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062491 CC Reg AgP ~ CITY OF SHOREWOOD CITY COUNCIL MEETING MONDAY, JUNE 24, 1991 COUNCIL CHAMBERS 5755 COUNTRY CLUB ROAD 7:00 P.M. AGENDA 1. CONVENE REGULAR CITY COUNCIL MEETING A. Pledge of Allegiance B. Roll Call stover Daugherty Lewis Mayor Brancel Gagne C. Review Agenda 2. APPROVAL OF MINUTES A. Regular City Council Meeting - June 10, 1991 (Att.No.2A-Minutes) 3. CONSENT AGENDA A. A Request for Painting House Numbers on Curbs (Att.No.3A-Applicant's Letter) 4. COMMISSION REPORTS A. Planning Commission B. Park Commission 5. PROPOSED RESOLUTION ON SETBACK VARIANCES Applicant: Location: John 5580 ~~:~~~~ D~ i V~ +bun.r0ls :Pi. f<cL (Att.No.5A-Planner's Report-May 5B-Planner's Report, June 17, 5C-Proposed Resolution) 30, 6. SIMPLE SUBDIVISION/LOT WIDTH VARIANCE - DIRECT PREPARATION ON FINDINGS OF FACT Applicant: A.J. Meldahl Location: 6180 Cathcart Drive (Att.No.6A-Planner's Memo, 6B-Applicants Letter, 6C-Minutes) CITY COUNCIL AGENDA - JUNE 24, 1991 Page Three 17. STAFF REPORTS A. Attornev's Report B. Enqineer's Report 1. Report on Badger Field Warming House 2. Report on Church Road/T.H.7 Intersection Changes by MnDOT C. Planning Direc~or's Report 1. Shorewood Oaks Subdivision - Petition (Att.No.17C-1-Planner's Memo, June 14) 2. Report on Shorewood Rental Housing Code 3. Planner's Report on Sign Requirements - Waterford P.U.D. (Att.No.17C-3-planner's Report) D. Administrator's Report 1. Report on City Council Work Session - June 19th 2. Schedules a) Operating Budget b) Capital Improvement Plan/Budget c) Work Sessions 18. COUNCIL REPORTS A. Mavor Brancel B. Councilmembers 1. Request for a Review of Traffic Controls (Stover) 19. ADJOURNMENT SUBJECT TO APPROVAL - PAYMENT OF THE CLAIMS (Att.No. 19-Claims) 6;19/91 . h' I. EXECUTIVE SUMMARY SHOREWOOD CITY COUNCIL AGENDA JUNE 24, 1991 AGENDA ITEM 3A - Central Curb Company of Mankato is asking permission to ask residents if they wish to have their house number painted on curb. There is nothing in our Code which prohibit or restrict this activity, however, the curbs are in Shorewood City r.o.w. and therefore, I told him City Council permission is necessary. Don Zdrazil has no problem with this proposal as long as everyone understands that the City has nothing to do with nor any responsibility for this as the numbers become worn or faded over the years. A simple motion would be in order authorizing the request if the Council should so choose. AGENDA ITEM 5 - The set back variance Of John Einhorn, 5580 Howard's Point Road, is being recommended for denial. The Planner's memorandum of May 30, 1991, is enclosed. The Planning commission has found that the applicant has not demonstrated that a hardship exists which prevents him from making reasonable use of his property without a variance. The action is to adopt the a resolution and findings of fact. Since the last Council meeting Mr. Einhorn has raised a number of issues relative to this variance. Please review Planner Nielsens' responses to those issues in the June 17, 1991 in the packet. AGENDA ITEM 6 - The following are among the conditions recommended for the approval of the subdivision and lot width variance request of A.J. Meldahl, 6180 Cathcart Drive: there must be a seventeen foot r.o.w. dedication along on 62nd Street, a ten foot drainage and utility easement must be accounted for on the rear and side lot lines, $1,500 in Park Dedication fees should be paid. The applicant should revise the survey to show lot widths of at least one hundred twenty feet. The Planning Director and Planning commission have recommended denial of the requested width variance. AGENDA ITEM 7 - Steve Pahl, 24860 smithtown Road, has received Notice to Remove junk. He is requesting an extension of time to July 3, 1991. AGENDA ITEM 8 - Staff is still attempting to meet wi th area property owners to discuss the issues around the City'S requiring a certain makeup for the architectural review board for the Johnson Addi tion. If a meeting can be held before the Monday meeting, Brad Nielsen and Attorney Froberg will report to the City Council. A copy of Resolution 42-91 is enclosed in the packet. . . . . EXECUTIVE SUMMARY - CITY COUNCIL MEETING JUNE 24, 1991 - PAGE TWO AGENDA ITEM 9 - The Waterford Declaration of Covenants, Conditions and Restrictions enbodies all terms and conditions of the private development that are necessary to preserve the on-going conditions of the use of the property. AGENDA ITEM 10 - This proposed Ordinance is required by Hennepin County. It requires that multiple-family dwellings containing more than eight units contract for recycling services. AGENDA ITEM 11 This Resolution is intended to officially establish and set parameters for the temporary transportation task force for studying traffic control on Old Market Road. Please review carefully to be sure that the intent of the Council is incorporated. AGENDA ITEM 12 - An Ordinance has been drafted for Council consideration in anticipation of continued discussion on the issue of allowing sprinkler systems in the City's r.o.w., as applications continue to come in. This Ordinance addresses the major concerns by staff by requiring Administrative Permit and the recording of a waiver of City responsibility. This is apparently already some- what prevalent in the community. It would be the intent of staff to require those systems already in the City r.o.w. to acquire a permit. This is intended as an option for Council consideration. AGENDA ITEM 13 - Ronald Leaf, 19790 Near Mountain Boulevard, is requesting a permit for the installation of underground sprinkling system in the r. o. w.. Disposi tion of this request depends upon the discussion and action on the previous item. AGENDA ITEM 14 - A standard Resolution is enclosed approving the plans and specifications regarding the Church Road Improvement between the north end of Church Road and its intersection West 62nd Street. AGENDA ITEM 15 - Liquor Store Manager Bill Josephson is proposing a new type of arrangement with a collection agency for collection of Liquor Store bad checks. The proposed contract is enclosed in the packet along with a Finance memorandum summarizing a recent meeting on this issue. AGENDA ITEM 17C-3 - Planner Nielsen is asking the Council on a preliminary basis whether the City might be willing to grant a request to keep identification signage on the corner of Old Market Road/Covington for four months thru September 30, 1991. This request is coming from Paul Steiner, representing Trivesco. 6/19/91 al ,--- .. - CITY OF SHOREWOOD REGULAR CITY COUNCIL ME4ItNG MONDAY, JUNE 10, 1991 COUNC !,IiIlIlE~AMBERS 5755 ~RY CLUB ROAD PAGE 1 M I NUT E S CALL TO ORDER Mayor Brancel called the meeting to order at 7:00 P.M. PLEDGE OF ALLEGIANCE ROLL CALL Present: Mayor Brancel, Councilmembers Gagne, stover, Daugherty and Lewis, City Attorney Froberg, City Engineer Dresel, Planner Nielsen. Absent: City Administrator Hurm REVIEW AGENDA Daugherty moved, Gagne seconded, to approve the agenda with the following corrections: 1. Erancel asked item 17D-l be removed. 2. Nielsen asked item 12 be postponed until the 28th and that item 8 be tabled until the 28th. Motion carried - 5/0 Daugherty moved, Gagne seconded, to table item no. 8 the Review of the Preliminary Plat of Johnson's First Addition until the 28th. Motion carried - 5/0. APPROVAL OF MINUTES A. Regular City Council Meeting Minutes - May 28, 1991 Gagne moved, Stover seconded to approve the City Council Minutes of May 28, 1991 with the following corrections: 1. Pg. 4 - 5th Par. from bottom - IIDresel said OSM'S contract estim~tes 15%.11 2. Pg. 7 - top of page - IIGa.gne moved, Stover seconded, to ~ccept the Fin~nci~l An~lysis of Old M~rket Ro~d Intersection.1I 0211 1 , -.. CITY OF SHOREWOOD - REGULAR CITY COUNCIL M~NG MONDAY. JUNE 10. 1991 COUNC~HAMBERS 5755 RY CLUB ROAD PAGE ( 3. Pg. 9 - the motion for assessment should state - "Stover moved. Gagne seconded. to include only the properties included in the S. E. Area Trunk Water System of Shorewood in the area to be assessed for the water treatment plant." Motion carried - 5/0 CONSENT AGENDA RESOLUTION NO. 56-91 RESOLUTION NO. 57-91 RESOLUTION NO. 58-91 Gagne moved. Stover seconded. to approve the following Consent Agenda: A. Adopt RESOLUTION NO. 56-91 "A Resolution Approving Permanent Transfer of Funds Previously Transferred from the General Fund to Park Capital Improvement Fund. II B. Adopt RESOLUTION NO. 57-91 "A Resolution-Approving Refuse Collector's License - Randyls Sanitation. Inc. II C. Adopt RESOLUTION NO. 58-91 "A Resolution Authorizing the City of Shorewood to enter into an Agreement with Minnegasco to Provide Community Energy Services. II Motion carried - 5/0 on a roll call vote. COMMISSION REPORTS: A. PLANNING COMMISSION Councilwoman Stover said the items recommended by the Planning Commission are on the agenda. B. PARK COMMISSION No representative from the Park Commission was present. Councilmember Lewis said he was unable to attend the last Park Commission meeting. 1. Request for South Shore Softball League Tournament June 21 - 23 - Freeman Park Lewis moved. Gagne seconded. to approve the request for South Shore Softball League Tournament. June 21-23 at Freeman Park subject to the conditions established by the Park Commission. Motion carried - 5/0 2 r . CITY OF SHOREWOOD . REGULAR CITY COUNCIL ME G MONDAY, JUNE 10, 1991 COUNC~w.!:!AMBERS 5755 ~RY CLUB ROAD PAGE 3 ( PROPOSED RESOLUTION APPROVING THE PRELIMINARY PLAT - THOMPSON ADDITION RESOLUTION NO. 59-91 Applicant: Location: Charles Thompson 5260 St. Albans Bay Rd. Stover said the Planning Commission voted. unanimously, to approve the Thompson Preliminary Plat. Stover moved, Gagne seconded, to adopt RESOLUTION NO. 59-91 "A Resolution Granting Preliminary Plat Approval for Thompson Additionll, subject to the Planner recommendations. II Motion carried - 5/0 DIRECT PREPARATION OF RESOLUTION AND FINDINGS OF FACT - SETBACK VARIANCES Applicant: Location: John Einhorn 5580 Howard's Point Road Stover said the Planning Commission unanimously recommended denial of the variances because there was no demonstrated hardship. Brancel asked Nielsen for his comments. He said he would comment later. JOHN EINHORN - 5580 HOWARD'S POINT ROAD Einhorn said he has lived at his current address all his life and this request for variance is a once in a life time request. Einhorn said he was lead to believe that his easterly setback could be justified by the application of an average setback, as provided in Section 1201.03 Subd. 3. This section is applied when adjacent homes are closer to the street than allowed by ordinance. At the Planning Commission hearing, Planner Nielsen's report indicated that this section can only be applied when the homes are on the same block. Island View Road separates Einhorn's home from his neighbor and constitutes a block change. Einhorn provided copies of the House Numbering section of the Zoning Ordinance to support his idea that a city street does not constitute a block change. He said the average setback can be applied to his house, using the house at 5530 Island View Road as part of the same block. Einhorn also said the wording of sideyard setback was changed in Nielsen's memo. The side yard setback is 50 ft. on a side yard abutting a public right-of-way and he said Island View is not a public right-of-way. Planner Nielsen stated that there must be a house adjacent to Einhorn for the average setback to apply and Island View separates the houses. If Island View is considered a lot and not a road the setback would be 50 Ft. He said Island View is considered a public street for purposes of setback requirements. ~ " '-' r CITY OF SHOREWOOD REGULAR CITY COUNCIL ME~NG MONDAY, JUNE 10, 1991 COUNC~~AMBERS 5755 ~lRY CLUB ROAD PAGE 4 Nielsen said he would like to table the discussion of this request, so the staff can respond to Einhorn's presentation. Stover said there was a lengthy discussion at the Planning Commission about what constitutes a street. She said Island View has been used as a road for a long time. She said Nielsen suggested repositioning the house on the lot so that no variances would be required. Stover said the Einhorns want to have a view of the lake and this is not sufficient reason to grant a variance. City Attorney Froberg said he could prepare findings of fact while the staff is researching Einhorn's requests. stover moved, Gagne seconded, to direct the City Attorney to prepare findings of fact to deny the request for variances for John Einhorn at 5580 Howard's Point Road for consideration by the Council at it's next meeting. Motion carried - 5/0 PETITION OF SHOREWOOD OAKS SUBDIVISION RESOLUTION NO. 63-91 RESOLUTION NO. 64-91 RESOLUTION NO. 65-91 Monique R. Droege presented the petition of the Shorewood Oaks residents for the placement of stop signs on Shorewood Oaks Drive, Maple Leaf Circle, Burlwood court and Oak Leaf Trail and the reduction of the speed limit to 15 MPH. The petition also requests SLOW CHILDREN AT PLAY signs. Droege said there are many small children in the area and cars speed along Shorewood Oaks Drive. It is used as a cut through street to HwY. 7 because a right turn lane is provided on HwY 7. She said if a right turn lane was put in a Church Road, the traffic might be reduced. Brancel said Public Works Director Zdrazil recommended stop signs only at each end of Shorewood Oaks Drive and each end of Oak Leaf Trail. Also, at the intersection of Burlwood Court and Maple Leaf and Shorewood Oak Drive. She said a 15 MPH speed limit will need the approval of the State of Minnesota. The police department said a 15 MPH speed limit is not enforceable. Engineer Dresel said MN/Dot is looking at a turn at Church St. Nielsen said the City can request a speed study of Shorewood Oaks Drive from the State. Stover asked Droege if the residents had requested police patrol of the road. Droege said they had but have not seen the police yet. Droege asked if the city could install CHILDREN AT PLAY signs. Nielsen said these are not effective. Councilmember Daugherty asked the Nielsen if there could be some safety measure introduced until the speed study is done. Councilmember Gagne ~sked Dresel to ask Mn/Dot if the Church Road turn lane is being considered. 4 ,.------ - CITY OF SHOREWOOD REGULAR CITY COUNCIL ~NG MONDAY, JUNE 10, 1991 COONC~CHAMBERS 5755 RY CLUB ROAD PAGE Stover moved, Gagne seconded, to adopt RESOLUTION NO. 63-91 "A Resolution requesting the State of Minnesota to do a speed study of Shorewood Oaks Drive. II Motion carried 5/0 on a roll call vote. Stover moved, Gagne seconded, to adopt RESOLUTION NO. 64-91 "A Resolution directing the placement of Stop Signs at both ends of Oak Leaf Trail and Shorewood Oaks Drive, Maple Leaf Circle at Shorewood Oaks Drive and Burlwood Court and Shorewood Oaks Drive. II Motion carried - 5/0 on a roll call vote. Droege asked the Council how long it will take to do the speed study. Nielsen said it could take several weeks. He said the City and neighborhood can request additional patrols from the police dept. He said this can be very effective. Daugherty moved, Gagne seconded, to adopt RESOLUTION NO. 65-91 "A Resolution requesting two 30 MPH speed limit signs at Maple Leaf Circle and Shorewood Oaks Drive and one sign at Strawberry Lane and Shorewood Oaks Drive. II Motion carried - 5/0 on a roll call vote. REVIEW CITY POLICY ON WATERMAIN ASSESSMENTS RESOLUTION NO. 66-91 AND REVISED ENGINEER'S REPORT ON PINE BEND WATERMAIN EXTENSION Dresel said two residents already had water services available to their houses and did not want to be assessed for the Pine Bend project. He said without these houses the assessment of the Pine Bend_project will rise 20% for the remaining homes. He said the City could pay the additional $8000 out of the water fund, to be replaced when the two homes are hooked up. Stover said this would constitute a change in the City's policy and if the project hinges on a change in the water policy it will not get done. She asked if a new public hearing will be necessary because of the change in price. Dresel said yes. Daugherty asked if the City could assess the properties for the water even though they already have access to water, because they are in the project area. Dresel said the City must prove benefit to these residents. The City cannot assess someone for something they already have. Gagne said this is another discussion on the City's water policy and he wants to have a study session to discuss the problem. He thought the Council had established a policy of majority rule when assessing properti_es for water. He said the City should take $8000 out of the water fund for the project. 5 CITY OF SHOREWOOD . REGULAR CITY COUNCIL M NG MONDAY. JUNE 10. 1991 COUNC __C~AMEERS 5755 ~RY CLUB ROAD PAGE 6 BILL KEELER He said he understood that if 51% of the residents requested the water project. it would be done. He said a 20% increase would be a problem and a public hearing might have to be held. Keeler said the water policy should have been change in 1977 when it was considered. He feels many residents along Howard's Point Road would be in favor of a water system. Gagne moved. Brancel seconded. to adopt RESOLUTION NO. 66-91 "A Resolution Affirming the Order for the Improvement and the Preparation of Plans and Specifications for the Pine Bend project. with the understanding that $8000 will be paid by the City out of the water fund toward the project cost. II Motion carried - 3/2 (Stover. Lewis) Erancel and Lewis said another public hearing-should be held because of the increase in cost. Gagne and Brancel want to have a study session to discusss the City's water policy. Lewis and Stover did not want the City to subsidize water projects; it sets a precedent. RESOLUTION AUTHORIZING THE PLACEMENT OF "NO PARKING" SIGNS ON BROMS BOULEVARD (Trunk Highway 7 Frontage Road) Stover moved. Gagne seconded. to adopt RESOLUTION NO. 60-91 "A Resolution Authorizing the Placement of IINo Parkingll signs on Broms Boulevard." RESOLUTION 60-91 Motion carried - 5/0 on a roll call vote. Dresel said the cost of the sign would be part of the Waterford III plan. CONSIDER POLICY PROMOTION THE USE OF MATERIALS WITH RECYCLED CONTENT IN PUBLICLY FUNDED CONSTRUCTION AND REMODELING PROJECTS Dresel told the Council that some recycled building materials is poor quality. He asked if OSM will be required_to use all recycled material. Froberg said the City is just encouraging builders to use the material. Gagne moved. Daugherty seconded. to adopt a policy to encourage the use of recycled materials in publicly funded construction and remodeling projects. Motion carried - 5/0 6 CITY OF SHOREWOOD REGULAR CITY COUNCIL ME~G MONDAY, JUNE 10, 1991 COUNC~w.!!AMEERS 5755 ~TRY CLUB ROAD PAGE 7 PROPOSED RESOLUTION TO ADOPT SOLID WASTE SOURCE REDUCTION PLAN RESOLUTION NO. 61-91 ( Lewis moved, Daugherty seconded, to adopt RESOLUTION NO. 61-91 "A Resolution Adopting the Solid Waste Reduction Plan" Motion carried - 5/0 Gagne moved, Brancel seconded, to instruct the attorney to prepare an ordinance requiring property owners to provide recycling opportunities for their tenants. Motion carried - 5/0 PROPOSED RESOLUTION URGING THE RESOLUTION NO. 62-91 HENNEPIN COUNTY BOARD TO ADOPT A LOCAL OPTION SALES TAX Gagne moved, Stover seconded, to adopt RESOLUTION NO. 62-91 "A Resolution Urging the Hennepin County Board to Adopt a Lacal Option Sales Tax." Motion carried - 5/0 Stover said the City has no choice in urging the County to do this. Lewis agreed. They both stated that the City would lose State Aid if the sales tax is not adopted and the passage of this law was ridiculous. MATTERS FROM THE FLOOR. There were no matters from the floor. STAFF REPORTS: A. ATTORNEY'S REPORT The attorney had no report. B. ENGINEER'S REPORT The engineer had no report. C. PLANNING DIRECTOR'S REPORT The planner had no report. D. ADMINISTRATOR'S REPORT Nielsen reported for Administrator Hurm. 1. Report on request for Sign Replacement - Amesbury. 7 CITY OF SHOREWOOD REGULAR CITY COUNCIL ~NG MONDAY, JUNE 10, 1991 COUNC~C~AMBERS 5755 ~TRY CLUB ROAD PAGE 8 Public Works Director Zdrazil will speak to Mr. Berkley concerning the problem with signage. 2. Report on Public Works Site Improvement Nielsen said the grading is proceeding. Hurm recommends the City postpone building the salt shed until next year and build it in conjunction with the garage. He said there is interest by other communities in the area to share the facility but there hasn't been time to draw UP an agreement. Brancel said she talked to Hurm and he felt a needs analysis should be done first. Stover said she does not want to wait another year for the shed. She said the refinishing of the parking lot has had to be delayed until the shed was built and it could take years to work out an agreement with the surrounding cities. She said joint action is a good idea but not when it stops progress. Nielsen said the size of the building is the main concern. A plan drawn up that can be adjusted. Lewis and Gagne wanted have the discussion when Hurm is present. Gagne wanted to proceed. The Council agreed to delay the discussion until Hurm could attend the meeting. 3. Review memorandum on the Transportation Task Force Regarding Old Market Road Brancel said there is no officially appointed Transportation Task Force. Gagne and Stover said the budgeted amount should not be spent until the intersection is built. Lewis said the Task Force has nothing to consider until the intersection is started. Daugherty said he thought the task force would start when the bond purchase agreement was signed. Brancel said she checked the minutes and it said when the intersection is in. Lewis said he thought the Task Force input should be in before the intersection is done. He also said the money is ear marked for a traffic study in a particular area (Old Market Road). BREAK 9:00 - 9:10 Lewis said the traffic study should be done when Mn/Dot approves the intersection. Brancel said she would like to discuss the subject at the next meeting when Hurm is present 8 CITY OF SHOREWOOD __~ REGULAR CITY COUNCIL ~NG MONDAY, JUNE 10. 1991 COUNC~CHAMBERS 5755 ~RY CLUB ROAD PAGE 9 ( Lewis asked the Council to approve the list of Task Force members. He said there is a group of people who will be adversely affected by this project. Stover said she thought other residents of the area are affected by the intersection, not just Old Market Road. She wanted more people involved in the Task Force. Nielsen said the Task Force was established to study the Old Market Road intersection. He said the Council should agree on the objectives and members. Lewis moved. Gagne seconded. to approve the members of the Transportation Task Force: 1. Jim Berdahl. 19205 Waterford Place 2. Harold Ness. 19605 Vine Ridge Road 3. David Dean. 5690 Old Market Road 4. Bob Snyder. 19855 Chartwell Hill and to set the starting date when Mn/Dot approves the intersection. Motion carried - 5/0 4. Schedule of Interviews for Consulting Services Nielsen said the committee has reviewed the Engineering firms and has reduced the firms to three. They will interview each firm and can videotape them for the Councilmembers. He said if two or more Councilmembers attend the interviews it will constitute a meeting. Daugherty and Gagne thought the Council would interview the final three. Lewis wanted a joint interview with the Council. The Council agreed to have a joint interview with the committee. COUNCIL REPORTS. A. MAYOR BRANCEL 1. Work sessions on Capital Improvements/Water Policy The Council agreed to set Wednesday, June 19, 1991 at 7:00 P.M. and Monday, July 15, 1991 as study sessions. Brancel showed the Council the Shoreview logo, it is similar to Shorewood's and asked if they objected. The Council did not object. 9 " CITY OF SHOREWOOD - REGULAR CITY COUNCIL ME~NG MONDAY. JUNE 10. 1991 COUNC~CHAMBERS 5755 RY CLUB ROAD PAGE 1 B. COUNC I LMEMBER GAGNE Gagne said a League of Cities article discussed ways of securing City investments. He asked who handled this for the City. Nielsen said Finance Director Rolek was responsible for investments. C. COUNC I LMEMBER STOVER No report D. COUNC I LMEMBER LEW IS No report. E. COUNC I LMEMBER DAUGHERTY No report. ADJOURNMENT SUBJECT TO THE PAYMENT OF CLAIMS Lewis moved. Gagne seconded, to adjourn the meeting at 9:43 P.M. GENERAL AND LIQUOR FUNDS - ACCOUNT NUMBER 00-00166-02 Checks issued since May 20. 1991 Check No. 6844-6888 LIQUOR $ 38,424.39 GENERAL TOTAL CHECKS ISSUED $ 16,912.638 $ 55,337.02 Checks for Council approval Checks No. 6889-6928 TOTAL CHECKS FOR APPROVAL $ 29,214.47 TOTAL CHECK APPROVAL LIST $ 84,551.49 CHECK REGISTER FOR JUNE 4. 1991 PAYROLL Checks no. 205180/205218 10 C.L CITY OF SHOREWOOD REGULAR CITY COUNCIL ~NG MONDAY. JUNE 10. 1991 LIQUOR $3.069.88 RESPECTFULLY SUBMITTED Katie Snyder Recording Secretary CITY ADMINISTRATOR JAMES HURM \ 11 COUNC~CHAMBERS 5755 RY CLUB ROAD PAGE GENERAL $13.378.88 TOTAL CHECKS ISSUED $16,488.76 MAYOR BARBARA BRANCEL ~, . Central Curb Co. . RR 2 Box 44 Mankato, MN 56001 ~,,~y 2 8 \99\ Citv ClerK C i ty Ha j 1 Dear City C1erk: I'm contacting your city in regard to our curb address painting service. Our comoany oaints home addresses (house numbers) on the cut-'!JS. It consists o~ a reflective white rectangle with black numerals. I go from house to house taping a flyer to their front door letting residents know this service is available to them if they want it. This is strictly a vOluntary decision on the residents cart. If the resident wants this service. they just sign and address their fiver, and reolace it an their front door. The next day I return to see which flyers are signed. addressed and attached to the front doors. I oaint first. then I check with the resident to make sure that they are ccmo1etlv s2tisfied~ then lastly I collect. We never collect money in advanc2~ and we never knock on doors to try to sell our service. I"m cnecking with you to see if there is any ordinance against o~+ering this service in your community. If there is any permit or 1 icense needed~ please send me anaopl ication form. F'lease send a resoonse as soan as oossible as I need your permIssion. ThanK you +nr your COCDerat:ona It would be a pleasure serving your communIty. ~3incere1 v. t<<.c€ ~ I ,-:.:CD ;-;:enne i:3ener-'.~.l r"'lana:~er ,I . ... . MAYOR Barb Brancel COUNCI L Kristi Stover Bob Gagne Rob Daugherty Daniel Lewis CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 MEMORANDUM TO: Planning Commission, Mayor and City Council FROM: Brad Nielsen DATE: 30 May 1991 RE: Einhorn, John - Setback Variance FILE NO.: 405 (91.10) BACKGROUND Mr. John Einhorn proposes to build a new home in place of his existing home at 5580 Howard's Point Road (see Site Location map - Exhibit A, attached). In doing so he has requested a 9.4 foot setback variance on the east side of the property and an eight foot variance on the north side of the property. The locations of the existing and proposed houses are shown on Exhibit B, attached. The lot in question is situated at the southwest corner of Howard's Point Road and Island View Road. It is zoned R-1A, Single-Family Residential and contains approximately 41,769 square feet of area. The existing home is nonconforming in terms of setbacks, being 22.6 feet from the right-of-way of Howard's Point Road and 14.3 feet from Island View Road. Island View Road is a 33 foot private road serving 14 lots. Mr. Einhorn's request is explained in his letter, dated 7 May 1991 (Exhibit C). Photos accompanying his letter are included as Exhibit D. The applicant cites the following as justification for his variances: 1) a garage north of his property cuts off his view of lake Minnetonka; 2) preservation of mature pine trees on the site; and 3) the location of other nonconforming buildings in the area - specifically, the house north of Island View Road. Floor plans and elevations of the proposed house are shown on Exhibits E-1 through E-5. A Residential Community on Lake Minnetonka's South Shore SA "-C,-e .- .....--~'- . . Re: Einhorn, John Setback variance 30 May 1991 ANAL YSIS/RECOMMENDATION Setbacks in the R-IA district are as follows: front: 50 feet side: 10 feet rear: 50 feet side yard abutting a street: 50 feet Exhibits B and F show how these setbacks apply to the applicant's property. In addition to setback requirements there are several sections of the Shorewood Zoning Ordinance which pertain to the applicant's request. A. Nonconforming Structures. (Section 1201.03, Subd. I)-Two provisions of this Section should be considered in reviewing this request: 1) "Purpose ... Furthermore, it is the intent of this Section that all nonconforming uses shall be eventually brought into conformity. "; and 2) when a nonconforming structure is removed or destroyed to more than 50 % of its value, any replacement thereof shall conform to existing requirements. B. Variances. (Section 1201.05) This Section sets forth criteria for reviewing variance requests. Briefly, it requires that the applicant demonstrate that some hardship exists which prevents him from making reasonable use of his property without the variance. Maintaining a view of Lake Minnetonka is not considered a legitimate reason for granting a variance. While the applicant's objection to the garage across the street is understandable, fencing and trees on that site present equally significant obstructions to the applicant's view of the lake. If some view of the lake could be preserved (the limited view which now exists will only diminish as trees on that site mature), the design of the proposed house does not take advantage of it. Only one second story window faces toward the lake. Unfortunate as it may be, the only way to guarantee an unobstructed view of the lake is to own a lakeshore lot. Oftentimes variance requests are the result of the property owner picking the wrong house for the site. In this case there is ample room on the property to accommodate the applicant's plan, even without destroying the trees. Exhibit F shows that the applicant's own plan can be placed on his property without any variance. - 2 - .......... ~__~. _....11'~-""""- . . Re: Einhorn, John Setback variance 30 May 1991 The applicant's survey indicates that the home north of Island View Road is only 29.2 feet from Howard's Point Road. Although Section 1201.03 Subd. 3d. provides for consideration of an average setback where adjacent homes are closer to the street than . allowed by the ordinance, it only pertains to structures within the same block. If Island View Road did not exist, the average setback for properties adjoining the applicant's would be 39.6 feet, and his easterly variance could be justified. Based upon the preceding, neither of the variances are considered to be appropriate. Ample opportunity exists to place the proposed house within the buildable area of the lot while still preserving the existing trees. If the applicant were willing to consider a different design, he may even be able to capture some of the view he seeks, at least until trees on the property to the north mature. BJN:ph cc: Jim Hurm Glenn Froberg John Einhorn - 3 - l-c...~~ t-'\,i'f\^.t. to",k~ . ~1~. : : \\;; lO! A ( 14) ...... ..... : . :..) : No A l-'\ , , "::. 2J;O ~\ ':/ .... '- tr 6: 135 1~.7 '.. : ,. '.' 000 - 1 ~~ :5 ~ G ~ (8) ..... ~ ..... ~ ~ 5 -, ( 13) -~. -. , ..' '"'- ,......... I I A R I I If{ 6.9 .1 :~ I. ,ea ;N - I I H !::! I I (9) ~ I -:,- ---. ,::~?--r\ . 215 .. / ~ ~...- !::! F (7) ~ N .' .... e. ". 0.. . .... :: -00:"' :'. . ........ .0 11a,4 ) . / . s~ 8 ~ ~~[Q) ~~~[Q) ~(Q) ~@Jr ~ ( 19) I. ,... ~ ~ Exhibit A SITE LOCATION Einhorn setback variance ~ .,. ...... \~ 'v ..~... ,~...... . . ....;.& .t:?. ~.1:. .~ F ( 6) ~~ ~. OJ' . .- . . , . --., :' :.... . North Not ,+- ~(:6.~ I of Lot ZO, AJd. Sub. No. 367 ~ Hennepin County, Minnesota ~ -'. ...s(.~... I'- ~ ~ ~ II) ~ ~ I ~ ~ ~ I'l Q U ~ ,.... IX> ~ '" (1S0. ,) ( '.. ...... / ./ ~----- , JO Prof 0 ~..~ ~Ol,)~ ":' ,"'\ :=- :..,,' ,~ -~ "- t" ~ ~ N 89"47 '30 "w /99,70 meas: :200 ,r ) " Il :z rr Jl r :r: ~. .." S t ~ o " :{ " - (l r= i ) Awl. s."r'" ,( '7. . ,../ :...,.-..-1 I -- !.r.L. =r- 5:)/ I ) ( I I', , , /., ,.- ,':: 1 bf, r.. , ..... "~:. :..... ...: .."..,...:.. ", " . ~.? ~:. -..' './ .. LEGAL DESCRIPTION OF PREMISES SURVEYED: lot 20, Audltor.s Subdivision No. 367, Hennepin County, Exhibit B PROPERTY SURVEY This survey Is intended to show the boundaries of the c and of the location of all existing buildings thereon, existIng building on an adjoining lot, and the p~opos~c building. 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'. . 1'- ~ ~ ~ ~ "I: ~ ~ \'.j I ./ / I ;- ( ,1. .~ .' ':. '" <J \) ~ r-.. co ~ '" "(11~' ,) , i i "- " 10 ':' ,....., " : ' .,._ .J : t... ~ .....;. ~<2eO.M M'~~'-'! 6 ,~ .~ "- lV ~ ~ 50/ I ) ) " { 11 :z I [ rl. ~ '" !:' .... I: } ~ ~ m t' '" . 0 l:) 7 \I) ii, I ( 1189047'30'w /99. 70 m~(1~ ) (DO A~ S_bt" ~-\ J I.. '.7,', . /..,/ ~....,-...-" {,(,. r. ,. ,." ,'....: . l.'.~.. ..::-.. , , '. '0, . . , ., :... , ...~ -.., ..':f ....~ LEGAL DESCRIPTION OF PREMISES SURVEYED: -...----------- --- Lot 20, Audltor"s Subdivision No. 3fi7, liennepin rnlln1'u Lei " "''''-,... .. ~ This survey Is intended to ShON thE> hounrJari and of the location of all existing building existing building on an adjoining lot, and t building, It does not purport t.o Sho\~ any ot. Exhibit F ALTERNA~SnnPLAN . . MAYOR Barb Brancel COUNCI L Kristi Stover Bob Gagne Rob Daugherty Daniel Lewis CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 MEMORANDUM TO: Mayor and City Council -. FROM: Brad Nielsen DATE: 17 June 1991 RE: Einhorn Variance - Clarification of Zoning Requirements FILE NO. 405 (91.10) At the 10 June Council meeting, Mr. Einhorn raised a number of issues relative to the need for variances on his property at 5580 Howard's Point Road. Following are responses to the those issues. Section 1201.03 Subd. 3.d. "Where adjacent residential structures within the same block have front yard setbacks different from those required, the front yard minimum setback shall be the average of the adiacent structures. If there is only one adjacent structure, the front yard minimum setback shall be the average of the required setback and the setback of the adjacent structure. In no case shall the required front yard setback exceed that required minimum established within the districts of this Ordinance." (Note: Underlining has been added.) In citing this section Mr. Einhorn references the way "block" is used in a different part of the Code which establishes a numbering system for houses in Shorewood. If he were disputing the way his house was numbered, this would be appropriate. The Zoning Ordinance, however, defines "block" as follows: "BLOCK: That property abutting on one side of a street and lying between the two (2) nearest intersecting or intercepting streets or railroad rights-of-way or un subdivided acreage. " 5b A Residential Community on Lake Minnetonka's South Shore . . Re: Einhorn, John Setback Variance 17 June 1991 If Mr. Einhorn chooses to argue that Island View Road is not a street, but rather a privately owned lot, the average setback provision does not apply because there is no adjacent structure on it. Mr. Einhorn points out that the setback requirements in the R -lA district refer to the public right-of-way. That provision taken by itself would work in the applicant's favor. However, the Ordinance addresses private roads within the defmition of "setback": "SETBACK: The minimum horizontal distance between a building and street, lot line or normal high water mark. Distances are to be measured from the most outwardly extended portion of the structure at ground level. In the case of a private street or street acquired by statutory user as defined by Minnesota Statutes. the setback shall be measured from a line fifteen feet (15') from the edge of the traveled surface." ';:.. (Note: Underlining has been added.) It is hoped that this clarifies the provisions under which the applicant's property is governed. If you have any questions relative to this matter, please do not hesitate to contact my office. cc: Jim Hurm Glenn Froberg John Einhorn -2- . ~19/91 RESOLUTION NO. A RESOLUTION DENYING SETBACK VARIANCES TO JOHN EINHORN WHEREAS, John Einhorn (Applicant) desires to construct a new home to replace his existing home on property located at 5580 Howards Point Road in the City of Shorewood; and WHEREAS, the proposed location of the new home on the property does not comply with the setback requirements of the Shorewood Zoning Code, and applicant has therefore made application for variances; and WHEREAS, a public hearing was held and the application reviewed by the Planning Commission on 4 June 1991, and, after deliberation, the Planning Commission recommended denial of the requested variances; and WHEREAS, Applicant appeared before the City Council at their regular meeting held on 10 June 1991 and submitted additional material concerning his application which he asked the Council to consider; and WHEREAS, the City Council has reviewed the material submitted by the Applicant, the recommendations of the Planning Commission, and the memorandums and reports of the City Planning Director. NOW, T HEREFO RE, BE IT RESOLVED by the City Council of the City of Shorewood as follows: FINDINGS OF FACT 1. That the Applicant's property is located in an R-1A zoning district which requires a 50-foot front yard setback and 50-foot side-yard-abutting-a-street setback. 2. That Applicant's existing home encroaches into the 50-foot front yard setback area on Howards Point Road and into the 50-foot side yard setback area on Island View Road and is therefore a non-conforming structure. 3. That the Shorewood Zoning Code provides that when a non-conforming structure is destroyed to the extent of more than 50% of its value, or the non-conforming use of the land is discontinued, any future use of the structure or land shall comply with the provisions of the zoning code. 5c. . . 4. That Applicant requests variances to permit construction of a new home extending 40.6 feet from the easterly lot line on Howards Point Road and 42 feet from the northerly lot line of his property on Island View Road. 5. That Applicant's request requires a 9.4 foot setback variance on the east side of the property and an 8 foot setback variance on the north side of the property. 6. T hat Applicant claims a loss of view of Lake Minnetonka, possible loss of mature pine trees, and the location of other non-conforming buildings in the area as justification for his requested variances; however, it appears that the Applicant's proposed new home can be constructed on the property in such manner as to preserve the existing trees and still meet the setback requirements of the zoning code. CONCLUSIONS 1. That the variances requested by the Applicant constitute a significant deviation from the requirements of the Shorewood Zoning Code. 2. That Applicant's property can be put to a reasonable use under the conditions imposed by the Shorewood Zoning Code. 3. That Applicant has not met the criteria for the grant of a variance under Section 1201.05 of the Shorewood City Code and has not established an undue hardship as defined by Minn. Stat. Section 462.357, Subd. 6(2). 4. That Applicant's request for the variances set forth above are hereby denied. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 24th day of June, 1991. Barbara J. Brancel, Mayor ATTEST: James C. H urm City Administrator/Clerk -. . MAYOR Barb Brancel COUNCI L Kristi Stover Bob Gagne Rob DaughertY Daniel Lewis CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 MEMORANDUM TO: Planning Commission, Mayor and City Council FROM: Brad Nielsen DATE: 29 May 1991 RE: Meldahl, A.J. - Simple Subdivision/Lot Width Variance FILE NO.: 405 (91.09) BACKGROUND Mr. and Mrs. John Meldahl have requested approval to subdivide their property, located at 6180 Cathcart Drive (see Site Location map - Exhibit A, attached), into three lots. They have also requested a variance to allow two of the lots to be narrower than currently required by the Shorewood Zoning Ordinance. The property in question is zoned R-1A, Single-Family Residential and contains approximately 125,920 square feet of area. Their residence is located on the east side of the property. As shown on Exhibit B, they proposed to subdivide the property into three lots. Two of the lots require width variances. Lot A requires a variance of 4.8 feet and Lot B requires a variance of 3.8 feet. The R-1A district requires a minimum lot width of 120 feet. ANALYSIS/RECOMMENDATION There are two issues which need to be addressed in evaluating the Meldahl' s request: 1) right-of-way dedication; and 2) the lot width variance. ' A. Right-of-Way Dedication. The applicant's property has frontage on two streets, Cathcart Drive and West 62nd Street. At 16.5 feet West 62nd Street is grossly substandard in terms of r.o.w. width. The Shorewood Subdivision Ordinance requires local streets to have a minimum width of 50 feet. While the Subdivision &,A A Residential Community on Lake Minnetonka's South Shore . . Re: Meldahl, A.I. Subd.llot width variance 29 May 1991 Ordinance requires r.o.w. to be dedicated at the time land is subdividied, the City has had a policy whereby the owner on one side of a substandard road is not required to make up the entire difference between the requirement and what exists. Rather, the City has required that the difference be split between the properties on both sides of the street. In this case, the r.o.w. needs to be 33.5 feet wider. The Meldahl's share of that is 17 feet. Their survey should be modified to include the r.o.w. dedication. The r.o.w. dedication also has some bearing on the request for lot width variances. Once the r.o.w. is dedicated, Lots A and B no longer meet the 40,000 square feet area requirement of the R-1A zoning district. Lot A ends up 1959 square feet smaller and Lot B ends up 1976 square feet smaller than shown on the applicant's survey. B. Lot Width Variance. While variances of 3.8 feet and 4.8 feet may appear to be minor, the applicants must still demonstrate why the minimum standard should be lowered for their property. To obtain the variances they must demonstrate that some hardship exists which prevents them from making reasonable use of their property. In evaluating this request it is important to point out that more than ample room exists on their property to make all of the lots at least 120 feet wide. Lot C is over 140 feet wide, measured at the building line. If it were made 10 feet narrower the other two lots would need no variance at all. In addition the buildings on the site would still be more than 27 feet from the adjusted lot line, where only 10 feet is required. In their request letter (Exhibit C) the applicants' only reference to hardship is the cost of changing their survey and the cost of refinancing the parcel with their home on it. Both the state statutes and the City Code provide that variances shall not be granted for primarily economic reasons. It is worth mentioning that the applicants must still provide a revised survey showing the 17 foot r.o. w. dedication, in addition to 10 foot drainage and utility easements along the sides and rear of the three lots. Relative to the cost of refinancing their homestead parcel, they should explore the possibility of obtaining a partial release from their mortgage company. Based upon the preceding analysis it is recommended that the applicants revise their survey to show lot widths of at least. 120 feet. The subdivision should then be approved subject to the following: - 2 - .. . Re: Meldahl, A.J. Subd.llot width variance 29 May 1991 1. Prior to appearing before the City Council, the applicants must provide a title opinion (up-to-date within 30 days) for review by the City Attorney. 2. The applicants must dedicate 17 feet of road r.o.w. along West 62nd Street. 3. The applicants must provide drainage and utility easements, 10 feet on each side of rear and side lot lines. 4. The applicants must pay $1500 in park dedication fees ($750 per lot with credit allowed for the lot with the house on it). 5. The division must be recorded within 30 days of the Council's approval. BJN:ph cc: Jim Hurm Glenn Froberg Joel Dresel Ann and John Meldahl - 3 - ,/ I I ..-..----. 'I I -, 11 II II VICTORiA Exhibit A SITE LOCATION Meldahllot division! lot width variance . ~ \: ~ ~ ->J . . r Pia t of Survey for A. John Meldahl in Lot 2, "Minnewashta Acres, Hennepin County Hinn." ,L : I " f<1S.J~ m,as. s.",. 5 plo I ;$ (,D.ol. IN../J 1<'8.80 .." \.1 ) .- At Q.. .... <) , u ~i <;) '" :::: 66 '" v ..... .., ....- . IIS./J - ""--11'5' ........... " -" II'" -:'.... -" ~...... " " . "-"" 'u""", 350...... '" .... ... ~Lu. ~ gl ~1 . ..Uhh..........<U ~ . ~ \J ~ ~. ~ . ~I ~E~."'_"u~ :,-1 "'- ,-;,;. .....4o _. _.. '. .... -.. <ti " '" .. .... - - .. ... ... - - ... "4 A g I'L' _~~Z90 '1.r~:_~__ c </SStJl'-?rff-"!:::----. " 40,/:10 -'f.f!. :!: &t.2.~A _~~.,. oS,{'8 ". ~.:::, .s..? . -'0 \" 51S.54 I1Ue/S. 1 /} Certificate of Survey: I hereby certify that this is a true and correct representation of a Sul~CY of the botmdsries of: h The East 115 feet of the 1,,'est 350 feet of Lot .:., "Jv:in.'1ewc.shta Acres, Hennepin County !li.nn.ll, The East L16 feet 0 f the '(jest 466 fe-=t 01 UCc :;:, "J.linne1,.'3shta slcr.:;:; I Hennepin County Einn. II, !:ine. ':'ot 2 except the West 466 feet thereof, II Hinne....a.s(s ta Acres, Henne;;in County Hinn." It does not purport to show improvements or encroachments. Iron ITi<:.n:ers h3ve been set only as indicated. ~ h Scale: Date o 1" = 100' 2-5-75 Iron marker Gordon R. Coffin Reg. ~o. 6064 Alvin rt. Rehder Reg. No.1J295 Lane Surve~..ors ~r.d Planners Long Lake, Hinnosota Exhibit B PROPOSED DIVISION Recommended r.o.w. shown dashed . . March 11. 1991 Barb Brance1 Mayor City of Shorewood 5755 Country Club Rd. Shorewood, MN. 55331 Dear Mayor In 1975, we went to the city of Shorewood and inquired how our property could be divided. We were planning for the future and also wanting to refinance our property and not encumber all of it. We wanted to have the mortgage cover the home and approximately one acre. We contacted Gordon Coffin and he surveyed the property and we went ahead with our refinancing of the home and approximately one acre. I am enclosing a copy of the survey with the placement of our house. You will4ree from the survey that the remaining two lots are over 40 thousand square feet. One has 115.21' of frontage and the other has 116.22'. It was our understanding that this would be approved by the city, even though it would require a very small variance. At this time we would like to have our daughter and her husband build a new home on proposed lot B. and sell lot A. In checking with the city we now find out that there is some reluctance to approve the subdivision because of street frontage. Although it is possible to resurvey reducing the size of the lot with our home on it so that each lot had the required street frontage doing so would cause great expense and hardship. The result would be the same however, as we would end up with our home on one lot and two other lots. Lot B would be increased by 3.78' and lot A by 4.79'. We are asking you approve the subdivision that was proposed with the help of the city of Shorewood and surveyed by Gordon Coffin. This would not change the housing density in this area and would eliminate the hardship of refinancing our property and the cost of additional surveying. To require that we conform exactly to the current requirements would only cause unnecessary expense and effort. We have been residents and taxpayers of Shorewood for more than 36 years and feel that this is a small request. ~~tr. (2;?~ll1tl~kW<f ~.~ \ ~~~~ ( a ~ rur) Mr. & Mrs. John Meldahl ~ Cathcart Dr. Shorewood. MN. 55331 Exhibit C APPLICANT'S REQUEST LETIER Dated 11 March 1991 .. . June 7, 1991 Dear Mayor Brancel, This is a small matter - a ~ small matter to come to your attention. However, it is a matter of great importance to us - the Heldahl's of 6180 Cathcart Drive. We were city people, who desired a semi-rural area in which to raise our children, when we purchased Lot 2, Minnewashta Acres, )8 years ago. How- ever, we recognized the fact that suburbia would most likely head our way and that, in time, this area would become "built up". Sew'er has been in now for some time and water lines are available to some Shorewood areas. Because of the lot size restrictions on our area, the cost of sewer in- stallation was a financial burden to many of us. Ive have never understood the R-1A zoning of this area. Tne 40,000 square foot-requirement makes for lots that are too small to farm and too large to keep up. In my view, this R-1A zoning has been poor planning, genuine shortsightedness! And now to our problem. :k still have title to three acres of the original five. Our house stands on Lot C - a corner lot HUh 211 feet nlIlJ.'1.ing along Cathcart Drive. The traffice at our corner is unbelievable now. :ve maintain our south yard and our north yeard but cannot liUlcn enjoy those areas. L'1e yard behind the house is our only private, relatively quiet area in which we can enjoy ourselves. The time has come for us to subdivide our land. ifuen we sols our lovely old orchard - some two acres in 1975, He had our land divided by the surveyor into lots A, B and C. As I mentioned, our home is on lot C. At that time, I nresented the survey to the Shorewood council for approval. It was granted. ;ve then acquired a ne..... mortgage on our home on lot C. It was no matter of concern to the village that lots A and B were several feet short of the 120 running foot frontage requirement. And, square footage-wise, they were fine. Now, we have a problem! We propose to give lot B to our daughter and her husband. They would like to begin building as soon as possible for their little daughter begins first grade in the fall. They want her to begin school at Hinnewashta, as her mother did before her - a generation ago. ~~.. . . There Here several meetings set up with Brad Nielsen to discuss our land and the best way to divide it. The first meeting between our son-in-law, his agent and Brad resulted in our being told that we would not be allowed to pursue a different, more creative, (we 'thought), division of our land. And we accepted that decision. Back to lots A,B and C. At the second meeting - this time between Brad, my husband and myself, ue discussed our options. Brad told us that the simple subdivision request would surely be approved but that the variance was another matter. It seems that ~ the several feet short on the fronts of these two lots presents a problem. \'fuy? He suggested that we take land from our exist- home lot (C) to add to lots A and B. lie went home and studied that option. After careful consideration, we decided to ask for the variance. We did not want o'..:.X back yard to get any smaller. Brad gave me my "shopping list" - papers to put into our request for the sub- division. We complied and also paid the additional ~oney to ask for the vari- ance. Brad made a vague reference to our having our surveyor contact him about some lines to be draim - also something wi~~ regard to drainage. ;{e ,,,ere not told that we are required to donate la.'1d along the road - ~Jest 62nd Street for r.o.w. That procedure alone, by ~~e way, drops the square footage of each lot to below 40,000 square feet! ;{e were not told at the time of the heal thy park fees for each lot. \le were not told at the time that an inspection of the title by a professional would also be required. For ~~is over-sight Brad has apologized. I cannot help but wonder if anyone on the planning commission has come out to this are to have a l~ok. I am asking the Shorewood Council to consider our request for a simple variance over their so-called recommendation. There would be no difference in housing density- it would remain the s~~e. Not one neighbor saw fit to object to our request. Careful consideration with regard to asthetics, landscaping, drainage, and utility easement are important to us, - perhaps more to us than to the village! This is our land and this is where we live. Bu t now, He are running short on money and we are running short on time. \'[e listened to what you had to say at election time. \fe voted for you. !{ow, please listen to what we have to say! , Sincerely copies: Gagne ,Daugherty Stover, Lewis ,~~ " . MINUTES . -f'~1 tr ~ CITY OI~~~~~1 D Regular Council Meeting March 10 1975 . ,/111 ..1 i .1./ I r fb':'-:-:t _2/"t_.~. ROLL CALL The last meeting of the Shorewood City Council}was held at the Minnewashta Elementary School o~ Monday, March 10, 1975 at 7:30 p.m. and called to order by Mayor Frazier. Councirmembers present were Keeler, Naegele and Huttner. Councilwoman Haugen was absent. Others present were Attorney Kelly, Engineer Mittelsteadt and Clerk Wiltsey. MINUTES APPROVED It was moved by Huttner, seconded by Naegele, to dispense with:-reading of the minutes of February 24th and 27th and to approve the minutes as previously submitted. Motion carried unanimously. CONGRATULATIONS TO CLERK Resolution No. 20-75 Mayor Frazier offered a resolution of congratulations to Elsa Wiltsey and further nominating her as "First Lady of Shorewood" and moved its adoption. Seconded by Keeler and adopted by a unanimous vote of the council. BUILDING PE~~ITS APPROVED Foto-Mat It was moved by Naegele, seconded by Huttner to approve application for a building permit for Foto-Mat to construct a standard type 4' by 9' building on the southwest corner of the parking lot at Shorewood Village Center. Motion~carried unanimously. Lot 4 - Elmridge Estates - 5305 Elmridge Circle It was moved by Huttner, seconded by Keeler to approve the building permit for James Jordan Lot 4 Elmridge Estates to allow for a 46 ft. setback from-:the " , road right-of-way to the south corner of the proposed garage. ~fotion carried - unanimously. Super-Valu Sign It was moved by Keeler, seconded by Naegele to approve the sign "Super-Valu" to be placed on the front soffit of the building as per sketch submitted. Motion carried unanimously. -....--- CIGARETTE AND 3.2 OFF-SALE BEER LICENSES - SUPER-VALU It was moved by Huttner, seconded by Naegele to approve the application for a cigarette license and a 3.2 beer license for Everett Driskill for the new Super- Valu opening at "Shorewood Village Center". DIVISION OF LOT 2 - MINN~{ASHTA ACRES (A. J. Meldahl) Resolution No. 21-75 It was moved by Keeler seconded by Huttner to adopt a resolution approving the separation of the west'235 feet of Lot 2, Minnewashta Acres (approximately 2 acres). Motion carried unanimously. MINN~NASHTA CHURCH S~{ER ASSESSMENT Representatives of the Minnewashta Church requested clarification of the status of the sewer assessment on the church and if it was to have been reduced at the time of the purchase of Cathcart Field~ Records available indicated that no reduction had been approved. Council agreed to check with Chanhassen to see if the assess- - ment placed on Cathcart Field by ehanhassen had been removed. and report back at the next meeting. I -~~ - -. . RESOLUTION NO. 21-75 RESOLVED, that the Council of the City of Shorewood does hereby approve the division of Lot 2, Minnewashta Acres, Hennepin County, Minnesota, Parcel 2000, Plat 35280, into two parcels; Parcel A described as the west 235. plus feet of Lot 2, and Parcel B, except the west 235. plus feet. Dated: March 10, 1975 ~.q2. . I. Wiltsey, inistrator 4'~.'.'_ ,_. .__. ,.; .__....--.._.__..,.,__.__ ,..,.'. ._"'..............._........--..._---~ ~.-\ MAYOR \ Barb Brancel COUNCI L Kristi Stover Bob Gagne Rob DaughertY Daniel Lewis , . . . CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 DATE: 29 May 1991 TO: Steve Pahl 24860 Smithtown Road Shorewood, MN 55331 PROPERTY LOCATION: 24860 Smithtown Road PROPERTY IDENTIFICATION NO.: 33-117-23-24-0006 NOTICE TO REMOVE Offensive and Unhealthy Substances NOTICE IS HEREBY GIVEN that there exists a condition on the above referenced property which is in violation of Chapter 501, Section 501.01 of the Shorewood City Code, a copy of which Section is enclosed. The offensive matter to be removed from the property includes, but is not limited to the following: UNLICENSED/INOPERABLE VEIDCLES: Black Pickup Truck, no license, tire flat ALSO: old unused air conditioner; construction materials and debris; vehicle parts (tires, seats, etc.); old couch and other interior-type furniture; misc. debris and unused equipment and broken or inoperable bicycles. You are hereby required to remove the above-described matter and any other offensive matter located on the property and in violation of Chapter 501, Section 501.01 within ten (10) days from the date hereof. In the alternative, you may fIle a written notice of appeal at the Shorewood City Hall within ten (10) days, in which case your appeal will be set for hearing at the next regularly scheduled meeting of the City Council. If you do not respond to this Notice within ten (10) days, the City shall take whatever action as may be necessary to have the offensive matter removed. The costs incurred by the City for such removal shall be charged to the property owner and become a lein against the property . . *** PLEASE GIVE THIS MATTER YOUR Il\1l\1EDIA TE ATTENTION *** BY ORDER OF THE SHOREWOOD CITY COUNCIL 7A A Residential Community on Lake Minnetonka's South Shore y . . JUN 7 1991 ) ~LC -& c-':cLy_o LSJ1-Q ... e q,L<:Lo_R . ~ 0.. ~ CL5 ki.n-~ ..R t') r ~ (!>-i2 ; -1-~ cY:L.€.- + C) ~ CLea. \--. ~ P o..p no.. y . ~CL~ 0 ~ -br~~_C~ <b e- d)--e:-P-h-y 5 (' c..CL{ R..o ~ L C - 1.- ~ _ ~.- I /1 \ C- r'l (.h. ~ _ _ f _,-,_~~_S_~_~_'-L---t:-t-~c..,-~\ d~t,_C-lA.. Lt'1 s ,-r: w 0 u.. I ~ L", k e -rc:> 5 ~ h ~J>\4 I~ a. L.J a.. \ K -r", \C CL\& ~ " Q '" ""'^" ~ Pr 0 (2 e r+ T __.__________C!? ~-~.-2--\-'F__-3- 19_'1-L.(Lt w h t~~..h +-.:-- ~ _. : ~_e~~t..A=~~b S6ho_~LLt3~ J2c:>n._~~ .;. :;:.....'~ 5I_~_u e., P~_b_l ~O - 930 k .. .~~..~--.......:--~~...=... ...-~~. ...~...~~_~-.~J;22~..._~.~~..~_.~--=~~-- .~ ~. ..... ". ~~: . -:) If:; . --. . CITY OF SHOREWOOD MAYOR Barb Brancel COUNCI L Kristi Stover Bob Gagne Rob Oaugherty Daniel Lewis 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 MEMORANDUM TO: Mayor and City Council FROM: Brad Nielsen DATE: 18 June 1991 RE: Appeal Notice to Remove - Steve Pahl FILE NO. Property - 24860 Smithtown Road Mr. Steve Pahl, 24860 Smithtown Road, has requested additional time to comply with a "Notice to Remove" sent to him on 29 May 1991. This is to remind you that this is the second time Mr. Pahl has received such a notice. In January 1990 he was ordered to remove items in violation of Shorewood's Offensive and Unhealthy Substances code (see attached notice, dated 18 January 1990). The City ended up cleaning up the property in April of that year and billing Mr. Pahl $868.99 for the City's expense. He subsequently appealed the assessment and the matter is awaiting arbitration in court. The City Attorney has suggested that any additional time granted for the current violation should be tied to settlement of the assessment appeal. Staff will meet with Mr. Pahl to negotiate such a settlement this week. A recommendation will be made at the Council meeting this week. If you have any questions relative to this matter, please contact my office before Monday night's meeting. cc: Jim Hurm Glenn Froberg AI Rolek Steve Pahl A Residential Community on Lake Minnetonka's South Shore 7(5 '" . . '.// ~ . _, . ..7. ..". ",' . "'_..... . ,.- - i- , . r '"--r;, I .~ . . /" .l.-- . . - - MAYOR Jan Haugen COUNCIL Kristi Stover Robert Gagne Barb Brancel Vern Watten , jL...{ ":.../ .,: .-;......,. - . ~ Ii/o'" I - ! / :;' ;-/.:/ CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 PROPERTY LOCATION: PROPERTY IDENTIFICATION NO.: /J /' ~;..p./~"^..~ l..1-~r: ~_.. cI'~'" C.n v I -/ 1 -~~., .:..t( vv r:l- .J . -I;.., .:;t~ 9D vf(..e-.~I: IfV-/ .G1....., ..t ~(j , 24860 Scithtown Road 33-117-23-24-0006 DATE: 18 January 1990 TO: steven L. Pahl 24860 Smithtown Road Shorewood, MN 55331 NOTICE TO REMOVE Offensive and Unhealthv Substances NOTICE IS HEREBY GIVEN that there exists a condition on the above referenced property which is in violation of Chapter 501, Section 501.01 of the Shorewood City Code, a copy or which Section is enclosed. The offensive matter to be removed from the property includes the following: JUNK IN BACKYARD - Black Jeep Pickup - No Plates Red Jeep Pickup - License #MPN 881 - Nov. 1984 tabs - inoperable Green Ford Truck - License #YS 81390 - Jan. 1987 tabs Old freezer, concrete, brush and tree parts, drums, vehicle parts (engine and tires, etc.), construction material and debris, oil tank, 2 trailers with no license plates, old snowmobile, 2 motor cycles with no license plates, old air conditioner, old washer, old small tractor (similar to bobcat), inoperable. Approximate volume of non major items listed above is 100 cubic yards You are hereby required to remove the above-described matter and any other offensive matter located on the property and in violation of Chapter 501, Section 501.01 within ten (10) days from the date hereof. In the alternative, you may file a written notice of appeal at the Shorewood City Hall within ten (10) days, in which case your appeal will be set for hearing at the next regularly scheduled meeting of the City Council. ", If you do not respond to this Notice within ten (10) days, the City shall take whatever action as may be necessary to have the offensive matter removed. The costs incurred by the City for such removal shall be charged to the property owner and become a lein against the property. BY ORDER OF THE SHOREWOOD CITY COUNCIL. \ ***PLEASE GIVE THIS MATTER YOUR IMMEDIATE ATTENTION*** J. 0 -; '1'< .) 17 -:r ~ ..1..- i: / _ I . ::-..:.t . .' . U I L,......,.,. ,-'~ / ;' ."1.' :/, "./I.;" .''''/ ,. . / .- J1.-L "f:';' '} ~'/t 'L.' (1/ (' A Residential Community on Lake Minnetonka's South Shore ,i ~ f / / () vV .- .: I .../^ ,'.1 / /;., "" , ' . - 7'--' u-.....~_~..1 ~--1~;{l..7--....-v . ,. .... - . . 5/7/91 RESOLUTION NO. 42-91 A RESOLUTION GRANTING PRELIMINARY PLAT APPROVAL FOR JOHNSON'S FIRST ADDITION WHEREAS, Ronald R. Johnson (Applicant) has an interest in certain land within the City of Shorewood and has applied to the Council for preliminary approval of a plat to be known as Johnson's First Addition; and WHEREAS, the Applicant's request has been reviewed by the City Planner and his recommendations have been duly set forth in a Memorandum to the Planning Commission, dated 28 March 1991, which Memorandum is on file at City Hall; and WHEREAS, a public hearing was held by the Shorewood Planning Commission on 2 April 1991, for which notice was duly published and all adjacent property owners duly notified, the minutes Qf which meeting are on file at City Hall. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Shorewood: That the Applicant request for preliminary plat approval of Johnson's First Addition is hereby granted. That such approval is subject to the recommendations set forth in the City Planner's Memorandum dated 28 March 1991 and the recommendations set forth in the minutes of he Planning Commission meeting of 2 April 1991 as follows: 1. Front setbacks for the three lots shall be maintained at 35 feet. 2. The resubdivision sketch submitted by the applicant shall be used as a guide for future development of the property and all future divisions shall through the use of formal plats. No development shall be permitted on Outlot A prior to the time it is replatted. 3. At such time as the northwest corner of the property is platted, the applicant shall dedicate the designated wetland portion of the property or provide a drainage and conservation easement over it to the City for protection of the wetland area. 4. Drainage and utility easements 10 feet in width on each side of each side and rear lot line line shall be provided to the City. /. ? , A .. . 5. Prior to final plat approval, the developer shall provide a detailed grading plan for the three residential lots. Grading and drainage shall be subject to review and approval by the City Engineer and the Watershed District. 6. The homes built on Lots 1-3 shall be designed to fit the sites. 7. The applicant shall pay park dedication fees totaling $2,250. 8. The applicant shall submit to the City a final plat wthin six months of preliminary plat approval, and shall include as part of the final plat, proposed covenants and restrictions for review and approval by the City. Such covenants and restrictions shall be the same as the Declaration of Covenants, Conditions, Restrictions and Reservations for Waterford. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 22d day of April, 1991. Barbara J. Brancel, MaYGr ATTEST: James C. Hurm City Administrator/Clerk Roll Call Vote: Ayes - Brancel, Daugherty, Lewis, Stover, Gagne Nays - 0 . 'iH1.1},~APr- ';ft{.fq I DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR WATERFORD TOWNHOMES THIS DECLARATION made this ____ day of , 1991, by TRIVESCO, a Minnesota partnership, by its partners, Steiner & Koppelman, Inc., a Minnesota corporation, Robert H. Mason, Inc., a Minnesota corporation, and Highland Properties, Inc., a Minnesota corporation, hereinafter called "Declarant"; WIT N E SSE T H : WHEREAS, Declarant is the owner of the following described real _ estate: Lots 1 Hennepin thereof, and 2 , County, Block 1, and Outlot A, Waterford 3rd Addition, Minnesota, according to the recorded plat all of which above-described land together constitutes and is hereinafter referred to as the "Property"; and WHEREAS, the Property development, and Declarant portions thereof; and is the subject of a proposed twin-home intends to improve the Property or WHEREAS, Declarant desires to subject the Property to this Declaration at this time; and WHEREAS, the Property and the improvements constructed thereon and on the Common Area and the Entrance Area will require uniform and continuing care and maintenance for the benefit and enjoyment of persons residing in the townhouses; and WHEREAS, Waterford Townhomes Association, Inc., a Minnesota nonprofit corporation (hereinafter referred to as "Association"), has been formed as an agency to receive the power to attend to and effectuate policies and programs that will enhance the pleasure and value of the development, to hold title to, maintain and administer the Common Area, to preserve and enhance the Property, to administer and enforce the covenants and restrictions, and to collect and disburse the assessments and charges hereinafter created; NOW, THEREFORE, subject to the provisions of Article II, Section 2 of this Declaration, Declarant declares that the Property described in Article II hereof, is and shall be held, transferred, conveyed, sold, leased, occupied and developed, subject to the covenants, conditions, restrictions, easements, charges and liens hereinafter set forth, which are for the purpose of protecting the value, _ desirability and attractiveness of the Property, and which qA . . shall run with the Property and be binding upon all parties having any right, title or interest in the Property, their heirs, successors and assigns, and which shall inure to the benefit of each Owner thereof, and the heirs, successors and assigns of each Owner. This Declaration hereby establishes a general plan for the individual ownership of real property estates consisting of residential lots, and the ownership by the Association of all of the Common Area as hereinafter defined. Every conveyance of any of such lots or Common Area, or any part thereof, or any interest therein,' shall be and is subject to these easements, covenants, conditions and restrictions, as follows: ARTICLE I . DEFINITIONS Section 1. The following words when used in this Declaration, of any supplemental declaration (unless the context shall prohibit) shall have the following meanings: A. "Owner" shall mean the record owner, whether one or more persons or entities, of a fee simple title to any Lot which is a part of the Property and Contract for Deed purchasers. B. "Property" shall mean and refer to that certain real property described and defined in Article II, Section 1 hereinbelow and such additions thereto as hereafter may be expressly brought within the jurisdiction of the Association. C. "Association" shall mean Waterford Townhomes Association, Inc., a Minnesota nonprofit corporation. D. "Lot" shall mean and refer to any single platted lot shown upon the recorded plat of Waterford, 3rd Addition, or upon any replat or subsequent stage thereof, which is intended for improvement with a single twin-home unit. E. Member" shall mean any person or entity holding membership in the Association as provided in Article III hereof. F. "Declarant" shall mean TRIVESCO, a Minnesota partnership, by its partners, Steiner & Koppelman, Inc. , a Minnesota corporation, Robert H. Mason, Inc., a Minnesota corporation, and Highland Properties, Inc., a Minnesota corporation, and any successor or assign of Declarant to whom Declarant assigns its rights hereunder by a recorded Assignment. G. "Mortgage" shall mean instrument by which a Lot or thereon is encumbered. any mortgage or other security any part thereof or any structure H. "Mortgagee" shall mean any person or entity named as the Mortgagee under any such Mortgage or any successors or assigns to the interest-of such person or entity under such Mortgage. -2- ~-""-'- -.'~ -....~.,...<....."'"' . . I. "Living Unit" shall mean a residential housing unit consisting of a group of rooms and hallways which are designed or intended for use as living quarters for a family or other grouping of persons living together. For the purpose of determining membership in the Association, each Living Unit as constructed on a Lot by Declarant shall be considered as a separate and individual unit. J. "FHA" shall mean Federal Housing Administration, United States Department of Housing and Urban Development. K. "VA" shall mean United States Department of Veterans Affairs. L. "FHLMC" shall mean Federal Home Loan Mortgage Corporation. M. "FNMA" shall mean Federal National Mortgage Association. N. "City" shall mean-the City of Shorewood, Minnesota. O. "Common Area" shall mean that portion of the Property that is subsequently platted by Declarant for improvement with recreational facilities for the common use of all Owners. P. "Entrance Area" shall mean that portion of the Property over which Declarant shall subsequently establish an easement to maintain an entrance device and landscaping for the multi-family residential portion of the Property. ARTICLE II PROPERTY SUBJECT TO THIS DECLARATION Section 1. the provisions of which is and shall occupied subject to Shorewood, County of particularly described Property Subiect to this Declaration. Subject to Section 2 of this Article II, the real property be held, transferred, sold, conveyed and this Declaration is located in the City of Hennepin, State of Minnesota, and is more as follows: Lots 1 Hennepin thereof. and 2, Block 1, and Outlot A, Waterford, 3rd Addition, County, Minnesota, according to the recorded plat Section 2. Exception. The City has approved the Property for development for both commercial and multi-family residential use. It is anticipated that the commercial and multi-family residential portions of the Property will each be developed in multiple stages. Declarant intends that only that portion of the property that is finally platted and approved for residential use, as evidenced by the filing of a final plat or replat for each stage of residential development of the property, shall be subject to the provisions of this Declaration. Accordingly, a Lot shall become subject to the provisions .of this Declaration only upon the filing -3- ~. -----?-~ . . of a final plat or replat for a residential stage of the development of Waterford, 3rd Addition which depicts and includes such Lot. Any part of the Property which is finally approved for commercial use, as evidenced by the filing of a final plat or replat for each stage of commercial development of the Property, shall not be subject to the provisions of this Declaration. Upon filing of a final plat or replat for each stage of commercial development of Waterford, 3rd Addition, all of the real property included within such plat or replat shall automatically be released from, and shall not be further subject to this Declaration or any of the restrictions contained herein without the filing of any release or other similar document. To the extent any of the provisions of this paragraph conflict or are inconsistent with any of the other provisions of this Declaration, the provisions of this paragraph shall control and supersede such inconsistent provisions. ARTICLE III MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION Section 1. Membership. Every Owner :of a Lot subject to assessment, except as herein provided to the contrary, shall be entitled and required to be a member of the Association. If title to a Lot is held by more than one person, each of such persons shall be a member. An Owner of more than one Lot shall be entitled to one membership for each such Lot. Each such membership shall be appurtenant to the Lot upon which it is based and shall transfer automatically by voluntary or involuntary conveyance of the title of that Lot. No person or entity other than an Owner or Declarant may be a member of the Association, and a membership in the Association may not be transferred except in connection with the transfer of title to that Lot. An Owner may, however, assign voting rights to a Mortgagee. Section 2. Transfer. A membership in the Association shall not be transferred, .pledged or alienated in any way, except in connection with the transfer of the record title of a Lot. It shall be the responsibility of each Owner, upon becoming entitled to membership, so to notify the Association in writing, and until so notified, the Association may continue to carry the name of the former Owner as a member, in its sole discretion. In the event the Owner of any Lot should fail or refuse to transfer the membership registered in his name to the transferee of title of such Lot, the Association shall have the right to record the transfer upon the books of the Association and issue a new membership to the transferee, and thereupon the old membership outstanding in the name of the transferor shall be null and void as thought the same had been surrendered. Section 3. Votinq. The Association shall have two classes of voting membership: A. Class A. Class A members shall be all Owners of Lots, with the exception of the Declarant prior to termination of Class B -4- ~,-........,.__.'..:_-..,---- ,.t<l!ll -~...~~:~ . . membership, and shall be entitled to one vote for each Lot owned. When more than one person holds title to any Lot, all such persons shall be members. The vote for such Lot shall be exercised as they among themselves determine, but in no event shall more than one vote be cast with respect to anyone Lot. There can be no split vote., Prior to or at the time of any meeting at which a vote is to be taken, each co-Owner or other person entitled to a vote at such meeting shall file with the Secretary of the Association the name of the voting co-Owner or other person entitled to a vote at such meeting, unless such co-Owner or other person has filed a general voting authority with the Secretary applicable to all votes until rescinded. B. Class B. The Class B member shall be the Declarant, who shall be entitled to three votes for each Lot owned. The Class B membership shall cease and be converted to Class A membership on -the happening of either of the following events, whichever occurs "first: i) When the total votes outstanding in the Class A membership equal the total votes outstanding in the Class B membership; or ii)The third anniversary Declaration. of the recording of this Section 4. Suspension of Voting Riqhts. In the event any Owner shall be in the paYment of any amount due under any of the provisions of this Declaration for a period of thirty (30) days, or shall be in default in the performance of any of the terms of this Declaration for a period of thirty (30) days, such Owner's right to vote as a member of the Association shall be suspended and remain suspended until all payments are brought current and all defaults remedied. ARTICLE IV PROPERTY RIGHTS Section 1. Permanent Easements. All easements described in this Declaration are permanent easements appurtenant, running with the land. They shall at all times inure to the benefit of and be binding on the Owner and the Mortgagee, from time to time, of any Lots and on the owner and mortgagee, if any, from time to time, of the Common Area, and their respective heirs, successors, personal representatives or assigns. Section 2. Riqht of Enioyment~ Every Owner shall have a nonexclusive right and easement of enjoyment in and to the Common Area, which right and easement shall include, but not be limited to, the use and enjoYment of open spaces and all other parts of the Common Area for Owners and their invitees. Such right and easement shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions: '-5- --- '--;._-:;.-~~~~ -",", ._, _ _ ~'"' .." _J!~ ...._'." -,--~.;:)~""t-~"~,, . . A. The right of the Association to pass reasonable rules, with respect to the Common Area, for the health, comfort, safety and welfare of persons using same; B. The right of the Association to suspend the voting rights and right - of the use of recreational facilities (if any) situated upon the Common Area by an Owner for any period during which any assessment against his Lot remains unpaid, and for a period not to exceed sixty (60) days for an infraction of its published rules and regulations; C. The right of the Association to levy assessments as provided in this Declaration; D. The rights of the Association and Declarant reserved under Article IV, Sections 4 and 5 hereinbelow. Section 3. Deleqation of Enioyment. Any Owner may delegate, in accordance- with the By-Laws of the Association, his right of enjoyment to the Common Area to residents of his Lot, including the members of his family, his tenants, or contract purchasers, and the invitees thereof (except that the Board of DIrectors may restrict or regulate use of recreational facilities by nonresidents). Section 4. Association's Riqhts. A. The Association shall have the right to manage, build, reconstruct, repair, maintain and improve (including by way of example, but not limited to, landscaping, watering and lawn maintenance, providing sanitation service to and providing snow removal for) the Common Area, the Entrance Area and all improvements constructed thereon. B. The Association shall have the right to mortgage all or any portion of the Common Area for the purpose of securing a loan of money to be used for any of the purposes specified in Subsection 4.A. next hereinabove, provided that the rights of such mortgagee in the Common Area shall be subordinate to the rights of the Owners under this Declaration, and provided, further, that the mortgage shall have received the prior written approval specified in Article XI hereinbelow. C. The Property shall be subject to easements of record on the date hereof. D. Anything apparently to the contrary notwithstanding, no abandonment, partition, subdivision, encumbrance, sale or transfer of the Common Area or other common property or any part thereof shall be effective unless it shall have received the prior written approval required by Article XI hereinbelow. E. The Association shall have the access rights set forth below in the Article entitled "General Provisions". - -6- . . F. The Association shall have the right and obligation to improve, manage, reconstruct, repair and maintain (including by way of example but not limited to, landscaping and maintenance of landscaping) the Entrance Area. Section 5. . Declarant's Riqhts. Declarant shall have the same rights as any other Owner as to Lots owned by it from time to time, except as otherwise specified herein. In addition, until the last Lot is conveyed to an Owner other than Declarant, Declarant shall have the right and easement over the Common Area and the Entrance Area, for the construction and completion of improvements and making repairs to improvements (whether on the Common Area or upon the Entrance Area) and the right to maintain and use facilities and signs upon the Common Area for the purpose of marketing units, and to invite and escort the public thereon for such purpose. Without limiting the generality of the foregoing, Declarant shall have the .~ight (until the last Lot is so conveyed) to construct, relocate, remove and alter improvements on the Common Area, including paths, driveways, parking areas, utilities, lighting, walls, fences, signs and landscaping, and to cut, fill, and reshape land contours. Section 6. Non-Dedication to Public Use~. Nothing contained in this Declaration shall be construed or be deemed to constitute a dedication, express or implied, of any part of the Common Area or the Entrance Area to or for any public use or purpose whatsoever. Section 7. Easement for Unintentional Encroachment. Notwithstanding any other provisions contained herein, in the event that any Living Unit on any Lot encroaches upon another Lot, then a perpetual easement appurtenant to such encroaching Lot shall exist for the continuance of any such encroachment for so long as the encroachment shall exist. Section 8. Lot to Lot Easements. Since each Living Unit and Garage forms an integral part of a building including other Living Units and Garages, the Owner of each Lot shall have a nonexclusive right and easement over adjoining Lots for lateral support, support, and where necessary, access for maintenance and upkeep of walls, fences and other improvements. ARTICLE V ASSESSMENTS Section 1. Personal Obliqation~ Lien. Declarant, for each Lot owned by it within the Property, hereby covenants, and each Owner of a Lot by acceptance of a deed, or other conveyance therefore, whether or not it shall be so expressed therein, shall be and ,is deemed to covenant and hereby agrees to pay to the Association: (a) annual assessments or charges, which shall be payable in regular installments and shall include, but not be limited to, premiums for all insurance maintained by the Association pursuant to Article XII of this Declaration, exterior maintenance of improvements to the Common Area, trash removal, sewer and water charges, outside -7- "'-'_"___'_"'_"~'.,"_,.-.."",,,,...n,,,, ~ -,. "",""," '_.---'<- .-, ~~. . . lighting, maintenance of lawns and landscaping, snow removal and an adequate reserve fund for the periodic maintenance, repair and replacement of those improvements and elements of the improvements on the Common Area and the Entrance Area that must be replaced on a periodic basis and which the Association may be obligated to maintain, and (b) special assessments, such assessments to be established and collected as hereinafter provided. Any assessments authorized herein, together with interest, costs and reasonable attorneys' fees, shall be a continuing lien from the first day of January (for annual assessments) and from the date the first installment is payable (for special assessments) against the Lot assessed. Such annual assessments shall be due and payable in twelve equal monthly installments on the first day of each and every month commencing on the first day of January of each year. Each assessment, together with interest, costs and reasonable attorneys' fees, also shall be the personal obligation of the -. person who was the Owner of such Lot on the date said assessment became due and payable. Said personal obligation of an Owner shall not pass to his successors in title or interest unless expressly assumed by them or unless, prior to such transfer, a statement of lien for such assessments shall have been fil~d in writing with the County Recorder or Registrar of Titles (as applicable) for Hennepin County, Minnesota. No Owner shall escape liability for the assessments which fell due while he was the Owner by reason of non-use of the Common Area or non-use, transfer or abandonment of his Lot. Section 2. Purpose of Assessments. The assessments levied by the Association shall be used exclusively to promote the recreation, health, safety and welfare of the Owners and residents of the Property, and to construct, manage, improve, maintain, repair and administer the Common Area and the Entrance Area and all pipes, wires, or other conduits of matter or energy located upon the Common Area, and for the maintenance of all improvements on the Common Area and Entrance Area. An adequate reserve fund shall be maintained for working capital and for the periodic maintenance, repair and replacement of those improvements and elements on the Common Area and Entrance Area that must be replaced on a periodic basis. Such fund shall be maintained out of the regular as'sessments. Section 3. Annual Assessments. Until December 31,1991, the maximum annual monthly assessment shall be at a rate fixed by the Board of Directors, but not to exceed the monthly rate of $105.00 per Lot. Thereafter, the Board of Directors may fix said annual assessments to cover any and all expenses and projected expenses. A. From and after December 31, 1991, assessment may be increased each year not more of increase in the Revised Consumer Price Earners and Clerical Workers for All Items for ("CPI") as published by the U.S. Department than 5 % ) . the maximum annual than 5% (or the rate Index for Urban Wage Minneapolis-St. Paul of Labor, if greater --8- - ..'f;~ . . B. From and after December 31, 1991, the maximum annual assessment may be increased above 5% (or the rate of increase in the CPI, if greater than 5%) by a vote of two-thirds (2/3) of each class of members who are voting in person or by proxy, at a meeting called for this purpose. C. The Board of Directors may fix the annual assessment at an amount not in excess of the maximum. Section 4. Special Assessments. In addition to the annual assessments authorized above, the Association may levy, in any assessment year, a special assessment applicable.to that year only for the purpose of defraying, in whole or in part, the cost of any unforeseen or unbudgeted common expense, including without limitation the .unexpected construction, reconstruction, repair or replacement of capital improvements and including fixtures and ..personal property related thereto, and the exterior maintenance to the Common Area and the Easement Area, provided that any such assessment shall have the assent ,of not less than two-thirds (2/3) of the votes of each class of Members who are voting in person or by proxy at a meeting duly called for this purpose. Section 5. Notice and Quorum. Written notice of any meeting called for the purpose of taking any action authorized under Sections 3 or 4 of this Article shall be sent to all Members not less than thirty (30) days nor more than sixty (60) days in advance of the meeting. At the opening of such meeting, the presence in person or by proxy of Members entitled to cast sixty percent (60%) of the votes of each class of the membership shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement, and the required quorum at the subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall beheld more than sixty (60) days following the preceding meeting. Section 6. Rate of Assessment. Both annual and special assessments must be fixed at a uniform rate for all Lots except that, in consideration for the Declarant hereby assuming any deficit in the operating expenses of the Association so long as Declarant controls the Board of Directors, Lots owned by the Declarant for which no certificate of occupancy has been issued by the City of Shorewood shall be exempt from assessments until the first day of the month following the issuance of such certificate at which time such Lot shall be assessed the full rate. The Declarant may unilaterally waive this exemption or institute a full or reduced rate for Declarant-owned units prospectively by executing and recording a written waiver to that effect. Section 7. Commencement of Initial Annual Assessments. The annual assessments provided for herein shall commence as to all Lots not later than one month after the conveyance of the Common Area to the Association. The first annual assessment shall be adjusted according to the number of months remaining in the calendar year. -9- ~-'_..._.',,",.:~. . . Section 8. Commencement of Annual Assessments. By November 30 of each year the Board shall fix the amount of annual assessments against each Lot for the following fiscal year and shall send written notice thereof to each Owner. The due date for paYment of annual assessments shall be set by the Board. At the time the Board fixes the amount of annual assessments it shall adopt a budget for the following fiscal year and cause a copy of such budget in reasonable detail to be furnished to each Owner. Section 9. Proof of Payment. Upon written demand of an Owner or Mortgagee, at any time and for a reasonable charge, the Association shall furnish a written certificate s~gned by an officer of the Association setting forth whether there are any then-unpaid annual or special assessments levied against such Owner's or Mortgagee's Lot. Such certificate shall be conclusive evidence of paYment of any annual or special assessments not stated -therein as unpaid. Section 10. Nonpayment of Assessments. Any assessments which are not paid when due shall be deemed delinquent. In the event of a default of more than thirty (30) days -in paYment of. any assessment or installment thereof, the Board of Directors may accelerate the remaining installments of the assessment due in the current assessment year upon notice thereof to the Owner, and thereupon the entire unpaid balance of the assessment with all accrued interest and penalties shall become due and payable upon the date stated in the notice. If a monthly assessment is not paid by the tenth of the month, the Board may assess a service charge not to exceed $15.00. If an assessment is not paid within thirty (30) days of the date on which such assessment due, it shall bear interest from the delinquency date at the rate of eight percent (8%) per annum and shall become a continuing line in favor of the Association on the Lot against which assessed and the improvements thereon, and the Association (or any Owne~ acting in the name and for the benefit of the Association) may bring an actiqn at law or in equity against the person personally obligated to pay the same, including interest, costs and reasonably attorneys' fees for any such action, which shall be added to the amount of such assessment and included in any judgment rendered in such action, and the Association may also enforce and foreclose any line it has or which may exist for its benefit. There shall be no right of set-off against the Association based upon a failure to provide services or for money owed by the Association to the Owners. Section 11. Recordinq and Enforcement of Liens. To evidence a lien for sums assessed pursuant to this Article, the Association may prepare a written notice of lien setting forth the amount of the assessment, the date due, the amount remaining unpaid, the name of the Owner of the Lot, the name of the person personally obligated to pay the same, and a description of the Lot. Such a notice shall be signed by an officer of the Association, and it or a notice of lien or adverse claim thereof may be recorded in the office of the County Recorder or Registrar of Titles (as applicable) for Hennepin County, Minnesota. No notice of lien -10- . . shall be recorded until there is a delinquency in payment of the assessment for thirty (30) days. Upon such a delinquency for thirty (30) days, the Association shall proceed promptly to enforce the lien or, in its discretion, to sue the person personally liable to pay the lien for the delinquency. Such lien shall be enforced by action (or by power of sale, which is hereby deemed granted by each Owner, at the option of foreclosing party) in the same manner in which mortgages on real property may be foreclosed in Minnesota. In any such foreclosure, the person personally obligated to pay the lien shall be required to pay all costs of foreclosure including interest, costs, the reasonable attorneys' fees. All such interest, costs, and expenses shall be secured by the lien being foreclosed. The person personally obligated to pay the lien also shall be required to pay to the Association any assessments against the Lot which shall become due during the period of foreclosure. The Association shall have the right and ~power to bid at the foreclosure sale or other legal sale and to acquire, hold, convey, lease, rent, encumber, use and otherwise deal with the foreclosed interest in the Lot as the Owner thereof. The Association shall upon written req~est report to any encumbrancer of a Lot any assessments remaining unpaid for longer than thirty (30) days after the same shall have become due, provided, however, that such encumbrancer first shall have furnished to the Association written notice of such encumbrance. Section 12. Subordination of Lien. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage and to tax liens and liens for special assessments in favor of any taxing and assessing unit of government. Sale or transfer of any Lot shall not effect" the assessment line. However, the sale or transfer of any Lot pursuant to mortgage foreclosure or remedies provided in the mortgage, or any proceeding in lieu thereof, shall extinguish the lien of such assessments as to charges which accrued prior to acquisition of title pursuant to such sale or transfer. No such sale or transfer shall relieve a Lot "from liability for any assessments thereafter becoming due or from the lien thereof or shall relieve the person personally obligated to pay the lien of personal liability for assessments due prior to such sale or transfer or acquisition of premises. Any delinquent assessments the lien for which is extinguished by reason of this prov~s~on may be reallocated and assessed to all Lots as a common expense. ARTICLE VI ARCHITECTURAL CONTROLS Section 1. Architectural Control Committee Authority. No Living Unit, residential or other building, and no fence, wall, garage, outbuilding or other structure, nor any wire, pipe, cesspool, septic tank, well, path, walkway, tree, hedge, driveway, aerial, antenna, or exterior ornament of any kind, nor any addition, remo~al, alteration, or remodeling thereof, including -11- ..._-..--.,---'.. -~ ~.",.,,,,,:,~ . . change of color, repainting or redecorating of the exterior, shall be made, erected, altered, placed or permitted to remain on any portion of the Property unless and until detailed plans and specifications and proposals, including plans which show the external design, the colors and color scheme, the decoration, the construction, and the materials to be used in construction, the dimensions, and the location and approximate cost of the same shall have been submitted to and approved in writing by an Architectural Control Committee (hereinafter described) as to harmony of the external design and location in relation to surrounding building in the subdivision and as to general appearance and quality. In the event said Committee fails to approve or disapprove such design and location within fifteen (15) days after said plans and specifications have been submitted to it (in such reasonable detail as the Committee may require), or if no suit to enjoin the making of such construction, removal, additions, alterations, or changes :has been commenced within thirty (30) days of such submission, such approval will be deemed to have been given. If no submission has been made to the Architectural Control Committee or its representatives, suit to enjoin or remove such additions, alterations or changes may be instituted at any time by the Association or any Owner. The Board of Directors, on request, will issue a certificate as to the state of compliance or noncompliance of a particular Lot, and any such certificate will be binding as to third parties. Any deviation from said plans and specifications as approved which in the judgment of the said Committee is a substantial change or a detriment to the appearance of the structure or of the surrounding area shall be corrected to conform to the plans and specifications as submitted. Every structure must be erected and completed within eighteen months of approval, or new approval obtained. If any structure is begun, and is not completed within eighteen months after the commencement of construction, and in the judgment of the Architectural Control Committee is by reason of its' incomplete state of offensive or unsightly appearance, the Committee, at its discretion after ten (10) days written notice to the Owner of the Lot, may take such steps as may be necessary, in its judgment, to improve the appearance so as to make the property harmonious with neighboring properties, including entering upon the Lot, completion of the exterior of the structure, screening or covering the structure, or any combination thereof or similar operation, and the amount of any expenditure made in so doing shall be a lien on the Lot enforceable in like manner as assessment hereunder. Nothing herein contained shall be deemed to prohibit Declarant from making changes to the plans, specifications, and appearance of buildings constructed from time to time on vacant Lots, but all buildings shall be consistent in terms of quality and harmonious in general appearance with previously constructed buildings. During the period the Association has a Class B member, the decisions of the Architectural Control Committee must have the written approval of the Declarant. The Architectural Control Committee shall be the Board of Directors of the Association, or a committee of three or more persons so designated by the Board. In addition to the foregoing conditions and restrictions, all provisions of the Sho~ewood City Code relating to the requirement for building permits shall apply. -12- - -"_.- .. - ...,-".c """-'~' -,...,~._,,'1~'~ -<~.'- - .. . Section 2. Restoration in Accordance with Original Plans. Any restoration or repair of the Common Area or exterior of Living Units and garages, after a partial condemnation or damage due to an insurable hazard, shall be performed substantially in accordance with the Declaration and the original plans and specifications, unless other action is approved by the Architectural. Control Committee. Section 3. No Design Liability. The Architectural Control Committee and Declarant shall not exercise architectural or engineering expertise in its review of plans. It is the sole duty and responsibility of an Owner to employ an architect or engineer to design a Living Unit and any requested modifications in a safe and architecturally sound manner. Each Owner and his heirs, successors and. assigns waives any right to claim damages from the Architectural Control Committee or Declarant as a result of . architectural designs requested by or furnish to said Committee or the Declarant's review thereof. The Architectural Control Committee and Declarant shall not be responsible to any Owner, or anyone claiming under or through an Owner, in any manner whatsoever for any defect in any plans or specificatf~ns submitted to said Committee, nor as revised at the request of said Committee or Declarant or for any work done pursuant to requested changes of said plans and specifications. ARTICLE VII OTHER RIGHTS AND OBLIGATIONS OF THE ASSOCIATION Section 1. The Common Area and Exteriors. The Association, subject to the rights of the Owners as set forth in this Declaration, shall be responsible .for, and be vested with, the exclusive management and control of the Common Area and the Entrance Area and all improvements thereon (including furnishings and equipment related thereto), and shall keep the same in good, clean, attractive and sanitary condition, order and repair. Such responsibility shall include, but not be limited to, the following: the maintenance and repair of the Common Area and the Entrance Area improvements, such as the recreational facilities, if any, driveways, parking areas, walkways, exterior ornamental lights, landscaping and all other improvements or material located within or used in connection with the Common Area and Entrance Area. All maintenance and repair of the individual Living Units and garages shall be the sole obligation and expense of the individual Owner. Section 2. Lawn and Plantinq Maintenance; Patios. The Association shall mow, trim, water, rake and otherwise maintain, all to the extent the Board deems necessary or desirable, all lawns and exterior plantings of both the Common Area and the Entrance Area. Section 3. Services. The Association may obtain and pay for the services of any persons or entities, to manage its affairs, or any part thereof, to the extent it deems advisable, as well as such -13- -~,,,..- ....~ ..'-~-"".-' - .. . other personnel as the Association shall determine to be necessary or desirable for the proper operation of the Property, whether such personnel are furnished or employed directly by the Association or by any person or entity with whom or which it contracts. The Association may obtain and pay for legal and accounting services necessary or desirable in connection with the operation of the Property or the enforcement of this Declaration. Any agreement for professional management of the Property or any other contract providing for services by Declarant or an entity owned or controlled by the same persons as Declarant, must provide for termination by either party without payment of a termination fee on ninety (90) days' or less written notice without cause and by either party upon thirty (30) days' or less written notice for cause, and shall have a maximum contract term of three (3) years, but may be renewable by agreement of the parties for successive terms. Section 4. Personal Property for Common Use. The Association may acquire and hold for the use and benefit of all of the Owners ." tangible and intangible personal property and may dispose of the same by sale or otherwise. Such beneficial ~nterest shall not be transferable except with the transfer of title to a Lot, provided that an Owner may delegate his right of enjoyment of such personal property to residents of his Lot. A transfer of title to a Lot shall transfer to the transferee ownership of the transferor's beneficial interest in such property in accordance with the purpose for which it is intended, without hindering or encroaching upon the lawful rights of other Owners. The transfer of title to a Lot under foreclosure shall entitle the purchaser to the beneficial interest in such personal property associated with the foreclosed Lot. Section 5. Utilities. The Association may pay as a common expense all charges for water, sewer and other utilities used upon the Common Area and the Entrance Area. ARTICLE VIII OWNERS' MAINTENANCE Section 1. Upkeep and Maintenance. Each Owner shall be responsible for the upkeep and maintenance of his Living Unit, garage, patio and all other areas, features or parts of his Lot and each Owner shall maintain the same free of hazardous substances, vermin, cockroaches, pests and debris which may pose a threat to the health or safety of occupants of other Lots. Every Owner must perform promptly all cleaning, maintenance and repair work within his Lot, which, if omitted, would affect the Common Area or another Lot or Lots, being expressly responsible for the damages and liabilities that his failure to do so may engender. Without limiting the generality of the foregoing, the Association may require an Owner to remove offending items, or to use a professional exterminator, and upon failure of the Owner to do so, Association after reasonable notice may .enter the Lot. with a -14- ,.~. ....- n__..___.......".. . ...".,.c,..,.,~.,..,....:-_....:.-..".-.,-~- . . professional exterminator or other appropriate contractor and take corrective action, charging the Owner of such Lot for the reasonable cost thereof. An Owner shall do no act nor any work that will Lmpair the structural soundness or integrity of a multi-family structure or an adjoining Living Unit or garage, or Lmpair any easement or hereditament, nor do any act nor allow any condition to exist which will adversely affect the other Living Units, garages or their Owners. Section 2. Heating of Livinq Units. For the purpose of preventing damage to and breakage of water, sewer and other utility lines and pipes in a Living Unit which might result in damage to that or other Living Units, all Owners shall maintain the temperature in their Living Units, at all tLmes, at least at 55 degrees Fahrenheit (or such other reasonable temperature or standard as the Board of Directors may from time to tLme specify by . written rule), subject, however, to the inability to maintain such temperature due to causes beyond the Owner's reasonable control. Any damage resulting from the refusal or failure of an Owner so to maintain such minimum temperature may be repaired by the Association and (unless due to causes beyond ~e Owner's reasonable control) the cost thereof assessed against the Lot of the refusing or failing Owner. However, if the failure to maintain such minimum temperature is due to causes beyond the Owner's reasonable control, the cost of such repair shall be a common expense. The Association may by rule require Living Units which are unoccupied for substantial periods of time during winter to use alarms which will detect abnormally low temperatures. ARTICLE IX PARTY WALLS Section 1. General Rules of Law to Apply. Each wall which is built as a part of the original construction of the Living Units upon the Property and placed on the dividing line between the Lots shall constitute a party wall, and to the extent not inconsistent with the provisions of this Article, the general rules of law regarding party walls and liability for property damage due to negligence or willful acts or omissions shall apply thereto. Section 2. Sharing of Repair and Maintenance. The cost of reasonable repair and maintenance of a party wall shall be shared equally by the Owners who made use of the wall. Section 3. Destruction by Fire or Other Casualty. If a party wall is destroyed or damaged by fire or other casualty, an Owner who has used the wall may restore it to its original condition, and if the other owners thereafter make use of the wall, they shall contribute to the cost of the restoration thereof in proportion to such use without prejudice to the right of any such Owners to call for a larger contribution from the others under any rule or law regarding liability for negligent or willful acts or omissions. "':15- '~~'~"'("",,~-.--'''~ ,..,."#'<""~- .. . Section 4. Weatherproofing. Notwithstanding any other provision of this Article, an Owner who by his negligent or willful act caused the party wall to be exposed to the elements shall bear the whole cost of furnishing the necessary protection against such elements. Section any Owner shall be successors 5. Right to Contribution Runs With Land. to contribution from any other Owner under appurtenant to the land and shall pass to in title. The right of this Article such Owner's Section 6. Arbitration. In t~e event of any dispute arising under the provisions of this Article, each party shall choose one arbitrator, and such arbitrators shall choose one additional arbitrator, and the decision shall be by a majority of all the arbitrators, intending hereby to invoke and apply the provisions of --Minn. Stat. 572.08 to 572.30. The arbitration hearing shall be held within Hennepin County, Minnesota, and the initial application under the statute shall be to the District Court for the Fourth Judicial District in and for Hennepin County, Minnesota. ARTICLE X GENERAL RESTRICTIONS, OBLIGATIONS AND RIGHTS OF OWNERS Section 1. Living Unit and Lot Restrictions. No more than one Living Unit shall be erected or maintained on each Lot, and no Lot as originally platted shall be further subdivided or partitioned. No Living Unit shall be used for purposes other than as a single residential unit, nor shall any trade or business of any kind be carried on within a Living Unit or upon a Lot, nor shall any Lot or any part thereof be leased, sublet, assigned or suffered to be used for hotel or transient occupancy, provided that none of the following activities shall be considered a violation of this covenant: A. The maintenance of units by Declarant on Lots construction and sales periods. a business and sales office and model or Common Area or both during the B. The maintenance of an office by the Association or its designated manager for purposes of management of the Property. C. Lease or rental of a Living Unit for purposes consistent with this Section. D. The use of a Lot by an Owner for home office or studio uses which are incidental to the principal residential use of the unit, which do not invite or generate regular or frequent visits by clients, customers, employees, co-workers or the public, and which do not alter the residential character of the Property. Section 2. Setback and Building Height Restrictions. Minimum setbacks for Living Units and other structures shall be as follows: -16- . . Front - 30 feet. Rear - 30 feet. Side - 10 feet. Side yard abutting the street - 30 feet. The above minimum setback distances do not apply to the common lot line between Living Units on which the party wall between such Living Units is constructed. The be two less. maximum height for Living Units and other structures shall and one-half stories or thirty-five (35) feet, whichever is Section 3. Common Area Restrictions. No industry, business, trade, occupation or profession of any kind shall be conducted, maintained or permitted on any part of the Cornmon Area, nor shall -. any "for sale" or "for rent" signs or any window display advertising be maintained or permitted on any part thereof, except that Declarant reserves the right for itself or its agents to maintain a business and sales office during the construction and sales period until the last Lot is sold, and-to place "for sale", "for rent", or any other signs on any part of the Cornmon Area and to use any part of the Cornmon Area for sale or display purposes during such period. No Living Unit or garage shall be constructed on the Common Area. Section 4. Obstructions. There shall be no obstruction of the Common Area, nor shall anything except construction materials and equipment be kept or stored on any part of the Common Area during the construction period without the prior written consent of the Association or except as specifically provided herein. Nothing shall be altered on, constructed in, or removed from the Cornmon Area except upon the prior written consent of the Association. Section 5. Prohibition of Damage and Certain Activities. Nothing shall be done or kept on any Lot or in the Common Area or any part thereof which would increase the rate of insurance on the Property or any part thereof over what the Association, but for such activity, would pay, without the prior written consent of the Association. Nothing shall be done or kept on any Lot or in the Common Area or any part thereof which would be in violation of any statute, rule, ordinance, regulation, permit or other validly imposed requirement of any governmental body. No damage to, or waste of, the Cornmon Area or any part thereof or of the exterior of the Property and buildings shall be committed by any Owner or any invitee of any Owner, and each Owner shall indemnify and hold the Association and the other Owners harmless against all loss resulting from any such damage or waste caused to the Association or other Owners by him or his invitees. No noxious, destructive or offensive activity shall be allowed on any Lots or in the Common Area or any part thereof, nor shall anything be done thereon which may be or may become a nuisance to any other Owner or to any other person at any time lawfully residing on the Property. No heating devices, refrigeration equipment, or other machinery which causes -17- ___ ".___'~_,""""'._' """",,,.,,,,,,,,,~,,-m",,,,," . . vibrations detectable from outside the Lot, is fuel-fired, or is otherwise inherently dangerous, noxious, or noisy, shall be installed or operated within any Lot. Section 6. Fences, Walls and Patios. heighten, lower or otherwise move or patio upon the Property except as hereinabove. No Owner shall relocate, change any fence, wall or provided in Article VI Section 7. No Unsightly Uses. No clothes, sheets, blankets, laundry of any kind, or other articles shall be hung out on any portion of the Common Area, or on a Lot so as to be visible from outside the Lot .__The Common Area and all parts of a Lot_visible. from outside the Lot, shall be kept free and clear of all rubbish, debris, and other unsightly materials. Section 8. Awnings. No awnings or shades shall be erected over and outside of the windows, nor shall any articles or structures be hung or placed on any outside window sills without the prior written consent of the Association. Section 9. Animals. No pets shall be permitted to be kept on the Property, by any Owner or occupant except conventional domesticated animals. No kennel, dog house or outside run shall be constructed or maintained on the Property. No pet shall be kept for any commercial purpose nor shall pets be bred for a commercial purpose upon the Property. Any cat or dog, whenever outside of a Living Unit, must be kept under the direct control of the pet owner or another person able'to control the pet. The person in charge of the pet must clean up after it. The Board may adopt more specific rules and penalties not inconsistent with the foregoing, and may make all or specified portions of the Common Area off limits to pets. Upon the petition of seventy-five percent (75%) of the Owners of Lots located within seventy-five (75) feet of the Lot in which resides a specified pet, the Board may order the removal of a particular dog for constant and uncontrolled barking, or of any particular animal for repeated instances of wandering unleashed or other repeated behavior reasonably offensive to others, provided that the Owner of the Lot harboring the animal shall first have thirty (30) days' written notice in which to correct the offensive behavior. . Section 10. Prohibited Structures. No structure of a temporary character, trailer, boat, camper-bus, basement, tent, or shack shall be maintained on any Lot nor shall any garage or other building, except a permanent residence, be used at any time as a residence or sleeping quarters, either temporarily or permanently. Exterior basketball hoops may only be maintained with the prior written approval of the Board, and may be prohibited by the Board in its discretion. The Association may maintain on the Common Area a storage shed to be used by the Association for the storage of lawn maintenance equipment and other common property. -18- .r..... .".~.~_._"--~'- . . The Association may license the erection of temporary party tents for weddings, parties and the like. Section 11. Storaqe. Outside storage of any items (other than patio-type furniture and not more than one cooking grill per Lot), including but without limiting the generality of the foregoing, sporting equipment, toys, yard and garden tools and equipment, and trash and garbage containers, shall not be allowed unless effectively screened from view from outside the Lot by enclosures. The design of such screened enclosure must be approved by the Architectural Control Committee in accordance with the architectural control provisions hereof. The storage or collection of rubbish of any character whatsoever, any material_that._emits foul or obnoxious odors, the growing of any noxious weed or other natural substance, and the harboring of the source of any noise or activity which disturbs the peace, comfort or serenity of residents '. is prohibited. Unusual household trash and garbage shall be regularly collected and may be kept outside only if in sanitary containers which are so screened. Notwithstanding the foregoing, no boats, snowmobiles, trailers, camping vehicles, buses, camper tops, "all-terrain vehicles", tractor/trailers., trucks in excess of 9,000 pounds gross weight, or unlicensed or inoperable vehicles shall at any time be stored or parked on any Lot outside of a house or garage or on any part of the Common Area without the express written approval of the Board of Directors, which may be withheld, without stated reason. No stores of coal or any combustible, flammable, hazardous or offensive goods, provisions or materials shall be kept on any part of the Property except for reasonable quantities and kinds of usual household materials and reasonable quantities of fireplace wood. Section 12. Siqns. No sign of any kind shall be displayed to the public view on any Lot, except: A. Designations, shall be regulation occupants; in such approve, styles and materials as the Board of street addresses and names of B. A "For Sale" sign may be displayed provided that it is in such styles and materials as the Board shall by regulation approve; and C. Declarant shall be permitted to erect and maintain upon the Property such signs as it deems necessary to advertise the development during the construction and sale periods. D. All signs displayed as provided above shall conform to the Shorewood City Code. Without limiting the generality of the foregoing, the Board of Directors may by resolution prohibit the distinctive and particular "For Sale" signs used by real estate brokers and agents. -19- _.~ --"~'" ~.~-,...,.... . - . . Section 13. Antennae. Except with prior written approval of the Architectural Control Committee, no exterior television, radio, satellite, or microwave antenna of any sort shall be erected or maintained upon any Lot." The Architectural Control Committee may choose to prohibit all such antennae, or to prohibit only certain kinds and locations of antennae, and to change it regulations from time to time, all in its discretion. Wi thout limi ting the generality of the foregoing, it shall not be deemed arbitrary or an abuse of such discretion if the Committee were to: A. Permit while at the location; existing same time antennae to continue to be maintained, banning new antennae of the same type or B. Prohibit the street side - -visible; or antennae to be placed so as to be visible from of a Lot, but permit the same antennae if not so C. Place height or size restrictions on antennae. Section 14. Rentals. Any lease between an Owner and a lessee shall provide that the terms of the lease shall be subject in all respects to the provisions of this Declaration, the Articles of Incorporation and the By-Laws, and that any failure by the lessee to comply with the terms of such documents shall be a default under the lease. A lease must be for an entire Living Unit, not a portion thereof. All leases shall be in writing. No lease may be for a period of less than thirty (30) days. Other than the foregoing, there shall be no restrictions on the right of any Owner to lease his Living Unit. Section 15. Rules and Requlations. The Board from time to time shall adopt such other rules and regulations governing the use and enjoYment of the Common Area as the Board in its sole discretion deems appropriate or necessary. ARTICLE XI RIGHTS FOR THE PROTECTION OF FIRST MORTGAGEES Section precedence Declaration. 1. over Precedence. any other The provisions of this Article take conflicting provisions of this Section 2. Notice of Action. Any Mortgagee and any insurer or guarantor of a first Mortgage on a Lot or Living Unit who has advised the Association in writing of its name and address and the address of the Lot or Living Unit covered by such Mortgage, and in said writing has requested the Association to notify it of any of the following, will be entitled to timely written notice of: . A. Any condemnation loss or any casualty loss which affects a material portion of the project or any Lot or Living Unit on which there is a first mortgage held, insured, or guaranteed by such mortgage holder or insurer or guarantor, as applicable; -20- . . B. Any delinquency in the payment of assessments or charges owed, or any other default in the performance of any obligation under the Declaration, By-Laws, or Articles of Incorporation by an Owner of a Lot or Living Unit subject to a first mortgage held, insured, or guaranteed by such holder or insurer or guarantor, which remains uncured for a period of sixty (60) days; C. Any lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Association; D. Any proposed action which would require the consent of a specified percentage of mortgage holders a specified in the Article entitled "General Provisions". Section 3. Liability for Unpaid Assessments. Any first mortgagee who obtains title to or comes into possession of a Lot : pursuant to the remedies provided in the mortgage or by foreclosure of the mortgage or by deed or assignment in lieu of foreclosure, and any purchaser.at a foreclosure sale shall not be liable for the unpaid assessments of the Lot which accrue prior to the acquisition of title or possession to such Lot by the mortg~gee. and the set Section 4. holders, right to forth more Examination of Books and Records. First mortgagees insurers and guarantors of first mortgages shall have examine the books and records of the Association, as fully in the By-Laws. Section 5. Payment of Taxes and Insurance. First mortgagees may, jointly or singly, pay taxes or other charges which are in default and which have or may become a charge against any common property, and may pay overdue premiums on hazard insurance policies or secure new hazard insurance coverage on the lapse of a policy for the common property, and first mortgagees making such payments shall be owed immediate reimbursement therefore from the Association. The Association is authorized to enter into an agreement in favor of all first mortgages of Living Units establishing entitlement to such reimbursement. Section 6. Distribution of Insurance Proceeds and Condemnation Awards. No provision of the Declaration or By-Laws shall be construed as giving to the Owner or to any other party priority over any rights of first mortgagees of Lots pursuant to their mortgages in the case of a distribution to Owners of insurance proceeds or condemnation awards for losses to or a taking of common property. Section 7. Desiqnation of Representative. Any holder of a first mortgage on a Lot or Living Unit may designate a representative to attend meetings of members. -21- . . ARTICLE XII INSURANCE Section 1. Maintenance of Insurance. Commencing not later than the time of the first conveyance of a Lot to an Owner other than Declarant, the Association shall maintain, to the extent reasonably available, the following insurance: A. Master or blanket type policy of fire insurance with extended coverage endorsement (including, to the extent reasonably available, vandalism, sprinkler leakage, debris removal, malicious mischief, or windstorm and water damage) insuring the Common Area, Entrance Area and improvements thereon and covering the interest of the Association for full insurable replacement cost, as determined annually by the Board of Directors. Proceeds of such hazard ~nsurance shall be used solely for the repair, replacement, or reconstruction of such insurable common property. Said policy shall afford, as a minimum, protection against the f~llowing: (1) Loss or damage by fire and other pe~ls normally covered by the standard extended coverage endorsement; (2) All other periods which are customarily covered with respect to projects similar in construction, location and use, including all perils normally covered by the standard "all risk" endorsement, where such policies must be set forth therein substantially as follows: "Waterford Townhomes Association, Inc. for the use and benefit of the individual owners." The policies also may be issued in the name of an authorized representative of the Association, including any Insurance Trustee with whom the Association has entered into an Insurance Trustee Agreement, or any successor to such trustee, for the use and benefit of the individual Owners. Loss payable shall be in favor of the Association (or Insurance Trustee), as a trustee for each Owner and each such Owner's mortgagee. Each Owner and each such Owner's mortgagee, if any, shall be beneficiaries of the policy with respect to the Common Area equally with each other Lot. Evidence of insurance shall be issued to each Owner and mortgagee upon request. Policies must provide for the recognition of any Insurance Trust Agreement. The policies shall also provide that the right of subrogation against Owners will be waived, that the insurance will not be prejudiced by any acts or omissions of individual Owners that are not under the control of the Association or the Owners collectively and that the policy will be primary, even if an Owner has other insurance that covers the same loss. If reasonably available, such policies shall include: -22- . . (1) Agreed Amount Endorsement (or like endorsement); (2) Inflation Guard Endorsement; (3) Construction Code Endorsements (such as a Demolition Cost Endorsement, a Contingent Liability from Operation of Building Laws Endorsement, and an Increased Cost of Construction Endorsement) if the project is subject to a construction code provision which would become operative and require changes to undamaged portions of the improvements, thereby imposing significant costs in the event of partial destruction of the project by an insured peril; and __._ ----.--- -- n H__ ---- (4) Steam Boiler Coverage (if applicable) for loss or damage resulting from steam boiler equipment accidents in an amount not less than $50,000.00 per accident per location. B. Workers' Compensation "insurance (if the Association has eligible employees). C. Comprehensive public liability insurance in such amounts and with such coverage as the Board of Directors shall from time to time determine, but at least: (1) Covering events occurring anywhere on the Common Area (and public ways and commercial spaces, if any, and any other areas that are under its supervision) or arising out of or in connection with the use, ownership or maintenance of the Common Area; (2) Covering, without limitation, legal liability of the insureds for property damage, bodily injuries and deaths of persons in connection with the operation, maintenance or use of the Common Area and Entrance Area and legal liability ar~s~ng out of lawsuits related to employment contracts of. the Association, and such other coverages as are customarily covered with respect to projects similar in construction, location, and use; (3) Insuring each officer and member of the Board of Directors, the managing agent and each Owner and with cross liability endorsement to cover liabilities of the Owners as a group to an Owner and with a "Severability of Interest Endorsement" which would preclude the insurer from denying the claim of an Owner for the negligent act of another Owner, occupant or the Association; and (4) In amounts generally required by private institutional mortgage investors for projects similar in construction, location and use. (However, such coverage shall be for at least $1,000,000.00 for bodily injury, including deaths of persons and property damage arising out of a single occurrence. ) -23- . . D. Such determine. other insurance as the Board of Directors may E. All such policies must provide that they may not be cancelled or substantially modified by any party without at least ten (10) days prior-written notice to the Association and to each holder of a first mortgage which is listed as a scheduled holder of a first mortgage in the insurance policy. Section 2. Owners' Individual policies. Each Owner shall carry insurance for his own benefit insuring his Living Unit, personal liability and his carpeting, wallcovering, fixtures, furniture, furnishings, and other personal property, and fixtures and other property supplied or installed by him or a previous Owner or tenant, provided that all such policies shall contain waivers of :subrogation and further provided that the liability of the carriers issuing insurance obtained by the Association shall not be affected or diminished by reason of any such additional insurance carried by any Owner. Section 3. Covenant to Insure. Since eich Living Unit forms an integral part of a building including several other Living Units, and failure to repair or rebuild a damaged Living Unit would therefore seriously affect the appearance, structural integrity and value of an adjoining Living Unit and the appearance of the project as a whole, each Owner covenants to keep in full force and effect at all times fire and standard extended coverage insurance in an amount not less than one hundred percent (100%) of the insurable value (based on current replacement cost) of his Living Unit and associated garage as originally constructed, and to use the proceeds thereof solely for the repair, replacement or reconstruction of such Living Unit and associated garage, and to deliver proof of such insurance to the Association upon demand. Each such policy shall name the Association (or its Insurance Trustee) as an additional insured and shall provide for thirty (30) days notice to the. Association before cancellation shall be effective and shall waive subrogation against other Owners. No government agency as an Owner shall be required to carry said insurance. The Association may, by resolution of the Board of Directors, elect to obtain and continue in effect, on behalf of all Owners, a blanket insurance policy for all Living Units conforming to the foregoing requirements and the premiums therefore may be assessed against each Lot equally, pro rata by value or size or by any other reasonable allocation, as part of the regular annual assessment. Such coverage shall be written in the name of, and the proceeds shall be payable to, the Association as trustee for the Owners or some other Insurance Trustee. Section 4. Additional Coveraqes. In addition and supplement to the foregoing powers, and not, in limitation thereof, the Board of Directors shall have the authority at all times without action by the Owners to require the policies mandated by this Article to include, or directly to obtain and maintain in fore all Common or Association coverages and endorsements required by either Federal -24- . . National Mortgage Corporation for the garages or Lots, as time. Association or Federal Home Loan Mortgage acceptance of mortgages on Living Units, such requirements are amended from time to Section 5. Covenant to Rebuild. Each Owner, by acceptance of a deed to his Lot, hereby appoints the Association, or any Insurance Trustee or substitute Insurance Trustee designated by the Association, as attorney-in-fact for the purpose of the collection and appropriate disposition of the proceeds of casualty insurance onn individual Lots and Living Units, the negotiation of losses and execution of releases of liability, the execution of all. documents, and the performance of all other acts necessary to accomplish such purpose. The Association or any Insurance Trustee is hereby required to receive, hold, or otherwise properly dispose of any proceeds of such insurance in trust for Owners and their first nortgage holders, as their interests may appear, and to apply and administer the same as follows: A. All insurance proceeds paid Insurance Trustee (hereinafter sometimes "Trustee") shall be deposited in escrow company or other depository acceptable mortgagees of record. to the Association or referred to merely as with a title insurance to the Trustees and B. The Owner of the Living Unit or garage with respect to which the insured loss occurred shall, within thirty (30) days after insurance proceeds are deposited in accordance with Paragraph A above, enter into a firm lump sum contract with a qualified builder providing for the reconstruction or remodeling of the Living Unit or garage, to substantially the same condition as existed immediately prior to the insured loss; provided, however, that no contract shall be entered into by the Owner for an amount in excess of the insurance proceeds then held by the Trustee for said Living Unit or garage, until additional funds are deposited by the Owner sufficient to cover all construction and restoration costs as determined by the Trustee and mortgagee. Said reconstruction or remodeling shall be commenced and completed with due diligence, and in no event shall said work be completed than than one hundred eighty (180) days (weather permitting) after said insurance proceeds are deposited in escrow as aforesaid. The Association and mortgagees of record of the Living Units or garages affected and the Lots underlying the same shall have the right, but not the obligation, to deposit such additional funds in excess of insurance proceeds as may be required to permit construction as herein provided, and any such advances shall be a lien upon the Lot or Lots, subordinated, however, to the interest of mortgagees of record. C. In the event the Owner fails to enter into a contract as provided in Subparagraph B above, or in the event that reconstruction or remodeling is not commenced or completed as provided above, then the Trustee or the mortgagee of record, with the consent of the Trustee, shall have the right, .but not the -25- . . obligation, to enter into those contracts which it deems necessary to complete said reconstruction or remodeling of the complete said reconstruction or remodeling of the Living Unit or garage, and the Trustee or mortgagee shall have the right to have said insurance proceeds applied in satisfaction of any obligation incurred pursuant to said contracts, without liability of any kind to the Owner, including, but not limited to, interest on said insurance proceeds. The Trustee may employ any bonded party or parties as its agents in exercising those functions given to it in this Section. The Trustee shall be empowered to pay said agent a reasonable fee for the services rendered by said agent and to collect said charge from the Owner or Owners, as the case may be, and in the same manner as that which is provided herein for the collection of an insurance premium paid by the Association. D. Disbursement of funds on deposit pursuant to Subparagraph A above, for contracts for reconstruction or remodeling entered into under Subparagraphs Band C above, shall be made by a title insurance company or other agent ("Agent") selected by Trustee and the affected mortgagees of record, subject to ~he following: ( 1 ) Article VI Controls" remodeling. of these covenants shall apply to all entitled "Architectural said reconstruction or (2). Receipt by Agent of such sworn construction statements, lists of subcontractors, lien waivers and receipts as it shall determine to be appropriate. Disbursements may be by periodic or progress payments, and Agent.may make such inspections and withhold such payments as it deems necessary to insure completion in compliance with plans and specifications. ( 3 ) In the event Subparagraph B Owner to said be unreasonably a contract is entered into pursuant to hereinabove, the written consent of the payment or payments, which consent will not withheld. E. In the event that a remodeling or reconstruction contract is, for any reason, not entered into pursuant to the provisions of Subparagraphs Band C hereinabove, within one hundred eighty (180) days after deposit of insurance proceeds in escrow for a damaged or destroyed Living Unit or garage, as herein provided, or in the event there are excess funds after reconstruction or remodeling, the proceeds or excess, as the case may be, shall be disbursed to each Owner and mortgagee of record of the affected Lot as their interests appear. F. In the event the Owner whose property is damaged fails to make satisfactory arrangements for the repair and reconstruction of the damage property and, in the event the Trustee decides to repair and reconstruct the damage property and it is determined by it that the insurance proceeds are not sufficient for all costs and expenses associated therewith, the Association or the mortgagee may -26- . . deposit, insurance pay the Expense" ) . arrange for and disburse funds over and above the proceeds to complete the repair and reconstruction and to costs associated and related therewith ("Additional (1) If the insurance coverage for this casualty was by a blanket or master policy secured by the Association, such additional expense shall be a common expense payable from the Association's funds or assessable equally against all Lots as a special assessment. (2) If the insurance coverage for this casualty was by an individual policy secured by the affected Owner, then such additional expense shall be due and payable from the affected Owner and upon completion of the work, the Board of Directors may levy a Special-Charge Assessment against the Lot having the effect of a maintenance assessment lien under Article V hereof, but superior to all other annual and special assessments, and which lien may be enforced in the same. manner. as provided herein for other assessment liens. The Special-Charge Assessment shall be in the amount expended by the Trustee over and above the insurance proceeds received by the Trustee to repair and reconstruct the Owner's premises, including necessary costs, expenses and fees associated with the work. G. In all events, betterments or improvements made subsequent to the original construction by any Owner to his Lot shall be the responsibility of the Owner to insure separately (or by rider to a blanket policy at the consent of the Association) if he desires the same insured. If the Trustee or mortgagee undertakes the reconstruction or remodeling of a Living Unit or garage as above provided, the same need be restored only to substantially the same condition as the Living Unit or garage was as of the completion of original construction. Section 6. Insurance Premiums. Insurance premiums for any blanket property insurance coverage and the other insurance coverages purchased by the Association shall be common expenses to be paid by assessments levied by the Association, and such assessments shall be held in a separate escrow account of the Association and used solely for the paYment of the blanket property insurance premiums and other insurance premiums as such premiums become. due. The premiums payable as to each Living Unit and associated garage may be allocated based upon the ratio of the value of each Living Unit to the total value of all Living Units, rather than equally, if so determined by the Board of Directors. ARTICLE XIII EMINENT DOMAIN Section condemnation 1. The Association shall represent the Owners in any proceedings or in. negotiations, settlement and -27- . . agreements with the condemning authority for acquisition of the Common Area, or part thereof, and by acceptance of a deed for his unit, each Owner appoints the Association as attorney-in-fact for such purposes. In the event of a taking of acquisition of part or all of the Common Area by a condemning authority, the award or proceeds of settlement shall be payable to the Association, or other trustee (such as a bank or title insurance company appointed as such by the Association), for the use and benefit of the Owners and their mortgagees as their interests may appear. Section 2. Reconstruction. In the event of a partial taking of the Common Area (for conveyance in lieu thereof) the Association promptly shall cause the remaining portions of the Common Area to be restored functionally and aesthetically to reasonably the same condition as before the taking, using so much of the proceeds of -such taking for such purpose as shall be reasonably necessary. In -the event of a total taking of the Common Area (or conveyance in lieu thereof), and the project is terminated by the election hereinabove required, the proceeds shall be allocated equally among each Lot, payable jointly to the respective Owners and mortgage holders thereof. - ARTICLE XIV GENERAL PROVISIONS Section 1. Enforcement. Enforcement of these covenants and restrictions and of the provisions contained in the Articles of Incorporation and By-Laws of the Association (and of decisions made by the Association pursuant thereto) may be by any proceeding at law or in equity instituted by the Association or by any Owner against any person (including the Association) violating or attempting to violate any covenant or restriction, either to restrain violation, to compel compliance, or to recover damages, and against the land, to enforce any lien created by these covenants; and failure by the Association or by any Owner to enforce any covenant or restriction herein contained in a particular instance shall in no event be deemed a waiver of the right to do so thereafter. Attorneys' fees and costs of any such actions to restrain violation or to recover damages as determined by the Court shall be assessable against and payable by any persons violating the terms contained herein. Section 2. Mergers. Upon a merge or consolidation of the Association with another corporation as provided in its Articles and By-Laws, its properties, rights and obligations may, by operation of law, be transferred to another surviving or consolidated association or corporation, or, alternatively, the properties, rights and obligations of another corporation may, by operation of law, be added to the properties, rights, and obligations of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated corporation may administer the covenants and restrictions established upon any other properties as one entity. No such merger or consolidation, -28- . . however, shall effect any revocation, change or additions to the covenants established by this Declaration within the Property, except as hereinabove provided. Section 3. Access. For the purpose solely of performing repairs and maintenance authorized by this Declaration, the Association, through its duly authorized agents or employees, shall have the right, after reasonable notice to the Owner (except in an emergency), to enter upon any Lot. In the event the Association authorized any sort of master cable or community television or data system, each Owner hereby authorizes access to his Lot upon reasonable notice for the purpose of installing the conduits and fixtures necessary to serve such Lot, without regard to whether the Owner then elects to subscribe to or use such system. Section 4. Emerqency Access. For the purpose of performing . emergency repairs under this Article, or of taking emergency action to seal a Living Unit from weather or otherwise to prevent damage or destruction to any Lot or Living Unit, the Association, through its duly authorized agents or employees, shall have the right to enter upon any Lot or Living Unit at any time,=without notice, with such men and material as the Association deems necessary, to accomplish such emergency repairs or to take such emergency action. Section 5. covenants or shall in no full force and Severability. Invalidation of anyone of these restrictions by legislation, judgment or court order way affect any other provisions which shall remain in effect. Section 6. Duration and Amendment. The covenants and restrictions of this Declaration shall run with and bind the land, and shall inure to the benefit of and be enforceable by the Association or the Owner of any Lot subject to this Declaration, their respective personal representatives, heirs, successors and assigns, for a term of twenty (20) years from the date this Declaration is recorded, after which time the covenants ~nd restrictions shall be automatically renewed for successive periods of ten (10) years unless terminated by a statement recorded within the last ninety (90) days of such twenty (20) or ten (10) year periods signed by not less than ninety percent (90%) of the Owners and" by not less than fifty-one percent (51%) of the holders of first mortgages, counting one vote for each Lot covered by a first mortgage. Except as elsewhere herein provided, this Declaration may be amended during the first twenty-year period by an instrument signed by not less than ninety percent (90%) of each class of the Owners and thereafter by an instrument signed by not less than seventy-five percent (75%) of the Owners. In addition, a particular amendment may require the consent of Declarant under Section 7 below, or of a proportion of first mortgagees under Section 8 below, or of the FHA under Article XV below. Notwithstanding the foregoing, however, Declarant shall have the right to amend this Declaration by recording an amendment executed -29- . . solely by it which recites that it is for the purpose of conforming to requirements or comments of FHA, until the happening of one of the following events, whichever occurs earliest: A. The the Federal Affairs; recording of such an amendment evidencing approval by Housing Administration or the Department of Veterans B. .On December 31, 1991; C. The recording of Declarant's waiver of this right. Any amendment to this Declaration shall be subject to review and approval by the City. The consent of the Owners may be obtained by a written agreement, or at a meeting of the Association duly held in accordance with the provisions of the By-Laws. Whenever such an amendment has been so approved, it shall be recorded with the appropriate recording office in the county where the Property is located, and shall not be effective until so recorded. Any officer of the Association shall have the power and authority to certify to such approval, and such certification shall be sufficient evidence of approval for all purposes, including recording. Section 7. Declarant's Joinder. In addition to the other requirements for amendment of this Declaration and the By-Laws contained herein, the written joinder and consent of the Declarant shall be required for any amendment of either the Declaration or By-Laws which shall abolish, diminish or restrict Declarant's rights hereunder to complete improvements, to maintain sales and management offices and models, to maintain signs and advertise the project, or to use easements through Common Areas for purposes of constructing improvements or marketing the project until the last conveyance of a Lot to an Owner other than Declarant. This right may be waived in whole or part at any time by recording a written waiver executed and acknowledged by Declarant. Section 8. Mortqagee Approval. In addition to all other requirements set forth herein, unless at least seventy-five percent (75%) (or such higher percentage as is required by law or this Declaration) of the first mortgagees of the Lots or their assigns (based upon one vote for each first mortgage owned), have given their prior written approval, neither the Association nor the Owners shall be entitled to: A. Terminate the legal status of the project (except in accordance with procedures set forth in this Declaration and By-Laws in the event of amendment or termination made as a result of destruction, damage or condemnation); B. By act of omission, seek to abandon, partition, subdivide, encumber, sell or .transfer the Common Area (the granting of easements for public utilities or for other public purposes consistent with the intended use of the Common Area shall not be deemed such.a transfer); -30- . . C. Use hazard insurance proceeds for losses to any common property for other than the repair, replacement of reconstruction of such common property; D. By act or omission change, waive or abandon any scheme of regulations, or enforcement thereof, pertaining to the architectural design or the exterior appearance of Living Units or garages, . the exterior maintenance of Living Units or garages, the maintenance of the common property, party walls or common fences and driveways, or the upkeep of lawns and plantings. Section 9. Notices.. Any notice required to be sent to any Member of the Association (or Owner) under the provisions of this Declaration shall be deemed to have been properly sent when mailed, postage prepaid, to the last known address of such Member appearing pn the records of the Association at the time of such mailing. In -the case of multiple Owners of a Lot, notice to anyone of such Owners shall be deemed notice to all. Section 10. Captions. intended for convenience substantive effect. The Article and Section headings are only and shall: not be given any Section 11. Construction. In the event of an apparent conflict between this Declaration and the By-Laws, the provisions of this Declaration shall govern. The use of pronouns such as "his", "he" and "him" are for literary purposes and mean whenever applicable the plural and female forms. Section 12. Hiqhway 7 Intersection and Commercial Development. Notice is hereby given to all Owners and prospective Owners that the City shall extend Old Market Road to State Highway 7 and construct a signalized intersection connecting Old Market Road to both the east and westbound traffic lanes of State Highway 7. Notice is further given that a substantial portion of the Property lying adjacent to and south of the right-of-way of State Highway 7, is intended to be developed for commercial use including, but not limited to, a gasoline sales, grocery sales and convenience store facility and a restaurant. Additional information regarding the extension of Old Market Road to State Highway 7 and future commercial development of the Property may be obtained by contacting the City. ARTICLE XV FHA APPROVAL So long as there is Class B membership, the following actions will require the prior written approval (or waiver of this requirement) by the FHA (or the affidavit of Declarant that as of the date of such amendment neither the project nor any part thereof had been submitted to, or had been given project approval by, the FHA): annexation of additional property, mergers and consolidations, mortgag.ing of Common. Area, dedication o'f Common Area, dissolution and amendment of this Declaration. -31- . . ARTICLE XVI ORDINANCES In addition to the provisions of this Declaration, all ordinances contained in the City Code of the City shall be binding on t~e Owners, including the rights given in said City Code to an Owner to apply for variances from said ordinances. In addition to complying with City Ordinances and/or approved variances therefrom, an Owner must comply with all of the covenants, conditions, restrictions and reservations set forth herein. IN WITNESS WHEREOF, the said TRIVESCO, a Minnesota partnership, by its partners, Steiner & Koppelman, Inc., a Minnesota corporation, Robert H. Mason, Inc., a Minnesota corporation, and .Highland Properties, Inc., a Minnesota corporation, has caused this .. document to be executed as of the day and year first above written. TRIVESCO By Steiner & Koppelman, Inc., Partner By Its By Robert H. Mason, Inc., Partner By Its By Highland Properties, Inc., Partner By Its -32- . STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) The foregoing instrument of the. , of corporation, a partner of behalf of said partnership. . was acknowledged this day , 19 91, by , Steiner & Koppelman, Inc., a Minnesota Trivesco, a Minnesota partnership, on STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) Notary Public of the corporation, a partner of behalf of said partnership. instrument was acknowledqed this day , 19 91, by , , of Robert H. Mason, Inc., a Minnesota Trivesco, a Minnesota partnership, on The foregoing STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) The foregoing instrument of the , of corporation, a partner of behalf of said partnership. Notary Public was acknowledged this day , 19 91, by , Highland Properties, Inc., a Minnesota Trivesco, a Minnesota partnership, on THIS INSTRUMENT WAS DRAFTED BY: Vesely, Miller & Steiner 400 Norwest Bank Building 1011 First Street South Hopkins, Minnesota 55343 Notary Public -33- . . Third Draft - 6/14/91 DECLARATION OF RESTRICTIVE COVENANTS THIS DECLARATION is made this _____ day of , 1991, by Trivesco, a Minnesota general partnership ("Declarant"). RECITALS A. Declarant is the owner of real property located in the County of Hennepin, State of Mlnnesota, described as: Outlot A, Waterford 3rd Addition according to the recorded plat thereof (the "Real Property"). B. On May 28, 1991, the City Council of the City of Shorewood, Minnesota (the "City") approved- the final plat of Waterford 3rd Addition. As a condition of such plat approval, the City Council has required Declarant to execute and record this Declaration in order to impose certain restrictions on the use of the Real Property. C. Declarant has agreed to execute and record this Declaration for the purpose of satisfying the above condition of final plat approval. NOW, THEREFORE, ., in consideration of the foregoing recitals, Declarant hereby declares that all of the Real Property shall be held, transferred, leased, occupied and developed subject to the following restrictions: 1. Prior to construction of ,any building or structure on the Real Property, Declarant shall submit a signage plan to the City setting forth design specifications for all signs to be placed on the Real Property including wall, pylon and temporary signs. pylon signs constructed on the Real Property may not exceed 20 feet in Clf) . ~ height or the maximum height of the building(s) constructed on the platted lot on which the sign is located, whichever is less. The City shall retain on file a copy of the signage plan submitted by Declarant and the requirements of said plan shall be incorporated into all Lease Agreements between Declarant and tenants of the Real Property. The signage plan shall be consistent with the provisions of the Waterford Design Framework Manual dated August, 1984 and the provisions of the Shorewood Zoning Code. 2. No merchandise, sales or display racks, sales or display equipment or appliances, soft drink vending machines or ice machines may be kept or located outside ~f any building or structure on the Real Property. Open and. outdoor storage, sales and display are prohibited. This restriction shall not apply to gasoline pumps or similar devices for dispensing petroleum products. 3. The hours of operation of the convenience grocery store and gasoline sales facility to be constructed on the Real Property shall be limited to between 6:00 a.m. and 12:00 midnight. 4. The hours of operation of the family restaurant to be constructed on the Real Property shall be limited to between 7:00 a.m. and 11:00 p.m. 5. The family restaurant to be constructed on the Real Property shall not be eligible to apply to the City for any type of liquor license. 6. All exterior lighting constructed or installed on the Real Property shall conform to the Waterford Design Framework Manual dated August, 1984. Prior to issuance of a Certificate of -2- . . of Waterford, 3rd Addition which depicts and includes such lot or lots. Any part of the Real Property which is finally approved for residential use, as evidenced by the filing of a final plat or replat for each stage of residential development of the Real Property, shall not be subject to the provisions of this Declaration. Upon filing of a final plat or replat for each stage of residential development of Waterford, 3rd Addition, all of the real property included within such plat or replat shall - automatically be released from, and shall not be further subject to this Declaration or any of the restrictions contained herein without the filing of any release or other~imilar document. To the extent any of the provisions of this Paragraph 10 conflict or are inconsistent with any of the other provisions of this Declaration, the provisions of this paragraph shall control and supercede such inconsistent provisions. 11. The restrictive covenants established by this Declaration are perpetual in duration. Said restrictive covenants may, however, be terminated and released at any time, in whole or in part, by the City by means of a written release, in recordable form, duly executed by the City. The restrictive covenants established by this Declaration are for the exclusive benefit of the City and may be terminated and released by the City, in whole or in part, without the consent or approval of any owner of the Real Property or any part thereof. 12. The restrictive covenants established by this Declaration shall be enforceable solely and exclusively by the City of Shorewood, and shall be enforceable by injunctive relief, -4- . . prohibitive or mandatory, to prevent breach of or to enforce performance or observance of these restrictive covenants or by any other appropriate legal remedy. 13. Failure to enforce any of the restrictive covenants established by this Declaration in any particular instance shall in no event be deemed to be a waiver of the right to do so as to any subsequent violation. 14. Invalidation of any of the terms, covenants, restrictions and conditions of this Declaration, whether by Court Order or otherwise, shall in no way effect any of the other terms and conditions, which shall remain in full force and effect. IN WITNESS cWHEREOF, Declarant has caused this Declaration of Restrictive Covenants to be executed as of the date and year first above written. Trivesco By Steiner & Koppelman, Inc., Partner By Its By Robert H. Mason, Inc., Partner By Its -5- . STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) The foregoing instrument of .. the , of corporation, a partner of behalf of said partnership. STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) . By Highland Properties, Inc., Partner By Its was acknowledged this day , 1991, by , Steiner & Koppelman, Inc., a Minnesota Trivesco, a Minnesota partnership, on Notary Public instrument was acknowledged this day , 1991, by , , of Robert H. Mason, Inc., a Minnesota Trivesco, a Minnesota partnership, on The foregoing of the corporation, a partner of behalf of said partnership. STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) The foregoing instrument of the , of corporation, a partner of behalf of said partnership. Notary Public was acknowledged this day , 1991, by , Highland Properties, Inc., a Minnesota Trivesco, a Minnesota partnership, on Notary Public -6- . THIS INSTRUMENT WAS DRAFTED BY: Vesely, Miller & Steiner 400 Norwest Bank Building 1011 First Street South Hopkins, Minnesota 55343 -7- . ~ . . . . 6/18/91 o RDIN ANCE NO. AN ORDINANCE AMENDING CHAPTER 507 OF THE SHOREWOOD CITY CODE PROVIDING FOR MANDATORY RECYCLING FOR MULTIPLE-FAMILY DWELLINGS THE CITY COUNCIL OF THE CITY OF SHOREWOOD, MINNESOTA, ORDAINS: Section 1: Chapter 507 of the Shorewood City Code is hereby amended to read as follows: "507.10. Mandatory Recyclinq for Multiple-familY Dwellinqs. Owners of Multiple-family dwellinqs containinq more than eiqht dwellinq units shall either contract directly with the recyclinq hauler under contract with the City or with a private hauler licensed under the provisions of Section 507.02 of this Chapter for the provision of a recyclinq collection service t.o all residents of the dwellinq. If the owner contracts with a hauler other than the hauler under contract with the City, a written description of the specific recyclinq collection plan must be submitted to the City for approval and verification of the existence of said services to the residents. The recyclinq services provided under this section must comply with the requirements of this Code and all applicable Hennepin County 0 rdinances for recyclinq." Section 2. This 0 rdinance shall be in full force and effect from and after its passage and publication. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD, MINNESOTA, this day of , 1991. Barbara J. Brancel, Mayor ATTEST: James C. H urm City Administrator/Clerk If) . - . . 6/19/91 RESOLUTION NO. A RESOLUTION ESTABLISHING A TEMPORARY TRANSPORTATION TASK FORCE FOR STUDYING TRAFFIC CONTROL ON OLD MARKET ROAD WHEREAS, the Shorewood City Council wishes to establish a temporary Transportation Task Force to study the effects of the construction of the Old Market Road/Highway 7 intersection on Old Market Road and Covington Road. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Shorewood that a temporary Transportation Task Force (the Task Force) is hereby created to operate within the following parameters: PURPOSE: The Task Force is created to investigate and make recommendations to the City Council concerning actions which4nay be taken to minimize the effect on the neighborhood of increased traffic on Old Market Road caused by the completion of the Old Market Road/Highway 7 intersection. OBJECTIVES: To provide practical recommendations on methods to promote a safe environment and to preserve integrity of the neighborhoods affected by the Old Market Road/Highway 7 intersection. To make practical recommendations on ways to reduce traffic flow on Old Market Road/Covington Road resulting from the Old Market Road/Highway 7 intersection. To recommend methods to insure that the concerns of residents affected by the Old Market Road/Highway 7 intersection are heard and fairly represented during the Task Force deliberations and any subsequent City Council action. TASK FORCE MAKE UP: The Task Force shall consist of five Shorewood residents as follows: Jim Berdahl - 19205 Waterford Place (Chairman) David Dean - 5690 Old Market Road Harold Ness - 19605 Vine Ridge Road Bob Snyder - 19855 Chartwell Hill James Finstuen - 19720 Sweetwater Curve Dan Lewis (City Council Liaison, Non Voting Member) Brad Nielsen (City Planning Director, Non Voting Member) /1 . Ii.; . . EXPENDITURE OF FUNDS: Expenditure of any City funds on behalf of the be authorized in advance by the City Council. policies and procedures shall be followed. Task Force shall The normal City PROCEDURES: Meetings shall be called by the Chairman by requesting that the City Administrator send a notice of the time and place of the meeting and an agenda to the committee members. SUNSET: The mission of the Task Force shall be completed and it shall cease to exist on December 31, 1991. BE IT FURTHER RESOLVED that the sum of $4,000.00 is hereby transferred from Line Item 71-43, "Contingency, Miscellaneous Services," to a new Line Item 51-46, "Transportation Task Force II-, hereby created in the Mayor and Council Department Budget for the purpose of funding expenditures associated with the Transportation Task Force. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 24th day of June, 1991. Barbara J. Brancel, Mayor ATTEST: James C. Hurm City Administrator/Clerk . . . MAYOR Barb Brancel COUNCIL Kristi Stover Bob Gagne Rob Daugherty Daniel Lewis CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 FROM: James C. Hurm, City Administrator MEMO TO: Mayor and City Council DATE: June 19, 1991 RE: A Proposed Ordinance Allowing an Administrative Permit for Underground sprinkler Systems in the Public R.O.W. Several Council meetings back, Mike Beuchlin from Summit Avenue, requested the City Council to allow him to-install a sprinkling system in the City r. o. w. . He returned before the end of the Council meeting and asked the Council to consider changing the ordinance to allow such requests. Since then he has called my office asking if the issue was going to be taken up. I advised him we could review that question at the staff level and offer an option to the city Council. Since then Ron Leaf on Near Mountain Boulevard has made a similiar request. That application is on this Council Agenda. The Public Works Director Don Zdrazil states he feels that there are a number of private systems already in the public r.o.w.. After discussing this issue at a number of staff meetings we have proposed language for an ordinance which would allow an Administrative Permit for sprinklers in the r.o.w.. Such a permit would require a fee to be paid to the City and the waiver should be recorded at the offices of the Country Recorder or Register Title before the permit is issued. There does seem to be an increasing number of requests for sprinklers in the r.o.w.. The staff feels that if the Council should wish to consider officially allowing sprinkler systems in the r.o.w. the proposed ordinance would be the best route to go. We should publish the ordinance, not only in the newspapers but in newsletters informing those who have sprinklers in the r.o.w. that they must come in to the City to acquire a permit. all A Residential Community on Lake Minnetonka's South Shore 1;( . . 6/19/91 ORDINANCE NO. AN ORDINANCE AMENDING SECTION 901.02 OF THE SHOREWOOD CITY CODE PROVIDING FOR THE LOCATION OF UNDERGROUND SPRINKLER SYSTEMS IN THE PUBLIC RIGHT-OF-WAY THE CITY COUNCIL OF THE CITY OF SHOREWOOD, MINNESOTA, ORDAINS: Section 1: Section 901.02, Subd. 2, of the Shorewood City Code is hereby amended to read as follows: "Subd. 2. Permit to Encroach: a. Permit Required: The right to use publicly-owned rights-of-way within the City for any priv_ate use or purpose other than the primary purpose of public travel, whether such use constitutes a substantial or incidental use, may be acquired only through permit granted pursuant to this Section. b. Application for Permit: Any person may apply to the City Council for a permit to keep or maintain private property within a publicly-owned right-of-way. T he application shall be in writing and must describe with specificity the private property and right-of-way involved and the nature and extent of the requested encroachment. c. Issuance of Permit, Conditions: The City Council may grant the permit if it is determined that the use applied for is incidental and not inconsistent with safe and efficient public use. However, no permit will be issued until the applicant has agreed in writing to waive any right to recover from the City for damage occurring to the property located within the right-of-way which may result from the performance of the City or its agents of its public duties as required by law. d. Special Permit for Underqround Sprinkler Systems: The B uildinq 0 fficial may approve an application for a Special Permit for the installation of an underqround sprinkler system within the public riqht-of-way, providinq such l:c . . installation is not inconsistent with the public use of the riqht-of-way. In such application. in addition to the information required bv paraqraph b. above. the applicant shall provide a leqal description of the private property served by the sprinkler system and aqree in writinq to waive all riqhts to recover from the City for damaqe occurrinq to the sprinkler system as a result of the City's performance of its public duties within the riqht-of-way. The applicant shall further provide a surveyor plat drawinq showinq the location of the sprinklinq system within the riqht-of-way and pay the S pedal Permit fee as may be prescribed by ordinance passed by the City Council from time to time. Said Special Permit shall become effective upon its beinq duly recorded at the offices of the County Recorder or Reqistrar of Titles and the applicant's providinq to the City satisfactory proof thereof. ~ Revocation of Permit: The City reserves the right to revoke any permit granted under this Section as may be required by the public interest." :: Section 2. This 0 rdinance shall be in full force and effect from and after its passage and publication. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD, MINNESOTA, this day of , 1991. Barbara J. Brancel, Mayor ATTEST: James C. H urrn City Administrator/Clerk , . . Ronald Leaf 19790 Near Mountain Blvd Shorewood, MN 55331 June 7, 1990 ~~ ~\ city of Shorewood 5755 Country Club Road Shorewood, MN 55331 RE: Permit for Private Use of Public Right of Way 19790 Near Mountain Blvd with this letter I am submitting an Application for Permit to Keep or Maintain Private Property within a Publicly Owned Right-of-Way. This permit is for the installation of an underground sprinkler system. I request that this application be included in the city council meeting agenda for Monday, June 24, 1991. A drawing of the proposed system is attached. This permit is required in accordance with Subd. 2(a) of section 901.02 of the City Code. Consistent with the manufacturer's recommendations, a perimeter sprinkler design is planned to provide uniform coverage and conservation of water, two primary benefits for having such a system. The perimeter design results in sprinkler heads being located along the curb, and pipe being buried in the right of way. Alternative designs that do not encroach on the right of way will use more water to cover the same area. These designs require more overlap to insure complete coverage and will result in unavoidable watering of the street because the area covered by the sprinklers is circular. I understand that a key concern in considering this request is the potential for a claim from damage to the system by City maintenance crews. This concern should be mitigated by the cost of the components installed in the right of way, and by the damage waiver obtained with the permit. The sprinkler heads range in cost from $1.50 to $10, poly pipe costs 10 cents per foot, and the various connecting accessories cost less than $1, resulting in a total cost of materials in the right of way of less than $30. I will install and maintain the system myself, so there is no labor cost involved. Thank you for your consideration of this matter. Sincerely, Q~~L~ Ronald Lea~ enclosure 13 APPLICATION r.A PERMIT '1'0 KEEP OR MAINT. PRIVATE PROPER~ WITHIN A PUBLICLY OWNED ftIGHT-OF-WAY PUHSUANl' '1'0 ,SliORE'dOOD OHDINAUCE NO. 121 (<1~} t. 0'2..) Please type or print legilJly 1. APPLICANT INFORNATION Please give the name(s) of all persons who own the private property to be maintained in right-of-way. NAME(S) RCNAUJ J, A,tv.9 vVl4'Z-'f J, l-ID"tF- ADDRESSES l 't ,'to N~ IV\UWTI'HN e,OtA.Le-v~O TELEPHONE S\-ba.O....lOb9 I (n1U 3533 I ~~/7-f~SS7~) ! 47 Q-eLfI7Cl1) 2. RIGHT-OF-WAY Please name the highway, road, street, alley or other right-of-way upon which you are requesting to maintain private property. I q 7 10 N c412- jl1.c....~N r41rJ 8 ou. u;::v4-'t9 3. Please describe as carefully as possible the exact location or address on the right-of-way where the private property is to be maintained, as well as the nature, extent and purpose of the requested encroachment on the right-of-way. (Attach a photograph or sketch if possible). ItN iANOVl-b-i.ClAN!/ <;p.Q./IVKU::.'V2.. SY STI:YJ1 /,..Ji LL- BE l NS r4LL~;;> IN f;ftF ,.el c.. H- T or [...Jk'"f ~T 19710 NC4L /"WVlN!/tIAl $W.U~V1-'7--O 4-s sfk>wf5/ fN 7t/-t: A-TT-tLi-tt::--? Dt2..J.twIN0 DF 1l-I~ PZtw7 PClt..llDN DF TJ/~ LoT 4- PLA-T f)l'?A1NiN6 of (~"'11'10 ~ir..7tfZ- r~^;141/V 8t,:.ALt:v.f4-() IS f,LSo A-Tr,fUfL~ In consideration of approval of this permit, I hereby knowingly and voluntarily waive any right to recover from the City of 3horewood for damage occur'ring to property in the right-of-way as above described, \.,hich d3magt:. results from the performance by the City of Shorewood or its agE::Ilts (,f any public duti(;:j r'L:~lui('ed ty law. futL: 0-1-ql Q~---9-9 J, L~ '7n->,~ ~{ lSfb Applica signat r (s) Per'mi t ( ) Approved ( ) Not Approved f...u t c '. . . ~ ". . , . .... ... . ~ , \ J:> "?so OJ. ... --"",1.'- ... -- - AI kJoE .. "<Sa. Oz _ _ I -A ",. , ~ \ ~CI'" '."\ \. . ". o . \:-----;-~ \ ~~ 0.. <)$ \~"E')7 \., /AJ... \ ~A s;:-~ 0' , 7-~ ~~ \"". " .....-:, \ '?"'" -!... \. ~--- '-.T ~ ~ \J-, \~",... 0'\ ~_ -... ~ ~-- ~ ~ ry,J " , :-z - ()'~ O~ :.nUl -J O. \l\ ,~'b) (i ~, . .-:) ,/ /' /^' /' \ \ r-/' \ ) /> /' ./' / (' , /' , .... ... -Il> ~ ~ ..c..4 ~\' ...0 ~~ a ~ po. ~'i3N . ~ 0'0 . . !---- ,QI ---; 0- 0. o . . 6/19/91 RESOLUTION NO. A RESOLUTION APPROVING PLANS AND SPECIFICATIONS AND ORDERING ADVERTISEMENT FOR BIDS FOR CHURCH ROAD IMPROVEMENTS WHEREAS, pursuant to Resolution No. 5-91, adopted by the City Council on the 14th day of January, 1991, the City Engineer has prepared plans and specifications for the construction of local improvements on Church Road between the north end of Church Road and the intersection of Church Road and 62nd Street consisting of the installation of curbs, gutters, a cul-de-sac, drainage facilities, blacktopping, and watermains; and WHEREAS, the City Engineer has presented such plans and specifications to the City Council for approval. NOW, THEREFORE, BE IT RESOLVED by the fity Council of the City of Shorewood as follows: 1. T hat such plans and specifications, copies of which are attached hereto and made a part hereof, are hereby approved. 2. That the City Clerk shall prepare and cause to be inserted in the official newspaper and in "C onstruction Bulletin" an advertisement for bids upon the making of such improvements under such approved plans and specifications. T he advertisement shall be published for one day, shall ,specify the work to be done, shall state that bids will be received by the Clerk until a. m., on , 1991, at which time they will be publicly opened in the Council Chambers of the City Hall by the City Clerk, will then be tabulated, and will considered by the Council at p. m. on , 1991, in the Council Chambers, and that no bids will be considered unless sealed and filed with the Clerk and accompanied by a cash deposit, cashier's check,. bid bond or certified check payable to the Clerk for five per cent (5%) of the amount of such bid. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 24th day of June, 1991. Barbara J. Brancel, Mayor ATTEST: James C. H urm City Administrator/Clerk ;4 " . . MAYOR Barb Brancel COUNCI L Krist; Stover Bob Gagne Rob DaughertY Daniel Lewis CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 MEMO FROM: MAYOR AND COUNCILMEMBERS AL ROLEK aL-- JUNE 20, 1991 TO: DATE: RE: CONTRACT FOR CHECK COLLECTION SERVICES WITH UNITED CREDITORS ALLIANCE CORPORATION Bill Josephson, Liquor Store Manager, is recommending the City Council approve entering into a contract with united Creditors Alliance corporation for collection of bad checks received by our liquor stores. There is a $900 fee to use this program, which entitles us to submit 100 qualified checks for collection. United guarantees the success of the collection program. I have reviewed the contract document and have discussed the terms of the contract with Bill, Jim Hurm and Glenn Froberg. While Bill is recommending approval, I am reluctant to endorse this program. Although united guarantees collection of three times our program fee of $900, the contract places conditions as to what constitutes a "qualified" check which I do not feel are reasonable. If a check is not "qualified", it is not covered under the guarantee. united will allow us to replace the check with a "qualified" check; however, this only serves to extend the time over which the contract runs and does not guarantee payment of the check which are not "qualified". It may be that we would not meet the terms of the guarantee for well over two years, and possibly up to three to five years with our volume of returned checks. This means that our initial $900 payment would not be recoverable for this period of time. This could be a problem if the program does not perform as presented. Further, I have had experience with this type of collection program in the past with another company. That program, which also required an up-front payment. and guaranteed success, was not successful and dragged on for a number of years, resulting in the loss of the original payment. While this is not a reflection on United, it does raise a 'red flag' toward these types of programs. There are other collection programs and agencies which work on a A Residential Community on Lake Minnetonka's South Shore j5A .~----.,-- . . MEMO UNITED CREDITORS ALLIANCE CORP. JUNE 20, 1991 PAGE 2 performance basis and receive a flat rate per check or a percentage of the check amount. Our stores have used these in the past and have found their success to be limited. There are also programs which verify checks as they are received by the liquor store clerks and alert them to bad checks before they are accepted. While not foolproof, this may provide another alternative for the liquor stores. Given these points, I do not concur with Bill on the use of the program through United Creditors Alliance. Bill feels that the program is sound and is worth a try, and recommends the approval of the City Council. Should you have any questions regarding the program or the contract, please feel free to contact me or Bill. .ITED CREDITORS ALU.e CO~PORATION TANDEM PROGRAM ....................................................................................................................................................................................................... .............................................. o MAIL SYSTEM(S) DATE G -/5 - q I SYSTEM NUMBER BUSINESS TYPE DESCRIPTION L't '1 ( ..I ort h-trrl-<- CREDITOR NAME 5 h 0 v -e..J,lJ ':"'~ 1.,; ~ I ) " v.5 ADDRESS d-. =) I ~ 0 ~J~CWf:J CITY 5.-hnY-{J..,UOC& STATE M V) TELEPHONE: AREA CODE W I ~ NUMBER L} l 4- ~ 'Zslo I PRINT NAME OF SYSTEM USER B; 11 ~h~ ACTIVATORS FULL PER SYSTEM 100 SYSTEM PRICE $ qOO SALES TAX $ . St::kViCE AGREEMENT P.O. Box 27945/ Columl;lus. qhio 43227/614-864-4092 ZIP ttS3.3 I TITLE ~.V" AMOUNT RECEIVED $ qO () ~PD'M INV.O DCFCO P.O.O ~ Close/Return Report ($50 per systemlO PRIMARY PHASE SERVICE 11m IIU ~ III[] aID II[] SECONDARY PHASE SERVICE I SECONDARY CONTINGENT RECOVERY DIVISION (SCRD) I TRANSFER AUTHORIZATION. Any account completing the Tandem Program's Primary Phase ( approximately 120 days of printed demand contacts) uncollected. will automatically be transferred to UCA's Secondary Contingent Recovery Division (SCRD) for complete workout collection service ( including litigation when warranted. at UCA's expense) as a second placement. SCRD will service tr sf ed accounts in accordance with the terms and conditions stated herein and on the reverse side of this Agreement. (O)ClientlCreditor maintains a right to decline assignment to SCRD on all accounts. for thirty (30) days from the Notice of Transfer date. which is sent after the Tandem Program's Primary Phase is completed. SCRD Standard Contingent Collection Fee Schedule , Association Member Volume Account Fee Schedule For accounts submitted to UCA Jess than (Continued Below) months past due since last payment For accounts submitted to UCA more than (Continued Below) months past due since last payment (See Reverse Side) As specified on the reverse side of this agreement PAYMENT BY CHECK ONLY PLEASE - PAYABLE TO UNITED CREDITORS ALLIANCE CORPORATION VOLUME DISCOUNT (C) SYSTEMS LEVEL DTDM o EXEC o CAPP REMARKS Quantity Unit Price System Price $ $ Indicate method of transmittal in 'REMARKS'section SOURCE 0 SUPP, SOURCE 0 LEAD BANK o PERSONAL 0 ASSOCIATION NATURE OF DEBT Do.d c.h...~_e...J<...s AVERAGE AGE OF REFERRALS I vJ~~ Y~E CREDITOR'S ASSOCIATION ASSN, NO, N) AUTHORIZATION. ClientlCredltor authorizes UNITED CREDITORS ALLIANCE CORPORATION to prOVide collection service fully on each account submitted. If trans to the Secondary Phase....Secondary Contingent Recovery Division (SCRD) is elected, the Client authorizes United Creditors Alliance Corporation to negotiate, secure, and process payments on submitted accounts and forward recovered funds monthly net of contingent collection fees in accordance with the Contingent Fee Schedule detailed above. The Primary Phase service has no time limit so long as the computer maintenance fee of $25.00 is remitted at the end of each twelve (12) month period following the date of purchase.The Secondary Phase service (SCRD) has no time limit. All payments and arrangements must be communicated directly to UNITED CREDITORS ALLIANCE CORPORATION headquarters in Columbus, Ohio. Collection forms. services and procedures may be changed from time to time due to applicability, availability, and/or to comply with state and federal regulations. All orders accepted at Columbus. Ohio. (Wisconsin only-On all consumer accounts. we recognize the requirement to forward 15 day Right To Cure Notice when full payment is requested on installment accounts prior to forwarding for collections.) I have read the reverse side of this agreement and fully understand the terms and conditions of the services performed and the guarantee. This written agreement constitutes the entire agreement between the parties and cannot be changed except in writing Signed by the partie/; ~ /7~ . Signed by Client 1-. L.dC- z( ~ a j/IQW1 l :j;;~h~;--1 pnn~ame PRIMARY REP '-'r'r:'\."'l. A ~u--' ~t;' V ( J 4 s e04-7 v Name Number SECONDARY REP Number Name ~ew customer C Reorder 0 Rewrite PI ase print clearly on hard surface. Press firmly - you are writing through 4 copIes! ASSN COMp? PLEASE INITIAL YES .. Paid :' Date Rec. Remarks MBG To Customer: Misc. Paid o o U, o 6 en lo:: $ 1990 UNITED CREDITORS ALLIANCE CORPORATION ALL RIGHTS RESERVED Y / N Activator Attached: Y / N Sales Tax / Report . . _____________________, {,..5/._______ / ~ 7-~r~ --- --.,-:~~.~ . ..;~-.i ~--~ .-L~~--&<-</.~---o--oo.o-o_--- - ~F/ ~ ~ . ____n__ __ _____ _ ~ - -_.-_.._--- -----. ..--- ------------------ ------------------------- -_.~ ~--~--- ----~----------- --.H_____~-- _~--~--~----~--..~--~-.--- ._____u_~-~ _~----~~.---~--~-..- ~ .-:;.c.JT7~"t!le.- ~_ __~ --<-' ~ ~~_.J' ttt.~ ~,~.. . ._~._ _/C~./~ _~-~~/&-~U,..,.c..~;/'t::<:~C'.4.::. .._~ -4-. ~~ ~-r-...L~---o-.--. :.;___ ___:~__ -__~_~_-<!a.(./.-~--~-~-.----~-------- ~_o~-~_-/<---L-.d-.~~ -..-cL _~--~-.--~-------. _______~_._~-~--~_.?~:...-~-<-/L.~:--~--~- ___ ~ ~---e.---- ~/---e-:-.-~-.----------- _ ~-H__~---~---e-~-..4:. - . d'_ _____ __ w_._____ -_._--- .,---~- -+----- --------- .--.-.....--.. .'.-..--------' ... --.----.----.---.- -------_..- --.---- -.. - _._----_.._----_..__._.-------------~-_.._---_._--- -----------.---- - -" - - -.. ..----------------.. _.__._- 0.. no_._o~o..... .o.__umuU nO_ ._k~~--_o. _/~. --!K~-+~:'o.~. ~-~.,/~ P-- ::::.~.-,. . t5B . . MAYOR Barb Brancel COUNCI L Kristi Stover Bob Gagne Rob DaughertY Daniel Lewis CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 MEMORANDUM TO: Mayor and City Council FROM: Brad Nielsen DATE: 14 June 1991 RE: Traffic Controls - Shorewood Oaks Drive FILE NO. Streets - Shorewood Oaks Drive Monique Droege has requested that the 30 mph street signs which were approved at the 10 June meeting be located adjacent to the trail/drainage outlots (see attached map), rather than the corner of Maple Leaf Circle and Shorewood Oaks Drive. Having discussed the matter with other neighbors, the nearest resident to the proposed signs objects to additional sign age in front of her property. The proposed relocation is 'recommended. Unless the Council has concerns about the change the signs will be installed next week. cc: -.:JIm Hurm ~ Don Zdrazil Monique Droege A Residential Community on Lake Minnetonka's South Shore /1c-1 ~ ~":'''' ,- -. - N W+E s UJ ~ ...J r OJ 01 ~ ~ ~ ~ E~ISTIN~ ~MP" .$IGI'l :. . ?LEAS E. -PL..ACE e:J0R 3 N6W ~o MPl-l 516NS IN 11-lE. OUiLOT ARe.A O~ RI61H 0("1 -ntE PWP&m L..lt-lES H:6e$ Ttl\s SJ.\-OVl.,O "BE: (JNoc.1lW~1 VI:. ro AN'f ONE. ? ~OPE::t2-1 0 W N e.r:z.. . oA\<.. LeAF 1ltAIL - . . ." MAYOR Barb Brancel COUNCI L Kristi Stover Bob Gagne Rob Daugherty Daniel Lewis CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 MEMORANDUM TO: Mayor and City Council FROM: Brad Nielsen DATE: 19 June 1991 RE: Trivesco - Signage Request FILE NO. 405 (89.03) Having been ordered to remove subdivision plat signs for the Waterford P.D.D., Paul Steiner has requested that he be given additional time (through the 1991 Parade of Homes) to keep the signs up. He has been advised that in order to do so he would have to apply for either a variance or an amendment to the Waterford P.D.D. agreement. Before he invests any time or money into a formal request, Mr. Steiner has asked staff to approach the City Council on an informal basis for direction. If the Council is not willing to consider a variance or amendment, he will simply drop the matter. If, however, the Council sees merit in his argument (see attached letter, dated 23 May 1991), he will make formal application. If you have any questions relative to this matter, please do not hesitate to contact my office. cc: Jim Hurm Glenn Froberg Paul Steiner Randy Travalia /1C ,,3 A Residential Community on Lake Minnetonka's South Shore ~ . . Steiner & Kop~elman A Tradition Of Excellence ~~AY 2 8 \99\ May 23, 1991 City of Shorewood 24255 Smithtown Road Shorewood, MN 55331 Attn: Brad Neilsen Mayor and Council: I am writing on behalf of Trivesco to request permIssIOn to keep our identification sign on the corner of Old Market Road and Covington for four months, through September 30, 1991. There will be two homes in the 1991 Parade of Homes in Waterford this year and this sign is important to our success. We have eight lots yet to sell and are confident that this will happen by fall of this year. We believe that the excitement and enthusiasm of new construction activity will benefit the owners of homes in Waterford that are presently for sale. The increased tax base also helps the City. Lastly, Trivesco needs to sell these lots to allow us to purchase the revenue bonds for the Old Market Road - Highway 7 intersection. Please allow us to keep this marketing tool in place for this limited time. Yours truly, TRIVESCO J?~,#\~~ Paul N. Steiner PNSjmn 473.5435 Residential Construction · Consultation · Design 3610 South Highway 101 · Wayzata, MN 55391 " CK NO CHECK APPROVAL LIS~ FOR JUNE 24, 1991 COUN~MEETING TO WHOM ISSUED PURPOSE AMOUNT ~HECK ISSUED SINCE JUNE 11, 1991 6929 6930 6931 6932 6933 6934 6935 6936 6937 6938 6939 6940 6~41 6942 6943 6944 6945 6946 6947 6948 6949 6950 6951 6952 6953 6954 6955 6956 6957 6958 6959 6960 6961 6962 6963 6964 6965 6966 (G) (G) (G) (L) (L) (L) (L) (L) (L) (L) (L) (L) (L) (L) (L) (G) (G) (G) (L) (L) (L) (L) (L) (L) (L) (L) (L) (L) (L) (G) (G) (G) (G) (G) (G) (G) (G) Lawrence Niccum Metro Waste Control Com Commercial Life Ins. Co Bellboy Corporation Boyd Houser Candy/Tob. Midwest Coca-Cola Griggs, Cooper and Co. Hoops Trucking Johnson Brothers Liquor MN Bar Supply North Star Ice Paustis and Sons Ed Phillips and Sons pogreba Distributing Quality Wine/Spirits US Postmaster Philip/Nancy Ludeman Void Harold Dircks Bellboy Corporation Day Distributing Co. East Side Beverage Co. Griggs, Cooper and Co. Johnson Brothers Liquor Mark VII Distributors Minnegasco, Inc. Quality Wine/Spirits Thorpe Distributing Co. MN Department of Revenue MN department of Revenue Commissioner of Revenue First State Bank PERA ICMA Retirement Trust City cty Credit Union Child Support Enforce. Penn Plumbing Bradley Nielsen Truck inspection stickers $ May SAC charges Employee life ins-June 1991 Liquor purchases Misc. and supplies purchases Misc. purchases Liquor, wine and misc. purchase Liquor and wine purchases Wine purchases Misc. and supplies purchases Misc. purchases Wine purchases Liquor and wine purchases Beer and misc. purchases Liquor and wine purchases Postage for postage machine Recycling awar~ Council meeting taping/April Liquor purchases Beer and misc. purchases Beer and misc. purchases Liquor and wine purchases Liquor and wine purchases Beer and misc. purchases Utilities Liquor and wine purchases Beer and misc. purchases May 1991 sales tax First half-June 1991 sales tax Payroll deductions Payroll deductions Payroll deductions Payroll deductions Payroll deductions Payroll deductions Refund of plumbing permit fee Section 125 reimbursement TOTAL GENERAL TOTAL LIQUOR TOTAL CHECK ISSUED -1- 14.00 5,791.50 50.50 4,653.47 2,293.56 567.81 3,272.34 471.17 4,155.85 Zl7 . 25 354 . 96 245 . 00 001. 39 2,904.40 891. 76 750 . 00 50.00 120 . 00 4,588.44 7 ,183. 30 18,357.55 9 ,223 .12 1 , 915 . 8 4 9,941.05 41.08 696 . 50 17 ,18 5 . 60 10,711.24...... 5,355.62 862 . 42 5 ,202 .1 7 1,647.61 557.50 45.00 178.20 47.25 140.00 15,456.15 106,088.30 121,544.45 *\C\ CK NO CHECK APPROVAL LI~NG FOR JUNE 24, 1991 COUAltL MEETING TO WHOM ISSUED PURPOSE AMOUNT. CHECKS FOR COUNCIL APPROVAL 6967 6968 6969 6970 6971 6972 6973 6974 3975 6976 6977 6978 6979 '6980 6981 6982 6983 6984 6985 6986 6987 6988 6989 6990 6991 6992 6993 6994 6995 6996 6997 6998 6999 7000 7001 7002 7003 7004 7005 7006 7007 7008 7009 7010 7011 7012 7013 Abdo, Abdo & Eick Airsignal, Inc. Allanson Business Prod. Alternative Staffing American Linen Supply American National Bank J. Annen Painting/Redec. Braun Interec Engineer. Browning-Ferris Indust. Bryan Rock Products Commers conditioned Wtr City of Excelsior Feed-Rite Controls Fina Fleet Fueling Gopher State One-Call Henn Cty Cooperative Jim Hurm Jet Quick Inst. Prtng Knutson Services Long Lake Ford Tractor Mathews Farms Matthias, Roebke-Ebert Metro Waste Control Michael Todd & Co. Midwest Asphalt Corp. Midwest Business Prod. MN Suburban Public. Mtka Public Schools City of Mound Navarre True Value Norwest Bank N.A. Northern States Power Joseph Pazandak Smith Office Equipment Katie Snyder SLMPSD Springsted Stewart Lumber company Techniflow Corporation Tonka Printing Twin City Stamp/Printing US Postmaster US West Communications Victoria Repair/MFG Viking Industrial Ctr. Water Products Company Zep Manufacturing Co. Auditing services Beeper services Printer enclosure Temporary office employees Laundry services Fees on 7/1/73 & 7/1/71 bonds Exterior painting of city hall Eng. services-soil invest. Satellite rental Rock-pks/streets/culverts Water cooler rental 3rd qtr fire contract payment Demurrage charge Gasoline purchases One-call services Weed killer and plants Meal expense reimbursement Office supplies Recycling services-May 1991 Overseeder and mower parts Tank removal project Computer services July contract payment Batteries-warning lights Street supplies Office supplies Publishing Office supplies-copier paper 3rd qtr fire contract payment PW supplies-Pks/gen/watr/sewer Interest/fees on GO bond 1/1/74 Utilities Protective inspection mileage Maintenance contract Council meeting minutes July police contract payment Financial services-TIF plan Lumber for irrigation contrl Lift station #11 pump Newsletter printing-copier paper Door plates Permit fee renewal utilities Metal-sickle mower/window repair First aid kits-public works Water meters/accessories Zep TKO cleaner-public works $ 2 , 515 . 00 9.00 299.00 996.84 71.05 22J.00 1,050.00 3,289.37 252.75 199.02 22.9:> 20,781. 75 9:>.00 356.99 40.00 203.00 20.42 00.00 4,138.00 4,050.48 5,250.00 1,213.00 25,593.00 26.04 600.00 618. ro 109.74 102.73 1,350.00 162.06 3,870.00 2,381.81 83.5a l'n.ro 200.00 30,675.18 14,040.25 bldg 39).86 195.00 632.26 17.07 ro.oo 154.42 44.28 75.3J 521..00 60.30 TOTAL CHECKS FOR APPROVAL TOTAL CHECK APPROVAL LIST -2- 127,195.65 248,740.10 CHECK APPROVAL LI~NG FOR JUNE 24, 1991 COUJltL MEETING CK NO TO WHOM ISSUED HOURS AMOUNT CHECK REGISTER FOR JUNE 18. 1991 PAYROIJ~ 205219 Void 205220 Void 205221 (L) Scott Bartlett 15 reg hours $ 84.26 205222 (G) Charles Davis 80 reg hours 426.41 205223 (G) Wendy Davis 80 reg hours 640.94 205224 (L) Kevin Foss 2 reg hours 10.64 205225 (L) John Fruth 14 reg hours 68.72 205226 (G) patricia Helgesen 80 reg hours 768.60 205227 (G) James Hurm 80 reg hours 1,398.08 205228 (L) Brian Jakel 35 reg hours 163.14 205229 (G) Dennis Johnson 80 reg hours 701.88 205230 (L) William Josephson 80 reg hours roo. 57 205231 (L) Mark Karsten 15.5 reg hours 77.85 205232 (G) Anne Latter 80 reg hours 556.75 205233 (L) Susan Latterner 30 reg hours 144. 98 204234 (G) Todd Latterner 54.5 reg hours 444.62 205235 (G) Joseph Lugowski 80 reg hours 716.68 205236 (L) Robert Lynch 17 reg-hours 90.47 205237 (L) Russell Marron 32 reg hours 161.33 205238 (G) Lawrence Niccum 80 reg hours-l O.T. 624.24 205239 (G) Susan Niccum 80 reg hours $7.26 205240 (G) Bradley Nielsen 80 reg hours 866 . 20 205241 (G) Joseph Pazandak 80 reg hours 844.08 205242 (L) David Peterson 10 reg hours 51.97 205243 (G) Daniel Randall 80 reg hours 711.04 205244 (L) Brian Roerick 8.5 reg hours 45.23 205245 (G) Alan Rolek 80 reg hours 956.93 205246 (L) Brian Rosenberger 10 reg hours 48.54 205247 (L) Christopher Schmid 80 reg hours 478.88 205248 (L) Craig Scholle 4 reg hours 21.29 205249 (L) Erica Shaw 63.5 reg hours Z76.02 205250 (L) Bret Spottke 28.5 reg hours 120 . 60 205251 (G) Howard Stark 84 reg hours 599 . 34 205252 (L) James Tews 31 reg hours 153.10 205253 (G) Ralph Wehle 80 reg hours 565.24 205254 (L) Dean Young 80 reg hours .565.51 205255 (G) Donald Zdrazil 80 reg hours 1.054.92 TOTAL GENERAL 12,463.31 TOTAL LIQUOR 3 .163.10 TOTAL PAYROLL 15.626.31 -3- \ June 7, 1990 ~~ ~\ Ronald Leaf 19790 Near Mountain Blvd Shorewood, MN 55331 city of Shorewood 5755 Country Club Road Shorewood, MN 55331 RE: Permit for Private Use of Public Right of Way 19790 Near Mountain Blvd with this letter I am submitting an Application for Permit to Keep or Maintain Private Property within a Publicly Owned Right-of-Way. This permit is for the installation of an underground sprinkler system. I request that this application be included in the City Council meeting agenda for Monday, June 24, 1991. A drawing of the proposed system is attached. This permit is required in accordance with Subd. 2(a) of Section 901.02 of the City Code. Consistent with the manufacturer's recommendations, a perimeter sprinkler design is planned to provide uniform coverage and conservation of water, two primary benefits for having such a system. The perimeter design results in sprinkler heads being located along the curb, and pipe being buried in the right of way. Alternative designs that do not encroach on the right of way will use more water to cover the same area. These designs require more overlap to insure complete coverage and will result in unavoidable watering of the street because the area covered by the sprinklers is circular. I understand that a key concern in considering this request is the potential for a claim from damage to the system by City maintenance crews. This concern should be mitigated by the cost of the components installed in the right of way, and by the damage waiver obtained with the permit. The sprinkler heads range in cost from $1.50 to $10, poly pipe costs 10 cents per foot, and the various connecting accessories cost less than $1, resulting in a total cost of materials in the right of way of less than $30. I will install and maintain the system myself, so there is no labor cost involved. Thank you for your consideration of this matter. Sincerely, Q~~L~ Ronald Lea~ enclosure 13 APPLICATION FOR PERMIT '1'0 KEEP OR MAINTAIN PRIVATE PROPERTY WITHIN A PUBLICLY OWNED nIGHT-OF-WAY PUHSUANl' '1'0 ,SHOREWOOD ORDINAUCE NO. 121 (<1~) i. 02..) Please type or print legibly 1. APPLICANT INFOm1ATION Please give the name(s) of all persons who own the private property to be maintained in right-of-way. NAME ( S ) R cIVA.-L.O J, A;tv.D M 1\4...., J, l-t::'1tF ADDRESSES \ '(7'10 NL~ Ijll(JU.N/~I/\J ,gCL\LE\/4'Z-D 5\~QEj,A.1000 InN 3S-33 1 I TELEPHONE /ob'] -2:sS5(jw) /47 If -eL/I7Ch) 2. RIGHT-OF-WAY Please name the highway, road, street, alley or other right-of-way upon which you are requesting to maintain private property. I q"7 C{ D f\J e-412 jl1.0iA.N T#t/l"ll e ou u:::-v+<..p 3. Please describe as carefully as possible the exact location or address on the right-of-way where the private property is to be maintained, as well as the nature, extent and purpose of the requested encroachment on the right-of-way. (AttaCh a photograph or sketch if pOSSible). ftN v..NOc.z..b~cv..A)9 f,PfLINil-U::.""2.. 5'fST~ L<JH..L BE lNsr4LU:::::;> IN TH-lF ,e/c./fT oF' (,..J~ A-T ;9710 NC~ /"W1..A./V7A;t"..,) $.:uLl[V.f/l-O 4-S -(f/Dw'15I {N Wtr 4rr-tLH-~'? Dt2.I.\-WINC:;, DF '(1-1([" p(twT PO,z:TtUN 6F 77Ie:: LoT A-- PL4?-T .o~iAl6 of (~1tl0 (\:Ji.:.'7lrf2- f"\L~^JI--41/v jJv"'<'u:v'.-f'Z..{) IS A,-LSc A-TT,fC.I-fL~ In consideration of approval of this permit, I hereby knowingly and voluntarily waive any right to recover fre,m the City of 3horewood for damage occurring to property in the right-of-wa.y as above described, which dsmage results from the performance by the City of Shorewood or its agE::Ilts eof any public duti(~:3 r'i2~lui('ed l:y law. Del t t: f9 - 7 -'1 I k?~~ J. L~ A~~;jt ~g~~(S) Permit ( ) Approved ( ) Not Approved Luto , '. .,. . . I -A 'l> , ~ \ ~Q" ".1 \ -. . . ." ... l-P1 . -- - AI kfOE "' "88'02 _ _ ..P ~ -J. .... .. ..... ,t .... '" . ....... \- 0 . ----- .' ~' ---- \\~.~<>~ ~~(-- "y . /\. ~ \ ~'" ~ ~A ~~ " 0' , -Z-~ ~~ \~. " . ~ \ 9,.. -!... ua~\ g~~~ ~.. ~~~ ~ Q"J I :-z - t~ 1~ 'b Q~ 01> '-l) /' ./ /^' ./ \ \ r--./ \. ) /> ./ ./ / (' "\ /' ~ ,.. ~'i3N .... "'~ ':&. ~ -I..~ ~t' -.b ~\J) o 0"0 -.. Q :> ....) ~ < j ~ ~ ~ o ~ ~ 1" t--- ,g~ ---; o ~ o I I I I I I I I I I I I , I I I I I ~ MAYOR Barb Brancal COUNCI L Kristi Stover Bob Gagne Rob Daugherty Daniel Lewis CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 MEMORANDUM TO: Planning Commission, Mayor and City Council FROM: Brad Nielsen DATE: 30 May 1991 RE: Einhorn, John - Setback Variance FILE NO.: 405 (91.10) BACKGROUND Mr. John Einhorn proposes to build a new home in place of his existing home at 5580 Howard's Point Road (see Site Location map - Exhibit A, attached). In doing so he has requested a 9.4 foot setback variance on the east side of the property and an eight foot variance on the north side of the property. The locations of the existing and proposed houses are shown on Exhibit B, attached. The lot in question is situated at the southwest corner of Howard's Point Road and Island View Road. It is zoned R-IA, Single-Family Residential and contains approximately 41,769 square feet of area. The existing home is nonconforming in terms of setbacks, being 22.6 feet from the right-of-way of Howard's Point Road and 14.3 feet from Island View Road. Island View Road is a 33 foot private road serving 14 lots. Mr. Einhorn's request is explained in his letter, dated 7 May 1991 (Exhibit C). Photos accompanying his letter are included as Exhibit D. The applicant cites the following as justification for his variances: 1) a garage north of his property cuts off his view of lake Minnetonka; 2) preservation of mature pine trees on the site; and 3) the location of other nonconforming buildings in the area - specifically, the house north of Island View Road. Floor plans and elevations of the proposed house are shown on Exhibits E-l through E-5. A Residential Community on Lake Minnetonka's South Shore SA Re: Einhorn, John Setback variance 30 May 1991 ANAL YSIS/RECOMMENDATION Setbacks in the R-1A district are as follows: front: 50 feet side: 10 feet rear: 50 feet side yard abutting a street: 50 feet Exhibits B and F show how these setbacks apply to the applicant's property. In addition to setback requirements there are several sections of the Shorewood Zoning Ordinance which pertain to the applicant's request. A. Nonconforming Structures. (Section 1201.03, Subd. 1) Two provisions of this Section should be considered in reviewing this request: 1) "Purpose ... Furthermore, it is the intent of this Section that all nonconforming uses shall be eventually brought into conformity."; and 2) when a nonconforming structure is removed or destroyed to more than 50 % of its value, any replacement thereof shall conform to existing requirements. B. Variances. (Section 1201.05) This Section sets forth criteria for reviewing variance requests. Briefly, it requires that the applicant demonstrate that some hardship exists which prevents him from making reasonable use of his property without the variance. Maintaining a view of Lake Minnetonka is not considered a legitimate reason for granting a variance. While the applicant's objection to the garage across the street is understandable, fencing and trees on that site present equally significant obstructions to the applicant's view of the lake. If some view of the lake could be preserved (the limited view which now exists will only diminish as trees on that site mature), the design of the proposed house does not take advantage of it. Only one second story window faces toward the lake. Unfortunate as it may be, the only way to guarantee an unobstructed view of the lake is to own a lakeshore lot. Oftentimes variance requests are the result of the property owner picking the wrong house for the site. In this case there is ample room on the property to accommodate the applicant's plan, even without destroying the trees. Exhibit F shows that the applicant's own plan can be placed on his property without any variance. - 2 - Re: Einhorn, John Setback variance 30 May 1991 The applicant's survey indicates that the home north of Island View Road is only 29.2 feet from Howard's Point Road. Although Section 1201.03 Subd. 3d. provides for consideration of an average setback where adjacent homes are closer to the street than . allowed by the ordinance, it only pertains to structures within the same block. If Island View Road did not exist, the average setback for properties adjoining the applicant's would be 39.6 feet, and his easterly variance could be justified. Based upon the preceding, neither of the variances are considered to be appropriate. Ample opportunity exists to place the proposed house within the buildable area of the lot while still preserving the existing trees. If the applicant were willing to consider a different design, he may even be able to capture some of the view he seeks, at least until trees on the property to the north mature. BJN:ph cc: Jim Hurm Glenn Froberg John Einhorn - 3 - l-~~.f.. t-'\i 1\f\.t. tOf'k~ ~1~. : :,\\ ....... ~ :. -.. : ~..:...: : NoA ~ , ";:. 2..DO' ~\ r .\ ..' 17' ti '" .oJ OJ,,: ~ '.. ,.'::,40.4 ( 6 :~'::~ 5. 24 17) , -:,- --.. vl ;. ~ 7 ( ,i)) I 5 250 WOODSIDE 135 1 .7 5 / ( 1'3) '.. : ,......... ..... , I 12~ I ~ I :~ IR ~ I. N H tea (9) !:! ;N :- I ~ , I , I ," "::\'?- 1\ 215 J.O )lITlI 'lEST ~ ~"'- 000 ":? E !:! F" !:! G - ( 6) ~ (7) (8) - ~ N N ....:. . . '. AlW[D) ~Q)J~~ 00(0) ~~r I. N .. II~ 4 ( 19) ~ Exhibit A S~TE LOCATION Emhorn setback . vanance ... ... ~~., A.: ~-:..., .,,-. . ~.' ,/ ~ .:;} Jolin t.lnl1orn of Lot 20. Aud. Sub. No. 367 Hennepin County. Minnesota . Nor\- h Not ,'+- ~G~ ~ I ..... _5(.~. "- ~ ~ ~ It) ~ '<: I ~ ~ t\j \lJ o " ~ r-. 00 ~ '" (1fD.,) t' \. -'- , 10 ':' ,'.. "\ . , , .1-_ "-'" ,l.J -~ "- i'4 ..,.. ~ 1189"47 '30 "w /99.70 rneas. '" II ~ ir Jl .t:- / t S\ I t-f i , ("" 'od S"br" ~:-; ( '.- 1.7 ..,/ . :...,-.--,' I _sr.!. ~ 5()/ I ( I- , , , /., bl. .r~ ,... J~, . L... ...~. ....,'.'.. . '" ..... , ~:f ~1-. ..~. '..' " _~EGAL. q,ESCR~PTl_ON OF-YRP1IS~ SURV~YJ:D: Lot 20. Auditor"s Subdivision No. 367. Hennepin County, Exhibit B PROPERTY SURVEY This survey is intended to show thE> boundari!>s of the c and of the location of all existing buildings thereon, existing building on an adjoining lot, and the proposet building. It does not purport t.o show any other improvements or encroachments. ----.----- ----- ,- 6" - 7, 1/ -----.--.----..---.- -- -. -.-----_. \jj \.\-"" ~l~Cl.._\>-\>h Co..... -t""b"l ~_~ Vo..Y" ~~V\'-~~~~- ... _~V"'-,/TW-\~J~~Ls.LJ~~--o-~~ . _~ I'+~~OD~ } ~-E--._k,"'_e-_c&lSa-~Lnd~~g~+_~ld.Io<\'L'Gs- o-L1 4l~ \e+ _~o~S~ I-~~~L4~~LLu_.~.~~Oy~~4--~-~-+J~oSe- .. :"<>"'~- "'e1--+..k.,.,.., . -1-h,,-j.;, s:l"" l. 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" :,...... ~ ~...~ ,'~-~;"':: .",. ~..;~ ~ .~: .1 . \ ' . ,.~. . . I' :' ~'l '- '- .v. n' )(~ ~ ~ ....: -{>.. >< . > N >< ~~~(P" ~ ~~.}\-, ".: It) I' \..~ ).: '" ~ ~ 0:, g> ~ 1'1, , b ~ ~ ~ G'~ __ :0::: ~. ~1~;!:'r hC:).. '" 2: <'I :\: "'1 !: )t.'1l/) ~~~ (\~ r;, \ 7:?' 'll\- c\ If1 :- , '. .',/ 't," i_.';\(,;. I \::,:(:). ~'>' '. .:~ " 1... I . ;..-......QlI"...=-...~-....... + -----'.. d~i'" 7~ e:/' Of Lot 20. Aud. Sub. No. 367 Hennepin County, Minnesota ...: : .~::} .... . .s!-~. ,.... ~ ~ ~ ~ ~ ~ ~ \\j / 'l I ;- ( ,). .~.' ':. 10) Q \J ~ t--. (D ~ '" {'1~. ,} , { , i "'- " 10 R<2CO M M~~.Q J. '..~' .' ':' ~,..., :~- :..../ ~l..i -~ ..... {v ...,. ~ 50/ )' ) " { tJ :z I ~ .II, ~ '" r a- X ~ :? S' "' l' \ '" . Q '::! 7, \I) J, I ( 1189047'30.w /99.70 meas. J (00 A... S7'..7 /,..-\ ,1 .- '7,', '/../ ~..,~..-", "' /~!. i;~. ~':;. .~,' .' o. , .. ~...', :-7 .:~.., ..._' ....1 LEGAL DESCRIPTIO~ OF PREMISES SURVEYED; -..._---~---- Lot 20, Audltor"s Subdivision No. 367. Hennepin rt'lllnTu LC;nn~~~', This survey Is intended to show tht> boundari an? of the ~OC?tion of all existing building eXIstIng bUIldIng on an adjoining lot and t blJiI?lng. Itdoes not purport t.o' show'any ot, Exhibit F ALTERNATIVE SITE PLAN MAYOR Barb Brancel COUNCI L Kristi Stover Bob Gagne Rob Daugherty Daniel Lewis . CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 MEMORANDUM TO: Mayor and City Council . FROM: Brad Nielsen DATE: 17 June 1991 I RE: Einhorn Variance - Clarification of Zoning Requirements FILE NO. 405 (91.10) At the 10 June Council meeting, Mr. Einhorn raised a number of issues relative to the need for variances on his property at 5580 Howard's Point Road. Following are responses to the those issues. Section 1201.03 Subd. 3.d. "Where adjacent residential structures within the same block have front yard setbacks different from those required, the front yard minimum setback shall be the average of the adjacent structures. If there is only one adjacent structure, the front yard minimum setback shall be the average of the required setback and the setback of the adjacent structure. In no case shall the required front yard setback exceed that required minimum established within the districts of this Ordinance." (Note: Underlining has been added.) In citing this section Mr. Einhorn references the way "block" is used in a different part of the Code which establishes a numbering system for houses in Shorewood. If he were disputing the way his house was numbered, this would be appropriate. The Zoning Ordinance, however, defines "block" as follows: "BLOCK: That property abutting on one side of a street and lying between the two (2) nearest intersecting or intercepting streets or railroad rights-ai-way or unsubdivided acreage." 5b A Residential Community on Lake Minnetonka's South Shore Re: Einhorn, John Setback Variance 17 June 1991 If Mr. Einhorn chooses to argue that Island View Road is not a street, but rather a privately owned lot, the average setback provision does not apply because there is no adjacent structure on it. Mr. Einhorn points out that the setback requirements in the R-1A district refer to the public right-of-way. That provision taken by itself would work in the applicant's favor. However, the Ordinance addresses private roads within the defInition of "setback": "SETBACK: The minimum horizontal distance between a building and street, lot line or normal high water mark. Distances are to be measured from the most outwardly extended portion of the structure at ground level. In the case of a private street or street acquired by statutory user as defined by Minnesota Statutes. the setback shall be measured from a line fifteen feet (15') from the edge of the traveled surface." ";: (Note: Underlining has been added.) It is hoped that this clarifIes the provisions under which the applicant's property is governed. If you have any questions relative to this matter, please do not hesitate to contact my offIce. cc: Jim Hurm Glenn Froberg John Einhorn -2- 6/19/91 RESOLUTION NO. A RESOLUTION DENYING SETBACK VARIANCES TO JOHN EINHORN WHEREAS, John Einhorn (Applicant) desires to construct a new home to replace his existing home on property located at 5580 Howards Point Road in the City of Shorewood; and WHEREAS, the proposed location of the new home on the property does not comply with the setback requirements of the Shorewood Zoning Code, and applicant has therefore made application for variances; and WHEREAS, a public hearing was held and the application reviewed by the Planning Commission on 4 June 1991, and, after deliberation, the Planning Commission recommended denial of the requested variances; and WHEREAS, Applicant appeared before the City Council at their regular meeting held on 10 June 1991 and submitted additional material concerning his application which he asked the Council t;o consider; and WHEREAS, the City Council has reviewed the material submitted by the Applicant, the recommendations of the Planning Commission, and the memorandums and reports of the City Planning Director. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Shorewood as follows: FINDINGS OF FACT 1. That the Applicant's property is located in an R-1A zoning district which requires a 50-foot front yard setback and 50-foot side-yard-abutting-a-street setback. 2. That Applicant's existing home encroaches into the 50-foot front yard setback area on Howards Point Road and into the 50-foot side yard setback area on Island View Road and is therefore a non-conforming structure. 3. That the Shorewood Zoning Code provides that when a non-conforming structure is destroyed to the extent of more than 50% of its value, or the non-conforming use of the land is discontinued, any future use of the structure or land shall comply with the provisions of the zoning code. 5c 4. That Applicant requests variances to permit construction of a new home extending 40.6 feet from the easterly lot line on Howards Point Road and 42 feet from the northerly lot line of his property on Island View Road. 5. T hat Applicant's request requires a 9.4 foot setback variance on the east side of the property and an 8 foot setback variance on the north side of the property. 6. That Applicant claims a loss of view of Lake Minnetonka, possible loss of mature pine trees, and the location of other non-conforming buildings in the area as justification for his requested variances; however, it appears that the Applicant's proposed new home can be constructed on the property in such manner as to preserve the existing trees and still meet the setback requirements of the zoning code. CONCLUSIONS 1. That the variances requested by the Applicant constitute a significant deviation from the requirements of the Shor.ewood Zoning Code. 2. That Applicant's property can be put to a reasonable use under the conditions imposed by the Shorewood Zoning Code. 3. That Applicant has not met the criteria for the grant of a variance under Section 1201.05 of the Shorewood City Code and has not established an undue hardship as defined by Minn. Stat. Section 462.357, Subd. 6(2). 4. That Applicant's request for the variances set forth above are hereby denied. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 24th day of June, 1991. Barbara J. Brancel, Mayor ATTEST: James C. H urm City Administrator/Clerk I ~ MAYOR Barb Brancel COUNCI L Kristi Stover Bob Gagne Rob Daugherty Daniel Lewis CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD. MINNESOTA 55331 · (612) 474-3236 MEMORANDUM TO: Planning Commission, Mayor and City Council FROM: Brad Nielsen DATE: 29 May 1991 RE: Meldahl, A.J. - Simple Subdivision/Lot Width Variance FILE NO.: 405 (91. 09) BACKGROUND Mr. and Mrs. John Meldahl have requested approval to subdivide their property, located at 6180 Cathcart Drive (see Site Location map - Exhibit A, attached), into three lots. They have also requested a variance to allow two of the lots to be narrower than currently required by the Shorewood Zoning Ordinance. The property in question is zoned R-lA, Single-Family Residential and contains approximately 125,920 square feet of area. Their residence is located on the east side of the property. As shown on Exhibit B, they proposed to subdivide the property into three lots. Two of the lots require width variances. Lot A requires a variance of 4.8 feet and Lot B requires a variance of 3.8 feet. The R-lA district requires a minimum lot width of 120 feet. ANALYSIS/RECOMMENDATION There are two issues which need to be addressed in evaluating the Meldahl's request: 1) right-of-way dedication; and 2) the lot width variance. A. Right-of-Way Dedication. The applicant's property has frontage on two streets, Cathcart Drive and West 62nd Street. At 16.5 feet West 62nd Street is grossly substandard in terms of r.o. w. width. The Shorewood Subdivision Ordinance requires local streets to have a minimum width of 50 feet. While the Subdivision A Residential Community on Lake Minnetonka's South Shore (PA Re: Meldahl, A.I. Subd.llot width variance 29 May 1991 Ordinance requires r.o. w. to be dedicated at the time land is subdividied, the City has had a policy whereby the owner on one side of a substandard road is not required to make up the entire difference between the requirement and what exists. Rather, the City has required that the difference be split between the properties on both sides of the street. In this case, the r.o.w. needs to be 33.5 feet wider. The Meldahl's share of that is 17 feet. Their survey should be modified to include the r.o.w. dedication. The r.o. w. dedication also has some bearing on the request for lot width variances. Once the r.o.w. is dedicated, Lots A and B no longer meet the 40,000 square feet area requirement of the R-1A zoning district. Lot A ends up 1959 square feet smaller and Lot B ends up 1976 square feet smaller than shown on the applicant's survey. B. Lot Width Variance. While variances of 3.8 feet and 4.8 feet may appear to be minor, the applicants must still demonstrate why the minimum standard should be lowered for their property. To obtain the variances they must demonstrate that some hardship exists which prevents them from making reasonable use of their property. In evaluating this request it is important to point out that more than ample room exists on their property to make all of the lots at least 120 feet wide. Lot C is over 140 feet wide, measured at the building line. If it were made 10 feet narrower the other two lots would need no variance at all. In addition the buildings on the site would still be more than 27 feet from the adjusted lot line, where only 10 feet is required. In their request letter (Exhibit C) the applicants' only reference to hardship is the cost of changing their survey and the cost of refinancing the parcel with their home on it. Both the state statutes and the City Code provide that variances shall not be granted for primarily economic reasons. It is worth mentioning that the applicants must still provide a revised survey showing the 17 foot r.o.w. dedication, in addition to 10 foot drainage and utility easements along the sides and rear of the three lots. Relative to the cost of refinancing their homestead parcel, they should explore the possibility of obtaining a partial release from their mortgage company. Based upon the preceding analysis it is recommended that the applicants revise their survey to show lot widths of at least 120 feet. The subdivision should then be approved subject to the following: - 2 - Re: Meldahl, A.J. Subd.llot width variance 29 May 1991 1. Prior to appearing before the City Council, the applicants must provide a title opinion (up-to-date within 30 days) for review by the City Attorney. 2. The applicants must dedicate 17 feet of road r.o.w. along West 62nd Street. 3. The applicants must provide drainage and utility easements, 10 feet on each side of rear and side lot lines. 4. The applicants must pay $1500 in park dedication fees ($750 per lot with credit allowed for the lot with the house on it). 5. The division must be recorded within 30 days of the Council's approval. BJN:ph cc: Jim Hurm Glenn Froberg Joel Dresel Ann and John Meldahl - 3 - I I -..-:r--..-.._--.._n La.~ f..~ \ "t\~ +0" \<A. , ..-...---..- VICTORIA I ~~~~ASSEN --..-..-- Exhibit A SITE LOCATION Meldahllot division! lot width variance ~ ~ ~ ~ ~ r Pla t of Survey for A. John Heldahl in Lot 2, "Minnewashta Acres, Hennepin County Minn. II ,L :1 S9S.3l meets. $?<I.S ;:>/01 5bD.6h " "', ...~- , -~ ~- //".1.1 Ii' 8.80 /15.1.1 " ~ ) -- ~t " () , u ~1 <;:) '" ;:: 66 '" v . ..----./1';' ...--...... " .-- II'" .:"-"_n r'" -- -'" - - -----.--..... ---- 350 '..- - - --- '" ... ~L__._ i ~I ~1 . ---------." ~ .~ \l ~ ~.~. , '" ~11;~~ '" ~ "'~{ ~e.. c. 0 W\ ~ ",ck. ~ :.J "'- ,~. .... - -. -.... ""... \ .. :-0: B~~ ~~. ~c>'" .:!Y. _'. uz ;:~ \Q~ ..' , ~ '."_- --;O..l-..~~~ 141 '" .,., "'~ .... .... '" ;:0; -.. -.... 1 . ... A g C 40, Z 90 "!f~~t__ --<lS,$-Pl"--5r-#-t:-------," 40.00 Jf.1!. :!: t.2.l'\. --' ,. _ - 68.'8 '. //6.22 JOO.// ~ -~; ~. --.~, J\~ ' -'0 \" S46 ./7 ;:>/01 SJ$.$4 meCls. l' 1 Certificate of Survey: I hereby certify that this is a true and correct representation of a SUI~8Y of the bOlmdaries of: ~ The East 115 feet of the \.\est 350 feet of Lot ':., "Eirmewashta Acres, Henne pin Goun ty }finn. II , The East L16 feet of the '(;est 466 fe~t. of uc't 2, "J:linne'W3.shta ,\cres, Hennepin County l--!inn. II, and ~ot 2 except the West 4h6 feet thereof, "Hinnewfisr,t.-a Acres, Hennepin County lVi.inn." It does not purport to show improvements or en~rcachment~;. Iron ITiH.r:(ers have been set only as indicated. ~ h Scale: Date o Gordon R. Coffin Reg. No. 6064 Alvin R. Rehder Reg. No.13295 Land Surveyors and Planners Long Lake, Hinnesota 1" = lOa' 2-5-75 Iron marker Exhibit B PROPOSED DIVISION Recommended r.o.w. shown dashed .' March 1 L 1991 Barb Brance1 Mayor City of Shorewood 5755 Country Club Rd. Shorewood, MN. 55331 Dear Mayor In 1975, we went to the city of Shorewood and inquired how our property could be divided. We were planning for the future and also wanting to refinance our property and not encumber all of it. We wanted to have the mortgage cover the home and approximately one acre. We contacted Gordon Coffin and he surveyed the property and we went ahead with our refinancing of the home and approximately one acre. I am enclosing a copy of the survey with the placement of our house. You will,b'ee from the survey that the remaining two lots are over 40 thousand square feet. One has 115.21' of frontage and the other has 116.22'. It was our understanding that this would be approved by the city, even though it would require a very small variance. At this time we would like to have our daughter and her husband build a new home on proposed lot B, and sell lot A. In checking with the city we now find out that there is some reluctance to approve the subdivision because of street frontage. Although it is possible to resurvey reducing the size of the lot with our home on it so that each lot had the required street frontage doing so would cause great expense and hardship. The result would be the same however, as we would end up with our home on one lot and two other lots. Lot B would be increased by 3.78' and lot A by 4.79'. Weare asking you approve the subdivision that was proposed with the help of the city of Shorewood and surveyed by Gordon Coffin. This would not change the housing density in this area and would eliminate the hardship of refinancing our property and the cost of additional surveying. To require that we conform exactly to the current requirements would only cause unnecessary expense and effort. We have been residents and taxpayers of Shorewood for more than 36 years and feel that this is a small request. RE!..s.,;pectfullY ~ubmjtt~d, /;J C~~~V- /;!;(~ 11~u~ ~.~) ~~~ ( a ~ Mr. & Mrs. John Meldahl Cathcart Dr. Shorewood, MN. 55331 Exhibit C APPLICANT'S REQUEST LETTER Dated 11 March 1991 June 7, 1991 Dear Mayor Brancel, This is a small matter - a ~ small matter to come to your attention. However, it is a matter of great importance to us - the Meldahl's of 6180 Cathcart Drive. We were city people, who desired a semi-rural area in which to raise our children, when we purchased Lot 2, Minnewashta Acres, 38 years ago. How- ever, He recognized the fact that suburbia would most likely head our way and that, in time, this area would become "built up". Sewer has been in now for some time and water lines are available to some Shorewood areas. Because of the lot size restrictions on our area, the cost of sewer in- stallation was a financial burden to many of us. lye have never understood the R-1A zoning of this area. The 40,000 square foot-requirement makes for lots that are too small to farm and too large to keep up. In my view, this R-1A zoning has been poor planning, genuine shortsightedness! And now to our problem. ~e still have title to three acres of the original five. Our house stands on Lot C - a corner lot Hith 211 feet running along Cathcart Drive. The traffice at our corner is unbelievable now. We maintain our south yard and our north yeard but cannot much enjoy those areas. The ya~ behind the house is our only private, relatively quiet area in which we can enjoy ourselves. The time has come for us to subdivide our land. \fuen we sols our lovely old orchard - some two acres in 1975, He had our land divided by the surveyor into lots A, B and C. As I mentioned, our home is on lot C. At that time, I presented the survey to the Shorewood council for approval. It was granted. ~e then acquired a new mortgage on our home on lot C. It was no matter of concern to the village that lots A and B were several feet short of the 120 running foot frontage requirement. And, square footage-wise, they were fine. Now, we have a problem! We propose to give lot B to our daughter and her husband. They would like to begin building as soon as possible for their little daughter begins first grade in the fall. They want her to begin school at Minnewashta, as her mother did before her - a generation ago. (PI? There were several meetings set up with Brad Nielsen to discuss our land and the best way to divide it. The first meeting between our son-in-law, his agent and Brad resulted in our being told that He would not be allowed to pursue a different, more creative, (we thought), division of our land. And we accepted that decision. Back to lots A,B and C. At the second meeting - this time between Brad, my husband and myself, l.e discussed our options. Brad told us that the simple subdivision request would surely be approved but that the variance was another matter. It seems that ~ the several feet short on the fronts of these two lots presents a problem. 1ihy? He suggested that we take land from our exist- home lot (C) to add to lots A and B. We went home and studied that option. After careful consideration, we decided to ask for the variance. We did not want a:.:.r back yard to get any smaller. Brad gave me my "shopping list" - papers to put into our request for the sub- division. We complied and also paid the additional I1loney to ask for the vari- ance. Brad made a vague reference to our having our surveyor contact him about some lines to be dralffi - also something with regard to drainage. ;{e were not told that we are required to donate land along the road - ~Jest 62nd Street for r.o.w. That procedure alone, by the way, drops the square footage of each lot to below 40,000 square feet! We were not told at the time of the heal thy park fees for each lot. \le were not told at the time that an inspection of the title by a professional would also be required. For this over-sight Brad has apologized. I cannot help but wonder if anyone on the planning commission has come out to this are tb have a look. I am asking the Shore...ood Council to consider our request for a simple variance over their so-called recommendation. There would be no difference in housing density- it would remain the same. Not one neighbor saw fit to object to our request. Careful consideration with regard to asthetics, landscaping, drainage, and utility easement are important to us, - perhaps more to us than to the village! This is our land and this is where we live. But now, we are running short on money and we are running short on time. We listened to what you had to say at election time. We voted for you. Now, please listen to what we have to say! Sincerely copies: Gagne, Daugherty Stover, Lewis .~~ CITY~~t~1fI MINUTES Regular Cou~cil Meeting March 10 1975 . ,/'/,. -/ /,,/ ;/ . I ( f<A./::,~",/..rC ROLL CALL The last meeting of the Shorewood City Council~was held at the Minnewashta Elementary School o~ Monday, March 10, 1975 at 7:30 p.m. and called to order by Mayor Frazier. Council" members present were Keeler, Naegele and Huttner. Councilwoman Haugen was absent. Others present were Attorney Kelly, Engineer Mittelsteadt and Clerk Wiltsey. MINUTES APPROVED It was moved by Huttner, seconded by Naegele, to dispense with:-reading of the minutes of February 24th and 27th and to approve the minutes as previously submitted. Motion carried unanimously. CONGRATULATIONS TO CLERK Resolution No. 20-75 Mayor Frazier offered a resolution of congratulations to Elsa Wiltsey and further nominating her as "First Lady of Shorewood" and moved its adoption. Seconded by Keeler and adopted by a unanimous vote of the council. BUILDING PE~~ITS APPROVED Foto-Mat It was moved by Naegele, seconded by Huttner to approve application for a building permit for Foto-Mat to construct a standard type 4' by 9' building on the southwest corner of the parking lot at Shorewood Village Center. Motion~carried unanimously. Lot 4 - Elmridge Estates - 5305 Elmridge Circle It was moved by Huttner, seconded by Keeler to approve the building permit for James Jordan Lot 4 Elmridge Estates to allow for a 46 ft. setback from.~the " , road right-of-way to the south corner of the proposed garage. Motion carried unanimously. ._~~O'- Super-Valu Sign It was moved by Keeler, seconded by Naegele to approve the sign "Super-Valu" to be placed on the front soffit of the building as per sketch submitted. Motion carried unanimously. CIGARETTE AND 3.2 OFF-SALE BEER LICENSES - SUPER-VALU It was moved by Huttner, seconded by Naegele to approve the application for a cigarette license and a 3.2 beer license for Everett Driskill for the new Super- Valu opening at "Shorewood Village Center". DIVISION OF LOT 2 - MINNEWASHTA ACRES (A. J. Meldahl) Resolution No. 21-75 It was moved by Keeler seconded by Huttner to adopt a resolution approving the separation of the west'235 feet of Lot 2, Minnewashta Acres (approximately 2 acres). I Motion carried unanimously. MINN~~ASHTA CHURCH S~ffiR ASSESSMENT Representatives of the Minnewashta Church requested clarification of the status of the sewer assessment on the church and if it was to have been reduced at the time of the purchase of Cathcart Field; Records available indicated that no reduction had been approved. Council agreed to check with Chanhassen to see if the assess- ment placed on Cathcart Field by ehanhassen had been removed. and report back at the next meeting. j ~u RESOLUTION NO. 21-75 RESOLVED, that the Council of the City of Shorewood does hereby approve the division of Lot 2, Minnewashta Acres, Hennepin County, Minnesota, Parcel 2000, Plat 35280, into two parcels; Parcel A described as the west 235. plus feet of Lot 2, and Parcel B, except the west 235. plus feet. Dated: March 10, 1975 inistrator " MAYOR Barb Brancel COUNCI L Kristi Stover Bob Gagne Rob Daugherty Daniel Lewis CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD. MINNESOTA 55331 · (612) 474-3236 DATE: 29 May 1991 TO: Steve Pahl 24860 Smithtown Road Shorewood, MN 55331 PROPERTY LOCATION: 24860 Smithtown Road PROPERTY IDENTIFICATION NO.: 33-117-23-24-0006 NOTICE TO REMOVE Offensive and Unhealthy Substances NOTICE IS HEREBY GIVEN that there exists a condition on the above referenced property which is in violation of Chapter 501, Section 501.01 of the Shorewood City Code, a copy of which Section is enclosed. The offensive matter to be removed from the property includes, but is not limited to the following: UNLICENSED/INOPERABLE VEHICLES: Black Pickup Truck, no license, tire flat ALSO: old unused air conditioner; construction materials and debris; vehicle parts (tires, seats, etc.); old couch and other interior-type furniture; misc. debris and unused equipment and broken or inoperable bicycles. You are hereby required to remove the above-described matter and any other offensive matter located on the property and in violation of Chapter 501, Section 501.01 within ten (10) days from the date hereof. In the alternative, you may fIle a written notice of appeal at the Shorewood City Hall within ten (10) days, in which case your appeal will be set for hearing at the next regularly scheduled meeting of the City Council. If you do not respond to this Notice within ten (10) days, the City shall take whatever action as may be necessary to have the offensive matter removed. The costs incurred by the City for such removal shall be charged to the property owner and become a lein against the property . *** PLEASE GIVE THIS MATTER YOUR IMMEDIATE ATTENTION *** BY ORDER OF THE SHOREWOOD CITY COUNCIL 7A A -Residential Community on Lake Minnetonka's South Shore /. JUN 7 1991 ) f -r +0. Cr 0 S () ...._<~~__+_L.Q~~.~~~_J :ly._~O_L~ _h_QJ:'_~~_~..~,LCL'tGK ~ o..~c..L5j{._L~:L~_~ ~ ~-(2 . -t~ ei'.L.e. + C) ~ C..L~(.A. P o..p n... y ~-P-~O-lt0.r:._t.'(-~-CL'€L_c~..s-e.~-€-P-h-'t S (' c..CLJ R .e,_s-=t..~ci:ti_e_~_5~_~ l.s.CL-h'a.Ac_~~.j ._d_~~_c..v..- i.~ S ,:J; w 0 u. I ~ L", k e {-o D c:r., ~ ~J)\.l I-L ~_'C-.o._v1-_~"'--O ~ Yv'- y_Er o-f2 e r:Ly "...---.-.....---.......... ...~~.._~~._~.\".'F-...__.3__.__(-~_:L L_...",-i:. 4Lh..~.~..!L3::;..~.~___..______ .+-f-.e.~_tf..A::~_c:l.b.._..s CJ h..CLu- lJ._1.3 ~ J2 ~n.-~ ~__ C" ~==_=~~.~~=~~---~=~=~_~~~=-~.Si_e <d__~ _._P~_.b_L.~__._________ '. ._~___.._.___~__.___.__._.__..__. l.-.} 70 - ~3~(p_____________.___ C/)'- .... ~..n._ ..... . 2' ~-......~.:.:~r52~.~....::......:..-_..~-.=:~_..~:..=::=_......... , ----_. . > ::-,l'~f: ~:,;'>..': :,'~ td:-;'.:,:,,- :~ .:) 1b CITY OF SHOREWOOD MAYOR Barb Brancel COUNCI L Kristi Stover Bob Gagne Rob DaughertY Daniel Lewis 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 MEMORANDUM TO: Mayor and City Council FROM: Brad Nielsen DATE: 18 June 1991 RE: Appeal Notice to Remove - Steve Pahl FILE NO. Property - 24860 Smithtown Road Mr. Steve Pahl, 24860 Smithtown Road, has requested additional time to comply with a "Notice to Remove" sent to him on 29 May 1991. This is to remind you that this is the second time Mr. Pahl has received such a notice. In January 1990 he was ordered to remove items in violation of Shorewood's Offensive and Unhealthy Substances code (see attached notice, dated 18 January 1990). The City ended up cleaning up the property in April of that year and billing Mr. Pahl $868.99 for the City's expense. He subsequently appealed the assessment and the matter is awaiting arbitration in court. The City Attorney has suggested that any additional time granted for the current violation should be tied to settlement of the assessment appeal. Staff will meet with Mr. Pahl to negotiate such a settlement this week. A recommendation will be made at the Council meeting this week. If you have any questions relative to this matter, please contact my office before Monday night's meeting. cc: Jim Hurm Glenn Froberg Al Rolek Steve Pahl A Residential Community on Lake Minnetonka's South Shore 70 :.1 '-I'; .'7, 1','. - /"";-- -I J.-..: "-~-"./ .,..: '-; "~ t. ~ d / ~.; ,I.j.' ! i ' i'''; .:/ MAYOR Jan Haugen co UNCI L Kristi Stover Robert Gagne Barb Brancel Vern Watten , ...../ I .' CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 TO: steven L. Pahl 24860 Smithtown Road Shorewood, MN 55331 c!, C, ~c,..,d c( ,3u d,~" .I..t... :...., .; At.. ~r) Vr(~'-'''''''I.:c" It""- &l., I ~:t;; , U' 24860 SF.ithtown Road 33-117-23-24-0006 DATE: 18 January 1990 PROPERTY LOCATION: PROPERTY IDENTIFICATION NO.: NOTICE TO REMOVE Offensive and Unhealthy Substances NOTICE IS HEREBY GIVEN that there exists a condition on the above referenced property which is in violation of Chapter 501, Section 501.01 of the Shorewood City Code, a copy of which Section is enclosed. The offensive matter to be removed from the property includes the following: JUNK IN BACKYARD - Black Jeep Pickup - No Plates Red Jeep Pickup - License #MPN 881 - Nov. 1984 tabs - inoperable Green Ford Truck - License #YS 81390 - Jan. 1987 tabs Old freezer, concrete, brush and tree parts, drums, vehicle parts (engine and tires, etc.), construction material and debris, oil tank, 2 trailers with no license plates, old snowmobile, 2 motor cycles with no license plates, old air conditioner, old washer, old small tractor (similar to bobcat), inoperable. Approximate volume of non major items listed above is 100 cubic yards You are hereby required to remove the above-described matter and any other offensive matter located on the property and in violation of Chapter 501, Section 501.01 within ten (10) days from the date hereof. In the alternative, you may file a written notice of appeal at the Shorewood City Hall within ten (10) days, in which case your appeal will be set for hearing at the next regularly scheduled meeting of the City Council. " If you do not respond to this Notice within ten (10) days, the City shall take whatever action as may be necessary to have the offensive matter removed. The costs incurred by the City for such removal shall be charged to the property owner and become a lein against the property. ~. -:...)~ ('_:;~(J ~'.>:I\ . -a$>' ~',;9.~<:! (;;c:>~ s."''>;'<~~ ***PLEASE GIVE THIS MATTER YOUR IMMEDIATE ATTENTION*** .J ( ,,". / ) n T( ~ '.t-? I ! BY ORDER OF THE SHOREWOOD CITY COUNCIL. / - Lc-"~' ./ '11)~/ I - J7~4/' (., ' '~ '. { A Residential Community on Lake Minnetonka's South Shore . ,i :: ~f /??;Lt'. L ( ( ( - 'I--*: /},A..,..:.{ 4---L/.J."r~~./ .;, ~ '7H/~jJ PAAFr... (;ft.f. jq ( DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR WATERFORD TOWNHOMES THIS DECLARATION made this ____ day of , 1991, by TRIVESCO, a Minnesota partnership, by its partners, Steiner & Koppelman, Inc., a Minnesota corporation, Robert H. Mason, Inc., a Minnesota corporation, and Highland Properties, Inc., a Minnesota corporation, hereinafter called "Declarant"; . WIT N E SSE T H : WHEREAS, Declarant is the owner of the following described real - estate: Lots 1 Hennepin thereof, and 2, County, Block 1, and Outlot A, Waterford 3rd Addition, Minnesota, according to the recorded plat all of which above-described land together constitutes and is hereinafter referred to as the "Property"; and WHEREAS, the Property development, and Declarant portions thereof; and is the subject of a proposed twin-home intends to improve the Property or WHEREAS, Declarant desires to subject the Property to this Declaration at this time; and WHEREAS, the Property and the improvements constructed thereon and on the Common Area and the Entrance Area will require uniform and continuing care and maintenance for the benefit and enjoyment of persons residing in the townhouses; and WHEREAS, Waterford Townhomes Association, Inc., a Minnesota nonprofit corporation (hereinafter referred to as "Association"), has been formed as an agency to receive the power to attend to and effectuate policies and programs that will enhance the pleasure and value of the development, to hold title to, maintain and administer the Common Area, to preserve and enhance the Property, to administer and enforce the covenants and restrictions, and to collect and disburse the assessments and charges hereinafter created; NOW, THEREFORE, subject to the provisions of Article II, Section 2 of this Declaration, Declarant declares that the Property described in Article II hereof, is and shall be held, transferred, conveyed, sold, leased, occupied and developed, subject to the covenants, conditions, restrictions, easements, charges and liens hereinafter set forth, which are for the purpose of protecting the value, . desirability and attractiveness of the Property, and which qA shall run with the Property and be binding upon all parties having any right, title or interest in the Property, their heirs, successors and assigns, and which shall inure to the benefit of each Owner thereof, and the heirs, successors and assigns of each Owner. This Declaration hereby establishes a general plan for the individual ownership of real property estates consisting of residential lots, and the ownership by the Association of all of the Common Area as hereinafter defined. Every conveyance of any of such lots or Common Area, or any part thereof, or any interest therein, shall be and is subject to these easements, covenants, conditions and restrictions, as follows: ARTICLE I . DEFINITIONS Section 1. The following words when used in this Declaration, of any supplemental declaration (unless the context shall prohibit) shall have the following meanings: A. "Owner" shall mean the record owner, whether one or more persons or entities, of a fee simple title to any Lot which is a part of the Property and Contract for Deed purchasers. B. "Property" shall mean and refer to that certain real property described and defined in Article II, Section 1 hereinbelow and such additions thereto as hereafter may be expressly brought within the jurisdiction of the Association. C. "Association" shall mean Waterford Townhomes Association, Inc., a Minnesota nonprofit corporation. D. "Lot" shall mean and refer to any single platted lot shown upon the recorded plat of Waterford, 3rd Addition, or upon any replat or subsequent stage thereof, which is intended for improvement with a single twin-home unit. E. Member" shall mean any person or entity holding membership in the Association as provided in Article III hereof. F. "Declarant" shall mean TRIVESCO, a Minnesota partnership, by its partners, Steiner & Koppelman,Inc., a Minnesota corporation, Robert H. Mason, Inc., a Minnesota corporation, and Highland Properties, Inc., a Minnesota corporation, and any successor or assign of Declarant to whom Declarant assigns its rights hereunder by a recorded Assignment. G. "Mortgage" shall mean instrument by which a Lot or thereon is encumbered. any mortgage or other security any part thereof or any structure H. "Mortgagee" shall mean any person or entity named as the Mortgagee under any such Mortgage or any successors or assigns to the interest of such person or entity under such Mortgage. -2- I. "Living Unit" shall mean a residential housing unit consisting of a group of rooms and hallways which are designed or intended for use as living quarters for a family or other grouping of persons living together. For the purpose of determining membership in the Association, each Living Unit as constructed on a Lot by Declarant shall be considered as a separate and individual unit. J. "FHA" shall mean Federal Housing Administration, United States Department of Housing and Urban Development. K. "VA" shall mean United States Department of Veterans Affairs. L. "FHLMC" shall mean Federal Home Loan Mortgage Corporation. M. "FNMA" shall mean Federal National Mortgage Association. N. "City" shall mean-the City of Shorewood, Minnesota. O. "Common Area" shall mean that portion of the Property that is subsequently platted by Declarant for improvement with recreational facilities for the common use of all Owners. P. "Entrance Area" shall mean that portion of the Property over which Declarant shall subsequently establish an easement to maintain an entrance device and landscaping for the multi-family residential portion of the Property. ARTICLE II PROPERTY SUBJECT TO THIS DECLARATION Section 1. the provisions of which is and shall occupied subject to Shorewood, County of particularly described Property Subiect to this Declaration. Subject to Section 2 of this Article II, the real property be held, transferred, sold, conveyed and this Declaration is located in the City of Hennepin, State of Minnesota, and is more as follows: Lots 1 Hennepin thereof. and 2, Block 1, and Outlot A, Waterford, 3rd Addition, County, Minnesota, according to the recorded plat Section 2. Exception. The City has approved the Property for development for both commercial and multi-family residential use. It is anticipated that the commercial and multi-family residential portions of the Property will each be developed in multiple stages. Declarant intends that only that portion of the Property that is finally platted and approved for residential use, as evidenced by the filing of a final plat or replat for each stage of residential development of the property, shall be subject to the provisions of this Declaration. Accordingly, a Lot shall become subject to the provisions _of this Declaration only upon the filing -3- of a final plat or replat for a residential stage of the development of Waterford, 3rd Addition which depicts and includes such Lot. Any part of the Property which is finally approved for commercial use, as evidenced by the filing of a final plat or replat for each stage of commercial development of the Property, shall not be subject to the provisions of this Declaration. Upon filing of a final plat or replat for each stage of commercial development of Waterford, 3rd Addition, all of the real property included within such plat or replat shall automatically be released from, and shall not be further subject to this Declaration or any of the restrictions contained herein without the filing of any release or other similar document. To the extent any of the provisions of this paragraph conflict or are inconsistent with any of the other provisions of this Declaration, the provisions of this paragraph shall control and supersede such inconsistent provisions. ARTICLE III MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION Section 1. Membership. Every Owner -of a Lot subject to assessment, except as herein provided to the contrary, shall be entitled and required to be a member of the Association. If title to a Lot is held by more than one person, each of such persons shall be a member. An Owner of more than one Lot shall be entitled to one membership for each such Lot. Each such membership shall be appurtenant to the Lot upon which it is based and shall transfer automatically by voluntary or involuntary conveyance of the title of that Lot. No person or entity other than an Owner or Declarant may be a member of the Association, and a membership in the Association may not be transferred except in connection with the transfer of title to that Lot. An Owner may, however, assign voting rights to a Mortgagee. Section 2. Transfer. A membership in the Association shall not be transferred, pledged or alienated in any way, except in connection with the transfer of the record title of a Lot. It shall be the responsibility of each Owner, upon becoming entitled to membership, so to notify the Association in writing, and until so notified, the Association may continue to carry the name of the former Owner as a member, in its sole discretion. In the event the Owner of any Lot should fail or refuse to transfer the membership registered in his name to the transferee of title of such Lot, the Association shall have the right to record the transfer upon the books of the Association and issue a new membership to the transferee, and thereupon the old membership outstanding in the name of the transferor shall be null and void as thought the same had been surrendered. Section 3. Votinq. The Association shall have two classes of voting membership: A. Class A. Class A members shall be all Owners of Lots, with the exception of the Declarant prior to termination of Class B -4- membership, and shall be entitled to one vote for each Lot owned. When more than one person holds title to any Lot, all such persons shall be members. The vote for such Lot shall be exercised as they among themselves determine, but in no event shall more than one vote be cast with respect to anyone Lot. There can be no split vote., Prior to or at the time of any meeting at which a vote is to be taken, each co-Owner or other person entitled to a vote at such meeting shall file with the Secretary of the Association the name of the voting co-Owner or other person entitled to a vote at such meeting, unless such co-Owner or other person has filed a general voting authority with the Secretary applicable to all votes until rescinded. B. Class B. The Class B member shall be the Declarant, who shall be entitled to three votes for each Lot owned. The Class B membership shall cease and be converted to Class A membership on -the happening of either of the following events, whichever occurs first: i) When the total votes outstanding in the Class A membership equal the total votes outstanding in the Class B membership; or ii) The third anniversary Declaration. of the recording of this Section 4. Suspension of Voting Rights. In the event any Owner shall be in the payment of any amount due under any of the provisions of this Declaration for a period of thirty (30) days, or shall be in default in the performance of any of the terms of this Declaration for a period of thirty (30) days, such Owner's right to vote as a member of the Association shall be suspended and remain suspended until all payments are brought current and all defaults remedied. ARTICLE IV PROPERTY RIGHTS Section 1. Permanent Easements. All easements described in this Declaration are permanent easements appurtenant, running with the land. They shall at all times inure to the benefit of and be binding on the Owner and the Mortgagee, from time to time, of any Lots and on the owner and mortgagee, if any, from time to time, of the Common Area, and their respective heirs, successors, personal representatives or assigns. Section 2. Riqht of Enjoyment~ Every Owner shall have a nonexclusive right and easement of enjoyment in and to the Common Area, which right and easement shall include, but not be limited to, the use and enjoyment of open spaces and all other parts of the Common Area for Owners and their invitees. Such right and easement shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions: -5- A. The right of the Association to pass reasonable rules, with respect to the Common Area, for the health, comfort, safety and welfare of persons using same; B. The right of the Association to suspend the voting rights and right of the use of recreational facilities (if any) situated upon the Common Area by an Owner for any period during which any assessment against his Lot remains unpaid, and for a period not to exceed sixty (60) days for an infraction of its published rules and regulations; C. The right of the Association to levy assessments as provided in this Declaration; D. The rights of the Association and Declarant reserved under Article IV, Sections 4 and 5 hereinbelow. Section 3. Deleqation of Enioyment. Any Owner may delegate, in accordance- with the By-Laws of the Association, his right of enjoyment to the Common Area to residents of his Lot, including the members of his family, his tenants, or contract purchasers, and the invitees thereof (except that the Board of Directors may restrict or regulate use of recreational facilities by nonresidents). Section 4. Association's Riqhts. A. The Association shall have the right to manage, build, reconstruct, repair, maintain and improve (including by way of example, but not limited to, landscaping, watering and lawn maintenance, providing sanitation service to and providing snow removal for) the Common Area, the Entrance Area and all improvements constructed thereon. B. The Association shall have the right to mortgage all or any portion of the Common Area for the purpose of securing a loan of money to be used for any of the purposes specified in Subsection 4.A. next hereinabove, provided that the rights of such mortgagee in the Common Area shall be subordinate to the rights of the Owners under this Declaration, and provided, further, that the mortgage shall have received the prior written approval specified in Article XI hereinbelow. C. The Property shall be subject to easements of record on the date hereof. D. Anything apparently to the contrary notwithstanding, no abandonment, partition, subdivision, encumbrance, sale or transfer of the Common Area or other common property or any part thereof shall be effective unless it shall have received the prior written approval required by Article XI hereinbelow. E. The Association shall have the access rights set forth below in the Article entitled "General provisions". - -6- ~ F. The Association shall have the right and obligation to improve, manage, reconstruct, repair and maintain (including by way of example but not limited to, landscaping and maintenance of landscaping) the Entrance Area. Section 5. ,Declarant's Riqhts. Declarant shall hav~ the same rights as any other Owner as to Lots owned by it from time to time, except as otherwise specified herein. In addition, until the last Lot is conveyed to an Owner other than Declarant, Declarant shall have the right and easement over the Common Area and the Entrance Area, for the construction and completion of improvements and making repairs to improvements (whether on the Common Area or upon the Entrance Area) and the right to maintain and use facilities and signs upon the Common Area for the purpose of marketing units, and to invite and escort the public thereon for such purpose. Without limiting the generality of the foregoing, Declarant shall have the "right (until the last Lot is so conveyed) to construct, relocate, remove and alter improvements on the Common Area, including paths, driveways, parking areas, utilities, lighting, walls, fences, signs and landscaping, and to cut, fill, and reshape land contours. Section 6. Non-Dedication to Public Uses. Nothing contained in this Declaration shall be construed or be deemed ,to constitute a dedication, express or implied, of any part of the Common Area or the Entrance Area to or for any public use or purpose whatsoever. Section 7. Easement for Unintentional Encroachment. Notwithstanding any other provisions contained herein, in the event that any Living Unit on any Lot encroaches upon another Lot, then a perpetual easement appurtenant to such encroaching Lot shall exist for the continuance of any such encroachment for so long as the encroachment shall exist. Section 8. Lot to Lot Easements. Since each Living Unit and Garage forms an integral part of a building including other Living Units and Garages, the Owner of each Lot shall have a nonexclusive right and easement over adjoining Lots for lateral support, support, and where necessary, access for maintenance and upkeep of walls, fences and other improvements. ARTICLE V ASSESSMENTS Section 1. Personal Obligation; Lien. Declarant, for each Lot owned by it within the Property, hereby covenants, and each Owner of a Lot by acceptance of a deed, or other conveyance therefore, whether or not it shall be so expressed therein, shall be and is deemed to covenant and hereby agrees to pay to the Association: (a) annual assessments or charges, which shall be payable in regular installments and shall include, but not be limited to, premiums for all insurance maintained by the Association pursuant to Article XII of this Declaration, exterior maintenance of improvements to the Common Area, trash removal, sewer and water charges, outside -7- lighting, maintenance of lawns and landscaping, snow removal and an adequate reserve fund for the periodic maintenance, repair and replacement of those improvements and elements of the improvements on the Common Area and the Entrance Area that must be replaced on a periodic basis and which the Association may be obligated to maintain, and (b) special assessments, such assessments to be established and collected as hereinafter provided. Any assessments authorized herein, together with interest, costs and reasonable attorneys' fees, shall be a continuing lien from the first day of January (for annual assessments) and from the date the first installment is payable (for special assessments) against the Lot assessed. Such annual assessments shall be due and payable in twelve equal monthly installments on the first day of each and every month commencing on the first day of January of each year. Each assessment, together with interest, costs and reasonable attorneys' fees, also shall be the personal obligation of the person who was the Owner of such Lot on the date said assessment became due and payable. Said personal obligation of an Owner shall not pass to his successors in title or interest unless expressly assumed by them or unless, prior to such transfer, a statement of lien for such assessments shall have been fil~d in writing with the County Recorder or Registrar of Titles (as applicable) for Hennepin County, Minnesota. No Owner shall escape liability for the assessments which fell due while he was the Owner by reason of non-use of the Common Area or non-use, transfer or abandonment of his Lot. Section 2. Purpose of Assessments. The assessments levied by the Association shall be used exclusively to promote the recreation, health, safety and welfare of the Owners and residents of the Property, and to construct, manage, improve, maintain, repair and administer the Common Area and the Entrance Area and all pipes, wires, or other conduits of matter or energy located upon the Common Area, and for the maintenance of all improvements on the Common Area and Entrance Area. An adequate reserve fund shall be maintained for working capital and for the periodic maintenance, repair and replacement of those improvements and elements on the Common Area and Entrance Area that must be replaced on a periodic basis. Such fund shall be maintained out of the regular as.sessments. Section 3. Annual Assessments. Until December 31, 1991, the maximum annual monthly assessment shall be at a rate fixed by the Board of Directors, but not to exceed the monthly rate of $105.00 per Lot. Thereafter, the Board of Directors may fix said annual assessments to cover any and all expenses and projected expenses. A. From and after December 31, 1991, assessment may be increased each year not more of increase in the Revised Consumer Price Earners and Clerical Workers for All Items for ("CPI") as published by the U.S. Department than 5 %) . the maximum annual than 5% (or the rate Index for Urban Wage Minneapolis-St. Paul of Labor, if greater -8- B. From and after December 31, 1991, the maximum annual assessment may be increased above 5% (or the rate of increase in the CPI, if greater than 5%) by a vote of two-thirds (2/3) of each class of members who are voting in person or by proxy, at a meeting called for this purpose. C. The Board of Directors may fix the annual assessment at an amount not in excess of the maximum. Section 4. Special Assessments. In addition to the annual assessments authorized above, the Association may levy, in any assessment year, a special assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of any unforeseen or unbudgeted common expense, including without limitation the unexpected construction, reconstruction, repair or replacement of capital improvements and including fixtures and . personal property related thereto, and the exterior maintenance to the Common Area and the Easement Area, provided that any such assessment shall have the assent ,of not less than two-thirds (2/3) of the votes of each class of Members who are voting in person or by proxy at a meeting duly called for this purpose. Section 5. Notice and Quorum. Written notice of any meeting called for the purpose of taking any action authorized under Sections 3 or 4 of this Article shall be sent to all Members not less than thirty (30) days nor more than sixty (60) days in advance of the meeting. At the opening of such meeting, the presence in person or by proxy of Members entitled to cast sixty percent (60%) of the votes of each class of the membership shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement, and the required quorum at the subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than sixty (60) days following the preceding meeting. Section 6. Rate of Assessment. Both annual and special assessments must be fixed at a uniform rate for all Lots except that, in consideration for the Declarant hereby assuming any deficit in the operating expenses of the Association so long as Declarant controls the Board of Directors, Lots owned by the Declarant for which no certificate of occupancy has been issued by the City of Shorewood shall be exempt from assessments until the first day of the month following the issuance of such certificate at which time such Lot shall be assessed the full rate. The Declarant may unilaterally waive this exemption or institute a full or reduced rate for Declarant-owned units prospectively by executing and recording a written waiver to that effect. Section 7. Commencement of Initial Annual Assessments. The annual assessments provided for herein shall commence as to all Lots not later than one month after the conveyance of the Common Area to the Association. The first annual assessment shall be adjusted . according to the number of months remaining in the calendar year. -9- Section 8. Commencement of Annual Assessments. By November 30 of each year the Board shall fix the amount of annual assessments against each Lot for the following fiscal year and shall send written notice thereof to each Owner. The due date for paYment of annual assessments shall be set by the Board. At the time the Board fixes the amount of annual assessments it shall adopt a budget for the following fiscal year and cause a copy of such budget in reasonable detail to be furnished to each Owner. Section 9. Proof of Payment. Upon written demand of an Owner or Mortgagee, at any time and for a reasonable charge, the Association shall furnish a written certificate signed by an officer of the Association setting forth whether there are any then-unpaid annual or special assessments levied against such Owner's or Mortgagee's Lot. Such certificate shall be conclusive evidence of paYment of any annual or special assessments not stated "therein as unpaid. Section 10. Nonpayment of Assessments. Any assessments which are not paid when due shall be deemed delinquent. In the event of a default of more than thirty (30) days -in paYment of. any assessment or installment thereof, the Board of Directors may accelerate the remaining installments of the assessment due in the current assessment year upon notice thereof to the Owner, and thereupon the entire unpaid balance of the assessment with all accrued interest and penalties shall become due and payable upon the date stated in the notice. If a monthly assessment is not paid by the tenth of the month, the Board may assess a service charge not to exceed $15.00. If an assessment is not paid within thirty (30) days of the date on which such assessment due, it shall bear interest from the delinquency date at the rate of eight percent (8%) per annum and shall become a continuing line in favor of the Association on the Lot against which assessed and the improvements thereon, and the Association (or any Owner acting in the name and for the benefit of the Association) may bring an actiqn at law or in equity against the person personally obligated to pay the same, including interest, costs and reasonably attorneys' fees for any such action, which shall be added to the amount of such assessment and included in any judgment rendered in such action, and the Association may also enforce and foreclose any line it has or which may exist for its benefit. There shall be no right of set-off against the Association based upon a failure to provide services or for money owed by the Association to the Owners. Section 11. Recordinq and Enforcement of Liens. To evidence a lien for sums assessed pursuant to this Article, the Association may prepare a written notice of lien setting forth the amount of the assessment, the date due, the amount remaining unpaid, the name of the Owner of the Lot, the name of the person personally obligated to pay the same, and a description of the Lot. Such a notice shall be signed by an officer of the Association, and it or a notice of lien or adverse claim thereof may be recorded in the office of the County Recorder or Registrar of Titles (as applicable) for Hennepin County, ~nnesota. No notice of lien -10- shall be recorded until there is a delinquency in payment of the assessment for thirty (30) days. Upon such a delinquency for thirty (30) days, the Association shall proceed promptly to enforce the lien or, in its discretion, to sue the person personally liable to pay the lien for the delinquency. Such lien shall be enforced by action (or by power of sale, which is hereby deemed granted by each Owner, at the option of foreclosing party) in the same manner in which mortgages on real property may be foreclosed in Minnesota. In any such foreclosure, the person personally obligated to pay the lien shall be required to pay all costs of foreclosure including interest, costs, the reasonable attorneys' fees. All such interest, costs, and expenses shall be secured by the lien being foreclosed. The person personally obligated to pay the lien also shall be required to pay to the Association any assessments against the Lot which shall become due during the period of foreclosure. The Association shall have the right and -power to bid at the foreclosure sale or other legal sale and to acquire, hold, convey, lease, rent, encumber, use and otherwise deal with the foreclosed interest in the Lot as the Owner thereof. The Association shall upon written req~est report to. any encumbrancer of a Lot any assessments remaining unpaid for longer than thirty (30) days after the same shall have become due, provided, however, that such encumbrancer first shall have furnished to the Association written notice of such encumbrance. Section 12. Subordination of Lien. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage and to tax liens and liens for special assessments in favor of any taxing and assessing unit of government. Sale or transfer of any Lot shall not effect. the assessment line. However, the sale or transfer of any Lot pursuant to mortgage foreclosure or remedies provided in the mortgage, or any proceeding in lieu thereof, shall extinguish the lien of such assessments as to charges which accrued prior to acquisition of title pursuant to such sale or transfer. No such sale or transfer shall relieve a Lotdfrom liability for any assessments thereafter becoming due or from the lien thereof or shall relieve the person personally obligated to pay the lien of personal liability for assessments due prior to such sale or transfer or acquisition of premises. Any delinquent assessments the lien for which is extinguished by reason of this provision may be reallocated and assessed to all Lots as a common expense. ARTICLE VI ARCHITECTURAL CONTROLS Section 1. Architectural Control Committee Authority. No Living Unit, residential or other building, and no fence, wall, garage, outbuilding or other structure, nor any wire, pipe, cesspool, septic tank, well, path, walkway, tree, hedge, driveway, aerial, antenna, or exterior ornament of any kind, nor any addition, remoyal, alteration, or remodeling thereof, including -11- change of color, repainting or redecorating of the exterior, shall be made, erected, altered, placed or permitted to remain on any portion of the Property unless and until detailed plans and specifications and proposals, including plans which show the external design, the colors and color scheme, the decoration, the construction, and the materials to be used in construction, the dimensions, and the location and approximate cost of the same shall have been submitted to and approved in writing by an Architectural Control Committee (hereinafter described) as to harmony of the external design and location in relation to surrounding building in the subdivision and as to general appearance and quality. In the event said Committee fails to approve or disapprove such design and location within fifteen (15) days after said plans and specifications have been submitted to it (in such reasonable detail as the Committee may require), or if no suit to enjoin the making of such construction, removal, additions, alterations, or changes -has been commenced within thirty (30) days of such submission, such approval will be deemed to have been given. If no submission has been made to the Architectural Control Committee or its representatives, suit to enjoin or remove such additions, alterations or changes may be instituted at any time by the Association or any Owner. The Board of Directors, on request, will issue a certificate as to the state of compliance or noncompliance of a particular Lot, and any such certificate will be binding as to third parties. Any deviation from said plans and specifications as approved which in the judgment of the said Committee is a substantial change or a detriment to the appearance of the structure or of the surrounding area shall be corrected to conform to the plans and specifications as submitted. Every structure must be erected and completed within eighteen months of approval, or new approval obtained. If any structure is begun, and is not completed within eighteen months after the commencement of construction, and in the judgment of the Architectural Control Committee is by reason of its' incomplete state of offensive or unsightly appearance, the Committee, at its discretion after ten (10) days written notice to the Owner of the Lot, may take such steps as may be necessary, in its judgment, to improve the appearance so as to make the property harmonious with neighboring properties, including entering upon the Lot, completion of the exterior of the structure, screening or covering the structure, or any combination thereof or similar operation, and the amount of any expenditure made in so doing shall be a lien on the Lot enforceable in like manner as assessment hereunder. Nothing herein contained shall be deemed to prohibit Declarant from making changes to the plans, specifications, and appearance of buildings constructed from time to time on vacant Lots, but all buildings shall be consistent in terms of quality and harmonious in general appearance with previously constructed buildings. During the period the Association has a Class B member, the decisions of the Architectural Control Committee must have the written approval of the Declarant. The Architectural Control Committee shall be the Board of Directors of the Association, or a committee of three or more persons so designated by the Board. In addition to the foregoing conditions and restrictions, all provisions of the Shorewood City Code relating to the requirement for building permits shall apply. -12- Section 2. Restoration in Accordance with Original Plans. Any restoration or repair of the Common Area or exterior of Living Units and garages, after a partial condemnation or damage due to an insurable hazard, shall be performed substantially in accordance with the Declaration and the original plans and specifications, unless other action is approved by the Architectural Control Committee. Section 3. No Design Liability. The Architectural Control Committee and Declarant shall not exercise architectural or engineering expertise in its review of plans. It is the sole duty and responsibility of an Owner to employ an architect or engineer to design a Living Unit and any requested modifications in a safe and architecturally sound manner. Each Owner and his heirs, successors and. assigns waives any right to claim damages from the Architectural Control Committee or Declarant as a result of architectural designs requested by or furnish to said Committee or the Declarant's review thereof. The Architectural Control Committee and Declarant shall not be responsible to any Owner, or anyone claiming under or through an Owner, in any manner whatsoever for any defect in any plans or specifications submitted to said Committee, nor as revised at the request of said Committee or Declarant or for any work done pursuant to requested changes of said plans and specifications. ARTICLE VII OTHER RIGHTS AND OBLIGATIONS OF THE ASSOCIATION Section 1. The Common Area and Exteriors. The Association, subject to the rights of the Owners as set forth in this Declaration, shall be responsible .for, and be vested with, the exclusive management and control of the Common Area and the Entrance Area and all improvements thereon (including furnishings and equipment related thereto), and shall keep the same in good, clean, attractive and sanitary condition, order and repair. Such responsibility shall include, but not be limited to, the following: the maintenance and repair of the Common Area and the Entrance Area improvements, such as the recreational facilities, if any, driveways, parking areas, walkways, exterior ornamental lights, landscaping and all other improvements or material located within or used in connection with the Common Area and Entrance Area. All maintenance and repair of the individual Living Units and garages shall be the sole obligation and expense of the individual Owner. Section 2. Lawn and Planting Maintenance; Patios. The Association shall mow, trim, water, rake and otherwise maintain, all to the extent the Board deems necessary or desirable, all lawns and exterior plantings of both the Common Area and the Entrance Area. Section 3. Services. The Association may obtain and pay for the services of any persons or entities, to manage its affairs, or any part thereof, to the extent it deems advisable, as well as such -13- other personnel as the Association shall determine to be necessary or desirable for the proper operation of the Property, whether such personnel are furnished or employed directly by the Association or by any person or entity with whom or which it contracts. The Association may obtain and pay for legal and accounting services necessary or desirable in connection with the operation of the Property or the enforcement of this Declaration. Any agreement for professional management of the Property or any other contract providing for services by Declarant or an entity owned or controlled by the same persons as Declarant, must provide for termination by either party without payment of a termination fee on ninety (90) days' or less written notice without cause and by either party upon thirty (30) days' or less written notice for cause, and shall have a maximum contract term of three (3) years, but may be renewable by agreement of the parties for successive terms. Section 4. Personal Property for Common Use. The Association may acquire and hold for the use and benefit of all of the Owners tangible and intangible personal property and may dispose of the same by sale or otherwise. Such beneficial interest shall not be transferable except with the transfer of title to a Lot, provided that an Owner may delegate his right of enjoyment of such personal property to residents of his Lot. A transfer of title to a Lot shall transfer to the transferee ownership of the transferor's beneficial interest in such property in accordance with the purpose for which it is intended, without hindering or encroaching upon the lawful rights of other Owners. The transfer of title to a Lot under foreclosure shall entitle the purchaser to the beneficial interest in such personal property associated with the foreclosed Lot. Section 5. Utilities. The Association may pay as a common expense all charges for water, sewer and other utilities used upon the Common Area and the Entrance Area. ARTICLE VIII OWNERS' MAINTENANCE Section 1. Upkeep and Maintenance. Each Owner shall be responsible for the upkeep and maintenance of his Living Unit, garage, patio and all other areas, features or parts of his Lot and each Owner shall maintain the same free of hazardous substances, vermin, cockroaches, pests and debris which may pose a threat to the health or safety of occupants of other Lots. Every Owner must perform promptly all cleaning, maintenance and repair work within his Lot, which, if omitted, would affect the Common Area or another Lot or Lots, being expressly responsible for the damages and liabilities that his failure to do so may engender. Without limiting the generality of the foregoing, the Association may require an Owner to remove offending items, or to use a professional exterminator, and upon failure of the Owner to do so, Association after reasonable notice may -enter the Lot with a -14- professional exterminator or other appropriate contractor and take corrective action, charging the Owner of such Lot for the reasonable cost thereof. An Owner shall do no act nor any work that will impair the structural soundness or integrity of a multi-family structure or an adjoining Living Unit or garage, or impair any easement or hereditament, nor do any act nor allow any condition to exist which will adversely affect the other Living Units, garages or their Owners. Section 2. Heating of Livinq Units. For the purpose of preventing damage to and breakage of water, sewer and other utility lines and pipes in a Living Unit which might result in damage to that or other Living Units, all Owners shall maintain the temperature in their Living Units, at all times, at least at 55 degrees Fahrenheit (or such other reasonable temperature or standard as the Board of Directors may from time to time specify by written rule), subject, however, to the inability to maintain such temperature due to causes beyond the Owner's reasonable control. Any damage resulting from the refusal or failure of an Owner so to maintain such minimum temperature may be repaired by the Association and (unless due to causes beyond the Owner's reasonable control) the cost thereof assessed against the Lot of the refusing or failing Owner. However, if the failure to maintain such minimum temperature is due to causes beyond the Owner's reasonable control, the cost of such repair shall be a common expense. The Association may by rule require Living Units which are unoccupied for substantial periods of time during winter to use alarms which will detect abnormally low temperatures. ARTICLE IX PARTY WALLS Section 1. General Rules of Law to Apply. Each wall which is built as a part of the original construction of the Living Units upon the Property and placed on the dividing line between the Lots shall constitute a party wall, and to the extent not inconsistent with the provisions of this Article, the general rules of law regarding party walls and liability for property damage due to negligence or willful acts or omissions shall apply thereto. Section 2. Sharing of Repair and Maintenance. The cost of reasonable repair and maintenance of a party wall shall be shared equally by the Owners who made use of the wall. Section 3. Destruction by Fire or Other Casualty. If a party wall is destroyed or damaged by fire or other casualty, an Owner who has used the wall may restore it to its original condition, and if the other owners thereafter make use of the wall, they shall contribute to the cost of the restoration thereof in proportion to such use without prejudice to the right of any such Owners to call for a larger contribution from the others under any rule or law regarding liability for negligent or willful acts or omissions. ~15- Section 4. Weatherproofing. Notwithstanding any other provision of this Article, an Owner who by his negligent or willful act caused the party wall to be exposed to the elements shall bear the whole cost of furnishing the necessary protection against such elements. Section any Owner shall be successors 5. Right to Contribution Runs With Land. to contribution from any other Owner under appurtenant to the land and shall pass to in title. The right of this Article such Owner's Section 6. Arbitration. In the event of any dispute arising under the provisions of this Article, each party shall choose one arbitrator, and such arbitrators shall choose one additional arbitrator, and the decision shall be by a majority of all the arbitrators, intending hereby to invoke and apply the provisions of . Minn. Stat. 572.08 to 572.30. The arbitration hearing shall be held within Hennepin County, Minnesota, and the initial application under the statute shall be to the District Court for the Fourth Judicial District in and for Hennepin County, Minnesota. ARTICLE X GENERAL RESTRICTIONS, OBLIGATIONS AND RIGHTS OF OWNERS Section 1. Living Unit and Lot Restrictions. No more than one Living Unit shall be erected or maintained on each Lot, and no Lot as originally platted shall be further subdivided or partitioned. No Living Unit shall be used for purposes other than as a single residential unit, nor' shall any trade or business of any kind be carried on within a Living Unit or upon a Lot, nor shall any Lot or any part thereof be leased, sublet, assigned or suffered to be used for hotel or transient occupancy, provided that none of the following activities shall be considered a violation of this covenant: A. The maintenance of units by Declarant on Lots construction and sales periods. B. The maintenance of an office by the Association or its designated manager for' purposes of management of the Property. a business and sales office and model or Common Area or both during the C. Lease or rental of a Living Unit for purposes consistent with this Section. D. The use of a Lot by an Owner for home office or studio uses which are incidental to the principal residential use of the unit, which do not invite or generate regular or frequent visits by clients, customers, employees, co-workers or the public, and which do not alter the residential character of the Property. Section 2. Setback and Buildinq Height Restrictions. Minimum setbacks for Living Units and other structures shall be as follows: -16- Front - 30 feet. Rear - 30 feet. Side - 10 feet. Side yard abutting the street - 30 feet. The above minimum setback distances do not apply to the common lot line between Living Units on which the party wall between such Living Units is constructed. The be two less. maximum height for Living Units and other structures shall and one-half stories or thirty-five (35) feet, whichever is Section 3. Common Area Restrictions. No industry, business, trade, occupation or profession of any kind shall be conducted, maintained or permitted on any part of the Common Area, nor shall . any "for sale" or "for rent" signs or any window display advertising be maintained or permitted on any part thereof, except that Declarant reserves the right for itself or its agents to maintain a business and sales office during the construction and sales period until the last Lot is sold, and- to place "for sale", "for rent", or any other signs on any part of the Common Area and to use any part of the Common Area for sale or display purposes during such period. No Living Unit or garage shall be constructed on the Common Area. Section 4. Obstructions. There shall be no obstruction of the Common Area, nor shall anything except construction materials and equipment be kept or stored on any part of the Common Area during the construction period without the prior written consent of the Association or except as specifically provided herein. Nothing shall be altered on, constructed in, or removed from the Common Area except upon the prior written consent of the Association. Section 5. Prohibition of Damaqe and Certain Activities. Nothing shall be done or kept on any Lot or in the Common Area or any part thereof which would increase the rate of insurance on the Property or any part thereof over what the Association, but for such activity, would pay, without the prior written consent of the Association. Nothing shall be done or kept on any Lot or in the Common Area or any part thereof which would be in violation of any statute, rule, ordinance, regulation, permit or other validly imposed requirement of any governmental body. No damage to, or waste of, the Common Area or any part thereof or of the exterior of the Property and buildings shall be committed by any Owner or any invitee of any Owner, and each Owner shall indemnify and hold the Association and the other Owners harmless against all loss resulting from any such damage or waste caused to the Association or other Owners by him or his invitees. No noxious, destructive or offensive activity shall be allowed on any Lots or in the Common Area or any part thereof, nor shall anything be done thereon which may be or may become a nuisance to any other Owner or to any other person at any time lawfully residing on the Property. No heating devices, refrigeration equipment, or other machinery which causes -17- vibrations detectable from outside the Lot, is fuel-fired, or is otherwise inherently dangerous, noxious, or noisy, shall be installed or operated within any Lot. Section 6. Fences, Walls and Patios. heighten, lower or otherwise move or patio upon the Property except as hereinabove. No Owner shall relocate, change any fence, wall or provided in Article VI Section 7. No Unsightly Uses. No clothes, sheets, blankets, laundry of any kind, or other articles shall be hung out on any portion of the Common Area, or on a Lot so as to be visible from outside the Lot .____The Common Area and all parts of a Lot_visible from outside the Lot, shall be kept free and clear of all rubbish, debris, and other unsightly materials. Section 8. Awnings. No awnings or shades shall be erected over and outside of the windows, nor shall any articles or structures be hung or placed on any outside window sills without the prior written consent of the Association. Section 9. Animals. No pets shall be permitted to be kept on the Property" by any Owner or occupant except conventional domesticated animals. No kennel, dog house or outside run shall be constructed or maintained on the Property. No pet shall be kept for any commercial purpose nor shall pets be bred for a commercial purpose upon the Property. Any cat or dog, whenever outside of a Living Unit, must be kept under the direct control of the pet owner or another person able'to control the pet. The person in charge of the pet must clean up after it. The Board may adopt more specific rules and penalties not inconsistent with the foregoing, and may make all or specified portions of the Common Area off limits to pets. Upon the petition of seventy-five percent (75%) of the Owners of Lots located within seventy-five (75) feet of the Lot in which resides a specified pet, the Board may order the removal of a particular dog for constant and uncontrolled barking, or of any particular animal for repeated instances of wandering unleashed or other repeated behavior reasonably offensive to others, provided that the Owner of the Lot harboring the animal shall first have thirty (30) days' written notice in which to correct the offensive behavior. Section 10. Prohibited Structures. No structure of a temporary character, trailer, boat, camper-bus, basement, tent, or shack shall be maintained on any Lot nor shall any garage or other building, except a permanent residence, be used at any time as a residence or sleeping quarters, either temporarily or permanently. Exterior basketball hoops may only be maintained with the prior written approval of the Board, and may be prohibited by the Board in its discretion. The Association may maintain on the Common Area a storage shed to be used by the Association for the storage of lawn maintenance equipment and other common property. -18- The Association may license the erection of temporary party tents for weddings, parties and the like. Section 11. Storaqe. Outside storage of any items (other than patio-type furniture and not more than one cooking grill per Lot), including but without limiting the generality of the foregoing, sporting equipment, toys, yard and garden tools and equipment, and trash and garbage containers, shall not be allowed unless effectively screened from view from outside the Lot by enclosures. The design of such screened enclosure must be approved by the Architectural Control Committee in accordance with the architectural control provisions hereof. The storage or collection of rubbish of any character whatsoever, any material_that__emits foul or obnoxious odors, the growing of any noxious weed or other natural substance, and the harboring of the source of any noise or activity which disturbs the peace, comfort or serenity of residents -is prohibited. Unusual household trash and garbage shall be regularly collected and may be kept outside only if in sanitary containers which are so screened. Notwithstanding the foregoing, no boats, snowmobiles, trailers, camping vehicles, buses, camper tops, "all-terrain vehicles", tractor/trailers., trucks in excess of 9,000 pounds gross weight, or unlicensed or inoperable vehicles shall at any time be stored or parked on any Lot outside of a house or garage or on any part of the Common Area without the express written approval of the Board of Directors, which may be withheld, without stated reason. No stores of coal or any combustible, flammable, hazardous or offensive goods, provisions or materials shall be kept on any part of the Property except for reasonable quantities and kinds of usual household materials and reasonable quantities of fireplace wood. Section 12. Siqns. No sign of any kind shall be displayed to the public view on any Lot, except: A. Designations, shall be regulation occupants; in such approve, styles and materials as the Board of street addresses and names of B. A "For Sale" sign may be displayed provided that it is in such styles and materials as the Board shall by regulation approve; and C. Declarant shall be permitted to erect and maintain upon the Property such signs as it deems necessary to advertise the development during the construction and sale periods. D. All signs displayed as provided above shall conform to the Shorewood City Code. Without limiting the generality of the foregoing, the Board of Directors may by resolution prohibit the distinctive and particular "For Sale" signs used by real estate brokers and agents. -19- Section 13. Antennae. Except with prior written approval of the Architectural Control Committee, no exterior television, radio, satellite, or microwave antenna of any sort shall be erected or maintained upon any Lot.. The Architectural Control Committee may choose to prohibit all such antennae, or to prohibit only certain kinds and locations of antennae, and to change it regulations from time to time, all in its discretion. Without limiting the generality of the foregoing, it shall not be deemed arbitrary or an abuse of such discretion if the Committee were to: A. Permit while at the location; existing same time antennae to continue to be maintained, banning new antennae of the same type or B. Prohibit the street side . visible; or antennae to be placed so as to be visible from of a Lot, but permit the same antennae if not so C. Place height or size restrictions on antennae. Section 14. Rentals. Any lease between an Owner and a lessee shall provide that the terms of the lease shall be subject in all respects to the provisions of this Declaration, the Articles of Incorporation and the By-Laws, and that any failure by the lessee to comply with the terms of such documents shall be a default under the lease. A lease must be for an entire Living Unit, not a portion thereof. All leases shall be in writing. No lease may be for a period of less than thirty (30) days. Other than the foregoing, there shall be no restrictions on the right of any Owner to lease his Living Unit. Section 15. Rules and Regulations. The Board from time to time shall adopt such other rules and regulations governing the use and enjoYment of the Common Area as the Board in its sole discretion deems appropriate or necessary. ARTICLE XI RIGHTS FOR THE PROTECTION OF FIRST MORTGAGEES Section 1. precedence over Declaration. Precedence. any other The provisions of this Article take conflicting provisions of this Section 2. Notice of Action. Any Mortgagee and any insurer or guarantor of a first Mortgage on a Lot or Living Unit who has advised the Association in writing of its name and address and the address of the Lot or Living Unit covered by such Mortgage, and in said writing has requested the Association to notify it of any of the following, will be entitled to timely written notice of: . A. Any condemnation loss or any casualty loss which affects a material portion of the project or any Lot or Living Unit on which there is a first mortgage held, insured, or guaranteed by such mortgage holder or insurer or guarantor, as applicable; -20- B. Any delinquency in the payment of assessments or charges owed, or any other default in the performance of any obligation under the Declaration, By-Laws, or Articles of Incorporation by an Owner of a Lot or Living Unit subject to a first mortgage held, insured, or guaranteed by such holder or insurer or guarantor, which remains uncured for a period of sixty (60) days; C. Any lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Association; D. Any proposed action which would require the consent of a specified percentage of mortgage holders a specified in the Article entitled "General provisions". ~.. _, .._._._ ___ ..__. "__.______.____++...___________ __..--J Section 3. Liability for Unpaid Assessments. Any first mortgagee who obtains title to or comes into possession of a Lot .pursuant to the remedies provided in the mortgage or by foreclosure of the mortgage or by deed or assignment in lieu of foreclosure, and any purchase~_at a foreclosure sale shall not be liable for the unpaid assessments of the Lot which accrue prior to the acquisition of title or possession to such Lot by the mortg~gee. and the set Section 4. holders, right to forth more Examination of Books and Records. First mortgagees insurers and guarantors of first mortgages shall have examine the books and records of the Association, as fully in the By-Laws. Section 5. Payment of Taxes and Insurance. First mortgagees may, jointly or singly, pay taxes or other charges which are in default and which have or may become a charge against any common property, and may pay overdue premiums on hazard insurance policies or secure new hazard insurance coverage on the lapse of a policy for the common property, and first mortgagees making such payments shall be owed immediate reimbursement therefore from the Association. The Association is authorized to enter into an agreement in favor of all first mortgages of Living Units establishing entitlement to such reimbursement. Section 6. Distribution of Insurance Proceeds and Condemnation Awards. No provision of the Declaration or By-Laws shall be construed as g~v~ng to the Owner or to any other party priority over any rights of first mortgagees of Lots pursuant to their mortgages in the case of a distribution to Owners of insurance proceeds or condemnation awards for losses to or a taking of common property. Section 7. Desiqnation of Representative. Any holder of a first mortgage on a Lot or Living Unit may designate a representative to attend meetings of members. -21- ARTICLE XII INSURANCE Section 1. Maintenance of Insurance. Commencing not later than the time of the first conveyance of a Lot to an Owner other than Declarant, the Association shall maintain, to the extent reasonably available, the following insurance: A. Master or blanket type policy of fire insurance with extended coverage endorsement (including, to the extent reasonably available, vandalism, sprinkler leakage, debris removal, malicious mischief, or windstorm and water damage) insuring the Common Area, Entrance Area and improvements thereon and covering the interest of the Association for full insurable replacement cost, as determined annually by the Board of Directors. Proceeds of such hazard ~nsurance shall be used solely for the repair, replacement, or reconstruction of such insurable common property. Said policy shall afford, as a minimum, protection against the f~llowing: (1) Loss or damage by fire and other pe~ls normally covered by the standard extended coverage endorsement; (2) All other periods which are customarily covered with respect to projects similar in construction, location and use, including all perils normally covered by the standard "all risk" endorsement, where such policies must be set forth therein substantially as follows: "Waterford Townhomes Association, Inc. for the use and benefit of the individual owners." The policies also may be issued in the name of an authorized representative of the Association, including any Insurance Trustee with whom the Association has entered into an Insurance Trustee Agreement, or any successor to such trustee, for the use and benefit of the individual Owners. Loss payable shall be in favor of the Association (or Insurance Trustee), as a trustee for each Owner and each such Owner's mortgagee. Each Owner and each such Owner's mortgagee, if any, shall be beneficiaries of the policy with respect to the Common Area equally with each other Lot. Evidence of insurance shall be issued to each Owner and mortgagee upon request. policies must provide for the recognition of any Insurance Trust Agreement. The policies shall also provide that the right of subrogation against Owners will be waived, that the insurance will not be prejudiced by any acts or omissions of individual Owners that are not under the control of the Association or the Owners collectively and that the policy will be primary, even if an Owner has other insurance that covers the same loss. If reasonably available, such policies shall include: -22- (1) Agreed Amount Endorsement (or like endorsement); (2) Inflation Guard Endorsement; (3) Construction Code Endorsements (such as a Demolition Cost Endorsement, a Contingent Liability from Operation of Building Laws Endorsement, and an Increased Cost of Construction Endorsement) if the project is subject to a construction code provision which would become operative and require changes to undamaged portions of the improvements, thereby imposing significant costs in the event of partial destruction of the project by an insured peril; and------- (4) Steam Boiler Coveraqe (if applicable) for loss or damage resulting from steam boiler equipment accidents in an amount not less than $50,000.00 per accident per location. B. Workers' Compensation-insurance (if the Association has eligible employees). C. Comprehensive public liability insurance in such amounts and with such coverage as the Board of Directors shall from time to time determine, but at least: (1) Covering events occurring anywhere on the Common Area (and public ways and commercial spaces, if any, and any other areas that are under its supervision) or arising out of or in connection with the use, ownership or maintenance of the Common Area; (2) Covering, without limitation, legal liability of the insureds for property damage, bodily injuries and deaths of persons in connection with the operation, maintenance or use of the Common Area and Entrance Area and legal liability ar1s1ng out of lawsuits related to employment contracts of the Association, and such other coverages as are customarily covered with respect to projects similar in construction, location, and use; (3) Insuring each officer and member of the Board of Directors, the managing agent and each Owner and with cross liability endorsement to cover liabilities of the Owners as a group to an Owner and with a "Severability of Interest Endorsement" which would preclude the insurer from denying the claim of an Owner for the negligent act of another Owner, occupant or the Association; and (4) In amounts generally required by private institutional mortgage investors for projects similar in construction, location and use. (However, such coverage shall be for at least $1,000,000.00 for bodily injury, including deaths of persons and property damage arising out of a single occurrence.) -23- D. Such determine. other insurance as the Board of Directors may E. All such policies must provide that they may not be cancelled or substantially modified by any party without at least ten (10) days prior-written notice to the Association and to each holder of a first mortgage which is listed as a scheduled holder of a first mortgage in the insurance policy. Section 2. Owners' Individual policies. Each Owner shall carry insurance for his own benefit insuring his Living Unit, personal liability and his carpeting, wallcovering, fixtures, furniture, furnishings, and other personal property, and fixtures and other property supplied or installed by him or a previous Owner or tenant, provided that all such policies shall contain waivers of .subrogation and further provided that the liability of the carriers issuing insurance obtained by the Association shall not be affected or diminished by reason of any such additional insurance carried by any Owner. Section 3. Covenant to Insure. Since each Living Unit forms an integral part of a building including several other Living Units, and failure to repair or rebuild a damaged Living Unit would therefore seriously affect the appearance, structural integrity and value of an adjoining Living Unit and the appearance of the project as a whole, each Owner covenants to keep in full force and effect at all times fire and standard extended coverage insurance in an amount not less than one hundred percent (100%) of the insurable value (based on current replacement cost) of his Living Unit and associated garage as originally constructed, and to use the proceeds thereof solely for the repair, replacement or reconstruction of such Living Unit and associated garage, and to deliver proof of such insurance to the Association upon demand. Each such policy shall name the Association (or its Insurance Trustee) as an additional insured and shall provide for thirty (30) days notice to the Association before cancellation shall be effective and shall waive subrogation against other Owners. No government agency as an Owner shall be required to carry said insurance. ~he Association may, by resolution of the Board of Directors, elect to obtain and continue in effect, on behalf of all Owners, a blanket insurance policy for all Living Units conforming to the foregoing requirements and the premiums therefore may be assessed against each Lot equally, pro rata by value or size or by any other reasonable allocation, as part of the regular annual assessment. Such coverage shall be written in the name of, and the proceeds shall be payable to, the Association as trustee for the Owners or some other Insurance Trustee. Section 4. Additional Coveraqes. In addition and supplement to the foregoing powers, and not, in limitation thereof, the Board of Directors shall have the authority at all times without action by the Owners to require the policies mandated by this Article to include, or directly to obtain and maintain in fore all Common or Association coverages and endorsements required by either Federal -24- National Mortgage Corporation for the garages or Lots, as time. Association or Federal Home Loan Mortgage acceptance of mortgages on Living Units, such requirements are amended from time to .. Section 5. Covenant to Rebuild. Each Owner, by acceptance of a deed to his Lot, hereby appoints the Association, or any Insurance Trustee or substitute Insurance Trustee designated by the Association, as attorney-in-fact for the purpose of the collection and appropriate disposition of the proceeds of casualty insurance onn individual Lots and Living Units, the negotiation of losses and execution of releases of liability, the execution of all documents, and the performance of all other acts necessary to accomplish such purpose. The Association or any Insurance Trustee is hereby required to receive, hold, or otherwise properly dispose of any proceeds of such insurance in trust for Owners and their first ~ortgage holders, as their interests may appear, and to apply and administer the same as follows: A. All insurance proceeds paid Insurance Trustee (hereinafter sometimes "Trustee") shall be deposited in escrow company or other depository acceptable mortgagees of record. to the Association or referred to merely as with a title insurance to the Trustees and B. The Owner of the Living Unit or garage with respect to which the insured loss occurred shall, within thirty (30) days after insurance proceeds are deposited in accordance with paragraph A above, enter into a firm lump sum contract with a qualified builder providing for the reconstruction or remodeling of the Living Unit or garage, to substantially the same condition as existed immediately prior to the insured loss; provided, however, that no contract shall be entered into by the Owner for an amount in excess of the insurance proceeds then held by the Trustee for said Living Unit or garage, until additional funds are deposited by the Owner sufficient to cover all construction and restoration costs as determined by the Trustee and mortgagee. Said reconstruction or remodeling shall be commenced and completed with due diligence, and in no event shall said work be completed than than one hundred eighty (180) days (weather permitting) after said insurance proceeds are deposited in escrow as aforesaid. The Association and mortgagees of record of the Living Units or garages affected and the Lots underlying the same shall have the right, but not the obligation, to deposit such additional funds in excess of insurance proceeds as may be required to permit construction as herein provided, and any such advances shall be a lien upon the Lot or Lots, subordinated, however, to the interest of mortgagees of record. C. In the event the Owner fails to enter into a contract as provided in Subparagraph B above, or in the event that reconstruction or remodeling is not commenced or completed as provided above, then the Trustee or the mortgagee of record, with the consent of the Trustee, shall have the right, but not the -25- obligation, to enter into those contracts which it deems necessary to complete said reconstruction or remodeling of the complete said reconstruction or remodeling of the Living Unit or garage, and the Trustee or mortgagee shall have the right to have said insurance proceeds applied in satisfaction of any obligation incurred pursuant to said contracts, without liability of any kind to the Owner, including, but not limited to, interest on said insurance proceeds. The Trustee may employ any bonded party or parties as its agents in exercising those functions given to it in this Section. The Trustee shall be empowered to pay said agent a reasonable fee for the services rendered by said agent and to collect said charge from the Owner or Owners, as the case may be, and in the same manner as that which is provided herein for the collection of an insurance premium paid by the Association. D. Disbursement of funds on deposit pursuant to Subparagraph A above, for contracts for reconstruction or remodeling entered into under Subparagraphs Band C above, shall be made by a title insurance company or other agent ("Agent") selected by Trustee and the affected mortgagees of record, subject to the following: ( 1 ) Article VI Controls" remodeling. of these covenants shall apply to all entitled "Architectural said reconstruction or (2). Receipt by Agent of such sworn construction statements, lists of subcontractors, lien waivers and receipts as it shall determine to be appropriate. Disbursements may be by periodic or progress payments, and Agent.may make such inspections and withhold such payments as it deems necessary to insure completion in compliance with plans and specifications. ( 3 ) In the event Subparagraph B Owner to said be unreasonably a contract is entered into pursuant to hereinabove, the written consent of the paYment or paYments, which consent will not withheld. E. In the event that a remodeling or reconstruction contract is, for any reason, not entered into pursuant to the provisions of Subparagraphs Band C hereinabove, within one hundred eighty (180) days after deposit of insurance proceeds in escrow for a damaged or destroyed Living Unit or garage, as herein provided, or in the event there are excess funds after reconstruction or remodeling, the proceeds or excess, as the case may be, shall be disbursed to each Owner and mortgagee of record of the affected Lot as their interests appear. F. In the event the Owner whose property is damaged fails to make satisfactory arrangements for the repair and reconstruction of the damage property and, in the event the Trustee decides to repair and reconstruct the damage property and it is determined by it that the insurance proceeds are not sufficient for all costs and expenses associated therewith, the Association or the mortgagee may -26- deposit, insurance pay the Expense" ) . arrange for and disburse funds over and above the proceeds to complete the repair and reconstruction and to costs associated and related therewith ("Additional (1) If the insurance coverage for this casualty was by a blanket or master policy secured by the Association, such additional expense shall be a common expense payable from the Association's funds or assessable equally against all Lots as a special assessment. (2) If the insurance coverage for this casualty was by an individual policy secured by the affected Owner, then such additional expense shall be due and payable from the affected Owner and upon completion of the work, the Board of Directors may levy a Special-Charge Assessment against the Lot having the effect of a maintenance assessment lien under Article V hereof, but superior to all other annual and special assessments, and which lien may be enforced in the same' manner. as provided herein for other assessment liens. The Special-Charge Assessment shall be in the amount expended by the Trustee over and above the insurance proceeds received by the Trustee to repair and reconstruct the Owner's premises, including necessary costs, expenses and fees associated with the work. G. In all events, betterments or improvements made subsequent to the original construction by any Owner to his Lot shall be the responsibility of the Owner to insure separately (or by rider to a blanket policy at the consent of the Association) if he desires the same insured. If the Trustee or mortgagee undertakes the reconstruction or remodeling of a Living Unit or garage as above provided, the same need be restored only to substantially the same condition as the Living Unit or garage was as of the completion of original construction. Section 6. Insurance Premiums. Insurance premiums for any blanket property insurance coverage and the other insurance coverages purchased by the Association shall be common expenses to be paid by assessments levied by the Association, and such assessments shall be held in a separate escrow account of the Association and used solely for the payment of the blanket property insurance premiums and other insurance premiums as such premiums become. due. The premiums payable as to each Living Unit and associated garage may be allocated based upon the ratio of the value of each Living Unit to the total value of all Living Units, rather than equally, if so determined by the Board of Directors. ARTICLE XIII EMINENT DOMAIN Section condemnation 1. The Association shall represent the Owners in any proceedings or in negotiations, settlement and -27- agreements with the condemning authority for acquisition of the Cornmon Area, or part thereof, and by acceptance of a deed for his unit, each Owner appoints the Association as attorney-in-fact for such purposes. In the event of a taking of acquisition of part or all of the Cornmon Area by a condemning authority, the award or proceeds of settlement shall be payable to the Association, or other trustee (such as a bank or title insurance company appointed as such by the Association), for the use and benefit of the Owners and their mortgagees as their interests may appear. Section 2. Reconstruction. In the event of a partial taking of the Cornmon Area (for conveyance in lieu thereof) the Association promptly shall cause the remaining portions of the Cornmon Area to be restored functionally and aesthetically to reasonably the same condition as before the taking, using so much of the proceeds of such taking for such purpose as shall be reasonably necessary. In the event of a total taking of the Cornmon Area (or conveyance in lieu thereof), and the project is terminated by the election hereinabove required, the proceeds shall be allocated equally among each Lot, payable jointly to the respective Owners and mortgage holders thereof. ARTICLE XIV GENERAL PROVISIONS Section 1. Enforcement. Enforcement of these covenants and restrictions and of the provisions contained in the Articles of Incorporation and By-Laws of the Association (and of decisions made by the Association pursuant thereto) may be by any proceeding at law or in equity instituted by the Association or by any Owner against any person (including the Association) violating or attempting to violate any covenant or restriction, either to restrain violation, to compel compliance, or to recover damages, and against the land, to enforce any lien created by these covenants; and failure by the Association or by any Owner to enforce any covenant or restriction herein contained in a particular lnstance shall in no event be deemed a waiver of the right to do so thereafter. Attorneys' fees and costs of any such actions to restrain violation or to recover damages as determined by the Court shall be assessable against and payable by any persons violating the terms contained herein. Section 2. Mergers. Upon a merge or consolidation of the Association with another corporation as provided in its Articles and By-Laws, its properties, rights and obligations may, by operation of law, be transferred to another surviving or consolidated association or corporation, or, alternatively, the properties, rights and obligations of another corporation may, by operation of law, be added to the properties, rights, and obligations of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated corporation may administer the covenants and restrictions established upon any other properties as one entity. No such merger or consolidation, -28- however, shall effect any revocation, change or additions to the covenants established by this Declaration within the Property, except as hereinabove provided. Section 3. Access. For the purpose solely of performing repairs and maintenance authorized by this Declaration, the Association, through its duly authorized agents or employees, shall have the right, after reasonable notice to the Owner (except in an emergency), to enter upon any Lot. In the event the Association authorized any sort of master cable or community television or data system, each Owner hereby authorizes access to his Lot upon reasonable notice for the purpose of installing the conduits and fixtures necessary to serve such Lot, without regard to whether the Owner then elects to subscribe to or use such system. Section 4. Emergency Access. For the purpose of performing . emergency repairs under this Article, or of taking emergency action to seal a Living Unit from weather or otherwise to prevent damage or destruction to any Lot or Living Unit, the Association, through its duly authorized agents or employees, shall have the right to enter upon any Lot or Living Unit at any time,-without notice, with such men and material as the Association deems necessary, to accomplish such emergency repairs or to take such emergency action. Section 5. covenants or shall in no full force and Severability. Invalidation of anyone of these restrictions by legislation, judgment or court order way affect any other provisions which shall remain in effect. Section 6. Duration and Amendment. The covenants and restrictions of this Declaration shall run with and bind the land, and shall inure to the benefit of and be enforceable by the Association or the Owner of any Lot subject to this Declaration, their respective personal representatives, heirs, successors and assigns, for a term of twenty (20) years from the date this Declaration is recorded, after which time the covenants ~nd restrictions shall be automatically renewed for successive periods of ten (10) years unless terminated by a statement recorded within the last ninety (90) days of such twenty (20) or ten (10) year periods signed by not less than ninety percent (90%) of the Owners and" by not less than fifty-one percent (51%) of the holders of first mortgages, counting one vote for each Lot covered by a first mortgage. : Except as elsewhere herein provided, this Declaration may be amended during the first twenty-year period by an instrument signed by not less than ninety percent (90%) of each class of the Owners and thereafter by an instrument signed by not less than seventy-five percent (75%) of the Owners. In addition, a particular amendment may require the consent of Declarant under Section 7 below, or of a proportion of first mortgagees under Section 8 below, or of the FHA under Article XV below. Notwithstanding the foregoing, however, Declarant shall have the right to amend this Declaration by recording an amendment executed -29- solely by it which recites that it is for the purpose of conforming to requirements or comments of FHA, until the happening of one of the following events, whichever occurs earliest: A. The the Federal Affairs; recording of such an amendment evidencing approval by Housing Administration or the Department of Veterans B. .On December 31, 1991; C. The recording of Declarant's waiver of this right. Any amendment to this Declaration shall be subject to review and approval by the City. The consent of the Owners may be obtained by a written agreement, or at a meeting of the Association duly held in accordance with the provisions of the By-Laws. Whenever such an amendment has been so approved, it shall be recorded with the appropriate recording office in the county where the Property is located, and shall not be effective until so recorded. Any officer of the Association shall have the power and authority to certify to such approval, and such certification shall be sufficient evidence of approval for all purposes, including recording. Section 7. Declarant's Joinder. In addition to the other requirements for amendment of this Declaration and the By-Laws contained herein, the written joinder and consent of the Declarant shall be required for any amendment of either the Declaration or By-Laws which shall abolish, diminish or restrict Declarant's rights hereunder to complete improvements, to maintain sales and management offices and models, to maintain signs and advertise the project, or to use easements through Common Areas for purposes of constructing improvements or marketing the project until the last conveyance of a Lot to an Owner other than Declarant. This right may be waived in whole or part at any time by recording a written waiver executed and acknowledged by Declarant. Section 8. Mortqaqee APproval. In addition to all other requirements set forth herein, unless at least seventy-five percent (75%) (or such higher percentage as is required by law or this Declaration) of the first mortgagees of the Lots or their assigns (based upon one vote for each first mortgage owned), have given their prior written approval, neither the Association nor the Owners shall be entitled to: A. Terminate the legal status of the project (except in accordance with procedures set forth in this Declaration and By-Laws in the event of amendment or termination made as a result of destruction, damage or condemnation); B. By act of omission, seek to abandon, partition, subdivide, encumber, sell or .transfer the Common Area (the granting of easements for public utilities or for other public purposes consistent with the intended use of the Common Area shall not be deemed such.a transfer); -30- C. Use hazard insurance proceeds for losses to any common property for other than the repair, replacement of reconstruction of such common property; D. By act or omission change, waive or abandon any scheme of regulations, or enforcement thereof, pertaining to the architectural design or the exterior appearance of Living Units or garages, . the exterior maintenance of Living Units or garages, the maintenance of the common property, party walls or common fences and driveways, or the upkeep of lawns and plantings. Section 9. Notices. Any notice required to be sent to any Member of the Association (or Owner) under the provisions of this Declaration shall be deemed to have been properly sent when mailed, postage prepaid, to the last known address of such Member appearing on the records of the Association at the time of such mailing. In -the case of multiple Owners of a Lot, notice to anyone of such Owners shall be deemed notice to all. Section 10. Captions. intended for convenience substantive effect. The Article and Section headings are only and shall- not be given any Section 11. Construction. In the event of an apparent conflict between this Declaration and the By-Laws, the provisions of this Declaration shall govern. The use of pronouns such as "his", "he" and "him" are for literary purposes and mean whenever applicable the plural and female forms. Section 12. Highway 7 Intersection and Commercial Development. Notice is hereby given to all Owners and prospective Owners that the City shall extend Old Market Road to State Highway 7 and construct a signalized intersection connecting Old Market Road to both the east and westbound traffic lanes of State Highway 7. Notice is further given that a substantial portion of the Property lying adjacent to and south of the right-of-way of State Highway 7, is intended to be developed for commercial use including, but not limited to, a gasoline sales, grocery sales and convenience store facility and a restaurant. Additional information regarding the extension of Old Market Road to State Highway 7 and future commercial development of the Property may be obtained by contacting the City. ARTICLE XV FHA APPROVAL So long as there is Class B membership, the following actions will require the prior written approval (or waiver of this requirement) by the FHA (or the affidavit of Declarant that as of the date of such amendment neither the project nor any part thereof had been submitted to, or had been given project approval by, the FHA): annexation of additional property, mergers and consolidations, mortgaging of Common. Area, dedication of Common Area, dissolution and amendment of this Declaration. -31- ARTICLE XVI ORDINANCES In addition to the provisions of this Declaration, all ordinances contained in the City Code of the City shall be binding on the Owners, including the rights given in said City Code to an Owner to apply for variances from said ordinances. In addition to complying with City Ordinances and/or approved variances therefrom, an Owner must comply with all of the covenants, conditions, restrictions and reservations set forth herein. IN WITNESS WHEREOF, the said TRIVESCO, a Minnesota partnership, by its partners, Steiner & Koppelman, Inc., a Minnesota corporation, Robert H. Mason, Inc., a Minnesota corporation, and Highland Properties, Inc., a Minnesota corporation, has caused this "document to be executed as of the day and year first above written. TRIVESCO By Steiner & Koppelman, Inc., Partner By Its By Robert H. Mason, Inc., Partner ~ Its By Highland properties, Inc., Partner By Its -32- STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) The foregoing instrument of the , of corporation, a partner of behalf of said partnership. STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) was acknowledged this day , 1991, by , Steiner & Koppelman, Inc., a Minnesota Trivesco, a Minnesota partnership, on Notary Public of the corporation, a partner of behalf of said partnership. instrument was acknowledged this day , 19 91, by , , of Robert H. Mason, Inc., a Minnesota Trivesco, a Minnesota partnership, on The foregoing STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) The foregoing instrument of the , of corporation, a partner of behalf of said partnership. THIS INSTRUMENT WAS DRAFTED BY: Vesely, Miller & Steiner 400 Norwest Bank Building 1011 First Street South Hopkins, Minnesota 55343 Notary Public was acknowledged this day , 19 91, by , Highland Properties, Inc., a Minnesota Trivesco, a Minnesota partnership, on Notary Public -33- .~ Third Draft - 6/14/91 DECLARATION OF RESTRICTIVE COVENANTS THIS DECLARATION is made this ____ day of , 1991, by Trivesco, a Minnesota general partnership ("Declarant"). RECITALS A. Declarant is the owner of real property located in the County of Hennepin, State of Minnesota, described as: Outlot A, Waterford 3rd Addition according to the recorded plat thereof (the "Real Property"). B. On May 28, 1991, the City Council of the City of Shorewood, Minnesota (the "City") approved- the final plat of Waterford 3rd Addition. As a condition of such plat approval, the City Council has required Declarant to execute and record this Declaration in order to impose certain restrictions on the use of the Real Property. C. Declarant has agreed to execute and record this Declaration for the purpose of satisfying the above condition of final plat approval. NOW, THEREFORE, in consideration of the foregoing recitals, Declarant hereby declares that all of the Real Property shall be held, transferred, leased, occupied and developed subject to the following restrictions: 1. Prior to construction of ,any building or structure on the Real Property, Declarant shall submit a signage plan to the City setting forth design specifications for all signs to be placed on the Real Property including wall, pylon and temporary signs. Pylon signs constructed on the Real Property may not exceed 20 feet in qfJ height or the maximum height of the building(s) constructed on the platted lot on which the sign is located, whichever is less. The City shall retain on file a copy of the signage plan submitted by Declarant and the requirements of said plan shall be incorporated into all Lease Agreements between Declarant and tenants of the Real Property. The signage plan shall be consistent with the provisions of the Waterford Design Framework Manual dated August, 1984 and the provisions of the Shorewood Zoning Code. 2. No merchandise, sales or display racks, sales or display equipment or appliances, soft drink vending machines or ice machines may be kept or located outside ~f any building or structure on the Real Property. Open and. outdoor storage, sales and display are prohibited. This restriction shall not apply to gasoline pumps or similar devices for dispensing petroleum products. 3. The hours of operation of the convenience grocery store and gasoline sales facility to be constructed on the Real Property shall be limited to between 6:00 a.m. and 12:00 midnight. 4. The hours of operation of the family restaurant to be constructed on the Real Property shall be limited to between 7:00 a.m. and 11:00 p.m. 5. The family restaurant to be constructed on the Real Property shall not be eligible to apply to the City for any type of liquor license. 6. All exterior lighting constructed or installed on the Real Property shall conform to the Waterford Design Framework Manual dated August, 1984. Prior to issuance of a Certificate of -2- Occupancy by the City for individual structures or buildings constructed on the Real Property, exterior lighting shall be tested for compliance with the Waterford Design Framework Manual. 7. Only one pump island of the gasoline sales facility may be illuminated after 10:00 p.m. 8. The fuel storage tank for the gasoline sales facility shall be of double-wall, fiberglass construction. 9. The restrictive covenants established by this Declaration shall apply to and bind Declarant and each and every owner of any part of the Real Property, and their respective successors and assigns, and shall operate as a covenant pas~ing with the title to the Real Property and any part thereof. Said restrictive covenants are imposed upon the Real Property as a servitude in favor of the City of Shorewood for its benefit only. 10. The City has approved the Real Property for development for both commercial and multi-family residential use. It is anticipated that the commercial and multi-family residential portions of the Real Property will each be developed in multiple stages. Declarant intends that only that portion of the Real Property that is finally platted and approved for commercial use, as evidenced by the filing of a final plat or replat for each stage of commercial development of the property, shall be subject to the provisions of this Declaration. Accordingly, individual platted lots comprising part of the Real Property, which lots are subsequently platted and approved for commercial use, shall become subject to the provisions of this Declaration only upon the filing of a final plat or replat for a commercial stage of the development -3- of Waterford, 3rd Addition which depicts and includes such lot or lots. Any part of the Real Property which is finally approved for residential use, as evidenced by the filing of a final plat or replat for each stage of residential development of the Real Property, shall not be subject to the provisions of this Declaration. Upon filing of a final plat or replat for each stage of residential development of Waterford, 3rd Addition, all of the real property included within such plat or replat shall . automatically be released from, and shall not be further subject to this Declaration or any of the restrictions contained herein without the filing of any release or other~imilar document. To the extent any of the provisions of this Paragraph 10 conflict or are inconsistent with any of the other provisions of this Declaration, the provisions of this paragraph shall control and supercede such inconsistent provisions. 11. The restrictive covenants established by this Declaration are perpetual in duration. Said restrictive covenants may, however, be terminated and released at any time, in whole or in part, by the City by means of a written release, in recordable form, duly executed by the City. The restrictive covenants established by this Declaration are for the exclusive benefit of the City and may be terminated and released by the City, in whole or in part, without the consent or approval of any owner of the Real Property or any part thereof. 12. The restrictive covenants established by this Declaration shall be enforceable solely and exclusively by the City of Shorewood, and shall be enforceable by injunctive relief, -4- prohibitive or mandatory, to prevent breach of or to enforce performance or observance of these restrictive covenants or by any other appropriate legal remedy. 13. Failure to enforce any of the restrictive covenants established by this Declaration in any particular instance shall in no event be deemed to be a waiver of the right to do so as to any subsequent violation. 14. Invalidation of any of the terms, covenants, restrictions and conditions of this Declaration, whether by Court Order or otherwise, shall in no way effect any of the other terms and conditions, which shall remain in full force and effect. IN WITNESS "WHEREOF, Declarant has caused this Declaration of Restrictive Covenants to be executed as of the date and year first above written. Trivesco By Steiner & Koppelman, Inc., Partner ~ Its By Robert H. Mason, Inc., Partner By Its -5- ,- STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) The foregoing instrument of the , of corporation, a partner of behalf of said partnership. STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) By Highland Properties, Inc., Partner By Its was acknowledged this day , 1991, by , Steiner & Koppelman, Inc., a Minnesota Trivesco, a Minnesota partnership, on Notary Public of the corporation, a partner of behalf of said partnership_ instrument was acknowledged this day , 1991, by , , of Robert H. Mason, Inc., a Minnesota Trivesco, a Minnesota partnership, on The foregoing STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) The foregoing instrument of the , of corporation, a partner of behalf of said partnership. Notary Public was acknowledged this day , 1991, by , Highland properties, Inc., a Minnesota Trivesco, a Minnesota partnership, on Notary Public -6- THIS INSTRUMENT WAS DRAFTED BY: Vesely, Miller & Steiner 400 Norwest Bank Building 1011 First Street South Hopkins, Minnesota 55343 -7- .. . ~ MAYOR Barb Brancel COUNCI L Kristi Stover Bob Gagne Rob Daugherty Daniel Lewis CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 FROM: James C. Hurm, City Administrator MEMO TO: Mayor and City Council DATE: June 19, 1991 RE: A Proposed Ordinance Allowing an Administrative Permit for Underground Sprinkler systems in the Public R.O.W. Several Council meetings back, Mike Beuchlin from Summit Avenue, requested the City Council to allow him to install a sprinkling system in the City r. o. w. . He returned before the end of the Council meeting and asked the Council to consider Changing the ordinance to allow such requests. Since then he has called my office asking if the issue was going to be taken up. I advised him we could review that question at the staff level and off.er an option to the City Council. Since then Ron Leaf on Near Mountain Boulevard has made a similiar request. That application is on this Council Agenda. The Public Works Director Don Zdrazil states he feels that there are a number of private systems already in the public r.o.w.. After discussing this issue at a number of staff meetings we have proposed language for an ordinance which would allow an Administrative Permit for sprinklers in the r.o.w.. Such a permit would require a fee to be paid to the City and the waiver should be recorded at the offices of the Country Recorder or Register Title before the permit is issued. There does seem to be an increasing number of requests for sprinklers in the r.o.w.. The staff feels that if the Council should wish to consider officially allowing sprinkler systems in the r.o.w. the proposed ordinance would be the best route to go. We should publish the ordinance, not only in the newspapers but in newsletters informing those who have sprinklers in the r.o.w. that they must come in to the City to acquire a permit. all A Residential Community on Lake Minnetonka's South Shore 1:( . 6/19/91 ORDINANCE NO. AN ORDINANCE AMENDING SECTION 901.02 OF THE SHOREWOOD CITY CODE PROVIDING FOR THE LOCATION OF UNDERGROUND SPRINKLER SYSTEMS IN THE PUBLIC RIGHT-OF-WAY THE CITY COUNCIL OF THE CITY OF SHOREWOOD, MINNESOTA, ORDAINS: Section 1: Section 901.02, Subd. 2, of the Shorewood City Code is hereby amended to read as follows: "Subd. 2. Permit to Encroach: a. Permit Required: The right to use publicly-owned rights-of-way within the City for any private use or purpose other than the primary purpose of public travel, whether such use constitutes a substantial or incidental use, may be acquired only through permit granted pursuant to this Section. b. Application for Permit: Any person may apply to the City Council for a permit to keep or maintain private property within a publicly-owned right-of-way. T he application shall be in writing and must describe with specificity the private property and right-of-way involved and the nature and extent of the requested encroachment. c. Issuance of Permit, Conditions: The City Council may grant the permit if it is determined that the use applied for is incidental and not inconsistent with safe and efficient public use. However, no permit will be issued until the applicant has agreed in writing to waive any right to recover from the City for damage occurring to the property located within the right-of-way which may result from the performance of the City or its agents of its public duties as required by law. d. Special Permit for Underqround Sprinkler Systems: The Buildinq Official may approve an application for a Special Permit for the installation of an underqround sprinkler system within the public riqht-of-way, providinq such 1:<- . . installation is not inconsistent with the public use of the riqht-of-way. In such application, in addition to the information required by paraqraph b. above, the applicant shall provide a leqal description of the private property served by the sprinkler system and aqree in writinq to waive all riqhts to recover from the city for damaqe occurrinq to the sprinkler system as a result of the City's performance of its public duties within the riqht-of-way. T he applicant shall further provide a surveyor plat drawinq showinq the location of the sprinklinq system within the riqht-of-way and pay the S pedal Permit fee as may be prescribed by ordinance passed by the City Council from time to time. Said Special Permit shall become effective upon its beinq duly recorded at the offices of the County Recorder or Reqistrar of Titles and the applicant's providinq to the City satisfactory proof thereof. ~ Revocation of Permit: The City reserves the right to revoke any permit granted under this Section as may be required by the public interest." Section 2. This 0 rdinance shall be in full force and effect from and after its passage and publication. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD, MINNESOTA, this day of , 1991. Barbara J. Brancel, Mayor ATTEST: James C. H urm City Administrator/Clerk