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2004-01-05 CC Packet
AlbertAlle Sm" To tom. r + I u106 ALBERTVILLE CITY COUNCIL AGENDA January 5, 2004 7:00 PM 1. ,CALL TO ORDER- ROLL CALL — ADOPT AGENDA 2. MINUTES a. December 15, 2003, City Council Meeting (pages 3-8) . 3. CITIZEN FORUM - (10 Minute Limit) 4. CONSENT AGENDA a. Approve Resolution No. 2004-01 Annual Appointments (pages 9-11) b. Adopt the State of Minnesota Record Retention Schedule. 5. PULLED CONSENT ITEMS 6. PUBLIC HEARING a. Vacation of easements in Outlot B and C of Towne Lakes 3rd Addition 7. ADJOURN PUBLIC HEARING and consider adoption of Resolution vacation easements in Outlot B and C of Towne Lakes 3'd Addition. (Page 12) 8. DEPARTMENT BUSINESS a. Fire Department : Reschedule Meeting (Stated most any day in January except Thursdays evenings) b. Planning & Zoning 1). Ordinance Amendments a). Permitted Encroachments - Ordinance No. 2004-01 (Pages 13-15) b). Recreational Vehicle Storage Ordinance No. 2004-02 (Pages 16-19) c). Shoreland Regulations Pages Ordinance No. 2004-03 (20-22) 2). Development Applications a). James Franklin Rezoning Request (Pages 23-26) b) Midlands Shopping Center (Pages 27-33) h c). Towne Lakes 4tAddn. Final Plat (Pages 34-39) c. Engineering 1). Public Works Building Update 2). 2004 CSAH 37 Bike Path Preliminary Design Fee Proposal (Pages 40-41) 3). 2003 Barthel Industrial Park Preliminary Design Fee Proposal (Pages 42-43) d. Legal 1). Albertville Dental Development Agreement (See Addendum Packet) 2). Towne Lakes 4th Addition Development Agreement (See addendum packet) 3). Sign Lease Agreement (Page 44) e. Administration 1). Set I-94 Wright County Traffic Study Public Meeting dates. St. Albert's Parish Center is available Thursday January 22nd and 29,h or Tuesday January 27th. 2). Set Council workshop to identify a Five Year Capital Improvement Plan (CIP) and set a date for a public hearing to share CIP information with the community. 3). Sterling Codifiers proposal to codify the ordinances. (Pages 46-49) 4). Fire Hall Energy Audit 9. OTHER BUSINESS 10. ADJOURNMENT 2 City of Albertville Minutes December 15, 2003 Albertville City Hall 7:00 PM PRESENT: Mayor Don Peterson, Council Members LeRoy Berning, Torn Fay, and Ron Klecker, City Engineer Jim Schulz, City Attorney Mike Couri, City Administrator Larry Kruse, and City Clerk Bridget Miller Mayor Peterson called the City Council meeting of the City of Albertville to order. MINUTEST MOTION BY Council Member Berning, seconded by Council Member Klecker to approve the minutes. Motion carried unanimously. AGENDA: MOTION BY Council Member Fay, seconded by Council Member Klecker to approve the agenda adding the approval of the Final Plat of Town Lakes One to Planning and Zoning item C(3). Motion carried unanimously. MOTION BY Council Member Klecker, seconded by Council Member Berning to approve the following consent agenda with the exception of pulled items (a) Center Point Utility bill for the Fire Hall and Specialty Fashion's Firemen's Donation purchase; (e) Resolution No. 2003-41 (A Resolution Establishing 2003 Wages for City Employees); (f) Resolution No. 2003-42 (A Resolution Establishing 2003 City Office Hours); (i) deletion of this item on the consent agenda as it has already been approved at the December 1, 2003 meeting. (a) Approve payment of claims (page 7-11) (b) Resolution No. 2003-38 (A Resolution Adopting the Final 2003 Tax Levy collectible in 2004) Page 12 (c) Resolution No. 2003-39 (A Resolution Adopting the 2004 Final Budget) (Page 13) (d) Resolution No. 2003-40 (A Resolution Establishing 2004 Holidays Schedule) (Page 14) (e) Resolution No. 2003-41 (A Resolution Establishing 2003 Wages for City Employees) Page 15 (f) Resolution No. 2003-42 (A Resolution Establishing 2003 City Hall Office Hours) (Page 16)' (g) Authorize payment of all just claims received by December 31, 2003 (Year-end closeout) (h) Resolution No. 2003.43 (A resolution approving the Wetland Replacement Plan for the Albertville Business Park Project to fill 1.35 acres of wetland to facilitate the construction of street.) (Page 18-22) (i) Approve reduction in Towne Lakes 3'd Addition Letter of Credit to no less than $5,000 as per j City Engineer's recommendation. (Page 23) (j) Approve a reduction in Outlets at Albertville, Phase 3 Letter of Credit to no less than $250,000, which is adequate to cover CSAH 19 assessments, wetland mitigation and'other miscellaneous items. (Page 24) Motion carried unanimously. PUBLIC COMMENTS: None 3 OTHER COUNCIL COMMENTS: The City Council discussed the situation with Robert Heuring relating to driving heavy equipment over the sidewalk on 53rd Street and breaking it and spreading manure on the street. Mayor Peterson would like Tim Guimont to investigate the situation to see if anything can be done to remedy the situation. Huering continues driving up over the city sidewalk to deposit manure on his property. Mayor Peterson suggested installing a larger area covered barricade to prevent him from destroying the sidewalk. The Council discussed if adoption of an ordinance that would prevent manure spreaders on city streets would work and the consensus was that would not be effective. SEASONAL CONCEPTS: City Planner Al Brixius presented the Findings of Facts as follows: Findings of Fact: Based on review of the application and evidence received, the City Council now makes the following finding of fact and decision: A. The proposed legal description of the subject property is Lot 2, Block 1, The Shoppes at Towne Lakes One, according to the recorded plat thereof, Wright County, Minnesota. B. The Planning Report, dated November 6, 2003, prepared by NAC, Inc. is incorporated herein. C. The Planning Commission has found the exterior building treatments and colors acceptable. D. The Planning Commission Recommendation for the application is incorporated herein. PP rP E. The Site and Building Plans are in substantial compliance with the Albertville Zoning Ordinance (with the conditions outlined herein). Council Member Klecker had a question about the handicapped parking stalls. The applicant stated that they would need to comply with the MN state standards. Bill Wrickrock demonstrated the samples of exterior materials that would be used on the seasonal concept building. He feels the buildings are scaled and fit into the design of the site. Craig Alshouse stated at a previous meeting what the specific material would be used on the exterior, Alshoue presented pictures of what it would look like on a building. Council Member Klecker had a question regarding the tower windows if they would be functional? Mr. Wrickrock stated that they would not be non-functional. There would be some back lighting inside them. MOTION BY Council Member Fay, seconded by Council Member Klecker to that based on the foregoing information and applicable ordinances, the site and building plans including Seasonal Concepts and another retail building for Lot 2 of the Shoppes at Towne Lakes One preliminary plat is approved based on the most current plans and information received to date, subject to the City Planners report dated December 15, 2003. 0 4 HEIDI'S MARKED': Al Brixius reported that at the applicant's request this is postponed until further grading and drainage agreement between the landowner's. SHOPPES AS TOWNE LAKES ONE: City Planner Brixius proceeded to review the Final Plat CPDC is requesting final plat approval for the Shoppes at Towne Lakes One. After receiving confirmation from the developer regarding the status of specific portions of the submitted plans, staff recommends approval of the final plat for the Shoppes at Towne Lakes One. ` There were two items listed - one being subject to the comments of the city engineer. He turned it over to the city attorney for the agreement. City Attorney Couri very briefly highlighted on the major areas of concern in the Developer's Agreement. ' City Attorney Couri will change the parking requirement, which shall allow cross -parking easement on all lots. ,He stated that the Developer's Agreement and the items stated in the agreement stay with the land use. City Attorney Couri felt strongly that there would be an active retail owner's property association as they will be required to maintain the streets and common area, or the City has the right to close business. The Council discussed a question regarding the curb connecting to the Albertville Premium Outlets. There is an agreement that CPDC would take care of their portion of the curb cuts. There was a question regarding the traffic control for pedestrian's flow. Dave Hempel had no problem working with the City to add a traffic control plan to the city engineer and signage. fAfter receiving confirmation from the developer regarding the status of specific portions of the submitted plans, staff recommends approval of the final plat for The Shoppes at Towne Lake One. This recommendation is based on the findings made in this report and review of the attached plans. The final plat is consistent with the approved preliminary plat and therefore, staff recommends approval of the final plat subject to the following conditions: 1. Developer' enters into a development contract with the City that addresses the conditions outlined in this report and those identified in the findings approved on November 4, 2003. 2. Subject to the comments of the City Engineer. FINAL PLAT ANALYSIS Performance Standards. The lot, block, and street design illustrated on the proposed final plat are consistent with the PUD preliminary plat submission, which was approved on November 4 2003. The proposal is consistent with performance standards for properties established as part of PUD zoning and site plans. Lots and Blocks. The overall plan consists of 6 lots. The overall lot design is intended to be an integrated shopping area that will provide shared parking and access arrangements. As part of final approval, the developer shifted the access of Lot l further south to align with the access drive to Lot 2. Additionally, Outlot A of the preliminary plat was eliminated and combined with adjoining Lot 1. Lot 3 and 4 have been adjusted to align with each other. 5 Streets. Access between the public streets of Lake Town Drive, Linwood Drive, and Langford Drive are • intended to be provided through a system of private streets that will serve the commercial areas. A private street system is allowed through the establishment of a planned unit development. All private streets shall be 28 feet in width. As part of Preliminary Plat approval, access from the Outlets of Albertville must be designed in a manner that. will insure one-way north -bound traffic entering the site from the Outlets of Albertville. Preliminary plat approval was granted and all conditions have been met with regards to street width and right-of-way however, the drive proposed to be named Langford Drive must be changed to Linwood Drive. Additionally, the applicant must address with truck maneuvering templates, how truck circulation for delivery of goods will occur for Lots 1, 2, 3, and 4. Landscaping. CPDC submitted a preliminary landscape and lighting plan. _ The plan illustrated a fairly generous landscape plan with CPDC responsibility being the tree planting within the street boulevards. The preliminary plat indicated 63 over story plantings. The final landscaping plan -identifies 62 over story plantings and include Imperial Honey Locust, Autumn Blaze Maple, and Fall Gold Ash.. These trees are intended to be 2.5 to 4 inches balled and burlapped. The tree list is consistent with the tree list established in the City's Zoning Ordinance. The applicant has also provided an illustrative landscape plan for the individual lots, however, as claimed on their landscape plan, all plantings and street lighting shown as screened or gray lines are for illustrative purposes only and are subject to change as the site plans for individual buildings are developed. . The development agreement must identify the timing for full installation of all landscaping. Grading and Drainage. The final grading and drainage plans are subject to the review of the City Engineer. Easements. All easements are subject to the review of the City Engineer related to location and size. The easements identified on the final plat appear to be consistent with the preliminary plat and Albertville Subdivision Ordinance. Development Agreement. The applicant shall enter into a development agreement associated with the final plat approval. CONCLUSION After review of the applicant's submittal, staff recommends approval of the final plat for The Shoppes at Towne Lakes One. This recommendation is based on the findings made in this report, subject to the conditions herein, and to the comments made by the City Engineer. MOTION BY Council Member Berning, seconded by Council Member Peterson that based on the Findings of Facts to approve the Final Plat of Shoppes at Towne Lakes One as presented. Motion carried unanimously. • 6 l • MOTION BY Council Member Klecker, seconded by Council Member Fay to approved the Developers Agreement for Shoppes at Towne Lakes One. Motion carried unanimously. ALBERTVILLE DOWNTOWN SIGN: City Attorney Mike Couri reviewed the sign maintenance Agreement. Council Member Berning had a concern that Mr. Franklin decided to sell out. Is there a term in the agreement? City Attorney Couri stated that he would put the 5-year agreement in item 3. of the agreement. City Administrator Kruse shared with the mayor and council that three businesses expressed interest in signing a lease with the City and one more business was requesting more information. City Planner Brixius asked if the agreement would include blank placard's and Mr. Franklin' stated there would be blank ones on the non -leased slots. City Council Member Berning wanted to make certain that there would be no temporary signs and stated he wanted it documented that there would be no portable signs on the property. MOTION BY Mayor Peterson,; seconded by Council Member Klecker to proceed to enter into contract with Franklin Signs for $37,655 for construction of the sign, plus the cost of the radio controller. Further to request the City Attorney draft lease agreements for the sign rentals. Motion carried unanimously PULLED CONSENT AGENDA ITEMS: (item a) Center Point Utility bill for the Fire Hall and Fire Department Donation Account: Co"cil Member Berning requested staff look at the Fire Hall Electric and Gas bills, as they seem excessively high. Specialty Fashion: Council Member Bering questioned whether the Fire Department apparel purchase as accounted for in a separate "Donation's" account, and City Administrator Kruse stated that the 42200 code meant that it indeed was being accounted in a Fire Department account. MOTION BY Council Member Berning, seconded by Council Member Klecker to approve payment of Center Pont Utility Bill and Specialty Fashion as presented. Motion carried unanimously. (e) Resolution No. 200341 (A Resolution Establishing 2003 Wages for City Employees): Council discussed that during the past year it has been mentioned the City needs to review the insurance benefit granted employees as the City has experienced significant increases in recent years and employee participation has not increased. The Council questioned whether the proposed Five (5) percent increase proposed in the preliminary budget was excessive in light that the insurance benefit had not been addressed. City Administrator Kruse stated that the City had recently received a letter stating the medical cost were stabilizing and that the City would receive a credit for the last half of December. The council considered tabling the issue pending additional information and a discussion with employees.; City Administrator Kruse suggested that theCouncilmight consider granting the employees a 3% raise and defer 2% o pending the discussion with the employees rather than delaying a decision, which all agreed may take several months to resolve.Council mentioned recent cut backs by the State of Minnesota on the very same issue. After much discussion, the following motion was made. 7 MOTION BY Council Member Berning, seconded by Council Member Fay to adopt Resolution No. 2003-41 amending the amount from Five (5) percent to Three (3) percent. Motion carried unanimously. The council requested information be gathered and a workshop be held after the Holidays to discuss medical insurance. - (f) Resolution No. 200342 (A Resolution Establishing 2003 City Office Hours: A rather lengthy discussion was held regarding a proposal to have extended office hours from 7:30 a.m. to 4:30 p.m. on Monday, Wednesday and Thursday, and an extended day on Tuesday (7:30 a.m. to 6:00 p.m), with a shortened Friday (7:30 to noon). Opinions varied on whether service to the residents, especially contractors would suffer due to lost Friday afternoon service. Changing the past practice of closing 30 minutes over noon hour was discussed, and that extended hours would be nice providing working residents extended morning and evening hours to transact business, however, closing early on Friday was a stickler and the council had an inclination to continue the current office hours. No action was taken on the matter. Fire Department Meeting: The Council directed City Administrator Kruse to come back to the Council with a couple of dates after the holidays to reschedule the meeting with the Fire Department. Public Works: In response to Public Works Tim Guimont's request for direction on: (1) Performing janitorial work on a monthly basis at the fire hallThe council stated if the Public Works Department has the time, that it is ok to schedule Public Work's employees to assist with janitorial maintenance of the fire hall. (2) STMA request for the City of Albertville to remove snow from the parking °'lot. The council agreed that the Public Works Department can perform snow removal of the parking lot, however it would not be a high priority item in a snow emergency. Council expressed some concern that this shifts some more responsibility to Albertville and that if the facility expands and requires additional time, it may have to be reconsidered in the future. MOTION BY Council Member Klecker, seconded by Council Member Berning to grant permission for the Public Works Department to provide janitorial maintenance at the fire hall. Further to approve the Public Works Department to do snow removal at the STMA Arena, with it being a lower priority during snow emergencies. Motion carried unanimously. MOTION BY Council Member Klecker, seconded by Council Member Fay to adjourn at 9:00 p.m. Motion carried unanimously. Mayor Donald Peterson Larry Kruse, City Administrator 8 CITY OF ALBERTVILLE RESOLUTION # 2004-01 A RESOLUTION MAKING APPOINTMENTS TO CERTAIN OFFICES AND POSITIONS WITHIN THE CITY OF ALBERTVILLE FOR THE YEAR 2004 WHEREAS, it has been the policy of the Albertville City Council to make annual appointments to fill certain offices and positions with the city government at the beginning of each year. NOW, THEREFORE, BE IT RESOLVED that the City Council of Albertville, Minnesota, establishes the following: That the following persons are appointed by the City Council to the following offices and positions for the year 2004: ACTING MAYOR: LeRoy Berning PLANNING COMMISSION; LeRoy Berning Alternate:Dorothy Rich ASSISTANT WEED INSPECTOR: Tim Guimont CITY ATTORNEY: Couri & MacArthur CITY ENGINEER: Short Elliott & Hendrickson FINANCIAL ADVISOR: Springsted, Inc. Northland Securities PLANNING CONSULTANT: Northwest Associated Consultants TAX INCREMENT CONSULTANTS: Briggs & Morgan Kennedy & Graven BOND COUNSEL. Briggs & Morgan Kennedy & Graven • 9 ANIMAL CONTROL: Monticello Animal Control • CIVIL DEFENSE DRECTOR: Fire Chief Kevin Roden FIRE RELIEF ASSOCIATION Assistant Fire Chief Chad Chicos REPRESENTATIVES: Mayor City Clerk/Administrator FIRE DEPT. REPRESENTATIVE: Ron Klecker Alternate: Don Peterson OTSEGO CREEK AUTHORITY: Ron Klecker Planning Commission Chair Alternate: Tom Fay JOINT POWERS WATER BOARD: Don Peterson Tom Fay Alternate: LeRoy Berning JOINT POWERS ICE ARENA BOARD: Don Peterson Dorothy Rich OFFICIAL NEWSPAPER: North Crow River News OFFICIAL DEPOSITORIES: Highland Bank Dain Rausher LMC 4M Fund Premier Bank State Bank of Rogers Northland Securities PUBLIC WORKS COMMITTEE: Don Peterson Tom Fay 10 Tim Guimont PARKS COMMITTEE: LeRoy Berning Dorothy Rich Tim Guimont PUBLIC SAFETY COMMITTEE: LeRoy Berning Don Peterson Fire Dept. Representative PERSONNEL COMMITTEE: Don Peterson LeRoy Berning RULES OF PROCEDURE: ' Robert's Rules of Order CABLE TV BOARD: Acting Mayor 1. City Staff and/or Consultants will attend the boards, commissions and committee meetings as directed by the City Council. Staff who are directed to attend meetings will be compensated based on the City's personnel policies or contractual agreements. Staff who are not directed to attend will not be compensated for their attendance. 2. Change City Council regular meeting dated conflicting with legal holidays as follows: Martin Luther King Day - Monday, January 19, 2004, to Tuesday, January 20, 2004, at 7:00 PM. President's Day - Monday, February 16, 2004, to Tuesday, February 17, 2004, at 7:00 PM. Labor Day - Monday, September 6, 2004, to Tuesday, September 7, 2004, at 7:00 PM. Independence Dgy Monday July 5, 2004 to July .6, 2004 at 7:00 P.M. 3. That such appointment shall take effect on the date thereof and shall continue for the remainder of the year or until such time as a successor is appointed by the City Council. ADOPTED BY THE CITY COUNCIL OF THE CITY OF 'ALBERTVILLE THIS_ 5" OF JANUARY, 2004. Don Peterson, Mayor Larry R. Kruse City Administrator 11_ CITY OF ALBERTVILLE • COUNTY OF WRIGHT RESOLUTION NO. 2004- RESOLUTION VACATING A PORTION OF A DRAINAGE AND UTILITY EASEMENT WHEREAS, the Albertville City Council has received a petition requesting that a portion of a drainage and utility easement on Outlots B and C of Towne Lakes Third Addition be vacated from use by the public; and, WHEREAS, the Albertville City Council has conducted a properly noticed public hearing regarding the petition to vacate said easements; and, WHEREAS, the Albertville City Council finds it to be in the interest of the public to vacate said utility easements. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Albertville, Wright County, Minnesota, that dedicated drainage and utility easements described below are hereby vacated: All of the utility and drainage easements included within Outlot B and Outlot C, as dedicated on the plat of TOWNE LAKES 3RD ADDITION, according to the recorded plat thereof, Wright County Minnesota ADOPTED BY THE CITY COUNCIL OF THE CITY OF ALBERTVILLE THIS 5" DAY OF JANUARY, 2004. Don Peterson, Mayor Attest Bridget Miller, Clerk 12 ffQK NORTHWEST ASSOCIATE© CONSULTANTS, INC. 1W 5775 Wayzata Boulevard, Suite 555, St.. Louis Park, MN 55416 Telephone: 952.595.9636 Facsimile: 952.595.9837 plannersgnacplanning.com PLANNING REPORT TO: Larry Kruse FROM: Alan Brixius' DATE: December 16, 2003 RE: Section 1100.5(a) of the Albertville Zoning Ordinance PermittedEncroachments CC: Bridget Miller Mike Couri, Esq. NAC File No. 163.05-03.14 BACKGROUND Article 1100 of the Albertville Zoning Ordinance sets forth the general yard, lot area and buildings regulations for structures within the various zoning districts within the City of Albertville. Yard requirements are governed by Section 1100.5. Section 1100.5(a) sets forth a list of structures that may encroach into the required yard areas (permitted encroachments). Such permitted encroachments include, without limitation, ,accessory and ornamental structures. The extent of the permitted encroachment is largely dependent upon the type of structure. ISSUES ANALYSIS The current list of permitted encroachments set forth in Section 1100.5(a) does not include -bay windows, bow windows, and/or fireplaces. While such elements are usually affixed to the principal structure, they frequently extend beyond the footprint of such structure. Based upon discussion with the Albertville Building inspector, these elements are similar to the types of structures currently listed as permitted encroachments in Section 1100.5(a). Additionally, permitting 'encroachments of such elements into required yards permits the maximum utilization of the buildable area of property. RECOMMENDATION/CONCLUSION Bay windows, bow windows, and/or fireplaces are similar to the types of structures currently listed as permitted encroachments in Section 1100.5(a). Permitting encroachments of such elements into required yards permits the maximum utilization of the buildable area of property. Based on the Planning Commission review comments from December 9, 2003, staff prepared the following amendment to Section 1100.5(a) to include a new subsection (9) to permit the encroachment of bay windows, bow windows, and/or fireplaces as follows: (9) Bay windows, bow windows and fireplaces may extend not more that two (2) feet into a required yard provided that a minimum eight (8) foot side yard setback is maintained and that such encroachment does not exceed more than fifteen (15) square feet in area. • 13 CITY OF ALBERTVILLE COUNTY OF WRIGHT STATE OF MINNESOTA Ordinance No. 2004-01 AN ORDINANCE AMENDING SECTION 1100.5(a) OF THE ALBERTVILLE ZONING ORDINANCE. THE CITY COUNCIL OF THE CITY OF ALBERTVILLE ORDAINS AS FOLLOWS: Section 1. Section 1100.5(a) (Yards) of the Albertville Zoning Ordinance in force at the time of this Ordinance is hereby amended to include the following new subsection (9) as follows: (10) Bay windows, bow windows and fireplaces may extend not more that two (2) feet into a required yard provided that a minimum eight (8) foot side yard setback is maintained and that such encroachment does not exceed more than fifteen (15) square feet in area. Section 2. This Ordinance shall be effective following its passage and publication. Adopted by Albertville City Council this 5t' day of January 2004. CITY OF ALBERTVILLE . Don Peterson, Mayor Attest: Bridget Miller, City Clerk Complete copies of the Albertville Zoning Ordinance are available for inspection by contacting the City Administrator, City of Albertville, 5975 Main Avenue, Albertville, MN 55301, telephone 763.497.3384. i 14 • CITY OF ALBERTVILLE COUNTY OF WRIGHT STATE OF MINNESOTA Ordinance No. 2004-01 AN ORDINANCE AMENDING SECTION 1100.5(a) OF THE ALBERTVILLE ZONING ORDINANCE. THE CITY COUNCIL OF THE CITY OF ALBERTVILLE ORDAINS AS FOLLOWS: Section 1. Section 1100.5(a) (Yards) of the Albertville Zoning Ordinance in force at the time of this Ordinance is hereby amended to include the following new subsection (9) as follows: (11) Bay windows, bow windows and fireplaces may extend not more that two (2) feet into a required yard provided that a minimum eight (8) foot side yard setback is maintained and that such encroachment does not exceed more than fifteen (15) square feet in area. Section 2. This Ordinance shall be effective following its passage and publication. Adopted by the Albertville City Council this 5t' day of January 2004. . CITY OF ALBERTVILLE Don Peterson, Mayor Attest`. Bridget Miller, City Clerk Completecopies of the Albertville Zoning Ordinance are available for inspection by contacting the City Administrator, City of Albertville, 5975 Main Avenue, Albertville, MN 55301, telephone 763.497.3384. • 15 ' NORTHWEST ASSOCIATED • CONSULTANTS, INC. 5775 Wayzata Boulevard, Suite 555, St. Louis Park, MN 55416 Telephone: 952.595.9636 Facsimile: 952.595.9837 planners@nacplanning.com PLANNING REPORT TO: Larry Kruse FROM: Alan Brixius DATE: December 16, 2003 RE: Section 1000.16(a) of the Albertville Zoning Ordinance Outdoor Storage in Residential Districts CC: Bridget Miller Mike Couri, Esq. NAC File NO. 163.05-03.14 BACKGROUND Many residents of the City of Albertville have recreational vehicles that they desire to keep and store on their property. The Albertville Zoning Ordinance specifically defines recreational vehicles in Section 200.2(146). Exterior storage of recreational vehicles is permitted pursuant to . Section 1000.16(a)(2). The Planning Commission identified that outdoor storage of recreational vehicles in residential areas raises safety and aesthetic issues. The City of Albertville desires to amend the Albertville Zoning Ordinance to clarify the definition of recreational vehicles and the conditions under which the same may be stored upon residential property. ISSUES ANALYSIS The City of Albertville currently permits outdoor storage of recreational vehicles within residential districts pursuant to Section 1000.16(a)(2). The City of Albertville desires to amend Section 1000.16(a)(2) to clarify issues related to outdoor storage of recreational vehicles and specifically include setbacks and regulations relating to outdoor storage of recreational vehicles in different yard areas. Clarifying such regulations will help to ensure safety and uniform application of such regulations. The City of Albertville Planning Commission and City Council may also find to beneficial to address issues related to screening and/or enclosure of stored recreational vehicles. RECOMMENDATION/CONCLUSION Regulation of the outdoor storage of recreational vehicles is necessary for health, safety and aesthetic purposes. Amending Section 1000.16(a)(2) to specifically include setbacks and regulations • relating to outdoor storage of recreational vehicles in different yard areas will clarify issues related to outdoor storage of recreational vehicles. Based upon Planning Commission discussions at their November 12, 2003 and December 9, 2003 meetings, staff has drafted the following amendments for the storage of recreational vehicles in a residential area for City Council . consideration: 16 (2) Not more than two (2) recreational vehicles subject to the following conditions: i. Front Yard Storage. a. '' All permitted recreational vehicle storage must be on a driveway or paved surface. b. All permitted recreational vehicle storage must be set back at least fifteen (15) feet from the back of the curb and may not extend into any sidewalk area. c. Permittedr :recreational vehicle storage shall not interfere with stormwater drainage or be located over an existing_utilily and maybe subject to the review and approval of the Zoning Administrator. ii. Side Yard Storage. a. All permitted recreational vehicle storage must be on an area surfaced with asphalt, concrete or crushed rock with a border that prevents erosion. b. All permitted recreational vehicle storage must be set back at least two (2) feet from the property line. c. Permitted recreational vehicle storage shall not interfere with stoowater drainage or be located over an' existing utility and may be subject to the review and approval of the Zoning Administrator. d. On a corner lot, all permitted recreational vehicle storage must be set back at least twenty (20) feet from the property line abutting the side lot lines. iii. Rear Yard Storage a. All permitted recreational vehicle storage must be set back at least five (5) feet from the rear lot line and five (5)'feet from the side lot ling(s) if not on apaved surface. b. 'Permitted recreational vehicle storage shall not interfere with stormwater drainage or be located over an existing utility and may be subject to the review and approval of the Zoning Administrator. In addition, staff recommends that Section 200.2(146) (Recreational Vehicles) of the Albertville Zoning Ordinance be amended as follows: (146) Recreational Vehicle: Includes, without limitation, the following_ provided the same are operable and licensed (as required by the State)to the property owner or resident of the premises where stored, manufactured homes less than thirty-five (350) feet in overall length, including those which telescope or fold down; chassis mounted campers, house cars, motor homes, tent trailers, slip -in -campers (those mounted in a pickup truck or similar vehicle), converted buses, converted vans used primarily for recreational purposes: snowmobiles, boats/watercraft, all terrain vehicles and any non -motorized trailer that transports recreational vehicles such as boats and snowmobiles. A boat snowmobile or other recreational vehicle when stored or kept on a trailer shall be considered one recreational vehicle. A recreational vehicle does not include cGars used for racing. off road use or demolition derbyshall net beineluded �Mthon this definition. • 17 CITY OF ALBERTVILLE COUNTY OF WRIGHT STATE OF MINNESOTA Ordinance No. 2004-02 AN ORDINANCE AMENDING SECTIONS 200.2(146) AND 1000.16(a)(2) OF THE ALBERTVILLE ZONING ORDINANCE. THE CITY COUNCIL OF THE CITY OF ALBERTVILLE ORDAINS AS FOLLOWS: Section 1. Section 200.2(146) (Definitions -Recreational Vehicles) of the Albertville Zoning Ordinance in force at the time of this Ordinance is hereby amended as follows: (146) Recreational Vehicle: Includes, without limitation, the following provided the same are operable and licensed as required by the State) to the property owner or resident of the premises where stored: manufactured homes Tess than thirty-five (350) feet in overall length, including those which telescope or fold down; chassis mounted campers, house cars, motor homes, tent trailers, slip -in -campers (those mounted in a pickup truck or similar vehicle), converted buses, converted vans used primarily for recreational purposes; snowmobiles boats/watercraft all terrain vehicles and any non -motorized trailer that transports recreational vehicles such as boats and snowmobiles. A boat, snowmobile or other recreational vehicle when stored or kept on a trailer shall be considered one recreational vehicle. A recreational vehicle does not include chars used for racing, off road use or demolition derby shall not beineluded within this definitien. • Section 2. Section 1000.16(a)(2) (Outside Storage, Residential, Commercial and Industrial Uses) of the Albertville Zoning Ordinance in force at the time of this Ordinance is hereby amended as follows: (3) Not more than two (2) recreational vehicles subject to the following conditions: iv. Front Yard Storage. a. All permitted recreational vehicle storage must be on a driveway or paved surface. b. All permitted recreational vehicle storage must be set back at least fifteen (15) feet from the back of the curb and may not extend into any sidewalk area. c. Permitted recreational vehicle storage shall not interfere with stormwater drainage or be located over an existing utility and may be subject to the review and approval of the Zoning Administrator. V. Side Yard Storage. a. All permitted recreational vehicle storage must be on an area surfaced with asphalt, concrete or crushed rock with -a border that prevents erosion. b. All permitted recreational vehicle storage must be set back at least two (2) feet from the property line. c. Permitted recreational vehicle storage shall not interfere with stormwater drainage or be located over an existing utility and may be • subject to the review and approval of the Zoning Administrator. 18 • d. On a comer lot, all permitted recreational vehicle storage must be set back at least twenty (20) feet from the property line abutting the side lot lines. vi. Yard Storage. R ar r a e. a, All permitted recreational vehicle storage must be set back at least five (5) feet from the rear lot line and five (5) feet from the side lot line(s) if not on a paved surface. b. Permitted recreational vehicle storage shall not interfere with stormwater drainage or be located over an existing utility and may be subject to the review and approval of the Zoning Administrator. Section 3. This Ordinance shall be effective following its passage and publication. Adopted by the Albertville City Council this a day of January 2004. Attest: CITY OF ALBERTVILLE Don Peterson, Mayor Bridget Miller, City Clerk Complete copies of the Albertville Zoning Ordinance are available for inspection by contacting the City Administrator, City of Albertville, 5975 Main Avenue, Albertville, MN 55301, telephone 763.497.3384. • 19 NORTHWEST ASSOCIATED CONSULTANTS, INC.I N.Cr 5775 Wayzata Boulevard, Suite 555, St. Louis Park,IVIN 55416 Telephone: 952.595.9636 Facsimile: 952.595.9M7 planners@naeplanning.com A. MEMORANDUM — Via E-Mail Transmission TO: Larry Kruse FROM: Alan Brixius DATE: December 16, 2003 RE: Albertville — Shoreland Overlay District Amendments FILE NO: 163.05 — 03.13 On November 4, 2003, 1 met with Patty Fowler, the Area Hydrologist for the DNR covering Albertville. At that meeting, we discussed a number of issues pertinent to developments in Albertville, specifically Shoppes at Towne Lakes One, as well as Albertville Dental Addition. In our discussion, Ms. Fowler indicated support for development requests as reviewed by the City, but suggested • a number of changes to our Shoreland Overlay District that would prevent the need for granting of variances. Those changes are incorporated in the attached draft ordinance amendment and include the following. Section 4904.12 identifies the lakes and tributaries that are protected by the Shoreland Overlay District. In my discussion with Ms. Fowler, she offered two changes to this section. One is the repeal of. Swamp Lake as a shoreland protected waterbody. In my opinion this favors the City in that Swamp Lake is hardly a usable lake and would still be protected by the wetland rules that the City has within its regulations. The second change that Ms. Fowler requested is the addition of Otsego Creek as a protected waterbody, listed under tributaries. This is identified in the attached ordinance amendment as unnamed Creek to MR, Section 36, Basin 25 (Otsego Creek). Otsego Creek already falls within 1,000 feet of School and Mud Lake and as such, no map change is required. However, in looking at future developments along this drainageway, we would have to take into consideration necessary setbacks. The second change being proposed to the Shoreland Overlay District addresses Section 4905.61.c.3. This section of the ordinance allows for an increase of impervious surface above 25 percent by conditional use permit. The change that is being suggested affects provision e) within this section, which limits the height of buildings to 25 feet. Ms. fowler has suggested that we amend the language in this provision to restrict the height of the building to 25 feet for only those lots which are riparian in nature or which lie within a first tier of a PUD. For non - riparian lots or property line beyond the first tier of a PUD, the building height would be restricted by the base zoning district. In my review of the suggested changes and the attached amendment, I think they favor the City and would strongly recommend their approval. This was reviewed by the Planning Commission at their December 9, 2003 meeting and they recommended City Council approval. We have forwarded this information to DNR. They have reviewed and approved the language for amendment. 20 CITY OF ALBERTVILLE WRIGHT COUNTY, MINNESOTA ORDINANCE NO. 2004-03 AN ORDINANCE AMENDING SECTIONS 4904.12 AND 4905.61.C.e), SHORELAND OVERLAY DISTRICT OF THE ALBERTVILLE ZONING ORDINANCE. THE CITY COUNCIL OF THE CITY OF ALBERTVILLE ORDAINS: Section 1. Section 4904.12, lakes, is hereby amended to repeal Swamp Lake_86-14 as a shoreland protected waterbody and the addition of the following language: B. Tributaries Unnamed Creek to MR Section 36, Basin 25 (Otsego Creek) Section 2. Section 4905.61.C.e) is hereby amended to read as follows: e) The building setback is at least one hundred fifty (150) feet from the OHW and the height of buildings on riparian lots or the first tier of a PUD shall not exceed twenty-five (25) feet. Buildings on non -riparian lots or beyond the first tier of a PUD shall comply with the height restrictions of the base zoning district. Section 3. Effective Date. This amendment shall be in full force and effect immediately following its passage and publication. APPROVED by the Albertville City Council this 5th day of January 2004. CITY OF ALBERTVILLE By: Donald Peterson, Mayor ATTEST: By: 'Bridget Miller, Deputy Clerk • 22 NORTHWEST ASSOCIATED CONSULTANTS, INC. 5775 Wayzata 'Boulevard, Suite 555, St. Louis Park, 'IVIN 55416 Telephone: 952.695.9636 Facsimile: 952.595.GW7 planners@naeplanning.com PLANNING REPORT TO: Larry Kruse FROM: Alan Brixius DATE: December 4, 2003 RE: Albertville James Franklin Rezoning Request FILE NO: 163.06 03.31 BACKGROUND •James and Laverne Franklin have requested a change in zoning for their property located at 5720 Barthel Industrial Drive. This site is currently zoned 1-1, Light Industrial. The applicants are requesting that the zoning be changed to a commercial zoning classification. Their stated preference is a B-3, Highway Commercial Zoning District. The applicants have indicated they have had over 250 inquiries regarding the purchase of the property and have indicated that the, current industrial zoning has prohibited the sale of the facility. They have asked for a commercial zoning as a means of changing their situation and they envision that the site may be appropriate for a hotel/motel, family type restaurant, or a professional building. The proposed site at 5720 Barthel Drive is located in the eastern portion of the community. The site is triangular in configuration and is approximately 13.4 acres in area. The site is limited in depth by the adjoining physical barriers including 1-94 on the north, Barthel Industrial Drive on the west, and the Burlington Northern Railroad on the south. Site observation also reveals that much of the site has some limitations due to wetlands. The site contains two buildings - a 4,000 square foot principal building of which approximately 1,520 square feet is office area with the remainder as warehouse and production space. The warehouse portion of the -building is 62 by 40 feet in dimension and is constructed of decorative concrete block. The office portion has wood siding. The second utility building is 40 by 60 feet in dimension with vertical metal siding with three overhead doors and brown in color to blend with the principal facility. The metal building was approved in 1998. As such, it is a relatively new building to the site. ISSUES ANALYSIS .Section 300 of the Albertville Zoning Ordinance outlines the procedure and process for amendments to the Albertville zoning map. Within this section, six criteria are identified as the basis for considering any change in. zoning. These criteria are used as follows to analyze the Franklin rezoning request. 23 L The proposed action has been considered in relation to the specific policies and provisions and found to be consistent with the official City Comprehensive Plan. Comment: The Land Use Plan for this area of the community identifies the site as industrial. As such, a modification of the Land Use Map will be required as part of any rezoning. The site is located in Planning District 5 which recognizes a combination of both commercial and industrial land uses located along Barthel Industrial Drive, north of the railroad tracks. The recommendation for Planning District 5 includes: (3) infill of industrial development on designated lots along Barthel Drive should be promoted as business, warehouse or light industrial uses. While this recommendation emphasizes industrial, it would not necessarily preclude the introduction of a business or commercial operations. With recent changes to Albertville's B-W zoning classification, the range of uses within the B-W District - have been expanded to include hospitality type businesses, professional offices, retail and wholesale showrooms as permitted uses, as well as allowing auto repair, motor vehicle leasing rental and sales as a conditional use permit. These types of uses may be appropriate within the context of the existing land uses along Barthel Drive, north of the railroad tracks. 2. The proposed use will be compatible with the present and future land uses of the area. Comment. An inventory of land uses along Barthel Drive, north of the railroad tracks, indicate that near the interchange, the uses consist of a bank, Shell service station, Steffen Meats north of Barthel Drive. South of Barthel Drive has a mixture of industrial and commercial uses including Old Castle Glass, ECP/Euld site, which is currently for sale, Vetsch Cabinets. The Vetsch building also includes the Francis Beaudry Insurance office and Country Homes offices. This combination of commercial and industrial uses may offer some suggestion that the change in land use or zoning would not be detrimental to the overall area for the area for the Franklin site. 3. The proposed use conforms with all standards contained within the Albertville Zoning Ordinance. Comment: Upon receipt of the application, we forwarded a letter dated November 17, 2003 to James Franklin asking that they provide a concept plan that would show the intended use and layout of the property for the rezoning request. The applicant indicated that they did not have a formal user in mind and issued a letter dated November 18, 2003 that outlined that their expected land uses would range from hotel/motel, family restaurant, or professional building. In view of the site, the proposed use as described by Mr. Franklin would likely require redevelopment of the site and the existing buildings which appear to be in generally good condition. The site also seems to be limited in area due to its configuration and wetland constraints. In this respect, we raise the following questions. How much of the site is actually useable? What types of land uses would be most appropriate for the area? Could the redevelopment of the site fit all performance standards outlined in the Albertville Zoning Ordinance? These issues have not been resolved with the applicant at this point. In this respect, direction from the Planning Commission and City Council may be that a change in zoning may be viewed as appropriate but the City would like to see a more definitive redevelopment plan for the area. 4. The proposed use will not tend or actually depreciate the area in which it is proposed. Comment: We do not have a specific development plan for the Franklin site that would illustrate the proposed use and the type of building construction. As such, it is difficult to anticipate as to whether there would be any negative impacts of the proposed use to the surrounding properties. It should be noted that the site is somewhat isolated from adjoining properties by Interstate 94 and the railroad tracks. As such, land use issues may be mitigated through physical separation from adjoining properties. Of great concern would be the appearance of the proposed buildings and proposed use from Interstate 94 as this would be one of the first properties seen as people entered into the City of Albertville. The applicant has expressed a desire to have the zoning to allow them to market the property in a commercial fashion. The 24 • Planning Commission and Council, will have to make a determination as to whether it is willing to change the land use without a specific development proposal. 5. The proposed use can be accommodated by the existing public servicesand not overburden service capacity. Comment. It is our understanding that with the development of the Barthel Industrial' Park, adequate utilities have been installed that would accommodate a full range of industrial uses. As such, we believe that utilities and service capacity of the City is available to service a change in land use to a commercial land use alternative. 6. Traffic generation by the use is within the capabilities of streets serving the property. Comment: Barthel Industrial Drive was designed with the intent of accommodating industrial traffic - volumes and truck traffic. As a result, we believe there is capacity in Barthel Industrial Drive. The site, as it currently exists, has two access points. The appropriateness of these access points for commercial use would have to be determined at the time the site plan was submitted. Without a specific; development plan, staff cannot provide a speck analysis as to the traffic generation that would result from the proposed use. While we believe the street has the capability of accommodating additional traffic, the access points and traffic generation through the site cannot be determined at this point. CONCLUSION AND RECOMMENDATION Based on the criteria found in Section 300 of the Albertville Zoning Ordinance, we believe that there is opportunity to consider a change in land use for the property located at 5720 Barthel Drive from the current light industrial to a possible B-3 or B-W zoning classification. However, we are reluctant to say that this zoning should occur without a specific development proposal to allow the City to make a determination as to the appropriateness and the quality of development that would occur on the site in conjunction with the land use change. Site inspection reveals that the site does have some limitations related to lotconfiguration and wetland concerns. These elements should be identified as part of an overall development plan to allow the City to make a determination as to the appropriateness of the land use that would go into the area and give the City the understanding as to what land use would be proposed in conjunction with the proposed rezoning. The current buildings on the site appear to be in very good condition, however, they are not conducive to the restaurant, hotel, or professional offices that have been suggested by Mr. Franklin. This raises question as to whether the uses, as identified in Mr. Franklin's letter, would actually be developed on the site or would a business that is more conducive to the existing conditions be more practical. In conclusion, we offer three options for the Planning Commission's consideration: 1. The Planning Commission may recommend approval of the requested land use change and rezoning. If approval is given, our suggestion would be a B-W Zoning District classification rather than a B-3 as a means of blending the land uses with a combination of commercial and industrial uses already existing in this area. 2. The Planning Commission and City Council may indicate to the applicant that a land use change in this area may be appropriate if a survey and development plan is submitted that illustrates the proposed use and the use is found to be consistent with the policies and recommendations of the Comprehensive Plan and fits compatibly with the adjoining land uses. As such, the City would not change the zoning until such time as a development application was submitted for the site and the rezoning would be considered with a more formal development application. • 25 3. The Planning Commission could recommend to the City Council that they deny the proposed rezoning on the basis that the proposed rezoning would be inconsistent with the Comprehensive Plan as is currently drafted and that without a formal development application, the Planning Commission cannot make a determination as to whether it satisfies all the criteria related to a rezoning request. Specifically, does the proposed use conform with all performance standards contained within the Zoning Ordinance, that the proposed use is compatible with the present and future land uses of the area, that the proposed use will not tend to or actually depreciate the area in which it is proposed. In our examination of the rezoning request, we believe Option 2 is most appropriate providing Mr. Franklin the opportunity to market the property both in a commercial and industrial nature but protecting the City from any inappropriate land uses until such time they can examineit in conjunction with a development proposal. PC: Mike Couri Pete Carlson James and Laverne Franklin • 26 NORTHWEST ASSOCIATED CONSULTANTS, INC. 5775 Wayzata Boulevard, Suite 555, St. Louis Park, MN 55416 Telephone: 952.595.9636 Facsimile: 952.595.9837 Planners@nacplanning.com MEMORANDUM TO: Albertville Planning Commission Larry Kruse, City Administrator FROM: John Glomski / Alan Brixius DATE: 4, December 2003 RE: Albertville - Albertville Crossings Second Addition Site and Building Plan Review, Midlands Retail Center NAC FILE 163.06 03.32 BACKGROUND The applicant, Midlands Development, has requested site and building plan review for a single story multi -tenant retail building to be located on Albertville Crossings Second Addition, Block 1, Lot 3. The site abuts CSAH 19 to the west and Frontage Avenue to the east, just south of Albertville Crossings Building "B" and southwest of the Coborns Grocery Store. The subject lot was created from a subdivision approved by the City Council on October 15t', 2002. The following is being requested: 1. Site and building plan approval for Multi -tenant retail building. 2. Joint parking and shared access CUP Attached for reference: Exhibit A: Site Location Map ExhibitB: Site Plan` Exhibit C: Building Elevation Exhibit D: Landscape Plan ISSUES ANALYSIS Comprehensive Plan and Zoning The Comprehensive Plan designates the subject site for commercial uses, consistent with the proposed multi - tenant retail use. The Zoning Map classifies this site as B-2, Limited Business District. The multi -tenant retail building is consistent_ with this district and the surrounding uses. The proposed development meets the lot and building setback standards of the B-2 District as follows; •Multi -tenant'. Retail Buildin - 13 -2 District Performance Standards Standard Required Standard Proposed Status Front Yard Setback 1 35 feet 1 82 feet I Compliant 27 West Side Yard Setback 10 feet 52 feet Compliant North Side Yard Setback 10 feet 58 feet Compliant South Rear Yard Setback 20 feet 20 feet Compliant Maximum Site Coverage " 50 % 22 % Compliant (Building) 26,571 square feet 11,948 square feet Maximum Site Coverage 80% 77 % Compliant (Buildingn Hard Surface) and H d S rf square 42 514 feet) square 40 738 feet) Access / Circulation / Loading The site requires a shared access and cross easement agreement in order to link the subject site with the site to the north as proposed via the access point at the northwest corner of the proposed lot layout. Although this area appears to match up with that of the circulation pattern of the site to the north, the width of the two lane traffic (25 feet as opposed to 24 feet) and the length of the parking stalls (18 feet as opposed to 20) are different'in each of the sites. The plans must be revised to match that of the site to the north in both drive width and parking stall length. A shared access and cross easement agreement between the property owner of the subject site and the property owner of the site to the north must be submitted to City Staff for the City's records prior to final approval. Circulation within the site is generally satisfactory with a few minor adjustments. Drive aisles are 24 and 25 feet in width, compliant with two lane traffic standards. Staff has determined that there is not an adequate turning radius to maneuver trucks around the northwest corner of the building. As such, the two parking stalls at the northwest corner of the building must be replaced witha curbed, landscaped bumpout. The building elevation plans show an overhead Door at the southeast corner of the building. It is staffs understanding that this will be utilized for loading and unloading of merchandise. As such, the two eastern most parking stalls in front of this area should be designated as a loading area. The Zoning Ordinance, Section 1300.9(a) requires all commercial buildings to have at least one off-street loading berth. The site plan shows a loading area at the northeast corner of the site. Planning Staff has concerns with the ability to properly circulate trucks in and out of the loading area and around the building. The applicant must demonstrate how loading and unloading of delivery vehicles will safely occur within the site. The site has two access points off of Frontage Avenue to the east. Both accesses are 24 feet in width. Although staff has some reservations with the northern most access not lining up directly with the access to Coborns on the east side of Frontage Avenue, staff is not sure that there is any reasonable alternative. Parking Parking Requirements Use S . Footage Required Proposed Status Section 4200.9 of the Zoning Ordinance describes the required number of parking stalls for the proposed retail use as one parking stall per 200 square feet of building area. The proposed project exceeds the required amount of parking for the subject use. Section 1200.4 (18) requires that the site provide adequate on site space for snow storage in a manner that will not limit the minimum number of parking spaces.. The applicant must .submit a snow removal plan for staffs review. 28 •The dimensions of the proposed parking stalls are nine feet in width and 18 feet in length..Section 1200.4 (h) of the Zoning Ordinance requires that parking stallsbe20 feet in length.; The parking stalls of Albertville Crossings building "B" abutting the subject site to north are 20 feet in length with a 24 foot drive aisle width. The applicant must revise the plans to meet the parking stall dimension requirements. Trash Enclosure A trash enclosure is not currently identified on the site. The site plan should be revised to show a location of a shared trash enclosure that is screened from public view with materials complimentary with the building or extensive landscaping. The enclosure should be situated in a location that is not visible from any public ways. Landscaping The applicant has submitted a landscape plan for the subject site. The plan consists of five 2 '/ inch caliber Marshall Ash at fifty foot intervals along the west lot line, six 1 % inch caliber Snow Spring Crab trees at 30 foot intervals along the east property line, and a variety of shrubs and plantings along the east side of the building and around the proposed monument sign. Planning staff has reviewed the proposed landscape plan as to its compatibility with surrounding landscape plans and has determined that it should be revised as follows; • The striped triangular No Parking" area at the southwest corner of the building must be replaced with a curbed, landscaped, buffer area. A similar curbed triangular landscaped area must be provided in the place of the two parking stalls at the northwest corner of the proposed building. • A mixture of ornamental trees and shrubs should be added along the south' lot line. Lighting Exterior light fixtures are to be located atop both 17 and 21 foot poles. The two light fixtures along the northern lot line are shown on the photometric plan to be mounted on 17 foot poles at 90 degree cut-off. The five remaining, along both the west and south perimeters of the parking lot, are mounted on 21 foot poles with 25 degree angled lighting directed towards the parking area. The five light fixtures that are shown to be angled at25 degrees must be changed to a 90 degree cut-off. A photometric plan has been provided. Light emitted does not exceed one foot candle lighting beyond the center line of Frontage Avenue or County Road 19. Any lighting added to the exterior of the building should be hooded or controlled in some manner so as not to reflect light into adjacent right-of-ways. Signage Signage consists of a single monument sign as well as building frontage signs that singly identify the uses within the building. The proposed monument sign is located at the southwest corner of the subject site, along CSAH 19. The monument sign is approximately 19 feet in height. According to the approved PUD design standards, no monument sign is to be taller than 12 feet or have a tenant sign area exceeding 80 square feet. As such, the sign must be reduced in both height and signage area. The sign will have brick framing, constructed of the same brick material as that of the principal structure, and will consist of the names of the five retail uses to be located within the proposed building. The building is proposed to have wall signage on both the west and east sides of the building. This is compliant with the approved PUD standards, which allow wall signs on all street fronting sides of the structure. The area designated for wall signage, as shown in the building elevation plans, appear to be consistent with the requirement of not exceeding 15 percent of the building fagade coverage. Building plans The proposed multi -tenant retail building will provide space for five businesses. The building will have a primary •exterior consisting of brick facing. EIFS (Exterior insulation Finish System) is located above the windows and there is an approximately three foot strip of Stone Wainscoting along the base of the building. Metal cap flashing is located along the top of the building and blue vinyl canopies are located above the entrances. The applicant 29 has submitted colored elevation plans showing both "warm" and "cool" color schemes. Planning staff suggests that the warm color scheme be used as it will match the surrounding buildings in the area. The building materials are compliant with the Albertville Crossing Architectural Design Standards and should complement the materials used in the multi -retail building to the north of the subject site. The extended parapet walls should adequately screen any roof top equipment. RECOMMENDATION After review of the applicant's submittal, staff recommends approval of the site and building plans allowing the construction of a 11,948 square foot multi -tenant retail facility. This recommendation is based on the finding that the proposed project generally meets the requirements of the Zoning Ordinance as well as the approved PUD requirements, subject to the following conditions. 1. An access and cross easement agreement between the property owner of the subject site and the site abutting to the north must be submitted and approved by the City Attorney. 2. The applicant must demonstrate how loading/unloading of delivery vehicles will safely occur within the site. 3. The two parking stalls at the northwest corner of the building are to be replaced with -a curbed landscaped bumpout, providing the needed truck radius for safe truck mobility. The striped area at the southwest corner of the building is also to be replaced with a curbed landscaped bumpout. 4. The two eastern most parking stalls at the southeastern corner of the building are to be striped for loading and unloading use. 5. The applicant must submit a snow removal plan for staffs review and approval. , 6. The applicant must revise the plans to meet the parking stall dimension requirements. 8. The site plan must be revised to show a location of a shared trash enclosure that is properly screened and constructed of similar material to that of the principal structure. 9. The landscape plan must be revised to include a mixture or ornamental trees and shrubs along the south lot line. 10. All lighting must be 90 degree cut-off. Any lighting added to the exterior of the building must be hooded or controlled in some manner so as not to reflect light into adjacent right-of-ways. 11.1The proposed monument sign must be reduced to a maximum of 12 feet in height with a signage area non greater that 80 square feet. 12. The applicant should utilize the "warm" building fagade color scheme as opposed to the "cold" color scheme as shown on the building elevation plans. 13. All grading, drainage, and utility issues are subject to the review and approval of the City Engineer. 14. Comments of other City Staff. PC. Pete Carlson City 9 Engineer Mike Couri, City Attorney Ted Vasko, Midlands Development • David Medin, Architects Plus 30 • 12-22-03 CITY OF ALBERTVILLE City Council Findings of Fact & Decision Site and Building Plan Review Applicant's Name: Midlands Development Request: The applicant is requesting site and building plan review for a single story Multi - tenant retail building. Planning Commission Meeting Date: December9th, 2003 City Council Meeting Date: January 5, 2003 Findings of Fact: Based on review of the application and evidence received, the City Council now makes the following finding of fact and decision: A. The Planning Report dated December 4, 2003 prepared by NAC is incorporated herein. B. Comments from the City Engineer are incorporated herein. • C. The Planning Commission Recommendation for the application is incorporated herein. D. The site and building plans are consistent with the applicable provisions of the Albertville Zoning and Subdivision Ordinance as well as policies of the Comprehensive Plan. Decision: Based on the foregoing considerations and applicable ordinances, the Site and Building Plan Review is approved based on the most current plans, dated November 10 , 2003 and information received to date, subject to the following conditions: 1. An access and cross easement agreement between the property owner of the subject site and the site abutting to the south must be submitted and approved by the City Attorney. 2. The applicant must demonstrate how loading/unloading of delivery vehicles will safely occur within the site. 3. The two parking stalls at the northwest comer of the building are to be replaced with a curbed landscaped bumpout, providing the needed truck radius for safe truck mobility. The striped area at the southwest comer of the building is also to be replaced with a curbed landscaped bumpout. 4. The two eastern most parking stalls at the southeastern corner of the building are to be striped for loading and unloading use. 5. The applicant must submit a snow removal plan for staffs review and approval. 6. The applicant must revise the plans to meet the parking stall dimension requirements. 31 8. The site plan must be revised to show a location of a shared trash enclosure that is properly screened and • constructed of similar material to that of the principal structure. 9. The landscape plan must be revised to include a mixture or ornamental trees and shrubs along the south lot line. 10. All lighting must be 90 degree cut-off. Any lighting added to the exterior of the building must be hooded or controlled in some manner so as not to reflect light into adjacent right-of-ways. 11. The proposed monument sign must be reduced to a maximum of 12 feet in height with a signage area non greater that 80 square feet. 12. The applicant should utilize the "warm" building fagade color scheme as opposed to the "cold" color scheme as shown on the building elevation plans. 13. All grading, drainage, and utility issues are subject to the review and approval of the City Engineer. 14. Comments of other City Staff. Adopted by the Albertville City Council this 5th day of January 2003. City of Albertville By: Don Peterson, Mayor Attest: By: Bridget Miller, Clerk • 32 Ak NORTHWEST ASSOCIATED CONSULTANTS, INC. 5775 Wayzata Boulevard, Suite 555, St. Louis Paris, MN , 55416 Telephoner 952.595.9636 Facsimile: 952.595.9837 plannersgnacplanning.com MEMORANDUM TO: Albertville Planning Commission Larry Kruse, City Administrator FROM: John Glomski J Alan Brixius DATE'. 16, December 2003 RE: < Albertville — Towne Lakes 4t' Addition — Final Plan PUD, Final Plat, Vacation application NAC FILE: 163.06 03.27 BACKGROUND The purpose of this item is to continue consideration of the final plan PUD and final plat for Towne Lakes 0 Addition. The Towne Lakes PUD and 'preliminary plat were approved in March 2003. The request for final plan PUD and final plat has been continued several times as changes to the type, size, and layout of the site have been requested. The applicant is also requesting vacation of easements that were approved in Towne Lakes 3'd Addition. The following is an analysis of the plans submitted by the applicant on December 11th and December 12th in response to the conditions and revisions requested by the City Council in its December 1$t City Council meeting. Attached for reference: Exhibit A: Site Location Map Exhibit B: November 17, Site Plan A Exhibit C: November 17, Site Plan B Exhibit D: Final Plat Exhibit E: Building Elevation Exhibit F: Building Layout A Exhibit G: Building Layout B Exhibit F: Irrigation Plan ISSUES ANALYSIS Consistency with PUD Approval The PUD and preliminary plat approval for this portion of the Towne Lakes development included specific plans for the townhome units as designed by Kingman Building Company. . The conditions of PUD approval include, without limitation, the following: 33 1. All town homes shall be owner occupied. Deed restrictions and the recorded PUD agreement • shall prohibit rental units. 2. Each town home unit must have a separate utility connection to allow separate turn off and sewer connections through landscaped yards to the town homes. 3. Parking stalls must be provided for town homes in the southwestern portion of the plan. 4. Urban row town homes shall be of a design consistent with the Kingman plans. Building Plans and Site Layout. The Kingman building design has been replaced with an Urban Villa Townhome style. The City council approved this alternative townhome design style with a number of conditions. David Bernard Builders and Developers, builders of the proposed townhomes, have submitted revised plans to reflect the conditions and concerns brought forth in the December 1st City Council meeting. Westwood Professional Services has submitted a revised Plat. Planning Staff has reviewed the submitted plans and provides the following comments; Building Plans It was determined at the December 1$t City Council meeting that the exterior building materials would include a mix of vinyl lap siding, shakes, and stone accents and that the minimum unit floor area was to be 1,487 square feet. Rottlund Homes has submitted their building floor and elevation plans which appear to meet this requirement. Building setback and separation: The applicant must submit a site plan that shows a front building setback from the building to the public street right-of-way at 15 feet with a front porch encroachment having a minimum setback of 11 feet. The site plan must also show a minimum building setback of 25 feet with the following exceptions; • A 17-foot building separation is permitted between Units 22 and 23, Block 2; and units 27 and 28, Block 2 • (measured between the porches). The main building separation shall be 25 feet. • A 20-foot building separation is permitted between Units 4 and 5, Block I and units 10 and 11, Block 1 (measured between the porches). The main building separation shall be 25 feet. The revised site plan must show the building setback to the private alley as shows in the November 17th plans. Garage: As a condition of approval, the garage size of the townhome units were to be increased to a dimension of 24 feet deep by 18.5 feet wide, or 444 square feet. As shown in Exhibit F and G the applicant has revised the garage dimensions to meet this requirement. Private Alley Width Discussions at the December City Council meeting included the width of the private drives. It was determined that the private drive aisles should be expanded from the proposed 20 foot width, as shown on the November 17th site plan, to a 22 foot width. (shorten the driveways on each side of the street by one foot) The applicant has proposed two site layout options, one including a six foot wide landscaped island and the other without. It should be noted that the increased garage size as well as the decision of whether or not to have a landscaped median will require an adjustment in width of the private drive or the length of the driveway and the setback of the buildings to the private street. It is at the City Council's discretion as to which layout the applicant should follow. Things to consider include the minimal size of the landscaping area and any maintenance issues that may occur. Parking 19 off -site parking spaces are required per lots 1 and 2 of the site. The November 17th site plan shows 19 parking stalls. The applicant should provide a revised site plan showing the private street layout, as • determined by the City Council (median or no median) and the required parking stalls. 34 • ` Irrigation Plan: The applicant has submitted an irrigation plan that appears to be sufficient in handling the site. Final Plat Consistency with Preliminary Plat. The design of the final plat is generally consistent with that of the approved preliminary plat. The preliminary plat indicates common lots for the town homes while the final plat indicates individual unit lots. There will be 45 total townhome units (14 units of Block 1 and 31 units on Block 2). Boundary Adjustment and Vacation. To implement the plans as proposed, a boundary adjustment is proposed to increase the size of Block 1 (former Outlot B, Towne Lakes 3nd Addition by adding 12.16 feet to the southerly boundary of the block.) The adjustment results in a reduction of the area of Outlot A, Towne Lakes 3rd Addition, by approximately 3,040 square feet, necessary to accommodate the longer units, and increased private alley widths proposed for this phase of the PUD. Outlot A is owned by CPDC and is intended to provide future private open space for the homeowners within the PUD. In addition to the boundary adjustment, drainage and utility easements platted in the underlying Outiots B and C, Towne Lakes 3"d Addition are proposed to be vacated. The vacation sites approximate the; location of the proposed private street within the 4 h Addition final plat. The underlying easements need to be vacated because some of the proposed townhome units encroach within the previously platted drainage and utility easements. New drainage and utility easements are shown on the revised Towne Lakes 4th Addition Plat attached displayed as exhibits D. A vacation petition has been filed and the City Council can now hear any public input with regards to the vacation and make a final determination as to its acceptability. Planning Staff does not see any issues, as previously approved utility easements are not being used. Park and Trails. Park land dedication for the subdivision should be consistent with previous agreements. Grading, Drainage, and Utilities. Issues related to grading, drainage and utilities should be subject to comment and recommendation by the City Engineer. Lot 15, Block 1 and Lot 32, Block 2 are completely encumbered by a drainage and utility easement. As such, it will be necessary for all private improvements including porches, patios and the like, to be included within the unit lot as opposed to the common area. The grading, drainage, utility, erosion and transportation plans are to be reviewed and approved by the City Engineer. Development Agreement.- As part of final plat approval, the applicant will be required to enter into a development agreement with the City. RECOMMENDATION The proposed townhome unit design and PUD flexibility is generally consistent with the intent of the approved PUD. As such, Planning Staff recommends approval of the proposed vacation, final plan PUD, final plat, and , development agreement, with the following conditions; 1. The applicant must submit a revised site plan, displaying any and all revisions as required by the City Council. 2. The revised site plan must show a minimum building separationis 25 feet, with the following exceptions: a. A 17-foot building separation is permitted between Units 22 and 23, Block 2; and units 27 and 28, Block 2 (measured between the porches). b. A 20-foot building separation is permitted between Units 4 and 5, Block 1 and units 10 and 11, Block 1 (measured between the porches). 3. The site plan is to be revised to show the private drives at 22 feet in width. • 4. A revised color PUD plan (11 x 17') showing all changes outlined herein is submitted to the City. 35 5. Vacation • of the drainage and utility easements within the plat of Towne Lakes 3`d Addition. 6. All townhomes shall be owner occupied. Deed restrictions and the recorded PUD agreement shall prohibit rental units. 7. Each townhome unit must have a separate utility connection to allow separate turn off and sewer connections through landscaped yards to the town homes. 8. Grading, drainage, utility, erosion and transportation plans are reviewed and approved by the City Attorney. 9. Homeowner association documents and covenants are submitted for review and approval of the City Attorney. 10. The applicant enters into a development agreement with the City and pays all required fees, escrows and securities. Said development agreement shall be approved by the City Attorney. 11. Any other conditions identified by City Staff, City Council or other agencies responsible for review of the final plat. PC. Pete Carlson Mike Couri Dave Hempel • 36 • 12-16-03 CITY OF ALBERTVILLE City council Findings of Fact & Decision Final Plat, Final Plan PUD Applicant's Name: Contractor Property Developers Company — Towne Lakes 4 h Addition Request: The applicant is requesting Final Plan PUD and Final Plat approval for Towne Lakes 0 Addition. City Council Meeting Date: January 5, 2003 Findings of Fact: Based on review of the application and evidence received, the City Council now makes the following finding of fact and decision: A. The Planning Report dated November 26, 2003 prepared by NAC is incorporated herein. B. Comments from the City Engineer are incorporated herein. C. The Final Plan PUD and Final Plat are consistent with the approved Preliminary Plat and in compliance with the design standards of the Albertville Zoning and Subdivision Ordinance. .Decision: Based on the foregoing considerations and applicable ordinances, the Final Plan PUD and Final Plat to be known as "Towne Lakes a Addition" are approved based on the most current plans and information received to date, subject to the following conditions: 1. The applicant must submit a ,revised site plan, displaying any and all revisions as required by the City Council. 2. The revised site plan must show a minimum building separation is 25 feet with the following exceptions: a. A 17-foot building separation is permitted between Units 22 and 23 Block 2; and units 27 and 28, Block 2 (measured between the porches). b. A 20-foot building separation is permitted between Units 4 and 5, Block 1 and units 10 and 11, Block 1 (measured between the porches). 3. The applicant is to "submit revised floor plans showing garage size of 24 feet deep and 18.5 feet wide. 4. The site plan is to be revised to show the private drives at 22 feet in width. 5. A revisedcolorPUD plan (11 x 17') showing all changes outlined herein is submitted to the City. 6. Vacation of the drainage and utility easements within the plat of Towne Lakes 3`d Addition. 7. All townhomes shall be owner occupied. Deed restrictions and the recorded PUD agreement shall prohibit rental units. 8. Each townhome unit must have a separate utility connection to allow separate turn off and sewer • connections through landscaped yards to the town homes. 37 9. Grading, drainage, utility, erosion and transportation plans are reviewed and approved by the City • Attorney. 10. Homeowner association documents and covenants are submitted for review and approval of the City Attorney. 11. The applicant enters into a development agreement with the City and pays all required fees, escrows and securities. Said development agreement shall be approved by the City Attorney. 12. Any other conditions identified by City Staff, City Council or other agencies responsible for review, of the final plat. Adopted by the Albertville City Council this 5`b day of January 2004. City of Albertville By: Don Peterson, Mayor Attest: By: Bridget Miller, Clerk • 38 ..� IIIII • EH MEMORANDUM 1200 25th Avenue South, P.O. Box 1717, St.. Cloud, MN 56302-1717320.229.4300 800.572.0617 320.229.4301 FAX TO: Larry Kruse City Administrator Albertville, Minnesota FROM: Jim Schulz, PE Project Engineer DATE: December 30, 2003 RE: 2004.CSAH 37 Bike Path Preliminary Design Fee Proposal Albertville, Minnesota SEH No. A-ALBEV 0410 10 As requested, we prepared a fee proposal for the preliminary design of the CSAH 37 Bike Path. This project includes connecting an existing trail on the south side of CSAH 37 in the vicinity of Kahler Drive to an existing trail in the vicinity of Kalland Drive. The project will include preliminary plans and preliminary report. The specific work tasks are as follows: Preliminary Report: • Preliminary trail alignment, design, and recommendations. • Preliminary design of municipal utilities within proposed right-of-way. • Preliminary design for storrn sewer and culvert alignment. • Provide opinion of probable cost. Deliverables: • Bound report with location maps and recommendations. • 22" x 34" exhibit of the entire area with aerial photo in background. • Opinion of probable cost. Not included: • Geotechnical work. • Detailed survey. • Right-of-way platting. The items not included in this fee can be added as required based on the preliminary design. A modified proposal will be provided as required. Upon completion of the preliminary design work, and based on the City's schedule, we will provide a supplemental proposal to complete the final design, plans and specifications, and to proceed with the public bidding of this project. We propose an hourly fee not to exceed $3,000 for the tasks outlined above. If you have questions or would like additional information, please call me at 800.572.0617; • djg/cah 39 c: Tim Guimont, City of Albertville • John Middendorf, City of Albertville Pete Carlson, SEH Lorna Mathison, SEH u:\a\albev\030100\cr37 bike path\fee proposal -- prelim design.doc 40 MEMORANDUM 1200 25th Avenue South, P.O. Box 1717, St. Cloud, MN 56302-1717 320.229.4300 800.572.0617 320.229.4301 FAX TO: Larry Kruse City Administrator Albertville, Minnesota FROM: Jim Schulz, PE Project Engineer DATE: December 30, 2003 RE: 2004 CSAH 37 Bike Path Preliminary Design Fee Proposal Albertville, Minnesota SEH No. A-ALBEV 0410 10 As requested, we prepared a fee proposal for the preliminary design of the CSAH 37 Bike Path. This project includes connecting an existing trail on the south side of CSAH 37 in the vicinity of Kahler Drive to an existing trail in the vicinity of Kalland Drive.' The project will include preliminary plans and preliminary report. The pecific work tasks areas follows: es Preliminary Report: ort: � • Preliminary trail alignment, design, and recommendations. • Preliminary design of municipal utilities within proposed right-of-way. • Preliminary design for storm sewer and culvert alignment. • Provide opinion of probable cost. Deliverables: • Bound report with location maps and recommendations. • 22" x 34" exhibit of the entire area with aerial photo in background. • Opinion of probable cost. Not included: • Geotechnical work. • Detailed survey. • Right-of-way platting. The items not included in this fee can be added as required based on the preliminary design. A modified proposal will be provided as required. Upon completion of the preliminary design work, and based on the City's schedule, we will provide a supplemental proposal to complete the final design, plans and specifications, and to proceed with the public bidding of this project. We propose an hourly fee not to exceed $3,000 for the tasks outlined above. If you have questions or would like additional information, please call me at 800.572.0617. djg/cah 41 c: Tim Guimont, City of Albertville • John Middendorf, City of Albertville Pete Carlson, SEH Lorna Mathison, SEH u:\a\albev\030100\cr37 bike path\fee proposal — prelim design.doc • 42 ABERTVILLE SIGN LEASE THIS AGREEMENT, Made this day of - 2004, by and between THE - CITY OF ALBERTVILLE, "City" or "Lessor", and "Lessee". Lessor in consideration of the rents and covenants hereinafter mentioned, does hereby lease to the Lessee a double -sided 12-inch by foot sign face, to be displayed on either side of one of the sign spaces of the City's Community Sign (the "Sign") shown on the attached Exhibit A, said Sign located at the corner of Main Street and CSAH 37 in Albertville, Minnesota, subject to the following terms: 1. The term of this "lease `shall run from the date of this lease until December 31, 2. Lessor shall own the sign and sign faces at all times. 3. During the term of this lease, Lessee may display the sign faces on the City's Sign. The sign faces shall bear the inscription shown on the attached Exhibit B. Such inscription may not be changed without the prior written permission of the City Administrator. The sign faces shall be attached by the City in space number as shown on the attached Exhibit A. 4. The City shall reasonably maintain the sign faces and the Sign in good working order and shall light the sign daily from dusk until p.m. 5. Upon the signing of this lease, Lessee shall pay the City $ [prorated rent plus $400 for sign faces] as an initial rental fee from the date of this agreement until December 319 . Thereafter, Lessee shall pay the City $900.00 per year on every January 2nd during the term of this lease as an annual rental fee. 6. In the event the Lessee fails to pay its rent when due, the City may remove or cover the sign faces until said rent is paid. If the rent remains unpaid for a period of 30 days after the City mails notice to Lessee of rent due, the City may terminatethis lease and cover or remove from the Sign the sign faces which are the subject of this lease. The City may, at its option, keep the sign faces in place and seek full payment from Lessee. 7. Lessee agrees to pay the City's attorney fees and court costs in any action brought pursuant to a default of the terms of this lease by Lessee. LESSOR LESSEE CITY OF ALBERTVILLE 43 ■ Ax] b c r t v iIle Small Town Uving. 019 City life. TO: City Council FROM: Larry R. Kruse DATE: December 31, 2003 RE: Codification of the Ordinances BACKGROUND Back in 1992 the city completed a brief codification process as ordinances were not always published or managed very well. City Attorney Mike Couri stated it was done rather quickly • and thus was not the most outstanding effort but met the minimum requirments for legal standing. ISSUES ANALYSIS The City Code is the foundation of laws which the City operates. Albertville's code is need of a formal codification and the procedures in a codification project are: List out all provisions in your code and all your ordinances ➢ Determine what is still in effect Determine the organization, grouping like subjects together Edit and compile all the legislation ➢ Critique (legal review), looking for conflicts, inconsistencies and vague provisions ➢ Prepare a draft of the current legislation with our questions/suggestions embedded Submit the draft to you and work with you as to the changes to be made ➢ Provide sample legislation where your legislation is antiquated or where there is no legislation covering provisions you need ➢ Make changes, prepare for publication and index Publish the code in both hard and electronic format ➢ The code is adopted by ordinance of your mayor and city council ➢ Provide continuous supplement service to keep the code current The cost of approximately $12,000 is an issue and has not been budgeted for in 2004. Typically, the codification process can take a year or so to complete and does require a significant amount of staff time to complete. • Benefits of Codification include: 45 1) Provides an ordinance review to insure all ordinances are compliant with current • standards. 2) Provides residents, city council, city staff, legal council ,and law enforcement agencies a reliable source for information. 3) Provides a process to Insure that all ordinances have been published and have legal standing. 4) Can be published on the internet and available in electronic format 5) Web publication can save staff time by making the code available 24-7. RECOMMENDATION Move to authorize the City Administrator to enter into an agreement with Sterling Codifiers on a unit rate not to exceed $12,000 and to amend the 2004 budget to reflect this addition with funds to come from general fund contingencies or reserves. 46 •- 7600 Mineral Drive Coeur d'Alene, ID 83815 800-338-7458 208-762-9140 fax www.sterlingcodifiers.com email: sterlins@sterlingcodifiers.com B. a -memo To: Larry Kruse, Administrator City of Albertville From: Bobbi Rollins President & CEO email: albertvillecit 2 earthlink.net Date: December 23,_2003 Phone 763-497-4313 Re: Codification services Thanks for your sending your code and ordinances. You do need help! To refresh you, our procedures in a codification project are: List out all provisions in your code and all your ordinances ➢ Determine what is still in effect Determine the organization, grouping like subjects together Edit and compile all the legislation . ➢ Critique (legal review), looking for conflicts, inconsistencies and vague provisions ➢ Prepare a draft of the current legislation with our questions/suggestions embedded ➢ Submit the draft to you and work with you as to the changes to be made Provide sample legislation where your legislation is antiquated or where there is no legislation covering provisions you need Make changes, prepare for publication and index ➢ Publish the code in both hard and electronic format ➢ ` The code is adopted by ordinance of your mayor and city council Provide continuous supplement service to keep the code current On your part, you will have to go over all our questions and indicate to us the changes you want to make. We can help you with samples and wording, but changes need to be directed and authorized by you. I'm surprised at the amount of legislation that you do have. It's quite a bit for a community of your size. It would appear that the final code would be in the neighborhood of 600 pages, so we estimate the total project to cost in the neighborhood of $12,000. Due to the time involved in such a project, payments can be structured into two budget years. In just a cursory review of your ordinances, it appears that the following numbers are missing. This could have an impact on the cost, but they are probably ordinances that were never passed: 1992-4, 5 and 6 1994-3 1999-5 2000-14 2001-5 2002-3, 13, 15 and 16 2003-3, 13 and 15 47 • DRAFT DATED DECEMBER 23 2003 DEVELOPER'S\PLANNED UNIT DEVELOPMENT AGREEMENT\ CONDITIONAL USE AGREEMENT Albertville Dental Addition THIS DEVELOPMENT AGREEMENT is entered into this day of April, 2002 by and between ALBERTVILLE DENTAL MEDICAL, LLC, a Minnesota limited liability company referred to herein as "Developer"; and the CITY OF ALBERTVILLE County of Wright, State of Minnesota, hereinafter referred to as "City all of which are collectively referred to herein as "the Parties"; WITNESSETH: WHEREAS, Developer is the fee owner of the parcels of land described in Exhibit A; attached hereto and incorporated herein by reference, which parcel(s) of land are proposed to be subdivided and platted for development, and which subdivision, which is the subject of this Agreement, is intended to bear the name "Albertville Dental Addition The real property described in Exhibit A shall hereinafter be referred to as the "Subject Property" or "Said Plat"; and WHEREAS, Developer has applied for a Planned Unit Development ("PUD") to be established on Said Plat; and WHEREAS, Developer has applied for a`Conditional Use Permit ("CUP") to allow for flexibility from the strict requirements of the City's impervious surface standards with regard to Said Plat; and WHEREAS, the City has given final approval of Developer's plat, PUD and CUD requests of Albertville Dental Addition contingent upon compliance with certain City requirements including, but not limited to, matters set forth herein; and WHEREAS, the City requires that certain public improvements including, but not limited to curb and -gutter, grading, sanitary sewer, municipal water, and storm sewer (hereafter "Municipal Improvements") be installed to serve the Subject Property and other properties affected by the development of Developer's land, to be financed by Developer and • WHEREAS, the City further requires that certain on- and off site improvements be installed by the Developer within the Subject Property, which improvements consist of top 1 soil and sod, grading control per lot, bituminous or concrete parking area, storm water ponding municipal water sanitary sewers storm sewers drains a swales street cle g5 anup during project development, erosion control, and other site -related items; and WHEREAS, this Agreement is entered into for the purpose of setting forth and memorializing for the parties and subsequent owners, the understandings and agreements of the parties concerning the development oftheSubject Property; NOW, THEREFORE, IT IS HEREBY AND HEREIN MUTUALLY AGREED, in consideration of each party's promises and considerations herein set forth, as follows: 1. Construction of Municipal Improvements A. The Developer shall construct those Municipal Improvements located on and off Said Plat as detailed in the Plans and Specifications for Albertville Dental, as prepared by Quality Site Design dated 5 2003 and on file with the City Clerk, said improvements to include installation of water mains, sanitary and storm sewers, storm water ponding and site grading, and trails. All such improvements shall be constructed according to the standards adopted by the City, along with all items required by the City; Engineer. Unless the City Engineer specifies a later date, said improvements shall be installed by , 2004. B. The Developer warrants to the City for period of two years from the date the City accepts the finished Municipal Improvements that all such improvements have been constructed to City standards and shall suffer no significant impairments, either to the structure or to the surface or other usable areas due to improper construction, said warranty to apply both to poor materials and faulty workmanship. C. Developer shall provide the City with lien waivers from all contractors and subcontractors engaged to construct said improvements on Said Plat. Should Developer fail to provide the City with all applicable lien waivers, the City reserves the right to draw upon Developer's surety and pay any contractors who performed work on any Municipal Improvements and whom Developer has failed to fully pay for the performance of said work. D. The City shall, at its option, have the City Engineer present on Said Plat for inspection purposes at all times (or such times as the City may deem necessary) during the construction and installation of said Municipal • 2 Improvements. Develo per oper agrees to pay for all: costs incurred by the City during said inspections. 2. Construction of On- and Off -Site Improvements A. ` Developer shall construct- all on- and off -site - improvements including installation of boulevards, yard top soil, sod and seed in all lots, grading control per lot, bituminous or concrete driveways, storm water ponding, municipal water, sanitary sewers, storm sewers, drainage swales, private streets, berming, and like items as necessary, street cleanup during project development, and erosion control, all as required by City ordinance including those items shown on the Utility Plan (attached hereto as Exhibit B) and the Grading Plan (attached hereto as Exhibit C). All such improvements shall be constructed according to the plans and specifications dated as prepared by Quality Site Design, LLC, and according to the standards adopted by the City,along with all items required by the City Engineer and/or City Planner. -Unless the City Engineer` specifies a later date, said improvements shall be installed no later than October 31, 2004, with the exception of erosion control, which shall be installed immediately upon initial grading of Said Plat, and with the exception of the final layer of bituminous pavement on the parking lot, which may be placed no later than June 30, 2003. B. , Developer shall, at its own expense, cause the following items to be installed within the development, all such items to be installed under ground, within the street right of way or such other location as may be approved by the City Engineer, accessible to all lots and in compliance with all applicable state and local regulations: i. Electrical power supply, to be provided by Xcel Energy or other such carrier; - ii. Natural gas supply, to be provided by Reliant Energy or other such carrier; iii. Telephone service, to be provided by Sprint/United Telephone Company or other such carrier; In addition, the Developer shall, at its own expense, cause streetlights and street signs to be of such type and to be installed at such locations as required by the City Engineer and in conformance with the Manual on Uniform Traffic Control Devices. 3 C. Developer shall install silt fencing in back of all curbing within 30 days after said curbing is installed, or 7 days after the "small utilities" (gas, phone, electrical and cable television) have been installed, whichever occurs sooner. Developer shall be allowed to substitute hay bales for a 22-foot section of silt fencing on each lot for the purpose of allowing construction vehicles to pass from the street to each lot. No construction vehicles shall pass from the street to the lots except through such designated 22-foot section of hay bales. Developer shall remove all hay bales and silt fencing from each lot as sod is installed upon said lot. D. Notwithstanding the requirements of subparagraph 3A above, the Developer or its successor shall install to the City's satisfaction improvements for each respective lot or parcel prior to the date that a certificate of occupancy (temporary or permanent) is issued by the City for a building located on such lot, unless the certificate of occupancy is issued after October l st and before March 30th in any given year, in which case a certificate of occupancy shall be issued only if the owner of the lot has entered into an escrow agreement with the City and provided an escrow for 150% of the estimated cost of said improvements for such lot pursuant to City Ordinance. E. All said Improvements shall be installed at Developer's expense. If the City determines that it is necessary to have the City Engineer or other inspector on site for any portion of the installation of said Improvements, Developer shall reimburse the City for all inspection costs incurred by the City. 4. Surety Requirements. A. Developer will provide the City with an irrevocable letter of credit (or other surety as approved by the City Attorney) as security that the obligations of the Developer under this contract shall be performed. Said letter of credit or surety shall be in the amount of $ representing the sum of 100% of the estimated cost of the Municipal Improvements {$ ); 50% of the on and off -site improvements ($ ,, and 150% of the estimated cost for landscaping/screening materials ($ ). Said letter of credit or surety must meet the approval of the City attorney as to form and issuing bank. B. The City may draw on said letter of credit or surety to complete work not performed by Developer (including but not limited to on- and off -site improvements, erosion control, and other such measures), to pay liens on property to be dedicated to the City, to reimburse itself for costs incurred in 4 • • the drafting, execution, administration or enforcement of this Agreement, or to otherwise fulfill the obligations of Developer under this agreement. C. In the event that any cash, irrevocable letter of credit, or other surety referred to herein is ever utilized and found to be deficient in amount to pay or reimburse the City in total as required herein, the Developer agrees that upon being billed by the City, Developer will pay withinthirty (30) days of the mailing of said billing, the said deficient ' amount. ` If there should be an overage' in the amount of utilized security, the City will; upon making said determination, refund to the Developer any monies which the City has in its possession which are in excess of the actual costs of the project as paid by the City. D. Developer hereby agrees to allow the City to specially assess Developer's property for any and all costs incurred by the City in enforcing any of the terms of this agreement should Developer's letter of credit or surety prove insufficient or should Developer fail to maintain said letter of credit or surety in the amount required above within 30 days of mailing of written request by the City. Should the City assess Developer's property for said costs, Developer agrees .not to contest or appeal such assessment and waives all statutory rights of appeal under Minnesota Statutes, including Minnesota Statute 429.081 E. That portion- of said cash, irrevocable letter of credit or other surety with respect to the performance of Site Improvements shall be released upon certification of the City Engineer and approval of the City Council that all such items are satisfactorily completed pursuant to this Agreement. F. In the event a surety referred to herein is in the form of an irrevocable letter of credit, which by its terms may become null and void prior to the time at which all monetary or other obligations of the Developer are paid or satisfied, it is agreed that the Developer shall provide the City with a new letter of credit or other surety, acceptable to the City, at least forty-five (45) days prior to the expiration of the original letter of credit. If a new letter of credit is not received as required above, the City may without notice to Developer declare a default in the terms of this Agreement and thence draw in part or in total, at the City's discretion, upon the expiring letter of credit to avoid the doss of surety for the continued obligation. The form of any irrevocable letter of credit or other surety must be approved by the City Attorney prior to its issuance. 5. Surety Release. 5 • A. Periodically, as payments are made by the Developer for the completion of portions of the Municipal Improvements and/or on- and off -site Improvements, and when it is reasonably prudent, the Developer may request of the City that the surety be proportionately reduced for that portion of the Municipal Improvements and on and off --site improvements which have been fully completed and payment made therefore. All such decisions shall be at the discretion of the City Council. The City's cost for processing reduction request(s) shall be billed to the Developer. Such cost shall be paid to the City within thirty (30) days of the date of mailing of the billing; B. The Developer may request of the City a reduction or release of any surety as follows: i. When another acceptable letter of credit or surety is furnished to the City to replace a prior letter of creditor surety. ii. When all or a portion of the Municipal Improvements or the on- and off -site improvements have been installed, the letter of credit or surety may be reduced by the dollar amount attributable to that portion of improvements so installed, except that the City shall retain the letter of credit or surety in the amount of 10% of the estimated construction price of the Municipal Improvements during the first year of the warranty period and 5% of the estimated construction price of the Municipal Improvements during the second year of the warranty period. Developer may substitute a warranty bond acceptable to the City Attorney for the warranty letter of credit in the same amounts and duration as required for the warranty letter of credit. iii. As to all requests brought under this paragraph, the City Council shall have complete discretion whether to reduce or not to reduce said letter of credit or surety. C. The costs incurred by the City in processing any reduction request shall be billed to the Developer and paid to the City within thirty (30) days of billing. 6. Use of Property. Developer's use of Said Plat shall be consistent with the following restrictions, which shall be effective until the planned unit development/conditional use permit is amended by the City Council: • A. Developer agrees to limit p gr t the use of the buildings to be located on said Plat to professional offices, commercial offices, and medical offices permitted in the City's B-2A zoning district. B. Developer shall construct one building each on Lots 1, 2 and 3, , Block 1 of Said Plat in substantially the same size, shape, location and of substantially the same materials as shown on the attaches Exhibit D, and Developer shall construct all parking and other improvements shown on said Exhibit E. C. The Developer may erect signage and monuments (ground signs) consistent with those shown on the attached Exhibit F and in the locations as shown on the attached Exhibit F. D. Lightingfixtures on Said Plat shall have flat lenses and pole heights shall be limited to thirty feet. E. Developer shall establish an access, drainage, utility and parking easement agreement providing for access to all lots on Said Plat (including outlots) over the private roadways shown on Exhibit E. Said easement must meet the approval of the City Attorney and be recorded on the property records of all lots and outlots • within Said Plat at the Wright County Recorder's Office. F. If at the time the property immediately adjacent to the western border of Said Plat ("Western Property") develops, the City requires that said Western Property access CSAH 18 through Said Plat, Developer shall establish an access easement in favor of the Western Property providing access through the drive lanes on Said Plat. Said easement must meet the approval of the City Attorney and City Engineer, and be recorded on the property records of all lots and outlots within Said Plat at the Wright County Recorder's Office. G. The Developer shall establish a building owner's association via a recorded covenant for this Development. The Developer shall file the building owners association covenants against all Lots in Said Plat and subsequent plats in the Development, said covenants and agreements are to be submitted to the City Attorney for review and approval and shall be subject to the requirements of Section 1100 and 2700 of the City Zoning Ordinance. H. Said building owner's association shall provide for maintenance of all of the following items located within Said Plat: common areas, all outlots, all trees along all boulevards, all drive isles and parking areas, all trails, curb, gutter, and • storm water ponds, if any within Said Plat. Said items shall be maintained by the building owner's association in perpetuity.` Said building owner's association 7 shall also enforce all provisions of this Agreement which regulate the use of 0 individual lots and shall take all necessary action to ensure that all lots are being used in a manner consistent with the terms of this Agreement. I. Said building owner's association shall provide forthedemarcation of all wetland buffers with permanent markers. The markers shall be maintained by the building owner's association in perpetuity. The markers must advise property owners of the wetland buffers and that property owner's must leave the area in its native vegetative state as shown on the landscaping plan attached as Exhibit G. The type of markers to be installed must be approved by the City Engineer. J. Except as otherwise provided in this Agreement, upon the failure by building owner's association to properly maintain or repair the items outlined in paragraphs 6. H & I above (as determined by the City), the City shall give Developer and building owner's association thirty (30) days mailed notice thereof (via certified mail), and if such default is not cured within said thirty (30) day period, the City is hereby granted the right and the privilege to fix any deficiencies governed by this Agreement and bill the building owners' association for said costs. The thirty (30) day notice period shall be deemed to run from the date of deposit in the United States Mail. Upon failure to cure by the building owners' association, the City may thence immediately and without notice or consent of the Developer or building owner's association complete their obligations under this Agreement, and specially assess the costs thereof against the lots within Said Plat and/or bring legal action against the building owner's association to collect any sums due to the City pursuant to this Agreement, plus all costs and attorney's fees incurred in enforcing this agreement. Developer, property owners and building owner's association knowingly and voluntarily agree not to contest or appeal such assessment and waive all statutory rights of appeal under Minnesota Statutes, including Minnesota Statute 429.081. K. Developer shall install landscaping in accordance with the plan attached hereto as Exhibit G. All improvements required to be installed under this paragraph shall be installed at Developer's expense. Developer shall guarantee that all such landscaping shall survive for at least two years, and Developer shall replace any landscaping which dies during said two-year period. L. Prior to the issuance of a building permit for any buildings on Said Plat, Developer shall submit a site plan, landscape plan, lighting plan, and signage plan acceptable to the City for each lot to be built upon, and, upon issuance of the building permit, shall adhere to such approved site plan, landscape plan, lighting plan and signage plan. All improvements required to be installed under this paragraph shall be installed at Developer's expense. • R • M. Developer shall have one access onto the property from C.S.A.H. 18 as shown on Exhibit E. The access shall be constructed according to the plans and specifications dated , 2003 as prepared by Quality Site Design, LLC, as shown on Exhibit E and according to the standards adopted by the City, along with all items required by the City Engineer and/or City Planner. 7. Maintenance of Streets, Utilities and PondiM A. The interior drive aisles, curb, gutter, municipal water, sanitary sewer, storm sewer, and ponds, if any, in Said Plat shall remain private and the cost of maintenance of these items must be borne by the lots in Said Plat in accordance with the terms of the building owner's agreement. B. The City shall have the right to enter upon all easement areas at any time for inspection and maintenance purposes. 8. Abandonment of Project - Costs and Expenses In the event Developer should abandon the proposed development of the Subject Property; the City's costs and expenses related to attorney's fees, professional review, drafting of this Agreement, • preparation of the feasibility report, plans and specifications, and any other expenses • undertaken m reliance upon Developer's various assertions shall be paid by said Developer within thirty (30) days after receipt of a bill for such costs from the City. In addition, in the event the Developer abandons the project, in whole or in part, ceases substantial field work for more than nine (9) months, fails to provide sufficient ground -cover to prevent continuing soil erosion from the Said Plat, or fails to leave the abandoned property in a condition which can be mowed using conventional lawn mowing equipment, Developer agrees to pay all costs the City may incur in taking whatever action is reasonably necessary to providelground-cover and otherwise`'restore Said Plat to the point where undeveloped grounds are level and covered with permanent vegetation sufficient to prevent continuing soil erosion from Said Plat and to facilitate mowing of Said Plat. In the event that said costs are not paid, the City may withdraw funds from the above -mentioned surety for the purpose of paying the costs referred to in this paragraph. 9. Developer to Pay Gly's Costs and Expenses It is understood and agreed that the Developer will reimburse the City for all reasonable administrative, legal, planning, engineering and other professional costs incurred in the creation, administration, enforcement or execution of this Agreement and the approval of Said Plat, as well as all reasonable engineering expenses incurred by the City in approving and inspecting said Improvements described above. Developer agrees to pay all such costs within 9 A days of billing by the City. Developer has the right to request time sheets or work • records to verify said billing prior to payment. 10. Erosion and Siltation Control. Before any grading is started on any site, all erosion control measures as shown on the approved; Grading, Drainage and Erosion Control Plan shall be strictly complied with as set forth in the attached Exhibit C, and as required by City ordinance. Developer shall also install all erosion control measures deemed necessary by the City Engineer should the erosion control plan prove inadequate in any respect. 11. Maintain Public Property Damaged or Cluttered During Construction. Developer agrees to assume full financial responsibility for any damage which may occur to public property including but not limited to streets, street sub -base, base, bituminous surface, curb, utility system including but not limited to watermain, sanitary sewer or storm sewer when said damage occurs as a result of the activity which takes place during the development of Said Plat. The Developer further agrees to pay all costs required to repair the streets and/or utility systems damaged or cluttered with debris when occurring as a direct or indirect result of the construction that takes place in Said Plat. In the event the Developer fails to clean up, maintain or repair the damaged public property mentioned above, the City shall provide the Developer with a Notice of its intent to clean up, repair, or maintain such public property. Developer shall have ten (10) days from the date of mailing of such notice to effect such clean up, repair or maintenance of said public property to the satisfaction of the City Council, provided, however, that Developer shall immediately clean up or repair any public property damage deemed by the City Engineer to be an imminent safety hazard or an imminent cause of pollution or water quality degradation. In the event that Developer fails to so clean up, repair or maintain said public property, the City may undertake making or causing it to be cleaned up, repaired or maintained. When the City undertakes such activity, the Developer shall reimburse the City for all of its expenses within thirty (30) days of its billing to the Developer. If the Developer fails to pay said bill within thirty (30) days, funds sufficient to pay the bill may be specially assessed against the lots within Said Plat upon which the subject development activities are ongoing. 12. Temporary Easement Rights. Developer shall provide access to the Subject Properly at all reasonable times to the City or its representatives for purposes of inspection or to accomplish any necessary work pursuant to this Agreement. 13. Miscellaneous. • A. Developer agrees that all construction i P �' terns required under. this: Agreement are items for which Developer is responsible for completing and all work shall be done at Developer's expense. B. If any portion, section, subsection, sentence, clause, paragraph or phrase of this Contract is for any reason held invalid by a Court of competent jurisdiction, such decision shall not affect the validity of the remaining portion of this Contract. C. If building permits are issued prior to the completion and acceptance of public improvements, the Developer assumes all liability and the costs resulting in delays in completion of public improvements and damage to public improvements caused by the Developer, its contractors, subcontractors, materialmen, employees, agents, or third parties during construction of improvements on Said Plat. D. The action or inaction of the City shall not constitute a waiver or amendment to the provisions of this Contract. To be binding, amendments or waivers shall be in writing, signed by the parties and approved by written resolution of the City Council. The City's failure to promptly take legal action to enforce this Contract shall not be a waiver or release. E. This Contract shall run with the land and shall be recorded against the title to the property. F. The Developer represents to the City that Said Plat complies with all City, county, state and federal laws and regulations, including but not limited to: subdivision ordinances, zoning ordinances, and environmental regulations. If the City determines that Said Plat does not comply, the City may, at its option, refuse to allow construction or development work in the plat until the Developer so complies. Upon the City's demand, the Developer shall cease work until there is compliance. G. Prior to the execution of this Agreement and prior to the start of any construction on the Subject Property, Developer shall provide the City with evidence of good and marketable title to all of Subject Property. Evidence of good and marketable title shall consist of a Title Insurance Policy or Commitment from a national title insurance company, or an abstract of title updated by an abstract company registered under the laws of the State of Minnesota. H. Developer shall comply with all water and wetland related restrictions, if any, • required by the City of Albertville and/or any applicable provisions of State and Federal law. I. Developer shall not place any structure at an elevation such that the lowest grade opening is less than two feet above the highest known surface water level or ordinary high water level or less than one foot above the 100-year flood level of any adjacent water body or wetland. If sufficient data on high water levels is not available, the elevation of the line of permanent aquatic vegetation shall be used as the estimated high water elevation. When fill is required to meet this elevation, the fill shall be allowed to stabilize and construction shall not begin until the property has,been approved by the Building Inspector or a professional soils engineer. J. If required by the City Fire Chief, the owner of any lot in Said Plat on which a building is proposed to be constructed shall provide the City Fire Chief with a detailed analysis of the proposed building's compliance with the fire code then in force in the City, or, at the election of the City Fire Chief, said owner shall pay the reasonable cost of such an analysis if performed by or for the City. 14. Dedications to the City. A. The Developer, upon presentation to the City of evidence of good and marketable title to Subject Property, and upon completion of all construction work and certification of completion by the City Engineer, shall make the following dedications to the City: I. Developer shall dedicate drainage and utility easements to the City over, under and across Outlot A located in Said Plat as the same are identified on the attached Exhibits C and E. In the event taxes are not kept current on Outlot A, the Developer shall, at the City's request, deed Outlot A to the City. 2, Developer shall dedicate to the City all drainage and utility easements shown on Said Plat. 3. Developer shall dedicate to the City the trail easement located in Said Plat as identified on the attached Exhibit E. B. Developer acknowledges and agrees that in order to satisfy the City's park . dedication requirements for Said Plat, Developer shall pay $5,000.00 per acre 12 • for all land located on Said Plat. Said Plat n i co s sts of acres.. Therefore, Developer shall pay the City a cash payment totaling $ to satisfy the City's park dedication ordinance. 15. Indemnity. Developer shall hold the City and its officers, employees and agents harmless from claims made by Developer and Third Parties for damages sustained or costs incurred resulting from Said Plat approval and development. The Developer shall indemnify the City and its officers, employees and agents for all costs, damages or expenses which the City may pay or incur in consequence of such claims, including attorney's fees. Third parties shall have no recourse against the City under this contract. 16. Assignment of Contract. The obligations of the Developer under this Contract cannot be assigned without the express written consent of the City Council through Council resolution, except as expressly permitted elsewhere in this Agreement. i17. Agreement Effect. This agreement shall be binding upon and extend to the representatives, heirs, successor and assigns of the parties hereto. 18. Violation of Agreement. A. In the case of default by the Developer, its successors or assigns, of any of the covenants and agreements herein contained, the City shall give Developer thirty (30) days mailed notice thereof (via certified mail), and if such default is not cured within said thirty (30) day period, the City is hereby granted the right and the privilege to declare any deficiencies governed by this Agreement due and payable to the City in full. The thirty (30) day notice period shall be deemed to run from the date of deposit in the United States Mail. Upon failure to cure by Developer, the City may thence immediately and without notice or consent complete some or all of the Developer's obligations under this Agreement, and bring legal action against the Developer to collect any sums due to the City pursuant to this Agreement, plus all costs and attorney's fees incurred in enforcing this agreement.The City may also specially assess all said costs incurred upon default against the properties in Said Plat pursuant • to the terms of this agreement, provided that the City shall not assess the First Phase Properties pursuant to this paragraph unless said default concerns a 13 condition of, or activity or omission upon the First Phase Properties, or is • related to the First Phase Properties or is related to the use of the First Phase Properties. B. Notwithstanding the 30-day notice period provided for in paragraph 17(A) above, in the event that a default by Developer will reasonably result in irreparable harm to the environment or to public property, or result in an imminent and serious public safety hazard, the City may immediately exercise all remedies available to it under this agreement in an effort to prevent, reduce or otherwise mitigate such irreparable harm or safety hazard, provided that the City makes good -faith, reasonable efforts to notify the Developer as soon as is practicable of the default, the projected irreparable harm or safety hazard, and the intended actions of the City to remedy said harm. C. Breach of any of the terms of this Contract by the Developer shall be grounds for denial of building permits and/or occupancy permits until said breach is remedied; provided, however, that building permits shall not be denied or withheld pursuant to this Section 19.0 with respect to improvements proposed to be constructed upon the First Phase Properties unless said breach concerns a condition of, or activity or omission upon the First Phase Properties, or is related to the First Phase Properties or is related to the use of the First Phase Properties. 19.. Phased Development. If the plat is a phase of a multi -phased preliminary plat, the City may refuse to approve final plats of subsequent phases if Developer is in breach of this Agreement. Development of subsequent phases may not proceed until Development Contracts for such phases are approved by the City. Approval of this phase of the Development shall not be construed as approval of future phases nor shall approval of this phase bind the City to approve future Development phases. All; future Development phases shall be governed by the City's Comprehensive Plan, Zoning ordinance, Subdivision ordinance, and other ordinances in effect at the time such future Development phases are approved by the City. 20. Limited Approval. Approval of this Agreement by the City Council in no way constitutes approval of anything other than that which is explicitly specified in this Agreement. • 14 • 21. Professional Fees. The Developer will pay all reasonable professional fees incurred by the City as a result of City efforts to enforce the terms of this Agreement. 'Said fees include attorney's fees, engineer's fees, planner's fees, and any other professional fees incurred by the City in attempting to enforce the terms of this Agreement. 22. Plans Attached as Exhibits. All plans attached to this Agreement as Exhibits are incorporated into this Agreement by reference as they appear. Unless otherwise specified in this Agreement, Developer is bound by said plans and responsible for implementation of said plans as herein incorporated. 23. Integration Clause; Modification by Written Agreement Only. This Agreement represents the full and complete understanding of the parties and neither party is relying on any prior agreement or statement(s), whether oral or written. Modification of this Agreement may occur only if in writing and signed by a duly authorized agent of both parties. 24. Notification oti canon Informat►on. Any notices to the parties herein shall be in writing, delivered by hand (to the City Clerk for the City) or registered mail addressed as follows to the following parties: City of Albertville c/o City Clerk P.O. Box 9 Albertville, MN 55301 Telephone: (763) 497-3384 Albertville Dental Medical, LLC Telephone: 25. Agreement Effect. This Agreement shall be binding upon and extend to the representatives, heirs, successors and assigns of the parties hereto. 15 • THIS DEVELOPMENT AGREEMENT is executed and delivered as of the date first above written. CITY OF ALBERTVILLE, By It's Mayor By It's Clerk ALBERTVILLE DENTAL MEDICAL, LLC By Its President STATE OF MINNESOTA ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this day of , 2003, by Donald Peterson as Mayor of the City of Albertville, a Minnesota municipal corporation, on behalf of the city and pursuant to the authority of the City Council. Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF WRIGHT ) • 16 • The foregoing instrument was acknowledged before me this day of 2003, by Bridget Miller, as Clerk of the City of Albertville, a Minnesota municipal corporation, on behalf of the'cityand pursuant to the authority of the City Council. Notary Public STATE OF MINNESOTA ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this day of 2003, by as of Albertville Dental Medical, LLC. • Notary Public EXHIBIT A TO DEVELOPER'S AGREEMENT • The legal description of the Plat to which this Developer's Agreement applies is as follows: Lot 1-3, Block 1 Outlot A All said property is located in Albertville Dental Addition, City of Albertville, County of Wright, State of Minnesota. • 18 EXHIBIT B Utility Plan Exhibit C Grading, Drainage and Erosion Control Plan Exhibit D Front and Rear Elevations for Buildings Exhibit E Site Plan and Elevations Exhibit F Signage and Monument Plan Exhibit G Landscaping Plan DEVELOPER, ALBERY, DENTAL NEDKA' I.. LLC 44 5-1 EE \ �.. IXOELSK)R MNJ J1 .JERKY BRECKE04 O '8 Lu m � CUD 21•�inRx ... LL2 DDN ••.+++.. run 2 stow% 3. *OwNsr.r /]D, 9RET 7 \�\ `\\\\ \ '.` �.4 P.wc¢.wG: 7g2y9 ✓ auc arw DEVELOPER: AIMED O£ DEN7ALLC \ PMCFL AIIEI 1 \\ \ C, 7Ea �S \ �\ \ EKCEL. t* MNSTNEE7 ss73� PH. (952) 474-5204 -_- • ��'\\ \\''V� \\�\ JERRY MECXE LwIN tl \ oQgIQ M 11r4: ¢fla1Mw J � � € e LLJ co Ai' �44 i i Y � "°`•• ,•rawr+r ew. w �...w,u.., a �. awii�-\ 4 : \ v \ 1. �.�• c.+. ,...., o.. ........ Zi. f xme¢ t t � 1 1 _3 i ��: N � '.•."'.�''"""+.�`w.w �'w w..+" �i �'0#.4 .. ^�`9s• /' .�� � �. +,"+w w� � r"°"'v..... M+.:.`+`.+w".,.`T..'....w� 1��3? I , t Erl58r{E a i ; ` �` \ I I I (w aern, -I -_•� ritl�aa'ft� / � L I I i Y, POND ,NWL=9 )I�(r I . \ I 'd41Oawu.art°Q�a m�P.¢ mrrr Hw1 LDGnoN Pn£ nv. ay.n PNR Oi S¢EY x a ? went �GQQ4C. - V EP57 E4'VATION Q. � p L d NORTH MCVATION �V (IOU, AMD um 3i CAI G, Pin O STAIR SECTION - to 60 Mg A h a :' � «+."`�" y ��,'�`, t i rYu.''Y i r�k•,�` 1 S 4•/�r, � o u �y i i i ry'Yy, i O N _ 9 t 4A10!5 I yl 7 L Mr o ti r -- ----t r_ taa a _ 3N �3 R OOR PLAN ? �=."..... �.""'M"�'.....�`....'� .awe ,. I • * _ >r.. .....�......�...�.` ��.����, �`�• - wwr — IP-71 OWatory Paueat A—mbtyzz % e ^ ,� . �• ww>wr »x�>e _ r aw>...� r.w`w� r w � am. r"' w'�. ""•...w Z U .AK''Ji • wnr: ' r.. _144Q4C ------ south w MAST BtVATION a - rest QL�4AT70N NOR7F1 B.NATION y $$� <uJ no. . - �fswc �ItCirt sTAI rLOOR CLAN � �i If �� J STAIR OW DENTALC,21 -5204co KE0-00.0 Zfwwy,QP°"°Tx"a sTAnnaas:iKdgM"{�esw ,a(sw)ft-V weed' - n/w ra• TXT (ne+Za,o• wxsww wr I8 a II v L\ ' / 9 \\\ PNanxc PRpwCm. ss sears 2 � 9 �ya 7 / d$ . 9 TMd Spxa.. ,T 8 gwa _ i y d. max. w� dw 4a„ LQQTTOy_ �tia� tir • rx, ..r wrr Port OP SEC,Wx 2. ,ONNSiIw ,i0. S(IFf'I 7 i .. DEVELOPER: \ \ \ LOrATION ALWRTNLLE DENTAL DXAL, LLC \ 2CMgw.snr 11p,. ' t4 - IXCELSYO2t6 WATER 5lREET -, R, MN SS.7.:f \ 4 \\ PH. (951) 474-5104 "^+ * JERRY BRECXE Lu \ti Wco LF � d \ !s i.a. rn. nwr Y f»» �:_ @ Lan- Con in4 � S $I = • DRAFT DATED DECEMBER 30, 2003 FOR COUNCIL CONSIDERATION u CITY OF ALBERTVILLE PLANNED UNIT DEVELOPMENT AGREEMENT T%0WNE LAKES FOURTH ADDITION THIS AGREEMENT, entered into this day of , 2004 by and between Contractor Property Developers Company, collectively referred to herein as "Developer"; and the CITY OF ALBERTVILLE, County of Wright, State of Minnesota, hereinafter referred to as "City" WITNESSETH: WHEREAS, Developer is the fee owner and developer of the real property described in Exhibit A, attached hereto and incorporated herein by reference, which real property is proposed to be subdivided and platted for development and which real property is subject to the provisions of this Agreement; and WHEREAS, Developer is proposing to subdivide a portion of the Development into 45 townhome units. Said subdivision, which is to be governed by this Agreement, is intended to bear the name "Towne Lakes Fourth Addition and shall hereinafter be referred to in its entirety as "Said Plat" or "Subject Property' and WHEREAS, the City has given preliminary approval of Developer's plat of Towne Lakes Fourth Addition contingent upon compliance with certain City requirements including, but not limited to, matters set forth herein; and WHEREAS, the City requires that certain municipal improvements required by the City of Albertville Master Planned Unit Development Agreement Towne Lakes Third Addition be installed prior to the issuance of any occupancy permits for buildings on Said Plat; and WHEREAS, the City further requires that certain on- and off --site improvements be installed by the Developer within Said Plat, which improvements consist of paved streets, boulevards, top soil and sod, grading control per lot, bituminous or concrete driveways, parking lot, drainage swales, berming, street signs, street lights, street cleanup during project development, erosion control, landscaping, and other site -related items; and WHEREAS, this Agreement is entered into for the purpose of setting forth and memorializing for the parties and subsequent owners, the understandings and l covenants of the parties concerning the Development of Said Plat and the conditions - imposed thereon; and WHEREAS, the City and Developer have previously entered into a Developer's Agreement titled "City of Albertville Master Planned Unit Development Agreement Towne Lakes Third Addition" ("Master Agreement") under which the City granted concept plan approval to the plan for the area covered by said Master Agreement; and WHEREAS, the City and Developer desire to supplement the Master Agreement with the site specific details applicable to Towne Lakes Fourth Addition, as evidenced by the execution of this Agreement; and WHEREAS, the City and Developer desire to have this Agreement and the Master Agreement read together as if the entire Master Agreement were recited herein; NOW, THEREFORE, IT IS HEREBY AND HEREIN MUTUALLY AGREED, in consideration of each parry's promises and considerations herein set forth, as follows: l . Concept Plan Master A reement. A. That certain Developer's Agreement entitled "City of Albertville Planned Unit Development Agreement Towne Lakes Third Addition" ("Master Agreement'') between Contractor Property Developers Company and the City of Albertville, dated , 2003 and recorded in the Wright County Recorder's Office as document -. number is hereby incorporated herein the same as if the text of said Agreement were contained within this document. B. It is the intent of the parties that this Developer's Agreement ("Developer's Agreement") supplement the ` Master Agreement as to the specific c development issues related to Towne Lakes Fourth Addition, and that these two documents be read together to determine the rights and obligations of the parties with respect to the property contained within the Towne Lakes Fourth Addition. In the event of a conflict between the terms of the Master Agreement and this Developer's Agreement, the terms of this Developer's Agreement shall control with respect to any conflicting issues within Towne Lakes Fourth Addition, but any such conflicts shall not alter the terms of the Master Agreement as they apply to other plats, now existing or to be 2 platted in the future, within the remainingland area sub' ect to the J Master Agreement. 2. Planned Unit Development. The Development is hereby allowed to be developed as a Planned Unit Development with flexibility from the strict requirements of the City's Shoreline Regulations and Zoning Ordinance in relation to selected items detailed in this paragraph. A. Developer and the City recognize that setbacks within the Development will vary depending on housing type to be constructed. However, Developer, agrees that "setbacks shall be 'consistent with the templates provided by Developer which are attached hereto as Exhibit B. B. Developer shall cause to: be constructed said townhomes in the locations on attached Exhibit B. Said townhomes shall be of a design consistent with the plans attached hereto as Exhibit C. C. Developer shall have separate utility connections for each of the townhome units to allow separate water turnoff and sewer connections through the landscaped yards of the townhome units. D. Lot 15, Block l and Lot 32, Block 2 shall be used only as common lots and shall not be buildable lots. Developer shall establish a Townhome Owners' Association which shall be responsible for maintaining all portions of Lot 15, Block i and Lot 32, Block 2, including private alley maintenance, snowplowing, lawn care, and any other necessary maintenance. The documents establishing said Townhome Owners' Association shall meet the approval of the City Attorney and shall be recorded on the property records of the affected lots. a c� E. Developer shall establish shared driveway easements for all lots which shall use the private alleys within Blocks 1 and 2 of Said Plat to access the G townhome units along said private alleys. < Said easements must meet the •a approval of the City Attorney and shall be recorded on the property records of the affected lots. F. The width of the private drives to be constructed on Blocks 1 and 2 within said Plat shall be twenty four -feet wide. G. All townhomes within said Plat shall be owner occu ied. Developer shall file with this Agreement deed restricts; with re Wright County • Recorder of Deeds which provide that all townhome units in Said Plat shall be owner occupied and which _prohibits the rental of the townhome 3 units. Said deed restrictions shall be subject to the review and approval of • the City Attorney. H. Trees, shrubs, berms and screening are to be planted and installed as shown on the landscape plan attached as Exhibit D. The Developer shall guarantee that all new trees shall survive for , two full years from the planting has. been completed or will be replaced at the expense of the Developer. The landscaping corresponding to each building shall be installed within 30 days after the issuance of a certificate of occupancy. 1. Developer shall replace, at its own expense, any plantings as shown on attached Exhibit D that might be damaged during the construction of any future phases of the development. Developer shall guarantee that all plantings replaced pursuant to this paragraph shall survive for two full years from the date of planting. J. Developer shall install the irrigation system as shown on attached Exhibit E. Said irrigation systemshall be owned and maintained by the Towne Lakes Townhomes Association.- K. Developer shall provide along the private alleys 19 off -site parking spaces . as shown on the attached Exhibit B. 3. Construction of Municipal Improvements. A. No occupancy permits shall issue for any buildings on Said Plat until the Municipal , Improvements required by City of Albertville Master Planned Unit Development Agreement Towne Lakes Third Addition are installed by Developer (except that such occupancy permits may be issued after the installation of the base course of bituminous surface but prior to the installation of the wear course; of bituminous surface on all streets). B. In order to protect said Municipal Improvements, Developer shall require all construction traffic related to the development of Said Plat to comply with routing requirements as may be imposed b the City P Y Engineer. 4. Construction of On- and Off -Site Improvements A. Developer shall construct all on- and off -site improvements including . installation of paved streets, curb and gutter, boulevards, street signs, 4 traffic signs, yard to soil, sod and seed in all yards, landscaping, P Y P g, grading control per lot, bituminous or concrete driveways and parking lots, drainage swales, berming, and like items as necessary, street cleanup during project development, and erosion control, all as required by City ordinance.Front, side and portions of the back yards of residential lots shall be sodded in accordance with the Residential Development Standards as on file with the City Administrator's Office. Those portions of the yards not required to be sodded may be seeded with grass seed or sodded. ` In all cases permanent turf or grass must be established over all areas of the lot not covered by a hard or impervious surface. The Developer shall guarantee that all new plantings shall survive for two full years from the time the planting has been completed or will be replaced at the expense of the Developer. Said on- and off -site improvements shall be installed no later than October 31, 2004, with the exception of erosion control, drainage swales and berming which shall be installed upon initial grading of Said Plat, and except that the driveways and sod need not be installed in a lot until that lot is developed (provided adequate, ground cover has been established prior to the development of such lot), and except that • the landscaping may be installed at such time as provided in paragraph 2.11. above. B. Developer shall, at its own expense, cause the following items to be installed within the development, all such items to be installed under ground, within the street right of way or such other location as may be ` approved by the City Engineer, accessible to all lots and in compliance with all applicable state and local regulations: i. Electrical power supply, to be provided by Xcel Energy or other such carrier; ii. Natural gas supply, to be provided by Reliant Energy or other such carrier; iii. Telephone service, to be provided by Sprint/United Telephone Company or other such carrier; iv. Cable TV service, to be provided by a local carrier; In addition, the Developer shall, at its own expense, cause street lights and street signs to be of such type and to be installed at such locations • as required by the City Engineer and in conformance with the Manual on Uniform Traffic Control Devices. 5 1 C. Developer shall install silt fencing in back of all curbing within 30 daysaftersaid curbing is installed, or 7 days after the "small utilities" (gas, phone, electrical and cable television) have been installed, whichever occurs sooner. Developer shall be allowed to substitute hay bales for 22-foot section of silt fencing on each lot for the purpose of allowing construction vehicles to pass from the street to each lot. No construction vehicles shall pass from the street to the lots except through such designated 22-foot section of hay bales. Developer shall remove all hay bales and silt fencing from each lot as sod is installed upon said lot. As an alternative to installing silt fencing in back of all curbing as required by this subparagraph, Developer may, at its expense, install sod no less than three feet in width in back of all curbing, provided that if, in the judgment of the City Engineer, the installation of silt fencing in one or more places is needed, the Developer shall install such silt fencing at its expense upon request by the City Engineer. D. Notwithstanding the requirements of subparagraph 4A above and except as otherwise provided in this Agreement, the Developer shall install to the City's satisfaction improvements for each lot or parcel prior to the date that a certificate of occupancy (temporary or permanent) is issued by the City for a building located on the lot, unless the certificate of occupancy is issued after October l st and before March 30th in any given year, in which case a certificate of occupancy shall be issued with the requirement that the Developer be required to install said on -and off -site items for such lot by the following June 30th. 5. intended Use of Subdivision Lots. A. It is the Developer's and City's intent that a total of 45 Urban Villa Townhome units be constructed on the residentially zoned lots being final platted as numbered lots and blocks in Said Plat, with one dwelling unit per numbered lot, except for lot 15, block 1 and lot 32, block 2, which shall remain unbuildable common lots. Developer agrees that it shall not construct any dwelling units other than the above referenced dwelling units on the land in Said Plat. 6. Surety Requirements. • 6 s i A. Developer will provide the Citywith an irrevocable letter of credit or ( other surety as approved by the City Attorney) as security that the obligations of the Developer under this contract shall be performed. Said letter of credit or surety shall be in the amount of $292,500.00 representing the sum of 50% of the on off -site improvements ($56,250.00), and 150% of the estimated cost for landscaping/screening materials ($236,250.00). Said letter of creditor surety must meet the approval of the City attorney as to fonn and issuing bank. B. The City may draw on said letter of credit or surety to complete work not performed by Developer (including but not limited to on- and off - site improvements,' Municipal Improvements described above, erosion control, and other such measures), to pay liens on property to be dedicated to the City, to reimburse itself for costs incurred in the drafting, execution, administration or enforcement of this Agreement, to repair or correct deficiencies or other problems which occur to the Municipal Improvements during the warranty period, or to otherwise fulfill the obligations of Developer under this agreement. C. In the event that any cash, irrevocable letter of credit, or other surety referred to herein is ever utilized and found to be deficient in amount to pay or reimburse the City in total as required herein, the Developer agrees that upon being billed by the City, Developer will pay within thirty (30) days of the mailing of said billing, the said deficient amount. 'If there should be an overage in the amount of utilized security, the City will, upon making said determination, refund to the Developer any monies which the City has in its possession which are in excess of the actual costs of the project as paid by the City. D. Developer hereby agrees to allow the City to specially assess Developer's property for any and all costs incurred by the City in enforcing any -of the terms of this agreement should Developer's letter of credit or surety prove insufficient or should Developer fail to maintain said letter of credit or surety in the amount required above within 30 days of mailing of written request by the City. Should the City assess Developer's property for said costs, Developer agrees not to contest or appeal such assessment and waives all statutory rights of appeal under Minnesota Statutes, including Minnesota Statute 429.081. . E. That portion of said cash, irrevocable letter of credit or other surety with respect to the performance of Site Improvements shall be released 7 upon certification of the City Engineer and approval of the City • Council that all such items are satisfactorily completed pursuant to this Agreement. F. In the event a surety referred to herein is in the form of an irrevocable letter of credit, which by its terms may become null and void prior to the time at which all monetary or other obligations of the Developer are paid or satisfied, it is agreed that the Developer shall provide the City with a new letter of credit or other surety, acceptable to the City, at least forty-five (45) days prior to the expiration of the original letter of credit. If a new letter of credit is not received as required above, the City may without notice to Developer declare a default in the terms of this Agreement and .thence draw in part or in total, at the City's discretion, upon the expiring letter of credit to avoid: the loss of surety for the continued obligation. The form of any irrevocable letter of credit or other surety must be approved by the City Attorney prior to its issuance. 7. Surety Release. A. Periodically, as payments are made by the Developer for the completion of portions of the Municipal Improvements and/or on- and off -site Improvements, and when it is reasonably prudent, the Developer may request of the City that the surety be proportionately reduced for that portion of the Municipal Improvements and on-- and off -site improvements which have been fully completed and payment made therefor. All such decisions shall be at the discretion of the City Council. The City's cost for processing reduction request(s) shall be billed to the Developer. Such cost shall be paid to the City within thirty (30) days of the date of mailing of the billing. B. The Developer may request of the City a reduction or release of any surety as follows: i. When another acceptable letter of credit or surety is furnished to the City to replace a prior letter of credit or surety. ii. When all or a portion of the Municipal Improvements or the on - and off --site improvements have been installed, the letter of credit or surety may be reduced by the dollar amount attributable to that portion of improvements so installed, except that the City shall retain the letter of credit or surety in the • amount of 10% of the estimated construction price of the 8 • Municipal Improvements during the first year of the warranty period and 5% of the estimated construction price of the Municipal Improvements during the second year of the warranty period. Developer may substitute a warranty bond acceptable to the City Attorney for the warranty letter of credit in the same amounts and duration as required for the warranty letter of credit. iii. As to all request brought under this paragraph, the City Council shall have complete discretion whether to reduce or not to reduce said letter of credit or surety. C. The costs incurred by the City in processing any reduction request shall be billed to the Developer and paid to the City within thirty (30) days of billing. 8. Abandonment of Project -Costs and Expenses. In the event Developer should abandon the proposed development of the said Plat, the City's costs and expenses ,related to attorney's fees, professional review, drafting of this Agreement, preparation of the feasibility report, plans and specifications, and any other expenses undertaken in reliance upon Developer's various assertions shall be paid by said Developerwithin thirty (30) days after receipt of a bill for such costs from the City. In addition, in the event the Developer abandons the project, in whole or in part, ceases substantial field work for more than nine (9) months, fails to provide sufficient ground -cover to prevent continuing soil erosion from the Development, or fails to leave the abandoned property in a condition which can be mowed using conventional lawn mowing equipment, Developer agrees to pay all costs the City may incur in taking whatever action is reasonably necessary to provide ground -cover and otherwise restore the Development to the point where undeveloped grounds are level and covered with permanent vegetation sufficient to prevent continuing soil erosion from the Development and to facilitate mowing of the Development.. In the event that said costs are 'not `paid, the City may withdraw funds from the above - mentioned surety for the purpose of paying the costs referred to in this paragraph. 9. Developer to Pay City's Costs and Expenses. It is understood and agreed that the Developer will reimburse the City for all reasonable administrative, legal, planning, engineering and other professional costs incurred in the creation, administration, enforcement or execution of this Agreement and the approval of the Development, as well as all reasonable engineering expenses incurred by the City in designing, approving, installing, 9 and inspecting said Improvements described above. ; Developer agrees to pay all i such costs within 30 days of billing by the City. If Developer fails to pay said amounts, Developer agrees to allow the City to reimburse itself from said surety and/or assess the amount owed against any or all of the Development without objection. Developer has the right to request time sheets or work records to verify said billing prior to payment. 10. Sanitary Sewer and Water Trunk Line Fees. Developer agrees that the City's Sanitary Sewer Trunk Line Fee Ordinance and Water Trunk Line Fee Ordinance currently requires the Developer to pay $1,400.00 per acre and $1,200.00 per acre respectively, upon development of said plat approval. Plat. There are 4.08 acres in said Plat which received final PP P Therefore, the Sanitary Sewer and Water Trunk Line Fees for all property receiving final plat approval are $10,608.00 ($5,712.00 in sewer fees calculated as $1,400.00 x 4.08 acres and $4,896.00 in water fees calculated as $1,200.00 x 4.08 acres). Developer shall pay sanitary sewer and water trunk line fees on all future plats in the Development based on fees in effect at the time of final plat of such future development. 11. Erosion and Siltation Control. - Before any grading is started on any site, all erosion control measures as shown on the approved Grading, Drainage and Erosion Control Plan contained in the City of Albertville Master Planned Unit Development Agreement Towne Lakes Third Addition shall be strictly complied with. Developer shall also install all erosion control measures deemed necessary by the City Engineer should the erosion control plan prove inadequate in any respect. 12. Ditch Cleaning. Developer shall comply with all requirements set forth for drainage into any county ditch or other ditch through which water from the Development may drain, and shall make any necessary improvements or go through any necessary procedures to ensure compliance with any federal, state, county or city requirements, all at Developer's expense. 13. Maintain Public Prope Damaged or Cluttered During Construction Developer agrees to assume full financial responsibility for any damage which may occur to public property including but not limited to streets, street sub- base, base, bituminous surface, curb, utility system including but not limited to watermain, sanitary sewer or storm sewer when said damage occurs as a result of 10 • the activity which takes place during the development of the Development. The Developer further agrees to pay all costs required to repair the streets, utility systems and other public property damaged or cluttered with debris when occurring as a direct or indirect result of the construction that takes place in the Development. Developer agrees to clean the streets on a daily basis if required by the City. Developer further agrees that any damage to public property occurring as a result of construction activity on the Development will be repaired immediately if deemed to be an emergency by the City. Developer urther agrees that any damage to public property as a result of construction activity on the Development will be repaired within 14 days if not deemed to be an emergency by the City. If Developer fails to so clean the streets or repair or maintain said public property, the City may immediately undertake making or causing it to be cleaned up, repaired or maintained. When the City undertakes such activity, the Developer shall reimburse the City for all of its expenses within thirty (30) days of its billing to the Developer. ` If the Developer fails to pay said bill within thirty (30) days, then the City may specially assess such costs against the lots within the • Development and/or take necessary legal action to recover such costs and the Developer agrees that the City shall be entitled to attorney's fees incurred by the City as a result of such legal action: Developer knowingly and voluntarily waives all rights to appeal said special assessments under Minnesota Statutes section 429.081. 14. Temporary Easement Rights. Developer shall provide access to the Development at all reasonable times to the City or its representatives for purposes of inspection or to accomplish any necessary work pursuant to this Agreement. 15. Miscellaneous. A. Developer agrees that all construction items required under this Agreement are items for which Developer is responsible for completing and all work shall be done at Developer's expense. B. If any portion, section, subsection, sentence, clause, paragraph or phrase of this Contract is for any reason held invalid by a Court of • competent jurisdiction, such decision shall not affect the validity of the remaining portion of this Contract. 11 C. If building permits are issued prior to the completion and acceptance of public improvements, the Developer assumes all liability and the costs resulting in delays in completion of public improvements and damage to public improvements caused by the City, Developer, its contractors, subcontractors, materialmen, employees, agents, or third parties. D. The action or inaction of the City shall not constitute a waiver or Amendment to the provisions of this Contract. To be binding, amendments or waivers shall be in writing, signed by the parties and approved by written resolution of the City Council. The City's failure to promptly take legal action to enforce this Contract shall not be a waiver or release. E. This Contract shall run with the land and shall be recorded against the title to the property. After the Developer has completed all work and obligations required of it under this Contract (including the expiration of the warranty period), at the Developer's request, the City will execute and deliver to the Developer s release of its obligations under his Agreement. However, all continuing obligations under this Agreement shall remain binding upon the properties covered by this Agreement and their owners. Said continuing obligations include, but are not limited to, paragraphs 1, 2, 5, 9,15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 27 of this Agreement. F. The Developer represents to the City that the Development complies , with all City, county, state and federal laws and regulations, including but not limited to: subdivision ordinances, zoning ordinances, and environmental regulations. If the City determines that the Development does not comply, the City may, at its option, refuse to allow construction or development work in the plat until the Developer so complies. Upon the City's demand, the Developer shall cease work until there is compliance. G. Prior to the execution of this Agreement and prior to the start of any construction on the Development, Developer shall provide the City with evidence of good and marketable title to all of the Development. Evidence of good and marketable title shall consist of a Title Insurance Policy or Commitment from a national title insurance company, or an abstract of title updated by an abstract company registered under the laws of the State of Minnesota. 12 • H. Developer shall comply with all water, ponding and wetland related restrictions, if any, required by the Wright County Soil and Water Conservation District and/or the City and any applicable provisions of State or Federal law or regulations. I. The Albertville City Council reserves the right to allocate wastewater treatment capacity in a manner it finds to be in the best interests of the public health, safety and welfare. Developer acknowledges and agrees that the City is currently in the process of expanding its wastewater treatment plant capacity. Developer fiuther acknowledges and agrees that delay in the availability of wastewater treatment plant capacity may occur for some lots located within the Development and that such delay in capacity availability may also delay the issuance of building permits for some lots within the Development. J. Developer shall not place any structure at an elevation such that the lowest grade opening is less than two feet above the highest known surface water level or ordinary high water level or less than one foot above the l 00-year flood level of any adjacent water body or wetland. If sufficient data on high water levels is not available, the elevation of the line of permanent aquatic vegetation shall be used as the estimated high water elevation. When fill is required to meet this elevation, the fill shall be allowed to stabilize and construction shall not begin until the Building Inspector or a professional soils engineer has approved the property. K. Developer shall obtain all required driveway,utility and other permits as required by either the City Engineer, Wright County and/or the State of Minnesota..' 16. Draw on Expiring Letter of Credit. Inthe event a surety referred to herein is in the form of an irrevocable letter of credit, which by its terms may become null and void prior to the time at which all monetary or other obligations of the Developer are paid or completed, it is agreed that the Developer shall provide the City with a new. letter of credit or other surety, acceptable to the City, at least forty-five (45) days prior to the expiration of the expiring letter of credit. If a new letter of credit is not received as required above, the City may declare a default in the terms of this Agreement and thence draw in part or in total, at the City's discretion, upon the expiring letter of credit to avoid the loss of surety for the • continued obligation. The City Attorney prior to its issuance must approve the form of said irrevocable letter of credit. 13_ 17. Violation of Agreement. A. In the case of default by the Developer, its successors, or assigns, of any of the covenants and agreements herein contained, the City shall give Developer thirty (30) days mailed notice thereof (via certified' mail), and if such default is not cured within said thirty (30) day period, the City is hereby granted the right and the privilege to declare any deficiencies governed by this Agreement due and payable to the City in full. The thirty (30) day notice period shall be deemed to run from the date of deposit in the United States Mail. Upon failure to cure by Developer, the City may thence immediately and without notice or consent complete some or all of the Developer's obligations under this Agreement, and bring legal action against the Developer to collect any sums due to the City pursuant to this Agreement, plus all costs and attorney's fees incurred in enforcing this agreement. The City may also specially assess all said costs incurred upon default against the properties in the Development pursuant to the terms of this agreement. B. Notwithstanding the 30-day notice period provided for in paragraph I7(A) above, in the event that a default by Developer will reasonably result in irreparable harm to the environment or to public property, or result in an imminent and serious public safety hazard, the City may immediately exercise all remedies available to it under this agreement in an effort to prevent, reduce or otherwise mitigate such irreparable harm or safety hazard, provided that the City makes good -faith, reasonable efforts to notify the Developer as soon as is practicable of the default, the projected irreparable harm or safety hazard, and the intended actions of the City to remedy said harm. C. Paragraph 17A of this section shall not apply to any acts or rights of the City under the preceding paragraph, and no notice need be given to the Developer as a condition precedent to the City declaring a default or drawing upon the expiring irrevocable letter of credit as therein authorized. The City may elect to give notice to Developer of the City's intent to draw upon the surety without waiving the City's right to draw upon the surety at a future time without notice to the Developer. D. Breach of any of the teens of this Contract by the Developer shall be grounds for denial of building permits. 18. Dedications to the City. 14 • A. ' Municipal Improvement Dedications: The Developer, upon presentation to the City of evidence of good and marketable title to the Development, and upon completion of all construction work and certification of completion by the City Engineer, shall dedicate all sewers and water mains to the City. Upon acceptance of dedication, Developer shall provide to the City "As- Builts" of all sewers, water mains. ' Acceptance by City of any dedication shall occur upon passage of a resolution to such effect by the City Council. B. Park, Trail and Outlot Dedications. The City acknowledges that the Developer has fully satisfied its park dedication fee obligation for said Plat. 19. Phased ° Development. As said Plat is a phase of a multi -phased preliminary plat, Developer agrees - that the City may refuse to approve final plats of subsequent phases until public improvements for all prior phases have been satisfactorily completed: Development of subsequent phases may not proceed until the City approves Development Contracts for such phases. Approval of this phase of the Development shall not be construed as approval of future phases nor shall approval of this phase bind the City to approve future Development phases. All future Development phases shall be governed by the City's Comprehensive Plan, Zoning ordinance, Subdivision ordinance, and other ordinances in effect at the time such future Development phases are approved by the City. 20. Indemnity. Developer shall hold the City and its officers and employees harmless from claims made by Developer and third parties for damages sustained or costs incurred resulting from the Development approval and development. The Developer shall indemnify the City and its officers and employees for all costs, damages or expenses which the City may pay or incur in of such claims, including attorney's fees. Third parties shall have no recourse against the City under this contract. 21. Assignment of Contract. 15 The obligations of the Developer under this Contract can be assigned by the • Developer. However, the Developer shall not be released from its obligations under this contract without the express written consent of the City Council through Council resolution. 22. Limited Approval. Approval of this Agreement by the City Council in no way constitutes approval of anything other than that which is explicitly specified in this Agreement. 23. Professional Fees. The Developer will pay all reasonable professional fees incurred by the City as a result of City efforts to enforce the terms of this Agreement. Said fees include attoiney's fees, engineer's fees, planner's fees, and any other professional fees incurred by the City in attempting to enforce the terms of this Agreement. The Developer will also pay all reasonable attorneys and professional fees incurred by the City in the event an action is brought upon a letter of credit or other surety fiunished by the Developer as provided herein. 24. Plans Attached as Exhibits. All plans attached to this Agreement as Exhibits are incorporated into this Agreement by reference as they appear. Unless otherwise specified in this agreement, Developer is bound by said plans and responsible for implementation of said plans as herein incorporated. 25. Integration Clause, Modification by Written Agreement Only. This Agreement represents the full and complete understanding of the parties and neither party is relying on any prior agreement or statement(s), whether oral or written. Modification of this Agreement may occur only if in writing and signed by a duly authorized agent of both parties. 26. Notification Information. Any notices to the parties herein shall be in writing, delivered by hand (to the City Clerk for the City) or registered mail addressed as follows to the following parties: City of Albertville • c/o City Clerk 16 P.O. Box 9 Albertville, MN 55301 Telephone: (763) 497-3384 Contractor Property Developers Company Attn:Horner Tompkins, President 3030 Centre Pointe Drive, Suite 800 Roseville, MN 55113 Telephone: (651) 556-4550 Fax: (651) 566-4551, 27. Agreement Effect. This Agreement shall be binding upon and extend to the representatives, heirs, successors and assigns of the parties hereto. CITY OF ALBERTVILLE, By ` It's Mayor By It's Clerk CONTRACTOR PROPERTY DEVELOPERS COMPANY By Homer H. Tompkins III It's President 17 • STATE OF MINNESOTA ) ss. COUNTY OF WRIGHT } The foregoing instrument was acknowledged before me this day of 2004 by Donald Peterson as Mayor of the City of Albertville, a Minnesota municipal corporation, on behalf of the city and pursuant to the authority of the City Council. Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this day of , 2004, by Bridget Miller, as Clerk of the City of Albertville, a Minnesota municipal corporation, on behalf of the city and pursuant to the authority of the City Council. Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this day of , 2004, by Homer H. Tompkins III, as President of Contractor Property Developers Company. • 18 EXHIBIT A TO DEVELOPER'S AGREEMENT • The legal description of the Plat to which this Developer's Agreement applies is as follows. Lots 1-15, Block 1 Lot 1-32, Block 2 All said property is located in Towne Lakes Fourth Addition, City of Albertville, County of Wright, State of Minnesota. • 20 EXHIBIT B Site Plan dated November 17, 2003 EXHIBIT C Front and Rear Elevations and Interior Floor Plan for Urban Villa Townhomes As Prepared by Rottlund Homes EXHIBIT D Landscaping Plan EXHIBIT E Irrigation Plan 21 I YYYx _ . � _= T0WNE LAKES D � 6 m� ALBERTVILLE, MN _a q4 m� Q 4� y a n A n y III �� '• � �'�'. _ ® �■■��■ Q 4 t� aQ o � © i R 1R a$ ® Q W ' J r { t O[t Co` s€ = TOWNE LAKES D � cn 3 a lei m P ALBERTVILLE. MN (x fI�LQ If P A'jl m fll � o � s 9 A ° ' D SF o TOWNE LAKES 3€ (" 6 ^3' � ALBERTVILLE. MN iq Page l of l • Larry Kruse From: Mike Couri [mcouri@earthlink.net] Sent: Tuesday, December 30, 200312:55 PM To: Larry Kruse Subject: Revised Developer's Agreement B Alternate Site Plan C-1 Al C-2 AS C-3 A7 D-1 Final Landscape Plan (paper version only --to be dropped off at the City) D-2 Urban Villa Foundation Planting Plan E Irrigation Plan (barely legible) 12/30/2003 **DRAFT** SUBJECT TO SC&SEQUENT MODIFICATION COMMON INTEREST COMMUNITY NUMBER A Planned Community TOWNE LAKES TOWNHOMES DECLARATION\ THIS DECLARATION, made on this day of , 2004, by The Rottlund Company, Inc., a Minnesota corporation, hereinafter referred to as "Declarant", pursuant to the provisions of the Minnesota Common Interest Ownership Act, Minnesota Statutes Sections 51513.1-101 to 51513.4-118, (hereinafter referred to as the "Act"), as amended. WHEREAS, Declarant is the owner of certain property in the City of Alberville, County of Wright, State of Minnesota, which is more particularly described as: See Appendix A attached hereto. (the "Property" or "Properties"), which Declarant intends to develop for residential uses; and WHEREAS, Declarant desires that all of the Property shall be subject to certain uniform covenants, conditions and restrictions; and NOW, THEREFORE, Declarant hereby declares that all of the Properties described above shall be held, sold, and conveyed subject to the Act and the following easements, restrictions, covenants and conditions, which are for the purpose of protecting the value and desirability of, and which shall run with, the real property and be binding on all parties having any right; title or interest in the described Properties or any part thereof, their heirs, successors and assigns, and shall inure to the benefit of each owner thereof. This common interest community is a Planned Community and is subject to a master association. iARTICLE I DEFINITIONS December 30, 2003 Section 1. "Association" shall mean and refer to Towne Lakes Townhomes Association, a corporation formed under Chapter 317A, Minnesota Statutes, its successors and assigns. Section 2. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of a fee simple title to any Lot which is a part of the Properties, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation. Where any such Lot is being sold by the fee owner to a contract vendee who is entitled to possession of the Lot, the contract vendee shall be considered to be the owner of the Lot if. (a) the rights of the contract vendor hereunder are delegatedto the vendee under such contract for deed; and (b) the vendee shall furnish proof of such delegation to the Association. Section 3. "Properties" shall mean an refer to that certain real property hereinbefore described, and such additions thereto as may hereafter be brought within the jurisdiction of the Association. Section 4. "Lot" shall mean and refer to any separately identified plot of land shown upon any recorded subdivision map or plat of the Properties which is intended to be sold to the ultimate buyer as a separate property. Where appropriate, reference to "Lot" shall include all structures located upon a Lot. The boundaries of each Lot and the unit identifier of each Lot shall be as shown on Plat. Section 5. "Declarant" shall mean and refer to The Rottlund Company, Inc., a,Minnesota corporation, its successors and assigns. • Section 6. "Common Elements" shall mean and refer to the following described real property in Wright County, Minnesota: Lot 32, Block 2, TOWNE LAKES 41' ADDITION, Wright County, Minnesota Section 7. "Eligible Mortgagee" shall mean any person owning a mortgage on any Lot, which mortgage is first in priority to an other mortgages that encumber such Lot,and which has p Y Y requested the Association, in writing, to notify it regarding any proposed action which requires approval by a specified percentage of Eligible Mortgagees. Section 8. "Act" shall mean the Minnesota Common Interest Ownership Act, Minn. Stat. Sec. 515B.1-101, et seq. Section 9. "Plat" shall mean the plat of Towne Lakes Townhomes recorded in the office of the County Recorder, Wright County, Minnesota. Section 10. Definitions Incorporated. Except as otherwise specified in this Declaration, the terms used in this Declaration which are defined in the Act shall have the same meaning as they have in the Act. • Section 11. Statutory Requirements. In accordance with the requirements of Section 51513.2-105 of the Act, the Declarant hereby states the following: December30,2003 2 a. The number of the Common Interest Community created hereby is the number set forth on the first page of this Declaration. b. The name of the Association is Towne "Lakes Townhomes Association. The Association has been incorporated pursuant to the provisions of Minnesota Statutes Chapter'317A. C. The common interest community created hereby is a Planned Community. It is subject to a master association. d. The legal description of the Property included within the common interest community created hereby is set forth on the attached Exhibit A. e. The description of the boundaries of each Lot created by this Declaration, including the unit identifier number for each Lot,is set forth on the Plat, which plat has been filed for record with the office of the Wright County Recorder and is hereby incorporated herein by reference. f. The allocated interests are assigned equally to each Lot, subject to the provisions of this Declaration. Each Lot shall have one vote in the affairs of the Association. Except as provided in Article III, Section 6 (relating to the Alternative Assessment Program) or as permitted in the Act, each Lot shall share the Common Expenses equally. g. The common interest community created hereby shall initially consist of six (6) Lots, all of which shall be restricted to residential use. h. No additional units may be created by the subdivision or conversion of Lots. is The use restrictions to which the Lots' are subject are located in Articles VI, VII and VIII hereof. There is no restriction on the sale price of a unit. The amount to be received upon the condemnation, casualty loss or termination of the common interest community is set forth in Article XIV, Section 10; Article X, Section 5; and Article XIV, Section 11, respectively. j. Time shares are not permitted. k. Matters relating to Special Declarant Rights are contained in Article XII and XIII hereof. Matters relating to the use of the Common Elements are contained in Article VII hereof. Matters relating to the care and maintenance of the Common Elements are contained in Article IV hereof. Matters relating to assessments for Common Expenses are contained in Article III hereof. Matters relating to Limited Common Elements are contained in Article XIV, Section 9. 1. **There are/are no appurtenant easements relating to the common interest PP g community. ** December 30, 2003 3 ARTICLE II • MEMBERSHIP AND VOTING RIGHTS Section 1. Every Owner shall be a member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot. When more than one person is an Owner of a Lot, all such persons shall be members of the Association, but multiple ownership of a Lot shall not increase the voting rights allocated to such Lot nor authorize the division of the voting rights. Section 2. Voting rights and Common Expense obligations are allocated equally among the Lots; except that special allocations of Common Expenses shall be permitted as provided in this Declaration and except for the alternative assessment program as provided in this Declaration. Section 3. The ownership of a Lot shall include the voting rights and Common Expense obligations described in Article 11, Section 2. Said rights, obligations and interest, and the title to the Lots, shall not be separated or conveyed separately. The allocation of the rights, obligations and interests described in this Section may not be changed except in accordance with this Declaration, the Bylaws and the Act. Section 4. The Owner, or some natural person designated as proxy on behalf of the Owner, and who need not be an, owner, may cast the vote allocated to such Lot at meetings of the Association; provided, that if there are multiple Owners of a Lot, only the Owner or other person . designated pursuant to the provisions of the Bylaws may cast such vote. The voting rights of Owners are more specifically described in the Bylaws. ARTICLE III COVENANT FOR COMMON EXPENSE AND INSURANCE PREMIUM ASSESSMENTS Section 1. Creation of the Lien and Personal Obligation of Assessments. The Declarant, for each Lot owned within the Properties, hereby covenants, and each Owner of any Lot by acceptance of a deed or contract for deed therefor, whether or not it shall be so expressed in such deed or contract, is deemed to covenant and agree to pay to the Association: a. general annual assessments or charges; g i. a common expense or portion thereof benefiting fewer than all of the Lots may be assessed exclusively against the Lots benefitted, on basis of (A) equality, (B) square footage of the area being maintained, repaired or replaced, or (C) the actual cost incurred with respect to each Lot. b. assessments for insurance premiums, if any, which may be assessed in proportion to value, risk or coverage. • C. special assessments for capital improvements, such assessment t e p p p sob established and collected as hereinafter provided. December 30, 2003 4 • d. assessments levied under Section 515B.3-116 of the Act to Y a a judgment ent p against the Association, which assessments may be levied only against the Lots existing at the time the judgment was entered, in proportion to their Common Expense liabilities. e. assessments for fees, charges, late charges, fines and interest. f. if any damage to the Common Elements or another Lot is caused by the act or omission of any Owner, the guests of an Owner or the occupant of any Lot, assessments for the costs of repairing the damage may be assessed exclusively against the Owner's Lot to the extent not covered by insurance. The assessments, together with interest, costs and reasonable attorney's fees, shall be a charge on the Lot and shall be a continuing lien upon the property against which each such assessment is made. Each such assessment, together with interest, costs and reasonable attorney's fees, shall also be the personal obligation of the person who was the Owner of such property at the time when the assessment fell due and if more than one person was an Owner then such obligation shall be joint and several. The personal obligation for delinquent assessments shall not pass to the Owner's successors in title unless expresslyassumed by them. Section 2. Purpose of Assessments. The assessments levied by the Association shall be _ used exclusively to promote the purposes of the Association as set forth in Article IV. i Section 3. Limitation on Assessments. Until January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum' monthly general assessment to an Owner and the Owner's Lot shall be $ per Lot. a. From and after January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum annual general assessment may be increased each year not more than ten percent (10%) above the maximum assessment for the previous year without a vote of the membership of the Association. b. From and after January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum annual general assessment may be increased by ten percent (10%) or more by a vote of Owners representing sixty-seven percent (67% o) of the Lots who are voting in person or by proxy, at a meeting duly called for this purpose. C. The Board of Directors of the Association may fix the annual general assessment at an amount not in excess of the maximum, and the Board of Directors of the Association may modify the annual assessment upward or downward from time to time, but in no event upward beyond the maximum permitted by this Section. Written notice of any modification of the annual general assessment shall be sent' to every Owner subject hereto. • Section 4. t Special Assessment for Ca i l p _ p to Improvements. In addition to the annual general assessments, the Association may levy, in any assessment year, a special assessment for the purpose of defraying, in whole or in part, the cost of any construction,` reconstruction, repair December30, 2003 5 or replacement of a capital improvement upon the Common Elements, including fixtures and • personal property related thereto, provided that any such assessment shall have the assent of Owners representing sixty-seven percent (67%) of the Lots who are voting in person or by proxy at a meeting duly called for this purpose. Section 5. Notice and Quorum for any Action Authorized Under Sections 3 and 4. Written notice of any meeting called for the purpose of taking any action authorized under Sections 3 and 4 shall be sent to all Owners not less than twenty-one (21) days nor more than thirty (30) days in advance of an annual meeting or not less than seven (7) days nor more than thirty (30) days in advance of a special meeting. At the first such meeting called, the presence of members or of proxies entitled to cast more than fifty percent (50%) of all the votes shall constitute a quorum. If the required quorum is not present, another meeting may be called' subject to the same notice requirement, and the required quorum at the subsequent meeting shall be 1/2 of the required quorum of the preceding meeting. No such subsequent meeting shall be held more than sixty (60) days following the preceding meeting. Section 6. Uniform Rate of Assessment; Alternative Assessment Program. Both general annual and special assessments on all Lots must be fixed at a uniform rate, except vacant Lots which shall be assessed at twenty -:five percent (25%) of the established assessment rate, excluding assessments for replacement reserves, except: a. no assessments shall be made against any Lot which is a parcel of real estate which is not intended for separate ownership or occupancy. i b. any Lot owned by Declarant and which is not exempt from assessment by Article IIL Section 6a. shall be assessed at twenty-five percent (25%) of the established assessment rate, until such time as a certificate of occupancy is issued by the City of Albertville, Minnesota. C. This alternative assessment program shall have no effect on the level of services for items set forth in the Association's budget. d. At all times, Declarant shall pay 100% of any assessment for replacement reserves: Annual and/or special assessments may be collected on a monthly basis at the discretion of the Association. Section 7. Date of Commencement of Assessments; Due Dates. The general annual assessment provided for herein shall commence as to all Lots on the first day of the month following the conveyance by the Declarant of a Lot to an Owner. Notwithstanding the foregoing to the contrary, any Lot owned Declarant shall be assessed pursuant to the alternative assessment program set forth in Article III, Section 6. The first general annual assessment shall be adjusted according to the number of months • remaining in the calendar year. The Board of Directors of the Association shall fix the amount of such assessments against each Lot at least thirty (30) days in advance of each annual assessment period. Written notice of such assessments shall be sent to every Owner subject December 30, 2003 • thereto. The due dates shall be established by the Board of Directors of the Association. The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an authorized representative of the Association setting forth whether the assessments on a specified Lot have been paid. A properly executed certificate of the Association as to the status of assessments on a Lot is binding upon the Association as of the date of its issuance. Section 8. Effect of Nonpayment of Assessments,• Remedies of the Association Any assessment to any Member not paid within 30 days after the due date shall bear interest from the due date at ,a rate of eight percent (8%) per annum. The Association may bring an action at law against the Owner personally obligated to pay the same or foreclose the Lien against the Property. Such Lien may be foreclosed.in the'samemanner as a mortgage pursuant to Minnesota Statutes, Chapters 580, 581 or 582 as amended, and the Association shall be entitled to recover interest at the rate of eight percent (8%) per annum and its costs, expenses and disbursements, including reasonable attorney's fees; incurred in such foreclosure. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Elements or abandonment of the Owner's Lot. If the Association has provided for monthly installment payments of assessments, the Association may accelerate and the Owner shall pay the unpaid balance of an annual installment if the Owner has failed to pay any monthly installment within thirty (30) days after the due date of a monthly installment. To the extent permissible, the Association may deny services to any Member who is more than thirty (30) days delinquent in the payment of any assessment or installment of an assessment. Section 9. Subordination of the Lien to Mortaaue. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage, except as provided in Section 515B.3-116 of the Act. Sale or transfer of any Lot shall not affect the assessment lien. No sale or transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof. Section 10. Priority of Lien. Any holder of a first mortgage on a Lot or any purchaser of a first mortgage at a foreclosure sale, that comes into possession of a Lot by foreclosure of the first mortgage or by deed or assignment in lieu of foreclosure, takes the Lot free of any claims for unpaid assessments or other charges or liens imposed against the Lot by the Association which have accrued against such Lot prior to acquisition of possession of the Lot by said first mortgage holder or purchaser: a. except as provided in Article III, Section 9 and Section 51513.3-116 of the Act; and b. except that any unpaid assessments or charges with respect to the Lot may be reallocated among all Lots in accordance with their interests in Common Elements. ARTICLE IV DUTIES OF ASSOCIATION • Section 1. General Duties. In addition to maintenance upon the private streets, if any, and driveways, including the maintenance of water and sewer services from any public mains, the Association shall provide for maintenance upon the Lots and Common Elements as follows: December 30, 2003 exterior maintenance upon each Lot which is subject to assessment hereunder, snow removal, • paint, repair, replace and care for roofs, gutters, downspouts, exterior building surfaces, landscaping, trees, shrubs, grass, walks, irrigation systems, light fixtures or light standards along private roads, tot lots, if any, monuments and monument lighting, electrical service for street lights, ponds, retaining walls and other exterior improvements. Exterior maintenance shall not include glass, windows, front unit entrance doors, patio doors, all screens, air conditioning equipment or electricity for exterior garage lights. Section 2. Other Duties. a. The Association shall enforce the covenants, conditions and restrictions set forth herein and any amendments hereto and any rules and regulations adopted by the Association. b. The Association may provide for trash removal services in accordance with the provisions of Article IX hereof and shall provide a master or common policy of property insurance for all Lots within the Association. C. The Association shall undertake, at its discretion, such further duties as determined by the Board of Directors. Section 3. Miscellaneous. In the event that the need for maintenance or repair is caused through the willful or negligent act of the Owner, his family,' or guests, invitee, or lessees, the • cost of such maintenance or repairs shall be added to and become a part of the assessment to which such Lot is subject. ARTICLE V PARTY WALLS Section 1. General Rules of Law to Apply. Each wall which is built as a part of the original construction of the homes upon the Properties and placed on the dividing line between the Lots shall constitute a party wall, and, to the extent not inconsistent with the, provisions of , this Article, the general rules of law regarding party walls and liability for property damage due to negligence or willful acts or omissions shall apply thereto. Section 2. Sharing of Repair and Maintenance. The cost of reasonable repair and maintenance of a party wall shall be shared by the Owners who make use of the wall in proportion to such use. Section 3. Destruction by Fire or Other Casualty. If a party wall is destroyed or damaged by fire or other casualty, any Owner who has used the wall may restore it, and if the other Owners thereafter make use of the wall, they shall contribute to the cost of restoration thereof in proportion to such use without prejudice, however, to the right of any such Owners to call for a larger contribution from the others under any rule of law regarding liability for negligent or willful acts of omissions. • December 30, 2003 8 • Section 4. Weatherproofing Notwithstanding any other provision of this Article, an Owner who by negligent or willful act causes the party wall to be exposed to the elements shall bear the whole cost of famishing the necessary protection against such elements. Section 5. Right to Contribution Runs With Land. The right of any Owner to contribution from any other Owner under is y this Article shall be appurtenant to the Lot and shall pass to such Owner's successors in title. Section 6. Arbitration. In the event of any dispute arisingconcerning a party wall, or under the provisions of this Article, each party shall choose one arbitrator, and such arbitrators shall choose one additional arbitrator, and the decision shall be by a majority of all the arbitrators. ARTICLE VI ARCHITECTURAL CONTROL Section 1. ` Structures. No building, fence, wall, deck or other structure shall be commenced, erected or maintained upon the Properties, nor shall any exterior addition to, or change or alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Board of Directors of the Association, or by an architectural committee composed of three (3)' or more representatives appointed by the Board. Section 2. Approval. In the event said Board of Directors, or its designated architectural committee, fails to approve or disapprove such design and location, or planting, within thirty (30) days after said plans and specifications have been submitted to it, approval will not be required and this Article will be deemed to have been fully complied with. ARTICLE VII ADDITIONAL RESTRICTIONS• RULES AND REGULATIONS Section 1. Additional Restrictions. a. No lot shall be used except for residential purposes, except that Declarant, or its assignees shall be entitled to maintain model homes and other sales facilities upon the Lots. b. No sign of any kind shall be displayed to the public view on any lot except one professional sign of not more than one (1) square foot and one sign of not more than five (5) square feet advertising the property for sale, except that Declarant shall be permitted to erect and maintain upon the Property such signs as it deems appropriate to advertising the Property until the Declarant conveys the last Lot. • C. The Board of Directors, in its discretion, may adopt rules and regulations prohibiting or permitting the keeping of animals on the Lots. Animals may not be kept, bred, or maintained for any commercial purpose. No animals shall be December 30, 2003 9 kenneled outside the house or garage in the open yard. No fence, enclosure or doghouse shall be constructed in a separate area to kennel dogs outside the house.. d. No Lot shall be used or maintained as a dumping ground for rubbish, trash, garbage or other waste, including pet or household waste. Garbage, rubbish and trash shall not be kept on said premises except in covered sanitary containers. All incinerators or other equipment used or kept for the storage or disposal of such material shall be kept in a clean and sanitary condition. e. No noxious or offensive activity shall be carried on upon any Lot nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood. f. No structure of a temporary character, trailer, basement, tent, shack, garage, barn or other building shall be used on any Lot at any time as a residence, either temporarily or permanently. g. No trailers, boats, buses, motor homes, campers, snowmobiles or other types of recreational vehicles shall be parked on any Lot for more than forty-eight (48) consecutive hours unless such vehicle is parked within a garage located on such Lot; provided that the Board of Directors of the Association may grant permits to park such vehicles on Lots for limited periods of time not to exceed fourteen (14) days in any twelve-month (12) period. No such vehicles shall be parked on any . Common Element. h. No aerial, antenna or satellite dish which is (i) over four feet in height, as measured from the point on any structure to which the aerial, antenna or satellite dish is affixed, (ii) more than one (1) meter in diameter; or (iii) of a color not approved by the Association, shall be permitted on any Lot. Architectural approval is required to be obtained from the Board of Directors or Architectural Committee prior to adding an aerial antenna or satellite dish. i. No abandoned motor vehicle as defined in Minnesota Statutes Section 168B.02, subdivision 2, as amended from time to time, shall be permitted to remain upon the streets or driveways or on any Lot or parking area. The Association shall have the right to remove any such vehicle at any time, and assess the costs of such removal against the Lot which is owned or occupied by the person in control or possession of such vehicle. j. No fences.shall be erected on any Lot. k. Except as herein permitted for Declarant, no business, trade, occupation or profession of any kind, whether carried on for profit or otherwise, shall be conducted, maintained or permitted on any Lot, except: (i) an Owner or occupant residing in a Lot may keep and maintain his or her business or professional • records in such Lot and handle matters relating thereto by telephone or correspondence therefrom, provided that such uses are incidental to the residential December 30, 2003 1 use of the Lot; and ii on the P the Association may maintain offices e roe f a Property or �) Y P Y management and related purposes. 1. ` No Lot may be leased for transient or hotel purposes. Any lease of any lot shall be in writing which shall be expressly subject to the Act, this Declaration and any Rulesand Regulations adopted by the Association and which provide that any violation of the Act, this Declaration and any Rules and Regulations shall be a default under the lease. No time shares shall be created with respect to anyLot. M. No parking shall be permitted on private streets located within the Property in accordance with any "No Parking" signs posted by Declarant or the Association, as required by the City of Albertville. Section'2. Rules and Regulations. The Association may adopt, amend and revoke rules and regulations not inconsistent with the Articles of Incorporation, this Declaration or the Bylaws of the Association, as follows: a. regulating the use of the Common Elements; b. regulating the use of Lots and the conduct of living unit occupants which may jeopardize the health, safety and welfare of other occupants, which involves noise or other disturbing activity, or which may damage the Common Elements or other . living units; C. regulating or prohibiting animals; d. regulating changes in the appearance of the Common Elements and conduct which may damage the common interest community; e. regulating the exterior appearance and maintenance of structures of the common interest community, including, by way of illustration and not limitation, painting, roofing, balconies and patios, window treatments, and signs and other displays, regardless of whether inside a living unit; f. implementing the Articles of Incorporation, this Declaration or the Bylaws of the Association; and g. other rules facilitating the operation of the common interest community. After notice and an opportunity to be heard, the Association may impose reasonable sanctions, including the levying of reasonable fines and reasonable restrictions on services and use of Common Elements, for violations of this Declaration, the Bylaws and the Rules and Regulations of the Association. ARTICLE VIII EASEMENTS December 30, 2003 11 Section-1. General. In addition to the easements, covenants, restrictions and conditions • herein, all Lots shall be subject to easements and covenants hereinafter specifically described for the benefit of the Properties or for the limited benefit of specified adjoining Lots, all as more fully set forth hereinafter in this Article. Within such easements, no structure, planting or other material shall be placed or permitted to remain which may damage or interfere with the installation and maintenance of any utilities or trails or which may change the flow or drainage channels within the easements or which may obstruct, retard or change the flow of water through drainage easements. The easement area of each Lot and all improvements therein shall be maintained continuously by the Owner of the Lot, except for improvements which are the responsibility of the Association, a public authority or utility company. ; Section 2. Utility Easements. All Lots and Common Elements are hereby subjected to easements for the installation and maintenance of utilities, including gas, telephone, electric and cable TV/satellite services and other communications services. The Association or its proper representatives shall have the right of free access to any Lot or living unit for the purpose of maintaining any utility service to any Lot on the Properties. In addition, each Lot over which a utility is in fact installed or constructed as part of the original utility system shall be subject to an easement for utility purposes over the portion of the Lot upon which such utility service is constructed. Section 3. Easements for Encroachment. In the event that any buildings or other structures originally constructed by the Declarant or constructed or erected thereafter on any Lot in accordance with this document encroaches upon any other Lot or Common Element, or, if any such encroachment shall hereafter arise because of settling or shifting of the building or other cause, an exclusive easement appurtenant to said encroaching Lot for such encroachment and the maintenance thereof shall exist. Section 4. Easement for Maintenance. Declarant hereby grants an easement in favor of the Association over and across each Lot for the purposes of the Association performing its duties. Section 5. Emergency Vehicles. Declarant hereby grants a perpetual, non-exclusive easement in favor of the City of Albertville, a municipal corporation under the laws of the State of Minnesota, on, over and across the Common Elements for the purpose of ingress and egress for police, fire, rescue and other emergency calls, animal control, health and prospective inspection and to provide to the Owners other public services deemed necessary by the City of Albertville and for the purposes set forth herein. ARTICLE IX TRASH REMOVAL Section 1. Master Contract. The Association may contract with a single provider for the removal and disposal of garbage, trash and other solid waste from all Lots in accordance with this Declaration. Each Owner shall be obligated to purchase such services from the provider designated by the Association upon the terms, conditions and rates negotiated by the • Association. December 30, 2003 12 • Section'2. Char es. Any charges imposed by the provider designated by the Association shall be paid by the Association and shall be included in the general assessments to Owners. 'In the event that any Owner requests any services not included within the basic/general charges of the provider, the Owner, upon written demand by the Association, shall reimburse the Association for any chargesfor such services, plus all related costs, including interest, attorney fees and administrative charges of the Association, and if not paid by Owner, such charges shall be a lien against the Lot. Any charge, lien or claim pursuant to this Article shall not be subject to any maximum increase in general assessments. ARTICLE X INSURANCE AND RECONSTRUCTION Section 1. Liability Insurance; Fidelity Bonds. The Board of Directors of the Association, or its duly authorized agent, shall obtain a broad form of public liability' insurance insuring the Association, with such limits of liabilities as the Association shall determine to be necessary, against all acts, omissions to act and negligence of the Association, its employees and agents. Section 2. Property Insurance. Each Owner, by acceptance of a deed or contract for deed on a Lot, covenants to cooperate with the Association to maintain and timely pay the Owner's share of premiums on a master insurance policy, including fire, extended coverage, vandalism and malicious mischief, with all risk endorsements insurance, and such additional insurance as may be required by the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation, if applicable. The Association,' through its Board of Directors, may obtain and continue in effect master property insurance in form and amounts satisfactory to coven a minimum of the entire replacement cost for all of the living units located on each Lot of the Properties, but not including, carpeting, floor coverings, drapes, wallcoverings furniture, furnishings or personal property belonging to the Owners and not including improvements, fixtures and other property supplied or installed by Owners, but without prejudice to the right of the Owner of said Lot to obtain additional individual living unit insurance. Each Owner shall join in said master policy and pay a share of the premiums thereon in such manner as determined by the Association. Any such master policies and coverage shall be purchased and carried by the Association on the Properties, and the proceeds thereof shall be used exclusively for the repairs, replacement and reconstruction of the Properties. ` Said master policy shall be issued in the name of the Association as insurance trustee for the Owners, and shall provide that losses shall be payable to the trustee and first mortgagee of record, if any. Any such master insurance shall cover loss by damage and fire and such hazards as are covered under standard extended coverage provisions and may include such other and additional overages as the Association, through its Board of Directors, deems necessary or desirable: All policies, whether obtained by an Owner or the Association, shall prohibit cancellation or substantial modification without at least thirty (30) days prior written notice to all insureds, the Association, all first mortgagees of record and the FHA or FNMA, if applicable. All said insurance policies shall contain a cost of replacement endorsement. • Section 3. Insurance Premiums. If so determined by the Board of Directors insurance premiums for any master insurance coverage and other insurance overages shall be a common expense paid by monthly assessments levied by the Association; such payments shall be held in a December30, 2003 13 separate escrow: account of the Association and used solely for the payment of master property insurance premiums and other insurance premiums as such premiums become due. An Owner by acceptance of a deed or contract for deed thereof, conveys, covenants, constitutes and appoints the Association or its Board of Directors as the Owner's true and lawful Attorney -In - Fact to act in connection with all matters concerning the purchase and maintenance of all types of property and liability insurance pertaining to the properties, the ownership of any respective Lot and living unit thereto with any insurance company or group of insurance companies. Without limitation on the generality of the foregoing, the Association, as insurance trustee, has full power and authority to purchase and maintain such insurance, to collect proceeds and to distribute the same. Section 4. Lien For Premiums. The Association may, but shall not be required to, make payment of insurance premiums on behalf of any Owner who becomes delinquent in such payment or the first mortgagees of any Lot may, but shall not be required to make such payments. In the event that the Association or the first mortgagee does make such payment, then such payment and the cost hereof shall be treated as if it is part of the common expense assessment and shall be a charge and a continuing lien on the Lot for whose benefit such premium payment is made, and the personal obligation of the Owner of such Lot, from the time when such premium payment is made. Section 5. Use of Proceeds. In the event of destruction or damage by causes, covered by insurance referred to in this Article X, all proceeds of said insurance coverage shall be payable to the Association as insurance trustee for the Owner or Owners of the damaged Lots. Said • insurance proceeds shall be applied and administered as follows: a. In the event of an insured loss to a Lot, all insurance proceeds paid to the trustee and the first mortgagee of record of the damaged Lot shall be deposited with a title insurance company acceptable to them to be held in escrow for restoration. b. In the event of an insured loss to a Lot, the Owner of such Lot with respect to which the insurance loss occurs shall, within thirty (30) days after the insurance proceeds are deposited with a title insurance company in accordance with paragraph a. above, enter into a firm contract with a qualified builder providing for the reconstruction of the improvement, in substantially the same condition as existed immediately prior to the insured loss; provided, however, that no contract shall be entered into by such Owner for an amount in excess of the insurance proceeds then held by the title insurance company until additional funds are deposited in escrow as above provided by such Owner sufficient to cover all ` construction as determined by the title insurance company. Said reconstruction shall be commenced and completed with due diligence and in no event shall said work be completed later than one -hundred -eighty (180) days after said insurance proceeds are deposited in escrow as aforesaid. ,The Association and first mortgagee of record of the Lot affected shall have the right, but not the obligation, to deposit said additional funds in excess of the insurance proceeds as may be required to permit construction as herein provided; provided that if such . additional funds are deposited by the Association, the Association shall reimburse itself by a special general assessment against all Lot owners in such annual installments as the Association may determine. December 30, 2003 14 C. In the event such Owner fails to enter into a contractas provided in paragraph b. above for the reconstruction of the improvement as provided above or, in the event that reconstruction is not commenced or completed as provided above, then the Association as trustee, with the consent of the first mortgageeof record, or the first mortgagee of record with the consent of the trustee, shall have the right, but not the obligation to enter into those contracts which it deems necessary to complete said reconstruction of the improvement on the Lot; and the Association as trustee or first mortgagee shall have the right to have said insurance proceeds applied in satisfaction of any obligations incurred pursuant to said contract, without liability of any kind to the Owner. The Association or the first mortgagee may employ any bonded party or parties as its agent exercising those functions given to it in this Article. The Association or the first mortgagee shall be empowered to pay said agent a reasonable fee for the services rendered by said agent and collect said charge from the Owner, and in the manner as that which is provided in Article X, Section 3, for the collection of an insurance premium paid by the Association. d. Disbursement of funds on deposit pursuant to Article X, Section b. and c.`shall be made by the title insurance company selected as hereinabove provided, subject to the following: i. Receipt by the title insurance company of a written consent of any party holding a lien or encumbrance on said Lot. ii. Receipt by the title insurance company of such construction statements, lists of subcontractors, lien waivers and receipts as it shall determine to be appropriate. Disbursements maybe periodic or progress payments, and the title insurance company may make such inspections and withhold such payments as it deems necessary to insure completion with the plans and specifications. The title insurance company shall be entitled to charge and the trustee shall be empowered to pay a reasonable fee for the services rendered by the title insurance company, and the Association as trustee may collect such charge from the Owner, and in the same manner as that which is provided for in Article X, Section 3 for the collection of insurance premiums paid by the Association. iii. In the event a contract is entered into pursuant to Article X, Section 5 b., the written consent of such Owner to said payment must be obtained. e. Nothing contained in this Article shall be construed to make the Association or the first mortgagee of record responsible' for collection or noncollection of any insurance proceeds; said Association or first mortgagee being responsible solely for the insurance proceeds which come into their hands. Such Owner of a Lot damaged or destroyed by causes referred to above shall collect or cause to be collected from the insurance carrier involved the proceeds of the policy covering his/her Lot for the use of the trustee and the first mortgagee as herein provided. December 30, 2003 15 f. In the event that a reconstruction contract is for any reason not entered into • pursuant to the provisions of Article X, Section 5 b. and c. within one hundred - eighty (180) days after the deposit of insurance proceeds with the title insurance company as herein provided, said title insurance company shall disburse said proceeds to all mortgagees of record of the affected Lots as its interest appears to retire the indebtedness secured under said mortgage, and disburse the remaining deposits, if any, to such Lot Owner, as the interests may appear. Section 6. Waiver of Subrogation. All policies of physical damage insurance shall contain waivers of subrogation and waivers of any defense based on coinsurance or of the invalidity arising from acts of the insured and it shall provide that such policies may not be canceled or substantially modified without at least thirty (30) days prior written notice to all insureds, the Association, and all of the mortgagees of record of the Lots, and to the FHA or FNMA, if applicable. Section 7. Insufficient Proceeds. If the proceeds of the insurance are not sufficient to defray the estimated cost of reconstruction or repair of damaged properties and/or the Common Elements by the Association or if at any time during the reconstruction or repair or upon completion of such reconstruction or repairs, the funds for the payment of costs thereof are " insufficient, assessments shall be made against the Owners who own the damaged properties or who have assigned their rights in sufficient amounts to provide funds to pay the estimated costs of repairs. The Association shall have a lien on any funds advanced on behalf of such Owners. • Section 8. Other Insurance. The Association shall r p ocure and. maintain the following additional insurance coverage: a. Fidelity coverage against dishonest acts on the part of Directors, Managers, trustees, employees or volunteers responsible for handling funds collected and held for the benefit of the Owners. The fidelity bond or insurance shall name the Association as the named insured and shall be written in an amount sufficient to provide protection which is in no event less than the amount required by the Act or the sum of three months estimated assessments plus the amount of reserves in the custody of the Association or management agent.. An appropriate endorsement to the policy to cover any persons who serve without compensation shall be added if said policy would not otherwise cover volunteers. b. A comprehensive policy of public liability insurance covering the Common Elements in an amount not less than one million dollars. Such insurance shall contain a "severability of insurance" endorsement which shall preclude the insurer from denying the claim of the Owner because of negligent acts of the Association or other owners. The policy shall include such additional coverages, endorsements or limits as maybe required by regulations of the Federal Housing Administration, ("FHA"), or the Federal National Mortgage Association, ("FNMA"), as a precondition to their insuring, purchasing or financing a mortgage on a Lot. • C. Workers Compensation insurance as required by law. December 30, 2003 16 • d. Directors and officers liability insurance with such reasonable limits and overages as the Board of Directors may determine from time to time. e. Such other insurance as the Board of Directors may determine from time to time to be in the best interests of the Association and the Owners or as may be required by the Act. Section 9. Deductibles. As to any deductibles under any insurance overages obtained by the Association, the aBoard 'of Directors may: a. pay the deductible as a general common expense; b. assess the deductible amount against any Lots affected in a reasonable manner; or C. assess the deductible against any Owner and the Owner's Lot if the loss was caused by the act or omission of the Owner, or the Owner's agents, employees, invitees, guests or any one occupying the Lot with the expressed or implied permission of the Owner. ARTICLE XI RIGHTS OF ELIGIBLE MORTGAGEES Section 1. Consent to Certain Amendments. The written consent of eligible mortgagees representing at least fifty-one percent (51%) of the Lots that are subject to first mortgages held by Eligible Mortgagees (based upon one vote per first mortgage owned), shall be required for any amendment to this Declaration, Articles of Incorporation or Bylaws of the Association which causes any change in the following: a. voting rights; b. increases in assessments that raise the previously assessed amount by more than twenty-five percent (25%), assessment liens or priority of assessment liens; C. reductions in reserves for maintenance, repair and replacement of Common Elements; d. responsibility for maintenance and repairs; e. reallocation of interests in the Common Elements or right to their use; f. redefinition of any Lot boundaries; g. convertability of Lots into Common Elements or vice versa; • h. expansion of the Property or the addition or withdrawal of property to or from the Property; i. hazard or fidelity insurance requirements; December 30, 2003 1 j. leasing of Lots; k. imposition of any restrictions on the leasing of Lots; 1. restoration or repair of the Property (after hazard damages or partial condemnation), in a manner other than that specified in this Declaration; in. any action to terminate the legal status of the common interest community after substantial destruction or condemnation occurs; or n. any provisions that expressly benefit mortgage holders,or insurers or guarantors of mortgages. Notwithstanding the foregoing, implied approval of a proposed amendment shall be assumed when an Eligible Mortgagee fails to submit a response to any written proposal for an amendment within thirty (30) days after it receives proper notice of the proposal, provided that the notice was delivered by certified mail with a return receipt. Notwithstanding anything herein to the contrary, the written consent of Eligible Mortgagees shall not be required foranyamendment to this Declaration, Articles of Incorporation or Bylaws of the Association that is for the purpose of correcting technical errors or .for clarification only or for the purpose of adding one or more of the Additional Real Estate Parcels pursuant to Article XIII. Section 2. Consent to Certain Actions. The written consent of Eligible Mortgagees � gees representing at least sixty-seven percent (67%) of the Lots that are subject to first mortgages (based upon one vote per first mortgage owned) shall be required to abandon or terminate the common interest community, subject to any greater requirements contained in the Act. Section 3. Consent to Subdivision. No Lot may be partitioned or subdivided without the prior written approval of the Owner, Eligible Mortgagee thereof, and the Association. Section 4. Priority for Condemnation Awards. No provisions of this Declaration or the Articles of Incorporation or Bylaws of the Association shall give an owner, or any other party, priority over any rights of the Eligible Mortgagee of the Lot 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 Lot and/or the Common Elements. The Association shall give written notice to all Eligible Mortgagees of any condemnation or eminent domain proceeding affecting the Property promptly upon receipt of notice from the condemning authority. Section 5. Access to Books and Records. Eligible Mortgagees shall have the right to examine the books and records of the Association upon reasonable notice during normal business hours, and to receive free of charge, upon written request, copies of the Association's annual reports and other financial statements. Financial statements, including those which are audited, shall be available within one hundred twenty (120) days of the end of the Association's fiscal year. If a request is made by FNMA or any institutional guarantor or insurer of a mortgage loan against a Lot for an audit of the Association's financial statements, the Association shall cause an audit to be made and shall deliver a copy to the requesting party, subject to the Bylaws of the Association. December 30, 2003 18 ARTICLE XII SPECIAL DECLARANT RIGHTS Section 1. Period of Declarant Control, Notwithstanding anything in this Declaration or the Association Bylaws to the contrary, the Declarantshall have the right to control the management and affairs of the Association until the earlier of the following events: a. sixty (60) days after the conveyance of seventy-five percent (75%) of the Lots to Lot Owners other than the Declarant, or b. five years from the date of the recording of this Declaration. During this period of Declarant Control, the Declarant, subject to the Bylaws, shall have the sole right to appoint, remove and replace the officers and directors of the Association. Notwithstanding the foregoing, the Owners other than the Declarant shall have the right to nominate and elect not less than thirty-three and one-third percent (33 1/3%) of the directors at a meeting of the Owners which shall be held within sixty (60) days following the conveyance by Declarant of fifty percent (50%) of the Lots authorized to be included in the Common Interest Community. Section 2. "Maintenance of Sales Offices. Notwithstanding anything herein to the contrary,` so long as the Declarant owns an interest in a Lot, Declarant may maintain advertising signs on any part of the Common Elements and sales offices, management offices and model units in any Lots or in or on any part of the Common Elements and such sales offices and model units may relocated by Declarant from time to time. There shall be no limit on the number or location of such offices or model units. Section 3. Easements in Favor of Declarant. Notwithstanding any provisions contained herein to the contrary, so long as construction and initial sale of Lots shall continue, Declarant shall have an easement over and across the Common Elements for the purpose of carrying out its sales activities and for the purpose of completing the construction on any Lots or otherwise making improvements within the common interest community or any Additional Real' Estate Parcels or completing improvements indicated on the CIC plat, including without limitation the right of vehicular ingress and egress, vehicular parking, material storage, and the maintenance of business offices, signs, model units, and sales offices, and Declarant shall have an easement for access to such facilities; provided, however, that Declarant shall promptly restore any damage to the Common Elements by reason of any construction incident to the foregoing. This Section may not be amended without the express written consent of the Declarant. ARTICLE XIII FLEXIBLE ASSOCIATION Section-1. Flexible Association. This Association is a flexible common interest community. Declarant may add additional real estate to the Common Interest Community at any time or times within ten (10) years from the date of recording of this Declaration. Nothing herein contained shall bind the Declarant to add any of the Additional Real Estate Parcels to the Planned December 30, 2003 19 Community or to adhere to any particular plan of development or improvement for any portion of the Additional Real Estate Parcels not added to the Planned Community. Section 2. 'Additional Real Estate Parcels. Declarant may add to the Common Interest Community all or any part of the real estate described in Exhibit B attached hereto ("Additional Real Estate Parcels"), at any time or times, or at different times, within ten (10) years after the recording of this Declaration. The real estate to be added to the Common Interest Community shall be restricted to residential uses. The total number of Lots to be added to the Common Interest Community shall not be more than forty (40). All restrictions contained in the Declaration relating to the use, occupancy and alienation of Lots shall be applicable to the Lots added to the Common Interest Community. Such restrictions shall not apply to any additional real estate which is not added to the Common Interest Community. Any buildings and living units erected upon the additional real estate, when and if added, shall be compatible with the other buildingsand living units in the Common Interest Community in terms of architectural style, quality of construction, principal materials employed in construction and size. ARTICLE XIV GENERAL PROVISIONS Section 1. Enforcement. The Association, or any Owner shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. Section 2. 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. Section 3. Amendment. The covenants and restrictions of this Declaration shall run with and bind the land and shall be perpetual. This Declaration may be amended by an instrument signed by the Owners representing Lots to which not less than sixty-seven percent (67%) of the total votes have been allocated. Any amendment must be recorded. Section 4. Annexation. Additional residential or commercial property and Common Elements may be annexed to the property with the consent of the Declarant or Owners who represent seventy-five percent (75%) of the Lots. Section 5. FHA/VA. If the Common Interest Community has received approval from the Federal Housing Administration or the Department of Veterans Affairs, the following actions will require the prior approval of the Federal Housing Administration or the Department of Veterans Affairs, during any period of Declarant control: annexation of additional properties, dedication of Common Elements and amendment of this Declaration, the Articles of Incorporation of the Association or the Bylaws of the Association. 0 Section 6. Tender of Claims. In the event that any incident occurs which could reasonably give rise to a demand by the Association against the Declarant for indemnification December 30, 2003 20 pursuant to the Act, the Association shall promptly tender the defense of the action to its insurance carrier, and give Declarant written notice of such tender, the specific nature of the action and an opportunity to defend against the action. Section-7. Conflicts Among Documents. In the event of any conflict among the provisions of the Act, this Declaration, the Bylaws of the Association or any Rules and Regulations adopted by the Association, the documents shall control in the following order of priority: a. the Act; b. this Declaration; C. the Bylaws; and d. the Rules and Regulations. Section 8. Interpretation. As appropriate, each reference to a masculine pronoun shall include the feminine and neutral pronoun and each reference to a singular pronoun shall include the multiple pronoun and vice versa. Section 9. Limited Common Elements. All portions of the Property other than the Lots are Common Elements. Certain portions of the Common Elements designed to serve a single Lot are, by operation of Section 515B.2-102(d) and (f) of the Act, Limited Common Elements allocated for the exclusive use by the respective Lots served thereby to the exclusion of other Lots. In addition, the driveways adjacent to and serving each Lot are Limited Common Elements allocated for the exclusive use of the respective Lots to the exclusion of the other Lots. Additionally, the entry area and air conditioning equipment serving each Lot and the stairs and/or the patio/deck area, if any, which are accessible from each Lot are Limited Common Elements allocated for the exclusive use of such Lot to the exclusion of the other Lots. The air conditioning equipment which is a Limited Common Element allocated to each Lot shall be maintained, repaired and replaced by the Owner of each such Lot at such Owner's sole cost and expense. All other portions of the Limited Common Elements shall be maintained as Common Elements under and pursuant to the provisions of Article IV hereof. The expense of any such maintenance and repair shall be charged to the Lot as a Common Expense under and pursuant to the provisions of Article III hereof. Section 10. Condemnation. In the event of the taking of any of the Common Elements by eminent "domain or any action or proceeding in lieu of eminent domain (hereinafter, "condemnation"), the Association shall represent the Owners in any such condemnation, or in negotiations, settlements and agreements with the condemning authority, and each Owner hereby appoints the Association as his attorney -in -fact, irrevocably, for such purposes. If deemed necessary by the Association, it may obtain the services of a trustee to act on behalf of the Owners in carrying out any functions under this Section. In the event of a condemnation of part or all of the Common Elements, the award of proceeds of settlement shall be payable to the Association. All proceeds payable with respect to any condemnation of Common Elements shall be applied to the restoration or repair of such Common Elements remaining after such December 30, 2003 21 condemnation or to such other purposes as may be in accordance with the functions and powers of the Association and the welfare of the Owners. If all of a Lot is taken through condemnation, or if so much of a Lot is taken that the remaining property cannot reasonably be used for a purpose allowed by this Declaration, then the entire Lot shall be considered condemned and the Owner's interest in the Common Elements and Association shall be deemed to cease on the date such condemnation is completed. If part of a Lot is taken through condemnation, but the Lot can still be. used for a purpose allowed by this Declaration, then there shall be no effect on the Lot Owner's interest in the Common Elements or the Association. Any proceeds of any condemnation with respect to a Lot shall belong and be paid to the Owner thereof and his mortgagee, as their interests may appear. Section 11. Dissolution. The common interest community created by this Declaration may only be terminated with the assent given in writing and signed by not less than the Owners holding eighty percent (80%) of the votes of the Association and eighty percent (80% o) of the Eligible Mortgagees (each mortgagee having one vote for each Lot financed). Upon termination of the common interest community, after payment of all the debts and obligations of the Association, all Lots, Common Elements, and Association property shall be administered in accordance with the provisions of the Act. Section 12. No Right of First Refusal. The right of an Owner to ell transfer• gs or otherwise convey his Lot shall not be subject to any right of first refusal or similar restrictions. Section 13. 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 Lots and not the Property as a whole. Section 14. Management Agreements. The term of any agreement for professional management of the Property may not exceed one (1) year. Any such agreement must provide at a minimum for termination without penalty or termination fee by either party: a. with cause upon thirty (30) days prior written notice; and b. without cause, upon ninety (90) days prior written notice. Section 15. Notice Requirements. Upon written request to the Association, identifying the names and address of the holder, insurer or guarantor of a mortgage on a Lot, and the Lot number or address, the holder, insurer or guarantor shall be entitled to timely written notice of: a. a condemnation loss or any casualty loss which affects a material portion of the Lot securing the mortgage. • b. a sixty60 day delinquency in payment of assessments or charges owed b the ( ) Y q Y p Ym g Y Owner of a Lot on which it holds a mortgage. December 30, 2003 22 C. a lapse, cancellation or material modification of any insurance policy maintained ; by the Association. d. a proposed action which requires the consent of a specified percentage of Eligible Mortgagees. ARTICLE XV MASTER ASSOCIATION. The Association is a member of Towne Lakes Community Association, a non-profit corporation created pursuant to Minnesota Statutes Chapter 317A and Section 515B.2-121(a), and its successors and assigns (the "master Association"), a master association within the meaning of the Act:; Section 1. Delegation. The Master Association is hereby delegated the powers and duties to: a. b. C. d. Section 2. Additional Delegations. In addition to the powers and duties delegated to the Master Association above; the Board of directors of the Association may delegate additional powers to the Master Association not inconsistent with this Declaration, the Articles of Incorporation and Bylaws of the Association and the Master Declaration, the Articles of Incorporation and Bylaws of the of the Master Association, or the Act. Section 3. Uniform Exercise. The powers delegated to the Master Association shall be exercised by the Master Association in a manner which is uniform and consistent with the exercise of all similar powers delegated to the Master Association. Section 4. Control Period. Upon the expiration of the control period, as defined in Minna Stat. Sec. 51513.2-121(c)(3), the Board of Directors of the Master Association shall be elected by the members of the Master Association. IN WITNESS WHEREOF, Declarant has caused this Declaration to be executed the date and year first abovewritten. THE ROTTLUND COMPANY, INC. By: Todd M. Stutz Its: Executive Vice President December 30, 2003 23 STATE OF MINNESOTA) )ss. COUNTY OF RAMSEY The foregoing instrument was acknowledged before me this day of , 20 , by Todd M. Stutz, the Executive Vice President of The Rottlund Company, Inc., a Minnesota corporation, on behalf of said corporation. Notary Public THIS INSTRUMENT DRAFTED BY: BARNA, GUZY & STEFFEN, LTD. 400 Northtown Financial Plaza 200 Coon Rapids Boulevard Minneapolis, MN 55433 (763) 780-8500 2231411 December 30, 2003 24 EXHIBIT A TO DECLARATION COMMON INTEREST COMMUNITY NUMBER TOWNE LAKES TOWNHOMES Legal Description Lots 12 through 17, inclusive, and 32, Block 2, TOWNE LAKES 4TH ADDITION, Wright County, Minnesota. k EXHIBIT B TO DECLARATION COMMON INTEREST COMMUNITY <NUMBER TOWNE LAKES TOWNHOMES Additional Real Estate Parcels Lots 1 through15, inclusive, Block 1, Lots 1 through 11, inclusive, and 18 through 31, inclusive, Block 2, TOWNE LAKES 4TH ADDITION, Wright County, Minnesota.