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HomeMy WebLinkAbout2185-, /S s" DECLARATION OF COVENANTS, CONDTIONS AND PARTY WALL EASEMENT 7L,1 THIS DECLARATION is made this/ day of May, 1982, by GUSTAFSON & ASSOCIATES, INC., a Minnesota Corporation (herein "Developer "). WITNESSETH: WHEREAS, Developer is owner of real property located in Hennepin County, Minnesota, and legally described as Lot 10, Block 7, Braemar Hills 9th Addition; and WHEREAS, Developer caused the property to be subdivided and new legal descriptions to be created for the purposes of improving the property with a double bungalow. The descriptions of said property, which is located in Hennepin County, Minnesota, are as follows: PARCEL A See Exhibit "A" attached hereto and made a part hereof. PARCEL B See Exhibit "B" attached hereto and made a part hereof. WHEREAS, upon each parcel is located a living unit ( "Living Unit "), each of which constitutes one of two Living Units of a double bungalow (said double bungalow hereinafter referred to as "Building "). Each Living Unit has, as a part of its original construction, placed on the dividing line between the parcels, a wall which constitutes a Party Wall and which is common to both living units (hereinafter referred to as "Party Wall "), said Party Wall is located along part of the following described line: Commencing at the most Northerly corner of said Lot 10; thence South 65° 421 14" East on an assumed bearing along the North- easterly line of said Lot 10 a distance of 12.10 feet; thence Southeasterly along a tangential curve concave to the Southwest radius 149.59 feet, central angle 240 471 4211 a distance of 64.74 feet to the point of beginning of the line to be described; thence South 62° 571 49t, West along a line not tangent to said curve a distance of 52.23 feet; thence South 18° 241 4911 West a distance of 28.00 feet and there terminating. WHEREAS, there has been constructed upon Parcel B, a swimming pool, patio area and jaccuzi (the swimming pool, patio area and jaccuzi sometimes collectively herein called "Pool "). There has also been constructed upon Parcel A certain equipment and machinery which is used in connection with the use of the Pool, which includes by way of example and not necessarily limitation, heaters, pumps and filters (hereinafter referred to as Pool Facilities "), and also a portion of the patio area. The Developer intends that all of the Pool, patio area and Pool Facilities are to be used in common by the owners of the Parcels; and WHEREAS, the Declarant is desirous of creating easements.for the Party Wall and Pool and certain covenants, conditions and restrictions with regard to the easements and to enhance the use, enjoyment, pleasure and value of the property. NOW, THEREFORE, the Developer does hereby give notice to all purchasers and their successors and assigns that each and every conveyance of the aforemen- tioned properties will be subject to the burdens, together with the benefits of the following easements, restrictions, covenants and conditions: ARTICLE I�. PARTY WALL EASEMENT AND COVENANTS 1.1 Developer does hereby reserve and hereby create, a perpetual Party Wall easement over those portions of Parcel A located along the line of said Parcel upon which the Party Wall exists and which is common to the line of Parcel B. 1.2. Developer does hereby reserve and create a perpetual Party Wall easement over those portions of Parcel B located along the line of said Parcel upon which the Party Wall exists and which is common to the line of Parcel A. 1.3. These easements are perpetual easements which will run with the land. 1.4. The Party Wall referred to above, which is built as a part of the original construction of the Building and which serves as interior dividing wall between the two Living Units of said Building with a finished interior surface on each side thereof, shall constitute a Party Wall, and, to the extent not inconsistent with the provisions of this paragraph, the general rules of law regarding party walls and liability for property damage due to negligence or willful acts or omissions shall apply thereto. The costs of reasonable repair and maintenance of the Party Wall shall be shared by the owners equally. Each owner, or his agents, may enter either unit at reasonable times under reasonable conditions when necessary in connection with any maintenance or repair of the Party Wall or heating and air conditioning ducts, water pipes or electrical wiring contained therein, if any. Such entry shall be made with prior notice to each owner and with as little incon- venience to the owners as practical, and any damage reasonably caused thereby shall be repaired and the costs thereof shall be borne equally by the owners. In the event that the need for maintenance or repair is caused through the willful or negligent act of a parcel owner, his family, guest, or invitee, the cost of such maintenance and repair shall be borne completely by said owner. 1.5. If the Party Wall is destroyed or damaged by .fire or other casualty, any owner who has used the Party Wall may restore it, and if the other owner or owners thereafter make use of the Party Wall, they shall contribute to the cost of restoration thereof in proportion to such use without prejudice, however -, to the right of any such owner or owners to call for a larger contribution from the others under any rule of law regarding liability for negligent or willful acts or omissions. 1.6. The right of any owner to contribution from any other owner under this Declaration shall be appurtenant to the land and shall pass to such owners' successors in title. ARTICLE 11. ASSESSMENTS, LIEN FOR NON- PAYMENT 2.1. Effect of Nonpayment of Assessments. The unpaid share of any costs incurred under this Declaration shall after 30 days after receipt of written notice from the other owner, become a lien against any Parcel owned by said non - paying owner and shall be recordable against said non- paying owner's Parcel. Any such lien against a parcel arising out of this Declaration shall be subordiante to the lien of any first mortgage thereon. Any first mortgagee taking title to a Parcel through foreclosure or deed in lieu of foreclosure shall not be liable for any such liens becoming due prior to first mortgagee taking said title. 2.2 Enforcement of Lien. The lien provided herein may be enforced by the paying owner, in its discretion, by proceeding to sue personally the non - paying owner or such person responsible for the costs, or to foreclose the lien by action in the same manner in which mortgages on real property may be foreclosed in Minnesota. In any such foreclosure, the person personally obligated to pay the lien shall be required to pay all costs of ,foreclosure including reasonable attorneys' fees. All such costs and expenses shall be secured by the lien being foreclosed. -2- The person personally obligated to pay the lien shall also be required to pay to the paying owner any costs against the non - paying owner's par - cel.which shall become due during the period of foreclosure. The paying owner shall have the right and power to bid at the foreclosure sale or other legal sale and to acquire, hold, convey, lease, rent, encumber, use and otherwise deal with the foreclosed interest in the parcel as the Owner hereof. 2.3. Recording of Liens. To evidence a lien for sums assessed pursuant to this Article, the paying owner may prepare a written notice of lien setting forth the particulars with respect to the costs evidenced by the lien, the name of the non - paying owner of the Parcel, the name of the person personally obligated to pay the same and a description of the Parcel to the non - paying owner. Such a notice shall be signed by the paying owner and it or a notice of adverse claim thereof may be recorded in the office of the Registrar of Titles for Hennepin County, Minnesota. No notice of lien shall be recorded until there is a delinquency in payment of the costs for thirty (30) days. No sale or transfer shall relieve such Parcel from liability for any costs thereafter becoming due or from the lien thereof, or shall relieve the person personally obligated to pay the same. ARTICLE III. INSURANCE GENERALLY 3.1. Since each Living Unit forms an-integral part of the Building, the owner of each such Living Unit (the owners of the respective Living Units collectively called "Owners ") covenants to keep in full force and effect at all times fire and standard extended coverage insurance in an amount not less than 100% of the insur- able value (based on current replacement costs of his living unit as originally constructed) and to use the proceeds thereof solely for the repair, replacement or reconstruction of such Living Unit. This provision does not prevent the respective owners or occupants of the Living Units from jointly contracting with a common insurance carrier for a master or umbrella policy. The costs for such premium shall be borne by each owner to the extent of the portion of the pre- mium allocated to their respective Living Unit. 3.2. Pool Insurance. In addition to the standard extended coverage insurance of the Living Units, the Owners of the Living Units shall keep the Pool and Pool Facilities (Pool Facilities herein shall mean all fixtures, machinery and other devices, related to the use and en- joyment of the Pool) insured against loss or damage by fire, mischief or other casualty for the full insurance replacement cost thereof. The Owners shall also maintain a commerical all risk swimming pool owners policy and shall keep it in full force and effect at all times. Owners may insure other property whether real or personal against .loss or damage by fire and such other casualties as the Owners may deem desirable. All insurance coverage provided in this Article 3.2 shall be writ- ten in the name of the Owners and the proceeds thereof shall be payable to the Owners jointly, without respect to their percentage contribution to the premium. All insurance proceeds shall be used by the Owners for the repair and /or replacement of the property for which the insurance was carried. 3.3. Blanket Insurance Policy. In addition to casualty insurance on the Pool and that provided for in Article 3.1, the Owners may elect to obtain and continue in effect, on behalf of both Owners, adequate blanket casualty and fire insurance in such form as the Owners deem appropriate in an amount equal to the full replacement value without deduction for depreciation or coinsurance, of both of the Living Units, including the structural portions and fixtures thereof, owned by such Owners. Insurance premiums from any such blanket insurance -3- coverage, and any other insurance premiums paid by the Owners under this Article 3 shall be a Common Expense to be included in the Common assessment of the Owners. The insurance coverage as provided in this Article 3.3 with respect to the Living Units shall be written in the name of, and the proceeds thereof shall be paybale to, the Owners. 3.4 Premiums; Lien for Unpaid Premiums. All premiums for all insurance carried by the Owners for the common use and enjoyment of the Pool or for a Blanket Insurance policy as provided in Article 3.3 shall be considered a common expense and payable on a 50 -50 basis, notwithstanding the fact that the percentage of the total square footage of one Living Unit is not equally proportional to the other. In the event one of the owners fails to contribute the percentage of the premium allocated and payable by said owner, the other owner may make the entire premium payment and the portion of the premium attributable to the non - paying owner shall become a lien against the non- paying ownerts Parcel as provided in Article 2.1. 3.5. Replacement or Repair of Property. In the event of damage to or destruction of any part of the Pool, the Owners shall repair or replace the same from the insurance proceeds available. If such insurance proceeds are insufficient to cover the costs of repair or replacement of the property damaged or destroyed the owner of Parcel B shall acquire the funds necessary to cover the additional cost of repair not covered by the insurance proceeds and shall repair the pool as soon as it is practicable. Then to the extent the insurance proceeds were insufficient for the repair or replacement of the damage to the Pool or its facilities and the owner of Parcel B contributed and repaired or replaced the damaged Pool, Pool facilities or portion thereof, the owner of Parcel B shall assess the owner of Parcel A an amount of money equal to fifty (50 %) percent of the total cost funded by the owner of Parcel B. In the event that the Owners maintain a blanket casualty and fire insurance on the Living Units on the Parcels the owners shall repair or replace the same from the insurance proceeds available. Each owner shall be responsible for the repairs of their respective Living Unit to the extent the insurance proceeds are insufficent. 3.6. Annual Review of Policies. All insurance policies shall be reviewed at least annually by the Owners in order to ascertain whether the coverage contained in the policies is sufficient to make any necessary repairs or replacement of the property which may have been damaged or detroyed. ARTICLE IV. ENCROACHMENT EASEMENT 4.1. In the event any portion of the Building or any portion of the Pool or Pool facilities encroaches upon any portion of the adjacent Parcel, then an exclusive perpetual easement shall exist over said adjacent Parcel for the benefit of and appurtenant to the Parcel with the portion of the Building, Pool or Pool facilities found to be so encroaching. Further, in the event any portion of the Building, Pool or Pool facilities is found to encroach, then a perpetual easement appurtenant shall exist in favor of the Parcel on which the encroaching Building, Pool or Pool facilities is principally located for maintenance of the encroachment so long as the encroachment exists. ARTICLE V. IMPROVEMENTS. ADDITIONS OR ALTERATIONS 5.1. No building, fence, wall, or other structure, or changes in existing fences, ledges, walls, walkways and other structures shall be commenced, erected or maintained upon either Parcel, nor shall -4- any exterior addition to or change or alteration therein (including roofing or replacement of roof, painting, change of color, altera- tions to exterior lighting fixtures and planting of trees and bushes and garden areas) be made until the plans and specification showing the nature, kind, shape color, height, materials, location and approximate cost of the same shall have been submitted in writing for approval to the owner of the other Parcel. The other owner's approval shall not be unreasonably withheld; however, in any decision the harmony of external design and location in relation to surround- ing structures and topography of any proposed changes shalt be considered. 5.2. In the event other owner fails to approve or disapprove such change or alterations within thirty (30) days after said plans and speci- fications have been submitted to them, or if no suit to enjoin the making of such additions, alterrations or changes has been commenced within forty -five (45) days of ',such submission, approval will not be required and this section well be deemed to have been fully complied with. If no such submission has been made to the other owner, suit to enjoin or remove such addition, alterations or changes may be instituted at any time by the other owner. In any event, no structural change to ',a Living Unit shall be made which diminishes the structural integrity of the Building of which the Living Unit is a part. ARTICLE VI. DUTY1T0 PREVENT DAMAGE 6.1. For the purposes of preventing idamage to and breakage of water, sewer and other utility lines and pipes in a Living Unit which might result in damage to thatl,or other Living Units, all Owners shall maintain the temperature''in their Living Units, at all times, at least at 55 degrees Fahrenheit; subject, however, to the inability to maintain such temperature due to causes beyond the owner's reasonable control. Any damage, resulting from the refusal or failure of an owner to so maintain such minimum temperature may be repaired by the other owner and'', (unless due to causes beyond the owner's reasonable control) the cost thereof assessed against the Parcel of the refusing or failing owner to the extent and in the manner set out in Article 2 hereof. However, if the failure to maintain such minimum temperature is due to causes beyond the owner's reasonable control, the cost of such repair shall be a com- mon expense. ARTICLE VII. CONTRACTS FOR REPAIR 7.1. Except in an emergency situation calling for immediate action where the opportunity for consulting with the other owner does not reasonably exist, before any costs or expenses are incurred hereunder or before any contracts are let for maintenance, repair, renovation or construction hereunder, both owners shall consult and agree in writing upon the proposed action to be undertaken. In the event of any dispute arising hereunder, each owner shall choose one arbitrator and such arbitrators shall choose one additional arbitrator and the decision shall be by a majority of all of such arbitrators. The total cost of such arbitration shall be borne equally be the Owners. Arbitration shall be conducted according to the rules of the American Arbitration Association. ARTICLE Vlll. MAINTENANCE 8.1. Each owner shall be responsible for the upkeep and maintenance his Living Unit, garage, and all other areas, features or parts of his Parcel to the extent not otherwise maintained by the other. An owner shall undertake no action nor authorize any work which will impair the structural soundness or integrity of the adjoining -5- Living Unit or garage, or Impair any easement or hereditament, nor undertake any action nor allow any condition to exist which, upon application of a reasonable standard, will adversely affect the other Living Unit or garage, or the use of enjoyment of the same by its owner. 8.2. The maintenance and repair of the Pool, the Pool Facilities and patio area shall be considered a common expense and the costs thereof shall be borne by the Owners equally. The failure of one owner to pay his or her proportionate share shall constitute an assessment which would, if not paid, constitute a lien under Article 2.1. ARTICLE IX. EASEMENTS, RULES AND REGULATIONS: APPROVAL OF CITY OF EDINA 9.1. Each owner, with his /her family, guests and invitees shall have the right to a reciprocal easement over and across those portions of each other's Parcels, exclusive of the Living Unit and garage, for access and for ingress and egress to and from their respective Parcels. Further, the owner of Parcel A, for himself or herself, his /her successors, assigns, family, guests and invitees, shall have a perpetual easement appurtenant over and upon Parcel B for access to and from and for the use and enjoyment of the Pool, patio area and Pool Facilities and the owner of Parcel B, for himself or her- self, his /her successors, assigns, family, guests and invitees, shall have a perpetual easement appurtenant over and upon Parcel A for access to and for the use and enjoyment of the Pool, patio area, and Pool Facilities and for the construction, maintenance, repair and replacement of the Pool Facilities as the same are located and existing thereon as of the date hereof. The right of delegation of the right of use and enjoyment to the Pool, patio area and Pool Facilities granted to the Owners shall be in accordance with the written rules and regulations created by the Owners from time to time (herein "Rules and Regulations "). Notwithstanding any language herein to the contrary, it is the intention of the Developer to have the ownership of the Pool Facilities, as constructed as of the date hereof, remain under the ownership of and be an appurtenance to Parcel B. The Easements granted herein shall be perpetual appurtenant easements which run with and burden and benefit each Parcel respectively and shall be binding on the Owners, their heirs, successors and assigns. 9.2. Rules and Regulations. The Owners shall from time to time adopt such Rules and Regulations governing the use and enjoyment of the Parcels and the Pool and Pool facilities, as the Owners may deem necessary. In the event of a disagreement between the Owners with respect to the necessity for an interpretation of any of the Rules or Regulations, the dispute shall be decided as provided in Article 7 hereof. At no time shall the Rules and Regulations un- reasonably restrict or interfere with the use and enjoyment of the easements granted herein. 9.3. Approval of the City of Edina. The approval of the City of Edina shall be required for any substantial amendment to Article 9.1 with respect to the easements and the rights granted thereby. The Cityts approval shall not be unreasonably withheld. ARTICLE X. MISCELLANEOUS 10.1. Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. 10.2. Duration and Amendment. The covenants and restrictions of this Declaration shall run with and bind the land, and shall inure to the benefit of and be enforceable by the Owners of the Parcels subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term of twenty (20) years from the date of this Declaration is recorded, after which time the covenants and restrictions shall be automatically renewed for successive periods of ten (10) years. All amendments to this Declaration shall be in writing and signed by Owners of both Parcels. IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed on behalf of the Corporation the day and year first above written. AFSQN & ASSOCIATES, INC. (Developer) 11RIEW&F, STATE OF MINNESOTA) ) ss COUNTY OF HENNEPIN) The foregoing instrument was acknowledged before me this day of 7 C_. , 1982, by Jeffrey P. Gustafson, President of Gustafson & Associat s, Inc., a Minnesota corporation, on behalf of said Corporation. Notary'PubI icf MARY A. JANSSEN NOTARY PUBLIC — MINNESOTA \� HENNEPIN COUNTY V11, MyCommiswonExpirec:. r 20.1988 —7— PARCEL A: EXHIBIT A That part of Lot 10, Block 7, Braemar Hills 9th Addition, according to the recorded plat thereof, Hennepin County, Minnesota, which lies Northerly and Northwesterly of the following described line: Commencing at the most Northerly corner of said Lot 10; thence South 650 42' 14" East on an assumed bearing along the North- easterly line of said Lot 10 a distance of 12.10 feet; thence Southeasterly along a tangential curve concave to the Southwest radius 149.59 feet, central angle 240 471 42" a distance of 64.74 feet to the point of beginning of the line to be described; thence South 620 571 49" West along a line not tangent to said curve a distance of 52.23 feet; thence South 18° 241 49" West a distance of 28.00 feet; thence South 580 00' 00" West a distance of 65.78 feet to a point on the Northwesterly line of said Lot 10 distant 137.41 feet Southwesterly of (as measured along said Northwesterly line) the most Northerly corner of said Lot 10 and there terminating. PARCEL B: EXHIBIT B That part of Lot 10, Block 7, Braemar Hills 9th Addition, according to the recorded plat thereof, Hennepin County, Minnesota, which lies Southerly and Southeasterly of the following described line: Commencing at the most Northerly corner of said Lot 10; thence South 65° 42' 141' East on an assumed bearing along the North- easterly line of said Lot 10 a distance of 12.10 feet; thence Southeasterly along a tangential curve concave to the Southwest radius 149.59 feet, central angle 240 47' 42" a distance of 64.74 feet to the point of beginning of the line to be described; thence South 620 57' 49" West along a line not tangent to said curve a distance of 52.23 feet; thence South 180 24' 49" West a distance of 28.00 feet; thence South 580 00' 00 1I.West a distance of 65.78 feet to a point on the Northwesterly line of said Lot 10 distant 137.41 feet Southwesterly of (as measured along said Northwesterly line) the most Northerly corner of said Lot 10 and there terminating.