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HomeMy WebLinkAboutDeclaration of Covenants, Condition, Restrictions & Easements 1110 IN IN I I 11 1111 Doc No T05623176 Certified, filed and/or recorded on Jun 28, 2019 12:00 PM Office of the Registrar of Titles Hennepin County, Minnesota Martin McCormick, Registrar of Titles Mark Chapin, County Auditor and Treasurer Deputy 26 Pkg ID 1838827C Document Recording Fee $46.00 Document Total $46.00 Existing Certs 1486789 This cover sheet is now a permanent part of the recorded document. r + 111111111111 11111E111111 Doc No A10672342 Certified, filed and/or recorded on Jun 28, 2019 12:00 PM Office of the County Recorder Hennepin County, Minnesota Martin McCormick, County Recorder Mark Chapin, County Auditor and Treasurer Deputy 26 Pkg ID 1838827C Document Recording Fee $46.00 Document Total $46.00 This cover sheet is now a permanent part of the recorded document. A- ORONO ORCHARD HILL DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS, AND PRIVATE DRIVEWAY EASEMENT & MAINTENANCE AGREEMENT THIS DECLARATION IS EXEMPT FROM THE PROVISIONS OF THE MINNESOTA COMMON INTEREST OWNERSHIP ACT, MINNESOTA STATUTES CHAPTER 515B, PURSUANT TO MINNESOTA STATUTES SECTION 515B.1-102 (e) (2). This Declaration of Covenants, Conditions, Restrictions, and Private Driveway Easements & Maintenance Agreement(this "Declaration") is made this 24 day of June, 2019, but effective as provided below, by Orono Orchard, LLC ("Developer"), a Minnesota limited liability company, and is based on the following facts: A. Developer is the fee owner of real property located in the City of Orono (the "City"), County of Hennepin (the "County"), and State of Minnesota, legally described as Lots 1 and 2, Block 1 ORONO ORCHARD HILL (the "Property"). B. Developer desires to establish and secure a non-exclusive, perpetual easement for ingress and egress as a shared driveway for the benefit of the Property, as depicted on Exhibit A (attached). C. Developer wishes to impose upon and subject the Property to certain covenants, conditions, restrictions and easements, for the maintenance of the shared driveway and for payment of the expenses of maintaining the driveway and easement area, for the benefit of the Property and all present and future Owners of any part thereof. NOW, THEREFORE, in consideration of the facts stated above, Developer hereby makes this Declaration and submits the Property to the covenants, conditions, restrictions and easements 1021479v5 set forth below, hereby declaring that this Declaration shall constitute covenants running with the land, and declaring that the Property and each portion thereof shall be owned, used, occupied and conveyed subject to the covenants, conditions, restrictions, easements, charges and liens set forth below, all of which shall be binding upon each Person owning or acquiring any right,title or interest therein, and their respective heirs, personal representatives, successors and assigns. ARTICLE I DEFINITIONS The following words, when used in this Declaration, shall have the following meanings: 1.1 "Committee": the Design Review Committee exercising the functions and powers described in Article VI below. 1.2 "Common Expenses": all expenditures made and liabilities incurred by an Owner of Lots 1 & 2 on behalf of the Owners of Lots 1 & 2. 1.3 "Developer": Orono Orchard, LLC, unless and until it assigns to another Person, by an instrument duly recorded in the office of the Registrar of Titles in and for Hennepin County, Minnesota, the rights of Developer under this Declaration, in which case "Developer" shall mean the owner from time to time of the rights of Developer under this Declaration. 1.4 "Lot": any of one of the numbered lots in the Plat; provided, however, that if the Additional Property has been subjected to this Declaration, "Lot" also may mean the Additional Property or any numbered lot in any plat that subdivides the Additional Property. 1.6 "Owner": one or more Persons who or which holds fee title to a Lot; provided, however, that if a Lot is being sold pursuant to a contract for deed, the contract purchaser(s) entitled to possession of the Lot shall be the Owner unless and until the contract for deed shall have been cancelled or otherwise shall have terminated. If more than one Person constitutes the 1021479v5 2 Owner of a Lot, all such persons shall decide between or among themselves how to vote in any vote of the Owners of the Lots, and the Owner of each Lot shall be entitled to only one vote for each Lot owned by that Owner. 1.7 "Person": a natural individual, corporation, limited liability company, partnership (whether general, limited or limited liability), trustee, or any other legal entity capable of holding title to real property in the State of Minnesota. 1.8 "Plat": the recorded plat of ORONO ORCHARD HILL, Hennepin County, Minnesota. 1.9 "Private Driveway": the driveway and other improvements now or hereafter located on and across Lot 1, for the benefit of Lot 1 and Lot 2 described in the Driveway Easement. 1.10 "Property": Lot 1 and Lot 2, ORONO ORCHARD HILL, Hennepin County, Minnesota. 1021479v5 3 ARTICLE II EASEMENTS AND SETBACKS 2.1 Driveway. Developer hereby declares and creates a perpetual, non-exclusive Driveway easement over Lot 1 of the Plat, for the benefit of and appurtenant of the Lots 1 & 2, benefiting the current and future Owner of said Lots, for use by the Owner and the guests and invitees of such Owner for pedestrian and vehicular ingress and egress, and underground utility purposes, between such Lot and Orono Orchard Road South as shown on the Plat. The above described easement also benefits any utility company or municipality providing utility services to one or more of the Lots. 2.2 Continuous Access. No Owner shall obstruct or interfere in any way whatsoever with the rights and privileges of the other Owner in the Driveway easement or the driveway thereon. If an Owner shall violate this paragraph, the other Owner shall have the right to enjoin the obstruction or interference and restore the Driveway easement to its condition prior to such interference or obstruction. The costs thereof, including reasonable attorney's fees, together with all costs and disbursements incurred in connection with prosecuting such action, shall be recoverable against the Owner found to have interfered or obstructed the Driveway easement. ARTICLE III COMMON EXPENSES 3.1 Common Driveway. The costs of maintaining, repairing and replacing the Private Driveway and any other improvements on the driveway easement, maintaining all storm water ponds and other storm water management facilities now or hereafter constructed in the common 1021479v5 4 driveway easement, and the costs incurred by the Lot Owners in otherwise performing its obligations under this Declaration, shall be Common Expenses to the owners of Lots 1 & 2. Such costs shall be shared equally between the owners of Lots 1 & 2. ARTICLE IV ASSESSMENTS 4.1 Creation of Lien and Personal Obligation of Owners. Each Owner, by accepting any deed or other instrument of conveyance to a Lot, whether or not it shall be so expressed in such deed or other instrument, is deemed to covenant and agree to pay to the annual expenses or charges, and special assessments for capital improvements and other Common Expenses which are incurred less frequently than annually by the Owners, such assessments to be established and collected as hereinafter provided. All annual and special assessments assessed against a Lot, together with interest, collection costs and reasonable attorney's fees, shall be a lien on the Lot, in favor of the other Lot Owner, from the due date of such assessment until paid in full. Each such assessment, together with interest, collection costs and reasonable attorney's fees, shall also be the personal obligation of the Owner of the Lot as of the due date of the assessment, and if more than one person is the Owner of the Lot, each such person shall be jointly and severally liable therefor. Such assessments shall be fixed, established and collected by the Lot Owner from time to time in the manner provided in this Article. 4.2 Purposes of Assessments. The assessments levied against the Lots shall be used exclusively to promote the recreation, health, safety and welfare of the Owners, to improve and maintain the Common Driveway Area and improvements, to maintain and repair any amenities I021479v5 5 located within the Common Driveway easement Area, and to pay other Common Driveway Easement Expenses. 4.3 Annual Assessment. The Owners shall fix the amount of annual assessments and the dates and methods of payment. 4.4 Special Assessment for Capital Improvements. Special assessments for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of a capital improvement shall be levied only with the assent of the Owners of the Lots. 4.5 Uniform Rate of Assessment. Both annual and special assessments shall be fixed at a uniform rate for all Lots, and may be collected on a monthly, quarterly or annual basis, as determined from time to time by the Owners. 4.6 Effect of Nonpayment of Assessments. Any assessment not paid within thirty (30) days after the due date shall bear interest from the due date until paid, at a rate equal to the lesser of the highest rate permitted by law, or eight percent (8%) per annum. The Owners may bring an action at law against the other Owner who has not timely paid an assessment for which such Owner is personally obligated (a"Defaulting Owner"), and/or foreclose the lien against the Lot owned by the Defaulting Owner,to collect any assessment owed by the Defaulting Owner. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Driveway Easement Area or abandonment of a Lot. A suit to recover a money judgment for unpaid assessments and expenses hereunder may be maintained without foreclosing or waiving the lien securing the same. 4.7 Lien for Assessments. All sums assessed to any Lot pursuant to this Article, together with interest thereon and other costs as provided herein, shall be secured by a lien 1021479v5 6 thereon in favor of the Owner. Such lien shall be superior to all other liens and encumbrances on such Lot except only for liens for general and special taxes, and the lien of any first mortgage on a Lot. All other Persons acquiring a lien on any Lot shall be deemed to have consented that such Person's lien shall be inferior to future liens for assessments as provided herein, whether or not such consent be specifically set forth in the instrument creating such lien. To evidence a lien for sums assessed pursuant to this Article, the Owner may prepare a written notice of lien, setting forth the amount of the assessment, the due date, the amount remaining unpaid, the name of the Defaulting Owner and a description of the Lot, and record the same in the office of the Registrar of Titles in and for Hennepin County, Minnesota. Such lien may be enforced by judicial foreclosure or by foreclosure by advertisement, in the same manner in which mortgages on real property may be foreclosed in Minnesota, and each current and future Owner, by becoming an Owner, hereby grants to the Owners a power of sale, to enable the Other Owner to enforce the lien hereby created by non judicial proceedings. In any such foreclosure, the Defaulting Owner shall be required to pay the costs and expenses of the Owner in collecting the assessments and/or enforcing the lien, all of which shall be secured by the lien being foreclosed. In order to cause the other Owner to discontinue any foreclosure or any other proceedings to collect any assessment and/or to enforce any lien granted pursuant to this Declaration, the Defaulting Owner shall be obligated to pay all assessments against such Owner's Lot which shall have become due as of the date of such payment, and all costs and expenses incurred by the Owner in collecting the assessments and/or enforcing such lien, including reasonable attorney's fees. 1021479v5 7 A release of notice of lien shall be executed by the Owner in recordable form, and may be recorded at the Defaulting Owner's expense, upon payment of all sums secured by a lien which has been the subject of a recorded notice of lien. The Owner, upon written request, shall report to any Person with a valid lien on or interest in a Lot, any assessments remaining unpaid for longer than ninety (90) days after the same shall have become due. 4.8 Continuing Liability. The sale or other transfer of a Lot shall not extinguish or otherwise impair the assessment lien, nor extinguish or impair the personal obligation of the selling Owner for any delinquent assessments and interest, costs and expenses, until the same shall have been paid in full. Notwithstanding the foregoing, the personal liability of any Owner to pay assessments and any related interest, costs and expenses shall apply only as to any such assessments, interest, costs and expenses which were due when the Owner became the Owner of the Lot, or which became due thereafter but prior to the date on which the Owner ceased to be the Owner of the Lot. 4.9 Governmental Assessments. In the event that the Owners fail to perform any of its obligations pursuant to this Declaration and such obligations were imposed by or for the benefit of the City, the County, or any other governmental or quasi-governmental entity, such governmental or quasi-governmental entity shall be entitled to pay and perform the obligations of the Owners in connection therewith and to levy, impose, enforce and collect the costs so paid or incurred by such entity by an equal assessment on each of the Lots,to the fullest extent permitted by law. 1021479v5 8 ARTICLE V GENERAL PROVISIONS 5.1 Duration. The covenants, conditions, restrictions and easements in this Declaration shall run with and bind the Property and shall inure to the benefit of and be enforceable by and against the Owner of each Lot, and their respective legal representatives, heirs, successors and assigns. The easements created pursuant to this Declaration shall be perpetual. Any provision of this Declaration expressly benefiting the City, the County, or any other governmental or quasi-governmental entity, shall be perpetual unless and until waived in writing by that entity. All other covenants, conditions, restrictions and reservations created by this Declaration shall continue for a term of thirty (30) years from the date of this Declaration, after which time the same shall expire except to the extent preserved in a duly recorded instrument, signed by the Owners of both Lots, agreeing to extend the duration of this Declaration. 5.2 Enforcement. Each Owner(including Developer so long as Developer is the Owner of at least one of the Lots) shall have the right to enforce, by any proceeding at law or in equity, all easements, covenants, conditions, restrictions and charges now or hereafter imposed by the provisions of this Declaration, including the collection of any Owner's pro rata share of Common Expenses. The City, the County, and any other governmental or quasi-governmental entity, shall have the right to enforce by any proceeding at law or in equity all easements, covenants, conditions and restrictions created by this Declaration expressly for the benefit of such entity. In view of the purposes of this Declaration and the unique characteristics of the Property, it is acknowledged that money damages to the Owners, or any other entity in the event of a violation of any of the terms hereof would be an inadequate remedy, due to the irreparable 1021479v5 9 and immeasurable harm done thereby. Accordingly each Owner (including Developer, so long as Developer is the Owner of at least one of the Lots) and any other entity shall have the right, in addition to any other remedies available at law or in equity, to apply for and receive from any court of competent jurisdiction in the State of Minnesota, equitable relief by way of restraining order, prohibitory or mandatory injunction, or other relief, to prevent and enjoin a breach of the terms of this Declaration, or by way of specific performance to enforce performance of the terms of this Declaration. If successful, the party seeking enforcement of the terms hereof shall be entitled to recover from the party violating the terms of this Declaration reimbursement for all costs and expenses of litigation, including reasonable attorney's fees, witness fees, service of process fees, deposition costs, expert witness fees, and any other costs incurred in securing such relief. 5.3 Severability. Invalidation of any provision hereof by judgment or court order shall not affect any of the other provisions, which shall remain in full force and effect. 5.4 Amendment. This Declaration may be amended by an instrument executed by the Owners of Lots 1 and 2; provided, however, that: no part of the Property may be deprived of any easement granted pursuant to this Declaration without the written consent of each Owner and lienholder of that part of the Property. IN WITNESS WHEREOF, Developer has caused this Declaration to be duly executed on the day and year first above written. 1021479v5 10 r a DEVELOP '. ORONO1J&CHARD, LLC By air gpr S. Gustafson ice-President STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this 2'I' day of 1I—• , 2019, by Jeffrey S. Gustafson, the Vice-President of Orono Orchard, LLC, a Minnesota limited liability company, on behalf of the limited liability company.OA k uk) NA. akfc71,—. CHRISTINE M.MATTSON NOTARY PUBLIC ,,:� NOTARY PUBLIC-MINNESOTA My Commission Expires Jan.31,2024 DRAFTED BY: CAMPBELL KNUTSON Professional Association Grand Oak Office Center I 860 Blue Gentian Road, Suite 290 Eagan, MN 55121 Telephone: (651)452-5000 1021479v5 1 1 0 —1 Q / 1 O / O' / / / POINT OF BEGINNING Q / -1 S 89°54'04"W Q / /,..--.1-9r,;„4-- so 0o _ PROPOSED DRIVEWAY EASEMENT / 5 -2 -- 0 / / O OVER LOT 1, BLOCK 1, ORONO ORCHARD HILLS, / I , FOR INGRESS AND EGRESS FOR BENEFIT OF ` / 1 / LOT Z BLOCK 1, ORONO ORCHARD HILLS N J " ' ' I PGj o cL OVER that part of Lot 1 , Block 1, ORONO / // fr)N.. -O ORCHARD HILLS, lying 12.5 feet on each CE side of a centerline described as �, k� // Q� zo follows; commencing at the southeast a� / �� 7. corner of said Lot 1 ; also being the n northeast corner of Lot 2, Block 1,ORONO // Q� W Y ORCHARD HILLS, thence North 0 degrees 05 3 Li, minutes 56 seconds West, along the east W L 0 T 0�/// �Q m line of said Lot 1 , a distance of 343.38 N7 .9;./ feet to the point of beginning; thence °hh/ // nv N o � South 89 degrees 54 minutes 04 seconds o West a distance of 90 feet; thence South �t // Q� 0 68 degrees 33 minutes 19 seconds West a / / 2 r distance of 102.54 feet; thence South 38 /_ _ _ _ O degrees 54 minutes 39 seconds West a / Z distance of 340.41 feet to a point on — CC the North line of said Lot 2, distant / / O 401.95 from the northeast corner of said . / Lot 2 and there terminating. 1=— THE SE CORNER OF LOT 1, — 70:-0:0-0Z-R-D—H-ILLS 401.95BLOC( 1, ORGNO ORCHARD HILLSTHE NORI7 2 — -- __ \ BLOCK1 —— \ L 0 T THE NE CORNER OF LOT 2, - _ _ - t - BLOCK 1, ORONO ORCHARD HILLS