HomeMy WebLinkAbout2018-03-06 P & Z Packet ► PLANNING AND ZONING COMMISSION
MEETING AGENDA
Tuesday, March 6, 2018
6:30 p.m.
L CALL TO ORDER
IF YOU ARE UNABLE TO
1. Roll Call MAKE THIS MEETING,
II. PLEDGE OF ALLEGIANCE PLEASE LET US KNOW AS
SOON AS POSSIBLE. THANK
III. APPROVAL OF AGENDA YOU!'
IV. APPROVAL OF MINUTES
1. February 1, 2018 Planning & Zoning Commission Meeting Minutes
V. PUBLIC HEARING
1. None
VI. OLD BUSINESS
1. None
VII. NEW BUSINESS
1. Resignation of Mr. Pete Johnson
2. Concept Plan Review—DeFoe/Waterworks Site
3. Final Plat—Peltier Estates
4. Swimming Pool Covers
VIII. ANNOUNCEMENTS
1. Ruffridge Johnson Update
a. Extend Purchase Agreement and CUP to May 30, 2018
2. City-owned Property Updates
X. ADJOURNMENT
*REMINDERS**
P&R Committee—Wednesday, March 21, 2018 — 6:30 p.m. City Hall
P & Z Committee— Tuesday, April 3, 2018 — 6:30 p.m. City Hall
—Wednesday, March 14, 2018 —6:30 p.m. City Hall
City Council Meeting
City Council Meeting—Wednesday, March 28, 2018 —6:30 p.m. City Hall
Shake Your Shamrock Run, Saturday, March 17, 2018 — 8:00 a.m. (Kelly's Korner Sponsors)
Recycling Saturdays: 9:00 a.m. — 12:00 p.m. (Green Lights Recycling, 1525 — 99th Lane N.E., Blaine)
March 10, April 14, May 12, June 9, July 14, August 11, September 8, October 13, November 10 &
December 8, 2018
CITY OF CENTERVILLE
PLANNING AND ZONING COMMISSION
Pursuant to due call and notice thereof, the Planning and Zoning Commission held its regular
meeting on Tuesday, February 1, 2018 at 6:30 p.m. The meeting date was moved to the 1st
Caucuses.
PRESENT: Chairperson Darrin Mosher
� p 0
Commissioner Linda Broussard Vickers
Commissioner Nick Twohy (arrived 5 min 1
Commissioner Mark Haiden
Commissioner Kim Ganzel
ABSENT: Commission Pete Johnson
Empty Seat
STAFF: City Administrator/Engineer Mark Statz
Planning Consultant—Eric Maass (W SB)
OTHERS PRESENT: City Council Liaison Russ Koski
L CALL TO ORDER. The meeting was called to order at 6:30 p.m. by Chair Mosher.
1. Roll Call
II. PLEDGE OF ALLEGIANCE
III. APPROVAL OF AGENDA
Motion by Commissioner Broussard Vickers, seconded by Commissioner Haiden to
Approve the Agenda as presented. All in favor (Twohv not vet present). Motion
carried.
IV. APPROVAL OF MINUTES
1. January 2, 2018, Planning & Zoning Commission Meeting Minutes
Motion by Commissioner Broussard Vickers, seconded by Commissioner Haiden to
Approve the Minutes as Amended. All in favor (3-0, Twohv not vet present, Ganzel
abstention). Motion Carried.
V. PUBLIC HEARING(S)
1. None.
VI. OLD BUSINESS
1. City of Centerville 2040 Comprehensive Plan Update
Page 1 of 2
City of Centerville
Planning and Zoning Commission
February 1,2018
Eric Maass, from WSB presented a short slide show revisiting the information presented
and discussed at the previous P&Z meeting, including the goals worksheet (now with
additional commissioners having given input), a draft Future Land Use Map and tables
showing projected growth and options for land use guidance to achieve various population
goals. Significant discussion was had regarding the low and high parameters of the
medium and high density districts in the table proposed by Mr. Maass. The discussion
included site specific review of how these low and high ranges would affect several
parcels, including the DeFoe/Waterworks site.
The following minimums and maximums for each range were agreed upon at the end of
the discussion.
Guided Land Use
Type Dev. Density Range
Acres Min Mid Max
Low Density 24.50 3 4 5
Medium Density 66.89 3 9 15
High Density 8.06 12 18.5 25
CBD/Mixed Use 13.75 12 21 30
Guided Total 102.89
Mr. Maass also reviewed Chapters 1 and 2 of the plan, going through specific language
changes.
Motion by Commissioner Broussard Vickers, seconded by Commissioner Ganzel to
recommend approval of Chapters 1 and 2, of the 2040 Comprehensive Plan as
presented, with changes to the Guided Land Use Categories' minimums and
maximums as shown. All in favor. Motion carried.
VII. NEW BUSINESS
1. Open application period for vacant seat on Planning and Zoning Commission.
Motion by Commissioner Broussard Vickers, seconded by Commissioner Mosher to
begin accepting applications for the vacant seat. Applications shall be accepted until
such time as city staff determines there is an adequate field of candidates. All in
favor. Motion carried.
VIII. ADJOURNMENT
Motion by Commissioner Broussard Vickers, seconded by Commissioner Ganzel to Adiourn
the Regularly Scheduled Planning & Zoning Commission Meeting at 8:33 p.m. All in favor.
Motion carried.
Respectfully submitted, City Administrator/Engineer Mark R. Statz
Page 2 of 2
�ebruary 26,2018
City Administrator Smis.,
itsod morning.After careful thought and consideration, it is with regret that I submit to you this letter
.f mv resignation from the City of Centerville Planning and Zoning Commission.Over the past several
months it has become apparent to me that site my best efforts, I can simply no longer function
competently as a member of the Centerville Planning and Zoning commission.
Like many others, it has always been a challenge to devote the necessary time to this position in a
manner that I believe prepares me to contribute in a meaningful way to both the Commission and the
City of Centerville. Until recently, I believe I was able to meet that challenge.Over the past several
months a combination of work,family,and other commitments as increasingly diminished the time I
have available to prepare for, and participate in,the Planning and Zoning commission.
I appreciate very much the opportunity the City of Centerville has given me int be a member of this
valuable team,We have a wonderful city and a very bright future ahead. I look forward to continue to
see the results of all the great or and efforts you,the City Staff,and all,city volunteers put into making
Centerville such a great place to live.
Respectfully,
Pete Johnson
CITY OF CENTERVILLE REQUEST
FOR COMMISSION ACTION
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Agenda Item# Department: Requested Meeting Date:
Administration 3/2/2018
TITLE OF ISSUE:
DeFoe/Waterworks Concept Plan
BACKGROUND AND SUPPLEMENTAL INFORMATION:
Mr. Jim Boo, of Team Boo Realty will be in attendance to review his concept layout for development of the
Waterworks/DeFoe site. A few topics for discussion will be:
-Density (# of homes)in relation to existing zoning and comp plan discussions.
- Setbacks from the lake
-Dock management and water-related accessory structures
-LaValle Drive; how it ties into this development, etc.
-Pubic vs. Private street
At this time, the prospective developer is simply asking for a concept level review.
------------
COST AND SOURCE(S) OF FUNDING:
No cost
REQUESTED ACTION:
No action requested at this time; concept review only.
For Clerk's Use:
SUPPORTED DOCUMENTS ATTACHED
Motion By:
Resolution Ordinance Contract Minutes Plan Map
Second By:
Vote Record: A e Nay
Mosher Other(specify) Concept Plan
Haiden
T- ohy
Ganzel
Broussard Vickers
Refer to:
Consent Tabled Until:
Other:
Regular
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CITY OF CENTERVILLE REQUEST
FOR COMMISSION ACTION
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Agenda Item# Department: Requested Meeting Date:
Administration/Public Works 3/6/2018
TITLE OF ISSUE:
Peltier Estates Final Plat
BACKGROUND AND SUPPLEMENTAL INFORMATION:
Previously, the Planning Commission approved a Preliminary Plat for a Planned Unit Development called
Peltier Estates. The developer is now ready to move forward with a Final Plat and has submitted the necessary
documents to do so. The Planning Commission should review the Final Plat documents for conformance to the
Findings of Fact approved with the Preliminary Plat. Staff will provide comments on the Final Plat and
supporting documents at the meeting.
COST AND SOURCE(S) OF FUNDING:
No cost.
REQUESTED ACTION:
Motion to approve the Final Plat for Peltier Estates.
For Clerk's Use:
SUPPORTED DOCUMENTS ATTACHED
Motion By:
Resolution Ordinance Contract Minutes Plan Map
Second By:
Vote Record: A e Nay
Mosher Other(specify) Final Plat Construction Plans Draft
Haiden
Twohv Developer's Agreement. Declaration of Covenants.
Ganzel
Broussard Vickers Conditions and Restrictions, Typical Elevations
Refer to:
Consent Tabled Until:
Regular Other:
Peltier Estates
Sharper Homes, Inc
Generalized Elevations and Perspectives
In order that the homes in Peltier look complementary, but not identical, it is our intent to
mix and match the following architectural elements on the fronts of each home.
Architectural Elements we will option for the elevations of each home
James Hardie Lap Siding
James Hardie Board and Batten
James Hardie Shakes
Decorative Stone partial
Gable Decoratives
Hipped or Gabled Roof Pitches
2 Car Garages or 3 Car garages
Window Grids
Arch details
Vinyl Siding at sides and rear
See attachment for representation of 3 typical elevations
Landscape Elements
Landscape packages for each home will include the following elements:
Trees, as required per Development Agreement
Poly edging around the foundation with river rock
A variety of Minnesota hardy deciduous shrubs, perennials,
Ornamental trees, and evergreen shrubs
See attachments for representations of 2 typical landscape packages
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a U
DECLARATION OF
COVENANTS, CONDITIONS,AND RESTRICTIONS
FOR
PELTIER ESTATES
THIS DECLARATION is made in the County of Anoka, State of Minnesota, on this
day of , 2018, by Sharper Communities, LLC, a Minnesota limited liability
company (the "Declarant"), for the purposes of creating Peltier Estates, a planned community.
WHEREAS, Declarant is the owner of that real property located in Anoka County,
Minnesota, legally described on Exhibit A, attached hereto (the "Property"), and
WHEREAS, Declarant desires to establish on the Property a plan for a permanent
residential community to be owned, occupied and operated for the use, health, safety and welfare
of its resident Owners and Occupants, and for the purpose of preserving the value, the structural
quality, and the original architectural and aesthetic character of the Property, and
WHEREAS, Peltier Estates is not subject to the Common Interest Ownership Act
("MCIOA"), Chapter 515B of the Minnesota Statutes. Peltier Estates is exempt from MCIOA
pursuant to Minn. Stat. §515B.1-102(e)(2), because the units consist solely of separate parcels of
real estate designed or utilized for detached single family dwellings, and the Association has no
obligation to maintain any building containing a dwelling or any agricultural building, and the
Declarant has not elected to subject the Property to MCIOA.
WHEREAS, the Property is not subject to an ordinance referred to in Section 51513.1-
106 of MCIOA, governing conversions of common interest ownership, and
WHEREAS,the Property is not subject to a Master Association as defined in MCIOA.
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WHEREAS, the Property does not include any Shoreland, as that term is defined in
Minn. Stat. §103F.205.
THEREFORE, Declarant hereby declares that this Declaration shall constitute
covenants to run with the Property described herein, and that the Property shall be owned, used,
occupied and conveyed subject to the covenants, restrictions, easements, charges and liens set
forth herein, which are for the purpose of protecting the value and desirability of and shall run
with the Property, and shall be binding upon all persons owning or acquiring any right, title or
interest in the Property, and their heirs, personal representatives, successors and assigns, and
shall inure to the benefit of each owner thereof.
SECTION 1
DEFINITIONS
The following words when used in the Governing Documents shall have the following
meanings (unless the context indicates otherwise):
1.1 "Assessment" shall mean and refer to any assessment for Common Expenses,
determined by the Board, and levied by the Association, pursuant to the
Governing Documents.
1.2 "Association" shall mean Peltier Estates Homeowners' Association, a nonprofit
corporation which has been created pursuant to Chapter 317A of the laws of the
State of Minnesota.
1.3 "Board" shall mean the Board of Directors of the Association as provided for in
the By-Laws.
1.4 `By-Laws" shall mean the By-Laws governing the operation of the Association,
as amended from time to time.
1.5 "City„ shall mean the City of Centerville, a Minnesota municipal corporation.
1.6 "Common Elements" shall be owned by the Association for the common benefit
of the Owners and Occupants. The Common Elements include that real property
identified as Common Elements on Exhibit A, attached hereto, and all
improvements located thereon, and are further described in Section 3.1, below.
1.7 "Common Expense" shall mean and include all expenditures made or liabilities
incurred by or on behalf of the Association and incident to its operation, including
without limitation allocations to reserves and those items specifically identified as
Common Expenses in the Declaration or By-Laws.
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1.8 "Declarant Control Period" shall mean the period commencing upon the filing of
this Declaration and continuing until the earlier of. 1)the date Declarant no longer
owns any Unit; or 2) the date Declarant voluntarily turns over control of the
Association to the Owners.
1.9 "Dwelling" shall mean a building designed and intended for occupancy as a
single family residence, and located within the boundaries of a Unit. The
Dwelling includes any garage attached thereto or otherwise within the boundaries
of the Unit in which the Dwelling is located.
1.10 "Eligible Mortgagee" shall mean any Person owning a mortgage on any Unit,
which mortgage is first in priority upon foreclosure to all other mortgages that
encumber such Unit, and which has requested the Association, in writing, to
notify it regarding any proposed action which requires approval by a specified
percentage of Eligible Mortgagees.
1.11 "Governing Documents" shall mean this Declaration, and the Articles of
Incorporation, By-Laws and Rules and Regulations, as amended from time to
time, all of which shall govern the use and operation of the Property.
1.12 "Homebuilder" shall mean and refer to a builder in the business of constructing
residential properties, and who has purchased one or more Units for purposes of
resale of the Unit containing a completed Dwelling, and not for personal use by
the builder.
1.13 "Improvement" shall mean and refer to all structures or improvements of any
kind located on the Property, including without limitation any building, wall,
fence, sign, shed, screen enclosure or screening, utilities system, communications
system, security system, driveway, roadway decorative structure, planting,
landscape, grading or any other type of structure or physical improvement
whether the purpose is decorative or otherwise and any additions or changes
thereto.
1.14 "Irrigation System" shall mean and refer to a shared community landscape
irrigation system, located on the Common Elements and within the Irrigation
Easement, that shall service the Units and the Common Elements, and which may
include, but is not limited to, wells, pumps, filtrations systems, electrical power,
housing, irrigation lines, and sprinkler heads.
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1.15 "Limited Assessment" shall mean and refer to an assessment levied by the
Association against fewer than all of the Units in the Association pursuant to
Section 6.1, below.
1.16 "Limited Common Elements" Limited common elements include: 1) portions
of the common elements that are designated for the exclusive use of the unit
owners of the unit or units to which the limited common elements are allocated,
and 2) fixtures or improvements located wholly or partially outside a unit's
boundaries, that serve one or more but fewer than all of the units, and shall be
allocated solely to the unit or units served. Limited Common Elements are
subject to the rights granted to the Association herein or in a separate recorded
easement, including the Association's right to improve, inspect, use, repair,
replace, maintain and regulate. The Limited Common Elements are further
described in Section 3.2, below.
1.17 "Member" shall mean all persons who are members of the Association by virtue
of being Owners as defined in this Declaration. The words "Owner" and
"Member" may be used interchangeably in the Governing Documents.
1.18 "Occupant" shall mean any person or persons, other than an Owner, in
possession of or residing in a Unit.
1.19 "Owner" shall mean and refer to the record owner, whether one or more persons
or entities, of the fee simple title to any Unit except that if(i) a Unit is being sold
in a contract for deed, (ii) the contract vendee is in possession of the Unit and (iii)
the contract so provides, then the vendee and not the vendor shall be deemed the
"Owner".
1.20 "Person" shall mean a natural individual, corporation, limited liability company,
partnership, trustee, other or legal entity capable of holding title to real property.
1.21 "Plat" shall mean the plat of Peltier Estates, recorded in the offices of the County
Recorder or Registrar of Titles, Anoka County, Minnesota, and any amendments,
supplements and additions thereto, and replats thereof.
1.22 "Property" shall mean all of the real property submitted to this Declaration,
which is legally described on Exhibit A, attached hereto, and including the
Dwellings and all other structures and improvements located thereon now or in
the future.
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1.23 "Rules and Regulations" shall mean the Rules and Regulations of the
Association as approved from time to time pursuant to Section 5.6.
1.24 "Special Assessment" shall mean and refer to an assessment levied against the
Units in accordance with Section 6.3 of this Declaration.
1.25 "Special Declarant Rights" means rights reserved in the Declaration for the
benefit of a Declarant to: (i) complete improvements indicated on the Plat; (ii)
subdivide Units or convert Units into Common Elements, Limited Common
Elements and/or Units; (iii) maintain sales offices, management offices, signs
advertising the Property, and model homes; (iv)use easements through the
Common Elements for the purpose of making improvements within the Property;
(v) merge or consolidate a planned community with another planned community
of the same form of ownership; (vi) appoint and remove the members of the
Architectural Control Committee and (vii) appoint or remove any officer or
director of the Association where applicable, during any period of Declarant
control.
1.26 "Unit" shall mean any platted lot subject to this Declaration upon which a
Dwelling is located or intended to be located, as shown on the Plat, including all
improvements thereon, except limited common elements, as defined herein, if
any.
SECTION 2
DESCRIPTION OF UNITS AND APPURTENANCES
2.1 Units. There are twenty-four (24) single Units, all of which are restricted
exclusively to residential use. Each Unit constitutes a separate parcel of real
estate. No additional Units may be created by the subdivision or conversion of
Units, except as allowed in Section 15, below. The Unit identifiers and locations
of the Units are as shown on the Plat, which is incorporated herein by reference,
and a list of the 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. However, a Unit may be subject to one or more easements running in
favor of the Association, if set forth herein or otherwise properly recorded against
the Unit.
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2.3 Use and Enioyment Easements. Each Unit shall be the beneficiary of
appurtenant easements for use and enjoyment on and across the Common
Elements, and for use and enjoyment of any Limited Common Elements allocated
to the Unit, subject to any restrictions authorized by the Declaration.
2.4 Utility and Maintenance Easements. Each Unit shall be subject to and shall be
the beneficiary of appurtenant easements for all services and utilities servicing the
Units and the Common Elements, and for maintenance, repair and replacement as
described in Section 12.
2.5 Recorded Easements. The Property shall be subject to such other easements as
may be recorded against it or otherwise shown on the Plat.
2.6. Easements are Appurtenant. All easements and similar rights burdening or
benefitting a Unit or any other part of the Property shall be appurtenant thereto,
and shall be permanent, subject only to termination in accordance with the terms
of the easement. Any recorded easement benefitting or burdening the Property
shall be construed in a manner consistent with, and not in conflict with, the
easements created by this Declaration.
2.7 Impairment Prohibited. No person shall materially restrict or impair any
easement benefitting or burdening the Property; subject to the Declaration and the
right of the Association to impose reasonable Rules and Regulations governing
the use of the Property.
2.8 Benefit of Easements. All easements benefitting a Unit shall benefit the Owners
and Occupants of the Unit, and their families and guests. However, an Owner
who has delegated the right to occupy the Unit to an Occupant or Occupants,
whether by a lease or otherwise, does not have the use and other easement rights
in the Property during such delegated occupancy, except as a guest of an Owner
or Occupant or in connection with the inspection of the Unit or recovery of
possession of the Unit from the Occupant pursuant to law.
2.9 Irrigation System Easement. Each Unit shall be subject to an easement lying
over, under and across said Unit, in favor of the Association, for the purpose of
construction, reconstruction, use, inspection, maintenance, repair and replacement
of the Irrigation System, as defined above.
2.10 Retaining Wall Easement.. Lots 3, 17 and 15 shall be subject to an easement in
favor of the Association for the purpose of access to the retaining walls located on
or near the rear lot lines, respectively, to inspect, improve, repair, replace and
maintain said retaining walls.
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SECTION 3
COMMON ELEMENTS AND LIMITED COMMON ELEMENTS
3.1 Common Elements. The Common Elements and their characteristics are as
follows:
a. The Common Elements shall be owned by the Association for the
common benefit of the Owners and Occupants. The Common Elements
include, without limitation, that real property identified as Common
Elements and legally described on Exhibit A, attached hereto, and
improvements and fixtures located thereon, including, without limitation,
a boardwalk. The Common Elements also include the Irrigation System, a
portion of which shall be considered a Limited Common Element, in
accordance with section 3.2, below.
b. The Common Elements shall be subject to appurtenant easements for
services, public and private utilities and storm sewer, access, use and
enjoyment in favor of each Unit and its Owners and Occupants; subject to
(i) the right of Owners and Occupants in Limited Common Elements
appurtenant to their Units and (ii) the right of the Association to establish
reasonable Rules and Regulations governing the use of the Property.
C. Subject to Sections 5, 6 and 9, all maintenance, repair, replacement,
management and operation of the Common Elements shall be the
responsibility of the Association.
d. Common Expenses for the maintenance, repair, replacement, management
and operation of the Common Elements shall be assessed and collected
from the Owners in accordance with Section 6.
3.2 Limited Common Elements. Limited common elements include: 1) portions of
the common elements that are designated for the exclusive use of the unit owners
of the unit or units to which the limited common elements are allocated, and 2)
fixtures or improvements located wholly or partially outside a unit's boundaries,
that serve one or more but fewer than all of the units, and which are allocated
solely to the unit or units served. Limited Common Elements are subject to the
rights granted to the Association herein or in a separate recorded easement,
including the Association's right to construct, reconstruct, inspect, use, improve,
repair, replace, maintain and regulate. The portions of the Irrigation System
located within the Irrigation Easement crossing a Unit, shall be considered a
Limited Common Element, allocated to the respective Unit over which it crosses
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and which it serves. The portion of any retaining wall on the Property that is
located with the boundaries of a Unit, if any, shall be considered a Limited
Common element, allocated to the Unit in which it is located, but subject to the
rights of the Association granted herein.
SECTION 4
ASSOCIATION MEMBERSHIP: RIGHTS AND OBLIGATIONS
Membership in the Association, and the allocation to each Unit of a portion of the votes in the
Association and a portion of the Common Expenses of the Association shall be governed by the
following provisions:
4.1 Membership. Each Owner shall be a member of the Association by virtue of
Unit ownership, and the membership shall be transferred with the conveyance of
the Owner's interest in the Unit. An Owner's membership shall terminate when
the Owner's ownership terminates. When more than one Person is an Owner of a
Unit, all such Persons shall be members of the Association, but multiple
ownership of a Unit shall not increase the voting rights allocated to such Unit nor
authorize the division of the voting rights.
4.2 Voting and Common Expenses. Voting rights and Common Expense
obligations are allocated equally among the Units; except that special allocations
of Common Expenses shall be permitted as provided in Section 6.1.
4.3 Appurtenant Rights and Obligations. The ownership of a Unit shall include the
voting rights and Common Expense obligations described in Section 4.2. Said
rights, obligations and interests, and the title to the Units, shall not be separated or
conveyed separately. The allocation of the rights, obligations and interests
described in this Section may not be changed, except in accordance with the
Governing Documents.
4.4 Authority to Vote. The Owner, or some natural person designated to act as
proxy on behalf of the Owner, and who need not be an Owner, may cast the vote
allocated to such Unit at meetings of the Association; provided, that if there are
multiple Owners of a Unit, only the Owner or other Person designated pursuant to
the provisions of the By-Laws may cast such vote. The voting rights of Owners
are more fully described in Section 3 of the By-Laws.
4.5 Declarant Control. Notwithstanding the vote of any Unit Owner to the contrary,
the Declarant hereby reserves a period of Declarant control of the Association
during which the Declarant, or persons designated by the Declarant, may appoint
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and remove the officers and directors of the Association. Said reservation of
Declarant control is subject to the following:
a. The period of Declarant control shall extend from the date of filing of this
Declaration until the earliest of: 1) the date Declarant no longer has
ownership of any Unit; or 2) the date Declarant voluntarily turns over
control of the Association to the Owners.
b. Not later than the termination of Declarant control, the Unit Owners shall
elect a Board of Directors of at least three members. Thereafter, a
majority of the directors shall be Unit Owners other than Declarant or an
affiliate of Declarant. The remaining directors need not be Unit Owners
unless required by the Articles of Incorporation or Bylaws. All Unit
Owners, including the Declarant and its affiliates, may cast the votes
allocated to any Unit owned by them. The Board shall elect the officers.
The directors and officers shall take office upon election.
C. Except as otherwise provided in this subsection, meetings of the Board of
Directors must be open to all Unit Owners. To the extent practicable, the
Board shall give reasonable notice to the Unit Owners of the date, time
and place of a Board meeting. If the date, time and place of meetings are
provided for in this Declaration, the Articles of Incorporation or Bylaws of
the Association, were announced at a previous meeting of the Board,
posted in a location accessible to the Unit Owners and designated by the
Board from time to time, or if an emergency requires immediate
consideration of a matter by the Board, notice is not required. "Notice"
has the meaning given in Minnesota Statutes Section 317A.011,
subdivision 14. Meetings may be closed to discuss the following:
(1) personnel matters;
(2) pending or potential litigation, arbitration or other potentially
adversarial proceedings, between Unit Owners, between the Board
or Association and Unit Owners, or other matters in which any
Unit Owner may have an adversarial interest, if the Board
determines that closing the meeting is necessary to discuss strategy
or to otherwise protect the position of the Board of Association or
the privacy of a Unit Owner or occupant of a Unit; or
(3) criminal activity arising within the Property if the Board
determines that closing the meeting is necessary to protect the
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privacy of the victim or that opening the meeting would jeopardize
the investigation of the activity.
Nothing in this subsection imposes a duty upon the Board to provide special
facilities for meetings. The failure to give notice as required by this subsection
shall not invalidate the Board meeting or any action taken at the meeting.
SECTION 5
ADMINISTRATION
The administration and operation of the Association and the Property, including but not limited
to the acts required of the Association, shall be governed by the following provisions:
5.1 General. The operation and administration of the Association and the Property
shall be governed by the Governing Documents. The Association shall, subject to
the rights of the Owners set forth in the Governing Documents, be responsible for
the operation, management and control of the Property. The Association shall
have all powers described in the Governing Documents, and the statute under
which it is incorporated. All power and authority of the Association shall be
vested in the Board, unless action or approval by the individual Owners is
specifically required by the Governing Documents. All references to the
Association shall mean the Association acting through the Board unless
specifically state 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 (ii)
maintaining, repairing and replacing those portions of the Property for which it is
responsible and (iii) preserving the value and architectural uniformity and
character of the Property.
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 shall be binding upon all Owners and Occupants, and their
lessees, guests, heirs, personal representatives, successors and assigns, and all
secured parties.
5.4 By-Laws. The Association shall have By-Laws. The By-Laws and any
amendments thereto shall govern the operation and administration of the
Association.
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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; provided, however, that such delegation shall not relieve
the officers and directors of the ultimate responsibility for the performance of
their duties as described by the Governing Documents and by law.
5.6 Rules and Regulations. The Board shall have exclusive authority to approve and
implement such reasonable Rules and Regulations as it deems necessary from
time to time for the purpose of operating and administering the affairs of the
Association and regulating the use of the Property; provided that the Rules and
Regulations shall not be inconsistent with the other Governing Documents. 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, added to reserves, or retained in a working
capital fund, as determined by the Board.
SECTION 6
ASSESSMENTS FOR COMMON EXPENSES
6.1 General. Assessments for Common Expenses shall be determined and assessed
against the Units by the Board, in its discretion; subject to the limitations set forth
in Sections 6.2 and 6.3, and the requirements of the By-Laws. Assessments for
Common Expenses shall include annual assessments and may include special
assessments. Assessments shall be allocated among the Units according to the
Common Expense allocations set forth in Section 4.2, subject to the following
qualifications:
a. Any Common Expense associated with the maintenance, repair, or
replacement of a Limited Common Element undertaken by the
Association may be assessed exclusively against the Unit or Units to
which that Limited Common Element is assigned, on the basis of (i)
equality, or (ii)the actual cost incurred with respect to each Unit.
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b. Any Common Expense or portion thereof benefitting fewer than all of the
Units may be assessed exclusively against the Units benefited, on the basis
of(i) equality, or (ii)the actual cost incurred with respect to each Unit.
C. The costs of insurance obtained by the Association, if any, may be
assessed in proportion to value, risk or coverage, and the costs of utilities
may be assessed in proportion to usage.
d. Reasonable attorneys' fees and other costs incurred by the Association in
connection with (i) the collection of assessments and (ii) the enforcement
of the Governing Documents against an Owner or Occupant or their
guests, may be assessed against the Owner's Unit.
e. Fees, charges, late charges, fines and interest may be assessed for failure
to pay assessments when due, as determined by the Board of Directors.
f. If any damage to the Common Elements or another Unit is caused by the
act or omission of any Owner or Occupant, or their guests, the Association
may assess the costs of repairing the damage exclusively against the
Owner's Unit to the extent not covered by insurance.
g. If any installment of an assessment becomes more than 30 days past due,
then the Association may, upon 10 days written notice to the Owner,
declare the entire amount of the assessment immediately due and payable
in full.
h. If Common Expense liabilities are reallocated for any purpose, Common
Expense assessments and any installment thereof not yet due shall be
recalculated in accordance with the reallocated Common Expense
liabilities.
i. Assessments under Subsections 6.1 a.-g. shall not be considered special
assessments as described in Section 6.3.
6.2 Annual Assessments. Annual assessments shall be established and levied by the
Board. Each annual assessment shall cover all of the anticipated Common
Expenses of the Association for that year. Annual assessments shall provide,
among other things, for contributions to a separate reserve fund sufficient to cover
the periodic cost of maintenance, repair and replacement of the Common
Elements. The entire Annual Assessment shall be due and payable in full at the
time it is levied, but, at the discretion of the Board, may be paid in monthly,
quarterly, or semi-annual installments, or as otherwise determined by the Board.
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There shall be no limitation on the right of the Board to subsequently increase the
amount of the annual assessment.
a. Until a Common Expense assessment is levied, Declarant shall pay
all accrued expenses of the Association.
b. After a Common Expense assessment is levied, the assessment
may be increased by the Board annually.
6.3 Special Assessments. In addition to annual assessments, the Board may levy in
any assessment year a special assessment against all Units for the purpose of
defraying in whole or in part (i) the cost of any unforeseen or unbudgeted
Common Expense, (ii) general or specific reserves for maintenance, repair or
replacement, and (iii) the maintenance, repair or replacement of any part of the
Property, and any fixtures or other property related thereto.
6.4 Liability of Owners for Assessments. The obligation of an Owner to pay
assessments shall commence at the later of (i) the time at which the Owner
acquires title to the Unit, or (ii) the due date of the first Assessment levied by the
Board; provided, that neither Declarant nor a Homebuilder, nor any Unit owned
by such party, shall be liable for any Assessment, nor subject to any Assessment
lien, for any period, as long as there is no one residing in the Dwelling located on
the Unit. Subject to the foregoing exemption, the Owner at the time an
assessment is payable with respect to the Unit shall be personally liable for the
share of the Common Expenses assessed against such Unit. Such liability shall be
joint and several where there are multiple Owners of the Unit. The liability is
absolute and unconditional. No Owner is exempt from liability for payment of his
or her share of Common Expenses by right of set-off, by waiver of use or
enjoyment of any part of the Property, by absence from or abandonment of the
Unit, by the waiver of any other rights, or by reason of any claim against the
Association or its officers, directors or agents, or for their failure to fulfill any
duties under the Governing Documents. The Association may invoke the charges,
sanctions and remedies set forth in Section 13, in addition to any remedies
provided elsewhere in the Governing Documents or by law, for the purpose of
enforcing its rights hereunder.
6.5 Assessment Lien. The Association has a lien on a Unit for any assessment levied
against that Unit from the time the assessment becomes due. If an assessment is
payable in installments, the full amount of the assessment is a lien from the time
the first installment thereof becomes due. Fees, charges, late charges, fines and
interest charges imposed by the Association are also liens, and are enforceable as
assessments, under this Section. Recording of the Declaration constitutes record
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022818
notice and perfection of any lien under this Section, and no further recordation of
any notice of or claim for the lien is required.
6.6 Foreclosure of Liens; Remedies. A lien for Common Expenses may be
foreclosed against a Unit under the laws of the State of Minnesota (i) by action, or
(ii) by advertisement as a lien under a mortgage containing a power of sale. The
Association, or its authorized representative, shall have the power to bid in at the
foreclosure sale and to acquire, hold, lease, mortgage and convey any Unit so
acquired. The Owner and any other Person claiming an interest in the Unit, by
the acceptance or assertion of any interest in the Unit, grants to the Association a
power of sale and full authority to accomplish the foreclosure. The Association
shall, in addition, have the right to pursue any other remedy at law or in equity
against the Owner who fails to pay any assessment or charge against the Unit.
6.7 Lien Priority; Foreclosure. A lien under this Section is prior to all other liens
and encumbrances on a Unit except (i) liens and encumbrances recorded before
the Declaration, (ii) any first mortgage on the Unit, and (iii) liens for real estate
taxes and other governmental assessments or charges against the Unit.
Notwithstanding the foregoing, if a first mortgage on a Unit is foreclosed, and the
first mortgage was recorded on or after the date hereof, and no Owner redeems
during the Owner's period of redemption provided by Chapters 580, 581, or 582,
then the holder of the sheriffs certificate of sale from the foreclosure of the first
mortgage of the first mortgage or any person who acquires the title to the Unit by
redemption as a junior creditor shall take title to the Unit subject to a lien in favor
of the Association for the unpaid assessments for Common Expenses levied and
which became due, without acceleration, during the six months immediately
preceding the first day following the end of the Owner's period of redemption.
6.8 Voluntary conveyance; Statement of Assessments. In a voluntary conveyance
of a Unit the buyer shall not be personally liable for any unpaid assessments and
other charges made by the Association against the seller or the seller's Unit prior
to the time of conveyance to the buyer, unless expressly assumed by the buyer.
However, the lien of such assessments shall remain against the Unit until
satisfied. Any seller or buyer shall be entitled to a statement, in recordable form,
from the Association setting forth the amount of the unpaid assessments against
the Unit, including all assessments payable in the Association's current fiscal
year, which statement shall be binding on the Association, seller and buyer.
6.9 Working Capital Fund. There shall be established a working capital fund to
meet unforeseen expenditures, to purchase additional equipment or services of the
Association, and/or to cover the administrative costs associated with the transfer
of ownership of a Unit. At the time of sale of any improved Unit, whether initial
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sale or resale, the Purchaser shall pay a working capital fund contribution to the
Association in an amount equal to two monthly installments of the Assessments
against the Unit being conveyed. Notwithstanding the foregoing, the requirement
to contribute to the working capital fund shall not apply to the following: i) any
sale of an unimproved Unit; and ii) any sale to a Homebuilder, unless the
Homebuilder is purchasing the Unit for personal, rental and/or residential use, and
not for construction and resale. If anyone resides in the Dwelling on a Unit
during a period of Homebuilder ownership, it will be presumed that the
Homebuilder's intent was for residential use, and the Homebuilder shall be
required to contribute to the working capital fund, as provided herein. The
amounts paid into this fund are in addition to the regular monthly installments of
Assessments, and should not be considered an advance payment of regular
Assessment installments. The amounts paid to the working capital fund are not
refundable upon resale of the unit, or in any other circumstance. The funds shall
be deposited into the Association's account, and may be used to pay or defray the
expenses of the Association in connection with any Unit transfer, any other
operating expense of the Association, or as a contribution to the Association's
reserves.
SECTION 7
RESTRICTIONS ON USE OF PROPERTY
All Owners and Occupants, and all secured parties, by their acceptance or assertion of an interest
in the Property, or by their occupancy of a Unit, covenant and agree that, in addition to any other
restrictions which may be imposed by the 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, 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 Compliance with Law. No use shall be made of the Property which would
violate any then existing municipal codes or ordinances, or state or federal laws,
nor shall any act or use be permitted which could cause waste to the Property,
cause a material increase in insurance rates on the Property, or otherwise cause
any unusual liability, health or safety risk, or expense, for the Association or any
Owner or Occupant.
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7.3 Subdivision Prohibited. Unless otherwise provided herein, no Unit or any part
of the Common Elements may be subdivided or partitioned without the prior
written approval of all Owners and all secured parties holding first mortgages on
the Units.
7.4 Residential Use. The Units shall be used by Owners and Occupants and their
guests exclusively as private, single family residential dwellings, and not for
transient hotel, commercial, business or other non-residential purposes, except as
specifically permitted. Any lease of a Unit (except for occupancy by guests with
the consent of the Owner) for a period of less than 7 days, or any occupancy
which includes services customarily furnished to hotel guests, shall be presumed
to be for transient purposes.
7.5 Quiet Enioyment; Interference Prohibited. All Owners and Occupants and
their guests shall have a right of quiet enjoyment in their respective Units, and
shall use the Property in such a manner as will not cause a nuisance, nor unduly
restrict, interfere with or impede the use of the Property by other Owners and
Occupants and their guests.
7.6 Business Use Restricted. No business, trade, occupation or profession of any
kind, whether carried on for profit or otherwise, shall be conducted, maintained or
permitted in any Unit or the Common Elements; except (i) an Owner or Occupant
residing in a Unit may keep and maintain his or her business or professional
records in such Unit and handle matters relating to such business by
correspondence, telephone, facsimile, computer or other electronic means
therefrom, provided that such uses are incidental to the residential use, do not
involve physical alteration of the Unit and do not involve any observable business
activity such as signs, advertising displays, bulk mailings, deliveries, or visitation
or use of the Unit by customers or employees and (ii) the Association may
maintain offices on the Property for management and related purposes.
7.7 Animals. No animal may be bred, or kept or maintained for business or
commercial purposes anywhere on the Property. The Board shall have the
exclusive authority to prohibit, or to allow and regulate, by Rules and
Regulations, the keeping of animals on the Property for personal use. The word
"animal" shall be construed in its broadest sense and shall include all living
creatures except humans.
7.8 Alterations to a Unit. An Owner may not make changes to the exterior of a
Dwelling or yard without prior written authorization of the ACC as provided in
Section 8, below.
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7.9 Parking and Outside Storage. Garages, driveways 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 Board. The Board shall have the authority to
regulate, by Rules and Regulations, the use of driveways and other parking areas
on the Property, and the types of vehicles, the number of vehicles and personal
property permitted thereon, including, without limitation, the right of the
Association to tow illegally parked vehicles or to remove unauthorized personal
property from the Property, including the Units, outside of the Dwellings.
Exceptions to such regulations based on special circumstances may be requested,
in advance, from the Board, which shall have the sole authority to make a
determination on any such request.
7.10 Suns. No sign of any kind shall be displayed to the public view on any Lot
except one sign of not more than nine (9) square feet advertising a Lot or Unit for
sale or rent (signs used by a builder to advertise the availability of Lots or
dwellings upon the Property during the construction and sales period are exempt).
This restriction shall not apply to any model Unit or any sign or logo for any
model Unit.
7.11 Garbage, Recycling and Refuse. Trash, garbage, and other waste shall be kept
in sanitary containers. All equipment for storage or disposal of such materials
shall be kept in a clean and sanitary condition, and screened from public view.
The Board shall have the right to select a single garbage hauler to serve the entire
Property.
7.12 Minimum Square Footage. The minimum size of all Dwellings located on the
Property shall be 1,400 square feet above grade, unless otherwise approved by the
Board.
7.13 Mailbox. It is anticipated that group mailboxes with approximately 12-16
mailboxes per structure, or as otherwise directed by the Postmaster, will be
installed on the Property. The mailboxes and mailbox structures shall be
maintained in good condition and in an attractive, first-class manner by the
Association.
7.14 Leasing. Leasing of the Units shall be allowed, subject to reasonable regulation
by the Board, and subject to the following conditions: (i) that no Unit shall be
leased for transient or hotel purposes, (ii) that no Unit may be subleased without
written consent of the Association, (iii) that all leases shall be in writing, (iv)
Documentation showing Unit has a Rental Dwelling License from City, and (v)
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that all leases shall provide that they are subordinate and subject to the provisions
of the Governing Documents, and that any failure of the lessee to comply with the
terms of such documents shall be a default under the lease. The Association may
impose such reasonable Rules and Regulations as may be necessary to implement
procedures for the leasing of Units, consistent with this Section.
7.15 Time Shares Prohibited. The time share form of ownership, or any comparable
form of lease, occupancy rights or ownership which has the effect of dividing the
ownership or occupancy of a Unit into separate time periods, is prohibited.
7.18 Structures outside of the Dwelling: Due to the difficulty and increased cost that
structures located outside of a Dwelling would cause for the Association in
providing snow removal and lawn maintenance, no temporary or permanent
structure may be installed or maintained on a Unit, other than inside the Dwelling,
unless expressly provided herein. Notwithstanding the above, the following shall
be permitted, at the discretion of the Board:
a. Fences: "Invisible fencing" is permitted in front and rear yards of the
Dwelling. Partial fences may be permitted by the Board, in its sole
discretion, if they do not interfere with the Lawn Maintenance provided by
the Association and if they otherwise meet the standards established by the
Board for uniform appearance of the Property.
b. Landscaping: No trees, gardens, shrubs, flowers or other plants shall be
planted by any Owner on any part of the Property outside of a Dwelling.
Notwithstanding the foregoing, plantings may be permitted by the Board,
in its sole discretion, if they do not interfere with the Lawn Maintenance
provided by the Association and if they otherwise meet criteria established
by the Board for uniform appearance of the Property.
C. Basketball Hoop. One basketball hoop and backboard (permanently
affixed in-ground pole mounting only) may be permitted by the Board or
the ACC, on a case-by-case basis, in the front driveway area, provided that
the use thereof does not involve any interference with adjacent Units and
Owners.
d. Flags. The American flag may be proudly displayed on the front
elevation of any Dwelling utilizing a mounting bracket affixed to the
Dwelling and a removable flag and flagstaff.
7.20 Rights of Declarant and Homebuilders. Until the last Unit is sold and
conveyed to an Owner other than the Declarant or a Homebuilder, the following
action by said persons, and their agents and assigns, will not be deemed violations
of the foregoing restrictions:
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a. Use of a Dwelling for model and sales office purposes;
b. Storage of equipment, materials or earth during the construction of new
Dwellings on Units owned by the person doing such storage or
construction; and
C. Display of signs advertising Units in the Property as allowed by the City.
SECTION 8
ARCHITECTURAL CONTROL
8.1 Restrictions on Alterations. The following restrictions and requirements shall
apply to alterations on the Property:
a. Except as expressly provided in this Section 8, no structure, building,
addition, deck, patio, fence, wall, enclosure, window, exterior door, sign,
display, decoration, color change, shrubbery, material topographical or
landscaping change, nor any other exterior Improvements to or alteration
thereof, or alteration of any Dwelling or any other part of a Unit which is
visible from the exterior of the Unit (collectively referred to as
"alterations"), shall be commenced, erected or maintained in a Unit, unless
and until the plans and specifications showing the nature, kind, shape,
height, color, materials and locations of the alterations shall have been
approved in writing by the Architectural Control Committee, described
below.
b. The Architectural Control Committee (the "ACC") shall consist of three
(3) members. The Declarant shall have the exclusive authority to appoint
and remove the members of the ACC for a period of time extending until
Declarant voluntarily surrenders such control. Specifically, Declarant's
right to control the ACC may extend beyond Declarant's Control Period
over the Association, as described in Section 4.5, above. After the
Declarant has surrendered control over the ACC, the committee members
shall be appointed and removed by the Board of Directors. At any time, if
no ACC is in existence, the Board of Directors shall serve as the ACC.
All references in the Declaration to the ACC shall apply to the Board of
Directors, if no ACC is in existence. In addition, Declarant's written
consent shall be required for alterations until such time as there are no
Units owned by Declarant or a Homebuilder, Declarant no longer has the
right to add Units, and Declarant has voluntarily turned over control of the
Association.
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d. The ACC shall have authority to establish reasonable criteria and
requirements for alterations, and shall be the sole judge of whether the
criteria are satisfied. The criteria for approval shall include and require, at
a minimum, (i) substantial uniformity of color, size, location, type and
design in relation to existing improvements and topography, (ii)
comparable or better quality of materials as used in existing
improvements, (iii) ease of maintenance and repair, (iv) adequate
protection of the Property, the Association, Owners and Occupants from
liability and liens arising out of the proposed alterations, and (v)
compliance with governmental laws, codes and regulations.
d. Approval of alterations which encroach upon another Unit or the Common
Elements shall create an appurtenant easement for such encroachment in
favor of the Unit with respect to which the alterations are approved;
provided, that any easement for a deck or patio other than as originally
constructed shall be approved by resolution of the ACC and a file of such
resolutions shall be maintained permanently as a part of the Association's
records.
8.2 Review Procedures. The following procedures shall govern requests for
alterations under this Section:
a. Detailed plans, specifications and related information regarding any
proposed alteration, in form and content acceptable to the ACC, shall be
submitted to the ACC at least forty-five (45) days prior to the projected
commencement of construction. No alterations shall be commenced prior
to approval.
b. The ACC shall give the Owner written notice of approval or disapproval.
If the ACC fails to approve or disapprove within forty-five (45) days after
receipt of said plans and specifications and all other information requested
by the ACC, then approval will not be required, and this Section shall be
deemed to have been fully complied with so long as the alterations are
done in accordance with the plans, specifications and related information
which were submitted.
C. If no request for approval is submitted, approval is denied, unless (i) the
alterations are reasonably visible and (ii) no written notice of the violation
has been given to the Owner in whose Unit the alterations are made, by
the Association or another Owner, within six months following the date of
completion of the alterations. Notice may be direct written notice or the
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commencement of legal action by the Association or an Owner. The
Owner of the Unit in which the alterations are made shall have the burden
of proof, by clear and convincing evidence, that the alterations were
completed and reasonably visible for at least six months following
completion and that the notice was not given.
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, whether or not a legal action is started. Such attorneys' fees
and costs shall be a lien against the Owner's Unit and a personal obligation of the
Owner. In addition, the Association shall have the right to enter the Owner's Unit
and to restore any part of the Dwelling or Unit to its prior condition if any
alterations were made in violation of this Section, and the cost of such restoration
shall be a personal obligation of the Owner and a lien against the Owner's Unit.
8.4 Protection from Liability. Neither Declarant, the Association, its directors or
officers, the members of the ACC, nor any person acting on behalf of any of
them, shall be liable for any costs or damages incurred by any person due to any
alleged mistakes in judgment, negligence or any action of the ACC in connection
with the approval or disapproval of plans and specifications. The Association
shall indemnify, defend and hold harmless the ACC and each of its members from
all costs, expenses and liabilities, including attorneys' fees, of all nature resulting
by virtue of the acts of the ACC or its members. Neither Declarant, the directors
or officers of the Association, the members of the ACC, nor any person acting on
behalf of any of them, shall be responsible for any defects in any plans or
specifications, nor for any defects in any Improvements constructed pursuant
thereto. Each person submitting an application for approval shall be solely
responsible for the sufficiency of all plans and specifications submitted and for
the quality of construction of the Improvements constructed, and shall hold
harmless, indemnify and defend the Association, and their respective officers,
directors, committee personnel and agents, from and against all claims, damages
and liabilities arising out of the approval or construction of the Improvements to
which their application relates.
8.5 No Representation of Compliance. No approval of plans and specifications and
no publication of standards by the ACC shall be construed as representing or
implying that such plans, specifications; or standards will, if followed, result in
properly designed Improvements. Such approvals and standards shall not be
construed as representing or guaranteeing that any Dwelling or other
Improvement built in accordance therewith was built in a good and workmanlike
manner. Neither Declarant, the Association, nor the ACC shall be responsible or
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liable for any defects in any plans or specifications submitted or approved; any
loss or damages to any person arising out of the approval or disapproval of any
plans or specifications, any loss or damage arising from the noncompliance of
such plans and specifications with any governmental ordinances and regulations;
nor any defects in construction undertaken pursuant to such plans and
specifications.
8.6 Additional Standards. The ACC is authorized to promulgate from time to time
additional written architectural standards, guidelines and other regulations
governing the construction, location, landscaping, and design of alternations and
Improvements located or to be located on the Property.
SECTION 9
MAINTENANCE
9.1 Maintenance by Association. The Association shall provide for all maintenance,
repair and replacement (collectively referred to as "Maintenance") of the
Common Elements. This includes, without limitation:
a. Mowing and other maintenance of lawns, shrubs, trees and other
landscaping located on the Common Elements;
b. All mailboxes that serve the Units;
C. The Irrigation System, defined above, which may include, but is not
limited to, wells, pumps, filtrations systems, electrical power, housing,
irrigation lines, and sprinkler heads, and which shall be located within the
Common Elements and the Irrigation Easement;
d. The boardwalk located on the Common Elements;
e. The retaining walls located on the Common Elements and a portion of
which may be located on the rear of Lots 3, 15 and 17, Block 1, Peltier
Estates, Anoka County, Minnesota;
f The pond located on the Common Elements, pursuant to that maintenance
agreement between the Association and the Rice Creek Water Shed
District, as may be amended from time to time, and additional
Maintenance, in the discretion of the Board;
g. Any entrance monument constructed on the Property, including
landscaping ang lighting.
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9.2 Association Maintenance of Units. In addition to the Maintenance described in
this Section, the Association shall provide the following Maintenance to the
Units:
a. Maintenance of lawns, shrubs and trees, including, without limitation,
mowing and watering; and
b. Snow removal from driveways, walkways, and front steps, but excluding
rear patios.
9.3 Maintenance by Owner. Except for the Maintenance required to be provided by
the Association under Section 9.1 and 9.2, all Maintenance of the Dwellings and
Units shall be the sole responsibility and expense of the Owners thereof. The
Association or the ACC may require that any exterior Maintenance to be
performed by the Owner be accomplished pursuant to specific uniform criteria
established by the Association. The Association may also undertake any exterior
Maintenance which the responsible Owner fails to or improperly performs and
assess the Unit and the Owner for the cost thereof.
9.4 Damage Caused by Owner. Notwithstanding any provision to the contrary in
this Section, if, in the judgment of the Association, the need for Maintenance of
any part of the Property is caused by the willful or negligent act or omission of an
Owner or Occupant, or their guests, or by a condition in a Unit which the Owner
or Occupant has willfully or negligently allowed to exist, the Association may
cause such damage or condition to be repaired or corrected (and enter upon any
Unit to do so), and the cost thereof may be assessed against the Unit of the Owner
responsible for the damage.
9.5 Easements for Maintenance. The Association shall have easements as described
in Section 12 to perform its obligations under this Section 9.
SECTION 10
INSURANCE
10.1 Required Insurance. The Association shall obtain and maintain, at a minimum,
a policy of insurance in accordance with the requirements set forth herein, issued
by a reputable insurance company or companies authorized to do business in the
State of Minnesota, as follows:
a. The Association shall maintain property insurance covering the risk of
physical loss of the Common Elements and may include any additional
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portion of the Property that the Association is required to maintain. The
policy or policies may cover personal property owned by the Association.
The type and amount of any such coverage shall be determined by the
Board.
b. Comprehensive public liability insurance covering the use, operation and
Maintenance of the Common Elements, and which may include any
additional areas the Association has an easement for Maintenance
responsibilities, with minimum limits of $1,000,000 per occurrence,
against claims or death, bodily injury and property damage, and such other
risks as are customarily covered by such policies for projects similar in
construction, location and use to the Property. The policy shall contain a
"severability of interest" endorsement which shall preclude the insurer
from denying the claim of an Owner or Occupant because of negligent
acts of the Association or other Owners or Occupants. The policy shall
include such additional endorsements, coverages and limits with respect to
such hazards as may be required by the regulations of the FHA or FNMA
as a precondition to their insuring, purchasing or financing a mortgage on
a Unit.
C. Fidelity bond or insurance coverage against dishonest acts on the part of
directors, officers, managers, trustees, employees or persons responsible
for handling funds belonging to or administered by the Association if
deemed to be advisable by the Board or required by the regulations of the
FHA or FNMA as a precondition to the purchase or financing of a
mortgage on a Unit. The fidelity bond or insurance shall name the
Association as the named insured and shall, if required by the regulations
of the FHA or FNMA as a precondition to their insuring, purchasing or
financing of a mortgage on a Unit, be written in an amount equal to the
greater of (i) the estimated maximum of Association funds, including
reserves, in the custody of the Association or management agent at any
given time while the bond is in force, or (ii) a sum equal to three months
aggregate assessments on all Units plus reserves. An appropriate
endorsement to the policy to cover any persons who serve without
compensation shall be added if the policy would not otherwise cover
volunteers, or a waiver of defense based upon the exclusion of persons
serving without compensation shall be added.
d. Worker's Compensation insurance as required by law.
e. Such other insurance as the Board may determine from time to time to be
in the best interests of the Association and the Owners.
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10.2 Property Insurance for Units. Each Owner shall obtain and maintain the
Owner's own property and liability insurance coverage relating to the ownership
of the Owner's Unit and any structures constructed thereon. However, the
Owners, including the Declarant, if applicable, may elect at any time to have the
Association provide the property and/or liability insurance on all of the Units by
approval of 67% of the votes in the Association. Election may be obtained in
writing or at a meeting of the Association duly held in accordance with the By-
Laws. In such event, the Association's insurance policy shall declare a
maximum deductible of $50,000.00 per claim. Furthermore, each Owner shall
retain the right to obtain additional personal insurance coverage at his or her own
expense covering fire and other casualty to the Unit, personal property or personal
liability. In the event the Association maintains an insurance policy covering all
of the Units, then any insurance policy maintained by an Owner must provide that
it is without contribution as against the insurance purchased by the Association.
An Owner's personal insurance coverage ("HO 6 Policy") must contain an
endorsement providing that the difference between an Owner's personal insurance
coverage ("HO 6 Policy") deductible and the deductible on the insurance policy
provided by the Association shall be paid by the HO 6 Policy.
10.3 Premiums; Improvements; Deductibles. All premiums for insurance coverage
maintained by the Association shall be assessed and paid as a Common Expense.
The Association may, in the case of a claim for damage resulting from the acts or
omissions of a Unit Owner or Occupant or their guest, licensee or invitee, (i) pay
the deductible amount as a Common Expense; (ii) pay the deductible and assess
the deductible amount against such Unit and Owner in any reasonable manner; or
(iii) require the Owner of the Unit responsible for the damage 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 upon
fault.
10.4 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). 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.
10.5 Waivers of Subrogation. All policies of insurance shall contain waivers of
subrogation by the insurer against the Association, the Board, Owners, members
of the Owner's household, officers or directors, as applicable, and, if available,
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waivers of any defense based on co-insurance or of invalidity from any acts of the
insured.
10.6 Cancellation; Notice of Loss. All policies of property insurance and
comprehensive liability insurance maintained by the Association shall provide
that the policies shall not be cancelled or substantially modified, for any reason,
without at least thirty (30) days prior written notice to the Association, to the FHA
or FNMA (if applicable), all of the insureds and all Eligible Mortgagees.
10.7 Restoration in Lieu of Cash Settlement. All policies of property insurance
maintained by the Association shall provide that, despite any provisions giving
the insurer the right to elect to restore damage in lieu of a cash settlement, such
option shall not be exercisable (i) without the prior written approval of the
Association (or any Insurance Trustee) or (ii) when in conflict with provisions of
any insurance trust agreement to which the Association may be a party, or any
requirement of law.
10.8 No Contributions. 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.
10.9 Effect of Acts Not Within Association's Control. All policies of insurance
maintained by the Association shall provide that the coverage shall not be voided
by or conditioned upon (i) any act or omission of an Owner or Eligible
Mortgagee, unless acting within the scope of authority on behalf of the
Association, or (ii) any failure of the Association to comply with any warranty or
condition regarding any portion of the Property over which the Association has no
control.
SECTION 11
RECONSTRUCTION, CONDEMNATION AND EMINENT DOMAIN
11.1 Reconstruction. Any repair or reconstruction shall be substantially in
accordance with the plans and specifications of the Property as initially
constructed and subsequently improved, unless otherwise determined by the
ACC, in its sole discretion. Notice of substantial damage or destruction shall be
given pursuant to Section 17.
11.2 Condemnation and Eminent Domain. In the event of a taking of any part of the
Property by condemnation or eminent domain, notice shall be given pursuant to
Section 17. Eligible Mortgagees shall be entitled to priority for condemnation
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awards in accordance with the priorities established by the Governing Documents,
as their interests may appear.
11.3 Notice. All Eligible Mortgagees shall be entitled to receive notice of any
condemnation proceedings or substantial destruction of the Property, and the
Association shall give written notice thereof to an Eligible Mortgagee pursuant to
Section 17.
SECTION 12
EASEMENTS
12.1 Easement for Maintenance, Repair, Replacement and Reconstruction. Each
Unit, and the rights of the Owner and Occupants thereof, shall be subject to the
rights of the Association to an exclusive, appurtenant easement on and over the
Units for the purposes of maintenance, repair, replacement and reconstruction of
the Units, and utilities serving the Units, to the extent necessary to fulfill the
Association's obligations under the Governing Documents.
12.2 Utilities Easements. The Property shall be subject to non-exclusive appurtenant
easements for all utilities, storm sewer, water and sewer, and similar services,
which exist from time to time, as constructed or referred to in the Plat, or as
otherwise described in this Declaration or any other duly recorded instrument.
Each Unit, and the rights of the Owners and Occupants thereof, shall be subject to
a non-exclusive easement in favor of the other Units for all such services,
including without limitations any sewer or water lines servicing other Units. Each
Unit shall also be subject to an exclusive easement in favor of the Association and
all utilities companies providing service to the Units for the installation and
maintenance of utilities metering devices.
12.3 Declarant's Easements. Declarant shall have and be the beneficiary of
easements for construction and sales activities as described in Section 14.
12.5 Continuation and Scope of Easements. Notwithstanding anything in this
Declaration to the contrary, in no event shall an Owner or Occupant be denied
reasonable access to his or her Unit or the right to utility services thereto. The
easements set forth in this Section shall supplement and not limit any easements
described elsewhere in this Declaration or recorded, and shall include reasonable
access to the easement areas through the Units and the Common Elements for
purposes of maintenance, repair, replacement and reconstruction.
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SECTION 13
COMPLIANCE AND REMEDIES
Each Owner and Occupant, and any other Person owning or acquiring any interest in the
Property, shall be governed by and comply with the provisions of the Governing Documents, the
Rules and Regulations, the decisions of the Association, and such amendments thereto as may be
made from time to time. A failure to comply shall entitle the Association to the relief set forth in
this Section, in addition to the rights and remedies authorized elsewhere by the Governing
Documents.
13.1 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 other Owner, to enforce compliance with the Governing
Documents, the Rules and Regulations, 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 or the Rules
and Regulations, as a measure to enforce such Owner's position, or for any other
reason.
13.2 Sanctions and Remedies. In addition to any other remedies or sanctions,
expressed or implied, administrative or legal, the Association shall have the right,
but not the obligation, to implement any one or more of the following actions
against Owners and Occupants and/or their guests, who violate the provisions of
the Governing Documents:
a. Commence legal action for damages or equitable relief in any court of
competent jurisdiction.
b. Impose late charges of up to 15% of each late payment of an assessment or
installment thereof, and to charge interest on delinquent amounts due at a
rate determined by the Board and set forth in the Rules and Regulations,
but not to exceed the maximum rate permitted by applicable law.
C. In the event of default of more than 30 days in the payment of any
assessment or installment thereof, all remaining installments of
assessments assessed against the Unit owned by the defaulting Owner may
be accelerated and shall then be payable in full if all delinquent
assessments, together with all costs of collection and late charges, are not
paid in full prior to the effective date of the acceleration. Reasonable
28
022818
advance written notice of the effective date of the acceleration shall be
given to the defaulting Owner.
d. Impose reasonable fines, penalties or charges for each violation of the
Governing Documents of the Association.
e. Suspend the rights of any Owner or Occupant and their guests to use any
Common Element amenities; provided, that this limitation shall not apply
to Limited Common Elements 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 30 days thereafter, for each violation.
f. Restore any portions of the Common Elements or Limited Common
Elements damaged or altered, or allowed to be damaged or altered, by any
Owner or Occupant or their guests in violation of the Governing
Documents, and to assess the cost of such restoration against the
responsible Owners and their Units.
g. Enter any Unit or Limited Common Element in which, or as to which, a
violation or breach of the Governing Documents exists which materially
affects, or is likely to materially affect in the near future, the health or
safety of the other Owners or Occupants, or their guests, or the safety or
soundness of any Dwelling or other party of the Property or the property
of the Owners or Occupants, and to summarily abate and remove, at the
expense of the offending Owner or Occupant, any structure, thing or
condition in the Unit or Limited Common Elements which is causing the
violation; provided, that any improvements which are a part of a Unit may
be altered or demolished only pursuant to a court order or with the
agreement of the Owner.
h. Foreclose any lien arising under the provisions of the Governing
Documents or under law, in the manner provided for the foreclosure of
mortgages by action or under a power of sale in the state where the
property is located.
13.3 Rights to Hearing. In the case of imposition of any of the remedies authorized
by Section 13.2.d., e., or f. of this Section, the Board shall upon written request of
the offender, grant to the offender a fair and equitable hearing. The offender shall
be given notice of the nature of the violation and the right to a hearing, and at
least 10 days within which to request a hearing. The hearing shall be scheduled
29
022818
by the Board and held within thirty (30) days of receipt of the hearing request by
the Board, and with at least ten (10) days prior written notice to the offender. If
the offending Owner fails to appear at the hearing then the right to a hearing shall
be waived and the Board may take such action as it deems appropriate. The
decision of the Board and the rules for the conduct of hearings established by the
Board shall be final and binding on all parties. The Board's decision shall be
delivered in writing to the offender within ten (10) days following the hearing, if
not delivered to the offender at the hearing.
13.4 Lien for Charges, Penalties, Etc. Any assessments, charges, fines, penalties or
interest imposed under this Section shall be a lien against the Unit of the Owner
or Occupant against whom the same are imposed and the personal obligation of
such Owner in the same manner and with the same priority and effect as
assessments under Section 6. The lien shall attach as of the date of imposition of
the remedy, but shall not be final as to violations for which a hearing is held until
the Board gives written notice following the hearing. All remedies shall be
cumulative, and the exercise of, or failure to exercise, any remedy shall not be
deemed a waiver of the right to pursue any others.
13.5 Costs of Proceeding and Attorneys Fees. With respect to any collection
measures, or any measures or action, legal administration, or otherwise, which the
Association takes to enforce the provisions of the 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.
13.6 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.
13.7 Enforcement by Owners. The provisions of this Section shall not limit or impair
the independent rights of other Owners to enforce the provisions of the Governing
Documents, the Rules and Regulations, as provided therein.
30
022818
SECTION 14
SPECIAL DECLARANT RIGHTS
Declarant, its agents and assigns, hereby reserves exclusive and unconditional authority to
exercise the following special declarant rights for as long as it owns a Unit, or for such shorter
period as may be specifically indicated:
14.1 Complete Improvements. To complete all improvements described herein or
otherwise included in Declarant's development plans or allowed by the
Declaration, and to make alterations in the Units and Common Elements to
accommodate its sales facilities.
14.2 Sales Facilities. To construct, operate and maintain a sales office, management
office, model Units and other development, sales and rental facilities within the
Common Elements and any Units owned by Declarant from time to time, located
anywhere on the Property.
14.3 Suns. To erect and maintain signs and other sales displays offering the Units for
sale or lease, in or on any Unit owned by Declarant and on the Common
Elements, and to erect a permanent marker or markers at the entrance to the
development.
14.4 Easements. To have and use easements, for itself, its employees, contractors,
representatives, agents and prospective purchasers through and over the Common
Elements for the purpose of exercising its special declarant rights.
14.5 Control of Association. To control the operation and administration of the
Association, including without limitation the power to appoint and remove the
members of the Board until the earlier of: (i) the date Declarant no longer owns a
Unit; or (i)voluntary surrender of control by Declarant.
14.6 Consent to Amendments. As long as Declarant or a Homebuilder owns any
unsold Unit, Declarant's written consent shall be required for all amendments to
the Governing Documents.
14.7 Use in Advertising. To photograph the exterior of the Units and use said
photographs or reproductions for advertising purposes.
14.8 Special Assignment of Declarant Rights. Declarant's Rights contained in the
Declaration are separately assignable by Declarant, and may be transferred by
Declarant executing and recording one or more Special Assignment of Declarant
31
022818
Rights with the County Recorder, setting forth a description of the right being
assigned, and the identity of the assignee.
SECTION 15
DECLARANT'S RIGHTS TO
RELOCATE UNIT BOUNDARIES AND ALTER UNITS
15.1 Declarant shall have the right, without the consent of the Owners or the
Association, to: 1) relocate boundaries between Units owned by Declarant; 2)
combine Units, by removing boundaries between adjacent Units owned by
Declarant; and 3) convert Units owned by Declarant, or any part thereof, into
additional Units or Common Elements. Additionally, Declarant may amend this
Declaration in order to subdivide or convert Units without the consent of the
Owners.
SECTION 16
AMENDMENTS
This Declaration may otherwise be amended by the consent of(i) Owners of Units to which are
allocated at least sixty-seven percent (67%) of the votes in the Association; and (ii) the consent
of Declarant, as long as Declarant or a Homebuilder owns a Unit. Consent of the Owners may
be obtained in writing or at a meeting of the Association duly held in accordance with the By-
Laws. Consent of the Declarant shall be in writing. The Amendment shall be effective when
recorded. An affidavit by the Secretary of the Association as to the outcome of the vote, or the
execution of the foregoing agreements or consents, shall be adequate evidence thereof for all
purposes, including without limitation, the recording of the amendment.
SECTION 17
RIGHTS OF ELIGIBLE MORTGAGEES
17.1 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 except for (i) a lien in favor of the association for unpaid
assessments for common expenses levied and which became due, without
acceleration, during the six months immediately preceding the first day following
the end of the owner's period of redemption; and (ii) except that any
32
022818
unreimbursed assessments or charges may be reallocated among all Units in
accordance with their interests in the Common Elements.
17.2 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.
17.3 Priority for Condemnation Awards. No provision of the Governing Documents
shall give an Owner, or any other part, priority over any rights of the Eligible
Mortgagee of the Unit pursuant to its mortgage in 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.
17.4 Access to Books and Records/Audit. Eligible Mortgagees shall have the right to
examine the books and records of the Association upon reasonable notice during
normal business hours, and to receive free of charge, upon written request, copies
of the Association's annual reports and other financial statements. Financial
statements, including those which are audited, shall be available within one
hundred twenty (120) days of the end of the Association's fiscal year. If a request
is made by FNMA or any institutional guarantor or insurer of a mortgage loan
against a Unit, for an audit of the Association's financial statements for the
preceding year, the Association shall cause an audit to be made and deliver a copy
to the requesting party.
17.5 Notice Requirements. Upon written request to the Association, identifying the
name and address of the holder, insurer or guarantor of a mortgage on a Unit, and
the Unit number or address, the holder, insurer or guarantor shall be entitled to
timely written notice of:
a. a condemnation loss or any casualty loss which affects a material portion
on the Property or the Unit securing the mortgage;
b. a 60 day delinquency in the payment of assessments or charges owned by
the Owner of a Unit on which it holds a mortgage;
C. a lapse, cancellation or material modification of any insurance policy
maintained by the Association; and
33
022818
e. a proposed action which requires the consent of a specific percentage of
Eligible Mortgagees.
17.6 Consent Deemed Granted. Consent of a secured party, including an Eligible
Mortgagee, required hereunder is deemed to be granted if the secured party's
written refusal to consent is not received by the Association within sixty (60) days
after the secured party receives from the Association notice and a copy of the
amendment, by certified U.S. Mail, postage prepaid, and return receipt requested.
SECTION 18
MISCELLANEOUS
18.1 Severability. If any term, covenant, or provision of this instrument or any exhibit
attached hereto is held to be invalid or unenforceable for any reason whatsoever,
such determination shall not be deemed to alter, affect or impair in any manner
whatsoever any other portion of this instrument or exhibits.
18.2 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. Any reference herein to
MCIOA shall not be interpreted so as to subject the Association or the Declarant
to any provision of MCIOA, unless otherwise specifically set forth herein.
18.3 Notices. Unless specifically provided otherwise in the Governing Documents, all
notices required to be given by or to the Association, the Board of Directors, the
Association officers or the Owners or Occupants shall be in writing and shall be
effective upon hand delivery, or upon mailing if properly addressed with postage
prepaid and deposited in the United States mail, or upon receipt if delivered by
email or other electronic means; except that registrations pursuant to Section 2.2
of the By-Laws shall be effective upon receipt by the Association.
18.4 Conflicts Among Documents. In the event of any conflict among the provisions
of the Articles, Declaration, By-Laws and Rules or Regulations, the Articles shall
control. In the event of any conflict among the provisions of the Declaration, By-
Laws and Rules and Regulations, the Declaration shall control, and as between
the By-Laws and the Rules and Regulations, the By-Laws shall control.
Notwithstanding the above, where two or more provisions of any documents to
which the Property is subject, address the same matter, the more restrictive
provision shall control.
34
022818
SECTION 19
RIGHTS OF THE CITY OF CENTERVILLE
19.1 Purpose. The City of Centerville (the "City") has executed various agreements
with, and secured certain covenants from, the Declarant and has a continuing
interest in the performance of those agreements and covenants. Further, the City
has a continuing interest in enforcing the maintenance obligations of the
Association, in accordance with the terms set forth herein.
19.2 Right to Enforce Covenants. In the event the Association fails to fulfill its
Maintenance obligations set forth in Section 9.1.a., above ("Failure to Maintain"),
and such Failure to Maintain shall continue for a period of thirty (30) days after
deposit in the United States Mail of written notice of Failure to Maintain upon the
Declarant and the Association ("Written Notice") at the registered address of the
Association on file with the Minnesota Secretary of State, or at such other address
as the Declarant or Association provide to the City, or for such longer period of
time as agreed to in writing by the City, then the City shall have the right to
enforce such Maintenance obligations, or to enter onto the Property for the purpose
of fulfilling the Maintenance obligations identified in the Written Notice. In such
event, the City shall have the right to bill the Association for the costs incurred by
the City in completing the Maintenance. In the event the Association fails to
reimburse the City for such costs, the City may specially assess the costs thereof
against the Units on a pro rata basis and/or bring legal action against the Association
to collect any sums due to the City hereunder, including reasonable costs and
attorney's fees incurred in enforcing this Agreement.
SECTION 20
PROPERTY DISCLOSURE
20.1 Declarant hereby discloses that the Declarant does not intend to build the
Dwellings located within the Property, and Declarant makes no representation or
warranty concerning the identity of the builders who may be constructing homes
on the Property.
(Signature page attached)
35
022818
IN WITNESS WHEREOF, the undersigned has executed this instrument the day and
year first above set forth.
SHARPER COMMUNITIES, LLC
By:
Its: Chief Manager
STATE OF MINNESOTA )
) SS
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2018, by , as of Sharper Communities, LLC, a Minnesota
limited liability company, on behalf of the limited liability company.
Notary Public
THIS INSTRUMENT DRAFTED BY:
Gries Lenhardt Allen, P.L.L.P.
Jill M. Presseller
1272543 rd Street NE, Suite 201
St. Michael, MN 55376
(763)497-3099
36
022818
PELTIER ESTATES
EXHIBIT A TO DECLARATION
LEGAL DESCRIPTION OF PROPERTY
SCHEDULE OF UNITS/LEGAL DESCRIPTION OF UNITS:
Lots 1 —24, Block 1, Peltier Estates, Anoka County, Minnesota.
COMMON ELEMENTS:
Lot 25, Block 1 Peltier Estates, Anoka County, Minnesota.
37
022818
CITY OF CENTERVILLE,ANOKA COUNTY,MINN.
Findings and Recommendation regarding
Conditional Use Permit(Planned Unit Development
The Planning&Zoning Commission met on October 3, 2017, to hold a public hearing to
consider a request of Diamond View Partners LLC, and Sharper Communities, LLC for a
Planned Unit Development of their property.
FINDINGS:
1) The property is currently described as: N %z of NE '/ of SE % of Sec 14 Twp 31, Rge
22, exc E 348.5 ft. of S 125 ft. of SD N1/2, EX RD, Subj. to Ease of record,
consisting of approximately 18 acres.
2) The applicant has submitted a request Planned Unit Development in conjunction with
applications for subdivision and rezoning from R-1 to R-2.
3) The proposed development provides for 24 units of detached townhomes.
4) City Code Sec 156.210 specifies that approval of a Planned Unit Development be in
substantially the same form as for approval of a conditional use permit.
5) The Commission finds that the unique characteristics of this property make
development difficult due to numerous wetlands on the property.
6) The Commission finds that development at the proposed density of approximately 1.5
units per acre will benefit to both the City and the applicant property owners and is in
conformance with the city's Comprehensive Plan.
7) The applicant provided evidence to show that the development could not occur at a
reasonable density without some flexibility in the design of the plat.
8) The City Code allows flexibility in design through a Planned Unit Development.
RECOMMENDATION:
The Planning & Zoning Commission by its action on this 3'd day of October, 2017,
recommends that the council grant approval of the Planned Unit Development, subject to
the following:
1) Developer shall execute a Planned Unit Development agreement to be
approved by City Council.
2) Staff recommendations are forwarded to Council with this recommendation.
3) A draft permit is attached hereto.
■■rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr�rrarrrrrrrrrrrrrr�rrrrrrrrrrrrrr
1
7
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CITY OF CENTERVILLE
ANOKA COUNTY,MINNESOTA
CONDITIONAL USE PERMIT
APPROVAL OF PLANNED UNIT DEVELOPMENT
1. Permit. Subject to the terms and conditions set forth herein, the City of Centerville
hereby grants approval of a Planned Unit Development for:
Applicant,Diamond View Partners LLC, and Sharper Communities, LLC,to
develop the described property into 24 units of detached townhomes.
Approval is granted to complete the development subject the conditions of this
permit.
2. Property. The permit is for the following described property:
N '/z ofNE '/ of SE '/ of Sec 14 Twp 31,Rge 22, exc E 348.5 ft. of S 125 ft. of
SD N1/2, EX RD, Subj. to Ease of record,consisting of approximately 18 acres.
3. Conditions. This permit is issued subject to the following conditions:
A. The applicant shall execute a PUD agreement as attached hereto as Exhibit A.
B. Grantee will follow the standards and requirements of the City of Centerville,
Rice Creek Watershed District, Anoka County, Army Corp of Engineers,
FEMA, Minnesota DNR and any other agency having jurisdiction over the
project and shall secure and file with the City, any permits required by outside
agencies.
C. Approval is subject to staff and city engineer review for conformance with
city code and standards.
2
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D. Developer shall dedicate easements adjoining the County road right of way
along the east side of the property as required by Anoka County.
E. Developer to create a perpetual home owner's association providing upkeep
and maintenance of semi-public amenities to include,but not limited to, off-
street parking stalls,boardwalk and other amenities as indicated in
construction documents and/or on the Plat, and record same as a deeded
covenant for each of the 24 units of detached townhomes.
5. Criminal Penalty. Violation of the terms of this permit is a criminal misdemeanor.
Dated:
CITY OF CENTERVILLE
BY:
Jeff Paar, Mayor
Attest:
Teresa Bender, City Clerk
STATE OF MINNESOTA )
) ss.
COUNTY OF ANOKA )
The foregoing was acknowledged before me this_day of 2017.
by Jeff Paar,Mayor and Teresa Bender, Clerk of the City of Centerville, a Minnesota
municipal corporation, on behalf of the corporation and pursuant to authority granted by
its City Council.
Notary Public
3
9
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CITY OF CENTERVILLE,ANOKA COUNTY,MINN.
Findings and Decision for
Subdivision Approval
The Planning& Zoning Commission met on October 3, 2017, to hold a public hearing to
consider a request of Diamond View Partners LLC, and Sharper Communities, LLC
subdivide their property.
FINDINGS:
1) The property is currently described as: N % of NE % of SE '/ of Sec 14 Twp 31, Rge
22, exc E 348.5 ft. of S 125 ft. of SD N1/2, EX RD, Subj. to Ease of record,
consisting of approximately 18 acres.
2) The applicant has submitted a Planned Unit Development in conjunction with this
request for subdivision which provides for 24 units of detached townhomes.
3) The Commission finds that the unique characteristics of this property make
development difficult due to numerous wetlands on the property.
4) The Commission fords that development at the proposed density of approximately 1.5
units per acre will benefit to both the City and the applicant property owners and is in
conformance with the city's Comprehensive Plan.
5) The applicant provided evidence to show that the development could not achieve a
reasonable density without some flexibility in the design of the plat.
6) The City Code allows flexibility in design through a Planned Unit Development.
RECOMMENDATION:
The Planning & Zoning Commission by its action on this 3`d day of October, 2017,
recommends that the council grant preliminary and final plat approval, subject to the
following:
1) Owner will include any right of way requirements of Anoka County Highway
Department as they relate to CSAH 54.
2) The final plat configuration shall be subject to a Planned Unit Development
agreement to be approved by City Council.
CITY COUNCIL DECISION:
Findings and recommendation are hereby adopted by the Council this 11th day of
October, 2017.
Jeff Paar,Mayor
Attest:
Teresa Bender, City Clerk
10
* ** *# * * ** ** * #** t f *# • a ** ** *# 4 * ** *##* * * * * * * * i ** * * **
Findings and Recommendation for Rezoning from R-1 to R-2
The Planning & Zoning Commission met on October 3, 2017, to consider an application
for rezoning certain property from R-i to R-2.
Findings:
1. The City received an application from the owner of certain property requesting a
rezoning from R-1 to R-2, in conjunction with a subdivision and Planned Unit
Development application.
2. The 2030 Comprehensive Plan provided guidance for future land uses in several parts
of the city.
3. The Planning and Zoning Commission has determined that the proposed rezoning is
in conformance with the future land use guide as indicated by the 2030
Comprehensive Plan. The rezoned land will be used for low density, single-family
homes facilitating controlled population growth towards the City's goal of 5,000
residents. This rezoning will allowed construction of the proposed development ina
manner that will protect existing wetland amenities while avoiding environmental
constraints.
4. The owners of properties affected by the proposed changes were notified by mail, and
published notice of the City's intention to amend the Official Zoning Map was given
as required by law.
5. A public hearing was held on October 3, 2017, at 6:30 p.m. and all persons desiring to
offer comments and testimony were heard and written comments were considered and
placed in the record.
RECOMMENDATION:
The Planning & Zoning Commission has determined that the following property should
be rezoned from R-1 (Rural Residential) to R-2 (Low Density Residential) and that the
Official Zoning Map should be amended.
See Attached "EXHIBIT A"
The Commission recommends that the council approve its findings and recommendation
and fin Cher that the Council adopt an ordinance amending the Official Zoning Map
accordingly.
Motion made and duly passed by the Planning&Zoning Commission of the City of
Centerville on October 3, 2017.
Dallas Larson, Interim Administrator
EXHIBIT A
Property to be rezoned from R-1 (Rural Residential) to R-2 (Low Density Residential)
Property ID Ws:
14-31-2241-0001
N % of NE % of SE 2/ of See 14 Twp 31, Rge 22, exc E 348.5 ft. of S 125 ft. of SD
N1/2,EX RD,Subj.to Ease of record
12
CITY OF CENTERVILLE
ANOKA COUNTY,MINNESOTA
ORDINANCE# , Second Series
AN ORDINANCE REZONING CERTAIN PROPERTY FROM R-1 TO R-2
THE CITY COUNCIL OF THE CITY OF CENTERVILLE ORDAINS:
SECTION 1. City Code Chapter 156, the City's zoning ordinance,is hereby amended by
rezoning certain property located within the City of Centerville, County of Anoka, State
of Minnesota, and legally described as:
Property ID#: 14-31-2241-0001
N '/2 of NE '/ of SE '/4 of Sec 14 Twp 31, Rge 22, exc E 348.5 ft. of S 125 ft. of SD
N1/2,EX RD,Subj.to Ease of record
SECTION 2.The Zoning Map of the City of Centerville referred to and described in
Chapter 156 shall not be republished to show the aforesaid rezoning,but the City
Administrator or the City Administrator's designee shall appropriately mark the Zoning
Map on file in the City Administrator's office for the purpose of indicating the rezoning
provided for in this ordinance and all of the notations,references, and other information
shown thereon are hereby incorporated by reference and made a part of this ordinance.
SECTION 3. This ordinance shall be effective immediately upon its passage and
publication according to law.
PASSED AND ADOPTED this day of , 2017,by the City Council of
the City of Centerville.
Jeff Paar,Mayor
ATTEST:
Teresa Bender, City Clerk
13
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15
CITY OF CENTERVILLE REQUEST
FOR COMMISSION ACTION
entero (fe
E77
Agenda Item# Department: Requested Meeting Date:
Building Inspections 3/6/2018
TITLE OF ISSUE:
Swimming Pool Covers
BACKGROUND AND SUPPLEMENTAL INFORMATION:
At the last P&Z meeting, a resident requested the commission to look into changing the city's ordinance to
allow for locking, rigid pool covers, in lieu of a fence. The resident mentioned that Blaine allows such
substitution. Attached is the excerpt from the Centerville's ordinance, then Blaine's rules, followed by
comments from the city's Building Official, Paul Palzer.
COST AND SOURCE(S) OF FUNDING:
No cost
REQUESTED ACTION:
Staff recommends that no action be taken and that existing ordinances regarding swimming pool safety remain
in place.
For Clerk's Use:
SUPPORTED DOCUMENTS ATTACHED
Motion By:
Resolution Ordinance Contract Minutes Plan Map
Second By:
Vote Record: A e Nay
Mosher Other(specify) Centerville ordinance language
Haiden
Twohv Blaine ordinance lanauaae. Comments from Building
Ganzel
Broussard Vickers Official
Refer to:
Consent Tabled Until:
Regular Other:
(3) All fences shall be constructed and maintained in a substantial,workmanlike manner and of
material reasonably suited for the purpose for which the fence is proposed to be used. Every
fence shall be constructed so that the side containing the framing supports and cross-pieces face
the interior of the fence owner's lot. Any fence which does not comply with the provisions of
this section or which endangers the public safety,health or welfare shall be considered a public
nuisance.
(B)Srsov-soysJuncing, Snow-stop fencing may be used from November 1st to April 1st in R-1 Districts.
No permit shall be required for snow stop fencing.
(C)Electric and barbed wire fence. Electric fences,hog wire fencing, barbed-wire fencing and similar
fencing will not be allowed,except in the R-I District and then may only be used in conjunct with
agricultural activities.
(D)Visual obstructions.No fence may be erected which creates visual obstructions at any intersection,alley,
driveway or street for safe vehicular,bicycle or pedestrian movement.
(E)'Swimmingpooffs ncin g. No permanent private swimming pool with a water depth exceeding 24 inches
may be allowed,unless enclosed by a permanent wall or fence not less than four feet in height with sell-
,-closing door and self-closing latch.A swimming pool shall be considered permanent if it has a
"Ponneste d water supply, a drain connection or electrical connection where any of these require an
electrical,mechanical,plumbing or building permit under the Minnesota Building Code.
(F) Fencing in commercial/industrial zoning districts shall not exceed eight feet in height.Fences, except
decorative fences not exceeding three feet in height, shall not be placed in a front yard of an industrial or
commercial lot.
(G)gip ecial Privacy Screening. A single family property may install in a rear yard, special privacy screening
around a pool,hot tub and/or patio,with a height of up to 7.5 feet. The total area enclosed by the special
privacy screening may not exceed an area equal to one half of the area of the first floor of the dwelling.
The total lineal footage of the special screening shall not exceed an amount equal to the distance across
the lot at the front setback of the dwelling. Special Privacy Screening may not be located closer to any
lot line than ten feet nor closer to any street property line than 35 feet, Installation is not allowed without
first securing a permit from the city°
Ord. #80, adopted 0511112005, Ord, 2d#XX, adopted 0812812013
§§ 156.112 THROUGH 156.120 RESERVED FOR FUTURE USE.
§ 156.121 HEIGHT.
356 1 i x ,, e
Location
> Pools shall not be located within ten (10) feet of any side or any rear lot line, nor within six (6)
feet of any principal structure or frost footing, unless located inside the structure. Pools shall
not be located within any required front yard.
> All pool deck surrounds, adjacent patiolaprons, or similar areas or other similar areas used in
conjunction with the swimming pool, shall be located not closer than ten (10) feet to any
adjacent property owners lot line.
> The filter unit, pump, heating unit, and other noise-making mechanical equipment shall be
located no closer than ten (10)feet to any lot line, and located in the rear yard.
> The location of all pools in relation to all electrical wiring shall comply with the current addition
of the National Electric Code.
> Pools shall not be located within any private or public utility, walkway, drainage, or other
easement.
A Restrictions in all dist(icts in which pools and fences are permitted - refer to the resolution
and/or zoning ordinance of the proposed site, for detailed requirements,
Barriers/Fences - No persono nin or operating an outdoor swimming pool, that requires a permit,
shall use, operate, or allow the use of such swimming pool unless such pool complies With the
provisions of this section. The required safety fencing shall be completely installed with installation of
the pool.
> All private residential outdoor swimming pools and pool barriers, existing (subject to any
variance heretofore granted by the council), modified, and hereafter constructed, shall meet
the requirements of these standards. Exceptions, Existing pools and equipment that complied
with the City of Blaine requirements at the time they were constructed permitted or approved
by the City of Blaine.
> Barrier/Fencing and post materials shall be of substantial construction, decay or corrosion
resistant, and capable of resisting a 200 pound lateral load applied in any direction at any point
along the top. All fence posts shall be set in concrete bases or other suitable protection.
Alternative barrier construction materials, climbing protection, and design must be approved by
the building official.
> AH private residential outdoor swimming pools shall be made inaccessible when not in use by
a non-climbable barrier. It must also be positioned far enough away from permanent
structures so that they do not provide climbing assistance. Exceptions- 1. as and hot tubs
with a lockable safety cover that complies with ASTIVIF 1346, 2. Swimming pools with a
powered safety cover that complies with ASTM F 1346.
> Installed of barriers should be at least 48 inches high from finished ground level, as
measured along the outside oft barrier, and should have no more than a 2 inch gap from
the bottom of the border to the ground. Such height shall exist around the entire perimeter for
a distance of 3 feet where measured horizontally from terequired harder. Openings in the
barrier shall not allow passage of a 4 inch diameter sphere.
> A pool structure all, itself, can serve as a barrier if the wall is at least four feet above grade.
If a barrier is mounted to the to of the pool structure, the barrier must be installed in
accordance with the manufacturer's instructions. The ladder or steps shall be surrounded by a
barrier.
• Note. There are products available that would help you meet this requirement without
having to build a fence. Search for"Pool Entry System"online. These"systems" must
have a and a barrier that meet all of the requirements listed in this handout.
H Drivel Teaini/Inspectionsl 2016 HANDOUTS1 SMIMnifIg Pools&Hot Tubs 0410712016
Comments from the City's Building Official, Paul Palzer:
The requirement for fences around pools came from the State Building code. Many of the code
requirements are designed to protect occupants, especially children under 12. A quick stat is that
drowning is the second leading cause of death for children under 15 in the US. It is the number one
cause of unintentional deaths of children ages 1-4. More than half of the deaths occur in backyard
pools or spas that do not have proper pool fencing or pool covers. The majority of drowning incidents
have occurred while the child's supervisor assumed the child was safely indoors. The fence
requirements is for the pool not the current resident that resides at the location for the next owners
will surely be a family with children or grandchildren and a new pool owner may not be fully aware
of the dangers a pool can present for his children or neighbor children. A proper pool fence with a
self-closing, self-latching gate is akin to seatbelts in a vehicle. I recommend the website
poolsafety.gov run by the US Consumer Protection Department for informational reading. A proper
pool fence works 24/7, a pool cover only works when the owner remembers to close it and insures
that the material has not lost its integrity.
I reviewed major cities in the southern US who have many more pools than in Minnesota and
all require pool fencing and many are more restrictive than Centerville's requirements. Let me know
if you need more information.