COMMON INTEREST COMMUNITY NO. 1077
Planned Community
BOUNDARY CREEK SIXTH
AMENDED AND RESTATED DECLARATION
This Amended and Restated Declaration (the "Declaration") of Boundary Creek Sixth is made, effective on the date of recording hereof, by the Boundary Creek Sixth Association, a Minnesota nonprofit corporation (the "Association"), with the approval of the required number of Owners (defined herein) of the lots (defined herein as Units). *This Declaration is made for the purpose of subjecting the Property (defined herein) to Minnesota Statutes Chapter 515B, known as the Minnesota Common Interest Ownership Act (the "Act"), as a planned community.
WITNESSETH:
WHEREAS, there is recorded in the office of the Country Recorder in and for Hennepin County, Minnesota that certain Declaration of Covenants, Conditions and Restrictions for Boundary Creek Sixth as Document No. 4215158, as amended and/or supplemented by Document Nos. 4252l22 and 4312425 (collectively the "Existing Declaration"), and
WHEREAS, the Existing Declaration established a plan for the use, operation, maintenance and preservation of the real estate described in Exhibit A attached hereto (the "Prope1'ty"), and
WHEREAS; the Association and the Owners desire to provide for the preservation of the residential character, value, architectural style and architectural. uniformity of the Property, and for the maintenance of open spaces and other common facilities, and ,
WHEREAS, the Association and the Owners desire to amend and restate the Existing Declaration in accordance herewith, and to subject the Property to the Act, and to the covenants, restrictions, easements, charges and liens set forth herein, pursuant to the requirements and procedures prescribed by Section 5i5B.1-102(d) of the Act, and
WHEREAS, the Property is not subject to an ordinance referred to in Section of the Act, governing conversions to common interest ownership, and is not subject to a master association as defined in the Act.
NOW THEREFORE, the Association, with the written approval of at least seventy-five percent of the Owners (one vote per Lot), hereby declares that (i) this Declaration shall constitute covenants to run with the Property, and that the Properly and all real estate that may be annexed thereto shall be subject to the Act as a planned community, and shall be held, transferred, sold, conveyed, used and occupied subject to the covenants, restrictions, easements, charges and liens set forth herein, all of which shall be binding upon all Persons owning or acquiring any right, title or interest therein and their heirs, personal representatives, successors and assigns; and (ii) the Existing Declaration shall be revoked and superseded in its entirety by this Declaration upon its recording.
The following words, when used in the Governing Documents shall have the following meanings (unless the context indicates otherwise):
1.1 "Act" means Minnesota Statutes Chapter 515B, the Minnesota Common Interest Ownership Act.
1.2 "Association" means the Boundary Creek Sixth Association, a nonprofit corporation created under Chapter 317A of the laws of the state of Minnesota, Whose members consist of all Owners as defined herein.
1.3 "Assessments" means all assessments levied by the Association pursuant to Section 6 of the this Declaration, including, without limitation, annual assessments, special assessments and limited assessments.
1.4 "Board" means the Board of Directors of the Association as provided for in the Bylaws.
1.5 "Bylaws" means the Amended and Restated Bylaws governing the operation of the Association, as amended from time to time,
1.6 "Common Elements" means all parts of the Property except the Units, including all improvements thereon, owned by the Association for the common benefit of the Owners and Occupants. The Common Elements owned by the Association as of the date of this Declaration are legally described in Exhibit B attached hereto.
1 .7 "Common Expenses" means expenditures made or liabilities incurred by or on behalf of the Association and incident to its operation, including Assessments and items specifically otherwise identified as Common Expenses in the Declaration or Bylaws.
1.8 "Dwelling" means a building, or a part of a building if there is more than one Dwelling per building, occupying one or more floors, designed and intended for occupancy as a single family residence, and located Within the boundaries of a Unit. The Dwelling includes, without limitation, any garage attached thereto or otherwise included within the boundaries of the Unit within which the Dwelling is located.
1.9 "Eligible Mortgagee" means any Person owning a mortgage on any Unit, (i) which mortgage is first in priority upon foreclosure to all other mortgages that encumber such Unit, and (ii) which mortgage holder has requested the Association, in writing, to notify it regarding any proposed action which requires approval by a specified percentage of Eligible Mortgagees.
1.10 "Governing Documents" means this Declaration, and the Articles of Incorporation and Bylaws of the Association, as amended from time to time, all of which shall govern the use and operation of the Property.
1.11 “Limited Common Elements” means a portion of the Common Elements allocated by the Declaration or by operation of Section 5 1 513.2-102(d) or (f) of the Act for the exclusive use of one or more, but fewer than all, of the Units.
1.12 "Member" means a Person who is a member of the Association by reason of being an Owner as defined in this Declaration. The words "Owner" and "Member" may be used interchangeably in the Governing Documents.
1.13 "Occupant" means any person or persons, other than an Owner, in possession of or residing in a Unit.
1.14 "Owner" means a Person who owns a Unit, but excluding contract for deed vendors, mortgagees and other secured panties within the meaning of Section 5 15B. 1- 1 03 (30) of the Act. The term "Owner" includes, without limitation, contract for deed vendees and holders of a life estate.
1.15 "Party Wall" means the shared interior wall between two Dwellings.
1.16 "Person" means a natural individual, corporation, limited liability company, partnership, limited liability partnership, trustee, other or legal entity capable of holding title to real property.
1.17 "Plat" means the plat depicting the Property pursuant to the requirements of the Act, including any amended or supplemental Plat, or replat, recorded from time to time in accordance with the Act. The recorded plat(s) for the Property existing as of the date of this Declaration, as amended, shall constitute the Plat(s).
1.18 "Property" means collectively all of the real property submitted to this Declaration, including the Dwellings and all other improvements located thereon, now or in the future. The Property as of the date of this Declaration is legally described in Exhibit A attached hereto.
1.19 "Rules and Regulations" means the Rules and Regulations of the Association as approved from time to time pursuant to Section 5,6.
1.20 "Unit" means any platted lot upon which a Dwelling is located, as shown on the Plat, including all improvements thereon, but excluding the Common Elements.
Any terms used in the Governing Documents, and defined in the Act and not in this Section, shall have the meaning defined in the Act.
2.1 Units. There are ninety-nine Units, all of which are restricted to residential use. Each Unit constitutes a separate parcel of real estate. No additional Units may be created by the subdivision or conversion of Units pursuant to Section 515B.2-1 12 of the Act. The Unit identifiers and locations of the Units are as shown on the Plat, which is incorporated herein by reference, and a schedule of Units is set forth on Exhibit A. The Unit identifier for a Unit shall be its lot and block numbers and the subdivision name.
2.2 Unit Boundaries. The front, rear and side boundaries of each Unit shall be the boundary lines of the platted lot upon which the Dwelling is located or intended to be located, as shown on the Plat. The Units shall have no upper or lower boundaries. Subject to this Section 2 and Section 3.2., all spaces, structures, and other improvements within the boundaries of a Unit are a part of the Unit.
2.3 Access Easements. Each Unit is the beneficiary of an easement for access to a public street or highway on or across the Common Elements, subject to any restrictions set forth in the Declaration.
2.4 Use and Enjoyment Each Unit is the beneficiary of easements for non-exclusive use and enjoyment on and across the Common Elements, and for exclusive use and enjoyment of any deck, patio or porch allocated to the Unit as a Limited Common Element, subject to any restrictions set forth in the Declaration.
2.5 Utility and Maintenance Easements. Each Unit is subject to and shall be the beneficiary of easements for all services and utilities servicing the Unit and the Common Elements, and for maintenance, repair and replacement, as described in Section 13.
2.6 Encroachment Easements. Each Unit is subject to and shall be the beneficiary of the easements for encroachments as described in Section 13.
2.7 Structural Support Easements. Each Unit shall be Subject to and the beneficiary of an easement for structural support in all Walls, columns, joists, girders and other structural components located in another Unit in a Dwelling and contributing to the support of the Dwelling.
2.8 Recorded Easements. The Property is subject to easements as may be recorded against it or otherwise shown on the Plat.
2.9 Easements are Appurtenant. All easements and similar rights burdening or benefitting a Unit or any other part of the Property run with the land, and shall be permanent, subject only to termination in accordance with the Act or the terms of the easement. Any recorded easement benefitting or burdening the Property shall be construed in a manner consistent With, and not in conflict with, the easements created by the Declaration.
2.10 Impairment Prohibited. No person shall materially restrict or impair any easement benefitting or burdening the Property, or any equipment or improvements relating to the easement, subject to the Declaration and the right of the Association to impose reasonable Rules and Regulations governing the use of the Property.
2.11 Benefit of Easements. Subject to Section 7.6, all easements benefitting a Unit shall benefit the Owners and Occupants of the Unit, and their families and guests.
3.1 Common Elements. The Common Elements and their characteristics are as follows:
3.1.1 All of the Property not included within the Units constitutes Common Elements. The Common Elements include those parts of the Property described in Exhibit B attached hereto or designated as Common Elements on the Plat or in the Act. The Common Elements are owned by the Association for the benefit of the Owners and Occupants.
3.1.2 The Common Elements shall be subject to appurtenant easements for services, public and private utilities, access, use and enjoyment in favor of each Unit and its Owners and Occupants; subject to (1) the specific rights of Owners and Occupants in easements for decks and patios designed to serve exclusively their Units and in Limited Common Elements appurtenant to their Units and (ii) the right of the Association to establish reasonable Rules and Regulations governing the use of the Property.
3. 1 .3 Except as provided to the contrary in this Declaration, all maintenance, repair, replacement, management and operation of the Common Elements shall be the responsibility of the Association.
3. 1 .4 Common Expenses for the maintenance, repair, replacement, management and operation of the Common Elements shall be assessed and collected from the Owners in accordance with Section 6.
3.2 Limited Common Elements. The Limited Common Elements are those parts of the Common Elements reserved for the exclusive use of the Owners and Occupants of the Units to which allocated. The rights to the use and enjoyment of the Limited Common Elements are automatically conveyed with the conveyance of such Units. The Limited Common Elements are described and allocated to the Units as follows:
3.2.1 Those items or areas designed as Limited Common Elements by the Act are allocated as indicated therein.
3 .2.2 Chutes, flues, ducts, pipes, wires, conduit or other utility installations, bearing walls, bearing columns, or any other components or fixtures lying partially Within and partially outside the boundaries of a Unit, and serving only that Unit, are allocated to the Unit they serve. Any portion of such installations serving or affecting the function of more than one Unit or any portion of the Common Elements is a part of the Common Elements, but is not a Limited Common Element.
3.2.3 Improvements such as decks, balconies, porches, patios, shutters, awnings, window boxes, doorsteps, stoops, perimeter doors and windows, and air conditioning equipment constructed as part of the original construction to serve a single Unit, and replacements and modifications thereof authorized pursuant to Section 8, if located outside the Unit's boundaries, are Limited Common Elements allocated exclusively to that Unit.
3.2.4 Heating, Ventilating or air conditioning equipment serving only a certain Unit or Units, and located Wholly or partially outside the Unit or Unit's boundaries, are Limited Common Elements allocated to the Unit or Units served by such equipment.
3.3 Annexation of Additional Property. Other real property may be annexed to the Property, and subjected to this Declaration as additional Units, Common Elements, Limited Common Elements, or any combination thereof, by the vote of Owners of Units to which are allocated at least sixty-seven percent of the votes in the Association. Upon such approval, the Association shall be authorized to execute an amendment to the Declaration and Plat, if required, and all other documents necessary to complete the annexation of the other real property to the Property, on behalf of all Owners, secured parties and any other Persons holding an interest in the Property, and to take all other actions necessary to complete such annexation. If additional Units are added, the voting rights and common expense obligations shall be reallocated among all Units in accordance with the formula set forth in Section 4.2.
Membership in the Association, and the allocation to each Unit of a portion of the votes in the Association and a portion of the Common Expenses of the Association shall be governed by the following provisions:
4.1 Membership. Each Owner shall be a member of the Association solely by virtue of Unit ownership, and the membership shall be automatically transferred with the conveyance of the Owner's interest in the Unit. The Owner's membership shall automatically terminate when the Owner's ownership terminates. When more than one Person is an Owner of a Unit, all such Persons shall be members of the Association, but multiple ownership of a Unit shall not increase the voting rights allocated to such Unit nor authorize the division of the voting rights.
4.2 Voting rights and Common Expense. Voting rights and Common Expense obligations are allocated equally among the Units, except that other allocations of Assessments shall be permitted as provided in Sections 6.3 and 6.4. A
4.3 Appurtenant Rights and Obligations. The ownership of a Unit shall include the voting rights and Common Expense obligations described in Section 4.2. Said rights and obligations, and the title to the Units, shall not be separated nor conveyed separately. Any conveyance, encumbrance, judicial sale or other transfer of any interest in a Unit, is separate from the title to the Unit, shall be void. The allocation of the rights and obligations described in this Section 4 may not be changed, except in accordance with the Governing Documents and the Act.
4.4 Authority to Vote. The Owner, or some natural person designated to act as proxy on behalf of the Owner, and who needs not be an Owner, may east the vote allocated to such Owner's Unit at meetings of the Association; provided, that if there are multiple Owners of a Unit, only the Owner or other Person designated pursuant to the provisions of the Bylaws may cast such vote. The voting lights of Owners are more fully described in Section 3 of the Bylaws.
The administration and operation of the Association and the Property, including but not limited to the acts required of the Association, shall be governed by the following provisions:
5.1 General. The operation and administration of the Association and the Property shall be governed by the Governing Documents and the Act. The Association shall, subject to the rights of the Owners set forth in the Governing Documents and the Act, be responsible for the operation, management and control of the Property. The Association shall have all powers described in the Governing Documents, the Act and the statute under which the Association in incorporated. All power and authority of the Association shall be vested in the Board, unless action or approval by the individual Owners is specifically required by the Governing Documents or the Act. All references to the Association shall mean the Association acting through the Board unless specifically stated to the contrary.
5.2 Operational Purposes. The Association shall operate and manage the Property for the purposes of (i) administering and enforcing the covenants, restrictions, easements, charges and liens set forth in the Governing Documents and the Rules and Regulations (ii) improving, maintaining, repairing and replacing those portions of the Property for which it is responsible and (iii) preserving the value and architectural uniformity and character of the Property.
5.3 Binding Effect of Actions. All agreements and determinations made by the Association in accordance with the powers and voting rights established by the Governing Documents or the Act shall be binding upon all Owners and Occupants, and their lessees, guests, heirs, personal representatives, successors and assigns, and all secured parties as defined in the Act.
5.4 Bylaws. The Association shall have Bylaws. The Bylaws, and any amendments thereto, govern the operation and administration of the Association, shall be binding on all Owners and Occupants, and need not be recorded.
5.5 Management. The Board may delegate to a manager or managing agent the management duties imposed upon the Association's officers and directors by the Governing Documents and the Act; provided, however, that such delegation shall not relieve the officers and directors of the ultimate responsibility for the performance of their duties as prescribed by the Governing Documents and by law.
5.6 Rules and Regulations. The Board shall have exclusive authority to approve and implement such reasonable Rules and Regulations as it deems necessary from time to time for the purpose of operating and administering the Association and regulating the use of the Property; provided,`that the Rules and Regulations must be reasonable, lawful and consistent with the governing documents and the Act. The inclusion in other parts of the Governing Documents of authority to approve Rules and Regulations shall be deemed to be in furtherance, and not in limitation, of the authority granted by this Section. New or amended Rules and Regulations shall be effective only after reasonable notice thereof has been given to the Owners.
5.7 Association Assets; Surplus Funds. All funds and real or personal property acquired by the Association shall be held and used for the benefit of the Owners for the purposes stated in the Governing Documents. Surplus funds remaining after payment of or provision for Common Expenses and reserves shall be credited against future Assessments or added to reserves, as determined by the Board.
5.8 Resale Disclosure Certificates. Pursuant to Section 5 l5B.4-107 of the Act, in the event of a resale of a Unit by a Owner, that Owner shall furnish to the purchaser a resale disclosure certificate containing the information required by Section 515B.4-l07(b) of the Act. Pursuant to Section O7(d) of the Act, the Association, Within ten days after a request by an Owner or the Owner’s authorized representative, shall furnish the resale disclosure certificate. The Association may charge a reasonable fee for furnishing the resale disclosure certificate and any documents related thereto.
6.1 General. Assessments shall be determined and assessed against the Units by the Board, in its discretion; subject to the requirements and procedures set in this Section 6, and the requirements of the Bylaws. Assessments shall include annual Assessments under Section 6,2, and may include special Assessments under Section 6.3 and limited Assessments under Section 6.4. Annual and special Assessments shall be allocated among the Units in accordance with the allocation formula set forth in Section 4.2. Limited Assessments under Section 6.4 shall be allocated to Units as set forth in that Section.
6.2 Annual Assessments. Annual Assessments shall be established and levied by the Board. Each annual Assessment shall cover all of the anticipated Common Expenses of the Association for that year which are to be shared by all Units in accordance with the allocation set forth in Section 4.2. Annual Assessments shall be payable in equal monthly installments. Annual Assessments shall provide, among other things, for an adequate reserve fund for the maintenance, repair and replacement of the Common Elements and those parts of the Units for which the Association is responsible. Except for the variations authorized by Section 6.4, and except for premiums on insurance carried by the Association, the increase in the annual. Assessment for any fiscal year shall not exceed fifteen percent of the previous year’s annual Assessment unless the increase is approved by the vote of at least seventy-five percent of those Owners voting, in person or by proxy, at a meeting called for that purpose, or voting by mail. Notice of the meeting or mail vote shall be sent to all Owners not less than twenty-one days nor more than thirty days in advance of the meeting or date for the return of the mail ballot, as applicable. V
6.3 Special Assessments. In addition to annual Assessments, and subject to the limitations set forth hereafter, the Board may levy in any Assessment year a special Assessment against all Units equally, or substantially in proportion to the cost per Unit if (i) the costs relate to the maintenance, repair or replacement of Units and (ii) there are material disparities in such costs per Unit. Among other things, special Assessments shall be used for the purpose of defraying in Whole or in part (i) the cost of any unforeseen and unbudgeted Common Expense, (ii) general or specific reserves for maintenance, repair or replacement, and (iii) the maintenance, repair or replacement of any part of the Property, and any fixtures or other property related thereto.
6.4 Limited Assessments. In addition to annual Assessments and special Assessments, the Board may, at its discretion, levy and allocate limited Assessments among only certain Units in accordance with the following requirements and procedures:
6.4.1 Subject to Section 9, any Assessment associated with the maintenance, repair, or replacement of a Limited Common Element shall be assessed exclusively against the Unit or Units to which that Limited Common Element is assigned, equally or on such other fair basis the Board shall determine.
6.4.2 Subject to Section 9, any Assessment or portion thereof benefitting fewer than all of the Units shall be assessed exclusively against the Unit or Units benefitted, equally, according to the cost for each Unit, or on such other fair basis that the Board shall determine.
6.4.3 The costs of property insurance under Section 11.1.1 shall be assessed equally, or substantially in proportion to the actual cost of such insurance per Unit, and the costs of common utilities may be assessed equally among all Units or groups of Units, or in proportion to usage.
6.4.4 Reasonable attorneys' fees and other costs incurred by the Association in connection with (i) the collection of Assessments and (ii) the enforcement of the Governing Documents, the Act, or the Rules and Regulations, against an Owner or Occupant or their guests, may be assessed against the Owner's Unit.6.4.5 Late charges, fines and interest may be assessed as provided in Section 13.
6.4.6 Assessments levied under Section 515B.3-1 l6(a) of the Act to pay a judgment against the Association may be levied only against the Units existing at the time the judgment was entered, in proportion to their Common Expense liabilities.
6.4.7 any damage to the Common Elements or another Unit is caused by the act or omission of any Owner or Occupant, or their guests, the Association may assess the costs of repairing the damage, or any increase in insurance rates directly attributable to the actor omission, exclusively against the Owner's Unit to the extent that the damage is not covered by insurance.
6.4.8 If any Assessment or installment of an Assessment becomes more than thirty days past due, then the Association may, upon at least ten days' written notice to the Owner, declare the entire amount of the Assessment immediately due and payable in full.
6.4.9 If Common Expense liabilities are reallocated for any purpose authorized by the Act, Assessments and any installment thereof not yet due shall be recalculated in accordance with the reallocated Common Expense liabilities.Assessments levied under Sections 6.4.1 through 6.4.7 may, at the B0ard's discretion, be assessed as a part of, or in addition to, the other Assessments levied under Section 6.
6.5 Liability of Owners for Assessments. The obligation of an Owner to pay Assessments with respect to the Owner's Unit shall commence at the time that the owner takes title to the Unit. The Owner at the time an Assessment is payable with respect to the Unit is personally liable for the share of the Common Expenses assessed against such Unit. Personal liability for Assessments shall be prorated where different owners own a Unit during the same year. The Owners’ liability is joint and several Where there are multiple Owners of the Unit. The liability is absolute and unconditional. No Owner is exempt from liability for payment of Assessments by right of set-off, by waiver of use or enjoyment of any part of the Property, by absence from or abandonment of the Unit, by the waiver of any other rights, by reason of any claim against the Association or its officers, directors or agents, or by reason of the Association's failure to fulfill any duties under the Governing Documents or the Act.
6.6 Assessment Lien. The Association has a lien on a Unit for any Assessment levied against that Unit from the time the Assessment becomes due. If an Assessment is payable in installments, the full amount of the Assessment is a lien from the time the installment thereof becomes due. Fees, charges, late charges, fines and interest charges imposed by the Association as authorized by Section 5 1 513.3-102(a)(10), (11) and (12) of the Act are liens, and are enforceable as Assessments, under this Section. Recording of the Declaration constitutes record notice and perfection of any lien under this Section, and no further recordation of any notice of or claim for the lien is required.
6.7 Foreclosure of Lien; Remedies. A lien for Assessments may be foreclosed against a Unit under the laws of the state of Minnesota (i) by action, or (ii) by advertisement. The Association shall have a power of sale to foreclose the lien in a like manner as a mortgage containing a power of sale. The Association, or its authorized representative, shall have the power to bid in at the foreclosure sale and to acquire, hold, lease, mortgage and convey any Unit so acquired. The Owner and any other Person claiming an interest in the Unit, by the acceptance or assertion of any interest in the Unit, grants to the Association a power of sale and full authority to accomplish the foreclosure. The Association shall, in addition to its foreclosure remedies, have the right to pursue any other remedy at law or in equity against the Owner who fails to pay any Assessment or charge against the Unit.
6.8 Lien Priority; Foreclosure. A lien for Assessments is prior to all other liens and encumbrances on a Unit except (i) liens and encumbrances recorded before the Declaration, (ii) any first mortgage on the Unit, and (iii) liens for real estate taxes and other governmental Assessments or charges against the Unit. Notwithstanding the foregoing, if a first mortgage on a Unit is foreclosed, the first mortgage was recorded on or after the date of recording of this Declaration, and no Owner redeems during the Owner's period of redemption provided by Minnesota Statutes Chapters 580, 581, or 582, then the holder ofthe Sheriffs certificate of sale from the foreclosure of the first mortgage shall take title to the Unit subject to the Association’s lien against the Unit for unpaid Assessments levied pursuant to Sections 515B.3-115(a), (e)(1) to (3), (f), and (i) of the Act which became due, Without acceleration, during the six months immediately preceding the first day following the end of the Owner's period of redemption.
6.9 Voluntary Conveyances; Statement of Assessments. In a voluntary conveyance of a Unit the buyer shall not be personally liable for any unpaid Assessments and other charges made by the Association against the seller or the seller's Unit prior to the time of conveyance to the buyer, unless expressly assumed by the buyer. However, the lien of such Assessments shall remain against the Unit until released. Any seller or buyer shall be entitled to a statement, in recordable form, from the Association setting forth the amount of the unpaid Assessments against the Unit, including all Assessments payable in the Associations current fiscal year, which statement shall be binding on the Association, seller and buyer.
6.10 Governmental Assessments. If a governmental assessment or other charge is levied against any Units or the Common Elements for improvements to roadways, utilities or other infrastructure improvements serving the Property, the Association shall have authority, but shall not be obligated, to allocate and levy such assessments or charges equally against all Units, notwithstanding the fact that the levy made by the municipality or other governmental authority affects only certain of the Units or the Common Elements.
All Owners and Occupants, and all secured parties, by their acceptance or assertion of an interest in the Property, or by their occupancy of a Unit, covenant and agree that, in addition to any other restrictions which may be imposed by the Act or the Governing Documents, the occupancy, use, operation, alienation and conveyance of the Property shall be subject to the following restrictions:
7.1 General. The Property shall be owned, conveyed, encumbered, leased, used and occupied subject to the Governing Documents and the Act, as amended from time to time. All covenants, restrictions and obligations set forth in the Governing Documents are in furtherance of a plan for the Property, and shall run with the Property and be a burden and benefit to all Owners and Occupants and to any other Person acquiring or owning an interest in the Property, their heirs, personal representatives, successors and assigns.
7.2 Subdivision Prohibited. Except as permitted by the Act, no part of the Common Elements may be subdivided or partitioned without the prior unanimous written approval of the Owners and secured parties holding first mortgages on the Units.
7.3 Residential Use. The Units shall be used by Owners and Occupants and their guests exclusively as private, single family residential Units, and not for transient, hotel, commercial, business nor other non-residential purposes, except as provided in Section 7.4.
7.4 Business Use Restricted. No business, trade, occupation or profession of any kind, whether carried on for profit or otherwise, shall be conducted, maintained or permitted in any Unit or the Common Elements, except as follows:
7.4.1 An Owner or Occupant residing in a Unit may keep and maintain his or her business or professional records in such Unit and handle matters relating to such business by telecommunications or correspondence therefrom; provided, that such uses (i) are incidental to the residential use, (ii) do not involve physical alteration of the Unit, (iii) are permitted by and comply with all governmental laws, ordinances and regulations, (iv) do not involve any observable business activity such as signs, advertising displays, regular deliveries, or frequent visitation to or use of the Unit, by customers, employees or vendors, and (v) do not involve disturbing noise, air pollution, safety hazards or increased insurance risk.
7.4.2 The Association may maintain offices on the Property for management and related purposes.
7.5 Leasing. Leasing of Units shall be allowed, subject to reasonable regulation by the Association, and subject to the following conditions: (i) no Unit shall be leased for transient or hotel purposes, (ii) except for a first mortgagee holding title to a Unit following foreclosure or deed in lieu of foreclosure, no Unit may be leased for a term of less than six months unless approved in advance by the Board, (iii) no Unit may be subleased, (iv) a Unit must be leased in its entirety (not by room), (v) all leases shall be in writing, and (vi) all leases shall provide that they are Subject to the Governing Documents, the Rules and Regulations and the Act, and that any failure of the lessee to comply with the terms of such documents shall be a default under the lease. Any lease of a Unit (except for occupancy by guests with the consent of the Owner) for a period of less than thirty days, or any occupancy which includes services customarily furnished to hotel guests, shall be presumed to be for transient purposes. The Association shall be entitled to a copy of the lease promptly upon receipt. The Association may impose such reasonable Rules and Regulations as may be necessary to implement procedures for the leasing of Units.
7.6 Delegation of Use. An Owner may delegate, in accordance with the Governing Documents, the Owner's right of use and enjoyment of the Unit to Persons living in the Unit pursuant to a legal right of possession; provided, that such Persons shall be subject to the Governing Documents and the Rules and Regulations. If lessees, or other Persons other than the Owner or the Owner's family, have been given the legal right to possess the Owner's Unit, then those Persons shall have the right to use any common recreational facilities, parking, storage and other amenities on the Property in lieu of the Owner and the Owner's family.
7.7 Parking. Garages and other parking areas on the Property shall be used only for parking of vehicles owned or leased by Owners and Occupants and their guests, and such other incidental uses as may be authorized in writing by the Association. Garages shall not be converted to other uses or used for storage or other purposes which would prevent the parking of at least two automobiles or similar vehicles in the garages. A maximum of two automobiles or similar vehicles may be parked in each driveway. Subject to the provisions of this Section 7.7, the use of garages, driveways and other parking areas on the Property, and the types of vehicles and personal property permitted thereon, shall be subject to regulation by the Association, including without limitation the right of the Association to tow illegally parked vehicles or to remove unauthorized personal property.
7.8 Animals. The Board shall have the exclusive authority to regulate, by Rules and Regulations, the keeping of animals on the Property; provided, that the Board may only permit, and shall not prohibit, dogs, cats, small birds, small fish, and other animals generally recognized as common domestic house pets (collectively referred to as "pets"). The word "animal" shall be construed in its broadest sense and shall include all living creatures except humans. The following conditions shall apply to all pets allowed by the Board to be kept on the Property:
7.8.1 Rules and Regulations may be adopted by the Association to regulate pets on the Property including, but not limited to, the type and number of pets allowed to be kept in a Unit.
7.8.2 Pets shall be kept solely as common domestic house pets and/or as statutorily authorized "service animals" used by handicapped persons, and not for any other purpose. No animal of any kind shall be raised or bred, or kept for business or commercial purposes by any Person upon any part of the Property.
7.8.3 Pets shall not be allowed to make an unreasonable amount of noise, nor to become a nuisance or a threat to the safety of Owners, Occupants and their guests.
7.8.4 Pets shall be housed only within the Dwellings. No structure, fence or enclosure for the care, housing or confinement of any pet shall be constructed or maintained on any part of the Property, except as approved pursuant to Section 8.
7.8.5 Pets shall be under control at all times when outside the Unit.
7.8.6 The Board shall have authority to determine in its sole and absolute discretion whether a particular pet shall be permanently removed from the Property based upon the pet’s behavior or the failure of the pet’s owner to comply with this Section 7, applicable governmental restrictions, laws or ordinances, or any additional restrictions approved by the Board; provided, that such removal shall be subject to Section 14.3.
7.8.7 An Owner shall be liable to the Association for the cost of repair of any damage to the Property, or the expenses associated with any personal injury, caused by animals kept within that Owner's Unit.
7.8.8 Any fine, or costs for repair or injury, imposed upon an Owner for a failure to comply with any pet restrictions shall be an Assessment against the Owner's Unit.
7.9 Signs and Personal Property. The erection, keeping or use of signs and personal property on the exterior of a Dwelling, or other parts of aUnit visible from the exterior, shall be subject to review and regulation as provided in Éection 8.
7.10 Quiet Enjoyment; Interference Prohibited. Owners and Occupants and their guests shall have a right of quiet enjoyment in their respective Units, and shall use the Property in such a manner as will not cause a disturbance or nuisance, nor unduly restrict, interfere with or impede the use of the Property by other Owners and Occupants and their guests.
7.11l Conformance with Law. No use shall be made of the Property which would violate any then existing municipal codes or ordinances, or state or federal laws, nor shall any act or use be permitted which could cause waste to the Property, cause a material increase in insurance rates on the Property, or otherwise cause any unusual liability, health or safety risk, or expense, for the Association or any Owner or Occupant.
7.12 Alterations. Alterations, changes, improvements, repairs or replacements of any type, temporary or permanent, structural, decorative or otherwise (collectively referred to as "alterations") shall not be made, nor caused or allowed to be made, by any Owner or Occupant, or their guests, in any part of the Common Elements, or in any part of the Unit which affects the Common Elements or another Unit, or which is visible from the exterior of the Unit, without the prior Written authorization of the Board, or a committee appointed by it, as provided in Section 8. The Board, or the appointed committee if so authorized by the Board, shall have authority to establish reasonable criteria and requirements for alterations, and shall be the sole judge of whether the criteria are satisfied.
7.13 Time Shares Prohibited. The time share form of ownership, or any comparable form of lease, occupancy rights or ownership which has the effect of dividing the ownership or occupancy of a Unit into separate time or use periods, is prohibited.
7. 14 Access to Units. In case of emergency, the exterior portions of the Units and Limited Common Elements are subject to entry, without notice and at any time, by an officer or member of the Board of the Association, by the Association's management agents or by any public safety personnel. Such entry is also authorized for maintenance purposes under the conditions prescribed in Section 9 and for enforcement purposes under Section 16.
8.1 Restrictions on Alterations. One of the purposes of this Declaration is to ensure that those parts of the Units which are visible from the exterior be kept architecturally attractive and uniform in appearance. Therefore, except as set forth in Section 8.5, the following restrictions and requirements shall apply to alterations on the Property:
8.1.1 Except as expressly provided in this Section 8, no modifications, improvements, repairs or replacements of any type, whether temporary or permanent, structural, aesthetic or otherwise (collectively referred to as "alterations"), including, but not limited to, any structure, building, addition, deck, patio, fence, wall, enclosure, window, exterior door, antenna or other type of sending or receiving apparatus, sign, flag, display, decoration, color change, shrubbery, material topographical or landscaping change, nor any other improvements to or alternations of any Unit which (i) affects the Common Elements, or other Limited 'Common Elements, or another Unit, or (ii) which is visible from the exterior of the Unit, shall be, or caused or allowed to be, commenced, erected or maintained in any part of the Common Elements or in any Unit unless and until the plans and specifications showing the nature, kind, shape, height, color, materials and locations of the alterations shall have been approved in writing by the Board or a committee appointed by it.
8.1.2 The Board may appoint, supervise and disestablish an architectural committee, and specifically delegate to it part or all of the functions which the Board exercises under this Section 8, in which case the references to the Board shall refer to the architectural committee where appropriate. The architectural committee shall be subject to the supervision of the Board.
8.1.3 The Board shall establish the criteria for approval of alterations, which shall include and require, at a minimum:
8.1.3.1 substantial uniformity of color, location, type and design in relation to existing Units,
8.1.3.2 comparable or better quality of materials as used in existing improvements on the Property,
8.1.3.3 ease of maintenance and repair,
8.1.3.4 adequate protection of the Property, the Association, Owners, and Occupants from liability and liens arising out of the proposed alterations,
8.1.3.5 substantial preservation of other Owners' sight lines, if material, and
8.1.3.6 compliance with governmental laws, codes and regulations.
8.1.4 The Board, or the appointed architectural committee if so authorized by the Board, shall be the sole judge of whether such criteria are satisfied. The purpose of the criteria established by the Board shall be (i) to preserve the architectural style and uniformity, the quality and value of the Property, and (ii) to protect the Association from undue liability arising out of the alterations or any construction activity in connection therewith.
8.1.5 Alterations may be made in compliance with Section 5 15B.2-1 13 of the Act, and relocation of the boundaries of the Units may be made in compliance with Section 515B.2-114 of the Act.
8.1.6 Approval of alterations which encroach upon another Unit or the Common Elements shall create an appurtenant easement for such encroachment in favor of the Unit with respect to which the alterations are approved, notwithstanding any contrary requirement in the Governing Documents or the Act. A file of the resolutions approving all alterations ' shall be maintained permanently as a part of the Association's records.
4 8.2 Review Procedures. The following procedures shall govern requests for alterations under this Section:
8 .2. 1 Detailed plans, specifications and related information regarding any proposed alteration, in form and content acceptable to the Board, shall be submitted to the Board at least sixty days prior to the projected commencement of construction. No alterations shall be commenced prior to approval.
8.2.2 The Board shall give the Owner written notice of approval or disapproval. If the Board fail to approve or disapprove within sixty days after receipt of said plans and specifications and all other information requested by the Board, then approval shall be deemed to be granted; provided, that the alterations are done in accordance with the plans, specifications and related information which were submitted.
8.2.3 If no request for approval is submitted, approval shall be deemed to be denied.
8.3 Remedies for Violations. The Association may undertake any measures, legal or administrative, to enforce compliance with this Section and shall be entitled to recover from the Owner causing or permitting the violation all attorneys' fees and costs of enforcement incurred by the Association, whether or not a legal action is started. Such attorneys' fees and costs shall be a lien against the Owner's Unit and a personal obligation of the Owner, In addition, the Association shall have the right to enter the Owner's Unit and to restore any part of the Unit to its prior condition if any alterations were made in violation of this Section, and the cost of such restoration shall be a personal obligation of the Owner and a lien against the Owner's Unit.
8.4 Hold Harmless. The Owner who causes an alteration to be made, regardless of whether the alteration is approved by the Board, shall be solely responsible for the construction standards and specifications relating to the alteration, and the construction Work. The Owner, and not the Association, is responsible for determining whether any alternation is in violation of any restrictions imposed by any governmental authority having jurisdiction over the Property. The Owner shall hold harmless and indemnify the Association, and its officers, directors, other members and agents from and against any expenses, claims, damages, losses or other liabilities, including without limitation attorneys' fees and costs of litigation, arising out of (i) any alteration which violates any governmental laws, codes, ordinances or regulations, (ii) the adequacy of the specifications for construction of the alterations and (iii) the construction of the alterations.
8.5 Exemptions. The requirements set forth in this Section 8 (except Section 8.4) shall not apply to the following: the following antennas may be installed on a Unit or Limited Common Element, as permitted by applicable federal law: (i) one antenna one meter or less in diameter for the purpose of receiving direct broadcast/satellite service or video programming services, or (ii) any antenna for receiving television broadcast signals. However, the Board or an architectural committee appointed by it may require that the antenna be installed so as to minimize its visibility from the front of the Unit and otherwise camouflage its appearance, unless such requirements would (i) unreasonably delay installation, (ii) unreasonably increase the cost of installation, maintenance or use of the antenna, or (iii) preclude reception of an acceptable quality signal. Such installation shall be subject to all governmental laws, codes and ordinances, including any limit on the height of television broadcast antennas. The Board shall have authority to impose further, reasonable requirements consistent with law. The Owner or Occupant of the Unit shall perform and pay for the installation, maintenance and repair of the installation.
9.1 Maintenance by Association. The Association shall, at its expense, maintain, repair and replace (collectively referred to as “maintain” or “maintenance”) the Common Elements and all improvements thereon. In addition, for the purpose of preserving the architectural character, quality, and uniform and high standards of appearance for the Property, the Association shall maintain the exteriors of the Dwellings and Units in accordance with this Section 9, and, subject to the last paragraph of this Section 9.1, shall pay the cost thereof from the Association's Common Expense funds unless indicated to the contrary, as follows:
9.1.1 Maintenance of siding, soffìts, fascia, trim, masonry, brick, chimney caps, railings, house numbers, exterior light fixtures, and laundry, bath, cooking and combustion air vents (dirt and lint shall be cleaned only from exterior laundry vent screens and flappers on the roofs, if any). Such maintenance shall include caulking, tuckpointing, and related maintenance, as applicable.
9.1.2 Maintenance of roofs and roof decking (exclusive of structural supports), including, without limitation, shingles, vents, flashings, gutters, downspouts, and rain diverters; remove snow and ice dams from roofs but only if the Association determines that ice dams are causing leaks into the interior of Dwellings; window frames; doors; door sidelights door frames; patio doors and frames; patio door screens; and storm doors, provided that if the Association replaces a storm door, the portion of the cost of that replacement that exceeds One Hundred Fifty Dollars (or a different amount set by the Board from time to time) shall be assessed against the Unit upon which the replacement is performed and charged to the Owner of that Unit, pursuant to Section 6.4.
9.1.3 Maintenance of driveways (excluding concrete apron adjacent to the garage, if any), sidewalks, front entry steps, concrete entry slabs in front of patio doors, patios, retaining walls, exterior privacy walls between Units, and walking paths; snow removal on driveways, sidewalks and front entry steps (but not on patios or in courtyard areas); lawn and landscaping maintenance (but not watering); and tree and shrubbery trimming, removal and replacement.
9.1.4 Maintenance of decks (including, but not limited to, railings, supports, joists, posts and footings) and concrete patios.
9.1.5 Clean, paint and caulk those portions of the exteriors of the Dwellings and Units as determined by the Association.
9.1.6 Maintenance of garage door panels (excluding hardware) and related trim.
9.1.7 Maintenance of all wiring, valves, disconnects and related devices that serve more than one Unit, whether or not underground. -
9.1.8 Maintenance of all utilities, wiring, valves, disconnects and related devices that serve the Unit and that are located within the Unit but outside of the Dwelling, whether or not underground. The cost of such maintenance shall be assessed against the Unit upon which the maintenance is performed, and charged to the Owner of that Unit, pursuant to Section 6.4.
9.1.9 Unless authorized under Sections 9.1 or 9.2, the Association's maintenance obligations shall exclude Dwelling walls, floors, ceilings and all other structural elements; insulation; foundations and foundation walls (except exterior surface); garage floors, including concrete garage aprons; garage door hardware, openers and weatherstripping; windows and other glass (including all seals in windows); screens; storm windows; storm doors; skylights and their seals; skylight frames; flues; flue or chimney cleaning; mechanical, electrical, plumbing and sewer systems; irrigation systems within Units; air conditioners and pads/support bases; sump pumps and related discharge systems; light bulb replacement; faucets; mailboxes; and any other items not specifically required to be maintained by the Association under Section 9.1 and added pursuant to Section 9.2.
The Association shall have easements as described in Section 13 to perform its obligations under this Section 9.1. The Association may, by Rules and Regulations, further define its obligations within the categories of maintenance obligations set forth in this Section 9.1 or added pursuant to Section 9.2. All maintenance performed by the Association under this Section 9 shall be funded by annual Assessments, unless otherwise provided in Section 9.1. Notwithstanding the foregoing, the Association reserves the right to levy and allocate the cost of any maintenance performed under this Section 9 to one or more Units, pursuant to Section 6.4.
9.2 Optional Maintenance by Association. In addition to the maintenance described in Section 9. 1, the Association may, with the approval of a majority of the total votes of the Association cast in person or by proxy at a meeting called for such purposes, provide additional exterior maintenance to the Units or Dwellings.
9.3 Maintenance by Owner. Except for the exterior maintenance required to be provided by the Association under Section 9.1 or 9.2, all maintenance of the Units and any Limited Common Elements related thereto shall be the sole obligation and expense of the Owners thereof. Owners and Occupants shall keep and maintain their Units and related Limited Common Elements in good, clean and sanitary condition, and in compliance with all applicable government requirements, and the Rules and Regulations. The Association may require that any exterior maintenance of the Units to be performed by the Owner be accomplished pursuant to specific criteria established by the Association. The Association may also undertake any exterior maintenance of the Unit which the responsible Owner fails to or improperly performs and assess the Unit and the Owner for the cost thereof. Such cost shall be a personal obligation of the Owner and a lien against the Owner’s Unit. Owners and Occupants shall promptly notify the Association of defects in or damage to those parts of the Property which the Association is obligated to maintain.
9.4 Damage Caused by Owner. Notwithstanding any provision to the contrary in this Declaration, if, in the judgment of the Association, the need for maintenance of any part of the Property is caused by the willful or negligent act or omission of an Owner or Occupant, or their guests, or by a condition in a Unit which the Owner or Occupant has willfully or negligently allowed to exist, the Association may cause such damage or condition to be repaired or corrected (and enter upon any Unit to do so). The cost of the repair or correction may be assessed against the Unit of the Owner responsible for the damage, and shall be a personal obligation of the Owner and a lien against that Owner’s Unit. Notwithstanding the foregoing, in the case of party Walls between Dwellings, the Owners of the affected Dwellings shall be liable as provided in Section 10.
9.5 Easements for Maintenance. Each Unit and the Common Elements and Limited Common Elements are subject to appurtenant easements in favor of the Association for maintenance and reconstruction of the Property for which the Association has responsibility. Each Owner shall afford to the Association and its management agents and employees, access at reasonable times and upon reasonable notice, to and through the Unit and its Limited Common Elements for maintenance;provided, that access may be had Without notice and at any time in case of emergency.
10.1 General Rules of Law to Apply. Each wall built as part of the original construction of the Dwellings and located on the boundary line between Units shall constitute a party wall, and, to the extent not inconsistent with the provisions of this Section, the general rules of law regarding party Walls and liability for property damage due to negligent or willful acts or omissions shall apply thereto.
10.2 Repair and Maintenance. The Owners of the Units which share the party wall shall be responsible for the maintenance repair and replacement of the party wall in equal proportions; provided, (i) that any maintenance, repair or replacement necessary due to the acts or omissions of a certain Owner or Occupant sharing such party Wall shall be paid for by such Owner, and (ii) that the Association may, at its discretion, contract for and supervise the repair of damage caused by an Owner or Occupant and assess the Owners for their respective shares of the cost to the extent not covered by insurance. Such cost shall be a personal obligation of the affected Owner(s) and a lien against the Owners' Unit(s).
10.3 Destruction by Fire or Other Casualty. If a party wall is destroyed or damaged by fire or other casualty, any Owner who has use of the wall may, with the consent of the Association, restore it, and the other Owner shall promptly reimburse the Owner who restored the wall for his or her share of the cost of restoration thereof. However, the cost of restoration resulting from destruction or other casualty resulting from the acts or omissions of certain Owners shall be the financial responsibility of such Owners, and the Association may assess the responsible Owners for their share of the costs, without prejudice to the right of an Owner to recover a larger contribution from the other Owner. Insurance claims shall be made promptly following any casualty.
10.4 Weatherproofing. Notwithstanding any other provision of this Section, any Owner who, by his or her negligent or willful act, causes or allows a party wall to be exposed to the elements, shall bear the whole cost of the repairs necessary for protection against such elements.
10.5 Right to Contribution Runs With Land. The right of any Owner to contribution from any other Owner under this Section shall be appurtenant to the Unit and shall pass to such Owner's assigns and successors in title.
10.6 Disputes. Unless otherwise agreed in writing by the parties sharing a party wall, if a dispute arises concerning the party wall, and is not resolved within thirty days after the event causing the dispute, then the dispute shall promptly be submitted to mediation before a qualified intermediary selected by the Association. If no mediated settlement is reached within ninety days after selection of the mediator, the dispute shall be submitted to binding arbitration under the rules of the American Arbitration Association upon written demand by the Association or any Owner whose Dwelling shares the party wall. The decision of the arbitrator or arbitrators shall be final and conclusive of the dispute., The arbitrator(s) and mediator's fees shall be shared equally by the parties, but each party shall pay its own attorneys fees or other costs to present its case.
11.1 Required Coverage. The Association shall obtain and maintain, at a minimum, a master policy or policies of insurance in accordance with the insurance requirements set forth in the Act and the additional requirements set forth herein, issued by a reputable insurance company or companies authorized to do business in the state of Minnesota, as follows:
1 1.1.1 Property insurance in broad form covering all risks of physical loss in an amount equal to one hundred percent of the insurable "replacement cost" of the Property, exclusive of: (i) deductibles; (ii) land, footings, excavation and other items normally excluded from coverage (but including all building service equipment and machinery); and (iii) if authorized by the Board, any or all of the items referred to in Section 5 l3(b)(i) through (vii) of the Act. The policy or policies shall cover personal property owned by the Association. The policy or policies shall also contain "Inflation, Guard" and "Agreed Amount" endorsements, if reasonably available, Such policy or policies shall include such additional endorsements, coverages and limits with respect to the foregoing and other hazards as may be required from time to time by the regulations of the Federal National Mortgage Association ("FNMA"), the Federal Housing Administration (“FHA”) or the Secretary of Veterans Affairs (“VA”), if required by one of such agencies as a precondition to their purchase, financing, insuring or guarantee of a mortgage on a Unit. The Board may also, on behalf of the Association, enter into binding written agreements with a mortgagee, or insurer, guarantor, or servicer of a mortgage, obligating the Association to keep certain specified coverages or endorsements in effect.
11.1.2 Comprehensive public liability insurance covering the use, operation and maintenance of the Common Elements, with minimum limits of One Million Dollars per occurrence, against claims for death, bodily injury and property damage, and such other risks as are customarily covered by such policies for projects similar in construction, location and use to the Property. The policy shall contain a "severability of interest" endorsement which shall preclude the insurer from denying the claim of an Owner or Occupant because of negligent acts of the Association or other Owners or Occupants. The policy shall include additional endorsements, coverages and limits necessary to comply with the regulations of the FNMA, the FHA or VA, if required by one of such agencies as a precondition, to the purchase, financing, insuring or guarantee of a mortgage on a Unit.
11.1.3 Fidelity bond or insurance coverage against dishonest acts on the part of directors, officers, managers, trustees, employees or persons responsible for handling funds belonging to or administered by the Association, if deemed to be advisable by the Board or required by the regulations of any financing-related institution as a precondition to the purchase, insuring, guarantee, or financing of a mortgage on a Unit. The fidelity bond or insurance shall name the Association as the named insured, and shall comply with the regulations of the FNMA, the FHA or VA, if required by one of such agencies as a precondition to the purchase, financing, insuring, or guarantee of a mortgage on a Unit. An appropriate endorsement to the policy to cover any persons who serve without compensation shall be added if the policy would not otherwise cover volunteers, or a waiver of defense based upon the exclusion of persons serving without compensation shall be added.
11.1.4 Workers' Compensation insurance as applicable and required by law.
11.1.5 Directors and officers liability insurance with such reasonable limits and coverages as the Board shall determine from time to time.
11.1.6 Such other insurance as the Board may determine from time to time to be in the best interests of the Association and the Owners.
11.2 Premiums; Improvements; Deductibles. Except as provided in Section 6.4, all insurance premiums shall be assessed and paid as part of an annual Assessment. If improvements and betterments to the Units are covered, any increased cost may be assessed against the Units affected. The Association may, in the case of a claim for damage to a Unit or Units, (i) pay the deductible amount as a Common Expense, (ii) assess the deductible amount against the Units affected in any reasonable manner, or (iii) require the Owners of the Units affected to pay the deductible amount directly. The Association’s decision as to who shall be charged with paying the deductible amount may, but need not, be based on fault.
11 .3 Loss Payee Insurance Trustee. All insurance coverage maintained by the Association shall be written in the name of, and the proceeds thereof shall be payable to, the Association (or a qualified insurance trustee selected by it) as trustee for the benefit of the Owners and secured parties, including Eligible Mortgagees, which suffer loss. The Association, or any insurance trustee selected by it, shall have exclusive authority to negotiate, settle and collect upon any claims or losses under any insurance policy maintained by the Association.
11.4 Required Policy Provisions. All policies of property insurance carried by the Association shall provide that:
11.4.1 Each Owner and secured party is an insured Person under the policy with respect to liability arising out of the Owner's interest in the Common Elements or membership in the Association.
11.4.2 The insurer waives its right to subrogation under the policy against any Owner or member of the Owner's household and against the Association and members of the Board.
11.4.3 The coverage shall not be voided by or conditioned upon (i) any act or omission of an Owner or Eligible Mortgagee, unless acting within the scope of authority on behalf of the Association, or (ii) any failure of the Association, to comply with any warranty or condition regarding any portion of the Property over which the Association has no control.
1 1.4.4 If at the time of a loss under the policy there is other insurance in the name of an Owner covering the same property covered by the policy, the Associations policy is primary.
11.5 Cancellation; Notice of Loss. Property insurance and comprehensive liability insurance policies maintained by the Association shall provide that the policies shall not be canceled or substantially modified, for any reason, without at least thirty days prior Written notice to the Association and to all secured parties holding first mortgages on Units.
11.6 Restoration in Lieu of Cash Settlement. Property insurance policies maintained by the Association shall provide that, despite any provisions giving the insurer the right to elect to restore damage in lieu of a cash settlement, such option shall not be exercisable (i) without the prior Written approval of the Association (or any insurance trustee) or (ii) when in conflict with provisions of any insurance trust agreement to which the Association may be a party, or any requirement of law.
11.7 No Contribution. All policies of insurance maintained by the Association shall be the primary insurance where there is other insurance in the name of the Owner covering the same property, and may not be brought into contribution with any insurance purchased by Owners or their Eligible Mortgagees.
11.8 Owner's Personal Insurance. Each Owner shall obtain additional personal insurance coverage (commonly known as "gap coverage" or an "HO6" policy) at his or her own expense covering and other casualty to the interior of the Unit, personal property and the Owner’s personal liability. All insurance policies maintained by Owners shall provide that they are without contribution as against the insurance purchased by the Association, except as to deductible amounts or other items not covered under the Association’s policies.
12.1 Reconstruction. The obligations and procedures for the repair, reconstruction or disposition of the Property following damage or destruction thereof shall be governed by the Act. Any repair or reconstruction shall be substantially in accordance with the plans and specifications of the Property as initially constructed and subsequently improved. Notice of substantial damage or destruction shall be given as provided in Section 16.10.
12.2 Condemnation and Eminent Domain. In the event of a taking of any part of the Property by condemnation or eminent domain, the provisions of the Act shall govern; provided, (i) that notice shall be given as provided in Section 16.10, (ii) that the Association shall be the attorney-in-fact to represent the Owners in any related proceedings, negotiations, settlements or agreements and (iii) that any awards or proceeds shall be payable to the Association for the benefit of the Owners and the mortgagees of their Units. Eligible Mortgagees shall be entitled to priority for condemnation awards in accordance with the priorities established by the Act and the Governing Documents, as their interests may appear.
12.3 Termination and Liquidation. The termination of the common interest community, and the distribution of any proceeds therefrom, shall be governed by the Act. Any distribution of funds shall be based upon the value of the Units as determined by their relative value for property insurance purposes, and shall be made to Owners and their mortgage holders, as their interests may appear, as provided in the Act.
12.4 Notice. The Association shall give written notice of any condemnation proceedings or substantial destruction of the Property to the Eligible Mortgagees entitled to notice under Section 16.10.
12.5 Association's Authority. In all cases involving reconstruction, condemnation, eminent domain, termination or liquidation of the common interest community, the Association shall have authority to act on behalf of the Owners in all proceedings, negotiations and settlement of claims. All proceeds shall be payable to the Association to hold and distribute for the benefit of the Owners and their mortgage holders, as their interests may appear, in accordance with the Act.
13.1 Easement Each Unit and the Common Elements, and the rights of the Owners and Occupants therein, shall be subject to an exclusive easement for encroachments in favor of the adjoining Units for fireplaces, walls, roof overhangs, air conditioning systems, decks, balconies, porches, patios, utility installations and other appurtenances (i) which are pan of the original construction of the adjoining Unit or the Property or (ii) which are added in compliance with Section 8. If there is an encroachment by a Unit upon another Unit as a result of the construction, reconstruction, repair, shifting, settlement or movement of any part of the Property, an appurtenant easement for the encroachment, for the use, enjoyment and habitation of any encroaching Unit, and for the maintenance thereof, shall exist; provided, that with respect to improvements or alterations added pursuant to Section 8, no easement shall exist unless the same has been approved and the proposed improvements constructed, as required by this Declaration. Such easements shall continue for as long as the encroachment exists and shall not affect the marketability of title.
13 .2 Easement Repair, Replacement and Reconstruction. Each Unit, and the rights of the Owners and Occupants thereof, shall be subject to the rights of the Association to an exclusive, appurtenant easement on and over the Units for the purposes of maintenance, repair, replacement and reconstruction of the Units and other improvements located within the Units; and utilities sewing the Units, to the extent necessary to fulfill the Association's obligations under the Governing Documents.
13.3 Utility Easements. The Property shall be subject to non-exclusive, appurtenant easements in favor of all public utility companies and other utility providers for the installation, use, maintenance, repair and replacement of all utilities, such as natural gas, electricity, cable TV and other electronic communications, water, sewer, wells, and similar services, and metering and control devices, which exist or are constructed as part of the development of the Property, or which are referred to in the Plat or otherwise described in this Declaration er other recorded instruments. Each Unit, and the rights of the Owners and Occupants thereof, shall also be subject to a non-exclusive, appurtenant easement in favor of the other Units for all such utilities and services. Utilities and related services or systems shall be installed, used, maintained and repaired so as not to interfere with the use and quiet enjoyment of the Units by the Owners and Occupants, nor affect the structural or architectural integrity of the Units or Units.
13.4 to Units. In case of Units and Limited Common Elements are subject to an easement in favor of the Association for access, without notice and at any time, by an officer or member of the Board, by the Associations management agents or by any public safety personnel. The Board may require that an Owner or Occupant leave keys to the Dwelling With another Owner of his or her choice and to advise the manager or Board of the location(s) of the keys, so as to allow access for emergencies when the Owner or Occupant is absent for extended periods.
13.5 Project Sign Easements. The Common Elements shall be subject to appurtenant, exclusive easements in favor of the Association for the continuing use, maintenance, repair and replacement of all monument signs identifying the common interest community and related decorative improvements on the Common Elements.
13.6 Continuation and Scope of Easements. Notwithstanding anything in this Declaration to the contrary, no Owner or Occupant shall be denied reasonable access to his or her Unit or the right to utility services thereto, The easements set forth in this Section 13 shall supplement and not limit any easements described elsewhere in this Declaration or recorded, and shall include reasonable access to the easement areas through the Units and the Common Elements for purposes of maintenance, repair, replacement and reconstruction. All easement rights shall include a right of reasonable access to maintain, repair and replace the utility lines and related equipment.
Each Owner and Occupant, and any other Person owning or acquiring any interest in the Property, shall be governed by and comply with the provisions of the Act, the Governing Documents, the Rules and Regulations, and such amendments thereto as may be made from time to time, and the decisions of the Association. A failure to comply shall entitle the Association to the relief set forth in this Section, in addition to the rights and remedies authorized in the Governing Documents and the Act.
14.1 Entitlement to Relief The Association may commence legal action to recover sums due, for damages, for injunctive relief or to foreclose a lien owned by it, or any combination thereof, or an action for any other relief authorized by the Governing Documents or available at law or in equity. Legal relief may be sought by the Association against any Owner, or by an Owner against the Association or another Owner, to enforce compliance with the Governing Documents, the Rules and Regulations, the Act or the decisions of the Association. However, no Owner may withhold any Assessments payable to the Association, or take (or omit) other action in violation of the Governing Documents, the Rules and Regulations or the Act, as a measure to enforce such Owner"s position, or for any other reason.
14.2 Remedies. In addition to any other remedies or sanctions, expressed or implied, administrative or legal, the Association shall have the right, but not the obligation, to implement any one or more of the following actions against Owners and Occupants and/or their guests who violate the provisions of the Governing Documents, the Rules and Regulations or the Act:
14.2.1 Commence legal action for damages or equitable relief in any court of competent jurisdiction.
14.2.2 Impose late charges of up to the greater of (i) twenty-five dollars or (ii) fifteen percent of each late payment of an Assessment or installment thereof, plus interest at up to the highest rate allowed by law, accruing from the day of the month following the month for which the Assessment installment was due.
14.2.3 In the event any Assessment or installment thereof is more than thirty days past due, all remaining installments of Assessments assessed against the Unit owned by the defaulting Owner may be accelerated and shall then be payable in full if all delinquent Assessments, together with all costs of collection and late charges, are not paid in full prior to the effective date of the acceleration. Ten days advance written notice of the effective date of the acceleration shall be given to the defaulting Owner.
14.2.4 Impose reasonable fines, penalties or charges for each violation of the Act, the Governing Documents, or the Rules and Regulations.
14.2.5 If allowed by the Act, suspend the rights of any Owner to vote if the Assessments with respect the Owner's Unit are more than thirty days past due, and suspend the rights of any Owner or Occupant and their guests to use any Common Element amenities, provided, that this suspension of use shall not apply to Limited Common Elements or deck, balcony, porch or patio easements appurtenant to the Unit, and those portions of the Common Elements providing utilities service and access to the Unit. Such suspensions shall be limited to periods of default by such Owners and Occupants in their obligations under the Governing Documents, and for up to thirty days thereafter in the case of suspension of use rights, for each violation.
l4.2.6 Restore any portions of the Common Elements or Limited Common Elements damaged or altered, or allowed to be damaged or altered, by any Owner or Occupant or their guests in violation of the Governing Documents, and to assess the cost of such restoration against the responsible Owners and their Units.
14.2.7 Enter any Unit or Limited Common Element in which, or as to which, a violation or breach of the Governing Documents exists which materially affects, or is likely to materially affect in the near future, the health or safety of the other Owners or Occupants, or their guests, or the safety or soundness of any Dwelling or other part of the Property or the property of the Owners or Occupants, and to summarily abate and remove, at the expense of the offending Owner or Occupant, any structure, thing or condition in the Unit or Limited Common Elements which is causing the violation; provided, that any improvements which are a part of a Unit may be altered or demolished only pursuant to a court order or with the agreement of the Owner.
14.2.8 Foreclose any lien arising under the provisions of the Governing Documents or under law, in any manner authorized by the Act.
14.3 Rights to Hearing. In the case of imposition of any of the remedies authorized by Section 7.8.6, 14.2.4, 14.2.5, 14.2.6 or 14.2.7, the Board shall, upon written request of the offender (in the case of a violation of a restriction on pets, the offender shall be the Owner of the Unit in which the pet is kept), grant to the offender a hearing as contemplated by the Act. The hearing may be held before the Board or a committee of three or more disinterested Owners appointed by the Board. The offender shall be given notice of the nature of the violation and the right to a hearing, and at least ten days within which to request a hearing. The hearing shall be scheduled by the Board/committee and held within thirty days of receipt of the hearing request by the Board committee, and with at least ten days prior written notice to the offender. If the offending Owner fails to request, or to appear at, the hearing, then the right to a hearing shall be waived and the Board/committee may take such action as it deems appropriate. Hearings be conducted in a fair and equitable manner. The decision of the Board/committee and the rules for the conduct of hearings established by the Board, shall be final and binding on all parties. The Board's/committee's decision shall be delivered. in writing to the offender within ten days following the hearing, if not delivered to the offender at the hearing. Any fines to be imposed by the Association may, at the Board's discretion, be retroactive to the date of the violation or offense.
14.4 Lien for Charges. Penalties. Etc. Any Assessments, charges, fines, penalties or interest imposed under this Section shall be a lien against the Unit of the Owner or Occupant against whom the same are imposed and the personal obligation of such Owner in the same manner and with the same priority and effect as Assessments under Section 6. The lien shall attach as of the date of imposition of the remedy, but shall not be final as to violations for which a hearing is held until the Board/committee gives written notice following the hearing. All remedies shall be cumulative, and the exercise of, or failure to exercise, any remedy shall not be deemed a waiver of the Association's right to pursue any other remedy.
14.5 Costs of Proceeding and Attorneys’ Fees. With respect to any collection measures, or any measures or action, legal, administrative, or otherwise, which the Association takes to enforce the provisions of the Act, Governing Documents or Rules and Regulations, whether or not finally determined by a court or arbitrator, the Association may assess the Violator and his or her Unit with any expenses incurred in connection with such enforcement, including Without limitation fines or charges previously imposed by the Association, reasonable attorneys' fees, and interest (at the highest rate allowed by law) on the delinquent amounts owed to the Association. Such expenses shall also include any collection or contingency fees or costs charged to the Association by a collection agency or other Person acting on behalf of the Association in collecting any delinquent amounts owed to the Association by an Owner or Occupant. Such collection or contingency fees or costs shall be the personal obligation of such Owner and shall be a lien against such Owner's Unit.
14.6 Liability for Owners' and Occupants' Acts. An Owner shall be liable for the expense of any maintenance, repair or replacement of the Property rendered necessary by such Owner's acts or omissions, or by that of Occupants or guests in the Owner's Unit, to the extent that such expense is not covered by the proceeds of insurance carried by the Association or such Owner or Occupant. However, any insurance deductible amount and/or increase in insurance rates, resulting from the Owner‘s acts or omissions may be assessed against the Owner responsible for the condition and against his or her Unit.
14.7 Enforcement by Owners. The provisions of this Section shall not limit nor impair the independent rights of other Owners to enforce the provisions of the Governing Documents, the Rules and Regulations, and the Act as provided therein.
This Declaration may be amended by the consent of (i) Owners of Units to which are allocated at least sixty-seven percent of the votes in the Association, and (ii) the percentage of Eligible Mortgagees (based upon one vote per first mortgage owned) required by Section 16 as to matters prescribed by Section 16. Consent of the Owners may be obtained in writing or at a meeting of the Association duly held in accordance with the Bylaws. Consents of Eligible Mortgagees shall be in writing. Any amendment shall be subject to any greater requirements imposed by the Act. The Amendment shall be effective when recorded as provided in the Act. An affidavit by the Secretary or the President of the Association as to the outcome of the vote, or as to the execution of any agreements or consents, shall be adequate evidence thereof for all purposes, including without limitation, the recording of the amendment.
Notwithstanding anything to the contrary in the Governing Documents, and subject to any greater requirements of the Act or other laws, Eligible Mortgagees shall have the following rights and protections:
16.1 Consent to Certain Amendments. The written consent of Eligible Mortgagees representing at least fifty-one percent of the Units that are Subject to first mortgages held by Eligible Mortgagees (based upon one vote per first mortgage owned) shall be required for any amendment to the Governing Documents which causes any change in the following; (i) voting rights; (ii) Assessments, Assessment liens, or priority of Assessment liens; (iii) reserves for maintenance, repair and replacement of Common Elements; (iv) responsibility for maintenance and repairs; (V) reallocation of interests in, or rights to use, the Common Elements or Limited Common Elements; (vi) redefinition of any Unit boundaries; (vii) convertibility of Units into Common Elements or vice versa; (viii) expansion or contraction of the Property or the addition, annexation or withdrawal of property to or from the Property; (ix) insurance or bonds; (X) leasing of Units; (xi) imposition of any restrictions on an Owner's right to sell or transfer his or her Unit; (xii) a decision by the Association to establish self management when professional management is in effect as required previously by the Governing Documents or a Eligible Mortgagee; (xiii) restoration or repair of the Property (after a hazard damage or partial condemnation) in a manner other than that specified in the Governing Documents; (xiv) any action to terminate the legal status of the common interest community after substantial destruction or condemnation occurs; or (xv) any provisions that expressly benefit Eligible Mortgagees, insurers or guarantors.
16.2 Consent to Certain Actions. The written consent of Eligible Mortgagees representing at least sixty-seven percent of the Units that are subject to first mortgages held by Eligible Mortgagees (based upon one vote per first mortgage owned) shall be required to (i) abandon or terminate the common interest community; (ii) change the allocations of voting rights, Common Expense obligations or interest in the Common Elements; (iii) partition or subdivide a Unit except as permitted by statute; (iv) abandon, partition, subdivide, encumber or sell the Common Elements; or (V) use hazard insurance proceeds for purposes other than the repair, replacement or reconstruction of the Property, except as otherwise provided by law.
16.3 Consent to Subdivision. No Unit may be partitioned or subdivided without the prior written approval of the Owner and Eligible Mortgages thereof, and the Association.
16.4 No Right of First Refusal. The right of an Owner to sell, transfer or otherwise convey his or her Unit shall not be Subject to any right of refusal or similar restrictions.
16.5 Priority of Lien. Any holder of a first mortgage on a Unit, or any purchaser of a first mortgage, at a foreclosure sale, that comes into possession of a Unit by foreclosure of the first mortgage or by deed or assignment in lieu of foreclosure, takes the Unit free of any claims for unpaid Assessments or any other charges or liens imposed against the Unit by the Association which have accrued against such Unit prior to the acquisition of possession of the Unit by said first mortgage holder or purchaser; (i) except as provided in Section 6.8 and the Act and (ii) except that any unpaid Assessments or charges may be reallocated among all Units in accordance with their interests in the Common Elements.
16.6 Priority of Taxes and Other Charges. All taxes, Assessments and charges which may become liens prior to the first mortgage under state law shall relate only to the individual Units and not to the Property as a whole.
16.7 Priority for Condemnation Awards. No provision of the Governing Documents shall give an Owner, or any other party, priority over any rights of the Eligible Mortgagee of the Unit pursuant to its mortgage in the case of a distribution to such Owner of insurance proceeds or condemnation awards for losses to or a taking of the Unit and/or the Common Elements. The Association shall give written notice to all Eligible Mortgagees of any condemnation or eminent domain proceeding affecting the Property promptly upon receipt of notice from the condemning authority.
16.8 Requirements for Management Agreements. The term of any agreement for professional management of the Property may not exceed two years. Any such agreement must provide at a minimum for termination without penalty or termination fee by either party, (i) with cause upon thirty days' prior written notice, and (ii) without cause upon ninety days or less prior written notice.
16.9 Access to Books and Records/Audit. Eligible Mortgagees shall have the right to examine the books and records of the Association upon reasonable notice during normal business hours, and to receive, upon request, copies of the Associations annual reports and other financial statements. Financial statements, including those which are audited, shall be available within one hundred eighty days of the end of the Associations fiscal year. Any institutional guarantor or insurer of a mortgage loan against a Unit, may require that an audit of the Associatioins financial statements be made for the preceding year, in which case the Association shall cooperate in having an audit made and a copy given to the requesting party; provided, that the cost for the requested audit shall be paid by the requestor.
16. 10 Notice Requirements. Upon written request to the Association, identifying the name and address of the holder, insurer or guarantor of a mortgage on a Unit, and the Unit number or address, the holder, insurer or guarantor shall be entitled to timely written notice of:
16.10.1 a condemnation loss or any casualty loss which affects a material portion of the Property or the Unit securing the mortgage;
16.10.2 a sixty day default on any provision of this Declaration, the Bylaws, or the Association’s Articles of Incorporation, as amended and/or supplemented;
16.10.3 a lapse, cancellation or material modification of any insurance policy maintained by the Association; and
16.10.4 a proposed action which requires the consent of a specified percentage of Eligible Mortgagees.
17.1 Severability. If any term, covenant, or provision of this instrument or any exhibit attached hereto is held to be invalid or unenforceable for any reason whatsoever, such determination shall not be deemed to alter, affect or impair in any manner whatsoever any other portion of this Declaration or exhibits attached hereto.
17.2 Construction. Where applicable, the masculine gender of any word used herein shall mean the feminine or neutral gender, or vice versa, and the singular of any word used herein shall mean the plural, or vice versa. References to the Act, or any section thereof, shall be deemed to include any statutes amending or replacing the Act, and the comparable sections thereof
17.3 Notices. Unless specifically provided otherwise in the Governing Documents or the Act, all notices required to be given by or to the Association, the Board, the Association officers, or the Owners or Occupants shall be in writing and shall be effective upon hand delivery, or mailing if properly addressed with postage prepaid and deposited in the United States mail; except that registrations pursuant to Section 2.2 of the Bylaws shall be effective upon receipt by the Association.
17.4 Conflicts Among Documents. In the event of any conflict among the provisions of the Act, the Declaration, the Bylaws and any Rules or Regulations, the Act shall control unless it permits the documents to control. As among the Declaration, the Bylaws and any Rules and Regulations, the Declaration shall control, and as between the Bylaws and any Rules and Regulations, the Bylaws shall control.
17.5 Duration of Covenants. The covenants, conditions, restrictions, easements, liens and charges contained in this Declaration shall be perpetual, Subject only to termination as provided in this Declaration and the Act.
IN WITNESS WEREOF, the Association, and at least seventy-five percent of the Owners of lots (now defined as Units), have approved this Declaration, effective as ofthe date of recording, all in accordance with the requirements of the Existing Declaration andthe Act.
BOUNDARY CREEK SIXTH ASSOCIATION
BY: Donald Aaser
Title: President
The foregoing instrument was acknowledged before me this 13th day of March, 2002, by Donald Aaser, the President of Boundary Creek Sixth Association;/a Minnesota nonprofit corporation,on behalf of the corporation.
This instrument was drafted by:
Fredrick R Krietzman, Esq.
Felhaber, Larson, Fenlon & Vogt, P.A.
Attorneys at Law
225 South Sixth Street, Suite 4200 Minneapolis, Minnesota 55402
(612) 373-8418 S
AFFIDAVIT OF SECRETARY
STATE OF MINNESOTA )
The undersigned, Secretary of the Boundary Creek Sixth Association, a Minnesota nonprofit corporation, being first duly sworn on oath, hereby swears and certifies, pursuant to the applicable provisions of the Existing Declaration, that this Declaration has been duly approved by a vote of the Board, and in writing by the Owners of the Units in Boundary Creek Sixth, in compliance with the requirements of the Existing Declaration and the Act. The terms used in this Affidavit shall have the same meaning attached to them as in the Amended and Restated Declaration of Boundary Creek Sixth.
STATE OF MINNESOTA
COUNTY OF WRIGHT
Subscríbed and sworn to before me this 13 day of March, 2002, by Susan Mingo, the Secretary of the Boundary Creek Sixth Association, a Minnesota nonprofit corporation, on behalf of said Corooratíon.