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HomeMy WebLinkAboutCondominium Declarations Draft (unsigned) . COMMON INTEREST COMMUNITY NUMBER 235 A CONDOMINIUM S &C BANK CONDOMINIUMS DECLARATION THIS DECLARATION OF COMMON INTEREST COMMUNITY ( "Declaration ") is executed as of this day of , 2004, by S &C Bank, a Wisconsin corporation, ( "Declarant "). RECITALS: A. Declarant is the fee owner of certain Property, as herein defined; and B. Declarant is desirous of developing the Property as a non - residential condominium, which shall be used, occupied and operated as an office facility; and C. Declarant intends to improve the Property by altering the existing structure located thereon to form two (2) Units (as that term is later defined) each, together with appurtenances thereto, as herein defined, collectively known as Common Interest Community Number 235, S &C Bank Condominiums, said structures having been constructed as a Common Interest Community in accordance with the plat of S &C Bank Condominiums, recorded in Washington County, Minnesota, which plat is incorporated herein by this reference; and 1 • • D. Declarant hereby establishes by this Declaration a plan for the individual ownership of the real property estates consisting of Units, as defined herein. NOW, THEREFORE, Declarant, as the fee owner of the Property and improvements thereon located in the County of Washington, State of Minnesota and legally described as: See Attached Exhibit "A" hereby makes this Declaration as to divisions, covenants, restrictions, limitations, conditions and uses to which the above - described real property and improvements thereon above described, consisting of a single structure of two (2) Units (as that term is later defined) each, and other appurtenances, hereby specifying that said Declaration shall constitute covenants which shall run with the land and shall be binding on the Declarant, its successors and assigns, and all subsequent owners of all or any part of said real property and improvements, together with their grantees, successors, heirs, executors, administrators, devisees or assigns. Terms not otherwise defined herein shall have the meaning ascribed to them in the Act, as herein defined. ARTICLE I DEFINITIONS Section 1. Definitions. (a) Act. The Minnesota Common Interest Ownership Act, Minnesota Statutes Chapter 515B, as amended. (b) Assessment(s). All Assessments levied by the Declarant pursuant to Article IV of this Declaration, as herein defined. (c) Building. The structure containing the Units, as herein defined. (d) CIC. Common Interest Community Number 235, S &C Bank Condominiums a Condominium. (e) Common Element(s). All parts of the Property, as herein defined, except the Units and Limited Common Elements, including all improvements thereon, owned for the common benefit of the owners and the occupants. (f) Common Equipment. Any equipment or appliance servicing more than one Unit or servicing a Common Element or Limited Common Element. (g) Common Expense. All expenditures made or liabilities incurred by or on behalf of the CIC together with any allocation to reserves, including but not limited to the items 2 • identified in Exhibit `B" attached hereto and those items assessed under Article IV, Section I. (h) Common Expense Assessments. Any Assessment made for the purpose(s) of paying Common Expenses or allocation to reserves. (i) Declarant. S &C Bank, a Wisconsin corporation, or its successors or assigns as an Owner. (j) Declaration. This Declaration. (k) First Mortgagee. The holder, insurer or guarantor of a first mortgage on a Unit in the CIC. (1) Limited Assessments. Any Assessment allocated by Declarant to less than all of the Units and for items not considered a Common Expense. (m) Limited Common Element(s). A portion of the Common Elements set aside and allocated for the exclusive use of fewer than all of the Units, as may be allocated by the Plat or otherwise set forth in this Declaration (n) Owner(s). A Person who owns a Unit, as defined herein, but excluding contract for deed vendor, Mortgagee, holder of reversionary interests in life estate and other secured parties. (o) Party Walls. Any wall on the Property shared by more than one Unit. (p) Person. A natural individual, corporation, limited liability company, partnership, limited liability partnership, limited partnership, trustee, or other legal entity capable of holding title to real property. The term "Person" may be either singular or plural. (q) Plat. The recorded plat of S &C Bank Condominiums, recorded in Washington County, Minnesota. (r) Property. All real property subject to this Declaration, now or in the future, including all structures and other improvements thereon as described in Exhibit "A ". (s) Unit(s). Each separate parcel of real estate on the Property, other than the Common Elements or Limited Common Elements, as designated on the Plat. (t) Yearly Statement. A statement provided to each Owner setting forth each Owner's percentage of the Common Costs based on actual costs. 3 • ARTICLE II CREATION OF UNITS AND COMMON ELEMENTS Section 1. Establishment of Common Interest Community. The Declarant, in order to establish a plan of CIC ownership for the above - described Property and improvements thereon hereby covenants, agrees and declares that it hereby divides the Property and improvements therein into separate parcels of real estate and that such CIC division of such Property and improvements shall hereafter be known as Common Interest Community Number 235, S &C Bank Condominiums, and such CIC division shall be upon the terms and conditions as set forth in this Declaration and the Plat: (a) Units. The Property shall contain two (2) Units. The boundaries of Units shall be the boundary line as designated on the Plat. To the extent consistent with the Plat, the Unit boundaries for Unit 100 shall be to the exterior of all walls and roof top as now constructed except for the portion designted as unit 101. To the extent consistent with the Plat, the Unit boundaries for Unit 101 shall be the interior unfinished surfaces of its perimeter walls, floors and ceilings. Each Unit shall constitute a separate parcel of real estate. (b) Common Elements. The boundary of the Common Elements shall be as designated on the Plat; and (c) Limited Common Elements. The Limited Common Elements shall be as designated on the Plat or described in the Section 515B2- 102(d) of the Act, but specifically includes that portion of the roof immediately above each Unit which is not part of the Unit and that portion of the parking area designated for use by Unit 101. Section 2. CIC Not Subject to Conversion Ordinance. The CIC is not subject to any ordinance provided for in Section 515B.1 -106 of the Act relative to the conversion of buildings to CIC ownership. Section 3. Timeshares. The CIC shall not permit timeshare of any Units, Common Elements or Limited Common Elements. Section 4. Master Association. The CIC is not subject to a master association. Section 5. Applicability of the Act. As this CIC consists of fewer than twelve (12) Units, this CIC is exempt from the provisions of the Act unless otherwise agreed to herein. ARTICLE III MAINTENANCE RESPONSIBILITIES Section 1. Maintenance, Repair and Improvements. Declarant shall be responsible for maintaining, repairing and improving the Common Elements, Limited Common Elements and Common Equipment. "Maintenance ", shall include, but not be limited to, the following: 4 • . (a) Maintaining all paved surfaces and sidewalks of the Common Elements and Limited Common Elements in a smooth and evenly covered condition, which maintenance work shall include, without limitation, cleaning, sweeping, restriping, repairing, resurfacing and replacement of the parking area or sidewalks using materials of a quality equal or superior to the original surfacing material. (b) Periodic removal of all debris, filth, refuse, ice and/or snow, and sweeping of the Common Elements or Limited Common Elements to the extent necessary to keep them in a reasonably clean and orderly condition, as determined by Declarant. (c) Placing, keeping in repair and replacing any appropriate directional signs, markers and lines. (d) Keeping in repair and replacing when necessary such parking lot lighting facilities as may be reasonably required. (e) Maintaining all landscaped and grass areas of the Common Elements or Limited Common Elements, which maintenance work shall include, without limitation, routine lawn care, repairing automatic sprinklers or water lines, replacement of shrubs, trees or other landscaping as necessary (f) Maintaining the Building, which maintenance work shall include, without limitation, cleaning, repairing, resurfacing, and replacement using materials of a quality equal or superior to the original surfacing material. (g) Maintaining liability insurance in an amount and coverage acceptable to Declarant, in its sole and absolute discretion. (h) Paying all taxes and Assessments due and owing on Common Elements or Limited Common Elements. (i) Maintaining, servicing, repairing or replacing any Common. Equipment. (j) Maintaining, servicing, repairing or replacing any utility line located within the Common Elements, Limited Common Elements or attached to any Common Equipment. (k) Performing any emergency repairs or services to any Common Elements, Limited Common Elements or Common Equipment. (1) Any capital improvements made to the Common Elements, Limited Common Elements, Common Equipment or improvements made for the benefit of more than one Unit. Section 2. Unit Access. Each Owner shall afford Declarant and Declarant's agents or employees, access through the Owner's Unit and Limited Common Elements reasonably 5 • • necessary for the purposes provided herein. In addition, the Declarant shall have a reasonable right of entry to and upon each Unit and its Limited Common Elements to effect emergency or other necessary repairs which the Owner has failed to perform. The Declarant shall also have the right to grant utility easements under, through or over the Common Elements or Limited Common Elements which are reasonably necessary to the ongoing development and operation of the CIC. The rights of each Owner to the Common Elements are subject to all matters appearing on the Plat. Section 3. Damage to Common Elements or Units. If damage is inflicted on the Common Elements, Limited Common Element or any Unit through which access is taken, the Owner responsible for the damage is liable for the prompt repair thereof. Such Owner's share of any expense for such damage may be assessed by the Declarant against such Owner's Unit in the manner of an Assessment under Article IV hereof. Section 4. Shared Utilities. At this time, charges for gas, electricity, water, sewer, trash removal and any other utility servicing more than one Unit or the Common Elements or Limited Common Elements ( "Utilities ") are not separately metered or otherwise designated to each Unit. Until the time that such Utilities are separately metered, Declarant shall pay for all Utilities and all costs for such Utilities ( "Common Utility Cost ") shall be assessed by Declarant against each Owner's Unit in the manner of an Assessment under Article IV hereof. Once such utilities are separately metered, all Utilities pertaining to each Unit shall be the Unit Owner's sole obligation and all Utilities pertaining to the Common Elements, Limited Common Elements or Common Equipment shall be considered a Common Utility Cost and assessed by Declarant against each Owner's Unit in the manner of an Assessment under Article IV hereof. ARTICLE IV ALLOCATION OF ASSESSMENTS Section 1. Common Expense Assessment. All costs and expenses incurred in the maintenance or repair of the Common Elements, Limited Common Elements and Common Equipment, and Common Utility Cost (collectively "Common Expenses "), shall be assessed to all Units on the basis of each Unit's square footage. Specifically, the Assessments levied on each Unit shall be determined by dividing the square footage of the Unit to be assessed by the total square footage of all Units. Section 2. Quarterly Assessments. Declarant shall assess the Common Expenses or estimation of the Common Expenses on the first day of January, April, July and October of each calendar year ( "Quarterly Assessment Date "). The first Assessment for Common Expenses shall occur on the first Quarterly Assessment Date following execution of this Declaration and shall include an additional amount for any Common Expenses incurred prior thereto assessed in a manner consistent with this Article IV. Section 3. Limited Assessments. In addition to the Common Expense Assessment, the Declarant may levy and allocate Limited Assessments. 6 • • Section 4. Payment of Assessments. All Assessments shall be paid within thirty (30) days receipt thereof. Within ninety (90) days from the end of each calendar year, Declarant shall provide the Owners with the Yearly Statement. If an Owner has, based upon estimated billings, paid more or less than the actual percentage due according to the Yearly Statement, there shall be an adjustment within thirty (30) days of the Yearly Statement so that the amount paid by the Owner constitutes the actual percentage due. Section 5. Capital Improvements. If an individual capital improvement is made and the cost of such capital improvement exceeds $ , then for the purpose of assessing Common Expenses the costs of such capital improvement shall be included in the Common Expenses in accordance with GAAP based on the amortization of such costs over the useful life of such improvements, reasonably determined by Declarant, together with interest at Declarant's cost of funds for such capital improvement. Section 6. Environmental Hazzard Clean -up. Notwithstanding the foregoing, Common Expenses for a given calendar year shall not include costs attributable to the clean up of an environmental hazard. Any the cost attributable to clean up an environmental hazard on the Common Elements or Limited Common Elements shall be paid solely by Declarant and/or the party responsible for such hazard. Any cost attributable to such clean up of an environmental hazard on a Unit shall be paid by the respective Owner and/or party responsible for such hazard. Nothing contained in this provision shall benefit any party other than Declarant or an Owner. ARTICLE V LIABILITY FOR ASSESSMENTS Section 1. Lien. The Declarant shall have a lien on each Unit for any Assessments levied against that Unit and such lien shall have the priority and may be foreclosed in the manner provided in the Act. 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 shall be enforceable as an Assessment. Past due Assessments, and amounts enforceable hereunder as Assessments, shall bear interest at the rate established with respect to judgments under Minnesota Statutes Section 549.09. Section 2. No Waiver of Liability. Each Owner at the time an Assessment is payable is personally liable to the Declarant for the payment of the Assessment against the Owner's Unit. If there are multiple Owners of a single Unit, those Owners shall be jointly and severally liable to Declarant. No Owner may exempt himself or herself from the Common Expense Assessment liability by waiver of the use or enjoyment of any of the Common Elements or by the abandonment of the Unit. Section 3. Liability of Grantee for Unpaid Assessments. In a voluntary conveyance of a Unit (except as provided with respect to any First Mortgagee under Article XVI hereof) the grantee of the Unit shall be jointly and severally liable with the grantor for all unpaid Assessments by the Declarant against grantor for the share of the Common Expenses up to the time of the grant or conveyance, without prejudice to the grantee's right to recover from the 7 • • grantor the amounts paid by the grantee therefor. However, any grantee shall be entitled, upon written request, to a statement setting forth the amount of unpaid Assessments currently levied against the Unit. Section 4. Reserve for Replacement; Quarterly Assessments. Common Expense Assessments shall include an adequate fund for replacement of Unit, Common Element or Limited Common Element components which the Declarant is so obliged to maintain, repair or replace. Said fund shall be funded by quarterly payments and not by extraordinary special Assessments. ARTICLE VI MISCELLANEOUS COVENANTS Section 1. Miscellaneous Covenants. Declarant, by this Declaration, and any future Owner, by acceptance of deed to a Unit, covenant and agree as follows: (a) Leases. Unless otherwise agreed to in writing by all of the Owners, no Unit may be leased to a Person other than an Owner. (b) Encroachments. If any portion of the Common Elements encroaches upon any Unit, or if any Unit shall encroach upon any other Unit or upon any portion of the Common Elements as a result of the present construction of the Building, or if any such encroachment shall occur hereafter as a result of settling, expectable expansion, sag or structural adjustment of the Building (as distinguished from sudden, extreme and accidental change by Acts of God or other accidental causes), a valid easement for the encroachment and for the maintenance of the same, as long as the Building stands, shall exist. If the Building, or any adjoining part of the Common Elements shall be partially or totally destroyed as a result of fire or other casualty and then rebuilt, encroachments of parts of the Common Elements upon any Unit or of any Unit upon any other Unit or upon any part of the Common Elements, due to such rebuilding, shall be permitted, and valid easements for such encroachments and the maintenance thereof shall exist so long as the Building shall stand and such encroachments and easements shall not affect marketability of title. Nothing herein contained shall be construed as contrary to the conclusive presumption of Section 515B.2 -115 of the Act that the existing physical boundaries of a Unit or a Unit reconstructed in substantial accordance with the Plat are to be the boundaries of the Unit, regardless of settling or lateral movement of the Building. (c) Ingress and Egress of Owners. Each Unit shall be the beneficiary of an appurtenant easement for access to a public street or highway on or across the Common Elements. (d) Administration. The administration of the CIC shall be in accordance with the provisions of this Declaration. 8 • • (e) Compliance with the Declaration. Each Owner, tenant or occupant of a Unit shall comply with the provisions of this Declaration, as lawfully amended from time to time, and failure to comply with any such provisions shall be grounds for action to recover sums due, for damages, or for injunctive relief, at the sole discretion of the Declarant, including, but not limited to, the following: (1) Commence legal action for damages or equitable relief in any court of competent jurisdiction; (2) Impose late charges of up to the greater of $20.00, or 15% of the amount due, for each past due Assessment or installment thereof, and interest at up to the highest rate permitted by law; (3) In the event of default of more than thirty (30) days in the payment of any Assessment or installment thereof, all remaining installments of Assessments assessed against the Unit owned by the defaulting Owner may be accelerated and shall then be payable in full if all delinquent Assessments, together with all costs of collection, including but not limited to attorney's fees and late charges, are not paid in full prior to the effective date of the acceleration. Reasonable advance written notice of the effective date of the acceleration shall be given to the defaulting Owner; (4) Impose reasonable fines, penalties or charges for each violation the Declaration; (5) Suspend the rights of any Owner or occupant and their guests to use any Common Elements; provided, that this limitation shall not apply to Limited Common Elements appurtenant to the Unit, and those portions of the Common Elements providing utilities service and access to the Unit. Such suspensions shall be limited to periods of default, and for up to thirty (30) days thereafter, for each violation; (6) Restore any portions of the Common Elements or Limited Common Elements damaged or altered, or allowed to be damaged or altered, by any Owner or occupant or their guests in violation of this Declaration, and to assess the cost of such restoration against the responsible Owners and their Units; (7) Enter any Unit or Limited Common Element in which, or as to which, a violation or breach of this Declaration exists which materially affects, or is likely to materially affect in the near future, the health or safety of the other Owners or occupants, or their guests, or the safety or soundness of any Unit or other part of the Property or the property of the Owners or occupants, and to summarily abate and remove, at the expense of the offending Owner or occupant, any structure, thing or condition in the Unit or Limited Common Elements which is causing the violation; provided, that any improvements which are a part of a Unit may be 9 • • altered or demolished only pursuant to a court order or with the agreement of the Owner; or (8) Foreclose any lien arising under the provisions of this Declaration or under law, in the manner pursuant to Section 515B.3 -116 of the Act. (f) Use of Common Elements. There shall be no obstruction, littering, defacement or misuse of Common Elements nor shall anything be stored in the Common Elements except in areas designated on the Plat. (g) Exterior Appearance of Building. No Owner or occupant of any Unit shall cause or permit anything to be hung, displayed, or placed on the outside windows of the Building, on the outside of exterior doors, or on the outside walls or roof of such Building; unless otherwise permitted herein, no exterior awnings, shutters, canopies, radio or television antennas shall be erected nor any signs affixed to or placed upon exterior walls or roofs or any part thereof or other parts of the Common Elements; nor shall any change in the outside appearance of any exterior surface of the Building be made without the prior written consent of the Declarant. (h) Non- Residential Use. The Property is hereby restricted to non - residential use, and ancillary and necessary uses in connection therewith. No building or structure of a temporary character, trailer, tent, shack, garage, barn, or other outbuilding shall be placed on or used on the Property at any time. (i) Animals. No animals shall be permitted to be kept on the Property by any Owner or occupant of a Unit. (j) Commercial Activities. The property will be used in a consistent manner with the City of Oak Park Heights zoning laws and regulations. (k) Trash Removal. All rubbish, trash and garbage shall be regularly removed from each Unit and shall not be allowed to accumulate therein. There shall be no trash piles or storage piles on the Property, except for trash place inside the dumpsters in the area indicated on the Plat. (1) Derricks, etc. No derrick or other structure designed for use in boring, mining, or quarrying for oil, natural gas or precious minerals, shall be erected, maintained or permitted upon any Unit, provided that nothing in this Declaration shall be construed to restrict a public utility from erecting, maintaining, and operating upon any Unit owned by it within the Property, a well, housing, and equipment for the purpose of extracting from the sub - surface and/or the treatment storage and distribution of water through the system of such public utility. (m) Radio, T.V. Satellite Antennae. No radio or television receiving or transmitting antennae or external apparatus shall be installed on any Unit, save and except for the installation of satellite receivers, said receivers not to exceed eighteen inches (18 ") in 10 • • • diameter, and said installation to be consented to and approved in writing in each instance by the Declarant. Normal radio and television installations wholly within a Unit are permitted. (n) Maintenance of Easement Areas. Easements for installation and maintenance of the utilities, sewer pipelines and facilities and drainage facilities over each of said Units, and in the Common Elements are reserved as shown on the Plat or as created in accordance with this Declaration or any amendments hereof. Within these easements, no structure, planting or other materials shall be placed or permitted to remain which may damage or interfere with the installation and maintenance of utilities, or which may change the direction in the flow of drainage channels in the easements, or which may obstruct or retard the flow of water through drainage channels in the easements. The easement area of each Unit and all improvements in it shall be maintained continuously by the Owner of the Unit, except for those improvements for which a public authority, a private or public utility company or the Declarant is responsible. The easement area of the Common Elements shall be maintained continuously by the Declarant. (o) Prohibition of Fences and Storage Sheds. There shall be no fences, service sheds or storage sheds constructed or placed on the Property, except as designated on the Plat. (p) Parking. The owner of Unit 100 shall have the right to use thirty (30) parking stalls that are located within the Common Element. The Owner of Unit 101 shall have the exclusive right to use the four (4) parking spaces labled as L.C. E. Unit 101 on the Plat, to be used exclusively for the benefit of that particular Unit. The owner of Unit 101 shall be permited to use an additional six (6) parking stalls that are located within the Common Element. Nothing contained herein shall be construed to permit the obstruction of any passageway for either pedestrians or vehicles or which would unreasonable interfere with access or ingress to or from public rights of way. The passage and parking of vehicles and the passage and accommodation of pedestrians shall be used for solely business purposes. Nothing contained herein shall be construed to permit overnight parking of vehicles. (q) Hazardous Activities and Waste; Alterations. Nothing shall be done or kept in any Unit or any Common Elements which will increase the rate of insurance on the CIC or the contents thereof or result in increased water, sewer or other utility charges, without the prior written consent of the Declarant. No Owner or occupant of a Unit shall permit anything to be done or kept in any Unit or in the Common Elements which will result in the cancellation of insurance on the CIC, or contents thereof, or which will be in violation of applicable law or ordinance. No waste shall be committed in the Common Elements. No Owner shall make any improvement or alterations to the Owner's Unit that would impair that structural integrity or mechanical systems or lessen the support of any portion of the CIC without the prior written approval of the Declarant, which written approval may be conditioned upon (i) the showing to the Declarant of complete plans and specifications for such alteration or improvement prepared by a licensed architect or engineer; and (ii) the showing to the Declarant of financial guarantees or assurances satisfactory to the Declarant that all claims for labor or material purchased in connection 11 • • with such alternation or improvement will be fully paid and that no claims or liens will arise therefrom. Should an alteration or improvement be approved by the Declarant, the Declarant may increase that particular Owner's regular Assessment to account for the increased maintenance or reserve attributable thereon. (r) Signage. Signs requested by an Owner shall be permitted only as approved in writing by the Declarant. In so approving, the Owner shall have a non - exclusive easement for the purposes of installing, operating, maintaining, repairing or replacing such sign. An Owner may erect and post such signs within its Unit or, subject to approval of the Declarant, in the Limited Common Elements serving the Unit, as necessary to direct traffic, identify rooms and spaces, and facilitate other operations of the Unit and the Building. Any signs, advertisements or displays visible from the exterior of the Building shall be permitted only to the extent that such signs, advertisements or displays are completely uniform for all Units, as approved by the Declarant. (s) Right of First Refusal. If an Owner wishes to sell, assign or otherwise transfer its Unit, then the Owner shall: (1) give written notice to the Declarant of the intent to sell, assign or otherwise transfer the Unit; and (2) provide the Declarant with a written signed bona fide offer to buy from a third party which sets forth in detail the material terms and conditions of the proposed sale to the third party . The Declarant shall have thirty (30) days from such notice to elect in writing to purchase the Unit on the same material terms and conditions offered by the third party as set forth in the notice. If the Declarant so elects to purchase the Unit, the Declarant shall provide written notice to the Owner and the sale shall be consummated within sixty (60) days after the Declarant has given such written notice. If, as a result of the process set forth above, there has not occurred an election which results in purchase of the Unit by the Declarant, then the Owner shall have the right to sell the Unit to the third party. The sale to the third party must be on the same material terms and conditions set forth in the original offer to purchase by the third party. If the material terms or conditions are changed or if the identity of the third party purchaser is changed, then the Owner must once again offer the Unit to the Declarant pursuant to this provision. (t) Use Restrictions. No business shall be operated in Unit 100 which engages in insurance sales, except for the sale of credit related insurance. No business shall be operated in Unit 101 which originates loan or other credit transactions. (u) Right to Expand. Declarant hereby reserves for itself, its successors and assigns, the right to increase the square footage of Unit 100 by expanding over and onto the Common Elements or Limited Common Elements. In exercising the right reserved 12 • • herein, Declarant shall provide all Owners notice of its intent to expand ten (10) days prior to any construction therefor. In exercising this right, all Owners shall any and all documents necessary to effectuate the expansion, including amendments to this Declaration or the Plat. ARTICLE VII INSURANCE Section 1. Liability Insurance. Declarant shall maintain such liability insurance in an amount and coverage acceptable to Declarant, in Declarant's sole discretion. Section 2. Owner's Insurance for Liability and Contents of Units. Each Owner shall maintain at the Owner's own cost and expense such insurance coverage as the Owner may desire with respect to (i) personal liability for acts and occurrences upon the Owner's Unit and within the Unit and (ii) physical damage losses for personal property and the contents for the Unit and any improvements, additions or betterments installed either by a person or entity other than as a part of the initial construction, whether made inside or outside the Unit, and shall further maintain at the Owner's cost and expense, any special flood hazard insurance as may be required by the First Mortgagee. The Declarant shall have no obligation in connection therewith. Section 3. Insurance Premium Expense. The expense of insurance premiums paid by the Declarant under this Article VII shall be a Common Expense to which the Assessments collected by the Declarant from the Owners shall be applied. ARTICLE VIII CONDEMNATION Section 1. Condemnation of Unit or Common Elements. The following provisions shall pertain where a Unit, or any portion thereof or the Common Elements, or any portion thereof, is made the subject of an eminent domain proceeding, proceeding in lieu of condemnation or is otherwise sought to be acquired by a condemning authority: (a) If a Unit is acquired by eminent domain, or if part of a Unit is acquired by eminent domain leaving the Owner with a remnant which may not practically or lawfully be used for any material purpose permitted by this Declaration, the award shall compensate the Owner and secured party in the Unit, as their interests may appear, whether or not any Common Element interest is acquired. Upon acquisition, unless the order or final certificate otherwise provides, that Unit's allocated interests are automatically reallocated among the remaining Units in proportion to their respective allocated interests prior to the taking, and the Declarant shall promptly prepare, execute and record an amendment to this Declaration reflecting the allocations. Any remnant after part of a Unit is taken under this subsection is thereafter a Common Element. (b) Except as provided in subsection (a), if part of a Unit is acquired by eminent domain, the award shall compensate the Owner and secured party for the reduction in 13 • • value of the Unit and its interest in the Common Elements, whether or not any Common Elements are acquired. Upon acquisition, unless the order of final certificate otherwise provides, (i) that any Unit's allocated interests are reduced in proportion to the reduction in the size of the Unit, and (ii) the portion of the allocated interests divested from the partially acquired Unit are automatically reallocated to the Unit and to the remaining Units in proportion to the respective allocated interests of those Units before the taking, with the partially acquired Unit participating in the reallocation on the basis of its reduced reallocated interests. (c) If part of the Common Elements are acquired by eminent domain, the portion of the award attributable to the Common Elements taken shall be paid to the Declarant. Any portion of the award attributable to the acquisition of a Limited Common Element shall be equally divided among the Owners of each Unit to which the Limited Common Element was allocated at the time of acquisition and their secured parties, as their interests may appear. (d) In any eminent domain proceeding, each Unit shall be treated as separate parcels of real estate for valuation purposes, regardless of the number of Units subject to the proceedings. (e) Any distribution to an Owner from the proceeds of an eminent domain award shall be subject to any limitations imposed by this Declaration. (f) The court order or final certificate containing the final awards shall be recorded in every county in which a portion of the CIC is located. Section 2. Representation. The Declarant shall represent the Owners in the condemnation, or in negotiations, settlements and agreements with the condemning authority in any condemnation of Common Elements and Limited Common Elements, and each Owner, by acceptance of a deed to a Unit, appoints the Declarant as attorney -in -fact for such purpose. Such condemnation proceeds shall be applied for the restoration or repair of any Common Element or Limited Common Element remaining after such condemnation, and any portion of the award not used for any such restoration or repair shall be divided among the Owners and the First Mortgagee. ARTICLE IX OWNER'S OBLIGATION TO MAINTAIN Section 1. Obligation to Maintain. Each Owner, successors and assigns, hereby covenants and agrees at all times to maintain their Unit in a neat and proper condition and to perform all necessary repairs thereto, to the extent not provided for by the Declarant pursuant to this Declaration. ARTICLE X 14 . • JOINT CONNECTION OF SEWER, WATER, ELECTRICAL, GAS, TELEPHONE LINES AND CABLE TELEVISION Section 1. Joint Utilities. The rights and duties of the Owners of Units with respect to sewer, water, gas, telephone and cable television shall be governed by the following: (a) Wherever joint connections of sanitary and storm sewer, water, electricity, gas, telephone or cable television lines are installed within the CIC, and the connections, or any portion thereof, lie in or upon a Unit owned by others than the Owners served by said connection shall have the right and are hereby granted an easement to the full extent necessary therefor, to enter upon a Unit or have the utility companies enter upon a Unit within the CIC in or upon which said connection, or any portion thereof, lies, to read meters, repair, replace and generally maintain said connection as and when the same may be necessary as set forth below, and further, if Declarant deems the repair, replacement or maintenance of such connection to be an emergency, the Declarant shall have the right to repair, replace or maintain such connection and assess the costs thereof against each Unit served by such connection in the amounts the Owners would otherwise be responsible for under subsections (c) and (d) herein, and each Owner, for the Owner and the Owner's heirs, successors and assigns, covenants that the Owner will pay the Declarant (or its collecting agent) said Assessment upon demand or in such periodic payments as may be determined by the Declarant, and that said Assessment, if not paid on the date when due, shall become delinquent, shall become a continuing lien on the Unit and the personal obligation of the Owner and shall be subject to collection, enforceability, foreclosure and remedies of the Declarant in the manner set forth in Articles IV and V hereof for other Assessments by the Declaration. (b) Wherever joint connections of storm and sanitary sewer, water, electricity, gas, telephone or cable television lines are installed within the CIC and the connections serve more than one Unit, the Owners of each Unit serviced by said connection shall be entitled to the full use and enjoyment of such portions of said connection as services the Owner's Unit. (c) In the event any portion of said connection or line is obstructed, damaged or destroyed through the act of an Owner of a Unit being served by said connection, or any of the Owner's agents, guests, whether or not such act is negligent or otherwise culpable, so as to deprive the other Owners being served by said connection of the full use and enjoyment of said connection, then the Owner shall forthwith proceed to replace or repair the same to as good a condition as formerly, without cost to the other Owners served by said connection. (d) In the event any portion of said connection or line is obstructed, damaged or destroyed by some cause other than the act of any Owner being served by said connection, or the Owner's agents (including ordinary wear and tear and deterioration from lapse of time), then in such event if said obstruction, damage or destruction shall prevent the full use and enjoyment of such connection by the other Owners served by said connection, all such Owners who are thereby deprived of said use and enjoyment 15 • • shall proceed forthwith to replace or repair said connection to as good a condition as it was formerly at their joint and equal expense. ARTICLE XI MUNICIPAL ORDINANCES Section 1. City Ordinances Prevail. None of the covenants, conditions, restrictions or provisions of this Declaration are intended to supersede or prevail over the ordinances of general applicability of the City of Oak Park Heights, and in the event of any conflict, the applicable ordinances of said city shall supersede and prevail over the covenants, conditions, restrictions and provisions of this Declaration. Section 2. Standards of Maintenance. The standards of maintenance of each Unit and the improvements located thereon, and the Common Elements, shall be at least equal to those set forth in the ordinances of general applicability of the City of Oak Park Heights, in effect from time to time which govern and control the maintenance of private property. ARTICLE XII RIGHTS OF A FIRST MORTGAGEE Section 1. Conflicting Provisions. The provisions of this Article take precedence over any other conflicting provisions of this Declaration. Section 2. Notice of Action. Upon written request to the Declarant, identifying the name and address of any First Mortgagee and the Unit number or address (a First Mortgagee who has so requested such notice shall be referred to herein as an "Eligible Mortgage Holder "), any such Eligible Mortgage Holder shall be entitled to timely written notice of: (a) Any condemnation loss or casualty loss which affects a material portion of the CIC or any Unit on which there is a first mortgage held, insured, or guaranteed by such Eligible Mortgage Holder, as applicable; (b) Any delinquency in the payment of Assessments or charges owed by an Owner of a Unit subject to a first mortgage held, insured or guaranteed by such Eligible Mortgage Holder, which remains uncured for a period of one hundred twenty (120) days; (c) Any lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Declarant for the benefit of the CIC; (d) Any proposed action which would require the consent of a specified percentage of mortgage holders as specified elsewhere in this Article XII. 16 • • Section 3. Certain Amendments to Declaration. Without unanimous written consent of all Owners, neither the Declarant nor any Owner shall be entitled to: (a) Terminate the legal status of the CIC (except in accordance with procedures set forth in the Act or this Declaration in the event of amendment or termination made as a result of destruction, damage or condemnation); (b) By act or omission, seek to abandon, partition, subdivide, encumber, sell or transfer the Common Elements (the granting of easements for public utilities or for other public purposes consistent with the intended use of the Common Elements shall not be deemed such a transfer); or (c) Use hazard insurance proceeds for losses to any CIC property (whether to a Unit or to Common Elements) for other than the repair, replacement or reconstruction of such CIC property, except in case of substantial loss to a Units and/or Common Elements of the CIC. Section 4. Certain Amendments to Material Provisions of Declaration. Unanimous written consent of Owners and Eligible Mortgage Holders shall be required to add or amend any material provisions of this Declaration. A change to provisions of this Declaration governing any of the following would be considered material: (a) Assessments, Assessment liens, or the priority of Assessment liens; (b) Reserves for Maintenance of the Common Elements, Limited Common Elements and each Unit; (c) Insurance or fidelity bonds; (d) Reallocation of interests in the Common Elements, or rights to use of the Common Elements, except a change as a result of destruction, damage or condemnation or with respect to a reallocation of interests in the Common Elements which might occur pursuant to any plan of expansion or phased development contained in this original Declaration, or a change of Common Elements into Limited Common Elements; (e) Responsibility for maintenance and repairs; (f) Convertibility of a Unit into Common Elements or of Common Elements into a Unit; (g) Changing the authorized use of a Unit from non - residential to residential; (h) Any provisions that expressly benefit mortgage holders, insurers or guarantors; (i) Restoration or repair of the project (after casualty or partial condemnation) in a manner other than that specified in this Declaration. 17 ! • In each instance of an addition or amendment that is not a material change (such as the correction of a technical error or the clarification of a statement), an Eligible Mortgage Holder who is given a written proposal for such amendment and from whom no response is received within thirty (30) days after notice of the proposal is given shall be deemed to have approved such proposal. Section 5. Examination of Books and Records, Financial Statements. The Declarant shall make available to any Owner or First Mortgagee, a current copy of this Declaration and the books, records and financial statements of the CIC. "Available" means for inspection, upon request, during normal business hours or under other reasonable circumstances. The Declarant also shall make available to prospective purchasers current copies of this Declaration and the most recent Yearly Statement. Any documentation requested pursuant to this Section 5 shall be furnished within a reasonable time following such request and the requesting party shall pay the Declarant Twenty Five Cents (250) per page provided to the requesting party. Section 6. Priority of Lien of First Mortgage. To the maximum extent permitted by law, the lien for any Assessment or other charges becoming payable on or after the date of recordation of the first mortgage on any Unit shall be subordinate to the lien of such first mortgage. Any lien for Assessments hereunder shall not be affected by any sale or transfer of a Unit, except that the sale or transfer of title to a Unit pursuant to foreclosure of a first mortgage or deed or proceedings in lieu of foreclosure shall extinguish any subordinate lien for Assessments which became payable prior to such sale or transfer of title or which became payable during the redemption period after the foreclosure sale. Any Assessments so extinguished may be reallocated and reassessed against each Unit as a Common Expense. Any such sale or transfer of title pursuant to a foreclosure or deed or proceedings in lieu of foreclosure of a first mortgage shall not relieve the purchaser or transferee of a Unit from liability for, nor a Unit for, the lien of any Assessments made thereafter. To the maximum extent permitted by law, there should be subordinated to any first mortgage the lien of any fees, late charges, fines or interest that may be levied by the Declarant in connection with unpaid Assessments, in the same manner as the subordination of Assessments hereunder. Section 7. Insurance or Condemnation Proceeds. Other than as provided elsewhere in this Declaration, no provisions of this Declaration shall be construed to give any Owner, or any other party, priority over the rights of any First Mortgagee of a Unit pursuant to its first mortgage in the case of a distribution of a Owner of insurance proceeds or condemnation award for losses to or a taking of Common Elements or any portion thereof or any Unit or portion thereof. In the event of substantial damage to or destruction of any Unit or any part of the Common Elements, the holder of any first mortgage on a Unit will be entitled to timely written notice of such damage or destruction. If any Unit or portion thereof or the Common Elements or any portion thereof is made the subject matter of any condemnation or eminent domain proceeding or is otherwise sought to be acquired by a condemning authority, then the holder of any first mortgage on a Unit will be entitled to timely written notice of any such proceedings or proposed acquisition. 18 • • ARTICLE XIII SUBDIVISION OR CONVERSION OF UNITS Section 1. Subdivision /Conversion. The Declarant has not reserved the right to subdivide or convert Units in the CIC. ARTICLE XIV COMPLIANCE BY OWNER Section 1. Compliance. Failure of any Owner to comply with the provisions of this Declaration shall give rise to a cause of action in the Declarant and any aggrieved Owner for the recovery of damages, or for injunctive relief, or both. In addition to the right to recover damages or have other relief granted, a court may award attorney's fees and costs of litigation to Declarant or any aggrieved owner. Additionally, punitive damages may be awarded for willful failure to comply with this Declaration. The rights and remedies provided hereunder are not exclusive and do not abrogate any other rights or remedies. ARTICLE XV AMENDMENT Section 1. Amendments. This Declaration may be amended by the Declarant only upon written agreement of all Owners. Any such amendment to the Declaration shall be effective only when filed or recorded. IN WITNESS WHEREOF, the Declarant has executed this Declaration the day and year first written, above. S &C Bank, a Wisconsin Corporation By: R. Scott Johnson, Its: STATE OF ) ) SS COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2004, by R. Scott Johnson, of S &C Bank, a Wisconsin Corpoation, on behalf of the corporation. Notary Public 19 • • EXHIBIT "A" COMMON INTEREST COMMUNITY NUMBER 275 A CONDOMINIUM S &C BANK CONDOMINIUMS LEGAL DESCRIPTION OF THE PROPERTY Lot 1, Block 1, Oak Park Station, according to the recorded plat thereof, Washington County, Minnesota. EXHIBIT `B" 20 41 • COMMON INTEREST COMMUNITY NUMBER 275 A CONDOMINIUM S &C BANK CONDOMINIUMS PROJECT COMMON EXPENSES FOR THE YEAR 2004 Snow Removal and Lawn Care $ Insurance $ Common Utility Costs $ Taxes $ General Maintenance $ Reserves $ TOTAL $ EXHIBIT "C" 21 • • COMMON INTEREST COMMUNITY NUMBER 275 A CONDOMINIUM S &C BANK CONDOMINIUMS ALLOCATION OF COMMON EXPENSES This Declaration allocates the undivided interests in the Common Expense Liability to the Units on the basis of each Unit's square footage compared to the total square footage of all Units combined, provided, however, that a Common Expense Assessment may be assessed against fewer than all Units. The Common Expense liability are allocated among the Units as follows: Unit/Square Footage Percent of the Common Expenses Unit 100 ( sq ft) Unit 101 ( sq ft) 22