99-045 (2)
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(Reserved for recording purposes)
COMMON INTEREST COMMUNITY NUMBER 933
PLANNED COMMUNITY
SHOREWOOD PONDS
DECLARATION
This Declaration is made in the County of Hennepin, State of Minnesota, on this ~
day of (')c.{~ , 1999, by Sylvia Development LP, a Minnesota limited
partnership (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
Common Interest Community Number 933, Shorewood Ponds, a planned community.
WHEREAS, Declarant is the owner of certain real property located in Hennepin
County, Minnesota, legally described on Exhibit A attached hereto and Declarant desires to
submit said real property and all improvements thereon (collectively 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.l-
106 of the Act, governing conversions to common interest ownership, and is not subject to a
master association as defined in the Act;
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THEREFORE, Declarant makes the Declaration and submits the Property to the Act
to establish as a Common Interest Community ("CIC"), Common Interest Community Number
933, Shorewood Ponds, Hennepin County, Minnesota, as a planned community (and not a
condominium or cooperative), consisting of the Units referred to in Section 2, 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. The plat
of Shorewood Ponds, Hennepin County, Minnesota, was recorded with the County Recorder for
Hennepin County, Minnesota, pursuant to Minnesota Statutes Chapter 505, and constitutes the
CIC Plat for this CIC.
SECTION 1
DEFINITIONS
The following words when used in the Governing Documents shall have the following
meanings (unless the context indicates otherwise):
1.1
"Association" shall mean the Shorewood Ponds Association, a nonprofit corporation
which has been created pursuant to Chapter 317 A of the laws of the State of Minnesota
and Minnesota Statutes Section 515B.3-101, whose members consist of all Owners as
defined herein.
1.2
"Board" shall mean the Board of Directors of the Association as provided for in the
By-Laws.
1.3
"By-Laws" shall mean the By-Laws governing the operation of the Association, as
amended from time to time.
1.4
"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.
1.5
"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 this Declaration or the By-Laws.
1.6
"Declaration" means any instrument, however denominated, including any amendment
to the instrument, that creates a common interest community.
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1.7
"Dispose" or "Disposition" means a voluntary transfer to a purchaser of any legal or
equitable interest in the common interest community, but the term does not include the
transfer or release of a security interest.
1.8 "Dwellin~" 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
within the boundaries of the Unit in which the Dwelling is located.
1.9 "Eli~ible Mort~a~ee" 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 "Governin~ Documents" shall mean this Declaration, and the Articles ofIncorporation
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
1.12
1.13
1.14
1.15
1.16
"Member" shall mean all persons who are members of the Association by virtue of
being Owners as defined in this Declaration. The words II Owner " and II Member II may
be used interchangeably in the Governing Documents.
"Occupant" shall mean any person or persons, other than an Owner, in possession of
or residing in a Unit.
"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 II Owner II includes, without limitation, contract for deed
vendees and holders of a life estate.
"Party Wall" shall mean the shared wall between two Dwellings.
"Person" shall mean a natural individual, corporation, limited liability company,
partnership, trustee, or other legal entity capable of holding title to real property.
"Plat" shall mean the recorded plat depicting the Property pursuant to the requirements
of Section 515B.2-110(d) of the Act, and satisfying the requirements of Minnesota
Statutes Chapter 505, 508 or 508A, as applicable, including any amended or
supplemental Plat recorded from time to time in accordance with the Act.
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1.17
"Private Drive" shall mean the internal roadway providing access to Units over the
Common Elements. The Private Drive also serves as a fire lane and shall be
maintained by the Association in a manner which provides unobstructed access to all
Units at all times. All entrance points to the Private Drive shall identify said Private
Drive.
1.18 "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.
1.19 "Rules and Re~ulations" shall mean the Rules and Regulations of the Association as
approved from time to time pursuant to Section 5.6.
1.20
"Special Declarant Ri2hts" means rights reserved in this Declaration for the benefit
of a Declarant to: (i) complete improvements indicated on the CIC plat; (ii) subdivide
units or convert units into common elements, limited common elements and/or units;
(iii) maintain sales offices, management offices, signs advertising the common interest
community, and models; (iv) use easements through the common elements for the
purpose of making improvements within the common interest community or any
additional real estate; (v) create a master association and provide for the exercise of
authority by the master association over the common interest community or its unit
owners; (vi) merge or consolidate a common interest community with another common
interest community of the same form of ownership; or (vii) appoint or remove any
officer or director of the Association, or the master association where applicable,
during any period of Declarant control.
1.21 "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 62 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 515B.2-112 of
the Act except by the Declarant as provided in Section 17.2 and Section 18.2. The
Unit identifiers and locations of the Units are as shown on the Plat, which is
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2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10
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 number and the subdivision name.
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.
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 this Declaration.
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 this Declaration.
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.
Encroachment Easements. Each Unit shall be subject to and shall be the beneficiary
of the appurtenant easements for encroachments as described in Section 13.
Declarant's Easements. Declarant shall have and be the beneficiary of easements for
construction and sales activities as described in Section 17.3.
Recorded Easements. The Property shall be subject to such other easements as may
be recorded against it or otherwise shown on the Plat.
Easements are Appurtenant. All easements and similar rights burdening or
benefitting 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 benefitting or burdening the Property shall
be construed in a manner consistent with, and not in conflict with, the easements
created by this Declaration.
Impairment Prohibited. No person shall materially restrict or impair any easement
benefitting or burdening the Property; subject to this Declaration and the right of the
Association to impose reasonable Rules and Regulations governing the use of the
Property.
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SECTION 3
COMMON ELEMENTS AND LIMITED COMMON ELEMENTS
3.1
Common Elements. The Common Elements and their characteristics are as follows:
a. All of the Property not included within the Units constitutes Common
Elements. The Common Elements include 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 appurtenant easements for services,
public and private utilities, access, use and enjoyment in favor of each Unit and
its Owners and Occupants; subject to (i) the right of Owners and Occupants in
Limited Common Elements appurtenant to their Units and (ii) the right of the
Association to establish reasonable Rules and Regulations governing the use of
the Property.
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
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the original construction to serve a single Unit, and authorized replacements
and modifications thereof, 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:
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
Votin~ 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 Ri~hts and Oblil:ations. 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 designated to act as proxy on
behalf of the Owner, and who need not be an Owner, may cast the vote allocated to
such Unit at meetings of the Association; 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.
4.5
Declarant Control. Notwithstanding the vote of any Unit Owner to the contrary, the
Declarant hereby reserves a period of Declarant control of the Association during
which the Declarant, or persons designated by the Declarant, may appoint and remove
the officers and directors of the Association. Said reservation of Declarant control is
subject to the following:
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a.
The maximum period of Declarant control may extend from the date of the first
conveyance of a Unit to a Unit Owner other than a Declarant for a period not
exceeding three (3) years.
b. Notwithstanding subsection a. above, the period of Declarant control shall
terminate upon the earlier of (i) surrender of control by the Declarant or (ii)
sixty (60) days after conveyance of seventy-five percent (75 %) of the Units to
Unit Owners other than Declarant.
c. Not later than sixty (60) days after conveyance of fifty percent (50%) of the
Units that may be created to Unit Owners other than Declarant or an affiliate
of Declarant, a meeting of the Unit Owners shall be held at which not less than
thirty -three and one-third percent (33 1/3 %) of the members of the Board shall
be elected by Unit Owners other than Declarant or an affiliate of Declarant.
d.
Not later than the termination of Declarant control, the Unit Owners shall elect
a Board of Directors of at least three members. Thereafter, a majority of the
directors shall be Unit Owners other than Declarant or an affiliate of Declarant.
The remaining directors need not . be Unit Owners unless required by the
Articles of Incorporation or By-Laws. All Unit Owners, including the
Declarant and its affiliates, may cast the votes allocated to any Unit owned by
them. The Board shall elect the officers. The directors and officers shall take
office upon election.
e.
In determining whether the period of Declarant control has terminated under
subsection b., or whether Unit Owners other than a Declarant are entitled to
elect members of the Board of Directors under subsection c., the percentage of
the Units which have been conveyed shall be calculated based upon the
assumption that all Units which the Declarant has built or reserved the right to
build in this Declaration are included in the CIC.
f.
Except as otherwise provided in this subsection, meetings of the Board of
Directors must be open to all Unit Owners. To the extent practicable, the
Board shall give reasonable notice to the Unit Owners of the date, time and
place of a Board meeting. If the date, time and place of meetings are provided
for in this Declaration, the Articles of Incorporation or Bylaws of the
Association, were announced at a previous meeting of the Board, posted in a
location accessible to the Unit Owners and designated by the Board from time
to time, or if an emergency requires immediate consideration of a matter by the
Board, notice is not required. "Notice" has the meaning given in Minnesota
Statutes Section 317A.Oll, subdivision 14. Meetings may be closed to discuss
the following:
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(1)
personnel matters;
(2) pending or potential litigation, arbitration or other potentially
adversarial proceedings, between Unit Owners, between the Board or
Association and Unit Owners, or other matters in which any Unit
Owner may have an adversarial interest, if the Board determines that
closing the meeting is necessary to discuss strategy or to otherwise
protect the position of the Board or Association or the privacy of a Unit
Owner or occupant of a Unit; or
(3) criminal activity arising within the CIC if the Board determines that
closing the meeting is necessary to protect the privacy of the victim or
that opening the meeting would jeopardize the investigation of the
activity.
Nothing in this subsection imposes a duty upon the Board to provide special facilities
for meetings. The failure to give notice as required by this subsection shall not
invalidate the Board meeting or any action taken at the meeting.
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 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 to 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
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responsible and (iii) preserving the value and architectural uniformity and character of
the Property.
5.3
Bindinl: 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
Mana2ement. 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 Rel:ulations. The Board shall have exclusive authority to approve and
implement such reasonable Rules and Regulations as it deems necessary from time to
time for the purpose of operating and administering the affairs of the Association and
regulating the use of the Property; provided that the Rules and Regulations shall not
be inconsistent with the Governing Documents or the Act. The inclusion in other parts
of the Governing Documents of authority to approve Rules and Regulations shall be
deemed to be in furtherance, and not in limitation, of the authority granted by this
Section. New or amended Rules and Regulations shall be effective only after
reasonable notice thereof has been given to the Owners.
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 Sections
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.
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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.
b. Any Common Expense or portion thereof benefitting fewer than all of the Units
may be assessed exclusively against the Units benefitted, 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 attorneys fees and other costs 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 515B.3-116(a) of the Act.
f.
Assessments levied under Section 515B.3-116 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 30 days past due, then
the Association may, upon 10 days written notice to the Owner, declare the
entire amount of the assessment immediately due and payable in full.
1.
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.
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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 Sections 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.
a. Until a Common Expense assessment is levied, Declarant shall pay all accrued
expenses of the Common Interest Community.
b. Until January 1 ofthe year immediately following the year of conveyance of the
first Unit to an Owner, the maximum annual assessment permitted with respect
to each Unit shall be $1,068.00 per year or, if collected monthly, $89.00 per
month. From and after January 1 of that year, assessments shall be determined
by the Board.
c.
After a Common Expense assessment is levied, the annual assessment may be
subsequently increased by the Board, subject to Section 6.2 d.
d. Until the termination of the period of Declarant control described in Section
17.6, 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) 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
21 days nor more than 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
foreseen 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
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6.4
6.5
6.6
called for that purpose. Written notice of the meeting shall be sent to all Owners l10t
less than 21 days nor more than 30 days in advance of the meeting.
Workin~ 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.
Liability of Owners for Assessments. The obligation of an Owner to pay assessments
shall commence at the later of (i) the recording of this Declaration or amendment
thereto which creates the Owner's Unit, or (ii) the time at which the Owner acquires
title to the Unit, 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 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 15, in addition to any remedies provided elsewhere
in the Governing Documents or by law, for the purpose of enforcing its rights
hereunder.
Declarant's Alternative Assessment Pro~ram. 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 100 % of the amount
applicable to replacement reserves, but only at the rate of 25 % of the remainder of the
assessment levied on other Units of the same type until a certificate of occupancy has
been issued with respect to such 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
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6.7
6.8
6.9
6.10
the Unit is created, and shall continue until the issuance of the certificate of occupancy
as previously described. 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.
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)(1O), (11) and
(12) of the act are liens, and are enforceable as assessments, under this Section.
Recording of this 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.
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.
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 this
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 a first mortgage on a Unit is foreclosed, the first mortgage was recorded
on or after June 1, 1994, and no Owner redeems during the Owner's period of
redemption provided by Chapters 580, 581, or 582, then the holder of the sheriff's
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.
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
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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, restrictions and obligations set forth in the Governing Documents
are in furtherance of a 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 all Owners and all secured parties holding first mortgages on the Units.
7.3 Elderly Housinl;:. Occupancy of a Dwelling is limited to no more than two (2) adults,
sixty-two (62) years of age or older, except that the age limit need not apply to:
a.
One (1) adult live-in care provider serving the needs of the primary
occupant(s). If such care provider resides in the Dwelling for more than thirty
(30) days, notice must be given to the Zoning Administrator for the City of
Shorewood.
b.
The Declarant and/or the Association shall annually file with the City Clerk and
the Zoning Administrator for the City of Shorewood a certified copy of a
quarterly resume of occupants of each Dwelling listing the name and age of
each occupant.
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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 Leasinl;:/Occupancy. Leasing of the Units shall be allowed, subject to the provisions
of Section 7.3 of this Declaration and 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, and
(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 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
Parkin~. 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 personal property permitted thereon, shall be subject to regulation by the
Association, including without limitation the right of the Association to tow illegally
parked vehicles or to remove unauthorized personal property.
7.7
Animals. No animal may be bred, or kept or maintained for business or commercial
purposes, anywhere on the Property. However, the Board shall have the exclusive
authority to prohibit, or to allow and regulate, by Rules and Regulations, the keeping
of animals on the Property. The word "animal" shall be construed in its broadest sense
and shall include all living creatures except humans.
7.8
Restrictions on Use ofPondin~ Areas. The Association shall have the right to control
and restrict the utilization of ponding areas by Owners, their families, guests and
invitees and shall be entitled to enact and enforce rules and regulations in connection
therewith.
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7.9
Ouiet Enioyment: Interference Prohibited. All Owners 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.
7.10 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.
7.11
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 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.
7.12 Time Shares Prohibited. The time share form 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.
7.13 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 16.
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,
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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.
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 18 shall be governed by that Section.
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
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8.3
9.1
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 and that the
notice was not given.
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 attorneys' fees and costs of
enforcement, whether or not a legal action is started. Such attorneys' 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
Maintenance by Association. 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, garage doors (except hardware), and exterior siding and other building surfaces,
and (ii) provide for lawn, shrub and tree maintenance on all Units; (iii) provide for
snow removal from driveways, walkways and parking areas for all Units. The
Association's obligation to maintain exterior building surfaces shall exclude patios,
entry doors, door hardware, air conditioning equipment, glass and window frames, and
any other items not specifically referred to in this Section, unless otherwise approved
under Section 9.3. The Association shall have easements as described in Section 13
to perform its obligations under this Section 9.
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9.2
Maintenance of Pondin~ Areas. The Association shall maintain any ponding areas
upon the Property as located and shown on the final development plans and the plat on
file with the City of Shorewood. The cost of such maintenance shall be assessed pro-
rata against all Units on the Property in accordance with Section 6 of this Declaration.
9.3 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.
9.4 Maintenance by Owner. Except for the exterior maintenance required to be provided
by the Association under Section 9.1 or 9.3, all maintenance of the Dwellings and
Units shall be the sole responsibility and expense of the Owners thereof. 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.
9.5
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 ofthe 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 wall built as part of the original construction
of the Dwellings 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 the 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, any 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 assigns 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 fees or other
costs to prove its case.
SECTION 11
INSURANCE
11.1
Required Coverage. The Association shall obtain and maintain, at a minimum, a
master policy of insurance in accordance with the insurance requirements as set forth
in the Act and the additional requirements set forth herein, issued by a reputable
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insurance company or companies authorized to do business in the State of Minnesota,
as follows:
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 the
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 per
occurrence, against claims of 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 financing a mortgage on a Unit.
c.
Fidelity bond or insurance coverage against dishonest acts on the part of
directors, officers, managers, 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 name 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 on 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 (ii) a sum equal to three
months aggregate assessments on all Units plus reserves. An appropriate
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endorsement to the policy to cover 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.
e.
Directors and officers liability insurance with such reasonable limits and
coverages as the Board shall determine from time to time.
f.
Such other insurance as the Board may determine from 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 Subrol:ation. 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 30 days prior
written notice to the Association, to the FHA or FNMA (if applicable), all of the
insureds and all Eligible Mortgagees.
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11.6
Restoration in Lieu of Cash Settlement. All policies of property insurance
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 option
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.
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 to 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 upon. Notice of substantial damage or destruction shall be
given pursuant to Section 20.10.
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 20.10. 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 appear.
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12.3
13.1
13.2
13.3
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 a Eligible Mortgagee pursuant to
Section 20.10.
SECTION 13
EASEMENTS
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, patios, utility installations and other
appurtenances (i) which are part of the original construction on 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 improvement 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, 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 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.
Easement for Maintenance. Repair. Replacement and Reconstruction. Each Unit,
and the rights of the Owner and Occupants thereof, shall be subject to 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.
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 utility companies providing service to the Units for
the installation and maintenance of utility metering devices.
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13.4
Continuation 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 easements 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.
13.5 Structural Encroachments. Except as otherwise specifically provided in this Section
13, no structural encroachments shall be allowed within easements.
SECTION 14
LITTER CONTROL
Two clean-ups of litter and other non-natural material from the Common Elements and
yard. areas shall be conducted each year, once subsequent to the last snow melt in the spring and
prior to May 15, and once between September 15 and November 1 in the fall. In addition, any
fences, berms, plantings and improvements on Common Elements and yard areas shall be kept in
good repair and condition, including painting of fences, if required, and proper watering and
maintenance of plantings.
SECTION 15
COMPLIANCE AND REMEDIES
Each Owner and Occupant, and any other Person owning or acquiring any interest in
the Property, shall be governed by and comply with the provisions of the Act, the Governing
Documents, the Rules and Regulations, 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.
15.1
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 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.
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15.2
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 anyone 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 15 % of each late payment of an assessment or
installment thereof.
c. In the event of default of more than 30 days in the payment of any assessment
or installment thereof, all remaining installments of 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 for 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 or patio easements, appurtenant
to the Unit, and those portions of the Common Elements providing utility
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 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.
g.
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
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15.3
15.4
15.5
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.
Ri~hts to Hearin~. In the case of imposition of any of the remedies authorized by
Section 15 .2.d., e., or f. 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 10 days within which to request a hearing. The hearing shall be
scheduled by the Board and held within thirty days of receipt of the hearing request by
the Board, and with at least 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 days following the hearing, if not delivered to the offender at
the hearing.
Lien for Char~es. 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.
Costs of Proceedin~ and Attorneys 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 attorneys' fees, and interest (at the highest rate
allowed by law) on the delinquent amounts owed to the Association.
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15.6
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 rate resulting from the Owner's acts or
omissions may be assessed against the Owner responsible for the condition and against
his or her Unit.
15.7 Enforcement by Owners. The provisions of this Section shall not limit or impair the
independent fights of other Owners to enforce the provisions of the Governing
Documents, the Rules and Regulations, and the Act as provided therein.
16.1
16.2
16.3
16.4
SECTION 16
RIGHTS GRANTED TO THE CITY OF SHOREWOOD
Purpose. The City of Shorewood has executed various agreements with and secured
certain covenants from the Declarant and has a continuing interest in the performance
of those agreements and covenants. Further, the City of Shorewood is concerned that
all conditions requested by the City of Shorewood are complied with and that the
Property is developed and maintained in accordance with the plan contemplated by this
Declaration.
Release of Liability. The Declarant, for itself, its successors and assigns and, by
accepting a conveyance of a Unit, any Owner, for himself, his family and invitees,
release and shall hold harmless the City of Shorewood (including its elected and
appointed officials, employees, servants and agents) from all liability for enforcement
or for nonenforcement of this Declaration, and further expressly acknowledge that the
City of Shorewood is not obligated to perform or to enforce performance by the
Declarant, the Association or others of any obligations contained in this Declaration.
Specific Ri2hts Enforceable by the City of Shorewood. The City of Shorewood, at
its option and in its sole discretion, may enforce for the benefit of itself the specific
provisions of Sections 7, 8, 9 and 13 of this Declaration.
Notice and Procedure. In the event the Declarant and/or the Association fail to
perform any obligation referred to in Section 16.3, the City of Shorewood, after 10
days' written notice to the Declarant and/or the President or Secretary of the
Association, perform such obligations (directly or with contract personnel or by
personnel of the City of Shorewood). The Declarant, Association and all Owners
hereby waive all notice requirements except as hereinabove provided and further waive
all procedural and other objections to action taken by the City of Shorewood.
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16.5
16.6
16.7
Payment for City Maintenance. The Association, Declarant and Owners shall
reimburse the City of Shorewood or its designee, on demand, for the costs of any
Declarant, Association or Owner obligations undertaken by the City of Shorewood or
its designee pursuant to this section. Such costs, including but not limited to
reasonable attorneys' fees and costs and expenses incurred in connection with
collection, shall be an obligation of each Owner enforceable in any way available to the
city under law.
Ri2ht to Assess. In addition to the right of collection as stated in Section 16.5, the
City of Shorewood may, in any assessment year, levy against the Units an assessment
for all costs and expenses incurred by the city or its designee pursuant to this section.
The assessment shall be prorated among all Units and shall be enforceable by the city
in the same manner as provided in Section 6 of this Declaration.
Exclusive Ri~hts. The rights granted by this section are exclusive to the City of
Shorewood and may be exercised only by the city, in its sole discretion. No other
person or entity, including the Association, the Declarant or Owners, whether or not
a resident of Shorewood, shall be entitled to request or require the city to act pursuant
to this section. The rights of the City of Shorewood under this section cannot be
rescinded, canceled or amended by the Declarant or the Owners without the written
consent of the City.
SECTION 17
SPECIAL DECLARANT RIGHTS
Declarant hereby reserves exclusive and unconditional authority to exercise the
following special declarant rights within the meaning of Section 515B.I-103(31) of the Act for as
long as it owns a Unit, or for such shorter period as may be specifically indicated:
17.1
17.2
17.3
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 this Declaration, and to make alterations in the Units and Common
Elements to accommodate its sales facilities.
Relocate Boundaries and Alter Units. To relocate boundaries between Units and to
otherwise alter Units owned by it, to the extent permitted by Section 18.2.
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.
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17.4
Si~s. 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.
17.5 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.
17.6 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 515B. 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 60 days after conveyance to Owners other than a Declarant of 75 % of
the total number of Units authorized to be included in the Property or (iii) the date
three (3) 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 33-1/3% of the directors at a
meeting of the Owners which shall be held within 60 days following the conveyance
by Declarant of 50% of the total number of Units authorized to be included in the
Property.
17.7
Consent to Certain Amendments. As long as Declarant owns any unsold Unit,
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.
SECTION 18
RIGHTS TO ADD ADDITIONAL REAL ESTATE,
RELOCATE UNIT BOUNDARIES AND ALTER UNITS
18.1 Declarant's Ril:hts to Add Additional Real Estate. Declarant has not reserved the
right to add Additional Real Estate to the Property by unilateral action under Section
515B.2-111 of the Act.
18.2 Ri~hts 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.
Combininl: 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.
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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. Additional Units may be created by the Declarant
in the manner provided in Section 515B.2-112 of the Act by the subdivision or
conversion of a Unit (within the meaning of the Act) into two or more Units,
or 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)
(3)
(4)
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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.
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.
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
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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 19
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 20 as
to matters prescribed by said Section, (iii) the City of Shorewood and (iv) the consent of Declarant
to certain amendments as provided in Section 17.7. 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, the City of Shorewood 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.
SECTION 20
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:
20.1
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) assessments, assessment
liens, or priority of assessment liens; (iii) reserves for maintenance, repair and
replacement of Common Elements; (iv) responsibility for maintenance and repairs; (v)
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20.2
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20.3
20.4
20.5
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reallocation of interest 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)
insurance or fidelity bonds; (x) leasing of Units; (xi) imposition of any restrictions on
an Owner's right to sell or transfer his or her Unit; (xii) a decision by the Association
to establish self management when professional management is in effect as required
previously by the Governing Documents or an Eligible Mortgagee; (xiii) restoration
or repair of the Property (after a hazard 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 Eligible
Mortgagees, or insurers or guarantors of mortgages.
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 held
by Eligible Mortgagees (based upon one vote per first mortgage owned) shall be
required to (i) abandon or terminate the common interest community; (ii) change the
allocations of voting rights, Common Expense obligations or interest in the Common
Elements; (iii) partition or subdivide a Unit except as permitted by statute; (iv)
abandon, partition, subdivide, encumber or sell the Common Elements; or (v) use
hazard insurance proceeds for other than the repair, replacement or reconstruction of
the Property, except as otherwise provided by law.
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.
No Ri2ht 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.
Priority of Lien. Any holder of a first mortgage 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 6.9 and the Act and (ii) except that any unreimbursed assessments
or charges may be reallocated among all Units in accordance with their interests in the
Common Elements.
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20.6
Priority of Taxes and Other Char2es. 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.
20.7 Priority for Condemnation A wards. 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.
20.8 Requirements for Mana2ement A2reements. 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.
20.9
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.
20.10
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 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;
b.
a 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; and
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d.
a proposed action which requires the consent of a specified percentage -of
Eligible Mortgagees.
SECTION 21
MISCELLANEOUS
21.1 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.
21.2 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.
21.3
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 render 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.
21.4
Notices. Unless specifically provided otherwise in the Governing Documents or the
Act, all notices required to be given by or to the Association, the Board of Directors,
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.
21.5
Conflicts Amoni: Documents. In the event of any conflict among the provisions of
the Act, this Declaration, the By-Laws or any Rules or Regulations approved by the
Association, the Act shall control. As among this Declaration, the By-Laws and Rules
and Regulations, this Declaration shall control, and as between the By-Laws and the
Rules and Regulations, the By-Laws shall control.
21.6
Variances. The restrictions applicable to Property as specified in Section 7 of this
Declaration are intended for the benefit of all Property Owners. The Declarant,
however, acknowledges that exceptional conditions of a particular Property may create
peculiar and practical difficulties mitigating against the strict enforcement of a
provision contained in Section 7. In the event an Owner believes that such exceptional
conditions on Property create a hardship or special situation, an Application for
Variance may be made by an Owner through the Board in accordance with Section 8.2
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of this Declaration. An Application for Variance shall state on the application the
reasons for allowing the variance, including: (i) there are special circumstances or
conditions affecting the Property such that the strict application of a provision of this
Declaration would deprive the Owner of the reasonable use of the Property; (ii) the
variances are necessary for the preservation and enjoyment of a substantial property
right of the Owner; (iii) the granting of the variance will not be detrimental to the
public welfare or injurious to other Owners or Property subject to this Declaration; and
(iv) the issuance of the variance will not have an adverse effect upon the health,
welfare and safety of the Owners benefitted by this Declaration. In considering a
request for a variance from the strict application of Section 7 of this Declaration, the
Board shall make a finding showing that all of the foregoing conditions exist and the
Board may impose any reasonable condition in the granting of such variance in order
to protect other Property and Owners.
IN WITNESS WHEREOF, the undersigned has executed this instrument the day and
year first set forth in accordance with the requirements of the act.
Minnesota
SYLVIA DEVELOPMENT LP, a
Minnesota limited partnership
By:
SYLVIA DEVELOPMENT,
INC., a Minnesota corporation,
i.ts G.e nera! partne. r / ~ A
~aL~ \,
Robert W. Schmidt
Its President
By:
IVW\
By:
ames C. Hurm
ts City Administrator/Clerk
P:\AuomeyVLB\Documents\Sylvia J 32-01. Declaration-FINAL. wpd
37
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STATE OF MINNESOTA
)
) ss.
)
COUNTY OF HENNEPIN
The foregoing instrument was acknowledged before me this :l$~ day of
()(t~(, , 1999, by Woody Love and James C. Hurm, the Mayor and the City
Administrator/Clerk of the City of Shorewood, a Minnesota municipal corporation, on behalf of
said municipal corporation.
.
THERESA L. NAAB I
NOTARY PUBUC.YINNESOTA
My Commission Expire. Jan. 31, 2000
.
~~~
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this a2L1. day of
O(_i:.,.~' -' , 1999, by Robert W. Schmidt, the President of Sylvia Development, Inc., a
Minnesota corporation, the general partner of Sylvia Development LP, a Minnesota limited
partnership, on behalf of said limited partnership.
tI
7 {UZt7 {~
Notary Public
E {!,iur'
THIS INSTRUMENT DRAFTED BY:
JENSEN SWANSON & SONDRALL, P.A.
8525 Edinbrook Crossing, Suite 201
Brooklyn Park, MN 55443
(612) 424-8811
P:\AuomeyVLB\Documents\Sylvia I 32"()7. Declaration-FINAL. wpd
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EXHIBIT A TO DECLARATION
COMMON INTEREST COMMUNITY NO. 933
PLANNED COMMUNITY
SHOREWOOD PONDS
SCHEDULE OF UNITS/LEGAL DESCRIPTION OF PROPERTY
Lots 1 through 25, inclusive, Block 1; and Lots 1 through 39, inclusive, Block 2; SHOREWOOD
PONDS, Hennepin County, Minnesota.
NOTE: Each Unit's unit identifier is its lot number, SHOREWOOD PONDS, COMMON
INTEREST COMMUNITY NUMBER 933, Hennepin County, Minnesota.
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EXHIBIT B TO DECLARATION
COMMON INTEREST COMMUNITY NO. 933
PLANNED COMMUNITY
SHOREWOOD PONDS
LEGAL DESCRIPTION OF COMMON ELEMENTS
Lot 25, Block 1 and Lot 39, Block 2, SHOREWOOD PONDS, Hennepin County,
Minnesota.