of the Registrar of Titles in and for Hennepin County, Minnesota and all of which is situated in said County.