COMMON
INTEREST COMMUNITY NO.__
Planned
Community
BEAR
RIDGE AT ASH RIVER
DECLARATION
Page
1
This Declaration is made in the County of St. Louis, State of Minnesota, on this ____ day of ____________, 2005, by Ash River Properties, Inc., a Minnesota corporation (the "Declarant"), pursuant to the provisions of Minnesota Statutes, Chapter 515B, known as the Minnesota Common Interest Ownership Act (the "Act"), for the purpose of creating Bear Ridge at Ash River as a planned community under the Act.
WHEREAS, Declarant is the owner of certain real property located in St. Louis County, Minnesota, legally described in Exhibit A attached hereto, and Declarant desires to submit said real property and all improvements thereon (collectively the "Property") to the Act as a planned community; and
WHEREAS, Declarant desires to establish on the Property a plan for a permanent residential community to be owned, occupied and operated for the use, health, safety and welfare of its Owners and Occupants, and for the purpose of preserving the value, the structural quality, and the original architectural character of the Property; and
WHEREAS, the Property is not subject to an ordinance referred to in Section 515B.l-106 of the Act, governing conversions to common interest ownership, and is not subject to a master association as defined in the Act.
THEREFORE, Declarant makes this Declaration and submits the Property to the Act as a planned community under the name "Bear Ridge at Ash River," initially consisting of the Units referred to in 1.20, declaring that this Declaration shall constitute covenants to run with the Property, and that the Property shall be owned, used, occupied and conveyed subject to the covenants, restrictions, easements, charges and liens set forth herein, all of which shall be binding upon all Persons owning or acquiring any right, title or interest therein, and their heirs, personal representatives, successors and assigns.
SECTION 1. DEFINITIONS
The following words when used in the Governing Documents shall have the following meanings (unless the context indicates otherwise):
1.1. "Act" shall mean the Minnesota Common Interest Ownership Act, Minnesota Statutes, Chapter 515B, as amended.
1.2. "Assessments" shall mean and refer to all assessments levied by the Association pursuant to 1.46 of this Declaration, including annual assessments, special assessments and limited allocation assessments.
1.3. "Association" shall mean Bear Ridge at Ash River, a nonprofit corporation which has been created pursuant to Chapter 317A of the laws of the state of Minnesota and Section 515B.3-101 of the Act, whose members consist of all Owners.
1.4. "Board" shall mean the Board of Directors of the Association as provided for in the By-Laws.
1.5. "By-Laws" shall mean the By-Laws governing the operation of the Association, as amended from time to time.
1.6. "Common Elements" shall mean all parts of the Property except the Units, including all improvements thereon, owned by the Association for the common benefit of the Owners and Occupants. The Common Elements are legally described in Exhibit B attached hereto.
1.7. "Common Expenses" shall mean and include all expenditures made or liabilities incurred by or on behalf of the Association and incident to its operation, including Assessments and items otherwise identified as Common Expenses in the Declaration or By-Laws.
1.8. "Dwelling" shall mean a part of a building consisting of one or more floors, designed and intended for occupancy as a single-family residence, and located within the boundaries of a Unit. The Dwelling includes any garage attached thereto or otherwise included within the boundaries of the Unit in which the Dwelling is located.
1.9. "Eligible Mortgagee" shall mean any Person owning a mortgage on any Unit, which mortgage is first in priority upon foreclosure to all other mortgages that encumber such Unit, and which has requested the Association, in writing, to notify it regarding any proposed action which requires approval by a specified percentage of Eligible Mortgagees.
1.10. "Governing Documents" shall mean this Declaration, and the Articles of Incorporation and By-Laws of the Association, as amended from time to time, all of which shall govern the use and operation of the Property.
1.11. "Limited Common Elements" shall mean a portion of the Common Elements allocated by the Declaration or by operation of Section 515B.2-102(d) or (f) of the Act for the exclusive use of one or more but fewer than all of the Units.
1.12. "Member" shall mean all persons who are members of the Association by virtue of being Owners as defined in this Declaration. The words "Owner" and "Member" may be used interchangeably in the Governing Documents.
1.13. "Occupant" shall mean any person or persons, other than an Owner, in possession of or residing in a Unit.
1.14. "Owner" shall mean a Person who owns a Unit, but excluding contract for deed vendors, mortgagees and other secured parties within the meaning of Section 515B.1-103(29) of the Act. The term "Owner" includes, without limitation, contract for deed vendees and holders of a life estate.
1.15. [Intentionally Omitted]
1.16. "Person" shall mean a natural individual, corporation, limited liability company, partnership, trustee, or other legal entity capable of holding tide to real property.
1.17. "Plat" shall mean the recorded plat depicting the Property pursuant to the requirements of Section 515B.2-110(d) of the Act, and satisfying the requirements of Minnesota Statutes, Chapter 505, 508 or 508A, as applicable, including any amended or supplemental Plat recorded from time to time in accordance with the Act.
1.18. "Property" shall mean all of the real property submitted to this Declaration, now or in the future, including the Dwellings and all other structures and improvements located thereon. The Property is legally described in Exhibit A and Exhibit D attached hereto.
1.19. "Rules and Regulations" shall mean the Rules and Regulations of the Association as approved from time to time pursuant to Section 1.45.
1.20. "Unit" shall mean any platted lot subject to this Declaration upon which a Dwelling is located or intended to be located, as described in Section 1.21 and shown on the Plat, including all improvements thereon, but excluding the Common Elements.
Any terms used in the Governing Documents, and defined in the Act and not in this Section, shall have the meaning set forth in the Act.
SECTION 2. DESCRIPTION OF UNITS, BOUNDARIES AND RELATED EASEMENTS
1.21. Units. There are ten Units. All Units are restricted exclusively to residential use. Each Unit constitutes a separate parcel of real estate. The Unit identifiers and locations of the Units are as shown on the Plat, which is incorporated herein by reference, and a schedule of Units is set forth on Exhibit C attached hereto. The Unit identifier for a Unit shall be its lot and block numbers and the subdivision name. The Declarant reserves the right to add all or a portion of the Additional Property described in the Attached Exhibit D to this Declaration and planned community. The Declarant's right to add any portion of the Additional Property to this planned community will terminate ten years following the date of recording of this Declaration. The Declarant reserves the right to create no more than two Units on the Additional Property.
1.22. Unit Boundaries. The front, rear and side boundaries of each Unit shall be the boundary lines of the platted lot upon which the Dwelling is located or intended to be located as shown on the Plat. The Units shall have no upper or lower boundaries. Subject to this 1.20 and 1.32, all spaces, walls, and other improvements within the boundaries of a Unit are a part of the Unit.
1.23. Access Easements. Each Unit shall be the beneficiary of a perpetual appurtenant easement for access to a public street or highway on or across those portions of the Common Elements used as a driveway, as shown on the Plat, subject to any restrictions set forth in the Governing Documents or the Rules and Regulations.
1.24. Septic and Well. Each Unit shall be the beneficiary of a perpetual appurtenant easement across the Common Elements to utilize the common septic system and the common well serving that Unit. It shall be the responsibility of each Unit Owner to maintain the piping from such Owner's Unit across or under the Common Elements extending from that Unit to the common septic system and common well.
1.25. Use and Enjoyment Easements. Each Unit shall be the beneficiary of perpetual appurtenant easements for use and enjoyment on and across the Common Elements, and for use and enjoyment of any Limited Common Elements allocated to the Unit, subject to any restrictions authorized by the Governing Documents. Notwithstanding anything herein to the contrary, dock slips shall constitute part of the Common Elements, but may be assigned from time to time by the Association for the exclusive use of the Owner(s) and Occupant(s) of a Unit.
1.26. Utility and Maintenance Easements. Each Unit shall be subject to and shall be the beneficiary of perpetual appurtenant easements for all services telephone and utilities servicing the Units and the Common Elements, and for maintenance, repair and replacement as described in 1.86.
1.27. Encroachment Easements. Each Unit shall be subject to and shall be the beneficiary of perpetual appurtenant easements for encroachments as described in 1.110.
1.28. Declarant's Easements. Declarant shall have and be the beneficiary of easements for construction and sales activities as described in Section 17.
1.29. Recorded Easements. The Property shall be subject to such other easements as may be recorded against it or otherwise shown on the Plat.
1.30. Easements are Appurtenant. All easements and similar rights burdening or benefiting a Unit or any other part of the Property shall run with the land, and shall be permanent, subject only to termination in accordance with the Act or the terms of the easement. Any recorded easement benefiting or burdening the Property shall be construed in a manner consistent with, and not in conflict with, the easements created by this Declaration.
1.31. Impairment Prohibited. No person shall materially restrict or impair any easement benefiting or burdening the Property, subject to the Declaration and the right of the Association to establish and enforce reasonable Rules and Regulations governing the use of the Property.
1.32. Benefit of Easements. All easements benefiting a Unit shall benefit the Owners and Occupants of the Unit, and their families and guests. However, an Owner who has delegated the right to occupy the Unit to an Occupant or Occupants, whether by a lease or otherwise, does not have the use and other easements rights in the Property during such delegated occupancy, except as a guest of an Owner or Occupant or in connection with the inspection of the Unit or recovery of possession of the Unit from the Occupant pursuant to law.
SECTION 3. COMMON ELEMENTS, LIMITED COMMON ELEMENTS
AND OTHER PROPERTY
1.33. Common Elements. The Common Elements and their characteristics are as follows:
a. All of the Property not included within the Units constitutes Common Elements. The Common Elements include, but are not limited to, all areas and items listed in this 1.33, and those parts of the Property described in Exhibit B attached hereto or designated as Common Elements on the Plat or in the Act. The Common Elements are owned by the Association for the benefit of the Owners and Occupants.
b. The Common Elements shall be subject to (i) certain easements as described in Section 2, Section 3, and Section 17; (ii) the rights of Owners and Occupants in Limited Common Elements appurtenant to their respective Units; (iii) the right of the Association to assign the exclusive right to use dock spaces from time to time for the exclusive use of the Owner(s) and Occupant(s) of a Unit; and (iv) the right of the Association to establish reasonable Rules and Regulations governing the use of the Property.
c. Except as otherwise expressly provided in the Governing Documents, all maintenance, repair, replacement, management and operation of the Common Elements shall be the responsibility of the Association.
d. Common Expenses for the maintenance, repair, replacement, management and operation of the Common Elements shall be assessed and collected from the Owners in accordance with Section 6.
1.34. Limited Common Elements. The Limited Common Elements are those parts of the Common Elements reserved for the exclusive use of the Owners and Occupants of the Units to which they are allocated. The rights to the use and enjoyment of the Limited Common Elements are automatically conveyed with the conveyance of such Units. The Limited Common Elements are described and allocated to the Units, as follows:
a. Those items or areas designated as Limited Common Elements on the Plat or by the Act.
1.35. Annexation of Other Property. In addition to the Additional Property described in 1.21, other real property may be annexed to the common interest community as Units or Common Elements, or any combination thereof, and subjected to this Declaration, with the approval of (i) Owners (other than Declarant) of Units to which are allocated at least 67 percent of the votes in the Association and (ii) Declarant so long as Declarant owns any unsold Unit for sale.
SECTION 4. ASSOCIATION MEMBERSHIP; RIGHTS AND OBLIGATIONS
Membership in the Association, and the allocation to each Unit of a portion of the votes in the Association and a portion of the Common Expenses of the Association shall be governed by the following provisions:
1.36. Membership. Each Owner shall be a member of the Association by virtue of Unit ownership, and the membership shall be transferred with the conveyance of the Owner's interest in the Unit. An Owner's membership shall terminate when the Owner's ownership terminates. When more than one Person is an Owner of a Unit, all such Persons shall be members of the Association, but multiple ownership of a Unit shall not increase the voting rights allocated to such Unit nor authorize the division of the voting rights.
1.37. Voting and Common Expenses. Voting rights and Common Expense obligations are allocated equally among the Units, subject to Sections 1.50 and 1.53.
1.38. Appurtenant Rights and Obligations. The ownership of a Unit shall include the voting rights and Common Expense obligations described in Section 1.37. Said rights, obligations and interests, and the title to the Units, shall not be separated or conveyed separately, and any conveyance, encumbrance, judicial sale or other transfer of any allocated interest in a Unit, separate from the title to the Unit shall be void. The allocation of the rights, obligations and interests described in this Section may not be changed, except in accordance with the Governing Documents and the Act.
1.39. Authority to Vote. The Owner, or some natural person designated to act as proxy on behalf of the Owner, and who need not be an Owner, may cast the vote allocated to such Unit at meetings of the Association. However, if there are multiple Owners of a Unit, only the Owner or other Person designated pursuant to the provisions of the By-Laws may cast such vote. The voting rights of Owners are more fully described in Article III of the By-Laws.
SECTION 5. ADMINISTRATION
The administration and operation of the Association and the Property, including but not limited to, the acts required of the Association, shall be governed by the following provisions:
1.40. General. The operation and administration of the Association and the Property shall be governed by the Governing Documents, the Rules and Regulations, and the Act. The Association shall, subject to the rights of the Owners set forth in the Governing Documents and the Act, be responsible for the operation, management and control of the Property. The Association shall have all powers described in the Governing Documents, the Act and the statute under which the Association is incorporated. All power and authority of the Association shall be vested in the Board, unless action or approval by the individual Owners is specifically required by the Governing Documents or the Act. All references to the Association shall mean the Association acting through the Board unless specifically stated to the contrary.
1.41. Operational Purposes. The Association shall operate and manage the Property for the purposes of (i) administering and enforcing the covenants, restrictions, easements, charges and liens set forth in the Governing Documents and the Rules and Regulations, (ii) maintaining, repairing and replacing those portions of the Property for which it is responsible and (iii) preserving the value, and the architectural uniformity and character of the Property.
1.42. Binding Effect of Actions. All agreements and determinations made by the Association in accordance with the powers and voting rights established by the Governing Documents or the Act shall be binding upon all Owners and Occupants, and their lessees, guests, heirs, personal representatives, successors and assigns, and all secured parties as defined in the Act.
1.43. By-Laws. The Association shall have By-Laws. The By-Laws shall govern the operation and administration of the Association, and shall be binding on all Owners and Occupants.
1.44. Management. The Board may delegate to a manager or managing agent the management duties imposed upon the Association's officers and directors by the Governing Documents and the Act. However, such delegation shall not relieve the officers and directors of the ultimate responsibility for the performance of their duties as prescribed by the Governing Documents and by law.
1.45. Rules and Regulations. The Board shall have exclusive authority to approve and implement such reasonable Rules and Regulations as it deems necessary from time to time for the purpose of operating and administering the affairs of the Association and regulating the use of the Property; provided that the Rules and Regulations shall not be inconsistent with the Governing Documents or the Act. The inclusion in other parts of the Governing Documents of authority to approve Rules and Regulations shall be deemed to be in furtherance, and not in limitation, of the authority granted by this Section. New or amended Rules and Regulations shall be effective only after reasonable notice thereof has been given to the Owners.
1.46. Association Assets: Surplus Funds. All funds and real or personal property acquired by the Association shall be held and used for the benefit of the Owners for the purposes stated in the Governing Documents, Surplus funds remaining after payment of or provision for Common Expenses and reserves shall be credited against future assessments or added to reserves, as determined by the Board.
SECTION 6. ASSESSMENTS
1.47. General. Assessments shall be determined and assessed against the Units by the Board, in its discretion; subject to the requirements and procedures set forth in this Section 6, and the requirements of the By-Laws. Assessments shall include annual Assessments under Section 1.48, and may include Special Assessments under Section 1.49 and Limited Allocation Assessments under Section 1.50. Annual and Special Assessments shall be allocated among the Units equally, in accordance with the allocation formula set forth in Section 1.37. Limited Allocation Assessments under Section 1.50 shall be allocated to Units as set forth in that Section.
1.48. Annual Assessments. Annual Assessments shall be established and levied by the Board, subject to the limitations set forth hereafter. Each annual Assessment shall cover all of the anticipated Common Expenses of the Association for that year which are to be shared equally by all Units in accordance with the allocation set forth in Section 1.37. Annual Assessments shall be payable in equal monthly installments. Annual Assessments shall provide, among other things, for an adequate reserve fund for the maintenance, repair and replacement of the Common Elements and those parts of the Units for which the Association is responsible. Except for the variations authorized by Section 1.50, and except for premiums on insurance carried by the Association, the increase in the annual Assessment for any fiscal year shall not exceed the greater of (i) 5 percent of the previous years annual Assessment or (ii) the percentage increase in the National Bureau of Labor Statistics Consumer Price Index for the Minnesota Twin City Metropolitan Area (or comparable index if not available) for the most recent available year, multiplied times the total annual Assessment for the Association's previous year; unless the increase is approved by the vote of 67 percent of those Owners (other than Declarant) voting, in person or by proxy, at a meeting called for that purpose, or voting by mail. Notice of the meeting shall be sent to all Owners not less than 21 days nor more than 30 days in advance of the meeting. The foregoing restriction shall apply only during the period of Declarant control of the Association, as described in Section 17.
1.49. Special Assessments. In addition to annual Assessments, and subject to the limitations set forth hereafter, the Board may levy in any Assessment year a special Assessment against all Units equally in accordance with the allocation formula set forth in Section 1.37. Special assessments shall be used for the purpose of defraying in whole or in part the cost of any unforeseen and unbudgeted Common Expense. Notwithstanding the foregoing, any special Assessment shall be subject to approval by the vote of a 67 percent of the Owners voting, in person or by proxy, at a meeting called for that purpose, or voting by mail. Notice of the meeting shall be sent to all Owners not less than 21 days nor more than 30 days in advance of the meeting. The foregoing restriction shall apply only during the period of Declarant control of the Association, as described in Section 17.