COMMON INTEREST COMMUNITY NO. 1077
(Planned Community)
BOUNDARY CREEK SIXTH
FIRST AMENDMENT TO AMENDED AND RESTATED DECLARATION
This First Amendment to Amended and Restated Declaration of Boundary Creek Sixth (the “Amendment”), is made, effective on the date of recording of this Amendment, by Boundary Creek Sixth Association, a Minnesota nonprofit corporation (the “Association”), with the approval by at least sixty-seven percent of the total votes of the Association. Unless otherwise defined in this Amendment, the terms used in this Amendment shall have the meaning assigned to them in the Declaration (defined below).
RECITALS
WHEREAS, that certain Amended and Restated Declaration of Boundary Creek Sixth, Was recorded in the office of the County Recorder in and for Hennepin County, Minnesota, as Document No. 1678562 (the “Declaration”);
WHEREAS, the Declaration affects the real property in Hennepin County, Minnesota, legally described on Exhibit A attached hereto.
WHEREAS, the Association, with the required approval of the Owners, desires to amend the Declaration in accordance with the terms of this Amendment.
NOW, THEREFORE, the Association, with the approval by at least sixty-seven percent of the total votes in the Association, hereby makes this Amendment, in accordance with the requirements of the Declaration, and declares that said real property and all improvements thereon shall be held, transferred, sold, conveyed, used, and occupied subject to the covenants and restrictions set forth in the Declaration, as amended by this Amendment, and that the Declaration, as amended by this Amendment, shall be binding upon all Persons, and their successors (in title or otherwise) and assigns, having or acquiring any right, title, or interest in said real property and improvements thereon.
A M E N D M E N T
Section 7.5 of the Declaration is hereby amended in its entirety to read as follows:
7.5 Leasing. Boundary Creek Sixth is intended and designed to be an Owner occupied single-family residential development. It is deemed to be in the long-term best interests of Boundary Creek Sixth that it remains Owner occupied. Consistent with these objectives, each Unit must be purchased exclusively for Owner occupancy, not for investment or other purposes, and shall, except as authorized by this Section 7.5, (i) not be leased or rented regardless of whether consideration is paid in connection with the lease or rental, and (ii) be occupied by at least one Owner of the Unit. An Owner who is not occupying that Owner’s Unit, and who is leasing or otherwise allowing occupancy of that Unit by a person other than the Owner, is referred to hereinafter as an “Absentee Owner,” but only as to that Unit.
7.5.1 Each Owner who is an Absentee Owner as of the date of recording of the First Amendment to Amended and Restated Declaration of Boundary Creek Sixth (the “Amendment”) shall be exempt from the leasing, rental, and occupancy restrictions set forth in this Section 7.5 (except for Section 7.5.3) as to the Absentee Owner’s Unit until the date (the “Expiration Date”) of expiration or termination of the term (in effect on the date of recording of the Amendment) of the lease or other occupancy agreement (whether such lease or other occupancy agreement is verbal or written) for that Unit. Alter the Expiration Date, that Absentee Owner and that Unit shall no longer be exempt from the occupancy restrictions set forth in this Section 7.5. The Association shall, as soon as practical after the recording of the Amendment, implement reasonable procedures by which each Absentee Owner must notify the Association in writing of the leasing, rental, and occupancy status of that Absentee Owner’s Unit as of the date of recording of the Amendment and to verify the ownership status of that Unit.
7.5.2 The Association may, but is not obligated to, grant to an Owner an exemption to the leasing restrictions set forth in this Section 7.5, upon written application by the Owner to the Association, under the following circumstances:
7.5.2.1 An Owner who is transferred out of the Minneapolis-St. Paul metropolitan area (including, but not limited to, Maple Grove, Minnesota) by the Owner’s employer, and who has a reasonable basis to believe that he or she will reoccupy that Owner’s Unit within two years following the date of transfer, may lease that Unit during the absence period. However, if the Owner does not return and re-occupy that Unit within the two-year time period, and if that Unit is occupied by a person other than the Owner of that Unit at the end of that two-year period, the Owner must undertake to sell that Unit within ten days after the expiration of said two-year period. The closing on the sale of that Unit, which shall take place within forty-five days following the end of that two-year period, shall be handled by a real estate broker, a title insurance company, or an attorney. Notwithstanding anything in this Section 7.5.2.1 to the contrary, no tenant or lessee shall remain in that Unit for more than thirty days following the expiration of said two-year period.
7.5.2.2 An Owner who has been accepted for an educational program sponsored by a bona fide, accredited educational institution, or who has been granted a sabbatical leave for educational purposes, which will take the Owner out of the Minneapolis-St. Paul metropolitan area (including, but not limited to, Maple Grove, Minnesota), and who has a reasonable basis to believe that he or she will reoccupy that Owner’s Unit within one year following the date of departure, may lease that Unit during the one-year absence period. However, if the Owner does not return and re-occupy that Unit within the one-year time period, and if that Unit is occupied by a person other than the Owner of that Unit at the end of that one-year period, the Owner must undertake to sell that Unit within ten days after the expiration of said one-year period. The closing on the sale of that Unit, which shall take place within forty-five days following the end of that two-year period, shall be handled by a real estate broker, a title insurance company, or an attorney. Notwithstanding anything in this Section 7.5.2.2 to the contrary, no tenant or lessee shall remain in that Unit for more than thirty days following the expiration of said one-year period.
7.5.2.3 An Owner who has a family medical emergency, or who is the family’s sole care giver, and must leave the Minneapolis-St. Paul metropolitan area (including, but not limited to, Maple Grove, Minnesota) in order to take care of a medical or care emergency, and who has a reasonable basis to believe that he or she will reoccupy that Owner’s Unit within one year following the date of departure, may lease that Unit during the one-year absence period. However, if the Owner does not return and re-occupy that Unit within the one-year period, and if that Unit is occupied by a person other than the Owner of that Unit at the end of that one-year period, the Owner must undertake to sell that Unit within ten days after the expiration of said one-year period. The closing on the sale of the Lot or Living Unit, which shall take place within forty five days following the end of that one-year period, shall be handled by a real estate broker, a title insurance company, or an attorney. Notwithstanding anything in this Section 7.5.2.3 to the contrary, no tenant or lessee shall remain in that Unit for more than thirty days following the expiration of said one-year period.
7.5.2.4 An Owner who is a member of the United States military service who is transferred out of the Minneapolis-St. Paul metropolitan area (including, but not limited to, Maple Grove, Minnesota) by reason of such service, and who has a reasonable basis to believe that he or she will re-occupy that Owner’s Unit within three years following the date of transfer, may lease that Unit during the three-year absence period. However, if the Owner does not return and re-occupy that Unit within the three-year time period, and if that Unit is occupied by a person other than the Owner of that Unit at the end of that three-year period, the Owner must undertake to sell that Unit within ten days after the expiration of said three-year period. The closing on the sale of that Unit, which shall take place within forty-ñve days following the end of that three-year period, shall be handled by a real estate broker, a title insurance company, or an attomey. Notwithstanding anything in this Section 7.5.2.4 to the contrary, no -tenant or lessee shall remain in that Unit for more than thirty days following the expiration of said three-year period.
7.5.2.5 Upon request by an Owner, the Association may grant additional or extended exemptions to the leasing restrictions set forth in this Section 7.5, based upon criteria for situations comparable to those described above. Those situations include, but may not be limited to, those involving Owners requesting to lease their Units to members of their family, or those involving an Owner who conveys all or a portion of the title to that Owner’s Unit to that Owner’s child, but which Owner continues to live in that Unit for a period of time. The Association may also require that the Owner sign an agreement prior to departure which describes the conditions for leasing the Owner’s Unit.
7.5.3 Notwithstanding anything in this Section 7.5 to the contrary, all leases shall be subject to the following conditions: (i) no Unit shall be leased for transient or hotel purposes; (ii) no Unit may be leased for a term of less than six months, unless approved by the Board; (iii) no Unit may be subleased; (iv) all leases shall be in writing; (V) only- the entire Unit, not portions or individual rooms, may be leased; 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 and the Act shall be a default under the lease. Any lease of a Unit 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 given a copy of the lease immediately after it is fully-signed. The Association may also impose such reasonable rules and regulations as may be necessary to implement procedures for the leasing of Units, consistent with this Section 7.5.
7.5.4 Notwithstanding anything in this Section 7.5 to the contrary, any first mortgagee of a Unit acquiring title to a Unit by Way of foreclosure or deed in lieu of foreclosure may lease that Unit for any period of time, but subject to the provisions of Section 7.5.3.
Except as modified by this Amendment, the Declaration shall remain in full force and effect. Any conflict between the terms of this Amendment and the terms of the Declaration shall be resolved in favor of this Amendment.
IN WITNESS WHEREOF, the undersigned has executed this Amendment on this 29th day of Oct., 2004.
BOUNDARY CREEK SIXTH
ASSOCIATION
By: Donald F Aaser
Its: _________President
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
This instrument was acknowledged before me this 29 day of 2004 by Donald F Aaser, the ________President of Boundary Creek Sixth Association, a Minnesota nonprofit corporation, on behalf of said corporation.
THIS INSTRUMENT WAS DRAFTED BY
Fredrick R. Krietzman, Esq.
FELHABER, LARSON, FENLON & VOGT, P.A.
220 South Sixth Street, Suite 2200
Minneapolis, Minnesota 55402
(612) 373-8418
COMMON INTEREST COMMUNITY NO. 1077
(Planned Community)
BOUNDARY CREEK SIXTH ASSOCIATION
EXHIBIT A TO FIRST AMENDMENT TO
AMENDED AND RESTATED DECLARATION
Lots 1 through 4, inclusive, Block 1, Lots 1 through 4, inclusive, Block 2, Lots 1 through 4, inclusive, Block 3, Lots 1 through 4, inclusive, Block 4, Lots 1 through 4, inclusive, Block 5, Lots 1 through 3, inclusive, Block 6, Lots 1 through 4, inclusive, Block 7, Lots 1 through 4, inclusive, Block 8, Lots 1 through 4, inclusive, Block 9, Lots 1 through 4, inclusive, Block 10, Lots 1 through 4, inclusive, Block 11, and Outlots A and B, Boundary Creek Sixth Addition; Lots 1 through 4, inclusive, Block 1, Lots 1 through 4, inclusive, Block 2, Lots 1 through 4, inclusive, Block 3, Lots 1 through 4, inclusive, Block 4, Lots 1 through 4, inclusive, Block 5, Lots 1 through 4, inclusive, Block 6, Lots 1 through 4, inclusive, Block 7, Lots l through 4, inclusive, Block 8, and Outlot A, Boundary Creek Seventh Addition; and Lots 1 through 4, inclusive, Block 1, Lots 1 through 4, inclusive, Block 2, Lots 1 through 4, inclusive, Block 3, Lots 1 through 4, inclusive, Block 4, Lots 1 through 4, inclusive, Block 5, and Lots l through 4, inclusive, Block 6, and Outlot A, Boundary Creek Eighth Addition, except that part of Outlot A, Boundary Creek Eighth Addition, lying adjacent to and 50 feet Northwesterly of the Southeasterly line of said Outlot A; all in Hennepin County, Minnesota.
AFFIDAVIT OF PRESIDENT
The undersigned, President of Boundary Creek Sixth Association, a Minnesota nonproñt corporation, being first duly sworn on oath, hereby swears and certifies, pursuant to the applicable provisions of the Amended and Restated Declaration of Boundary Creek Sixth (the “Declaration”), that the First Amendment to Amended and Restated Declaration of Boundary Creek Sixth has been duly approved by the appropriate percentage of the total votes in the Association, in compliance with the requirements of the Declaration and Minnesota Statutes Chapter 515B.
Donald F. Aaser
President
Subscribed and sworn before me this 26th day of October, 2004 by Donald F. Aaser, the President of Boundary CreekAssociation, a Minnesota nonprofit corporation, on behalf of said corporation.
THIS INSTRUMENT WAS DRAFTED BY:
Fredrick R. Krietzman, Esq.
FELHABER, LARSON, FENLON & VOGT, P.A.
220 South Sixth Street, Suite 2200 Minneapolis, Minnesota 55402
(612) 373-8418
EXHIBIT A
Lots 1 through 4, inclusive, Block 1, Lots 1 through 4, inclusive, Block 2, Lots 1 through 4, inclusive, Block 3, Lots 1 through 4, inclusive, Block 4, Lots 1 through 4, inclusive, Block 5, Lots 1 through 3, inclusive, Block 6, Lots 1 through 4, inclusive, Block 7, Lots 1 through 4, inclusive, Block 8, Lots 1 through 4, inclusive, Block 9, Lots 1 through 4, inclusive, Block 10, Lots 1 through 4, inclusive, Block ll, and Outlots A and B, Boundary Creek Sixth Addition; Lots l through 4, inclusive, Block 1, Lots 1 through 4, inclusive, Block 2, Lots l through 4, inclusive, Block 3, Lots l through 4, inclusive, Block 4, Lots l through 4, inclusive, Block 5, Lots l through 4, inclusive, Block 6, Lots l through 4, inclusive, Block 7, Lots l through 4, inclusive, Block 8, and Outlot A, Boundary Creek Seventh Addition; and Lots l through 4, inclusive, Block 1, Lots 1 through 4, inclusive, Block 2, Lots 1 through 4, inclusive, Block 3, Lots 1 through 4, inclusive, Block 4, Lots 1 through 4, inclusive, Block 5, and Lots 1 through 4, inclusive, Block 6, and Outlot A, Boundary Creek Eighth Addition, except that part of Outlot A, Boundary Creek Eighth Addition, lying adjacent to and 50 feet Northwesterly of the Southeasterly line of said Outlot A; all in Hennepin County, Minnesota.