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Regular City Council Meeting
Minutes
City Hall Council Chambers, 2660 Civic Center Drive
Monday, September 22, 2008
1. Call Roll
Mayor Klausing called to order the regular meeting of the Roseville City Council at ap-
proximately 6:00 p.m. and welcomed everyone.
Voting and Seating Order: Roe; Ihlan; Willmus; Pust; and Klausing.
Finance Director Chris Miller was present, serving as Acting City Manager; City Attor-
ney Jay Squires was also present.
2. Approve Agenda
Councilmember Ihlan requested removal of Consent Agenda Item 7.d entitled, Adopt a
Resolution supporting the Ramsey County Library remaining open during Reconstruc-
tion." By consensus, the agenda was approved as amended.
3. Housing & Redevelopment Authority (HRA) Interviews
Councilmembers interviewed Josh Fuhrman for a vacancy on the HRA. HRA Vice Chair
Dean Maschka was also present during the interview.
4. Public Comment
Mayor Klausing called for public comment by members of the audience on any non-
agenda items. No one appeared to speak.
5. Council Communications, Reports & Announcements & Housing and Redevelop-
ment Authority (HRA) Report
a. HRA Council Liaison Pust briefly reported on ongoing work of the HRA in mak-
ing the annual Home and Garden Fair greener; and reported on the recent success
of the first HRA-sponsored Energy Forum.
5. Recognitions, Donations, Communications
a. Recognition of Roseville Police Officer's Work during the Republican Na-
tional Convention
Finance Director Chris Miller presented several bench handouts, consisting of let-
ters of appreciation to the City's Police Department for their work dut`ing the Re-
publican National Convention.
Mayor Klausing, on behalf of the City Council and community, thanked Chief
Sletner and Police officers for their work.
Regular City Council Meeting
Monday, September 22, 2008
Page 2
6. Approve Minutes
a. Approve Minutes of September 15, 2008 Regular Meeting
Roe moved, Pust seconded, approval of the minutes of the September 15, 2008
Regular Meeting of the City Council as amended.
Corrections:
Page 14, line 6, Item b. United Properties - PF07-006 (Roe), correct last sen-
tence of first paragraph to read:
"Councilmember Ihlan spoke in support of requiring park land dedication fees
and removing the public road. [ ]"
Page 19, lines 30-33, Item b. United Properties - PF07-006 (Roe/Ihlan/Pust)
Reverse Roll Call Vote as follows:
Ayes: Pust.
Nays: Roe; Willmus; and Klausing.
Abstentions: Ihlan.
Motion failed.
Roll Call
Ayes: Roe; Ihlan; Willmus; Pust; and Klausing.
Nays: None.
7. Approve Consent Agenda
There were no additional changes to the Consent Agenda than those previously noted. At
the request of Mayor Klausing, Finance Director Chris Miller briefly reviewed those
items being considered under the Consent Agenda.
a. Approve Check Register
Willmus moved, Klausing seconded, approval of the following claims and pay-
ments as presented.
ACH Pa ments $739,507.84
98; 52457-52572 420,295.11
Total $1,159,802.95
Roll Call
Ayes: Roe; Ihlan; Willmus; Pust; and Klausing.
Nays: None.
b. Approve General Purchases or Sale of Surplus Items Exceeding $5,000
Willmus moved, Klausing seconded, approval of general purchases and/or con-
tracts as follows:
De artment Vendor Item/Descri tion Amount
Public Works United Rentals Trenchbox $11,829.63
Streets North American Salt Blanket P. O. for ice control 16,131.55
Regular City Council Meeting
Monday, September 22, 2008
Page 3
Roll Call
Ayes: Roe; Ihlan; Willmus; Pust; and Klausing.
Nays: None.
c. Approve Ownership Name Change for Romano's Macaroni Grill, for On-
Sale and Sunday Intoxicating Liquor Licenses
Willmus moved, Klausing seconded, approval of the On-Sale and Sunday Intoxi-
cating Liquor License for Romano's Macaroni Grill.
Roll Call
Ayes: Roe; Ihlan; Willmus; Pust; and Klausing.
Nays: None.
e. Approve Renewal of Ramsey County GIS User Group Joint Powers Agree-
ment
Willmus moved, Klausing se conded, approval of the renewal of the Ramsey
County GIS User Group Joint Powers Agreement.
Roll Call
Ayes: Roe; Ihlan; Willmus; Pust; and Klausing.
Nays: None.
f. Adopt a Resolution relating to Firefighters Relief Association By-law
Changes
Willmus moved, Klausing seconded adoption of Resolution No. 10657 entitled,
"Resolution Adopting Proposed Changes to the Roseville Fire Department Relief
Association Bylaws."
Roll Call
Ayes: Roe; Ihlan; Willmus; Pust; and Klausing.
Nays: None.
g. Appoint Election Judges
Willmus moved, Klausing seconded, appointment of election judges, as listed in
the staff report dated September 22, 2008, to work at the November 4, 2008 Gen-
eral Election and directing the City Manager to appoint additional judges if the
need arises.
Roll Call
Ayes: Roe; Ihlan; Willmus; Pust; and Klausing.
Nays: None.
8. Consider Items Removed from Consent
a. Adopt a Resolution Supporting the Ramsey County Library remaining open
during Reconstruction (Former Consent Item 7.d)
Regular City Council Meeting
Monday, September 22, 2008
Page 4
At the request of Mayor Klausing, Finance Director Chris Miller briefly reviewed
this item.
Mayor Klausing noted a recent Pioneer Press article about the City Council con-
sidering aresolution of support for Ramsey County keeping the library open at a
location in Roseville during construction. Mayor Klausing clarified that it was
the decision of the Ramsey County Board, not the City Council, as to whether the
facility was kept open. However, Mayor Klausing spoke in support of a facility
remaining open in Roseville for the benefit of Roseville residents and surrounding
communities.
Pust moved, Ihlan seconded, adoption of Resolution No. 10658 entitled, "Resolu-
tion Encouraging Ramsey County to Keep the Roseville Library Branch Open
During Reconstruction;" as amended to read (Lines 66-70:
"NOW, THEREFORE, BE IT RESOLVED, that the Roseville City Council en-
courages the Ramsey County Board of Commissioners to keep an interim Rose-
ville Library open [in Roseville) in some capacity for the community during re-
construction. "
Roll Call
Ayes: Roe; Ihlan; Willmus; Pust; and Klausing.
Nays: None.
Mayor Klausing wished the Library Board well in their presentation to the Ram-
sey County Board.
Councilmember Pust encouraged residents to let their elected County officials
know their interest in keeping the library open in Roseville during construction.
9. General Ordinances for Adoption
10. Presentations
11. Public Hearings
a. Public Hearing to Consider Establishment of Housing Improvement Area for
Westwood Village I
City of Roseville Housing Program Coordinator Jeanne Kelsey reviewed the
background, proposal and suggested Council Action related to the request of
Westwood Village I for establishment of a Housing Improvement Area (HIA) as
detailed in the staff report dated September 22, 2008. Ms. Kelsey highlighted
specifics of HIA's, included in Section 3 of the staff report. Ms. Kelsey reviewed
staff's analysis, review of the Association's current financial situation and future
financial plan.
Regular City Council Meeting
Monday, September 22, 2008
Page 5
A bench handout was provided with additional detail via a-mail from Ms. Sue
Shea, Past President of the Westwood Village I Association regarding steps taken
by the Association to ensure future financial stability of the Association to avoid
similar situations.
As detailed in the staff report, Section 3.9, Ms. Kelsey noted that a second public
hearing would be scheduled in the future to discuss the cost of the project and the
amounts to be assessed against each unit, with requested Council action at that
time in the form of a resolution assessing those costs prior to the project being ini-
tiated. Ms. Kelsey noted that there would be opportunity for residents to pay off
the assessment without finance charges or fees; in accordance with the Associa-
tion's Second Amendment Declaration for establishing assessment amounts, basi-
cally dividing costs equally among the 47 homeowners.
Ms. Kelsey reviewed the proposed ordinance establishing a housing improvement
area (HIA) that would, upon enactment of the City Council, take place 45 days
thereafter; and that during that time period, owners of at least 35% of the units, or
in this case, 17 units, could veto the ordinance by filing a petition of objection.
Ms. Kelsey reviewed, as per Section 3.10 of the staff report, other communities
having established HIA's in the past, and their experiences in doing so. As part of
their analysis, staff recommended a 15)year term, with a 1.5% administrative fee
over and above the assessment amount of the improvements, using the Second
Amended Declaration of Common Interest Community No. 727, a Planned Com-
munity -Westwood Village, distributing assessments equally among the 47
homeowners.
Ms. Kelsey provided, in addition to written testimony provided in the staff report,
three additional written testimonials supporting the requested City Council action.
Ms. Kelsey concluded by reviewing requested Council action tonight, in opening
the Public Hearing to take public comment; noting that mailed notice was sent to-
tal owners of record within the proposed boundary of the HIA for Westwood Vil-
lage I, in addition to published notice in the Roseville Review. Ms. Kelsey noted
that the current and past presidents of the Association Board were present and
would like to speak to the issue prior to public comment.
Mark Lindberg, current President, Westwood Village I; [2702] MacKubin
Street
Mr. Lindberg read a prepared statement, providing a history of the project, current
deterioration of the buildings, lack of foresight in original governing documents
from the 1960's for this major of a project, inadequate Association funds, and the
Association's desire to partner with the City to accomplish this rehabilitation. Mr.
Lindberg opined that this project would serve to meet goals as outlined in the Sec-
Regular City Council Meeting
Monday, September 22, 2008
Page 6
tions 1 - 6 of the Imagine Roseville community visioning process and its priori-
ties.
Sue Shea, former President and now Vice President, Westwood Village I,
2666 MacKubin Street
Ms. Shea also read from a prepared statement, noting that Village units were
ninety-six percent (96%) owner-occupied; and reviewed her a-mail providing the
steps taken to avoid a similar situation in the future; through hiring of a CAP to
complete a reserve study and long-term financial plan for the Association; in-
creased dues to meet long-term needs; the hiring of a third party construction
manager to provide technical aspects of the project design specifications and re-
view of bid documents; and monies spent on attorney fees throughout this process
and in developing a Second Amended Declaration for the Association. Ms. Shea
advised that, while all unit owners could not be appeased, the majority of over
seventy-five (75%) had approved and adopted amended documents. Ms. Shea
opined that the documents were fair and clearly established allocations for im-
provements and assessments; and respectfully asked that the City Council honor
the decisions of the majority of property owners; and asked that the City Council
consider reducing the proposed administrative fee.
Mayor Klausing referenced several portions of the Second Amended Declaration,
provided to him at his request earlier in the day by staff; and apologized that he
had not directed staff to copy all Councilmernbers prior to the meeting. Staff
made copies of the document for all Councilmembers during the meeting, as well
as for the public.
Discussion among Councilmembers, staff and Association Board President
Lindberg, and Vice President Shea included allocation of costs per linear foot and
definition of the surface areas; uniqueness of the design of the units and varying
levels of specific units; additional costs for courtyard door replacement on all 47
units; and door and window trim cost allocations; and limited common elements
addressed in Section 6 of the Second Amended Declaration, Section 3.2, subdivi-
sion 2 (i.e., gutters, downspouts and roofing) with window replacement being an
individual homeowner responsibility. It had been determined by the majority vote
that all units would be assessed equally, whether internal or end units, noting that
benefit of end units was limited and everyone essentially benefited from the end
units, based on advice of the Association's attorney and interpretation of common
interest community law, and based on majority rule of the community..
Further discussion ensued regarding changes to original covenants and determina-
tion of which properties were defined as unlimited common property; sizes of
units (varying); and the City Council's obligation to determine if the requested ac-
tion, based on the documents presented, was fair and equitable, without attempt-
ing to micro-manage the project; and the nominal monetary differences for as-
Regular City Council Meeting
Monday, September 22, 2008
Page 7
sessments when divided among the units and based on majority decision of prop-
erty owners.
Councilmember Pust opined that the Association Board had done an amazing
amount of work for a volunteer board, and thanked them for their perseverance,
further opining that the Board, as well as the City Council had learned a lot.
Councilmember Pust questioned if the board had taken into consideration, for the
construction work, making the property more environmentally friendly and en-
ergy efficient to be good environmental stewards in the products being considered
for the improvements. Councilmember Pust provided her rationale in seeking this
information to serve the greater Roseville community needs through improvement
of this strong piece of the City's housing stock, benefiting the entire community.
Councilmember Pust opined that, through this process and in redoing Association
documents, it had hopefully served as a learning experience in working together
as a community, while compromising on various aspects, and commended the As-
sociation majority for increasing their dues to accommodate future improvements,
negating the need to return to the City for assistance in the future.
Mr. Lindberg advised that the Association was attempting to do so, with insula-
tion board insulation behind the siding, in addition to insulated siding to allow en-
ergy savings for homeowners; in addition to many individual property owners in-
stalling new windows at a cost investment of $15 - 20,000 per unit out-of-pocket,
which would also save energy.
Ms. Kelsey, at the request of Councilmember Pust, provided a review of why the
private sector was not willing to finance these improvements. Ms. Kelsey high-
lighted discussions with U. S. Bank and Bremer Bank, with them both identifying
their reason for denial based on only approximately 10% in replacement reserves,
and the amount needed estimated to be $1.5 million; thus not meeting the banks'
underwriting requirements to cover a certain percentage of 20 - 25%. Ms. Kelsey
noted that Bremer Bank offered to serve as a direct placement for the City of the
loan, rather than the City pursuing a bond in the market place; however, they de-
manded that the improvement be assessed on individual taxes so they could be
guaranteed a return on their investment.
Additional discussion included current housing and economic markets; conse-
quences of any units that may go into foreclosure and impacts to the association
and/or assessment pay back to the City; and confirmation that the private market
was not an option for the Association or property owners.
Councilmember Pust opined that, before the government served as a bank, con-
firmation had been determined that the private market was not going to finance
the project.
Mayor Klausing opened the Public Hearing at 7:02 p.m.
Regular City Council Meeting
Monday, September 22, 2008
Page 8
Mayor Klausing asked that speakers focus on the issues before the Council:
whether area improvements could be made without an HIA in place; how best to
preserve the housing units, and if imposing assessments was the best solution;
rather than more broad-ranged comments.
Public Comment
Janna Rieck, 2668 MacKubin
Ms. Rieck noted that, when she had purchased her unit in December of 2005, she
knew full well that this project would become a reality; and further noted that the
Association had clearly defined the possibility on all their releases and docu-
ments. Ms. Reick advised that she was an owner of one of the larger, end units,
and assured the City Council and other property owners that the only item being
paid for by all property owners was additional siding for that end wall; and further
advised that any additional insulation, or other improvements would be totally her
responsibility, and that she would gladly bear that responsibility, as it would ulti-
mately and primarily benefit her.
Ms. Rieck acknowledged that the units were not "green" now, with most units
having windows from the original 1969 construction; however, noted that other
improvements could not be made by individual property owners without assis-
tance and establishing an HIA. Ms. Rieck opined that the consultant had done a
phenomenal job in setting up specifications for the project and in making sure as
many eco-friendly options as possible were available.
Ms. Rieck, as an owner in Westwood Village I, asked for the City Council's re-
spect for the majority decisions made by property owners in this ongoing process
to-date; and for financial support in restoring the units to help make Roseville an
attractive destination. Ms. Rieck alluded to the many amenities of the commu-
nity; and opined that she was waiting to see if her government that she voted for
would support her endeavor to have a strong, valuable property and home along
with the other unit owners in the Westwood community.
Maureen Dalens, 2664 MacKubin Street
Ms. Dalens advised that she was speaking as a representative of several smaller
townhome unit owners; and provided front and rear exterior elevations of those
smaller units. Ms. Dalens opined that, if approved under the new declarations,
those property owners would be hurt financially, and would be subsidizing the
larger units. Ms. Dalens sought to substantiate these issues by reviewing addi-
tional roof area, gutters, soffits and fascias; additional decking; and other areas
requiring additional siding. Ms. Dalens opined that, in fairness, each home should
pay for only its own costs, as per the original documents; with 42 units being lar-
ger, and only six being smaller units.
Regular City Council Meeting
Monday, September 22, 2008
Page 9
Ms. Dalens quotes State Statute and provided her interpretation of the language.
Ms. Dalens spoke to the demographics of the six (6) smaller units; and asked that
the City Council not approve the request as presented at this time. Ms. Dalens
took issue with not receiving requested information from the Association Board;
and the specifications provided by Load Bearing as far as footages and equal divi-
sions of costs. Ms. Dalens shared personal calculations of proposed cost alloca-
tions for the project; and reviewed designated common property areas.
John Shea, 2642 MacKubin Street
Mr. Shea opined that the membership had already voted and approved the divi-
sion of costs; and noted that the Association was present only to seek the City
Council's support of the HIA; and that the allocation was not longer pertinent to
the discussion with adoption by the majority of the Second Declaration document.
Mayor Klausing clarified that the City Council was charged with and obligated to
perform due diligence in making an assessment, and in using public monies.
Norman Peterson, 2678 MacKubin Street
Mr. Peterson advised that his is a large unit, and opined that he did not have a
"porch" as indicated by Ms. Dalens. Mr. Peterson observed that each unit had
different features, and each were unique; and asked that the City Council take that
into consideration and approved the ordinance.
Tom Lind, 2726 MacKubin
Mr. Lind clarified what the Board had attempted in making fair cost allocations to
all units, and noted the common improvement areas for the overall project, includ-
ing roofing, divider walls, garages, and common areas. Mr. Lind noted that the
original cedar siding had continued to deteriorate and attract rodents, causing fur-
ther deterioration, and that the Board's rationale was to alleviate and correct that
in the fairest way possible for all residents, in addition to making the building
more energy efficient. Mr. Lind opined that the difference in costs per unit was
minimal when broken down into the five categories for the project. Mr. Lind fur-
ther clarified that the purpose of this Public Hearing was to determine if the City
was going to loan money for the project or not; and noted the amount of work
completed to-date by the Board, and the status of the bids and time constraints, in
addition to the original bids having expired in August, and the increase in shingle
costs. Mr. Lind opined that the longer the approval process was delayed, the
more cost unknowns and material and supply costs would increase.
Ron Brand, smaller unit owners, 2710 MacKubin Street
Mr. Brand advised that, while not currently living on site, he and his wife had
purchased the unit for their retirement residence. Mr. Brand opined that it was vi-
tally important that this financing become available; and that a consensus on that
financial assistance happen and the project be completed for the overall benefit of
Westwood Village. Mr. Brand opined that this was a challenge, since all the units
Regular City Council Meeting
Monday, September 22, 2008
Page 10
were unique to themselves and different sized; however, he opined that based on
the formulas used, there was very little difference between small and larger units
when compared to the actual difference in square footage and loan to value differ-
ence. Mr. Brand opined that his was concern was in all units sharing costs for the
exterior walls for those units having additional interior siding areas unique to
them, creating an unrealistic cost. Mr. Brand opined that it was very important
for their community that this financing occur, and that there were no other options
to improve the property; however, he questioned how the particular specifications
and bids were allocated among property owners, specifically the interior siding is-
sue.
Don Nygaard, 2658 MacKubin
Mr. Nygaard, a professional engineer and resident, advised that he was not on the
board at this time; however, noted that he had served through a number of past
projects done in 1996 involving storm sewer, landscaping and other improve-
ments; and the last time major staining and painting had been redone was in 2000,
at which time a significant amount of cedar boards had been replaced due to rot-
ting, thinking that was the most cost-effective solution and that it made sense at
the time. Mr. Nygaard opined that the Board was currently seeking to do a major
residing project, rather than continuing to replace ineffective cedar siding that
continued to deteriorate.
Mr. Nygaard, speaking from his expertise as an engineer, opined that this volun-
teer Board had done a tremendous amount of diligence in researching the project,
revising the covenants, and putting everything in place according to current State
law, and providing for reserves for future projects. Mr. Nygaard spoke to the
Board seeking consultation from outside parties for a full study on the financing
aspects and reserves to ensure they were appropriate over the next thirty (30)
years; and their hiring of a construction manager to prepare specifications and
bids; opining that this had provided for an excellent piece of work and bids from
seven (7) different firms. Mr. Nygaard opined that Westwood Village was a spe-
cial place, and as a resident since 1989, he appreciated the design of the units by a
talented architect; and opined that it served as something special to the City of
Roseville as well; and thanked the City Council for their willingness to work with
the Westwood community on financing the project to allow them to do the project
right.
Donna Como, 1629 W Highway 36, Rosewood Village Condominiums
Ms. Como advised that she was not a resident at Westwood; however, spoke on
behalf of the Association to encourage the City Council to endorse this ordinance.
Ms. Como spoke to the importance of this action to other multi-family dwellings.
Ms. Como noted that their condominiums were facing a similar situation; and ex-
pressed her appreciation to City staff, specifically Ms. Kelsey and Community
Development Director Patrick Trudgeon, for their assistance and expertise. Ms.
Como noted that their units were 37 years old; and were facing roofing and siding
Regular City Council Meeting
Monday, September 22, 2008
Page 11
improvements, as well as State mandates for elevator installation. Ms. Como
opined that she was not aware if their units were in the same position to seek
funding from the City, but advised they would be looking at it more closely. Ms.
Como thanked the City Council for considering looking at the needs of Westwood
Village I.
Frederick Blanch, 2728 MacKubin
Mr. Blanch opined that square feet were not necessarily square feet when looking
at labor and time required for the unique siding issues on some of the smaller
units. Mr. Blanch further opined that this issue could be "detailed to death;" but
noted that the Board was attempting to make this entire project as fair as possible,
and that a professional manager was available to assist with the project. Mr.
Blanch asked that, with majority support of the property owners already deter-
mined, that the City Council not get mired in the details; and thanked them for
their consideration.
Esther Piper, 2712 MacKubin
Ms. Piper advised that she and her husband Richard came to Westwood Village in
February of 1969; and throughout their almost forty (40) years there, the units had
received numerous improvements for the entire community. Ms. Piper observed
that Mr. Nygaard had spent one entire summer overseeing the road improvements
for the Village; and opined that the Westwood community had always been able
to come together as a community, based on splitting costs equally among the
forty-seven (47) units. Ms. Piper opined that this improvement was very impor-
tant for the overall Westwood community and expressed her concern in hearing
the dissention among a few residents, when the community was built on a democ-
racy and that the majority counted. Ms. Piper stated that she hoped it did this time
as well.
Mayor Klausing closed the Public Hearing at 7:48 p.m
Councilmember Ihlan opined that a larger policy picture was evident for the City;
and asked staff where the funding for this project would come from.
Finance Director Miller advised that, given the size of the improvements, he an-
ticipated recommending to the City Council issuing a Revenue Bond; but hesi-
tated to do so under a General Obligation Bond, should assessments come up
short and create a need to pay off the debt service with general taxpayer monies.
Councilmember Ihlan asked if other taxpayers or the City's credit rating would be
impacted.
Mr. Miller responded that the City was recommending that residents be allowed
to pay their assessments up front if able to do so, and that a 1-1 /2% administration
Regular City Council Meeting
Monday, September 22, 2008
Page 12
fee, above the assessment, be applied in case assessment payments come in lower
than anticipate.
Councilmember Ihlan questioned the term of the loan.
Mr. Miller recommended a 15 year term, rather than 20 years, which was consis-
tent with other City bond issues and assessment terms for other improvement pro-
j ects.
Councilmember Ihlan expressed concern with the fairness of allocation costs
within the community association; and also expressed concern about the larger
community of Roseville and whether other multi-unit buildings would seek the
same thing; and whether the City could support issuing another bond for 15 years.
Mr. Miller advised that there were some limits; however noted that the City was
well below its debt capacity; and didn't know if other homeowner associations
were in the same position or what that magnitude could be.
Ms. Kelsey responded that staff had performed a survey of other multi-unit build-
ings in the City, with no positive responses that they would seek this type of fund-
ing. Ms. Kelsey noted the condominium buildings, as previously referenced by
Ms. Como; however, she noted that their situation was different and complex,
given the owner-occupied and rental mix of the building, based on a government
reorganization done in the 1980's. Ms. Kelsey advised that it was her understand-
ing that there were 76 of those units owned by one investor who obtained the
property through a foreclosure; and noted that they had yet to identify what if any
assistance they needed until completion of their replacement reserve study. Ms.
Kelsey further advised that this condominium unit was adjacent to Har Mar
Apartments, and with the substantial improvements being performed there, they
sought to be a good neighbor and improve their property accordingly.
Councilmember Ihlan expressed further concern that the City was serving as a
bank for this project; and noted the City's limited resources, and no criteria in
place to determine merits of various projects, but apparently decision-making on a
first come, first serve basis. Councilmember Ihlan opined that she was not only
concerned regarding the Westwood Village community, but for the City's fairness
to the entire community; and fairness for single-family homeowners who may
need assistance, but couldn't afford to borrow due to the current credit crunch.
Ms. Shea responded to Councilmember Ihlan regarding what prevented other as-
sociations from seeking financial assistance, noting that this HIA program, unless
extended by the State, had a sunset date of 2009, and that any process needed to
have reached a certain point by that sunset date or couldn't seek application. Ms.
Shea, regarding if Westwood unit owners couldn't afford the assessments, advised
that the Association didn't want to lose anyone, and that they were seeking finan-
Regular City Council Meeting
Monday, September 22, 2008
Page 13
cial assistance for the entire Westwood community; however, opined that the As-
sociation couldn't afford to "do nothing;" and while there may be several who had
to move if they couldn't afford the payments, without attempting to sound harsh,
in selling their asset, it provided them more recourse than renters. Ms. Shea again
opined that the Association could not afford to not do something.
Councilmember Willmus sought current assessment values of the average units.
Mr. Miller responded that, in 2006, the typical unit value was $205,000.
Councilmember Willmus advised that he was struggling with the term, interest
and balancing the numbers.
Councilmember Pust noted that she had originally been the one expressing the
most concern with this concept; and that she was hearing some of her concerns
when the City Council was first approached by Westwood Village. Councilmem-
ber Pust noted that the City, through the HRA, had numerous programs for single-
family residential properties. Councilmember Pust opined that the City needed to
look at their housing stock, and invest in multi-family housing stock, to provide
for quality multi-family housing.
Councilmember Pust noted the State statute caps for this program and timing for
HIA's that would address any floodgate problems with multiple requests; and
opined that through this tool and by investing in the City's housing stock, it was a
win-win for the City in maintaining good housing, and not having multi-family
units further deteriorate, creating more problems similar to the current foreclosure
crisis for single-family homes. Councilmember Pust noted the complexities of the
HIA; however, opined that just because the City hadn't done it before, didn't'
mean that it shouldn't. Councilmember Pust opined that the City Council needed
to trust the Westwood community that had diligently worked through this; and
asked that those on the losing side of the Westwood majority vote, would consider
their risks if they didn't work together as a community (i.e., contractor honoring
his bids; costs of rebidding the project; additional deterioration of existing siding)
and asked that under that analysis they act now rather than risking starting over in
another economic time. Councilmember Pust opined that this was the time to act
on this.
Councilmember Roe sought clarification from Mr. Miller or City Attorney
Squires on State Statute provisions for linking assessments and paying off bonds,
similar to pay-as-you-go stipulations based on income received versus bond pay-
ments. Councilmember Roe sought further information from staff regarding
staff s rationale for not recommending a reduced administrative fee as requested
by the Association.
Regular City Council Meeting
Monday, September 22, 2008
Page 14
Mr. Miller responded that he was not aware of any specific Statute provisions re-
lated to non payment of assessments based on their application to property tax
statements; and staff s recommendation, if the City Council chooses to participate
in the financing package, that the term be for 15 years, and include a 1-1/2% ad-
ministrative fee. Mr. Miller opined that, in so doing, the City was treating West-
wood Village I as they did all other City residents; and that this recommendation
was based on tried and true figures, past practice, and consistent with other mu-
nicipal assessments.
City Attorney Squires advised that the charges went to the tax rolls and at some
point would be collectible, and not dischargeable by bankruptcy or foreclosure.
Councilmember Ihlan, noting some dissention among property owners, sought
clarification that the same appeal process was available for those unit owners
Ms. Kelsey and Mr. Squires responded, based on State Statute Chapter 428.A.18
under veto powers and assessment rights; and the appeal process within forty-five
(45) days of adoption of the ordinance, thus the time frame between enactment of
the ordinance and when it because effective. Mr. Squires reviewed that thirty-five
percent (35%) of property owners as the requisite number could appeal within that
time frame to the ordinance establishing the HIA, as well as the fee assessment as
well.
Mayor Klausing focused discussion on the general question of whether to estab-
lish and HIA and use public financing for this type of situation.
Mayor Klausing opined that this was an appropriate involvement for the City of
Roseville; noting that he heard a clear consensus from property owners that some-
thing needed to be done sooner than later. Mayor Klausing recognized the con-
cerns expressed by Councilmember Ihlan; however, noted that there were other
funding mechanisms available for single-family homeowners, without the com-
plications of multi-unit homes. Mayor Klausing from a public policy standpoint,
opined that forty-seven (47) units were the heart of a neighborhood, but that they
also spilled into other neighborhoods and their quality affected the broader com-
munity. Mayor Klausing further opined that, for the health of the community, it
was important that repair and maintenance issues be encouraged; and noted that
without establishment of an HIA, those improvements would not be possible.
Mayor Klausing advised that he still wanted to further research and review the
proposed assessment method and allocation.
Councilmember Roe concurred with Mayor Klausing's observations; noting that
substantial due diligence had been completed; and thanked the Association Board
for that diligence and research. Councilmember Roe opined his support of estab-
lishing the HIA; agreeing that the other issues related to assessment divisions
could be discussed at a later date.
Regular City Council Meeting
Monday, September 22, 2008
Page 15
Councilmember Willmus opined that this was a difficult decision for him to
make; however, noted that he definitely had trouble supporting the requested
twenty (20) year term; and anything less than 1-1/2% administrative fees.
Councilmember Ihlan opined that she was willing to support creation of an HIA,
but would like further Council discussion and consideration of the internal as-
sessment allocations; further opining that this was an appropriate role for the City
Council, similar to other assessments they approved.
Assessment
Mayor Klausingleda discussion on the assessment allocation; recognizing that the
Association had been through the allocation many times; however, noted that if
the Association put themselves in the City Council's position, as representatives
of the entire community, they would note the need for their due diligence of the
matter.
Ms. Kelsey noted that the City Council had received, in their packets, a summary
of the specifications and the letter from Load Bearing describing the scope of
work.
Mayor Klausing opined that he needed additional time to review the materials and
reconcile stated policy with the assessment allocations.
Councilmember Roe opined that he was ready to move forward with the ordi-
nance, noting that it provided an additional step prior to imposing the fee, with
provisions for paying upfront or via assessments, following another public hear-
ing to adopt a resolution related to establishing a fee and the process to be fol-
lowed. Councilmember Roe observed that, if necessary, the ordinance language
could be amended at the time the resolution assessing fees was adopted; recogniz-
ing that the Association may have come up with more options by then.
Mayor Klausing expressed his interest in having all questions and issues ad-
dressed at this time, prior to proceeding with the ordinance establishing and HIA.
Councilmember Pust opined that, if she was the contractor still honoring his bid,
and with rising fuel costs, if he didn't see some forward momentum, he was going
to remove his bid. Councilmember Pust questioned how the City Council could
substitute their judgment for that of a group of property owners. Councilmember
Pust opined that the ordinance move forward, noting City Attorney Squires read-
ing of State Statute provisions, otherwise the entire project would fall apart due to
inaction or further delay.
Mayor Klausing noted that he was not suggesting that the City Council rework the
documents, expressing his respect for the work done; however, he wanted to make
sure he understood all of the provisions.
Regular City Council Meeting
Monday, September 22, 2008
Page 16
Councilmember Pust opined that the City Council could take action and protect
the Association and their contractor's bid, while still allowing additional time for
the City Council to review the assessment issue. Councilmember Pust opined that
the City Council served the community better by taking action and protecting
them in the market place.
Further discussion ensued regarding interpretation of the hearing process and ac-
tions; separate action in establishing an HIA, and a second process in determining
and assessing a portion of the costs, consistent with State Statute and atwo-tier
process, as outlined by City Attorney Squires.
Klausing moved, Pust seconded, enactment of Ordinance No. 1377 entitled, "An
Ordinance Establishing a Housing Improvement Area (HIA) for the Westwood
Village I Townhouses, pursuant to Minnesota Statutes, Chapter 428A;" amended
as follows:
Page 1, Section 1, of the Now therefore revise wording as follows:
"Pursuant to Minnesota Statutes, Chapter 428A, there is hereby established in the
City of Roseville a housing improvement area over property commonly known as
Westwood Village I Townhouses. [For the] purpose of this Ordinance, [the] City
shall be the implementing Agency."
and
Page 2, Section 5, Housing Improvement Fee. Subd. A -Strike the entire section
identified as "a" and re-letter the remaining four (4) items: a, b, c, and d.
Councilmember Roe spoke in support of the ordinance as amended.
Councilmember Ihlan spoke in support of the ordinance as amended; however,
requested that the City Council hold a real discussion about the fairness of the
proposed cost allocation to the six smaller units; and for the record, opined the
need for additional due diligence in the future, through provision by staff of addi-
tional documents and information to perform that due diligence.
Roll Call
Ayes: Roe; Ihlan; Willmus; Pust; and Klausing.
Nays: None.
12. Business Items (Action Items)
a. Housing and Redevelopment Authority (HRA) Board Appointment
Klausing moved, Pust seconded, adoption of Resolution No. 10659 entitled,
"Resolution Approving Mayor's Appointment of Josh Fuhrman to the Housing
and Redevelopment Authority in and for the City of Roseville;" to fill afive-year
term, commencing on September 24, 2008 and ending on September 23, 2013.
Regular City Council Meeting
Monday, September 22, 2008
Page 17
Roll Call
Ayes: Roe; Ihlan; Willmus; Pust; and Klausing.
Nays: None.
13. Business Items -Presentations, Discussions
a. Discuss Pathway Master Plan
City Engineer Debra Bloom and Public Works Director Duane Schwartz pre-
sented and highlighted the Pathway Master Plan - 2008 Update.
Mr. Schwartz noted those serving on the Pathway Advisory Committee from the
School District, City staff and community at large, including School District and
City Public Works, Environment, and Transportation Commission representative
Jan Vanderwall; City Parks and Recreation Commission representative Sarah
Brodt Lenz; Active Living Ramsey County Bicycle Committee member Ken Yo-
kanovich; Community-at-large representatives Sarah Heikkila; Mike Tracy; Lisa
Edstrom; Kathleen Cassen Michelson; Deb Parker; Bob Clarkson; Gregg Moder;
and City staff members Duane Schwartz, Debra Bloom, Lonnie Brokke, and Jeff
Evenson.
Ms. Bloom reviewed the background of the original plan as a result of the Vista
2000 process, as well as this year's update as a result of the Imagine Roseville
2025 community visioning process. Ms. Bloom reviewed the City's 104 miles of
pathways; results and attendance of approximately thirty (30) residents at a Public
Open House held in July of this year; rationale for pathway prioritization; and
priority recommendations to City Commissions in August resulting in this plan
now before the City Council.
Ms. Bloom defined pathway as a "non-motorized facility;" and reviewed the vari-
ous options and specific mileage of each in the community. Ms. Bloom noted that
the mission of the group and the updated Plan was to provide guidance in pathway
planning, and was not intended for interior park paths that should be developed as
part of the Master Park planning process.
Ms. Bloom identified benefits of pathways: safety; social; economic; transporta-
tion; health; environment -more emphasis on commuters, rather than just recrea-
tional; and the nearly-double mileage of pathways in the community since 1997.
Ms. Bloom reviewed considerations in pathway development and locations:
safety; connectivity; regional links; maintenance; aesthetics; regulation and en-
forcement; and reviewed policies and standards related to location; connection;
implementation; maintenance; and education/information/regulation. Ms. Bloom
noted that pathways signage was critical in meeting education, information, and
regulation criteria.
Regular City Council Meeting
Monday, September 22, 2008
Page 18
Ms. Bloom advised that new design guidelines were consistent with the Minne-
sota Bikeway Manual for both urban roadways (curb and gutter cross section
roads) and rural section roadways (shoulder and ditch).
Ms. Bloom noted that in reviewing location criteria, the group had physically vis-
ited various connections; and had intentionally removed cost from the priority
discussion, seeking to build a pathway network.
Ms. Bloom reviewed maps provided in the packet, including the various seg-
ments; and current funding for the Fairview to B-2 segment and interconnection
with the City of Falcon Heights and University of MN intercampus routes.
Discussion included potential linkages and considerations for multi-family hous-
ing units and connectivity to bus routes and other transportation modes and
amenities to encourage alternative transportation; minimum pathway planning
standards and trail widths addressed in the updated plan, and additional building
on that plan beyond those recommendations; critical consideration of transit op-
tions and pathway connections as part of development and redevelopment pro-
jects; surprising identification of the committee of east/west connections, rather
than north/south connections; and criteria specific to various grant offers.
Further discussion included the need to incorporate transit options in development
or redevelopment standards (i.e., bike lockers, showers, or locking options) and
supplemental facilities to make those developments work, similar to the recent
Rainbow redevelopment project.
Pust moved, Ihlan seconded, adoption of the Pathway Master Plan - 2008 Update.
Mayor Klausing echoed the appreciation expressed by Councilmember Roe to the
Committee and staff for their work on the Pathway Master Plan.
Councilmember Roe clarified that tonight's action was to adopt the Pathway Mas-
ter Plan, and that it was not incorporating it into the Comprehensive Plan Update.
Roll Call
Ayes: Roe; Ihlan; Willmus; Pust; and Klausing.
Nays: None.
14. City Manager Future Agenda Review
15. Councilmember-Initiated Items for Future Meetings
16. Adjourn
The meeting was adjourned at 8:58 p.m.
Regular City Council Meeting
Monday, September 22, 2008
Page 19
ATTEST:
illiam J. Malinen
Cr ' D. Klausing, Mayor
C~ . `e-~ S~.e-fine 2
Mrs Mary G Meyer
21?7 Rosewood Ln N
Saint Paol MN 55113
? ST. PAUL
HEART CLINIC
225 Smith Ave North
Suite 500
St. Paul, MN 55102
(651)292-0616
(651) 726-7258 Fax
1600 St. John's Blvd.
Suite 200
Maplewood, MN 55109
(651 779-9449
(651 779-9450 Fax
Lakeview Heart Center
927 Churchill St W
Stillwater, MN 55082
(651) 430-4780
(651) 430-4781 Fax
Stuart W. Adler II, M.D.
Charles F. Alexander Ill, M.D.
Alan J. Bank, M.D.
Kenneth W. Baran, M.O.
Margaret M. Beahrs, M.D.
Steven 1. Benton, M.D.
Thomas A. Biggs, M.D.
Richard J. Brody, M.D.
Charles M. Ctiite, M.D.
David N. Dunbar, M.D.
Michael 0. Garr, M.D.
Gregory A. Granrud, M.D.
Richard B. Guthrie, M.D.
Dennis W. Halbe, M.D.
Priscilla A. Hedberg, M_D.
Thomas H. Johnson, M.D.
Maureen A. Kane, M.D.
Patrick T. Kdier, M.D.
Spencer H. Kubo, M.D.
Brian D. Mahoney, M.D.
Thomas P, Nobrega, M.D.
JeHreyJ.Olson, M.D.
Michael A. Peterson, M.0.
Kamalesh M. Pitlai, M.D.
Tarang B. Ray, M.D.
Thomas E. Raya, M.D.
Franz E. Reisdori, M.D.
Peter K. Rusterholz, M.D.
Nazifa Sajady, M.D.
Victor H. Tschida, M.D.
R. Dent Underwood, M.D.
Uma S. Valeti, M.D.
Pierce J. Vatterott, M.D.
Thomas A. Wiberg, M.D.
9/5!08
Chief of Police
Roseville Police Department
26b0 Civic Center Drive
Roseville, MN 55113
Subject: Letter of Commendation
ST. PAUL
HEART
225 Smith Ave N
Suite 500
St Paul, MN 55102
Phone: (651) 292-0616
www.stphc.com
CLINIC
Jennifer McDonough
Executive Assistant
Direct: (651 } 726-2712
Fax: (651)379-4431
j mcdonough ~ siphc.com
Dear Chief of Police,
I wanted to ]et you know what a great job several of your officers did while in our area
during the recent RNC in St. Paul, MN. Officers Nick Olson (#168), Tom Pitzel, (#190),
Kirk Lindahl (# 131), and Dennis Mooney (# 125) were stationed near our medical
building, which is located within a 2-block radius of the Excel Center where the RNC
was being hosted. While we did a good job at preparing for the event these past few
months from a security standpoint, I know for many of us, there was a bit of unease after
seeing some of the trouble on the news.
All four of your officers did a GREAT job at making our staff, hospital security persons,
and patient population feel at ease, which proved to be invaluable. In addition, several of
our physicians appreciated their advice on how to navigate between St. Joe's and United
when emergency help was needed. Their patience and positive attitude throughout the
week is to be cotntnended especially noting the long hours that were put in throughout
the week. Whether it was Gam or 6pm, they were diligent in their duties, helpful, and fun
to have around the campus!
1 wanted to ensure you were made aware of how much we appreciated them - we felt
very fortunate and blessed. It is nice to know eve have such a.vesome law enforcement
and i wanted to say thanks.
Sincerely,
Jen McDonough
Executive Administrative Assistant
St. Paul Heart Clinic
Nasseff Specialty Center
/JMM
Cc: Governor Pawlenty
www.stphc.com
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ST. PAU L
HEART CLINIC
225 Smilh Ave N Jennifer McDonough ,
Suite 500 Executive AssisEant
St Paul, MN 55102 Direct: (651) 726-2712
Phone: (651) 292-0616 Fax: (681) 379-4431
jmcdonough ~stphc.com
vvww.sipktc.com
kstp.com -KSTP gives thanks, congrats to police for RNC action
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Print Story 0 ,.Email to a Friend .~. ~.. Details
KSTP gives thanks, congrats to police for
RNC action
It is rare when KSTP decides to take an
editorial position.
But it's also rare when a community is faced
with the complications of hosting thousands
of delegates, politicians, activists and
journalists.
For many people from the Twin Cities, the only part of the
Republican National Convention they could see in person
was the thousands of police officers from all over
Minnesota, all over the country really, who were here to
protect people and property.
Our reporters were in the middle of each disturbance that
reared up in both St. Paul and Minneapolis.
Each of them reported police were calm and professional
and measured when faced with protesters.
The police you saw on television were mostly faceless,
hidden by helmets and gas masks.
But when we finally saw their faces, we saw men and
women who were much more than cops dressed in black.
They were well trained and prepared to do a tough job.
So it is the opinion of the owners of KSTP that we owe a
debt of gratitude to all the police officers on duty during
http://kstp.com/article/stories/S571497.shtml?cat=206 9/12/2008
Yellow Pages
kstp.com -KSTP gives thanks, congrats to police for RNC action
the Republican National Convention.
Congratulations and thank you to the men and women in
uniform.
Ads by Gooole
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Page 3 of 3
Copyright 2008 -KSTP-TV, LLC
A Hubbard Broadcasting Company
S EYEWITNESS NEWS Privacy Policy
http://kstp.com/article/stories/S571497.shttnl?cat=206 9/12/2008
~~ 4 ~
Mayor Klausing and City Council Members:
Thank you for your time to allow me to speak today . I am here representing
WWV1 smaller townhomes. (SMALLER UNIT PHOTOS) These are the people who
Could be hurt financially if the City council votes to approve funding for the
WWV1 project as proposed. If funded according to the newly revised
declarations the smaller homeowners will be made to subsidize the costs for the
larger units.
(LARGER UNIT PHOTOS)
Not only will they be hurt by paying a much larger amount per square foot, but
this will afFect the property values, increasing the value of the larger homes and
decreasing the value of the smaller units.
In fairness, each home should pay only for its own costs, as was the case under
the original declarations when I purchased my home. We are asking just to pay
our own share nothing more or nothing less. The smaller units requested a
compromise by asking for two bids, one for the small units and one for the large
units. The bids to include the costs associated with re-siding, re-roofing, fascia
and soffits, gutters, and downspouts. As a reminder, there are 47 units, 41 are
large and 6 are small.
Although the WWV1's attorney said of our original documents , and I quote, "The
Declaration does not provide a formula for the allocation of common expenses
among the lots. Minnesota Common Interest Ownership Act, 515 B, 2-108
requires modern Declarations to specify the fraction or percentage for allocation
among the lots." The new Declaration drafted does not.
So, allocation by the revised Declarations does not appear appropriate as it does
not comply with state statutes, using percentage or fractions for allocation. The
attorney agreed that 99 % of associations pay by size of unit. Larger units have up
to 3 stories while smaller units have one or one and a half stories. In addition,
the larger units have larger roofs, more windows/doors to be covered, decks to
be detached and reinstalled, fascia and soffits, gutters and downspouts. In
addition, the larger units have more trash to dispose of. I have requested a
breakdown on siding, roofing, gutters and downspouts as the spec's
do not show that, but have not received.
1 am not against the funding for the project, but I am asking the council not to
approve this request as it exists now. The more equitable way is to pay for our
own property as WWV2 has recently done. If you have any questions about the
fairness, please take the time to look at the difference in unit sizes.
(SHOW PHOTOS AGAIN
.~ . ,
How would an allocation based upon size of the units (two groups - 41 large Units
and 6 small Units) impact those involved?
(SHOW EXAMPLE CALCULATION)
Since the City may authorize the financing of this project, it is my hope you
allocate the assessment on the basis of the size of each unit and not by the
inappropriate revised declaration discussed above. The allocation could be similar
to how the city would assess homeowners for street improvements. Thank you
for your consideration on the assessment of this project.
Maureen Dalnes
2664 Mackubin
Roseville, MN 55113
The allocation of the assessment divided by 47 units equals 2.1276%
What is the impact assuming the 6 small units are 30% less in size
then the 41 larger units. This percentage used is for demonstration
purposes
2.1276% '~ 70% =1.4893% (6 small units)
2.2211% (411arge units)
Total 8.9358%
Total 91.0642%
100.00
As you can see, the impact is very little on the large units but can be
significant for the small units. When you spread this difference over
15years it may amount to only $89.00 per year for the large units,
assuming the project is $1,435,053.
,•
The small units may have to pay almost $9,100 more if
divided in the manner the specs are divided.
The larger units would be paying about $330. more if we go
by the 30%.
Margaret Driscoll
From: Bill Malinen
Sent: Friday, September 19, 2008 3:34 PM
To: Pat Trudgeon
Cc: Margaret Driscoll; Chris Miller
Subject: FW: Westwood Village Public Hearing
This should be made available to the public at the back table Monday night.
Also, what is the impact & amount of the reduced Adm. Fee. They are requesting? Why
should the City reduce the fee, particularly if they are asking for an even longer term
(20 yrs.) for which we have some annual responsibilities?
-----Original Message-----
From: [mailto:
Sent: Friday, September 19, 2008 3:18 PM
To: *RVCouncil
Cc :,
Subject: Re: Westwood Village Public Hearing
Excellent!!
-----Original Message-----
From: Sue Shea <sues.mn~bsm.com>
To: city.council@ci.roseville.mn.us
Dear Mayor Klausing and Roseville City Council Members,
At the Public Hearing this Monday, we will have an opportunity to review the history of
the HIA and Westwood Village. We will share our recent accomplishments and we hope to
establish a partnership with the city to realize common goals. The HIA program
compliments the goals in Ro seville's 2030 Comprehensive Plan, specifically, Section 6
(Housing & Neighborhoods). An HIA for Westwood would help sustain existing homes for the
future and create a strong, desirable and livable neighborhood.
Westwood Village has taken the following steps, to ensure that we don't face situations
like this in the future:
1. we hired a professional reserve study company (RDA) to develop a long-term financial
plan for adequate reserves to meet all obligations. The RDA study indicated an increase
in dues was needed to properly fund our reserves to meet future obligations. The first
week in August we announced that increase to the owners.
2. We've completed a full financial audit.
3. We hired a professional project manager specializing in construction to help us with
all the technical aspects of this project so we do it right!
4. We amended our governing documents and we are now ruled by current state statutes
(MCIOA) As part of that process we revised the division of costs for siding projects.
Historically, assessments were split evenly between all 47 owners. In the case of siding,
that is not a fair approach. We held meetings and everyone had a chance to share their
point of view. Five owners (from the smallest units) hired an attorney to state their
case; that they shouldn't have to help pay for siding on larger units. A majority agreed
that each owner should pay for the amount of siding applied to the front and back of their
1
Subject: Westwood Village Public Hearing
own unit. The majority also agreed that units in the middle of a row share the benefit of
the ends; therefore, instead of leaving the full burden of end siding to some owners, the
cost of end walls would be split evenly (1/47)among all owners. The attorney for the
group agreed this was fair and he accepted the terms on their behalf. Unfortunately, the
group decided not to accept their attorney's recommendation and continued to disagree with
the majority. The association did keep the negotiated terms in the amended documents
because, as their attorney said, it was fair and the right thing to do. We will never be
able to please everyone; however, it was a huge accomplishment to obtain the approval of
over 75$ of the owners AND 75~ of the lien holders! We spent thousands of dollars to
complete this process; the amended documents were filed with the state early in 2008. A
majority of the association's owners approved these documents; we see no reason to revisit
this issue. We respectfully ask that the city honors our amended governing documents and
the division of costs that we worked so hard to create!
On August 12, the Westwood board presented the construction project and costs to the
owners. There were 41 of 47 homes represented at the meeting. The project was approved
by 35 owners (2 voted no; 2 did not vote). Everyone is aware of the dues increase and
estimated monthly payments for this loan. Unlike renters, subjected to unapproved
increases; these owners have made an informed choice to accept these payments.
Using short-term funds for a project of this magnitude would result in monthly payments
that place people's lives in serious financial hardship. By spreading a loan over 20 years
we can obtain affordable payments. It is the length of the loan that is the key. We
would request that the city approve a 20-year AIA; a reduced administration fee (.75$);
and, use our governing documents as the basis for the division of cost for each property.
We are not asking for a hand out; we're asking for a hand up!
Roseville has never done a "residential" program like this; but, it has been quite
successful in other cities (especially Coon Rapids). I have been active on the board for 4
years and have been the liaison between Westwood and the city staff for just over two
years. I can assure you that we have been working hard to do everything by the book. We
want to ensure better future for our community.
I am getting married in 9 days; but, this issue is so important, to so many pe ople, that
I will make time to meet with or talk with any member of the Council that has questions.
I can be reached at 651-324-8688. Mark Lindberg, the current association President, can
also be reached at 651-481-0084.
Thank you for your time and consideration.
Sincerely,
Susan E. Shea,
Westwood Village Vice President
Find phone numbers fast with the New AOL Yellow Pages <http://yellowpages.aol.com/?
NCID=emlweusyelp00000001> !
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Jeanne
From: Keith Bagge
Sent: Monday, September 22, 2008 2:44 PM
To: Jeanne Kelsey
Subject: Establishing a Housing Improvement Area for Westwood Village 1.
Dear Ms Kelsey,
I am writing to you to express my fervent desire that the Roseville-City Council
establishes and Housing Improvement Area for Westwood Village 1. I had been planning on
attending the council meeting tonight, but I have just found out that I will have to work
late and will not be able to attend. Many, if not most of the people residing in Westwood
Village 1 will need the long-term financing that this will make available. Many of the
residents are retired and on fixed incomes. Even though I am only 43 years old and
working full-time, I would find it an incredible hardship to try to pay off a normal loan
from a bank. Indeed, I would probably end up having to sell the home that I have lived in
for ten years. With the housing market in the condition it is in, that would be terrible.
Please do your best to convey to the City Council the extreme need there is for this
action. If you have any questions, comments or concerns, please do not hesitate to
contact me.
Thanking you sincerely,
Keith Bagge
Zelle, Hofmann, Voelbel, Mason & Gette LLP
500 Washington Avenue South, Suite 4000
Suite 4000
Minneapolis, MN 55415
FAX
www.zelle.com<http://www.digitechbranding.com/zelle/usercard.php?filename=zelle-kbagge-
zelle-com-1219696535.png>
J `
ne Ke
From: M. Metzke
Sent: Monday, September 22, 2008 9:27 AM
To: Jeanne Kelsey
Subject: Re: Housing Ordinance Improvement Area for Westwood Village 1
We are in support of the Housing Ordinance Improvement Area for Westwood
Village 1
which will be considered at the Roseville City Council Meeting on
September 22, 2008.
As the approval of this ordinance will benefit many of the residents of
Westwood Village 1
in the effort to restore the condition of the property, we hope that the
city council rules favorably
and passes it.
Due to a schedule conflict we are unable to be there to show our support
at the meeting but
feel it is important to convey to the council our agreement in the
ordinance.
Thank you.
w« ..
Sincerely,
Michael and Marie Metzke ~`
2676 Mackubin St
Westwood Village 1
Roseville MN 55113
1
•
r
(Above Space Reserved for Recording Data)
COMMON INTEREST COMMUNITY N0.727
a Planned Community
WESTWOOD VILLAGE
SECOND AMENDED DECLARATION
WHEREAS, BAN-CON, INC., a Minnesota corporation, (the "Developer")
executed that certain Declaration of Covenants, Conditions and Restrictions on December
6, 1968, and recorded the same in the office of the County Recorder of Ramsey County,
Minnesota, on January 6, 1969, as Document No. 1742654; and
WHEREAS, the Developer and the lot owners executed that certain Amendment
of Declaration of Covenants, Conditions and Restrictions (the "Amended Declaration")
dated October 16, 1969, and recorded the same in the office of the County Recorder of
Ramsey County, Minnesota, on November 7, 1969, as Document No. 1762029, to replace
the declaration; and
WHEREAS, the real property subject to the Amended Declaration together with
all improvements thereon (collectively the "Property"), constitutes a planned community
as defined in Minn. Stat. § S15B.1-103; and
WHEREAS, the lot owners and mortgagees desire to subject the planned
community to Minnesota Statutes Chapter S 15B, known as the Minnesota Common
Interest Ownership Act (the "Act"), pursuant to Minn. Stat. § S15B.1-102(d); and
WHEREAS, the lot owners and mortgagees desire to amend and replace the
Amended Declaration with this Second Amended Declaration in order to establish a plan
consistent with the Act 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 physical quality, and the architectural
character of the Property; and
WHEREAS, the Property is not subject to an ordinance referred to in Minn. Stat.
§ S15B.1-106 governing conversions to common interest ownership and is not subject to
a master association as defined in the Act;
NOW, THEREFORE, this Second Amended Declaration ("Declaration") is made
this day of , 2007, and shall constitute covenants to run with the
Property, and the Property shall be owned, used, occupied and conveyed subject to the
covenants, restrictions, easements, charges and liens set forth herein, all of which shall be
binding upon all Persons owning or acquiring any right, title or interest therein, and their
heirs, personal representatives, successors and assigns.
SECTION 1
DEFINITIONS
The following words when used in the Governing Documents shall have the
following meanings (unless the context indicates otherwise):
1.1 "Act" means the Minnesota Common Interest Ownership Act, Minnesota
Statutes Chapter S 15B, as amended now and in the future.
1.2 "Assessments" means and refers to all assessments levied by the
Association pursuant to Section 6 of this Declaration.
1.3 "Association" means Westwood Village Homeowners Association, a
nonprofit corporation which has been created pursuant to Minnesota
Statutes Chapter 317A and Section S15B.3-101 of the Act, whose
members consist of all Owners.
1.4 "Board" means the Board of Directors of the Association as provided for
in the Bylaws.
1.5 "Bylaws" means the Bylaws governing the operation of the Association,
as amended from time to time.
1.6 "City„ means the City of Roseville, Minnesota.
1.7 "Common Elements" means all parts of the Property including all
improvements thereto, except the Units. The Common Elements are
legally described in Exhibit B attached hereto.
1.8 "Common Expenses" means all expenditures made or liabilities incurred
by or on behalf of the Association and incident to its operation, including
Assessments and items otherwise identified as Common Expenses in the
Declaration or Bylaws.
2
.~
1.9 "Dwelling" means a building or part thereof consisting of one or more
floors, designed and intended for occupancy as a single family residence,
and located within the boundaries of a Unit. The Dwelling includes any
garage attached thereto or otherwise included within the boundaries of the
Unit in which the Dwelling is located.
1.10 "Governing Documents" means this Declaration, and the Articles of
Incorporation and Bylaws of the Association, as amended from time to
time, all of which shall govern the use and operation of the Property.
1.11 "Limited Common Elements" means a portion of the Common Elements
allocated by the Declaration or by operation of Section S15B.2-102(d) or
(f) of the Act for the exclusive use of one or more but fewer than all of the
Units.
1.12 "Member" means 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.
1.13 "Occupant" means any Person or Persons, other than an Owner, in
possession of or residing in a Unit.
1.14 "Owner" means a Person who owns a Unit, but excluding contract for
deed vendors, mortgagees, holders of reversionary interest in life estates
and other secured parties within the meaning of the Act. The term
"Owner' includes, without limitation, contract for deed vendees and
holders of a life estate.
1.15 "Person" means a natural individual, corporation, limited liability
company, partnership, trustee, or other legal entity capable of holding title
to real property.
1.16 "Plat" means the recorded plat depicting the Property pursuant to the
requirements of Section S15B.2-110(d) of the Act, including any amended
or supplemental Plat recorded from time to time in accordance with the
Act.
1.17 "Property" means all of the real property subjected to this Declaration,
now or in the future, including the Dwellings and all other structures and
improvements located thereon. The Property is legally described in
Exhibit A attached hereto.
1.18 "Rules and Regulations" means the Rules and Regulations of the
Association as approved from time to time pursuant to Section 5.6.
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1.19 "Unit" means any platted lot subject to this Declaration upon which a
Dwelling is located or intended to be located, as described in Section 2.1
and shown on the Plat, including all improvements thereon, but excluding
the Common Elements.
Any terms used in the Governing Documents, and defined in the Act and not in
this Section, shall have the meaning set forth in the Act. References to section
numbers shall refer to sections of this Declaration, unless otherwise indicated.
References to the singular may refer to the plural, and conversely, depending on
context.
SECTION 2
DESCRIPTION OF UNITS, BOUNDARIES AND RELATED EASEMENTS
2.1 Units. There are forty-seven (47) Units. All Units are restricted
exclusively to residential use. Each Unit constitutes a separate parcel of real
estate. No additional Units may be created by the subdivision or conversion of
Units pursuant to Section S15B.2-112 of the Act. The Unit identifiers and
locations of the Units are as shown on the Plat, which is incorporated herein by
reference. The Unit identifier for a Unit is its lot and block numbers and the
subdivision name.
2.2 Unit Boundaries. The front, rear and side boundaries of each Unit
shall be the boundary lines of the platted lot upon which the Dwelling is located
or intended to be located, as shown on the Plat. The Units shall have no upper or
lower boundaries. Subject to this Section 2 and Section 3, all spaces, walls, and
other improvements within the boundaries of a Unit are a part of the Unit.
2.3 Appurtenant Easements. The Units shall be subject to and
benefited by the easements described in Section 13.
SECTION 3
COMMON ELEMENTS, LIMITED COMMON ELEMENTS
AND OTHER PROPERTY
3.1 Common Elements. The Common Elements and their characteristics are as
follows:
3.1.1 All of the Property not included within the Units constitutes
Common Elements. The Common Elements include, but are not limited to, all
areas and items listed in this Section 3, and those parts of the Property described
in Exhibit B attached hereto or designated as Common Elements in the Act. The
Common Elements are owned by the Association for the benefit of the Owners
and Occupants.
4
3.1.2 The Common Elements shall be subject to (i) certain easements as
described in this Declaration, the Plat and any other easements recorded against
the Common Elements; (ii) the rights of Owners and Occupants in Limited
Common Elements allocated to their respective Units; and (iii) the right of the
Association to establish reasonable Rules and Regulations governing the use of
the Property.
3.2 Limited Common Elements. The Limited Common Elements are those
parts of the Common Elements reserved for the exclusive use of the Owners and
Occupants of the Units to which they are allocated. The rights to the use and enjoyment
of the Limited Common Elements are automatically conveyed with the conveyance of
such Units. The Limited Common Elements are described and allocated to the Units, as
follows:
3.2.1 If any chute, flue, duct, wire, pipe, conduit, bearing wall, bearing
column, or any other fixture serving fewer than all Units lies partially within and
partially outside of the boundaries of the Unit or Units served, any portion thereof
serving only that Unit or Units is a Limited Common Element allocated solely to
that Unit or Units, and any portion thereof serving any portion of the Common
Elements is a part of the Common Elements.
3.2.2 Improvements, if any, such as decks, patios, porches, balconies,
shutters, awnings, exterior doors and windows, window boxes, chimneys,
driveways, sidewalks, doorsteps or stoops, constructed as part of the original
construction to serve a single Unit or Units, and replacements and modifications
thereof authorized pursuant to Section 8, and located wholly or partially outside
the Unit boundaries, are allocated to the Unit or Units which they serve.
3.2.3 Heating, ventilating or air conditioning equipment serving only a
certain Unit or Units, and located wholly or partially outside the Unit boundaries,
are allocated to the Unit or Units served by such equipment.
3.3 Annexation of Other Pronertv. In addition to the Additional Real Estate,
other real property may be added to the common interest community as Units or
Common Elements, or any combination thereof, and subjected to this Declaration,
in compliance with the approval requirements and procedures set forth in Section
15 and in the Act.
5
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 Mem_ bed, Each Owner shall be a Member solely by reason of owning a
Unit, 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, 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 Votine and Common Expenses. Each Unit is assigned one vote. Common
Expense obligations (subject to Section 6.4) are allocated equally among the Units, with
each Unit being allocated 1/47a' of the Common Expense obligations. Said rights and
obligations shall be automatically reallocated on the same basis among all Units as and if
additional Units are added to the Property.
4.3 Appurtenant Rights and Obli ations. The ownership of a Unit shall
include the voting rights and Common Expense obligations described in Section 4.2. Said
rights and obligations, and the title to the Units, shall not be separated or conveyed
separately, and any conveyance, encumbrance, judicial sale or other transfer of any
allocated interest in a Unit separate from the title to the Unit shall be void. The allocation
of the rights and obligations described in this Section may not be changed, except in
accordance with the Governing Documents and the Act.
4.4 Authority to Vote. The Owner, or some natural person designated to act
as proxy on behalf of the Owner, and who need not be an Owner, may cast the vote
allocated to such Unit at meetings of the Association. However, if there are multiple
Owners of a Unit, only the Owner or other Person designed pursuant to the provisions of
the Bylaws may cast such vote. The voting rights of Owners are more fully described in
Section 3 of the Bylaws.
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 Rules and Regulations, and
6
the Act. The Association shall, subject to the rights of the Owners set forth in the
Governing documents and the Act, be responsible for the operation, management and
control of the Property. The Association shall have all powers described in the Governing
Documents, the Act and the statute under which the Association is incorporated. All
power and authority of the Association shall be vested in the Board, unless action or
approval by the individual Owners is specifically required by the Governing documents
or the Act. All references to the Association shall mean the Association acting through
the Board, unless specifically stated to the contrary.
5.2 Operational Purposes. The Association shall operate and manage the
Property for the purposes of (i) administering and enforcing the covenants, restrictions,
easements, charges and liens set forth in the Governing Documents and the Rules and
Regulations, (ii) maintaining, repairing and replacing those portions of the Property and
other property for which it is responsible, and (iii) preserving the value, and the
architectural character, of the Property.
5.3 Binding Effect of Actions. All agreements and determinations made by
the Association in accordance with the powers and voting rights established by the
Governing Documents or the Act shall be binding upon all Owners and Occupants, and
their lessees, guests, heirs, personal representatives, successors and assigns, and all
secured parties as defined in the Act.
5.4 B laws. The Association shall have Bylaws. The Bylaws shall govern the
operation and administration of the Association, and shall be binding on all Owners and
Occupants.
5.5 Mana ement. The Board may delegate to a manager or managing agent
the management duties imposed upon the Association's officers and directors by the
Governing Documents and the Act. However, such delegation shall not relieve the
officers and directors of the ultimate responsibility for the performance of their duties as
prescribed by the Governing Documents and by law.
5.6 Rules and Regulations. The Board shall have exclusive authority to
approve and implement such reasonable Rules and Regulations as it deems necessary
from time to time for the purpose of operating and administering the affairs of the
Association and regulating the use of the Property; provided, that the Rules and
Regulations shall not be inconsistent with the Governing Documents or the Act. The
inclusion in other parts of the Governing Documents of authority to approve Rules and
Regulations shall be deemed to be in furtherance, and not in limitation, of the authority
granted by this Section. New or amended Rules and Regulations shall be effective only
after reasonable notice thereof has been given to the Owners.
5.7 Association Assets• Surplus Funds. All funds and real or personal
property acquired by the Association shall be held and used for the benefit of the Owners
for the purposes stated in the Governing documents. Surplus funds remaining after
7
payment of or provision for Common Expenses and reserves shall be credited against
future Assessments or added to reserves, as determined by the Board.
5.8 Resale Disclosure Certificates. Pursuant to Section S15B.4-107 of the
Act, in the event of a resale of a Unit by an Owner, that Owner shall furnish to the
purchaser a resale disclosure certificate containing the information required by Section
S 15B.4-107(b) of the Act. Pursuant to Section S 15B.4-107(d) of the Act, the Association
shall, within ten days after a request by an Owner or the Owner's authorized
representative, furnish the resale disclosure certificate. The Association may charge a
reasonable fee for furnishing the resale disclosure certificate and any documents related
thereto.
SECTION 6
ASSESSMENTS
6.1 General. Assessments shall be determined and assessed against the Units
by the Board, in its discretion, subject to the requirements and procedures set forth in this
Section 6 and the requirements of the Bylaws. Assessments shall include annual
Assessments under Section 6.2, and may include special Assessments under Section 6.3
.and limited Assessments under Section 6.4. Annual and special Assessments shall be
allocated among the Units in accordance with the allocation formula set forth in Section
4.2. Limited Assessments under Section 6.4 shall be allocated to Units as set forth in that
Section.
6.2 Annual Assessments. Annual Assessments shall be established and levied
by the Board, subject to the limitations set forth hereafter. Each annual Assessment shall
cover all of the anticipated Common Expenses of the Association for that year which are
to be shared by all Units in accordance with the allocation formula set forth in Section
4.2. Annual Assessments shall be payable in equal monthly or quarterly installments, as
established by the Board. Annual Assessments shall provide, among other things, for an
adequate reserve fund for the replacement of the Common Elements and those parts of
the Units for which the Association is responsible, except to the extent that the
replacement is funded by limited Assessments pursuant to Section 6.4.
6.3 Special Assessments. In addition to annual Assessments, and subject to
the limitations set forth hereafter, the Board may levy in any Assessment year a special
Assessment against all Units in accordance with the allocation formula set forth in
Section 4.2, and for the purposes described in this Declaration. Among other things,
special Assessments shall be used for the purpose of defraying in whole or in part the cost
of any unforeseen and unbudgeted Common Expense.
6.4 Limited Assessments. In addition to annual Assessments and special
Assessments, the Board has the authority to levy and allocate limited Assessments among
only certain Units in accordance with the following requirements and procedures:
8
6.4.1 Any Common Expense associated with the maintenance, repair, or
replacement of a Limited Common Element shall be assessed exclusively against
the Unit or Units to which that Limited Common Element is allocated, equally or
by actual cost per Unit or such other reasonable allocation as may be approved by
the Board.
6.4.2 The costs of labor and materials for replacement of above grade,
exterior siding ("Siding Replacement Costs") shall be calculated on the basis of
total cost per linear foot of siding and allocated as follows:
6.4.2.1 Siding Replacement Costs for flat walls on the front and
back of each Unit shall be assessed to the Owner of the respective Unit as
limited Assessments and shall not be included in replacement reserves.
6.4.2.2 Siding Replacement Costs for all other walls, including,
without limitation, building ends, mid-building sides created by Units of
different heights, courtyard walls and garage walls, shall be assessed as
Common Expenses in accordance with the allocation formula set forth in
Section 4.2 and shall be included in replacement reserves.
6.4.2.3 The allocations of Siding Replacement Costs provided
herein shall not apply to the cost of siding maintenance or siding repair,
which shall be assessed as Common Expenses in accordance with the
allocation formula set forth in Section 4.2.
6.4.3 Any Common Expense benefiting fewer than all of the Units but
not falling within Section 6.4.1 or Section 6.4.2 may, at the Board's discretion, be
assessed against the Unit or Units benefited equally, by actual cost per Unit or
such other reasonable allocation as may be approved by the Board.
6.4.4 Reasonable attorneys' and other professional fees and costs
incurred by the Association in connection with (i) the collection of Assessments
and (ii) the enforcement of the Governing Documents, the Act, or the Rules and
Regulations, against an Owner or Occupant or their guests, may be assessed
against the Owner's Unit.
6.4.5 Late charges, fines and interest may be assessed as provided in
Section 14.
6.4.6 Assessments levied under Section S15B.3-116(a) of the Act to pay
a judgment against the Association may be levied only against the Units existing
at the time the judgment was entered, in proportion to their Common Expense
liabilities.
6.4.7 If any damage to the Common Elements or another Unit or any
portion of the Owner's Unit that the Association is obligated to maintain
9
hereunder is caused by the act or omission of an 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.
6.4.8 If Common Expense liabilities are reallocated for any purpose
authorized by the Act, Assessments and any installment thereof not yet due shall
be recalculated in accordance with the reallocated Common Expense liabilities.
Assessments levied under Sections 6.4.1 through 6.4.7 may, at the Board's discretion, be
assessed as a part of, or in addition to, other Assessments levied under Section 6.1 or 6.2.
6.5 Working Capital Fund. There shall be established a working capital fund
to meet unforeseen expenditures or budget shortfalls, or to purchase additional equipment
or services for the Association. The Board may include in each subsequent annual budget
a reasonable amount of working capital, based upon the anticipated needs of the
Association for the year in question. The Association may use the working capital fund to
offset operating deficits. The contributions to this fund are in addition to the regular
installments of annual Assessments and are not refundable.
6.6 Liability of Owners for Assessments. The Owner of the Unit 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 Assessments by right of
set-off, by waiver of use or enjoyment of any part of the Property, by absence from or
abandonment of the Unit, by the waiver of any other rights, or by reason of any claim
against the Association or its officers, directors or agents, or for their failure to fulfill any
duties under the Governing Documents or the Act.
6.7 Assessment Lien. The Association has alien on a Unit for any
Assessment levied against that Unit from the time the Assessment becomes due. If an
Assessment is payable in installments, the full amount of the Assessment is a lien from
the time the first installment thereof becomes due. Fees, charges, late charges, fines and
interest charges imposed by the Association pursuant to Section S15B.3-102(a)(10), (11)
and (12) of the Act are liens, and are enforceable as Assessments, under this Section 6.
Recording of the Declaration constitutes record notice and perfection of any lien under
this Section 6, and no further recordation of any notice of or claim for the lien is required.
The release of the lien shall not release the Owner from personal liability unless agreed to
in writing by the Association.
6.8 Foreclosure of Lien: Remedies. Alien for Assessments maybe foreclosed
against a Unit under the laws of the State of Minnesota (i) by action, or (ii) by
advertisement in alike manner as a mortgage containing a power of sale. The
Association, or its authorized representative, shall have the power to bid in at the
foreclosure sale and to acquire, hold, lease, mortgage and convey any Unit so acquired.
The Owner and any other Person claiming an interest in the Unit, by the acceptance or
10
assertion of any interest in the Unit, grants to the Association a power of sale and full
authority to accomplish the foreclosure. The Association shall, in addition to its other
remedies, have the right to pursue any other remedy at law or in equity against the Owner
who fails to pay any Assessment or charge against the Unit.
6.9 Lien Priority; Foreclosure. Alien for Assessments is prior to all other
liens and encumbrances on a Unit except (i) liens and encumbrances recorded before the
Declaration, (ii) any first mortgage on the Unit, and (iii) liens for real estate taxes and
other governmental Assessments or charges against the Unit. Notwithstanding the
foregoing, if (i) a ,first mortgage on a Unit is foreclosed, (ii) the first mortgage was
recorded on or after the date of recording of this Declaration, and (iii) no Owner redeems
during the Owner's period of redemption provided by Minnesota Statutes Chapters 580,
581, or 582, then the holder of the sheriff's certificate of sale from the foreclosure of the
first mortgage shall take title to the Unit subject to a lien in favor of the Association for
unpaid Assessments or installments thereof levied pursuant to Sections S15B.3-115(a),
(e)(1) to (3), (f), and (i) of the Act which became due, without acceleration, during the six
months immediately preceding the first day following the end of the Owner's period of
redemption.
6.10 Real Estate Taxes and Assessments. Real estate taxes, special
assessments, and other charges and fees which may be levied against the Common
Elements by governmental authorities, shall be allocated equally among and levied
against the Units, and shall be a lien against each Unit in the same manner as a lien for
real estate taxes and special assessments levied against the Unit alone.
6.11 Voluntary Conveyances; Statement of Assessments. In a voluntary
conveyance of a Unit, the buyer shall not be personally liable for any unpaid Assessments
and other charges made by the Association against the seller or the seller's Unit prior to
the time of conveyance to the buyer, unless expressly assumed by the buyer. However,
the lien of such Assessments shall remain against the Unit until released. Any seller or
buyer shall be entitled to a statement, in recordable form, from the Association setting
forth the amount of the unpaid Assessments against the Unit, including all Assessments
payable in the Association's current fiscal year, which statement shall be binding on the
Association, seller and buyer.
SECTION 7
RESTRICTIONS ON USE OF PROPERTY
All Owners and Occupants, and all secured parties, by their acceptance or
assertion of an interest in the Property, or by their occupancy of a Unit, covenant and
agree that, in addition to any other restrictions which may be imposed by the Act or the
Governing Documents, the occupancy, use, operation, alienation and conveyance of the
Property shall be subject to the following restrictions:
11
7.1 General. The Property shall be owned, conveyed, encumbered, leased,
used and occupied subject to the Governing Documents and the Act, as amended from
time to time. All covenants, restrictions and obligations set forth in the Governing
Documents are in furtherance of a plan for the Property, and shall run with the Property
and be a burden and benefit to all Owners and Occupants and to any other Person
acquiring or owning an interest in the Property, their heirs, personal representatives,
successors and assigns.
7.2 Subdivision Prohibited. Except as permitted by this Declaration, no Unit
nor any part of the Common Elements maybe subdivided or partitioned without the prior
written approval of all Owners and all secured parties holding first mortgages on the
Units.
7.3 Residential Use. The Units shall be used by Owners and Occupants and
their guests exclusively as private, single family residential dwellings, -and not for
transient, hotel, commercial, business or other non-residential purposes, except as
provided in Section 7.4. Any lease of a Unit (except for occupancy by guests with the
consent of the Owner) for a period of less than ninety days, or any occupancy which
includes services customarily furnished to hotel guests, shall be presumed to be for
transient purposes. The number of occupants per Unit may be restricted in accordance
with any applicable municipal ordinances and standards acceptable under applicable
federal and state law.
7.4 Business Use Restricted. No business, trade, occupation or profession of
any kind, whether carried on for profit or otherwise, shall be conducted, maintained or
permitted in any Unit or the Common Elements, except:
7.4.1 An Owner or Occupant may maintain a home occupation in such
Owner or Occupant's Dwelling; provided, that such use (i) is incidental to the
residential use; (ii) does not involve physical alteration of the Dwelling or Unit
visible from the exterior; (iii) is in compliance with all governmental laws,
ordinances and regulations; (iv) does not involve observable business activity
such as signs, advertising displays, unusual numbers of deliveries, or unusual
levels of pedestrian or vehicular traffic to and from the Unit; (v) does not involve
employees; and (vi) does not otherwise involve activity which disturbs the quiet
enjoyment of the Property by other Owners or Occupants.
7.4.2 The Association may maintain offices on the Property for
management and related purposes.
7.5 Leasine. The Property is intended to be an Owner occupied residential
community. Consistent with that philosophy, leasing of Units shall be allowed (subject to
reasonable regulation by the Association), but only in accordance with the following
minimum conditions: (i) no Unit shall be leased for transient or hotel purposes, (ii) no
Unit may be subleased, (iii) a Unit must be leased in its entirety (not by room) unless
simultaneously occupied by the Owner, (iv) the lease shall be in writing, (v) unless
12
otherwise required in connection with the financing, guarantee or insuring of a Unit
mortgage, no lease shall be for a period less than three or more than 12 months, except
for extenuating situations approved by the Board; and (vi) the lease shall provide that it is
subject to the Governing Documents, the Rules and Regulations and the Act, and that any
failure of the lessee to comply with the terms of such documents shall be a default under
the lease. 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
and applicable law, including, but not limited to (i) a requirement for a form addendum to
be attached to each Unit lease to assure that the rights and authority of the Association
and Owners and Occupants are recognized, and (ii) a requirement for the screening of
lessees through a reputable, professional screening organization; provided that such
screening shall not violate federal, state or local discrimination laws.
7.6 Parkine. Garages and parking areas on the Property shall be used only for
parking of vehicles owned or leased by Owners and Occupants and their guests, and such
other incidental uses as may be authorized by this Declaration or in writing by the
Association. The use of garages, driveways and parking areas on the Property, and the
types of vehicles and personal property permitted thereon, shall be subject to regulation
by the Association, including without limitation the right of the Association to tow
illegally parked vehicles or to remove unauthorized personal property.
7.7 Pets. 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. This
authority may be exercised so as to permit or prohibit different types of animals, but
those animals which are permitted (if any) shall be limited to common domestic house
pets such as dogs, cats, fish, birds and the like. However,.no animal may be bred, or kept
or maintained for business or commercial purposes, anywhere on the Property. The word
"animal" shall be interpreted in its broadest sense and shall include all living creatures
except humans. Notwithstanding the foregoing, no Rule or Regulation may prohibit the
keeping of a qualified service dog or similar animal by a person who is disabled within
the meaning of the Fair Housing Amendments Act of 1988 or comparable state law.
7.8 Quiet Enjoyment. All Owners and Occupants and their guests shall have a
right of quiet enjoyment in their respective Units, subject to the rights of other Owners
and Occupants and the owners and occupants of adjacent property to reasonable use of
their respective property and the normal and customary sights, sounds and activity
generated thereby. The Property shall be occupied and used in such a manner as will not
cause a nuisance, nor unduly restrict, interfere with or impede the use and quiet
enjoyment of the Property by other Owners and Occupants and their guests.
7.9 Prohibited Conduct. No Owner or Occupant shall (i) cause or permit any
physical changes to their Dwelling that could jeopardize or impair the weather-tight
soundness or safety of the Dwelling or other improvement located on the Property; (ii)
interfere with any easement; or (iii) cause or permit any physical changes to their Unit
which could affect or damage the sound barriers between the Units within the ceilings,
floors or walls.
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7.10 Compliance with Law. No use shall be made of the Property which would
violate any then existing municipal codes or ordinances, or state or federal laws, nor shall
any act or use be permitted which could cause waste to the Property, cause a material
increase in insurance rates on the Property, or otherwise cause any unusual liability,
health or safety risk, or expense, for the Association or any Owner or Occupant.
7.11 Alterations. No alterations (as defined in Section 8) shall be made, or
caused or allowed to be made, in any part of the Common Elements, or in any part of the
Unit which affects the Common Elements or another Unit or which is visible from the
exterior of a Dwelling, without the prior written authorization of the Board, or a
committee appointed by it, as provided in Section 8.
7.12 Time Shares Prohibited. The time share form of ownership, or any
comparable form of lease, occupancy rights, ownership, or right-to-use plans, which has
the effect of dividing the ownership or occupancy of a Unit into separate time periods, is
prohibited.
7.13 Open Snace Easements and Covenants. The Property is subject to open
space easements and covenants in favor of the City recorded against the Property and
containing various restrictions and requirements with respect to the use and maintenance
of the Common Elements.
7.14 Access to Units. In case of emergency, the Units are subject to entry,
without notice and at any time, by an officer or member of the Board, by the
Association's management agents or by any public safety personnel. Entry is also
authorized for maintenance purposes under Sections 9 and 13, and for enforcement
purposes under Section 14.
SECTION 8
ARCHITECTURAL STANDARDS
8.1 Restrictions on Alterations. One of the purposes of this Declaration is to
ensure that those parts of the Dwellings and other parts of the Units which are visible
from the exterior be kept architecturally attractive and substantially uniform in
appearance. Therefore, except as set forth in Section 8.5, the following restrictions and
requirements shall apply to alterations on the Property:
8.1.1 Except as expressly provided in this Section 8, no structure,
building, addition, deck, patio, fence, wall, enclosure, window, exterior door,
antenna or other type of sending or receiving apparatus, sign, display, decoration,
color change, shrubbery, material topographical or landscaping change, nor any
other exterior improvements to or alteration of any Dwelling or any other part of a
Unit which affects the Common Elements or another Unit, or which is visible
from the exterior of the Dwelling (collectively referred to as "alterations"), shall
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be commenced, erected or maintained, unless and until the plans and
specifications showing the nature, kind, shape, height, color, materials and
locations of the alterations shall have been approved in writing by the Board or a
committee appointed by it.
8.1.2 The Board may appoint, supervise and disestablish an architectural
committee, and specifically delegate to it part or all of the functions which the
Board exercises under this Section 8, in which case the references to the board
shall refer to the architectural committee where appropriate. The architectural
committee shall be subject to the supervision of the Board.
8.1.3 The Board shall establish the criteria for approval of alterations,
which shall include and require, at a minimum:
8.1.3.1 substantial uniformity of color, location, type and design in
relation to existing Dwellings and other improvements to the Property,
8.1.3.2 comparable or better quality of materials as used in existing
improvements on the Property,
8.1.3.3 ease of maintenance and repair,
8.1.3.4 adequate protection of the Property, the Association,
Owners and Occupants from liability and liens arising out of the proposed
alterations,
8.1.3.5 substantial preservation of other Owners' sight lines, if
material, and
8.1.3.6 compliance with governmental laws, codes and regulations.
The Board, or the appointed architectural committee if so authorized by
the Board, in its sole discretion, may impose standards for design,
appearance, construction, or development which are greater or more
stringent than standards prescribed by the Governing Documents, or by
building, zoning, or other governmental laws, codes, or regulations;
provided that such standards shall be consistent with the architectural
character and use of the Property. The Board, or the appointed
architectural committee if so authorized by the Board, shall be the sole
judge of whether such criteria are satisfied, and its determination in this
regard shall be binding upon the Owner.
8.1.4 Approval of alterations which cause a minor encroachment upon
the Common Elements or another Unit shall create an appurtenant
easement for such encroachment in favor of the Unit with respect to which
the alterations are approved, notwithstanding any contrary requirement in
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the Governing Documents or the Act. A file of the Board resolutions
approving or denying all requests for alterations 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:
8.2.1 Detailed plans, specifications and related information regarding
any proposed alteration, in form and content acceptable to the Board, shall be
submitted to the Board at least sixty days prior to the projected commencement of
construction. No alterations shall be commenced prior to approval.
8.2.2 The Board shall give the Owner written notice of approval or
disapproval. The Board shall have the right and authority to approve,
conditionally approve or deny requests for alterations in its sole and absolute
discretion. If the Board fails to approve or disapprove within sixty days after
receipt of said plans and specifications and all other information requested by the
Board, then approval shall be deemed to be denied.
8.2.3 If no request for approval is submitted, approval shall be deemed
to be denied.
8.3 Remedies for Violations. The Association may undertake any measures,
legal, equitable 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 other professional fees and costs of evaluation, investigation and enforcement
incurred by the Association, whether or not a legal action is started. Such fees and costs
shall be a lien against the Owner's Unit and a personal obligation of the Owner. In
addition, upon reasonable notice, 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 the
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 Owner Responsibility/Indemnity. The Owner who causes an alteration to
be made, regardless of whether the alteration is approved by the Board, shall be
responsible for the construction work and any claims, damages, losses or liabilities
arising out of the alterations, and to ensure that the work approved by it satisfies all
applicable municipal requirements. The Owner shall hold harmless, indemnify and
defend the Association, and its officers, directors and committee members, from and
against any expenses, claims, damages, losses or other liabilities, including without
limitation attorneys' fees and other professional fees and costs, arising out of (i) any
alteration which violates any governmental laws, codes, ordinances or regulations, (ii) the
adequacy of the specifications or standards for construction of the alterations and (iii) the
construction of the alterations.
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8.5 Exemptions. The requirements set forth in this Section 8 (except Section
8.4) shall not apply to the following:
8.5.1 Certain types of antennae may be installed, following application to
the Board, to the extent permitted by federal law and the Rules and Regulations
consistent therewith.
SECTION 9
MAINTENANCE AND REPAIR
9.1 Maintenance b~ Association. The Association shall provide for all
maintenance, repair or replacement (collectively referred to as "maintenance") of the
Common Elements, including all improvements thereon. In addition, for the purpose of
preserving the architectural character, quality, and high standards for appearance of the
Property, the Association shall provide for exterior maintenance upon the Dwellings
and/or Units, subject to the following:
9.1.1 The costs associated with the Association's maintenance obligations
under this Section 9.1 shall be funded by Assessments determined and levied in
accordance with Section 6.
9.1.2 The Association shall maintain, repair and replace roofs, gutters,
downspouts, exterior siding and other building surfaces.
9.1.3 The Association may, upon thirty days' prior notice to the Owner,
also undertake any exterior maintenance for which an Owner is obligated under
Section 9.3 and which the Owner fails to perform to standards established by the
Association, and assess the Owner's Unit for the cost thereof. Such cost shall be a
personal obligation of the Owner and a lien against the Owner's Unit.
9.1.4 The Association may, upon reasonable notice, elect to inspect,
maintain, repair or replace mechanical, structural or other components within the
Unit and assess the costs against the Unit, if the failure or impairment of the
component could result in damage to the Common Elements or other Units,
impair the function of any common operating system, or create a health or safety
hazard. The Association may require that any such component be maintained,
repaired or replaced by the Owner thereof to the satisfaction of the Association
within a period of time established by the Association.
9.1.5 The Association's obligations for maintenance shall exclude any
items not specifically required to be maintained by the Association under this
Section 9.1, including but not limited to porches, patios, decks, foundations and
foundation walls, Dwelling walls, floors and ceilings, structural components,
interior parts of the Dwellings, garage doors and exterior entry doors and frames,
exterior window frames, door and window hardware, garage door hardware,
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mechanical equipment and openers, mechanical, electrical, heating, air
conditioning and plumbing systems, screens and glass, and chimney exteriors,
unless such items are expressly approved under Section 9.2.
9.1.6 The Association shall maintain, repair and replace the Common
Elements in accordance with the requirements of the applicable City approvals,
permits, regulations and agreements.
9.1.7 The Board shall have sole authority and discretion to select,
contract with, and supervise contractors for the performance of any inspection,
maintenance, repair. or replacement required or authorized to be provided by the
Association hereunder.
9.2 Optional Maintenance by Association. In addition to the maintenance
described in Section 9.1, the Association may, with the approval of the Board and a
majority of the total Owners' votes in the Association, undertake to provide additional
exterior maintenance to the Units or Dwellings.
9.3 Maintenance by Owner. Except for the exterior maintenance required to
be provided by the Association under Section 9.1 or 9.2, all maintenance of the
Dwellings and Units shall be the sole responsibility and expense of the Owners thereof.
Subject to Section 9.1.2, the Limited Common Elements allocated to a Unit shall be
maintained by the Owner of that Unit. The Association may require that any exterior
maintenance to be performed by the Owner be accomplished in accordance with
standards established by the Association. The Owners and Occupants shall have a duty to
promptly notify the Association of defects in or damage to those parts of the Property
which the Association is obligated to maintain.
9.4 Damage Caused by Owner. Notwithstanding any provision to the contrary
in this Declaration, if, in the judgment of the Association, the need for maintenance of
any part of the Property is caused by the act or omission of an Owner or Occupant, or his
or her guests, or by a condition in a Unit which the Owner or Occupant has caused or
allowed to exist after notice from the Association, the Association may, upon reasonable
notice, cause such damage or condition to be repaired or corrected and the cost thereof
may be charged and assessed against the responsible Owner's Unit. Such cost shall be a
personal obligation of the Owner and a lien against the Owner's Unit.. In the case of party
walls between Dwellings, the Owners of the affected Dwellings shall be liable as
provided in Section 10.
SECTION 10
PARTY WALLS
10.1 General Rules of Law to Annly. Each wall built as part of the original
construction of Dwellings and located or intended to be located on the boundary line
between Units shall constitute a party wall, the Units shall be subject to easements for
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any encroachments resulting from or attributable to such walls pursuant to Section 13.4
hereof, and, to the extent not inconsistent with the provisions of this Section, the general
rules of law regarding party walls and liability for property damage due to negligent or
willful acts or omissions shall apply thereto.
10.2 Repair and Maintenance. The Owners of the Units which share a party
wall shall be responsible for the maintenance, repair and replacement of the party wall in
equal proportions; provided, (i) that any maintenance, repair or replacement necessary
due to the acts or omissions of a certain Owner or Occupant sharing such party wall shall
be paid for by such Owner, and (ii) that the Association may contract for and supervise
the repair of damage caused by an Owner or Occupant and assess the Owners for the cost
thereof to the extent not covered by insurance. Such cost shall be a personal obligation of
the Owner and a lien against the Owner's Unit(s).
10.3 Destruction by Fire or Other Casualty. If a party wall is destroyed or
damaged by fire or other casualty, any Owner who has use of the party wall may, with
the consent of the Association, restore it, and the other Owner shall promptly reimburse
the Owner who restored the wall for his or her share of the cost of restoration thereof;
provided, however, that the cost of restoration resulting from destruction or other casualty
resulting from the acts or omissions of an Owner shall be the financial responsibility of
such Owner, and the Association may assess the responsible Owner for their share of the
costs, without prejudice to the right of an Owner to recover a larger contribution from the
other Owner. Insurance claims shall be made promptly following any casualty.
10.4 Weathe rrp oofing. Notwithstanding any other provision of this Section,
any Owner who, by his or her negligent or willful act, causes a party wall to be exposed
to the elements shall bear the whole cost of the repairs necessary for protection against
such elements.
10.5 Right to Contribution Runs With Land. The right of any Owner to
contribution from any other Owner under this Section shall be appurtenant to the Unit
and shall pass to such Owner's assigns and successors in title.
10.6 Arbitration. In the event of any dispute arising concerning a party wall,
and if the Owners of the affected Units do not resolve the dispute by a written agreement
within thirty days of the event causing the dispute, the matter shall be submitted to
binding arbitration under the rules of the American Arbitration Association (or under
such other rules as the parties may unanimously agree), upon the written demand of the
Association or any Owner whose Dwelling shares the party wall. A single arbitrator shall
be used unless multiple arbitrators are agreed to by the parties. The Association shall,
upon its request, be made a party to the arbitration, but cannot be compelled to be a party.
Each party agrees that the decision of the arbitrators shall be final and conclusive of the
questions involved. The fees of the arbitrators shall be shared equally by the parties, but
each party shall pay its own attorneys' fees or other costs incurred in the arbitration.
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SECTION 11
INSURANCE
11.1 Required Coverage. The Association shall obtain and maintain, at a
minimum, a master policy or policies of insurance in accordance with the insurance
requirements set forth in the Act and the additional requirements set forth herein, issued
by a reputable insurance company or companies authorized to do business in the state of
Minnesota, as follows:
11.1.1 Property insurance in broad form covering risks of physical loss in
an amount equal to one hundred percent of the insurable "replacement cost" of the
Property, less deductibles, exclusive of land, footings, excavation and other items
normally excluded from coverage (but including all building service equipment
and machinery). The Association may or may not insure the improvements and
betterments referred to in Section S15B.3-113(b)(i) through (vii) of the Act as
determined by the Board. The policy or policies shall cover personal property
owned by the Association. The policy or policies shall also contain "Inflation
Guard" and "Agreed Amount" endorsements, if reasonably available.
11.1.2 Commercial general liability insurance covering the use, operation
and maintenance of the Common Elements, with minimum limits of one million
dollars per occurrence, against claims for death, bodily injury and property
damage, and such other risks as are customarily covered by such policies for
projects similar in construction, location and use to the Property. The policy shall
contain a "severability of interest" endorsement which shall preclude the insurer
from denying the claim of an Owner or Occupant because of negligent acts of the
Association or other Owners or Occupants.
11.1.3 Fidelity bond or insurance coverage against dishonest acts on the
part of directors, officers, managers, trustees, employees or persons responsible
for handling funds belonging to or administered by the Association, if deemed to
be advisable by the Board or required by the regulations of any financing-related
institution as a precondition to the purchase, insuring, guarantee, or financing of a
mortgage on a Unit. The fidelity bond or insurance shall name the Association as
the named insured. An appropriate endorsement to the policy to cover any persons
who serve without compensation shall be added if the policy would not otherwise
cover volunteers, or a waiver of defense based upon the exclusion of persons
serving without compensation shall be added.
11.1.4 Workers' Compensation insurance as applicable and required by
law.
11.1.5 Directors and officers liability insurance with such reasonable
limits and coverages as the Board shall determine from time to time.
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11.1.6 Such other insurance as the Board may determine from time to
time to be in the best interests of the Association and the Owners.
11.2 Premiums; Improvements; Deductibles. Except as provided in Section 6.4
and this Section, all insurance premiums shall be assessed and paid as an annual
Assessment. Policy deductible amounts shall be determined by the Board. If
improvements and betterments to the Units are covered, any increased cost may be
assessed against .the Units affected. The Association may, in the case of a claim for
damage to a Unit or Units, (i) pay the deductible amount as a Common Expense, (ii)
assess the deductible amount against the Unit or Units affected in any reasonable manner,
or (iii) require the Owner of any Unit affected to pay the deductible amount directly. The
Association's decision as to who shall be charged with paying the deductible amount
may, but need not, be based on fault.
11.3 Lgss Payee; Insurance Trustee. All insurance coverage maintained by the
Association shall be written in the name of, and the proceeds thereof shall be payable to,
the Association (or a qualified insurance trustee selected by it) as trustee for the benefit of
the Owners and secured parties which suffer loss. The Association, or any insurance
trustee selected by it, shall have exclusive authority to negotiate, settle and collect upon
any claims or losses under any insurance policy maintained by the Association.
11.4 R~,quired Policy Provisions. All policies of property insurance carried by
the Association shall provide that:
11.4.1 Each Owner and secured party is an insured Person under the
policy with respect to liability arising out of the Owner's interest in the Common
Elements or membership in the Association.
11.4.2 The insurer waives its right to subrogation under the policy against
any Owner or member of the Owner's household and against the Association and
members of the Board.
11.4.3 The coverage shall not be voided by or conditioned upon (i) any
act or omission of an Owner or mortgagee, unless acting within the scope of
authority on behalf of the Association, or (ii) any failure of the Association to
comply with any warranty or condition regarding any portion of the Property over
which the Association has no control.
11.4.4 If at the time of a loss under the policy there is other insurance in
the name of an Owner covering the same property covered by the policy, the
Association's policy is primary.
11.5 Cancellation; Notice of Loss. Property insurance and comprehensive
liability insurance policies maintained by the Association shall provide that the policies
shall not be canceled or substantially modified, for any reason, without at least thirty
days' prior written notice to the Association.
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11.6 Restoration in Lieu of Cash Settlement. All policies of property insurance
maintained by the Association shall provide that, despite any provisions giving the
insurer the right to elect to restore damage in lieu of a cash settlement, such option shall
not be exercisable (i) without the prior written approval of the Association (or any
insurance trustee) or (ii) when in conflict with provisions of any insurance trust
agreement to which the Association may be a party, or any requirement of law.
11.7 Owner's Personal Insurance. Each Owner shall obtain additional personal
insurance coverage (commonly known as "gap coverage" or an "H06" policy) at his or
her own expense covering fire and other casualty to the interior of the Unit, personal
property and the Owner's personal liability. Insurance policies maintained by Owners are
without contribution as against the insurance purchased by the Association, except as to
deductible amoumts or other items not covered under the Association's policies.
SECTION 12
RECONSTRUCTION, CONDEMNATION AND EMINENT DOMAIN
12.1 Reconstruction. The obligations and procedures for the repair,
reconstruction oz disposition of the Property following damage or destruction thereof
shall be governed by the Act. Any repair or reconstruction shall be commenced as soon
as practicable after the casualty and shall be substantially in accordance with the plans,
specifications and design of the Property as initially constructed and subsequently
improved.
12.2 Condemnation and Eminent Domain. In the event of a taking of any part
of the Property by condemnation or eminent domain, the provisions of the Act shall
govern; provided (i) that the Association shall be the attorney-in-fact to represent the
Owners in any related proceedings, negotiations, settlements or agreements and (ii) that
any awards or proceeds shall be payable to the Association for the benefit of the Owners
and the mortgagees of their Units. Mortgagees shall be entitled to priority for
condemnation awards in accordance with the priorities established by the Act and the
Governing Documents, as their interests may appear.
12.3 Termination and Liquidation. The termination of the common interest
community, and the distribution of any proceeds therefrom, shall be governed by the Act.
Any distribution of funds shall be based upon the value of the Units as determined by
their relative value for property insurance purposes, and shall be made to Owners and
their mortgage holders, as their interests may appear, as provided in the Act.
12.4 Association's Authority. In all cases involving reconstruction,
condemnation, eminent domain, termination or liquidation of the common interest
community, the Association shall have authority to act on behalf of the Owners in all
proceedings, negotiations and settlement of claims. All proceeds shall be payable to the
22
Association to hold and distribute for the benefit of the Owners and their mortgage
holders, as their interests may appear, in accordance with the Act.
SECTION 13
EASEMENTS
Each Unit and the Commons Elements, and the rights of the Owners and
Occupants therein, shall be subject to the appurtenant easements and rights granted and
reserved in this Section 13.
13.1 A cess. Each Unit shall be the beneficiary of a nonexclusive easement for
access to and from a public roadway on and across those portions of the Common
Elements designated for use as roadways or walkways, as originally constructed, shown
on the Plat or otherwise designated by the Association, subject to any restrictions
authorized by the Governing Documents or the Rules and Regulations.
13.2 Use and Enjoyment. Each Unit shall be the beneficiary of nonexclusive
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 Governing Documents.
13.3 Structural Support. Each Unit and the Common Elements shall be subject
to and the beneficiary of nonexclusive easements for structural support in all walls,
columns, joists, girders and other structural components located in or passing through or
shared with another Unit or the Common Elements.
13.4 Encroachments. Each Unit and the Common Elements, and the rights of
the Owners and Occupants therein, shall be subject to nonexclusive easements in favor of
the adjoining Units for minor encroachments caused by the construction, reconstruction,
repair, shifting, settlement or movement of any part of the Property, and for
improvements which are part of the original construction of the Property or which are
added in compliance with Section 8. If there is an encroachment upon another Unit or the
Common Elements as a result of any of the aforementioned causes, an appurtenant
easement shall exist for the encroachment, for the use, enjoyment and habitation of any
encroaching improvement, and for the maintenance thereof. However, with respect to
improvements or alterations added pursuant to Section 8, no easement shall exist unless
the resulting encroachment is minor and the proposed improvements have been approved
and constructed as required by this Declaration. Such easements shall continue for as
long as the encroachment exists and shall not affect the marketability of title.
13.5 Drainage Easements. The Common Elements shall be subject to
nonexclusive easements for storm water drainage over those parts of the Property which
are designed, improved or graded for such purposes.
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13.6 1V~aintenance Repair Replacement and Reconstruction. Each Unit, and
the rights of the Owners and Occupants thereof, and the Common Elements shall be
subject to and benefited by nonexclusive easements in favor of the Association for the
maintenance, repair, replacement and reconstruction of the Common Elements, the
Dwellings and other improvements located within the Units, and utilities serving the
Units, to the extent necessary to fulfill the Association's obligations under the Governing
Documents. Each Owner shall afford to the Association and its management agents and
employees, access at reasonable times and upon reasonable notice, to and through the
Unit and its Limited Common Elements for maintenance, repair and replacement;
provided that access maybe had without notice and at any time in case of emergency.
13.7 Utilities, Services and Operating_Systems. The Common Elements and
the Units shall be subject to and benefited by nonexclusive easements in favor of the
City, the Association and all utility companies and other service providers for the
installation, use, maintenance, repair and replacement of all utilities, services and
common operating systems, such as natural gas, electricity, cable TV, Internet and other
electronic communications, water, sewer, septic systems, wells, and similar services,
irrigation systems, and other common operating systems, and metering and control
devices, which exist, which are constructed as part of the development of the Property or
the Additional Real Estate, which are approved by the City, which are approved by the
Association under authority contained in the Governing Documents or the Act, or which
are described or referred to in the Plat, this Declaration or other recorded instruments.
Each Unit, and the rights of the Owners and Occupants thereof, shall also be subject to
and benefited by a nonexclusive easement in favor of the other Units, the Common
Elements and the Association for all such utilities, service and systems.
13.8 Emer ency Access to Units. In case of emergency, all Units and Limited
Common Elements are subject to an easement, without notice and at any time, in favor of
fire, police or other public health or safety personnel.
13.9 Other Easements. The Property shall be subject to such other easements
as may be authorized by the Association under authority contained in the Governing
Documents or the Act or recorded against the Property by reason of the City's
requirements in connection with the development of the Property.
13.10 Continuation. Scope and Conflict of Easements. The easements set forth
in this Section (i) shall run with the land and shall be appurtenant to the benefited
Property, (ii) shall supplement and not limit any easements described elsewhere in this
Declaration, or otherwise recorded, (iii) shall be permanent, subject only to termination in
accordance with the terms of the easement, and (iv) shall include reasonable access to the
easement areas over and through the Property for purposes of construction, maintenance,
repair, replacement and reconstruction. Notwithstanding anything in this Declaration to
the contrary, no Owner or Occupant shall be denied reasonable access to his or her Unit
or the right to utility services thereto.
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13.11 Npn Interference; Impairment Prohibited. All Persons exercising
easements rights shall do so in a reasonable manner so as not to materially interfere with
the operation of :the Property or cause damage to the Property, and shall be financially
liable for all costs of repair of any part of the Property which is damaged by the Person's
exercise of the easement rights. No Person shall impair, obstruct or cause damage to any
easement area, or improvements or equipment installed therein. Utilities and related
services or systems shall be installed, used, maintained and repaired so as not to interfere
with the use and quiet enjoyment of the Units by the Owners and Occupants, nor affect
the structural or architectural integrity of the Dwellings or common Element
improvements.
13.12 Bgnefit of Easements. All easements benefiting or burdening a Unit shall
benefit or burden 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 easements
rights in the Property during such delegated occupancy, except (i) as a guest of an Owner
or Occupant or (ii) in connection with the inspection of the Unit or recovery of
possession of the Unit pursuant to law.
SECTION 14
COMPLIANCE AND REMEDIES
Each Owner and Occupant, and any other Person owning or acquiring any interest
in the Property, shall be governed by and comply with the provisions of the Act, the
Governing Documents, the Rules and Regulations, and such amendments thereto as may
be made from time to time, and the decisions of the Association. A failure to comply
shall entitle the Association to the relief set forth in this Section, in addition to the rights
and remedies authorized elsewhere by the Governing Documents or the Act.
14.1 Entitlement to Relief. Legal relief maybe sought by the Association, at its
discretion, against any Owner, or by an Owner against the Association or another Owner,
to enforce compliance with the Governing Documents, the Rules and Regulations, the
Act or the decisions of the Association. However, no Owner may withhold any
Assessments payable to the Association, nor take or omit other action in violation of the
Governing Documents, the Rules and Regulations or the Act, as a measure to enforce
such Owner's pdsition, or for any other reason.
14.2 medies. In addition to any other remedies or sanctions, expressed or
implied, administrative or Iegal, 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/ar their guests, who violate the provisions of the Governing Documents,
the Rules and Regulations or the Act:
14.2.1 Commence legal action for damages or equitable relief in any court
of competent jurisdiction.
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14.2.2 Impose late charges of up to the greater of twenty dollars, or
fifteen percent of the amount past due, for each past due Assessment or
installment thereof, and impose interest at the highest rate permitted by law
accruing beginning on the first day of the month after the Assessment or
installment was due.
14.2.3 In the event of default of more than thirty days in the payment of
any Assessment or installment thereof, all remaining installments of Assessments
assessed against the Unit owned by the defaulting Owner maybe accelerated and
shall then be payable in full if all delinquent Assessments or installments thereof,
together with all attorneys' and other professional fees, costs of collection and late
charges, are not paid in full prior to the effective date of the acceleration. Not less
than ten days advance written notice of the effective date of the acceleration shall
be given to the defaulting Owner.
14.2.4 Impose reasonable fines, penalties or charges for each violation of
the Act, the governing Documents or the Rules and Regulations.
14.2.5 Suspend the rights of any Owner or Occupant and their guests to
use any Common Element amenities; provided, that the suspension of use rights
shall not apply to Limited Common Elements allocated 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 one
year thereafter, for each violation.
14.2.6 Restore any portions of the Common Elements, Unit, or Limited
Common.. Elements damaged or altered, or allowed to be damaged or altered, by
any Owner or Occupant or their guests in violation of the Governing Documents,
and to assess the cost of such restoration against the responsible Owners and their
Units.
14.2.7 Enter any Limited Common Element of a Unit in which, or as to
which, a violation or breach of the Governing Documents or Rules and
Regulation exists which materially affects, or is likely to materially affect, the
health or safety of the other Owners or Occupants, or their guests, or the safety or
soundness of any Dwelling or other part of the Property or the Property of the
Owners or Occupants, and to summarily abate, remove or demolish, at the
expense of the offending Owner or Occupant, any structure, thing or condition
which is causing the violation; provided, that any improvements which are a part
of a Dwelling may be altered, removed or demolished only pursuant to a court
order or with the agreement of the Owner.
14.2.8 Foreclose any lien arising under the provisions of the Governing
Documents or under law, in the manner provided by the Governing Documents.
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14.3 Rights to Hearing. Before the imposition of any of the remedies
authorized by Sections 14.2.4, 14.2.5, 14.2.6 or 14.2.7, the Board shall, upon written
request of the offender, grant to the offender an opportunity for a fair and equitable
hearing before the Board as contemplated by the Act. The offender shall be given notice
of the nature of the violation and the right to a hearing, and ten days within which to
request a hearing. The hearing shall be scheduled by the Board and held within thirty
days of receipt of the hearing request by the Board, and with at least ten days' prior
written notice to the offender. If the offender fails to timely request a hearing or to appear
at the hearing, then the right to a hearing shall be deemed waived and the Board may take
such action as it deems appropriate. The decision of the Board and the rules for the
conduct of hearings established by the Board shall be final and binding on all parties. The
Board's decision shall be delivered in writing to the offender within ten days following
the hearing, if not delivered to the offender at the hearing.
14.4 Lien for Charges, Penalties, Etc. All charges, fines, expenses, penalties,
interest or other impositions 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 makes a written
decision at or following the hearing. All remedies shall be cumulative, and the exercise
of, or failure to exercise, any remedy shall not be deemed a waiver of the Association's
right to pursue any others.
14.5 Costs of Proceeding and Attorneys' Fees. With respect to any collection
measures, or any other measure or action, legal, administrative or otherwise, which the
Association takes pursuant to the provisions of the Act, Governing Documents or Rules
and Regulations, whether or not finally determined by a court or arbitrator, the
Association may assess the Unit owned by the violator with any expenses incurred in
connection with such enforcement, including without limitation fines or charges
previously imposed by the Association, reasonable attorneys' and other professional fees,
and interest (at the highest rate allowed by law) on the delinquent amounts owed to the
Association. Such expenses shall also include any collection or contingency fees or costs
charged to the Association by a collection agency or other Person acting on behalf of the
Association in collecting any delinquent amounts owed to the Association by an Owner
or Occupant. Such collection or contingency fees or costs shall be the personal obligation
of the Owner of the Unit and shall be a lien against such Owner's Unit.
14.6 Liability for Acts of Owners and Occupants. 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. Any insurance deductible amount and/or
increase in insuralnce rates, resulting from the Owner's acts or omissions maybe assessed
against the Owner responsible for the condition and against his or her Unit.
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14.7 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, and the Act as provided therein.
SECTION 15
AMENDMENTS
15.1 Approval Requirements. This Declaration may be amended only by the
approval of:
15.1.1 The Board; and
15.1.2 Owners of Units to which are allocated at least sixty-seven percent
of the total votes in the Association.
15.2 Procedures. Approval of the Owners may be obtained in writing or at a
meeting of the Association duly held in accordance with the Bylaws. Any amendment
shall be subject to any greater requirements imposed by the Act. The amendment shall be
effective when recorded as provided in the Act. An affidavit by the Secretary of the
Association as to the outcome of the vote, or the execution of the foregoing agreements
or consents, shall be adequate evidence thereof for all purposes, including without
limitation, the recording of the amendment.
SECTION 16
RIGHTS OF MORTGAGEES
Notwithstanding anything to the contrary in the Governing Documents, but
subject to the Act or other laws, Mortgagees shall have the following rights and
protections:
16.1 Consent to Subdivision. No Unit may be partitioned or subdivided
without the prior written approval of the Owner and the mortgagee thereof, and the
Association.
16.2 Np Right of First Refusal. The right of an Owner to sell, transfer or
otherwise convey his or her Unit shall not be subject to any right of first refusal or similar
restrictions.
16.3 Pr}ority of Lien. Any Person who comes into possession of a Unit by
foreclosure of the first mortgage on a Unit, or by deed or assignment in lieu of
foreclosure of the first mortgage on a Unit, 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
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said Person; (i) except as provided in Section 6.9 and the Act and (ii) except that any
unreimbursed Assessments or charges maybe reallocated among all Units in accordance
with their interests in the Common Elements.
16.4 Priority of Taxes and Other Charges. All taxes, Assessments and charges
which may become liens prior to the first mortgage under state law shall relate only to the
individual Units and not to the Property as a whole.
16.5 Priority for Condemnation Awards. No provision of the Governing
Documents shall give an Owner, or any other party, priority over any rights of the
mortgagee of the Unit pursuant to its mortgage in the case of a distribution to such Owner
of insurance proceeds or condemnation awards for losses to or a taking of the Unit and/or
the Common Elements.
16.6 Access to Books and Records/Audit. Mortgagees shall have the right to
examine the books and records of the Association upon reasonable notice and 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 days
after the end of the Association's fiscal year.
SECTION 17
MISCELLANEOUS
17.1 Severability. If any term, covenant, or provision of this instrument or any
exhibit attached hereto is held to be invalid or unenforceable for any reason whatsoever,
such determination shall not be deemed to alter, affect or impair in any manner
whatsoever any other portion of this Declaration or exhibits attached hereto.
17.2 Construction. Where applicable, the masculine gender of any word used
herein shall mean the feminine or neutral gender, or vice versa, and the singular of any
word used herein shall mean the plural, or vice versa. References to the Act, or any
section thereof, shall be deemed to include any statutes amending or replacing the Act,
and the comparable sections thereof. Any amendment to the Act shall retroactively apply
to the Association and the Property, except as expressly prohibited or qualified by the
Governing Documents.
17.3 Notice. Unless specifically provided otherwise in the Governing
Documents or the Act, all notices required to be given by or to the Association, the
Board, the Association officers, or the Owners or Occupants shall be in writing and shall
be effective upon hand delivery, or mailing if properly addressed with postage prepaid
and deposited in the United States mail; except that registrations pursuant to Section 2.2
of the Bylaws shall be effective upon receipt by the Association.
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17.4 Conflicts Among Documents. In the event of any conflict among the
provisions of the Act, the Declaration, the Bylaws or the Rules and Regulations, the Act
shall control unless it permits the documents to control. As among the Declaration, the
Bylaws and the Rules and Regulations, the Declaration shall control, and as between the
Bylaws and the Rules and Regulations, the Bylaws shall control.
17.5 Duration of Covenants. The covenants, conditions, restrictions,
easements, liens and charges contained in this Declaration shall be perpetual, subject only
to termination as provided in this Declaration and the Act.
IN WITNESS WHEREOF, the undersigned has executed this instrument the
day and year first set forth above.
Westwood Village Association,
a Minnesota nonprofit corporation
By: Susan E. Shea
Its: President
STATE OF MINNESOTA )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of ,
2007, by Susan E. Shea, the President of Westwood Village Association, a Minnesota
nonprofit corporation, on behalf of the nonprofit corporation.
NOTARY PUBLIC
THIS INSTRUMENT WAS DRAFTED B~:
SEVERSON, SHELDON, DOUGHERTY &
MOLENDA, P.A.
7300 West 147th Street, Suite 600
Apple Valley, MN 55124
(952) 432-3136
(MDK 9120-25899)
30
COMMON INTEREST COMMUNITY N0.727
WESTWOOD VILLAGE
EI~HIBIT A TO SECOND AMENDED DECLARATION
LEGAL DESCRIPTION OF PROPERTY
Lots 1 through 3 Block 1;
Lots 1 through 8, Block 2;
Lots 1 through 7, Block 3;
Lots 1 through 4, Block 4;
Lots 1 through 6; Block 5;
Lots 1 through 5; Block 6;
Lots 1 through 8, Block 7;
Lots 1 through 6, Block 8; and
Lot 1, Block 9;
all in Westwood Village Townhomes Plat 1, according to the recorded plat thereof,
Ramsey County, Minnesota.
Note: Each of the above-described lots constitutes a Unit, except Lot 1, Block 9.
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AFFIDAVIT OF SUSAN E. SHEA
STATE OF MINNESOTA
COUNTY OF
ss.
Susan E. Shea, being duly sworn on oath, states as follows:
1. I am the President of Westwood Village Association, a Minnesota nonprofit
corporation.
2. The foregoing Second Amended Declaration for Common Interest
Community No. 727, a planned community, Westwood Village, has been approved by an
instrument signed by not less than seventy-five percent (75%) of the Lot Owners and
mortgagees as required under Article XIII of that certain Amendment of Declaration of
Covenants, Conditions and Restrictions dated October 16, 1969, and recorded in the
office of the County Recorder of Ramsey County, Minnesota, on November 7, 1969, as
Document No. 1762029.
3. Further your Affiant sayeth not.
Dated this day of , 2007.
Subscribed and sworn to before me this
day of , 2007.
NOTARY PUBLIC
THIS INSTRUMENT WAS DRAFTED BY:
SEVERSON, SHELDON, DOUGHERTY &
MOLENDA, P.A.
7300 West 147th Street, Suite 600
Apple Valley, MN 55124
(952) 432-3136
(MDK 9120-25099)
Susan E. Shea
33