2025-08-08 Cottages of Albertville Two Association Amendment to Declaration August 8, 2025
RE: Cottages of Albertville Two Associaiton request to Albertville City Council - Intended Use amendment to be
put on City agenda
TO WHOM IT CONCERNS:
Currently, all units in the 55+ community of Cottages of Albertville Two Association are, and have always been,
owner occupied.
However, from time to time, a question has arisen due to confusion over the intent of the original developer's
agreement.
The City of Albertville Planned Unit Development Agreement for Cottages of Albertville Two, signed by the City
and Developer on May 5, 1999, in Section 3A on page 5 titled Intended Use of Subdivision Lots states:
"A. It is the Developer's and City's intent that 16 owner-occupied attached single family quad homes and 4
owner-occupied attached single family duplex homes(for a total of 20 dwelling units)
be constructed on the lots in Said Plat. Developer agrees that it shall not construct any units other than
said owner-occupied single-family attached dwelling units on the land in Said Plat,
and all such units shall be constructed in the approximate location as shown on the attached Exhibit C."
Page 4 of same Cottages 2 Development Agreement (which seems to have some outline numbering issues)also
refers to: "ii. The owner occupied development and the renter occupied development ..." seeming to indicate that
one allows rentals and the other does not.
A letter from Mike Couri dated OCTOBER 29, 2010 also refers to paragraph 3A of the Development Agreement
that the homes all be owner occupied and thus prohibits rentals in the Cottages of Albertville Two plat.
The conflict arises from Section 7.5 on page 12 of the Declaration Of Common Interest Community No. 30
Planned Community for Cottages of Albertville Two indicating that"Leasing of units shall be allowed..."
The Board of Cottages 2 Association would like to amend the Development Agreement to clarify that all of the
properties in the Cottages of Albertville Two plat must be owner occupied. We would like to appear before the
City Council at its next meeting to discuss the possibility of amending the Development Agreement to clarify this
issue. Thank you.
Sincerely,
Beverly J. Madsen, Treasurer
Cottages of Albertville Two Association
August 5, 2025
City of Albertville
ATTN: Jillian Hendrickson & Adam Nafstad SENT VIA CERTIFIED MAIL
5959 Main Ave
Albertville, MN
55301
Re: Cottages of Albertville Two
Consent to Amendment to Declaration
SPTS File No. 2025-0192
To Whom It Concerns:
Attached please find an Amendment to the Declaration of Cottages of Albertville Two for your
review, and a Consent to Amended Declaration form for your signature. The City's consent is
required pursuant to Section 17(iv) of the Declaration. A copy of the Declaration is included with
this letter.
Please, review the Amendment to the Declaration and sign and date the document in the presence
of a notary public in order to formally provide your consent to the proposed amendment. Once
completed, please return to us via USPS in the included prepaid envelope.
If you have any questions, comments or concerns, please do not hesitate to contact me via email
or phone at mattsrt'l;ssmnlaw.com (952-404-2100).
Very truly yours,
SANFORD, PIERSON,
THONE & STREAN, PLC
Matthew W. Simenstad
Cc: Grayson Leder
Enc: Amendment to Declaration; Declaration of Cottages of Albertville
COMMON INTEREST COMMUNITY NO.30
COTTAGES OF ALBERTVILLE TWO
CONSENT BY CITY OF ALBERTVILLE
The City of Albertville (the "City"), hereby consents to and approves the attached
Amendment to Declaration of Cottages of Albertville Two.
IN WITNESS WHEREOF, the City has caused this Consent to be executed on the i Q day of
l4- (LS 2025.
BY CITY OF ALBERTVILLE
By: `—Z l/
Jillia ndrickson Its yor
By:
Adam afstad Its Administrator
STATE OF MINNESOTA )
) ss
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this P S day of Au44 , 2025 by Jillian
Hendrickson and Adam Nafstad.
Signature of Notary Public or other Official
THIS INSTRUMENT WAS DRAFTED BY:
Sanford,Pierson,Thone&Strean,P.L.C. ,q°s�7-`0 KF STINE ANN LUEDKE
1905 East Wayzata Boulevard vOTA RY"PUELr^
Suite 220 14-.*. m M,:N E OT•A.
Wayzata,MN 55391 Er4)..�=.;31i,ry31.2c231'
952-404-2100 rr��.-�`�" t`=""
COMMON INTEREST COMMUNITY NO.30
COTTAGES OF ALBERTVILLE TWO
AMENDMENT TO DECLARATION
WHEREAS, this Amendment to Declaration of Cottages of Albertville Two is made, effective
on the date of signature hereof, by Cottages of Albertville Two Association, a Minnesota
nonprofit corporation(the"Association"), with the approval of at least sixty-seven percent(67%)
of the votes in the Association;
WHEREAS, the Association, with approval of at least sixty-seven percent(67%)of the votes in
the Association, hereby makes this Amendment to the Declaration, and all persons or entities,
and their heirs,personal representatives, successor and assigns, having or acquiring any interest
in the Property shall be bound hereby;
NOW, THEREFORE,the Amendment to Declaration of Cottages of Albertville Two executed
the 4'h day of January, 2018 ("2018 Amendment"), is modified as follows:
1. The 2018 Amendment shall not be construed as a restatement of the Declaration
in their entirety. Rather, it shall be construed solely as an Amendment to the
existing Declaration.
2. Section 7.7(B)(i)of the Declaration as amended in 2000 shall be modified to read
as follows:
(i)an animal kept solely as an"assistance animal" as that term is defined under
the Fair Housing Act;
3. The Association reaffirms its adherence to the Declaration, as amended in 2000
and 2018.
IN WITNESS WHEREOF, the undersigned has executed this Amendment this '7 day of
1)(16 t,'>i, 2025, effective upon the date of recording of this Amendment.
(75
COTTAGES OF ALBERTVILLE
TWO ASSOCIATION
By: Timm Weiss
Its: President
WRITTEN ACTION
OF THE DIRECTORS OF
COTTAGES OF ALBERTVILLE TWO,ASSOCIATION
ADOPTED WITHOUT MEETING
The undersigned Board of Directors of the Cottages of Albertville Two, Association, a
Minnesota nonprofit corporation, do hereby adopt the following resolutions in writing pursuant to
Minnesota Statutes, Section 317A.239.
1. Amendment to Declaration
RESOLVED:
The proposed Amendment to Declaration, which clarifies and modifies the 2000
Amendment and the 2018 Amendment,prepared pursuant to Minnesota Statutes 515B.2-
18, dated 9-y- '2025 and signed by Timm Weiss as President of the Board of Directors
is hereby approved. All necessary and required votes of the owners to approve the
Amendment to Declaration have been submitted
2. Amendment to Bylaws
RESOLVED:
The proposed Amendment to Bylaws,which clarifies and modifies the 2018 Amendment,
is hereby approved.All necessary and required votes of the owners to approve the
Amendment to Bylaws have been submitted
3. Rules and Regulations
RESOLVED:
The updated Rules and Regulations amended pursuant to Minnesota Statutes 515B.3-102
are hereby approved.
Dated and effective: 8- '/ , 2025.
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COTTAGES OF ALBERTVILLE TWO
COMMON INTEREST COMMUNITY NO.30
Planned Community
FIRST AMENDMENT TO DECLARATION
This First Amendment to Declaration of Cottages of Albertville Two (the "Amendment") is
made, effective on the date of recording hereof, by Cottages of Albertville Two, Association, a
Minnesota nonprofit corporation(the"Association"),with the approval of at least sixty-seven percent
(67%)of the votes in the Association, and of the City of Albertville (the"City").
RECITALS
WHEREAS,the Declaration of Cottages of Albertville Two(the"Declaration")was recorded •
in the office of the County Recorder in and for Wright County,Minnesota as Document No. 681119.
The terms used in this Amendment shall have the same meaning as they have in the Declaration,and
WHEREAS, the Declaration established a plan for the use, operation, maintenance and
preservation of the Property,and
WHEREAS,the Association,with the approval of the Owners and the City, desires to amend
the Declaration in accordance with the terms of this Amendment.
THEREFORE,the Association,with approva;l of at least sixty-seven percent(67%)of the votes
in the Association,and with approval of the City,hereby makes this Amendment,and declares that the
Property shall be held, transferred, sold, conveyed, used and occupied subject to the covenants,
restrictions,easements,charges and liens set forth in the Declaration,as amended by this Amendment,
and that all persons or entities,and their heirs,personal representatives,successors and assigns,having
or acquiring any interest in the Property shall be bound hereby.
727719
ODMA\GRP WISEWELLAW MPLS MPLS Doc Ltbruy 160192 1
•
AMENDMENT
Section 7.7 of the Declaration is restated in its entirety,to read as follows:
A. No animal may be bred,or kept or maintained for any purposes,anywhere on
the Property. The word"animal"as used in this Section 7.7 shall be construed
in its broadest sense and shall include all living creatures except humans.
B. The restrictions set forth in Section 7.7.A shall not apply to the following:(i)an
animal kept solely as a statutorily authorized "service animal" used by a
handicapped Person; and (ii) an animal owned by an Owner and kept at the
Property prior to the date of recording of this Amendment,which animal would
otherwise have conformed to the restrictions set forth in Section 7.7 of the
Declaration that existed prior to this Amendment(a"Conforming Animal"). If
a Conforming Animal dies,the owner(s)of that Conforming Animal shall not
keep anywhere on the Property an animal to take the place of the Conforming
Animal. Notwithstanding the foregoing,the Association shall have the authority
and discretion to allow an animal to be kept on the Property for a limited period
of time for emergency purposes.
C. Rules and Regulations may be adopted by the Association to regulate animals
kept on the Property, including,but not limited to the type of animals allowed
to be kept on the Property pursuant to Section 7.7.B.
Except as modified by this Amendment,the Declaration shall remain in full force and effect.
IN WITNESS WHEREOF,the undersigned has executed this Amendment this Sfk day of
t r� b k c- ,2000,effective upon the date of recording of this Amendment.
COTTAGES OF ALBERTVILLE TWO,
ASSOCIATION
By:
Title: Re /Dzyu7--
STATE OF MINNESOTA )
) ss.
COUNTY OF W r i�1`�- )
•
The foregoing instrument was acknowledged before me this Sfh day of WooPal ,
2000, by R0 h Kit , the Pres:a 4, of Cottages of
Albertville Two,Association,a Minnesota nonprofit corporation, on behalf of the corporation.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
Fredrick R.Krietzman,Esq. HAAAAmAmAh .
FELHABER,LARSON,FENLON&VOGT,P.A. SHARON L.LEINTZ
601 Second Avenue South,Suite 4200 4: my N°Twf�sOTA
Minneapolis,Minnesota 55402-4302
slosalrs,a,�oos
(612)373-8418 p
727'719
ODMAAGRPWISSFELLAW MPLS MPL9 Doc Library.00192 1 -2-
AFFIDAVIT OF PRESIDENT
STATE OF MINNESOTA )
) ss.
COUNTY OF bU `\ )
The undersigned, President of the Cottages of Albertville Two, Association, a Minnesota
nonprofit corporation, being first duly sworn on oath, hereby swears and certifies, pursuant to the
applicable provisions ofthe Declaration of Cottages of Albertville Two(the"Declaration"),that the First
Amendment to Declaration of Cottages of Albertville Two to which this Affidavit is attached has been
duly approved by a vote of the Board of Directors of the Association,and by the Owners of the Units
in the common interest community,in compliance with the requirements of the Declaration.
President
STATE OF MINNESOTA )
) ss.
COUNTY OF W M k- )
Subscribed and sworn to before me this 5 f day of 1Ucl U e s. b d , 2000, by
Rd h k t c C.(c < , the President of Cottages of Albertville Two,
Association,a Minnesota nonprofit corporation,on behalf of said corporation.
NAAAAAAAAmovommi
• ; SHAwor msorn �d dC.C�ir1J e' �P J-
IN ,-l14006 1
Notary Public
r •
THIS INSTRUMENT WAS DRAFTED BY:
Fredrick R.Krietzman,Esq.
FELHABER,LARSON,FENLON&VOGT,P.A.
601 Second Avenue South, Suite 4200
Minneapolis,Minnesota 55402-4302
(612)373-8418
172"7'719
:ODMA GRPWISEIFELLAW MPLS MPLS Doc Gbror,1601921 -3-
COMMON INTEREST COMMUNITY NO.30
COTTAGES OF ALBERTVILLE TWO
CONSENT BY CITY OF ALBERTVILLE
The City of Albertville (the "City"), hereby consents to and approves the attached First
Amendment to Declaration of Cottages of AIbertville Two.
IN WITNESS WHEREOF,the City has caused this Consent to be executed on the WO 74 day
,200 b
CITY BERTVILLE
B
It yor
Its //LC
City A ministrator
STATE OF MINNESOTA)
)ss. •
COUNTY OF 1444,4 f )
The foregoing instrument was acknowledged before me this .20A, day of A vl `1Y. ,200k
by .7 4n Obo„ and L,,/a Garb
the Mayor and City Administrator,respectively, of the City of Albertville,on behalf of the City.
AL,/(Ct,
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
Fredrick R.Krietzman,Esq. MICHAEL C.COURI
FELHABER,CARBON,FENLON&VOGT,P.A. {.
NOTARY PuEat;C-MINNESOTA
601 Second Avenue South, Suite 4200 My Comm.Exp.Jan.al,2005
Minneapolis,Minnesota 55402-4302
(612)373-8418
727719
.ODMAIGRPW 1SEWELLAW.MPLS MPLS Doc Library•1601921
DECLARATION
OF
COMMON INTEREST COMMUNITY NO. 30
Planned Community '
COTTAGES OF ALBEIZTVILLE TWO
,1 !i
COTTAGES OF ALBERTVILLE TWO
DECLARATION TABLE OF CONTENTS
SECTION 1 DEFINITIONS .1
SECTION 2 DESCRIPTION OF UNITS AND APPURTENANCES • 3
SECTION 3 COMMON ELEMENTS AND LIMITED COMMON ELEMENTS 4
SECTION 4 ASSOCIATION MEMBERSHIP: RIGHTS AND OBLIGATIONS 5
SECTION 5 ADMINISTRATION 6
SECTION 6 ASSESSMENTS FOR COMMON EXPENSES ` 7
SECTION 7 RESTRICTIONS ON USE OF PROPERTY. 11
SECTION 8 ARCHITECTURAL CONTROL 14
SECTION 9 • MAINTENANCE 15
SECTION 10 PARTY WALLS 16
SECTION 11 INSURANCE 17
SECTION 12 RECONSTRUCTION,CONDEMNATION AND EMINENT
DOMAIN 20
SECTION 13 EASEMENTS 20
SECTION 14 COMPLIANCE AND REMEDIES 21
SECTION 15 SPECIAL DECLARANT RIGHTS 24
SECTION 16 RIGHTS TO RELOCATE UNIT BOUNDARIES AND ALTER
UNIT 25
SECTION 17 AMENDMENTS 26
SECTION 18 RIGHTS OF ELIGIBLE MORTGAGEES 26
SECTION 19 RIGHTS OF THE CITY 29
SECTION 20 MISCELLANEOUS 29
COMMON INTEREST COMMUNITY NO.30
Planned Community
COTTAGES OF ALBERTVILLE TWO
DECLARATION
This Declaration is made in the County of Wright,of Minnesota,on this day of May,
1999, by COTTAGES OF ALBERTVILLE, LLC, a Minnesota limited liability company (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 Cottages of
Albertville Two, a planned community: .
• WHEREAS, Declarant*is the owner of certain real property located in Wright County,
Minnesota,legally described in Exhibit"A"attached hereto and Declarant desires to submit said real
property and all improvements thereon(collective the 'Property")to the Act; 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 resident
Owners and Occupants, and for the purpose of preserving the value; the structural quality and the
original architectural and aesthetic character,of the Property;and
WHEREAS, the Property is not subject to an ordinance referred to in Section 515B.1-106
of the Act, governing conversions to common interest ownership and is not subject to a master
association as defined in the Act:
THEREFORE, Declarant makes the Declaration and submits the Property to the Act as a
• planned community under the name"Cottages of Albertville Two ",consisting of the Units referred
to in Article II,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):
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1.1 "Act" shall mean the Minnesota Common Interest Ownership, Minnesota Statute
Chapter 515B.
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1.2 "Association" shall mean the Cottages of Albertville Two,Association, a nonprofit
corporation which has been created purstiant to Chapter 317A of the laws of the State of Minnesota
and Minnesota Statutes Section 515B.3-101, whose members consist of all Owners as defined
herein. .
1.3 "Board" shall mean the Board of Directors of the Association as provided for in the
By-Laws.
1.4 "City" shall mean the City of Albertville.
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, without
limitation, allocations to reserves and those items specifically 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 "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.
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1.12 "Occupant" shall mean any person or persons,other than an Owner,in possession
of or residing in a Unit.
1.13 "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.
1.14 "Party Wall" shall mean the shared wall between two Dwellings.
1.15 "Person" shall mean a natural individual, corporation, limited liability company,
partnership,trustee or other legal entity capable of holding title to real property';
1.16 "Plat" shall mean the recorded plat depicting the Property pursuant to the
requirements of Section 515A.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. -
1.17 "Property"shall mean all of the real property submitted to this Declaration, including
the Dwellings and all other structures and improvements located thereon now or in the future. The
property as of the date of this Declaration is legally described in Exhibit"A" attached hereto.
1.18 "Rules and Regulations" shall mean the Rules and Regulations of the Association
as approved from time to time pursuant to Section 5.6.
1.19 "Unit" shall mean any platted lot subject to this Declaration upon which a Dwelling
is located or intended to be located, as shown on the Plat,including all improvements thereon, but
excluding the Common Elements.
Any terms used in the Governing Documents and defined in the Act and not in this Section,
shall have the meaning set forth in the Act.
SECTION 2
DESCRIPTION OF UNITS AND APPURTENANCES
2.1 Units. There are 20 Units, all of which are restricted exclusively to residential use.
Each Unit constitutes a separate parcel of real estate. No additional Units may be created by the
subdivision or conversion of Units pursuant to Section 51513.2.112 of the Act. The Unit identifiers
and locations of the Units are as shown on the Plat,which is incorporated herein by reference, and
a schedule of Units is set forth on Exhibit."A". The Unit identifier for a unit shall be its lot and
block numbers and the subdivision name.
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2.2 Unit Boundaries. The front, rear and side boundaries of each Unit shall be the
boundary lines of the platted lot upon which the Dwelling is located or intended to be located as
shown on the Plat. The Units shall have no upper or lower boundaries. Subject to this Section 2 and
Section 3.2, all spaces, walls and other improvements within the boundaries of a Unit are a part of
the Unit.
2.3 Access Easements. Each Unit shall be the beneficiary of an appurtenant easement
for access to a public street or highway on or across the Common Elements as shown on the Plat,
subject to any restrictions set forth in the Declaration.
2.4 Use and Enjoyment Easements. Each Unit shall be the beneficiary,of 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
Declaration.
2.5 Utility and Maintenance Easements. Each Unit shall be subject to and shall be the
beneficiary of appurtenant easements for all services and utilities servicing:the Units and the
Common Elements and for maintenance,repair and replacement as described in Section 13.
2.6 Encroachment Easements. Each Unit shall be subject to and shall be the beneficiary
of the appurtenant easements for encroachments as described in Section 13.
2.7 •Declarant's Easements. Declarant shall have and be the beneficiary of easements for
construction and sales activities as described in Section 15.5.
2.8 Recorded Easements. The Property shall be subject to such other easements as may
be recorded against it or otherwise shown on the Plat.
2.9 Easements are Appurtenant. All easements and similar rights burdening or benefiting
a Unit or any other part of the Property shall be appurtenant thereto and shall be permanent,subject
only to termination in accordance with the Act or the terms of the easement. Any recorded easement
benefiting or burdening the Property'shall be construed in a manner consistent with, and not in
conflict with,the easements created by this Declaration.
2.10 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.
SECTION 3
COMMON ELEMENTS AND LIMITED COMMON ELEMENTS
3.1 Common Elements. The Common Elements and their characteristics are as follows:
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A. All of the Property not included within the Units constitutes Common
Elements. The Common Elements include •those parts of the Property described in
Exhibit "B" or designated as Common Elements 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 certain easements as described in
Section 2 and to the rights of Owners and Occupants in Limited Common Elements
appurtenant to their Units.
•C. Subject to Sections 5, 6 and 9,• all maintenance, repair, replacement,
management and operation of the Common Elements shall be the responsibility of the
Association.
D. Common Expenses for the maintenance,repair,replacement,management and
operation of the Common Elements shall be assessed and collected from the Owners in
accordance with Section 6.
3.2 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 and the rights to the use and enjoyment thereof are automatically conveyed '
with the conveyance of such Units. The Limited.Common Elements are described and allocated to
the Units as follows:
A. Chutes,flues,ducts,pipes,wires,conduit or other utility installations,bearing
• walls, bearing columns, or any other components or fixtures lying partially within and
partially outside the boundaries of a Unit,and serving only that Unit, are allocated to the Unit
they serve. Any portion of such installations serving or affecting the function of more than
one Unit or any portion of the Common Elements is a part of the Common Elements, but is
not a Limited Common Element.
B. Improvements such as decks,patios,balconies, shutters, awnings,window
boxes, doorsteps, stoops,perimeter doors and windows,constructed as part of the original
construction to serve a single Unit, and authorized replacements and modifications thereof,
if located outside the Unit's boundaries,are Limited Common Elements allocated exclusively.
to that Unit:
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:
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4.1 Membership. Each Owner shall be a member of the Association by virtue of Unit
ownership and,the membership shall be transferred with the conveyance of the Owner's interest in
the Unit. An Owner's membership shall terminate when the Owner's ownership terminates. When
more than one Person is an Owner of a Unit,all such Persons shall be members of the Association,
but multiple ownership of a Unit shall not increase the voting rights allocated to such Unit nor
authorize the division of the voting rights.
4.2 Voting and Common Expenses. Voting rights and Common Expense obligations are
allocated equally among the Units; except that special allocations of Common Expenses shall be
permitted as provided in Section 6.1.
4.3 Appurtenant Rights and Obligations. The ownership of a Unit shall include the
voting rights and Common Expense obligations described in Section 4.2: Said rights, obligations
and interests and the title to the Units, shall not be separated or conveyed separately. The allocation
of the rights, obligations and interests described in this Section may not be changed, except in
accordance with the Governing Documents and the Act.
4.4 Authority to Vote. The Owner,or some natural person designed to act as proxy on
behalf of the Owner and who need not be an Owner, may cast the vote allocated.to such Unit at
meetings of the Association;provided,that if there are multiple Owners of a Unit, only the Owner
or other Person designated pursuant to the provisions of the By-Laws may cast such vote. The
voting rights of Owners are more fully described in Section 3 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:
5.1 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 it is
incorporated. All power and authority of the Association shall be vested in the Board unless action
or approval by the individual Owners is specifically required by the Governing Documents or the
Act. All references td the Association shall mean the Association acting through the Board unless
specifically stated to the contrary.
5.2 Operational Purposes: The Association shall operate and manage the Property for
the purposes of(i)administering and enforcing the,covenants,restrictions,easements,charges and
liens set forth in the Governing Documents and the Rules and Regulations,(ii)maintaining,repairing
and replacing those portions of the Property for which it is responsible,and(iii)preserving the value
and architectural uniformity and character of the Property.
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5.3 Binding Effect of Actions. ' All agreements and determinations made by the
Association in accordance with the powers and voting rights established by the Governing
Documents or the Act shall be binding upon all Owners and Occupants, and their lessees, guests,
heirs,personal representatives,successors and assigns,and all secured parties as defined in the Act.
5.4 By-Laws. The Association shall have By-Laws. The By-Laws and any amendments
thereto shall govern the operation and administration of the Association.
5.5 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;provided, however, that such delegation shall not relieve the officers and
directors of the ultimate responsibility for the performance of their duties as prescribed by the
Governing Documents and by law.
5.6 Rules and Regulations. The Board shall have 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 hot be inconsistent with the Governing
Documents or the Act. The inclusion in other parts of the Governing Documents of authority to
approve Rules and Regulations shall be deemed to be in furtherance, and not in limitation, of the
authority granted by this Section. New or amended Rules and Regulations shall be effective only
after reasonable notice thereof has been given to the Owners.
5.7 Association Assets: Surplus Funds.. All funds and real or personal property acquired
by the Association shall be held and used for the benefit of the Owners for the purposes stated in the
Governing Documents. Surplus funds remaining after,payment of.or provision. for Common
Expenses and reserves shall be credited against future assessments or added:to reserves, as
determined by the Board.
SECTION 6
ASSESSMENTS FOR,COMMON EXPENSES
6.1 General. Assessments for Common Expenses shall be determined and assessed
against the Units by the Board,in its discretion;subject to the limitations set forth in Section 6.2 and
6.3,and the requirements of the By-Laws. Assessments for Common Expenses shall include annual
assessments and may include special assessments::Assessments shall be allocated among the Units
according to the Common Expense allocations set forth in Section 4.2, subject to the following
qualifications:'
A. Any Common Expense associated with the maintenance, repair or
replacement of a Limited Common Element undertaken by the Association may be assessed
exclusively against the Unit or Units to which that Limited Common Element is assigned,
on the basis of(i) equality, (ii) square footage of the area being maintained, repaired or
replaced, or(iii)the actual cost incurred with respect to each Unit.
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B. Any Common Expense or portion thereof benefiting fewer than all of the
Units may be assessed exclusively against the Units benefited, on the basis of(i) equality,
(ii)square footage of the area being maintained,repaired or replaced,or(iii) the actual cost
incurred with respect to each Unit. •
C. The costs of insurance may be assessed in proportion to value, risk or
coverage and the costs of utilities may be assessed in proportion to usage.
D. Reasonable attorney's fees and other costs of incurred by the Association in
connection with(i)the collection of assessments, and(ii)the enforcement of the Governing
Documents, the Act or the Rules and Regulations, against an Owner or Occupant or their
guests,may be assessed against the Owner's Unit.
E. Fees,charges,late charges,fines and interest may be assessed as provided in
Section 14.
F. Assessments levied under Section 515B.3-1 16 of the Act to pay a judgment
against the Association may be levied only against the Units existing at the time the
judgment was entered, in proportion to their Common Expense liabilities.
G. If any damage to the Common Elements or another Unit is caused by the act
or omission of any Owner or Occupant, or their guests,the Association may assess the costs
of repairing the damage exclusively against the Owner's Unit to the extent not covered by
insurance.
H. If any installment of an assessment becomes more than thirty (30) days past
due,then the Association may, upon ten(10)days written notice of the Owner,declare the
entire amount of the assessment immediately due and payable in full.
I. If Common Expense liabilities are reallocated for any purpose authorized by
the Act, Common Expense assessments and any installment thereof not yet due shall be
recalculated in accordance with the reallocated Common Expense liabilities.
J. Assessments under Subsections 6.1 A-H shall not be considered special
assessments as described in Section 6.3.
6.2 Annual Assessments. Annual assessments shall be established and levied by the.
Board,subject only to the limitations set forth in Section 6.2 and 6.3. Each annual assessment shall
cover all of the anticipated Common Expenses of the Association for that year. Annual assessments
shall provide,among other things,for contributions to a separate reserve fund sufficient to cover the
periodic cost of maintenance,repair and replacement of the Common Elements and those parts of
the Units for which the Association is responsible.
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A. Until a Common Expense assessment is levied, Declarant shall pay all
accrued expenses of the common interest community.
B. After a Common Expense assessment is levied, the annual assessment may
be subsequently increased by the Board, subject to Section 6.2 C.
C. Until the termination of the period of Declarant control described in
Section 15.7,the increase in the annual assessment for any year shall not exceed the greater
of(i)the increase in the U.S. Department of Labor Revised Consumer Price Index for Urban
Wage Earners and Clerical Workers for All Items for the prior year,or(ii)five percent(5%)
of the total annual assessment for the Association's previous fiscal year,unless such increase
is approved by the vote of a majority of those Owners voting, in person or by proxy, at a
meeting called for that purpose. Written notice of the meeting shall be sent to all Owners not
less than twenty-one (21) days nor more than thirty (30)days in advance of the meeting.
6.3 Special Assessments. In addition to annual assessments and subject to the limitations
set forth hereafter,the Board may levy in any assessment year a special assessment against all Units
for the purpose of defraying in whole or in part (i) the cost of any unforeseen or unbudgeted
Common Expense,(ii)general or specific reserves for maintenance, repair or replacement, and(iii)
the maintenance,repair or replacement of any part of the Property and any fixtures or other property
related thereto. Notwithstanding the foregoing,any special assessment shall be subject to approval
by the vote of a majority of those Owners voting,in person or by proxy,at a meeting called for that
purpose. Written notice of the meeting shall be sent to all Owners not less than twenty-one(21)days
nor more than thirty(30) days in advance of the meeting.
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6.4 Working Capital Fund. Declarant shall establish a working capital fund to meet
unforeseen expenditures or to purchase additional equipment or services during the period when
Declarant is conducting its sales activities. There shall be contributed on a one-time basis for each
Unit sold by Declarant an amount equal to two(2)months installments of the estimated Common
Expense assessment for the Unit being conveyed. The contribution to the working capital fund may
be paid either at the time of closing of sale of the Unit or when control of the.Association is
transferred to the Owners upon termination of the period of Declarant control. The amounts paid
into this fund are in addition to the regular monthly installments of assessments. The funds shall be
deposited into the Association's account and Declarant may not use the funds to defray any of its
expenses, reserve contributions or construction costs or to make up any budget deficit while
Declarant is in control of the Association. However,upon closing of an unsold:Unit,Declarant may
reimburse itself from funds collected at the closing for funds which it contributed to the working
capital fund with respect to that Unit.
6.5 Liability of Owners for.Assessments. The obligation of an Owner to pay assessments
shall commence at the later of(i)the time at which the Owner acquires title to the Unit, or(ii) the
due date of the.first assessment levied by the Board,subject to the alternative assessment program
described in Section 6.6. The Owner at the time an assessment is payable with respect to the Unit
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shall be personally liable for the share of the Common Expenses assessed against such Unit. Such
liability shall be joint and several where there are multiple Owners of the Unit. The liability is
absolute and unconditional. No Owner is exempt from liability for payment of his or her share of
Common Expenses by right of set-off, by waiver of use or enjoyment of any part of the Property,
by absence from or abandonment of the Unit,by the waiver of any other rights, or by reason of any
claim against the Association or its officers, directors or agents, or for their failure to fulfill any
duties under the Governing Documents or the Act. The Association may invoke the charges,
sanctions and remedies set forth in Section 14, in addition to any remedies provided elsewhere in
the Governing Documents,.the Rules and Regulations, or by law, for the purpose of enforcing its
rights hereunder.
6.6 Declarant's Alternative Assessment Program. The following alternative assessment
program is established pursuant to Section 515B.3-115(a)(2)of the Act. Notwithstanding anything
to the contrary in this Section 6,if a Common Expense assessment has been levied, any Unit owned
by Declarant for initial sale shall be assessed at the rate of twenty-five percent (25%) of the
assessment levied on other Units of the same type until a certificate of occupancy has been issued
with respect to the Declarant's Unit by the municipality in which the Unit is located. This reduced
assessment shall apply to each Unit owned by Declarant at the time that the Unit is created and shall
continue with respect to the Unit until the certificate of occupancy is issued for that Unit. There are
no assurances that this alternative assessment program will have no effect on the level of services
for items set forth in the Association's budget.
6.7 Assessment Lien. The Association has a lien on a Unit for any assessment levied
against that Unit from the time the assessment becomes due. If an assessment is payable in
installments,the full amount of the assessment is a lien from the time the first installment thereof
becomes due. Fees, charges, late charges, fines and interest charges imposed by the Association
pursuant to Section 515B.3-102(a)(10), (11) and (12) of the Act are liens and are enforceable as
assessments under this Section. Recording of the Declaration constitutes record notice and
perfection of any lien under this Section and no further recordation of any notice of or claim for the
lien is required.
6.8 Foreclosure of Lien; Remedies.. A lien for Common Expenses may be foreclosed
against a Unit under the laws of the State of Minnesota(i)by action, or(ii) by advertisement as a
lien under a mortgage containing a power of sale. The Association, or its authorized representative,
shall have the power to bid in at the foreclosure sale and to acquire, hold, lease, mortgage and
convey any Unit so acquired. The Owner and any other Person claiming an interest in the Unit, by
the acceptance or assertion of any interest in the Unit,grants to the Association a power of sale and
full authority to accomplish the foreclosure. The Association shall, in addition, have the right to
pursue any other remedy at law or in equity against the Owner who fails to pay any assessment or
charge against the Unit.
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6.9 Lien Priority: Foreclosure. A lien under this Section is prior to all other liens and
encumbrances on a Unit except(i)liens and encumbrances recorded before the Declaration, (ii)any
first mortgage on the Unit, and(iii) liens for real estate taxes and other governmental assessments
or charges against the Unit. Notwithstanding the foregoing, if(i) a first mortgage on a Unit is
foreclosed; (ii) the first mortgage was recorded on or after June 1, 1994,and(iii)no Owner redeems
during the Owner's period of redemption provided by Chapters 580, 581 or 582, then the holder of
the sheriffs certificate.of sale from the foreclosure of the first mortgage shall take title to the Unit
subject to unpaid assessments for Common Expenses levied pursuant to Sections 515B.3-115(a),
(h)(1)to (3), (i)and(1) of the Act which became due,without acceleration,during the six months
immediately preceding the first day following the end of the Owner's period of redemption.
6.10 Voluntary Conveyances: Statement of Assessments. In a voluntary conveyance of
a Unit the buyer shall not be personally liable for any unpaid assessments and other charges made
by the Association against the seller or the seller's Unit prior to the time of conveyance to the buyer,
unless expressly assumed by the buyer. However,the lien of such assessments shall remain against
the Unit until satisfied. Any seller or buyer shall be entitled to a statement,in recordable form,from
the Association setting forth the amount of the unpaid assessments against the Unit, including all
assessments payable in the Association's current fiscal year,which statement shall be binding on the
Association,seller and buyer.
SECTION 7
RESTRICTIONS ON USE OF PROPERTY
All Owners and Occupants, and all secured parties, by their acceptance or assertion of an
interest in the Property,or by their occupancy of a Unit, covenant and agree that, in addition to any
other restrictions which may be imposed by the Act or the Governing Documents,the occupancy,
use, operation, alienation and conveyance of the Property shall be subject to the following
restrictions:
7.1 General. The Property shall be owned, conveyed, encumbered, leased, used and
occupied subject to the Governing Documents and the Act, as amended from time to time. All
covenants,restriction&and obligations set forth in the Governing Documents are in furtherance of
plan for the Property and shall run with the Property and be a burden and benefit to all Owners and
Occupants and to any other Person acquiring or owning an interest in the Property, their heirs,
personal representatives,successors and assigns.
7.2 Subdivision Prohibited. Except as permitted by the Act,no Unit nor any part of the
Common Elements may be subdivided or partitioned without the prior written approval of ail
Owners and all secured parties holding first mortgages on the Units.
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7.3 Residential Use-Senior Housing. The.Units shall be used by Owners and Occupants
and their guests exclusively as private,single family residential dwellings and not for transient,
hotel, commercial, business or other non-residential purposes,except as provided in Section 7.4.
Any lease of a unit(except for occupancy by guests with the consent of the Owner) for a period of
less than seven(7)days,.or any occupancy which includes any services customarily furnished to
hotel guests,shall be presumed to be for transient purposes. A copy of the use restrictions contained
in the Development Agreement are attached hereto as Exhibit"C" and incorporated herein by this
reference and shall be effective until.such time as 1)said Development Agreement restrictions are
modified or released pursuant to the Development Agreement and 2)this Declaration of Common
Interest Community No. 30 is properly amended to declare that the restrictions recited in said
Development Agreement are no longer applicable to the Property.
7.4 Business Use Restricted. No business,trade, occupation or profession of any kind,
whether carried on for profit or otherwise, shall.be conducted,maintained or permitted in any Unit
or the Common Elements; except (i) an Owner or Occupant residing in a Unit may keep and
maintain his or her business or professional records in such.Unit and handle matters relating to such
business by telephone or correspondence therefrom,provided that such uses are incidental to the
residential use, do not involve physical alteration of the Unit and do not involve any observable
business activity such as signs;advertising displays,bulk mailings,deliveries or visitation or use of
the Unit by customers or employees, and (ii)the Association may maintain offices on the Property
for management and related purposes: •
7.5 Leasing. on) Sri rJu; .• o ubject to reasonable regulation by the
Association and subject to the following conditions: (i)that no Unit shall be leased for transient or
hotel purposes,(ii)that no Unit may be subleased, (iii)that all leases shall be in writing, (iv)that all
leases shall provide that they are subordinate and subject to the provisions of the Governing
Documents,the Rules and Regulations and the Act, and(v)that any failure of the lessee to comply
with the terms of such documents shall be a default under the lease. The Association may impose
such reasonable Rules and Regulations as may be necessary to implement procedures for the leasing
of Units, consistent with this Section
•
7.6 • Parking. Garages and parking areas on the Property shall be used only for parking
of vehicles owned or leased by Owners and Occupants and their guests, and such other incidental
uses as may be authorized in writing by the Association, The use of garages, driveways and other
parking areas on the Property and the types of vehicles and person property permitted thereon, shall
be subject to regulation by the Association,including,without limitation,the right cf the Association
to tow illegally parked vehicles or to remove unauthorized personal property.
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7.7 Animals.
A ''1 0) ,,•'mal may be bred, kept or maintained for business or ,coi hiercial
purposes, anywhere •`: , Property.
B. Each Unit may ha n nt, e•: provi. o ' eghs twenty(20)pounds of less.
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C. ' Each Unit may ha of;, cats pro td, co biped weight is twenty(20)
pounds or less. ',off
Any Unit own- .,�' r9 ' chooses to have a pet dog or cat as described above,shall be respoligibkior
disposal e ; "o the pets waste,including any waste desposited by the animal in any portion orSe:
Prop• n
7.8 Quiet Enjoyment Interference Prohibited. All Owndrs and Occupants and their
guests shall have a right of quiet enjoyment in their respective Units, and shall use the Property in
such a manner as will not cause a nuisance,nor unduly restrict, interfere with or impede the use of
the Property by other Owners and Occupants and their guests.
7.9 Compliance with Law. No use shall be made of the Property which would violate
any then existing municipal codes or ordinances,or state or federal laws,nor shall any act or use be
permitted which could cause waste to the Property, cause a material increase in insurance rates on
the Property, or otherwise cause any.unusual liability, health or safety risk, or expense, for the
Association or:any Owner or Occupant.•
7.10 Alterations. Except for those made by Declarant in consideration of its initial sale
of a Unit,no alterations,changes,improvements,repairs or replacements of any type, temporary or
permanent,structural, aesthetic or otherwise(collectively referred to as "alterations")shall be made,
or caused or allowed to be made, by any Owner or Occupant, or their guests, in any part of the
Common Elements,or in any part of the Unit which affects the Common Elements or another Unit
or which is visible from the exterior of the Unit,without the prior written authorization of the Board,
or a committee appointed by it, as provided in Section 8. The Board, or the appointed committee,
if so authorized by the Board,shall have authority to establish reasonable criteria and requirements
for alterations and shall be the sole judge of whether the criteria are satisfied.
7.11 Time Shares Prohibited. The time share fbrm of ownership,or any comparable form
of lease,occupancy rights or ownership which has the effect of dividing the ownership or occupancy
of a Unit into separate time periods, is prohibited.
7,12 Access to Units. In case of emergency,all Units and Limited Common Elements are
subject to entry, without notice and at any time, by an officer or member of the Board of the
Association, by the Association's management agents or by any public safety personnel. Entry is
also authorized for maintenance purposes under Section 9 and for enforcement purposes under
Section 14.
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7.13 Remedies for Violations. The Association may undertake any measures, legal or.
administrative, to enforce compliance with this section and shall be entitled to recover from the
owner causing or permitting the violation all attomey's fees and costs of enforcement whether or not
a legal action,is started. Such attorney's fees and costs shall be a lien against the owner's unit and
a personal obligation of the owner. All compliance measures and remedies outlined in Section 14
of this Declaration shall apply as well.
SECTION 8
ARCHITECTURAL CONTROL
8.1 Restrictions on Alterations. The following restrictions and requirements shall apply
to alterations on the Property:
A. Except as expressly provided in this Section 8 and except for alterations made
by Declarant in consideration of its initial sale of a Unit, no'structure? building, addition,
deck, patio, fence,wall, enclosure,window, exterior door, sign, display,decoration,color
change, shrubbery, material topographical or landscaping change, nor any other exterior
improvements to or alteration of any Dwelling or any other part of a Unit which is visible
from the exterior of the Unit(collectively referred to as "alterations"), shall be commenced,
erected or maintained in a Unit, unless and until the plans and specifications showing the
nature;kind,shape,height, color,materials and locations of the alterations shall have been
approved in writing by the Board of 'Directors or a committee appointed by it.
Notwithstanding the foregoing, Declarant's written consent shall also be required for
alterations until Declarant no longer owns any unsold Unit and has no further rights tp add
Additional Real Estate to the Property.
B. The criteria for approval shall include and require, at a minimum,
(i) substantial uniformity of color, size, location, type and design in relation to existing
improvements and topography, (ii) comparable or better quality of materials as used in
existing improvements,(iii)ease of maintenance and repair, (iv) adequate protection of the
Property,the Association, Owners and Occupants from liability and liens arising out of the
proposed alterations, and(v) compliance with governmental laws, codes and regulations.
C. Approval of alterations which encroach upon another Unit or the Common
Elements shall create an appurtenant easement for such encroachment in favor of the Unit
with respect to which the alterations are approved;provided, that any easement for a deck
or patio other than as originally constructed shall be approved by resolution of the Board of
Directors and a file of such resolutions shall be maintained permanently as a part of the
Association's records.
D. Alterations described in Section 16 shall be governed by that Section.
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8.2 Review Procedures. The following procedures shall govern requests for alterations
under this Section:
A. Detailed plans,specifications and related information regarding any proposed
alteration,in form and,content acceptable to the Board of Directors, shall be submitted to the
Board of Directors at least sixty (60) days prior to the projected commencement of
construction. No alterations shall be commenced prior to approval.
B. The Board of Directors shall give the Owner written notice of approval or
disapproval. If the Board of Directors fails to approve or disapprove within sixty (60)days
after receipt of said plans and specifications and all other information requested by the Board
of Directors, then approval will not be required and this Section shall be deemed to have
been fully complied with so long as the alterations are done in accordance with the plans,
specifications and related information which were submitted.
C. If no request for approval is submitted, approval is denied, unless (i) the
alterations are reasonably visible, and(ii)no written notice of the violation has been given
to the Owner in whose Unit the alterations are made, by the Association or another Owner,
within six months following the date of completion of the alterations. Notice may be direct
written notice or the commencement of legal action by the Association or an Owner. The
Owner of the Unit in which the alterations are made "shall have the burden of proof, by clear
and convincing evidence, that the alterations were completed and reasonably visible for at
least six months following completion arid that the notice was not given.
8.3 Remedies for Violations. The Association may undertake any measures, legal or
administrative, to enforce compliance with this Section and shall be entitled to recover from the
Owner causing or permitting the violation all attorney's fees and costs of enforcement, whether or
not a legal action is started. Such attorney's fees and costs shall be a lien against the Owner's Unit
and a personal obligation of the Owner. In addition,the Association shall have the right to enter the
Owner's Unit and to restore any part of the Dwelling or Unit to its prior condition if any alterations
were made in violation of this Section,and the cost of such restoration shall be a personal obligation
of the Owner and a lien against the Owner's Unit.
SECTION 9
MAINTENANCE
9.1 ;,,, LA;:5;r cr,1x-' oadri°,1'*Zatir; IO/a4 The Association shall provide for all maintenance,
repair or replacement (collectively referred to as "maintenance") of the Common Elements. In
addition, for the purpose of preserving the architectural character, quality and uniform and high
standards for appearance of the Property,the Association shall (i)provide for exterior maintenance
upon the Dwelling in each Unit that is subject to assessment as follows: paint and replace roofs,
gutters,downspouts,decks,a2-"0 0,,y,-- 0 :Atto)mod exterior siding and other building
surfaces,and(ii)provide for lawn,shrub and tree maintenance on all Units,4r 0o f, G,J06 The
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f0`r°? t:�OO Q .shall 5'C�i� ar 1 ; �' ' If ,'r�ti �"' i .. 111
ti
'Yi „has'; ctisuz cr e
1. _ K:. a�a �6� a�► �,�iu���cTo.:.'!°�J,i.!°°;.1?. :'�° .�i�.�°�4.. � �,::. ,.�a.tl..,G, ��4. ��r�S��": d any
other items not specifically referred to in this Section,unless otherwise approved under Section 9.2.
The Association shall have easements as described in Section 13 to perform its obligations under this.
Section 9.
9.2 Optional Maintenance by Association. In addition to the maintenance described in
this Section,the Association may,with the approval of a majority of votes cast in person or by proxy
at a meeting called for such purposes,undertake to provide additional exterior maintenance to the
Units or Dwellings or maintenance of water and sewer systems within the Units.
9.3 'Maintenance by Owner. '' Y` a required to be provided
by the Association under Section 9.1 or 9.2,dl
0 . ,� o e >;o ° s a,k 9.;n e e lxOSP However,the Owners and Occupants shall
have a duty to promptly notify the Association of defects in or damage to those parts of the Property
which the Association is obligated to maintain. The Association may require that any exterior
maintenance to be performed by the Owner be accomplished pursuant to specific uniform criteria
established by the Association. The Association may also undertake any exterior maintenance which.
the responsible Owner fails to or improperly performs and assess the Unit and the Owner for the cost
thereof.
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9.4 Damage Caused by Owner. Notwithstanding any provision to the contrary in this
Section,if,in the judgment of the Association,the need for maintenance of any part of the Property
is caused by the willful or negligent act or omission of an Owner or Occupant,or their guests,or by
a condition in a Unit which the Owner or Occupant has willfully or negligently allowed to exist,the
Association may cause such damage or condition to be repaired or corrected(and enter upon any
Unit to do so), and the cost thereof may be assessed against the Unit of the Owner responsible for
the damage. In the case of party walls between Dwellings, the Owners of the affected Dwellings
shall be liable as provided in Section 10.
SECTION 10
PARTY WALLS
10.1 General Rules of Law to Apply. Each Dwelling wall built as part of the original.
construction of the Dwelling and located on the boundary line between Units shall constitute a party
wall,and, to the extent not inconsistent with the provisions of this Section,the general rules of law
regarding party walls and liability for property damage due to negligent or willful acts or omissions
shall apply thereto.
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10.2 Repair and Maintenance. The Owners of the Units which share the party wall shall
be responsible for the maintenance,repair and replacement of party wall in proportion with their use;
provided(i)that any maintenance,repair or replacement necessary due to the acts or omissions of
a certain Owner or Occupant sharing such party wall shall be paid for by such Owner, and(ii)that
the Association may contract for and supervise the repair of damage caused by an Owner or
Occupant and assess the Owners for their respective shares of the cost to the extent not covered by
insurance.
10.3 Destruction by Fire or Other Casualty. If a party wall is destroyed or damaged by fire
or other casualty, and Owner who has use of the wall may, with the consent of the Association,
restore it,and the other Owner shall promptly reimburse the Owner who restored the wall for his or
her share of the cost of restoration thereof;provided,however,that the cost of restoration resulting
from destruction or other casualty resulting from the acts or omissions of certain Owners shall be
the financial responsibility of such Owners,and the Association may assess the responsible Owners
for their share of the costs,without prejudice to the right of an Owner to recover a larger contribution
from the other Owner. Insurance claims shall be made promptly following any casualty.
10.4 Weatherproofing. Notwithstanding any other provision of this Section, any Owner
who,by his negligent or willful act, causes a party wall to be exposed to the elements shall bear the
whole cost of the repairs necessary for protection against such elements.
10.5 Right to Contribution Runs With Land. The right of any,Owner to contribution from
any other Owner under this Section shall be appurtenant to the Unit and shall pass to such Owner's
assign and successors in title.
10.6 Arbitration. In the event of any dispute arising concerning a party wall and if the
same is not resolved within thirty (30) days of the event causing the dispute, the matter shall be
submitted to binding arbitration under the rules of the American Arbitration Association,upon the
written demand of the Association or any Owner whose Dwelling shares the party wall. Each party
agrees that the'decision of the arbitrators shall be final and conclusive of the questions involved. The
fees of the arbitrators shall be shared equally by the parties, but each party shall pay its own
attorney's fees or other costs to prove its case.
SECTION 11
INSURANCE
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11.1 Required Coverage. The Association shall obtain and maintain, at a minimum, a
master policy or policies of insurance in accordance with the insurance requirements set forth in the
Act and the additional requirements set forth herein, issued by a reputable insurance company or
companies authorized to do business in the State of Minnesota, as follows:
•
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A. Property insurance in broad form covering all risks of physical loss in an
amount equal to one hundred percent (100%) of the insurable "replacement cost" of the
Property,less deductibles,exclusive of land;footings, excavation and other items normally
excluded from coverage(but including all building service equipment and machinery). The
policy or policies shall cover personal property owned by the Association: The policy or
policies shall also: contain "Inflation Guard" and "Agreed Amount" endorsements, if
reasonably available. Such policy or policies shall include such additional endorsements,
coverages and limits with respect to the foregoing and other hazards as may be required from
time to time by the regulations of the FHA or Federal National Mortgage Association
("FNMA")as a precondition to their insuring,purchasing or financing a mortgage on a Unit. •
The Board may also,on behalf of the Association,enter into binding written agreements with
a mortgagee,insurer or servicer,including,without limitation;the FHA or FNMA,obligating
Association to keep certain specified coverages or endorsements in effect.
B. Comprehensive public liability insurance covering the use, operation and
maintenance of the Common Elements, with minimum limits of $1,000,000.00 per
occurrence,against claims for death, bodily injury and property damage,and such other risks
as are customarily covered by such policies for projects similar in construction, location and
use to the Property, The policy shall.contain a"severability of interest" endorsement which
shall preclude the insurer from denying the claim of an Owner or Occupant because of
negligent acts of the Association or other Owners or Occupants. The policy shall include.
such additional endorsements,-coverages and limits with respect to such hazards as may be
required by the regulations of the FHA or FNMA as a precondition to their insuring,
purchasing or nanci
fng d mortgage on a Unit:
C. Fidelity bend or insuranice.coverage against dishonest acts on the part of
directors,officers,niariager trustees, employees or persons responsible for handling funds
belonging to or administered by the Association if deemed to be advisable by the Board or
required by the regulations of the FHA or FNMA as a precondition to the purchase or
financing of a mortgage On a Unit:: The fidelity bond or insurance shall Hanle the Association
as the named insured and,shall, if required by the regulations of the FHA or FNMA as a
precondition to their insuring,purchasing or financing of a mortgage;oh a Unit, be written
in an amount equal to the greater of (i) the, estimated maximum of Association funds,
including reserves,in the custody of the Association or management agent at any given time
while the bond is in force or(it) a sum equal to three months aggregate assessments on all
Units plus reserves. An appropriate endorsement to the policy to covet any persons who
serve without compensation shall be added if the policy would.not otherwise cover
volunteers, or a waiver of defense based upon the exclusion of persons serving without
compensation shall be added.
D. Workers' Compensation insurance as required by law.
F. Directors and officers liability insurance with such reasonable limits and
coverages as the Board shall determine from time to time.
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F. Such other insurance as the Board may determine prom time to time to be in
the best interests of the Association and the Owners.
11.2 Premiums: Improvements: Deductibles. All insurance premiums shall be assessed
and paid as a Common Expense. The insurance need not cover improvements and betterments to
the Units installed by Owners,but if improvements and betterments are covered,any increased cost
may be assessed against the Units affected. The Association may,in the case of a claim for damage
to a Unit, (i)pay the deductible amount as a Common Expense, (ii) assess the deductible amount
against the Units affected in any reasonable manner,or(iii)require the Owners of the Units affected
to pay the deductible amount directly.
11.3 Loss Payee:Insurance Trustee. All insurance coverage maintained by the Association
shall be written in the name of and the proceeds thereof shall be payable to,the Association(or a
qualified insurance trustee selected by it)as trustee for the benefit of the Owners and secured parties,
including Eligible Mortgagees,which suffer loss. The Association,or any insurance trustee selected
by it,shall have exclusive authority to negotiate, settle and collect upon any claims or losses under
any insurance policy maintained by the Association.
11.4 Waivers of Subrogation. All policies of insurance shall contain waivers of
subrogation by the insurer against the Association,or an Owner,members of the Owner's household,
officers or directors,as applicable, and,if available,waivers of any defense based on co-insurance
or of invalidity from any acts of the insured.
11.5 Cancellation:Notice of Loss. All policies of property insurance and comprehensive
liability insurance maintained by the Association shall provide that the policies shall not be canceled
or substantially modified,for any reason,without at least thirty(30)days prior written notice to the
Association, to the FHA or FNMA(if applicable),all of the insureds and all Eligible Mortgagees.
11.6_ Restoration of Lieu of Cash Settlement. All policies of property'instuarice maintained
by the Association shall provide that, despite any provisions giving the insurer the right to elect to
restore damage in lieu of a cash settlement, Such bption shall not be exercisable(i)without the prior
written approval of the Association (or any Insurance Trustee), or (ii) when in conflict with
provisions of any insurance trust agreement to Which the Association may be a party, or any
requirement of law.
11.7 No Contribution. All policies of insurance maintained by the Association shall be
the primary insurance where there is Other insurance in the name of the Owner covering the same
property and may not be brought into contribution with any insurance purchased by Owners or their
Eligible Mortgagees.
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11.8 Effect of Acts Not Within Association's Control, All policies of insurance maintained
by the Association shall provide that the coverage shall not be voided by or conditioned upon(i)any
act or omission of an Owner or Eligible Mortgagee, unless acting within the scope of authority on
behalf of the Association, or (ii) any failure of the Association to comply with any warranty or
condition regarding any portion of the Property over which the Association has no control.
11.9 Owner's Personal Insurance. Each Owner may obtain additional personal insurance
coverage at his or her own expense covering fire and other casualty to the Unit,personal property
or personal liability. All insurance policies maintained by Owners shall provide that they are without
contribution as against the insurance purchased by the Association.
SECTION 12
RECONSTRUCTION, CONDEMNATION AND EMINENT DOMAIN
12.1. Reconstruction: The obligations and procedures for'the repair, reconstruction or
disposition of the Property following damage or destruction thereof shall be governed by the Act.
Any repair or reconstruction shall be substantially in accordance with the plans and specifications
of the Property as initially constructed and subsequently improved: The Association shall have all
authority necessary to cause the Property to be reconstructed, including, without limitation, the
authority (i)to require the Owners to enter into reconstruction contracts on their respective Units,
or(ii)to contract for the reconstruction of the Units on behalf of the Owners. Notice of substantial
damage or destruction shall be given pursuant to Section 18.10.
12.2' Condemnation and Eminent Domain. : In the event of a taking of any part of the
Property by condemnation or eminent domain,the provisions of the Act shall govern;provided, that
notice shall be given pursuant to Section 18.10. Eligible Mortgagees shall be entitled to priority for
condemnation awards in accordance with the priorities established by the Act and the Governing
Documents, as their interests may appears
12.3 Notice. ' All Eligible Mortgagees shall be entitled to receive notice of any
condemnation proceedings or substantial destruction of the Property,and the Association shall give
written notice thereof to an Eligible Mortgagee pursuant to Section 18.10.
SECTION 13
EASEMENTS
13.1 Easement for Encroachments. Each Unit and the Common Elements,and the rights
of the Owners and Occupants therein, shall be subject to an exclusive easement for encroachments
in favor of the adjoining Units for fireplaces,walls,roof overhangs,air conditioning systems, decks,
balconies, porches, patios, Utility installations and other appurtenances (i) which are part of the
original construction of the adjoining Unit or the Property; or (ii) which are added pursuant to
Section 8. If there is an encroachment by a Dwelling or other building or improi1ement located in
a Unit,upon another Unit or Dwelling as a result of the construction,reconstruction,repair,shifting,
settlement or movement of any part of the Property,an appurtenant easement for the encroachment,
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for the use,enjoyment and habitation of any encroaching Dwelling, building or improvement, and
for the maintenance thereof, shall exist; provided that with respect to improvements or alterations
added pursuant to Section 8, no easement shall exist unless the same have been approved and the
proposed improvements constructed,as required by this Declaration. Such easements shall continue
for as long as the encroachment exists and shall not affect the marketability of title.
13.2 Easement for Maintenance,Repair,Replacement and Reconstruction. Each Unit,and
the rights of the Owners and.Occupants thereof, shall be subjectto the rights of the Association to
an exclusive, appurtenant easement on and over the Units for the purposes of maintenance,repair,
replacement and reconstruction of the Units, and utilities serving the Units,to the extent necessary
to fulfill the Association's.obligations under the Governing Documents.
13.3 Utilities Easements. The Property shall be subject to non-exclusive, appurtenant
easements for all utilities; water and sewer,and similar services,which exist from time to time, as
constructed or referred to in the Plat,or as otherwise described in this Declaration or any other duly
recorded instrument. Each Unit,and the rights of the Owners and Occupants thereof,shall be subject.
to a non-exclusive easement in favor of the other Units.for all such services, including, without
limitation, any sewer or Water lines servicing other Units. Each Unit shall also be subject to an
exclusive easement in favor of the,Association and all utilities companies providing service to the
Units for the installation and maintenance of utilities metering devices,
13.4 C_ontinuation and Scope of Easements. Notwithstanding anything in this Declaration
to the contrary, in no event shall an Owner or Occupant be denied reasonable access to his or her
Unit or the right to utility services thereto. The easements set forth in this Section shall supplement
and not limit any easeiiaents described elsewhere in this Declaration or recorded, and shall include
reasonable access to the easement areas through the Units and the Common Elements for purposes
of maintenance,repair,replacement and reconstruction.
SECTION 14
COMPLIANCE AND REMEDIES
Each Owner and Occupant and any other Person owning or acquiring any interest in the
Property, shall be governed•'by and co nply with the provisions of the Act, the Governing
Documents, the Rules and Regulatidns, the decisions of the Association, and such amendments
thereto as may be made from time to time. A failure to comply shall entitle the Association to the
relief set forth in this Section, in addition to the rights and remedies authorized elsewhere by the
Governing Documents and the Act.
14.1 Entitlement to Relief The Association may commence legal action to recover sums
due,for damages,for injunctive relief or to foreclose a lien.owned by it,or any combination thereof,
or an action for any,other relief authorized by the Governing Documents or available at law or in
equity. Legal relief may be sought by the Association against any Owner, or by an Owner against
the Association or another Owner,to enforce compliance with the Governing Documents,the Rules
21
and Regulations,the Act or the decisions of the Association. However,no Owner may withhold any
assessments payable to the Association,or take(or omit)other action in violation of the Governing
Documents, the Rules and Regulations or the Act,as a measure to enforce such Owner's position,
or for any other reason.
14.2 Sanctions and Remedies. In addition to any other remedies or sanctions, expressed
or implied, administrative or legal, the Association shall have the right but not the obligation, to
implement any one or more of the following actions against Owners and Occupants and/or their.
guests, who violate the provisions of the Governing Documents, the Rules and Regulations or the
Act:
A. Commence legal action for damages or equitable relief in any court of
competent jurisdiction.
.B. Impose late charges of up to the greater of$20.00 or fifteen percent(15%)of
the amount due, for each past due assessment or installment thereof, and interest at up to the
highest rate permitted by law.
C. In the event of default of more than thirty (30) days in the payment of any ;
assessment or installment thereof,all remaining installments of assessments assessed against
the Unit owned by the defaulting Owner may be accelerated and shall then be payable in full
if all delinquent assessments, together with all costs of collection and,late charges,are not
paid in full prior to the effective date of the acceleration. Reasonable advance written notice
of the effective date of the acceleration shall be given to the defaulting Owner.
D. Impose reasonable fines,penalties or charges fc►r each violation of the Act,
the Governing Documents or the Rules and Regulations of the Association.
E. Suspend the rights of any Owner or Occupant and their guests to use any
Common Element amenities; provided, that this limitation shall not apply to Limited
Common Elements or deck,balcony,porch or patio easements, appurtenant to the Unit, and
those portions Hof the Common Elements providing utilities service and access to the Unit.
Such suspensions shall be limited to periods of default by such Owners and Occupants in
their obligations under the Governing Documents, and for up to thirty(30)days thereafter,
for each violation.
F. Restore any portions of the.Common Elements or Limited Common Elements
damaged or altered,or allowed to be damaged or altered,by any Owner or Occupant or their
guests in violation of the Governing Documents, and to assess the cost of such restoration
against the responsible Owners and their Units.
22
W. Enter any Unit or Limited Common Element in which, or as to which, a
violation or breach of the Governing Documents exists which materially affects, or is likely
to materially affect in the near future,the health or safety of the other Owners or Occupants,
or their guests, or the safety or soundness of any Dwelling or other part of the Property
or
the property of the Owners or Occupants,and to summarily abate and remove,at the expense
of the offending Owner or Occupant,any structure,thing or condition in the'Unit or Limited
Common Elements which is causing the violation;provided,that any improvements which
are a part of a Unit may be altered or demolished only pursuant to a court order or with the
agreement of the Owner.
H. Foreclose any lien arising under the provisions of the Governing Documents
or under law, in the manner provided for the foreclosure of mortgages by action or under_a
power of sale in the state where the Property is located.
14.3 tights to Hearing. In the case of imposition of any of the remedies authorized by
Section 14.2 D,E,F or G of this Section;the Board shall,upon written request of the offender,grant
to the offender a fair and equitable hearing as contemplated by the Act. The offender shall be given
notice of the nature of the violation and the right to a hearing,and at least ten(10)days within which
to request a hearing. The hearing shall be scheduled by the Board and held within thirty (30)days
of receipt of the hearing request by the Board,and with at least ten(10)days prior written notice to
the offender. If the offending.Owner fails to appear at the hearing, then the right to a hearing shall
be waived and the Board may take such action as it deems appropriate. The decision of the Board
and the rules for the conduct of hearings established by the Board shall be final and binding on all
parties. The Board's decision shall be delivered, in writing, to the offender within ten (10) days
following the hearing, if not delivered to the offender at the hearing.
14.4 Lien for Charges. Penalties. Etc, Any assessments, charges, fines, penalties or
interest imposed under this Section shall be a lien against the Unit of the Owner or Occupant against
whom the Same are imposed and the personal obligation of such Owner in the same manner and with
the same priority and effect as assessments under Section 6. The lien shall attach as of the date of
imposition of the remedy,but shall not be final as to violations for which a hearing is held until the
Board gives written notice following the hearing. All remedies shall be cumulative and the exercise
of,or failure to exercise,any remedy shall not be deemed a waiver of the right to pursue any others.
14.5 Costs of Proceeding and Attorney's Fees. With respect to any collection measures,
or any measures or action,legal,administrative or otherwise,which the.Association takes to enforce
the provisions of the Act; Governing Documents or Rules and Regulations,whether or not finally
determined by a court or arbitrator, the Association may assess the violator and his or her Unit with
any expenses incurred in connection with such enforcement, including,without limitation, fines or
charges previously•imposed by the Association,reasonable attorney's fees and interest(at the highest
rate allowed by law) on the delinquent amounts owed to the Association.
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14.6 Liability for Owners'and Occupants'Acts. An Owner shall be liable for the expense
of any maintenance,repair or replacement of the Property rendered necessary by such Owner's acts
or omissions,or by that of Occupants or guests in the Owner's Unit, to the extent that such expense
is not covered by the proceeds of insurance carried by the Association or such Owner or Occupant.
However, any insurance deductible amount and/or increase in insurance rates, resulting from the
Owner's acts or omissions may be assessed against the Owner responsible for the condition and
against his or her Unit.
14.7 Enforcement by Owners. The provisions of this Section shall not limit or impair the
independent rights of other Owners to enforce the provisions of the Governing Documents,the Rules
and Regulations and the Act as provided therein.
• SECTION 15 •
SPECIAL DECLARANT RIGHTS
Declarant hereby reserves exclusive and unconditional authority to exetcise the following
special declarant rights within the meaning of Section 51514.1-103 (31) of the,Act for as long as it
owns a Unit, or for such shorter period as may be specifically indicated:
• 15.1 •Complete Improvements. To complete all the Units and other improvements
indicated on the Plat,or otherwise included in Declarant's development plans or allowed by the
Declaration,and to make alterations in the Units and Common Elements to accommodate its sales
facilities.
15.2 Relocate Boundaries and Alter Units. To relocate boundaries between Units and to
otherwise alter Units owned by it, to the extent permitted by Section 16.
15.3 Sales Facilities. To construct, operate and maintain a sales office, management
office,model Units and other development,sales and rental facilities within the Common Elements
and any Units owned by Declarant from time to time,located anywhere on the Property.
15.4 Signs. To erect and maintain signs and'other sales displays offering the Units for sale
or lease,in or on any Unit owned by Declarant and on the Common Elements
15.5 Easements. To have and use easements, for itself, its employees, contractors,
representatives, agents and prospective purchasers through and over the Common Elements for the
purpose of exercising its special declarant rights. •
15.6 Control of Association. To. control the operation and administration of the
Association, including, without limitation,the power to appoint and remove the members of the
Board pursuant to Section 515$.3-103 of the Act, until the earliest of: (i) voluntary surrender of
control by Declarant, (ii) an Association meeting which shall be held within sixty (60) days after
conveyance to Owners other than a Declarant of seventy-five percent(75%)of the total number of
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Units authorized to be included in the Property, or(iii)the date five years following the date of the
first conveyance of a Unit to an Owner other than a Declarant. Notwithstanding the foregoing, the
Owners, other than a Declarant,shall have the right to nominate and elect not less than thirty-three
and one-third percent (33 1/3%) of the directors at a meeting of the Owners which shall be held
within sixty (60) days following the conveyance by Declarant of fifty percent(50%) of the total
number of Units authorized to be included in the Property.
15.7 Consent to Certain Amendments. As long as Declarant owns any unsold Unit for
sale,Declarant's written consent shall be required for any amendment to the Governing Documents
or Rules and Regulations which directly or indirectly affects or may affect Declarant's rights under
the Governing Documents or the Act.
SECTION 16
RIGHTS TO RELOCATE UNIT BOUNDARIES AND ALTER UNIT
16.1 Rights to Relocate Boundaries and Alter Units. Existing or future Units may be
altered and Unit boundaries may.be relocated only in accordance with the following conditions:
A. Combining Units. An Owner may make improvements or alterations to such
Unit or,may, after acquiring an adjoining Unit,remove or alter any intervening partition or
create apertures therein in accordance with Section 515B.2-113 of the Act and Subsection D
of this Section.
B. Relocation of Boundaries. The boundaries between adjoining Units may be
relocated in accordance with Section 515B.2-114 of the Act and Subsection D of this
Section.
C. Subdivision or Conversion. No additional Units may be created by the
subdivision or conversion of a Unit(within the meaning of the Act) into two or more Units,
nor into other Units, Common Elements or Limited Common Elements.
D. •Requirements. 'The alteration,relocation of boundaries or other modification
of Units or the Dwellings or other structures located therein(collectively referred to herein
as "alteration or:"alterations") pursuant to this Section, Section 8 and the Act may be
accomplished only in accordance with the following conditions:
1. No unit may be altered if, thereafter, the Dwelling located therein or
any other Dwelling affected by the alteration, would no longer be habitable or
practicably usable for its intended purpose or would violate any law, code or
ordinance of any governmental authority having jurisdiction over the Property.
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2. No alteration may be made which adversely affects the structural or
functional integrity of any building system or the structural support or weather tight
integrity of any portion of any building or other structure.
3. The prior written consent of the Association shall be required for any
alteration, except alterations by Declarant. Where required, such consent shall be
requested in writing by each Owner whose Unit is proposed to be altered,
accompanied by such explanation, drawings and specifications relating to the
proposed alterations as may be reasonably required by the Association or the first
mortgagee of the Unit. The Association shall give such Owner(s) notice in an
expeditious manner, granting, denying or qualifying its consent.
4. As a precondition to consenting to alterations, the Association may
require, among other things, the following: (i) that all alterations will be done in a
workmanlike manner and without impairing the structural, mechanical or weather
tight integrity of the Building; (ii)that the Common Elements and altered Units will
be repaired and/or restored in the future as required by the Association, (iii) that the
construction of the alterations will not create dangerous conditions for any Owners
or Occupants, (iv) that the Property, the first mortgagees and the Owners and
Occupants will be protected from liens and other liability arising from the alterations,
and (v) that the alterations will be done in compliance with the applicable laws,
regulations and ordinances of the governmental authorities having jurisdiction over
the Property.
5. The Association may require that the Owners of the Units to be altered
pay all costs of processing and documentation for the request and the preparation and
recording of any necessary amendment to the Governing Documents, including,
• without limitation,such costs as filing,architects and attorneys fees,incurred by the
Association in connection with the alterations.
SECTION 17
AMENDMENTS
This Declaration may be amended by the consent of(i) Owners of Units to which are .
allocated at least sixty-seven percent(67%) of the votes in the Association, (ii) the percentage of
Eligible Mortgagees (based upon one vote per first mortgage owned)required by Section 18 as to
matters prescribed by said Section, (iii)the consent of Declarant to certain amendments as provided
in Section 15.7, and (iv) the express written consent of the City. Consent of the Owners may be
obtained in writing or at a meeting of the Association duly held in accordance with the By-Laws.
Consents of Eligible Mortgagees and the Declarant shall be in writing, Any amendment shall be
subject to any greater requirements imposed by the Act. The Amendment shall be effective when
recorded as provided in the Act. An affidavit by the Secretary of the Association as to the outcome
of the vote or the execution of the foregoing agreements or consents, shall be adequate evidence
thereof for all purposes, including, without limitation,the recording of the amendment.
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SECTION 18
RIGHTS OF ELIGIBLE MORTGAGEES
Notwithstanding anything to the contrary in the Governing Documents and subject to any
greater requirements of the Act or other laws, Eligible Mortgagees shall have the following rights
and protections:
•
18.1 Consent to Certain Amendments. The written consent of Eligible Mortgagees
representing at least fifty-one percent(51%of the Units that are subject to first mortgages held by
Eligible Mortgagees (based upon one vote per first mortgage owned) shall be required for any
amendment to the Governing Documents which causes any change in the following: (i)voting rights,
(ii) increases in assessments that raise the previously assessed amount by more than twenty-five
percent (25%), assessment liens or priority of assessment liens, (iii) reductions in reserves for
maintenance,repair and replacement of Common Elements, (iv)responsibility for maintenance and
repairs,(v)reallocation of interests in the Common Elements or Limited Common Elements or rights
to their use, (vi) redefinition of any Unit boundaries, (vii) convertibility of Units into Common
Elements or vice versa, (viii)expansion or contraction of the Property or the addition, annexation
or withdrawal of property to or from the Property,(ix)hazard or fidelity insurance requirements,(x)
leasing of Units, (xi) imposition of any restrictions on the leasing of Units, (xii) if the common
interest community consists of 50 or more Units, a decision by the Association to establish self
management when professional management is in effect as required previously by the Governing
Documents or by an Eligible Mortgagee, (xiii)restoration or repair of the Property(after a ha7.ird
damage or partial condemnation)in a manner other than that specified in the Governing Documents,
(xiv) any action to terminate the legal status of the common interest community after substantial
destruction or condemnation occurs, or(xv)any provisions that expressly benefit mortgage holders
or insurers or guarantors of mortgages. Notwithstanding the foregoing, implied approval of a
proposed amendment shall be assumed when an Eligible Mortgagee fails to submit a response to any
written proposal for an amendment within thirty (30) days after it receives proper notice of the
proposal,provided that the notice was delivered by certified mail with a return receipt requested.
18.2 Consent to Certain Actions. The written consent of Eligible Mortgagees representing
at least sixty-seven percent(67%) of the Units that are subject to first mortgages (based upon one
vote per first mortgage owned) shall be requires to abandon or terminate the common interest
community, subject to any greater requirements contained in the Act.
18.3 Consent to Subdivision. No Unit may be partitioned or subdivided without the prior
written approval of the Owner and Eligible Mortgagee thereof, and the Association.
18.4 No Right of First Refusal. The right of an Owner to sell,transfer or otherwise convey
his or her Unit shall not be subject to any right of first refusal or similar restrictions.
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18.5 Priority of Lien. Any holder of a first mortgagee on a Unit or any purchaser of a first
mortgage at a foreclosure sale, that comes into possession of a Unit by foreclosure of the first
mortgage or by deed or assignment in lieu of foreclosure,takes the Unit free of any claims for unpaid
assessments or any other charges or liens imposed against the Unit by the Association which have
accrued against such Unit prior to the acquisition of possession of the Unit by said first mortgage
holder or purchaser,(i)except as provided in Section 6.7 and the Act, and(ii)except that any unpaid
assessments or charges with respect to the Unit may be reallocated among all Units in accordance
with their interests in the Common Elements.
18.6 Priority of Taxes and Other Charges. All taxes, assessments and charges which may
become liens prior to the first mortgage under state law shall relate only to the individual Units and
not to the Property as a whole.
18.7 Priority for Condemnation Awards. No provision of the Governing Documents shall
give an Owner, or any other party, priority over any rights of the Eligible Mortgagee of the Unit
pursuant to its mortgage in the case of a distribution to such Owner of insurance proceeds or
condemnation awards for losses to or a taking of the Unit and/or the Common Elements. The
Association shall give written notice to all Eligible Mortgagees of any condemnation or eminent
domain proceeding affecting the Property promptly upon receipt of notice from the condemning
authority.
18.8 Requirements Managements Agreements. The term of any agreement for
professional management of the Property may not exceed two(2)years. Any such agreement must
provide, at a minimum, for termination without penalty or termination fee by either party, (i)with
cause upon thirty(30) days prior written notice, and(ii)without cause upon ninety(90)days prior
written notice.
18.9 ,Access to Books and Records/Audit. Eligible Mortgagees shall have the right to
examine the books and records of the Association upon reasonable notice during normal business
hours and to receive, free of charge, upon written request, copies of the Association's annual reports
and other financial statements. Financial statements, including those which are audited, shall be
available within one'hundred twenty (120) days of the end of the Association's fiscal year. If a
request is made by FNMA or any institutional guarantor or insurer of a mortgage loan against a Unit,
for an audit of the Association's financial statements for the preceding year,the Association shall
cause an audit to be made and deliver a copy to the requesting party.
18.10 Notice Requirements. Upon written request to the Association,identifying the name
and address of the holder, insurer or guarantor of a mortgage on a Unit, and the Unit number or
address, the holder, insurer or guarantor shall be entitled to a timely written notice of:
A. A condemnation loss or any casualty loss which affects a material portion of
the Property or the Unit securing the mortgage.
28
B. A sixty(60)day delinquency in the payment of assessments or charges owed
by the Owner of a Unit on which it holds a mortgage.
C. A lapse, cancellation or material modification of any insurance policy
maintained by the Association.
D. A proposed action which requires the consent of a specified percentage of
Eligible Mortgagees
SECTION 19
RIGHTS OF THE CITY
The written consent of the City shall be required for any amendment to this document.
SECTION 20 '
MISCELLANEOUS
20.1 Severability. If any term, covenant or provision of this instrument or any exhibit
attached hereto is held to be invalid or unenforceable for any reason whatsoever,such determination
shall not be deemed to alter,affect or impair, in any manner whatsoever,any other portion of this
instrument or exhibits.
20.2 Construction. Where applicable,the masculine gender of any,word used herein shall
mean the feminine or neutral gender,or vice versa,and the singular of any word used herein shall
. mean the plural, or vice versa. References to the Act; or any section thereof, shall be deemed to
include any statutes amending or replacing the Act, and the comparable sections thereof
20.3 Tender of Claims In the event that any incident occurs which could reasonably give
rise to a demand by the Association against Declarant for indemnification pursuant to the Act,the
Association shall promptly tender the defense of the action to its insurance 'carrier, and give
Declarant written notice of such tender,the specific nature of the action and an opportunity to defend
against the action.
20.4 Notices. Unless specifically provided otherwise m the Governing Documents or the
Act,all notices required td be given by or to the Association,the Board of Ditectors,.the Association
officers or the Owners or Occupants shall be in writing and shall be effective upon hand delivery,
or mailing if properly addressed with postage prepaid and deposited in the United States mail;except
that registrations pursuant to Section 2.2 of the By-Laws shall be effective upon receipt by the
Association:
20.5 Conflicts Among Documents. In the event of any conflict among the provisions of
the Act,the Declaration,the By-Laws or any Rules or Regulations approved by.the Association,the
Act shall control. As among the Declaration,By-Laws and Rules and Regulations,the Declaration
shall control,and as between the By-Laws and the Rules and Regulations,the By-Laws shall control.
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. •
IN WITNESS WHEREOF, the undersigned has executed this instrument the day and year
first set forth in accordance with the requirements of the Act.
COTTAGES OF ALBERTVILLE TWO
By
Daniel G. Feneis
Its Chief Manager
STATE OF MINNESOTA )
)ss.
COUNTY OF STEARNS )
The foregoing instrument was acknowledged before me this day of May, 1999, by
Daniel G.Feneis,the Chief Manager of Cottages of Albertville Two, a Minnesota limited liability
company, on behalf of the company.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
David T. Shay-208164
SHAY LAW OFFICE, LTD.
16 Ninth Avenue North
St. Cloud, MN 56303
(320)251-1007
c;\files\600-699110677\Declaration
30
COMMON INTEREST COMMUNITY NO.30
COTTAGES OF ALBERTVILLE TWO
EXHIBIT "A" TO DECLARATION
SCHEDULE OF UNITS/LEGAL DESCRIPTION OF PROPERTY•
Lots 1-4, 6-15, Block 1, Lots 1-16, Block 2, Cottage of Albertville
Two, according to the plat thereof,recorded with the Wright County
Recorder's Office.
NOTE: Each Unit's unit identifier is its lot and block numbers
and the subdivision name.
1
• COMMON INTEREST COMMUNITY NO.30
COTTAGES OF ALBERTVILLE TWO
EXHIBIT "B" TO DECLARATION
DESCRIPTION OF COMMON ELEMENTS
Lot 5, Block 1 and Lot 17, Block 2, Cottage of Albertville Two,
according to the plat thereof, recorded with the Wright County
Recorder's Office.
•
EXHIBIT • •
. •
Intended Use of Subdivision Lots.
•
A. It is the Developer's and City's intent that 16 owner-occupied attached
single family quad homes and 4 owner-occupied attached single family
• duplex homes (for a total of 20 dwelling units) be constructed on the Iots in
Said Plat. Developer agrees that it shall not construct any units other than
said owner-occupied single-family attached dwelling units•on the Iand in
Said Plat, and all such units shall be constructed in the.approximate location
as shown on the Site Plan, attached as Exhibit E.
B. Developer shall record a Declaration of Common Interest Community for
the Cottages of Albertville Two. Said Declaration of Common Interest
Community shall among other things, specify age restrictions consistent
with this agreement, establish a Home.Owner's Association, and shall be in
a form and with content acceptable to the City Attorney.
C. The Cottages of Albertville Two shall be a seniors-only development. At
least one resident in each unit Must be age 55 or older, and no residents •
under the age of eighteen are permitted.
D. No More than two units within Said Plat maybe occupied by employees of •
the Homeowner's Association, or their family members, who are under the
• age of 55. All employees under the age of 55 must perform substantial
duties directly related to housing management or maintenance in order to be
eligible to live on site.
E. The Homeowner's Association must publish and adhere to policies and
procedures that demonstrate an intent to maintain a seniors-only
development. Such all intent shall be'evidenced by procedures, approved by
the City, related to the following areas:
The manner in which the development is described to prospective
residents