HomeMy WebLinkAbout[06] S & H Development PlanCITY OF ST. JOSEPH
DEVELOPER AGREEMENT
THIS AGREEMENT, made and entered into this day of February 2014, by and between JLT
Partnership, LLC hereinafter called "Developer" and the City of St. Joseph, Minnesota, a municipal
corporation, hereinafter called the "City ".
WITNESSETH:
WHEREAS, the Developer is the owner of a certain real property located within the City limits
legally described Lots 1 through 12, Block 1, S & H Replat of Graceview Estates 2, (herein after
called the "Property" or "Development "; and
WHEREAS, on August 9, 2009, the Developer and City entered into a development agreement,
Stearns County Document Number 1296880, (herein after called "PUD ") which provided for a
residential mixed use development to include 60 unit apartment facility and ten (10) patio -bay
homes (two four plexes and one duplex); and
WHEREAS, the developer has constructed the 60 unit apartment facility according to the terms of
the PUD; and
WHEREAS, the Developer has submitted to the City for approval the plans and drawings as
illustrated in Exhibit A attached hereto ( "Development Plan "), which describes the construction
project and related facilities ( "Project ") the Developer proposes to construct on the Property; and
WHEREAS, the developer has requested to modify the approved PUD, changing the ingress /egress
and constructing two three unit townhome units and two tow unit townhomes. Based on the
provision of the PUD the proposed changes required an amendment to the PUD.
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WHEREAS, the City's Code of Ordinances allows the City to require a Development Agreement to
provide for inspection and review during the construction of the Project; and
NOW, THEREFORE, in consideration of the mutual covenants expressed herein, IT IS HEREBY
AGREED AS FOLLOWS:
1.0 REQUEST FOR AND CONDITIONS OF THE DEVELOPMENT PLAN
APPROVAL
1.1 Request for Development Plan Approval. The Developer has asked the City to grant
final approval of the Development Plan for the Project to be constructed on the Property.
1.2 Conditions of Development Plan approval: The City, after requisite notice and
hearing, has granted final approval of the Development Plan subject to the terms and conditions of
this agreement.
1.3 Scope of Agreement. This Agreement is a condition of the special use permit. If the
project does not go forward or change, based on the exhibits attached to this agreement, the
developer is not in compliance with the special use permit and must initiate a request for a new
special use permit.
2.0 RIGHT TO PROCEED
The Developer may not grade or otherwise disturb the earth, remove trees, construct sewer
lines, water lines, streets, utilities, public or private improvements, or any buildings, until all the
following conditions have been satisfied: (1) this Agreement has been fully executed by both
parties and filed with the City Administrator; (2) the escrow required in section 3.12 to secure
performance of the Developer's landscaping obligations has been received by the City; (3) the City
has issued a letter that all conditions have been satisfied and that the Developer may proceed, which
letter will not be unreasonably withheld or delayed.
3.0 DEVELOPER CONSTRUCTED IMPROVEMENTS
3.1 DEVELOPMENT PLAN COMPLIANCE: All buildings and accessory structures
shall be sited and constructed on the Property as shown on the Utility, Storm Water
and Drainage Plan prepared by Schultz Engineering (referred to in Exhibit B),
subject to the provisions of this agreement. Any deviations from the buildings,
structures, Utility, Storm Water and Drainage Plan shall require prior approval by the
City Planning Commission.
3.2 BUILDING STRUCTURES: Ten (10) unit Townhouse Development. The
development will consist of two three unit attached Townhomes and two, two unit
attached townhomes.
3.3 BUILDING CODE COMPLIANCE. All buildings and accessory structures shall be
constructed in accordance with the Minnesota State Building Code as adopted and
modified by the St. Joseph City Code.
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3.4 SITE PREPARATION: The Developer shall comply with any erosion control
method ordered by the City for the prevention of damage to adjacent property and
the control of surface water runoff. As the development progresses, the City may
impose additional and reasonable erosion control requirements if in the opinion of
the City Engineer such requirements are necessary based on local, state and federal
regulations.
3.5 IMPROVEMENTS: The Developer agrees to construct those improvements
itemized below, (hereinafter known as the "Improvements "):
Check all that apply:
X_ Site Grading
X_ Water Main
X_ Storm Sewer
_X_ Concrete Curb & Gutter
_X_ Sanitary Sewer
Sidewalks
X_ Street Signs
X_ Regulatory and Warning Signs
_X_ Erosion Control
_X_ Street Lighting
X_ Private Utilities, to include natural gas, telephone, electric, and cable
t(-h-6 inn
The Improvements itemized above shall include all necessary appurtenant items of
work as determined by the City. The improvements itemized above are Private
Improvements and shall remain the property of the Developer and under the control
and maintenance of the Developer, its heirs and assigns.
3.6 INGRESS /EGRESS: Vehicular traffic will access the Property from the east,
utilizing 4th Ave SE and the ingress /egress shall serve as a private street and as such
the following shall apply:
a. The ingress /egress is a private street, managed by the Homeowners Association.
The City of St. Joseph will not have any responsibility for maintenance,
including, but not limited to snow removal, pavement marking, street signage,
crack sealing, seal coating, or future pavement rehabilitation of any kind.
b. "No Parking" signs shall be placed along the private drive on both sides of the
street.
c. The private street shall have a minimum paved width of 24 feet.
3.7 LIGHTING: The Developer shall have installed a street light meeting City lighting
standards at the intersection of 4th Ave SE and the private street .
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3.6 GRADING /DRAINAGE: The developer shall construct and maintain a storm drain
along the private street and drainage ditches and swales along the southerly and
northerly property lines. The final drainage plans must be approved by the City
Engineer.
3.7 LANDSCAPING /FENCING /SCREENING: The developer shall screen the western
edge of the private drive including the hammerhead turn- around to screen the back
yards of parcels in Graceview Estates 2.
3.8 UTILITY PLAN: All utility improvements required for the project are considered
private utilities. The City of St. Joseph will not have any responsibility for
maintenance
3.9 NPDES /CITY OF ST. JOSEPH SWPPP: NPDES Permit must be submitted at the
time of the Building Permit Application.
3.10 TRAIL ACCESS: The developer shall construct an accessible ramp at the trail along
4th Ave SE at a location acceptable to the City Engineer.
3.11 REQUIREMENTS FOR BUILDING PERMIT: No building permit shall be issued
for this Property until the Developer has signed and returned this Development
Agreement, obtained any necessary easements and provided the City with a copy of
the easement documents, and submitted any additional information as directed by
the City Engineer.
3.12 REQUIREMENTS FOR CERTIFICATE OF OCCUPANCY: Per State and City
building codes.
3.13 Water /Sewer Access and Trunk Fees. The Developer shall pay WAC and SAC
charges as provided in Ordinance 44. The Access Fees shall be calculated separately
for each building permit and be based on the fee schedule at time of permit issuance.
3.14 Completion Deadlines. The Developer agrees to proceed with said Improvements
entirely at its expense, and to complete said improvements by July 30, 2015,
3.15 Engineering Services. The Developer will retain an engineer satisfactory to the
City to prepare complete construction Plans and Specifications for The
Improvements. The Developer shall make his engineer aware of the provisions in
this Agreement. The Developer's engineer shall:
(a) Arrange for soil borings in accordance with Exhibit B and /or such other
subsurface investigations as the City may require.
(b) Prepare construction plans, specifications, and estimate in accordance with
Exhibit B.
(c) Secure all necessary permits including those required by the Minnesota
Pollution Control Agency, the Minnesota Department of Health, the
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Department of Natural Resources, Stearns County, Sauk River Watershed
District, or any other regulatory agency that has jurisdiction.
(d) Submit items one (1) through eight (8) on Exhibit "C" prior to beginning
any construction in the development.
(e) Complete an Environmental Assessment Phase I, if necessary and any other
related environmental documents, reports, or studies as may reasonably be
required by the City.
(f) Provide all necessary construction staking and related survey work.
(g) Provide construction administrative services on behalf of the Developer,
including the following: review shop drawings, coordinate construction
staking, monitor permit requirements, monitor site grading and erosion
control work designated as developer's responsibility in Exhibit "D ",
process applications for payment, prepare change orders, monitor
completion dates, coordinate field issues with Contractor and Developer,
participate in final inspection. Prepare operation and maintenance manuals
in accordance with Exhibit "B ". Submit items nine (9) and ten (10) on
Exhibit "C" in a timely manner during construction.
(h) Prepare record drawings. Submit item eleven (11) on Exhibit "C" to the
City Engineer within 30 days of receiving field measurements from the
City's on -site representative. Record drawings shall include locational
measurements to all water and sewer mains, manholes, valves, catch basins,
and sewer /water services. Developer will submit evidence of site grading,
to include conformance of house pad elevations with the grading plan.
(i) Prepare and submit such other documentation as the City may require.
3.16 The City Engineer shall:
(a) Provide such City project standards, including special construction details,
insurance requirements and specifications, as the City may require.
(b) Review and recommend acceptance of Plans and Specifications.
(c) Provide a City Representative as a resident project representative (RPR) for
construction observation of private municipal utility improvements
connected to public infrastructure and work within the public right of way
throughout the construction period.
(d) Assist the Developer's engineer in collecting field information for use in
preparing record drawings for municipal utility improvements.
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(e) Conduct a final observation and review final construction documentation.
(f) Recommend Acceptance of Improvements to the City.
City Engineer shall be named as an additional insured on such policy by
endorsement.
3.17 Performance Security. Prior to the actual construction of the Improvements
pledged to be constructed by the Developer, then in that event, the Developer shall
post with the City a bond, irrevocable letter of credit or dedicated escrow account
(the "Security ") in the estimated amount of 1.25 times the Engineer's Estimate of
the likely costs of such improvements, conditioned upon the faithful construction of
the improvements according to the Plans and Specifications, and final approval of
the City Engineer, and the terms of this Development Agreement. As the
improvements are partially completed, the Developer may request the City to
release a portion of the Security representing the cost of the completed
improvements as determined by the City Engineer, but at all times there shall be
Security in an amount of at least 125% of the estimated cost of the unfinished
improvements. If the construction contracts are under the control of one Prime
Contractor, the Prime Contractor may provide the performance security required by
this section.
3.18 Labor and Material man's Bond. Upon execution of this Agreement, the Developer
shall also provide the City with a labor and material man's bond, guaranteeing the
payment of all workmen performing labor or services, and all supplies or material
men providing materials for the Improvements. This bond shall not be released
until the Developer has provided the City Engineer with proof of payment of all
laborers and material men in the form of release, signed receipts, or lien waivers. If
the Developer contracts with a single Prime Contractor, and all construction
contracts are under control of the Prime Contractor, the Prime Contractor may
provide the laborer and material men bond required by this section as long as the
Prime Contractor agrees to waive any lien rights for the labor and /or material
provided by the Prime Contractor.
3.19 Warranty Bond. The Developer shall fully and faithfully comply with all the terms
of any and all Contracts entered into by the Developer for the installation and
construction of all The Improvements and hereby warrants and guarantees the
workmanship and materials for a period of two years following the City's final
acceptance of the Improvements. In addition to the Security required by Section
3.10 herein, the Developer hereby warrants and shall post a warranty bond,
warranting the condition of the materials and workmanship of the improvements
for a period of two years following the City's final acceptance of the Improvements.
If any claims are made in writing within the warranty period, the bond shall not be
released until such claims are resolved.
3.20 Completion Date and Inspection. The work the Developer is to perform under this
Agreement must be done and performed by Developer in a good and workmanlike
manner and completed by the date set in paragraph 3.14 of this Agreement. The
storm sewer, water and sewer mains, roadways, and all other improvements called
for in the Plans and Specifications will be subject to the inspection and approval by
the City and the City Engineer, and in case any material or labor supplied shall be
rejected by the City or the City Engineer, as defective or unsuitable, then such
rejected material or labor shall be removed and replaced with approved material or
labor, to the satisfaction and approval of the City, entirely at the cost and expense
of the Developer.
3.14 Damage to City Infrastructure. Developer shall promptly repair, at the Developer's
expense, any damage to the City's existing infrastructure. Repairs shall be to
original condition or better.
4.0 GENERAL TERMS AND CONDITIONS
4.1 Title. The Developer hereby warrants and represents to the City, that Developer's
interest in the Development is fee owner.
4.2 Binding Effect on Parties and Successors. The terms and provisions of this
Agreement shall be binding upon and accrue to the benefit of the heirs,
representatives, successors and assigns of the parties hereto and shall be binding
upon all future owners of all or any part of the Development and shall be deemed
covenants running with the land. Reference herein to Developer, if there be more
than one, shall mean each and all of them. This Agreement, at the option of the City,
shall be placed on record so as to give notice hereof to subsequent purchasers and
encumbrances of all or any part of the Property and /or Project and all recording fees
shall be paid by the Developer. If the Property and Project are sold or conveyed to a
third party, and the third party, in a writing satisfactory to the City, takes and
assignment of, and agrees to assume the obligations of the Developer under this
Agreement, the prior owner /transferor will, from and after the effective date of the
assignment and assumption, be released from any further obligations under this
Agreement; provided however, that in no event will the St. Joseph Parish be released
from its obligations under this Agreement prior to the City's issuance of a certificate
of occupancy for the Project.
4.3 Ponds.
(a) Cleaning of Ponds. At such time as the City Director of Public Works
determines that construction on the Development Property has been
sufficiently completed so as not to cause significant erosion which will
contaminate the holding ponds servicing the Development Property,
Developer will clean/dredge all holding ponds and storm water pipes on the
Property. In the event the ponds require cleaning /dredging prior to the
completion of all such construction, the City Director of Public Works may
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request that the Developer complete more than one cleaning of the holding
ponds.
(b) Security Deposit. To insure that holding ponds serving the Development
Property are cleaned, and to insure that the Development is properly cleaned
pursuant to Section 8.9(b), the Developer will deposit with the City $5,000.00
(which shall be placed in an interest bearing account with interest accruing to
the benefit of the Developer) or provide the City with an irrevocable letter of
credit in form and substance acceptable to the City. Said deposit will be
refunded to Developer (or the letter of credit released) upon satisfactory
cleaning of holding ponds and streets on the Development Property. The
City Engineer may release portions of said deposit as ponds and streets are
cleaned. Developer is responsible for all permits relating to cleaning and
dredging of ponds, including permits required by the Department of Natural
Resources and the Army Corps of Engineers.
(d) Buffer Area Adjacent to Ponds. All ponds servicing the Development
Property whether such ponds are located on City owned property, easements
running in favor of the City or on private property must maintain a minimum
of an 8 foot natural buffer from the high water mark. Notwithstanding the
above, one access to each pond may be created by the City in a location
determined by the City in its sole discretion. Developer shall be responsible
for the cost of signage around said buffer areas indicating that the buffer is
part of a wetland restoration project which may not be distributed without the
written permission of the City. Said signs shall be posted in locations
reasonably determined by the City.
4.4 Storm Water. The Developer shall pay for storm water and drainage improvements
on the current development phase the greater of either (a) $.20 per square foot of
the "Net Developable property ", or (b) the actual cost (labor and materials) plus
related engineering cost for storm water improvements. "Net Developable
Property" is defined as the gross land area minus street right -of -way and other land
area dedicated to the public. The Developer shall pay $ based upon
Net Developable Property of square feet. "Storm Water Improvements"
are defined as all storm sewer pipe, catch basins, manholes, riprap, and holding
ponds installed by the Developer's Contractor. If the Developer does not expend at
least $.20 per square foot of Net Developable Property on storm water
improvements, Developer shall remit the difference between the amount actually
spent on storm water improvements and the $.20 per square foot to the City. This
cost differential will be used for downstream storm water improvement costs which
may have been, or will be, incurred by the City. Developer shall provide the City
with a schedule of values for storm sewer improvements when the project is
substantially compete. Upon approval by the City of the schedule of values, the
City will invoice the Developer for the amount due. Payment is due within two
weeks of the date of the invoice.
4.5 Monuments. Developer may place, at Developer's sole cost and expense,
identification monuments on the entrances to the Development Property pursuant to
City Ordinance regulations. The location and type of monuments must be approved
by the City Engineer prior to installation. Prior to installation of any monuments on
the Development Property, Developer must create an association to maintain said
monuments. The association documents must be approved by the City's attorney
and originals provided to the City's attorney for recording against the Development
Property.
4.6 Renewal of Security. If any escrow account or bond deposited with the City in
accordance with this Agreement shall have an expiration date prior to the
Developer's obligations hereunder being complete, the Developer shall renew such
security or deposit substitute security of equal value meeting the approval of the
City at least thirty (30) days prior to the expiration of such security. Failure to post
such alternate security or renew such security shall constitute a default and the City
may place a moratorium on all construction or other work related to the
Development, refuse the issuance of building permits, and declare the entire
amount thereof due and payable to the City in cash. Such cash shall thereafter be
held by the City as a security deposit in the same manner as the security theretofore
held by the City.
4.7 Platting. Developer must include all of the Development Property in the final plat
The final plat must be recorded prior to the Developer initiating the installation of
private improvements on the Development Property.
4.8 Utility Location. Developer agrees that all utilities within the Development will be
installed underground, including without limitations electrical, telephone, cable
television and natural gas. Developer may receive an exemption from this
requirement if Developer demonstrates to the City Engineer that underground
utilities would not be physically possible. Any exemption shall be limited to the
minimal area necessary.
4.9 Plat Dedication. Upon approval and execution of this Agreement, the City shall
approve the final plat provided it otherwise meets the requirements of the City's
Ordinance governing Subdivisions. If the Plat contains the dedication of an
easement, the use of property within the area of an easement is specifically
restricted by prohibiting the construction of any structure or fence, planting trees or
shrubs, or storing of personal property within the area of the easement which could
delay, restrict or impede access within the easement area by a person or vehicle.
4.10 Street Lighting and Signage. Developer shall be responsible for the cost of
purchase and installation of street lights and street signs. Developer will name all
streets within the Development in accord with City Ordinance regulations. The
improvement shall not be accepted until installation of street lights and street signs
is completed.
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4.11 Notice. Any notices permitted or required to be given or made pursuant to this
Agreement shall be delivered personally or mailed by United States mail to the
addresses set forth in this paragraph, by certified or registered mail. Such notices,
demand or payment shall be deemed timely given or made when delivered
personally or deposited in the United States mail in accordance with the above.
Addresses of the parties hereto are as follows.
If to the City at: City Administrator
City of St. Joseph
P.O. Box 668,
St. Joseph, MN 56374
If to the Developer at: JLT Partnership LLC
4.12 Incorporation of Documents by Reference. All of the Development Plan documents
identified in attached Exhibits A - E are incorporated by reference in this Agreement.
4.13 License to Enter Land. The Developer hereby grants the City, its agents, employees,
officers and contractors a license to enter the Property to perform inspections
deemed appropriate by the City during the development of the Property.
4.14 Certificate of Compliance. This Agreement shall remain in effect until such time as
Developer shall have fully performed all of its duties and obligations under this
Agreement. Upon the written request of the Developer and upon the adoption of a
resolution by the City Council finding that the Developer has completed performance
of all Developer's duties mandated by this Agreement, the City shall issue to the
Developer on behalf of the City an appropriate Certificate of Compliance. The
Certificate of Compliance shall be in recordable form and shall constitute prima facie
evidence that the Developer has performed its duties and obligations under this
Agreement and this agreement is terminated.
4.15 Assignment. At any time before a Certificate of Compliance has been issued, this
Agreement may not be assigned by Developer except upon obtaining the express
written consent of the City.
4.16 Integration. This Agreement contains all of the understandings and agreements
between the parties. This Agreement may not be amended, changed, or modified
without the express, written consent of the parties hereto.
4.17 Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
4.18 Governed by Minnesota Law. This Agreement shall be interpreted under the laws of
the State of Minnesota.
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4.19 Representation. JKA Ltd. represents the City with regard to this Agreement.
Developer is hereby advised to seek, and has consulted, an independent legal advisor
prior to the execution of this Agreement.
4.20 Reimbursement of City's Costs. The Developer shall reimburse the City for all
costs, including all reasonable engineering, legal, planning, and administrative
expenses, incurred by the City in connection with all matters relating to the
negotiation, administration, and enforcement of this Agreement and its performance
by the Developer. Such reimbursement shall be made within 14 days of the date of
mailing the City's notice of costs. If such reimbursement is not made, the City may
place a hold on all construction or other work related to the Development, or refuses
the issuance of building permits until all costs are paid in full.
5 DEFAULT AND REMEDIES
5.11 Default. Failure by the Developer to observe and perform any covenant, condition, or
obligation contained in this Agreement shall be considered a default by the Developer
under this Agreement.
5.12 Right to Cure. The City shall give the Developer written notice of any default under
this Agreement. The Developer shall have 10 days in which to cure the default (or in
which to commence good faith efforts to cure if the default is one which cannot
reasonably be cured in 10 days).
5.13 Remedies. If an event of default is not cured by the Developer within the applicable
cure period, the City may do any, all or any combination of the following:
(a) halt all further approvals regarding improvements or issuance of building
permits or occupancy permits relating to the Development Property;
(b) seek injunctive relief,
(c) take any other action at law or in equity which may be available to the City.
Effective as of the day and year first written above.
DEVELOPER:
Lawrence Heim
STATE OF MINNESOTA )
) ss
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Tom Klein
COUNTY OF STEARNS )
This instrument was acknowledged before me on , 2014, by Lawrence
Heim, and Tom Klein JLT Partnership LLC, executed the above Agreement on behalf of said
corporation.
NOTARIAL STAMP OR SEAL
(OR OTHER TITLE OR RANK)
SIGNATURE OF NOTARY PUBLIC
CITY:
ATTEST CITY OF ST. JOSEPH
By
Judy Weyrens Rick Schultz
City Administrator Mayor
STATE OF MINNESOTA )
ss
COUNTY OF STEARNS )
This instrument was acknowledged before me on , 2014, by Rick Schultz,
Mayor and Judy Weyrens Administrator of the City of St. Joseph, a Minnesota Municipal
Corporation executed the above Agreement on behalf of said company.
NOTARIAL STAMP OR SEAL
(OR OTHER TITLE OR RANK)
THIS INSTRUMENT WAS DRAFTED BY:
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SIGNATURE OF NOTARY PUBLIC
Thomas G. Jovanovich — 5284X
JKA Ltd.
11 Seventh Avenue North
PO Box 1433
St. Cloud MN 56302
Telephone: (320) 251 -1055
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Exhibit A
(Legal Description)
EXHIBIT A
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PLANS AND DRAWINGS
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EXHIBIT B
CONSTRUCTION DOCUMENT REOUIREMENTS
(1) Soils Analysis
❑ Location map showing boring and piezometer locations
❑ Soil boring logs
❑ R- Values or Soil Factors used for design
❑ Structural recommendations for streets and trails
(2) Engineer's Preliminary Estimate and Final As -Built Costs
❑ Itemized quantities
❑ Unit prices
(3) Construction Plans
❑ Title sheet with general location map and index
❑ Typical Sections for streets, driveways, parking lots, trails, and landscape features
❑ Typical Details for sanitary sewer, water main, storm sewer, sedimentation and holding ponds, curb
gutter and sidewalk, and erosion control items
❑ Complete schedule for sanitary and storm sewer structures
❑ Traffic Management Plan showing how construction traffic will be routed from the collector /arterial
network to the site, phasing plans, detours, and seasonal load restrictions
❑ Grading and Surface Restoration Plan showing excavation/embankment balance, building pad
elevations, hold - downs, house types for each pad, spot elevations at lot corners, overflows, and other
critical areas, drainage arrows showing how all surface water is intended to drain, provisions for
private utility installation, and site access locations
❑ Landscape Plan if shrubs, trees, or other plantings are to be provided
❑ Erosion Control Plan
❑ Striping, Signage, and Street Lighting Plan
❑ Plan and profile sheets for streets and storm sewer, with match lines between sheets, including
temporary cul -de -sacs between phases, and any turning /bypass lane requirements of Stearns County.
❑ Plan and profile sheets for sanitary sewer and water main, with match lines between sheets, showing
existing conditions and proposed construction, and showing stations for all stubs and service
connections
(4) Construction Specifications /Project Manual
❑ Advertisement/Invitation for bids
❑ Complete bid schedule
❑ Basis of award if alternate bids are called for
❑ Performance and payment bond forms approved by the City
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EXHIBIT B (continued)
❑ General Conditions
❑ Special/supplementary provisions including the following:
• Contractor's liability insurance
• Related work at the site (private utilities, other contractors)
• Correction period (2 -year warranty)
• Mediation as means for dispute resolution
• Substantial and final completion dates (allow for holding off on wear course)
• Ownership /disposition of excess excavation materials
• Field office
• Shop drawing and submittals process
• Laboratory testing requirements including an itemized list of tests to be conducted
• Soil borings
❑ Storm Water Pollution Prevention Plan (SWPPP) including provisions for dewatering
(5) Operation and Maintenance Manuals
❑ Documents for all mechanical and electrical equipment
(6) Record Drawings
❑ Final modifications to details and typical sections
❑ Final location for all pipes, valves, manholes, catch basins and sewer /water services
❑ Final modifications to pipe sizes and materials
❑ Final elevations for all pipe and structure inverts
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EXHIBIT C
CONSTRUCTION DOCUMENT SUBMITTAL
(1) Soils analysis
❑ Two (2) bound copies submitted prior to design
(2) Engineer's Preliminary Estimate
❑ Seven (7) copies with plans and specifications
(3) Construction Plans
❑ Seven (7) reduced scale (11 "x17 ") copies
❑ Two large scale (22 "04 ") copies
(4) Construction Specifications /Project Manual
❑ Seven (7) bound copies
(5) Completed Bid Forms
❑ Two (2) copies of the actual low bid
❑ Two (2) copies of a complete tabulation of all bids submitted
(6) Contractor's Bond and Insurance
❑ Two (2) copies of the performance bond
❑ Two (2) copies of the payment bond
❑ Two (2) copies of the contractor's insurance certificate
❑ Two copies of the executed agreement between contractor and developer
(7) Permits
❑ Two (2) executed copies of all permits
❑ Two (2) executed copies of all storm water permit transfers or modifications
❑ Two (2) executed copies of all storm water permit subdivision registrations
❑ Two (2) copies of NPDES Transfer or Termination Form
(8) Schedule
❑ Two (2) copies of contractor's schedule including updates
(9) Shop Drawings and Change Orders
❑ Two (2) copies of shop drawings with final revisions
❑ Two (2) executed copies of all change orders and /or supplemental agreements
(10) Operation and Maintenance Manuals
❑ Two (2) sets of bound documents
(11) Record Drawings
❑ Two (2) reduced scale (I IxI7) copies
❑ One (1) electronic copy in AutoCad or Microstation format
(12) Final itemized, as- built, construction costs and quantities for street, storm water, sanitary sewer and
watermain improvements.
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EXHIBIT D
EROSION CONTROL PROCESS
Task
Responsible Party
Action By
Prepare SWPPP and obtain General Storm-
Developer (private) or City
Developer's Engineer if private
Water Permit from MPCA.
(public) project.
project, City Engineer if public
project.
Establish erosion/sediment control and mass
Developer (private) or City
Contractor
grade the site.
(public) project.
Place topsoil, seed, mulch except on
Developer (private) or City
Contractor
boulevards and front yard utility easements.
(public) project.
Bring transformer pads to grade. Wait for
private utilities.
After curb and gutter is in, install private
Developer.
Private Utility companies.
utilities in easement area.
After utilities are in, construct sidewalk.
Developer (private) or City
Contractor
(public) project.
Place topsoil, seed, and mulch on remaining
Developer (private) or City
Contractor
disturbed areas.
(public) project..
Complete "as- built" survey for all site grading.
Developer (private) or City
Developer's Engineer if private
This now becomes the "Development Plan"
(public) project.
project, City Engineer if public
project.
Place silt fence behind curb (or sidewalk)
Developer (private) or City
Contractor
throughout development.
(public) project.
Set Property Irons.
Developer
Developer's Surveyor
Transfer permit to Developer when
Developer (private) or City
Developer's Engineer if private
construction is complete.
(public) project
project, or City Engineer if public
project
Sell lot. Issue MPCA homeowner fact sheet,
Developer
Developer
and make Development Plan and SWPPP
available to Builder.
Submit building permit application. Include
Owner
Builder
site survey and MPCA "Subdivision
Registration ".
Issue building permit.
City
Building Inspector
Construct 24' wide opening in silt fence at
Owner
Builder
driveway and place rock entrance. Place
additional silt fence as necessary to keep soil
on lot.
Maintain silt fence and other erosion/sediment
Developer, or Owner if
Developer, or Builder if sold.
control items.
sold.
Sweep streets as required.
Developer
Developer, or City if agreement to
back charge Developer.
Submit certified lot survey showing final
Builder
Builder
structures and lot elevations.
Issue Certificate of Occupancy.
City
City
19
Submit "Notice of Termination" to MPCA Developer Developer
within 30 days of final site stabilization and
removal of all non - builder silt fence and other
erosion/sediment control items.
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November, 4 2013
Page 1 of 4
Pursuant to due call and notice thereof, the Planning Commission for the City of St. Joseph met in regular
session on Monday, November 4, 2013 at 7:00 PM in the St. Joseph City hall opening with the Pledge of
Allegiance.
Members Present: Chair Ross Rieke, Commissioners Gina Dullinger, Chad Hausmann, Matt Killam,
Daryl Shaefer, Council Liaison Rick Schultz. City Administrator Judy Weyrens.
Members Absent: Commissioner Brad Cobb
Others Present: Mike McDonald, Tom Klein, Al Nowachek, Adam Silvers, Joe Pfannenstein, Mike
McDonald, Troy Rheaume.
Approval of the Agenda: Killam made a motion to approve the agenda as presented; seconded by
Schultz seconded. Motion carried unanimously by those present.
Approval of the Minutes: Schultz made a motion to approve the October 7, 2013 minutes as
presented; seconded by Dullinger and passed unanimously by those present.
Public Hearing, Interim Use Permit: Chair Rieke opened the public hearing to which Weyrens stated the
purpose of the public hearing is to consider granting an interim use permit to allow an owner occupied
rental at 321 Jasmine Lane E. St. Joseph Code of Ordinances 52.27 subd 5 allows for an interim use
permit as follows: residential rental provided the unit is owner occupied and provided the room(s) rented
does not contain separate kitchen facilities and is not intended for use as independent residence. The
owners may not exceed two in number and a copy of a recorded deed or recorded contract for deed must
be provided. The interim use permit request was submitted by Adam Silvers.
Adam Silvers spoke on his own behalf and stated that he recently purchased a home in the City and the
others living with him were helping him make payments. Weyrens asked how many were residing at the
house to which Silvers responded 5 including himself. Weyrens stated that she written testimony that was
signed concerned residents on Jasmine, which expressed concern about the number of people entering
and exiting the household and whether or not underage drinking was occurring.
Al Nowachek, 503 Jasmine Lane spoke in support of the Interim Use Permit. He stated that he came to
the hearing as a character reference for the men living at 321 Jasmine Lane. He stated that he has
known most of the men since they were little and he knows the type of people they are. He went on to say
that they are living there to help reduce the cost of their education as if they lived on campus they would
be paying approximately $ 800 /mo. Living off campus allow them to reduce their housing cost to
approximately $ 250.mo. Nowachek stated he gave the men permission to park in his driveway in the
event they need overnight parking or additional spaces. He is concerned that the letter from the
concerned citizens on Jasmine Lane is a bit of a double standard, as they have people over and cars
parked on the street as well.
As no one else wished to speak, Rieke closed the hearing at 7:10 PM.
Schultz questioned if the letter received was signed or if there is any idea how many residents share that
concerns expressed. Weyrens stated there are no signatures as the letter was closed concerned
residents of Jasmine Lane. Rieke stated that the concerns stated in the letter can be address through
enforcement and that interim use permits are renewed each year. Weyrens stated that the property is
limited to a maximum density of 3 three unrelated persons and based on the information provided by
Silvers, the current density is five. Therefore, the density will have to be reduced and the Planning
Commission should consider a time frame for compliance. Rieke responded that since this is current
violation he did not feel it was appropriate to discuss enforcement matters; rather they should be handled
administratively.
November, 4 2013
Page 2 of 4
Schultz made a motion authorizing the Planning Commission Chair and Administrator to execute
the Findings of Fact, recommending issuance of an interim use permit to Adam Silvers, 321
Jasmine Lane E with the following contingencies:
a. The property owner will reduce the number of tenants to two, no later than December
31, 2013.
b. The property owner will complete the license process with 30 days of Council approval
of the Interim Use Permit at which time the property shall be in full compliance with the
St. Joseph Code of Ordinances, including the maximum density.
c. The property owner will manage the property in compliance with the St. Joseph Code
of Ordinances.
d. The permit shall be reviewed annually with notification in the St. Joseph Newsleader
allowing for input from the neighborhood.
e. The Interim Use Permit shall expire upon transfer of property.
Discussion: Weyrens stated that the interim uses are reviewed every August for compliance. If
there are no violations, then it is renewed by administration. If there are violations, then the permit
will be brought to the Planning Commission again.
Motion to recommend approval was seconded by Hausmann and passed unanimously by those
present.
Public Hearing, Special Use: Chair Rieke opened the public hearing to which Weyrens stated the purpose
of the hearing is to consider a special use permit which would replace an existing billboard with a digital
face at 320 Old HWY 52. St. Joseph Code of Ordinances 52.27 subd. 3(k) identifies uses which in the
judgment of the Planning Commission and City Council are similar to those listed in the zoning district.
The request has been submitted by Mike Deutz.
Weyrens stated that the property submitted a building permit application to reface an existing billboard
with a digital sign. The building permit application was denied as billboards are not currently allowed in
the City limits. The use is allowed to continue as a non - conforming use which is regulated by MN Statute.
Mike McDonald, 213 131h Ave SE: believes the City is overly restrictive on signs in general in the City. He
stated that the sign has been there for a long time and that the studies done regarding signs are old. He
added that electronic signs are all over the place. The EDA paid 1000 to a chiropractor to change the sign
and is not sure what the difference between that instance and this one. McDonald further stated that the
City was considering converting the existing sign on CR 75 and College Avenue to digital and questioned
why the City could propose such a use, but a property owner cannot.
Weyrens clarified that when the City constructed the existing electronic sign a special use permit
was issued after a public hearing was held. At that time the Ordinance was different and billboards were
allowed. The City was looking to keep the existing use and would have gone through a process.
Joe Pfannenstein approached the Commission stating that he is supportive of advertising in the City in
order for the business to succeed and for people to know what's out there.
Mike Deutz spoke on his own behalf. He stated that in his opinion he is only performing maintenance on
the sign with minor changes to the dimension. The current trend in billboards is to use digital technology
so he is replacing the existing billboard with anew face. Deutz stated that if the Planning Commission
has any questions Troy Rheaume, sign vendor, would be available to answer any questions.
With no one else wishing to speak, Rieke closed the public hearing at 7:24 PM.
Rieke stated that in his opinion, the location of the sign is where it has the least impact on the City.
Schaefer stated that he sees it as an existing structure and the property owner is looking to complete
maintenance and he does not have an objection to the proposed special use request.
November, 4 2013
Page 3 of 4
Reike stated that a fair question would be whether changing the sign substantially would call into question
the grandfather status. Schultz added that his only concern is the non - conforming sign in the ordinance,
and how to go about extending the use of non - conforming use. He stated you cannot take a non-
conforming object and make it conforming. Weyrens clarified that the only portion of the billboard that will
remain is the posts as a new crossbar will be attached to the existing poles and the new digital face will
connect to the cross bar.
Killiam asked whether there is positive or negative feedback on the billboard. Troy Rheaume stated that
he has received requests for advertisers who are interested in utilizing the sign for their advertisements.
When questioned about the length of each advertisement, Rheaume stated that they typically have six to
eight advertisers with each ad displayed for eight to ten seconds. The industry is regulated and prohibits
flashing and provides standards, of which his company adheres to. Deutz stated that he would be open
to allowing the City to use the sign for community events as well.
Schultz asked how the brightness of the sign is adjusted. Rheaume stated that they can adjust it to lower
the brightness. Hausmann added that he does not have a problem with the location of the sign and stated
that it would be nice to include road closure and emergency type updates on the sign as well.
Weyrens stated that the property being discussed is a separate parcel without much ability for
development and it is currently zoned as R1, Residential. Deutz stated that the County has the property
as commercial to which Weyrens clarified it is commercial for taxing purposes only, zoning is different.
Dullinger stated that she agrees with Deutz that he is merely performing maintenance on the sign as in
today's environment, refacing a billboard probably is updating it to digital. Hausmann questioned the
photograph presented to the Planning Commission as it looks like the number of support poles has
increased. He questioned if the support structure will change. Deutz stated that the poles are the same,
they will not increase. Deutz clarified that the only change in the sign is a slight increase in the height, but
it is nominal.
Hausmann made a motion to recommend to the Council issue the special use permit allowing the
use to continue as the property owner is refacing an existing sign with modern technology, which
in his opinion is a maintenance issue. The motion was seconded by Killam.
Aye: Rieke, Hausmann, Killam, Schaefer, Dullinger
Nays: Abstain: Schultz Motion Carried: 5:0:1
Weyrens stated that the special use will also come before the council on November 21, 2013.
Continuation — McDonalds Variance Request: Weyrens stated that she had correspondence from
McDonalds in which they stated that they are requesting a new hearing to allow a sign 40 feet in height.
While she has not received the request as of this meeting, she recommended the Planning Commission
extend the time period to act on a land use matter an additional 60 days, in the event they decide not to
request a new hearing. She stated that they recently used flags to check visibility and they felt an
additional ten feet is needed to create the desired visibility. They indicated that the trees and overgrown
shrubbery limit visibility. Hausman requested that when the matter comes to the public hearing, the
property owner provide some data on the distance required for visibility.
Schultz motioned to table action the on the request for variance for the maximum height of a sign
as presented by McDonalds, and to extend the land use requirement date an additional 60 days.
The motion was seconded by Hausmann and passed unanimously by those present.
S&H Partnership: Weyrens stated that the Planning Commission has previously considered the concept
plan for a ten unit townhome development and recommended the Council accept the preliminary plat.
Since that time the property owner has changed the layout slightly and the City Engineer is requesting
that the property owner provide screening at the end of the street facing the rear yards of Ellie Court and
that a street light be placed on the intersection of 4th Ave SE and the driveway to the apartment complex.
November, 4 2013
Page 4 of 4
Rieke stated that typically if the City Engineer has specific views on the projects or enhancements to the
project, that that should be something that the Planning Commission would agree with. The Commission
discussed whether or not the developer should be required to add a street light as the ten homes
proposed do not have a significant increase. Weyrens stated the same developer owns the Apartment
Complex therefore the additional light is being requested.
Tom Klein, representative of S & H, spoke on their behalf. He stated that they have reviewed the
comments of the City Engineer and will work through them for compliance. He did question the need for
the street light and will discuss the matter further with the City Engineer. The Planning Commission
affirmed the request of the City Engineer and stated that before the Council can review the final plat, the
concerns of the City Engineer must be addressed.
Ordinance Amendments — 52.32 and 52.34: Weyrens stated that since the last meeting she has provided
revisions to Ordinance 52.32 (B2 Highway Business) and 52.34 (Industrial). The new verbiage does not
require an accessory building to meet the exterior adornment requirements if they are located in the rear
yard and are not visible form the public right of way.
Schultz made a motion to recommend the Council approve the amendment to Ordinance 52.32
presented with the grammatical change suggested by Dullinger. The motion was seconded by
Hausmann and passed unanimously by those present.
Schultz made a motion to recommend the Council approve the amendment to Ordinance 52.34 as
presented with the grammatical change suggested by Dullinger. The motion was seconded by
Hausmann and passed unanimously by those present.
Ordinance Amendment — 56. Fence: Weyrens stated that at the last meeting staff had requested the
Planning Commission prohibit the use of snow fence as permanent fencing; however, since the last
meeting it was discovered that the Ordinance limits fence material to wood or chain link. Hausmann
asked whether PVC fencing would be allowed. Weyrens stated that in Ordinance 56.07 under border
fence, plastic is included. The Planning Commission requested that staff review the Fence Ordinance
again and provide a list of acceptable fence material for consideration by the Planning Commission.
Council Liaison Report: Schultz discussed the meeting held at the St. Cloud Library regarding the
relationships between townships and cities. He attended the EDA real estate round table and thought it
was one of the best sessions he had been to.
Adiourn: The meeting was adjourned by consensus at 8:23 PM.
Jud Weyrens
Ad inistrator
OFFICE OF COUNTY RECORDER
STEARNS COUNTY, MINNESOTA
Document # 1 296$80
L - o
Certified, Filed, and/or Recorded on
CO
08 -28 -2009 at 03:44 PM
DIANE GRUNDHOEFER
STEARNS COUNTY RECORDER
CITY OF ST. JOSEPH
DEVELOPER AGREEMENT
(S &H Replat and Development of Graceview Estates 2)
THIS AGREEMENT, made and entered into this ILL N' day of 2009, by and
between S &H Partnership, 229 5`h Avenue South, Suite 101, St. Cloud, MN 56301, hereinafter
called "Developer ", and the City of St. Joseph, Minnesota, a municipal corporation, hereinafter
called the "City ".
WITNESSETH:
WHEREAS, the Developer is the Owner of certain Real Property known as Graceview Estates 2,
(herein after called the "Property" or "Development" or "Development Property") located within
the City of St. Joseph which is legally described as:
Outlot A, Graceview Estates 2, St. Joseph, Minnesota, according to the plat and survey
on file and of record in the Office of the County Recorder in and for Steams County,
Minnesota, and which is being replatted as Lots 1 through 12, Block 1, S &H Replat of
Graceview Estates 2.
WHEREAS, the Developer intends to develop the property as a residential mixed use
development consisting of the following residential uses and parcels: Two (2) two and one -half
(2 !/2) story apartment buildings connected by a one -story connecting unit, with each building
having 30 units, for a total of 60 apartment units on Lot 1 of Block 1, S &H Replat of Graceview
Estates 2; and ten (10) patio-bay homes (two fourplexes and one duplex) on Lots 2 through 12,
Block 1, S &H Replat of Graceview Estates 2. All proposed uses must meet the zoning
requirements of the St. Joseph Ordinances, to include: Ordinance 52.09, PUD -Plan Unit
Development Overlay District; Ordinance 52.29, R -3 Multiple Family Residence District; and
Ordinance 52.30, R -4 Townhouse/Patio Home Residential District. The development on Lot 1,
Block 1 will meet the zoning requirements of the R3, Multiple Family Zoning District. The
development on Lots 2 through 12, Block 1 will meet the zoning requirements of the R4,
Townhome/Patio Residential District.
WHEREAS, the Developer has submitted to the City for approval the final plat drawing attached
hereto as Exhibit A (the "Plat ") and the Mixed Residential Use PUD plans and drawings listed
✓ t:�,a s _ SCR
on the attached Exhibit B (the "Mixed Residential Use PUD ") and herein referred to collectively
as the "Project";
WHEREAS, it is the intention of the Developer to replat the Property under the St. Joseph PUD
Ordinance of the City of St. Joseph;
WHEREAS, the Developer has submitted to the City for approval the final plat for Lots 1
through 12, Block 1, S &H Replat of Graceview of Estate 2; and
WHEREAS, the City's Code of Ordinances allows the City to require a Developer Agreement to
provide for inspection and review during the construction project and to set forth obligations of
the landowner after approval of the final plat.
NOW, THEREFORE, in consideration of the mutual covenants expressed herein, IT IS
HEREBY AGREED AS FOLLOWS:
1.0 REQUEST FOR AND CONDITIONS OF THE PRELIMINARY AND FINAL
PLAT, SPECIAL USE PERMIT AND PUD AMENDMENT APPROVAL.
1.1 Reauest for Preliminary and Final Plat, Special Use Permit and PUD Amendment
Approval: The Developer has asked the City to grant final approval of the
Preliminary Plat and Final Plat, Special Use Permit and PUD Amendment for the
mixed residential use development which will be called Lots 1 through 12, Block 1,
S &H Replat of Graceview Estates 2.
1.2 Conditions of Development Plan Approval and Plat Approval: The City, after
requisite notice and hearing, has granted final approval of the Plat, Special Use
Permit and PUD Amendment of the project subject to the terms and conditions of
this Agreement.
1.3 Scone of Agreement. This Agreement, and the terms and conditions hereof, apply
only to the Project. This Agreement does not obligate Developer to construct the
Project, but Developer must comply with the Agreement if it goes forward with the
Project. If Developer elects or is unable to go forward with the Project, or chooses
not to rebuild the Project after a fire or casualty, it may propose to the City a new
project or development for the Property, subject to the regulations then in effect for
development approvals, and the Agreement shall not apply in any manner to such
new proposal.
2.0 RIGHT TO PROCEED
The Developer may not grade or otherwise disturb the earth, remove trees, construct sewer lines,
water lines, streets, utilities, public or private improvements, or any buildings, until all the
following conditions have been satisfied: (1) this Agreement has been fully executed by both
parties and filed with the City Administrator; (2) the City has issued a letter that all conditions
have been satisfied and that the Developer may proceed, which letter will not be unreasonably
withheld or delayed; (3) the Plat and this Agreement have been recorded with the Stearns County
.- .. 2 SCR of ��
Recorders Office; and (4) the escrow required to secure performance of the Developer's
obligations under this agreement in the amount of $5,000.00 has been received by the City.
3.0 RESIDENTIAL PUD
3.1 Intent. The PUD District is intended to control the use and development of land
and improvements by creating a mixed residential uses.
3.2 Mixed Residential PUD. The Development must meet all requirements under
the City of St. Joseph Ordinance No. 52.09, PUD -Plan Unit Development Overlay
District; Ordinance 52.29, R3 Multiple Family Residence District; and Ordinance 52.30,
R4 Townhouse/Patio Home Residential District.
4.0 DEVELOPER CONSTRUCTED PRIVATE IMPROVEMENTS
4.1 The Developer agrees to construct those private improvements itemized below
and specifically illustrated on Exhibit C. (hereinafter known as the "Private
Improvements "):
a. Site Grading
b. Water distribution system including fire hydrants, valves, and
appurtenances.
C. Sanitary Sewer Collection System
d. Building Services (with regard to extension of services)
e. Concrete Curb & Gutter and bituminous pavement as it relates to ingress
and egress and parking
f. Erosion Control on Site
g. Storm Water Runoff Treatment and Control on -Site
h. Signs Designating Pedestrian Walkway, Traffic Directional, regulatory,
and warning signs in Designated Parking Areas
i. Permanent turf establishment
j. Construction of a temporary, paved rural road section from Elena Lane to
7s' Avenue Southeast.
4.2 Project Specific Requirements for Developer constructed Private Improvements.
Development Plan Compliance. All buildings and accessory structures shall be
cited and constructed on the Property as shown on the Development Plan
referred to as Exhibit B (hereinafter the "Development Plan ") subject to the
provisions of this Agreement. Any deviations from the Development Plan in the
approved preliminary PUD must be approved pursuant to St. Joseph Ordinance
52.09, Subd. 11 dealing with minor and major changes to an approved
preliminary PUD. A minor change to an approved PUD requires a public
hearing and shall be incorporated into the application for final PUD approval. A
"minor change" means any departure from the conditions of preliminary
3 SCR -a ,,of a4
i
approval which is not a "major change" and includes, but is riot limited to, the
following:
1. an increase in the number of structures;
2. revisions to location of internal roads; and
3. revisions similar in nature to those above, as determined by the
City.
A proposed major change through an approved preliminary PUD shall require
reapplication for preliminary PUD approval and any notification regarding such
preliminary PUD approval shall describe the proposed major change or changes.
A major change is any departure from the conditions of the preliminary PUD
approval which would result in any of the following:
1. revisions to the approved design concept;
2. revisions to the approved uses;
3. an increase of greater than 15% in density;
4. a decrease in the amount of landscaping, site perimeter buffering,
and open space; and
5. an increase in traffic volumes or change in circulation patterns
which impact surrounding development.
4.3 Development Project. The development project consists of the construction of
two 2'% story apartment buildings, connected by a one -story connecting unit, with
each building having 30 units, for a total of 60 apartment units, and the height of
the buildings will be no more than 30 feet, as measured in accordance with the
City Ordinance, with the ground measurement being measured from: 1) on the
non - garage side of the apartment — the height of the grades; and 2) on the garage
side of the apartment, the height of the grade next to the building before
excavation, which measurement height is intended to be four (4) feet above the
surface of the driveway entering the tuck -under garages at the building face. The
Project will also contain ten (10) patio -bay homes (two fourplexes and one
duplex) on Lots 2 through 12, Block 1.
4.4 Building Code Compliance. All buildings and accessory structures shall be
constructed in accordance with the Minnesota State Building Code as adopted and
modified by the St. Joseph City Code.
4.5 Site Preparation. The Developer shall comply with any erosion control method
ordered by the City for the prevention of damage to adjacent property and the
control of surface water runoff. As the development progresses, the City may
impose additional erosion control requirements if in the opinion of the City
Engineer such requirements are necessary.
4.6 Building Elevation. The proposed apartment buildings will not exceed 30 feet as
measured in accordance with the City Ordinance, with the ground measurement
4 SCR __It of Lk
being measured from: 1) on the non - garage side of the apartment — the height of
the grades; and 2) on the garage side of the apartment, the height of the grade next
to the building before excavation, which measurement height is intended to be
four (4) feet above the surface of the driveway entering the tuck -under garages at
the building face.
4.7 Building Exterior. The building exterior shall include at least one material from
each of the following groups: a) Face brick, natural stone, wood textured precast
concrete panels, textured concrete block, stucco; and b) Pre - finished decorative
panels made of metal, vinyl, steel or wood. Any changes in the exterior materials
shall require prior approval by the City Planning Commission.
4.8 Inaress/Egress. Vehicular access to the Property shall be from 4th Avenue SE as
indicated on the site plan.
4.9 Siggage. The Developer must provide detailed site plans for the construction of
any signage and the signs must meet all requirements of the St. Joseph Zoning
Ordinance. The development must include site management signs, such as
pedestrian walkway, traffic directional signs and designated parking areas.
4.10 Li tin . The Developer must provide lighting to illuminate off - street parking
and access road areas as shown on Exhibit D. The Developer shall also provide
street lighting on 4a' Avenue SE at all intersecting access roads. Lighting shall be
provided in accordance with the St. Joseph City Code.
4.11 Parking Standards. The Developer shall provide off street parking and loading as
set forth in Exhibit B. It is the responsibility of the applicant to provide evidence
that there is enough parking for the various uses proposed for the plat.
Additionally, snow storage cannot occur within any designated parking areas as
set forth in Exhibit B.
4.12 GradingQrainage. The final drainage plans must be approved by the City
Engineer.
4.13 LandsoRi:nglEencingJScreening. The Development will include landscaping to
include trees, grass, berms, and plantings as shown on Exhibit E. Landscaping,
fencing and screening requirements for new structures shall be considered as part
of the site plan approval for each structure, and the building site plan must be
approved by the City in conjunction with the building site approval process
4.14 Fire Hydrant/Fire Lane. Fire Hydrants must be located 50 to 75 feet away from
the exterior walls of the building. Before issuance of a building permit the
developer must provide details of fire apparatus access to the back of the building
or details of an automatic fire suppression system.
5
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4.1 S Utility Plan. The Developer must have final utility plans approved by the City
Engineer before issuance of a building permit. The water mains,, sanitary sewers,
storm sewers, and related appurtenances will be privately owned and maintained
utilities on the site by the Developer, and it assigns or heirs. The City retains the
right to access the utilities at all times.
4.16 HVAC/Dumpster. The HVAC equipment and dumpster shall be screened from
view as shown on the Development Plan.
4.17 NPDES /City of St. Joseph SWPPP. At the time of application for a building
permit or site grading and utility construction, a completed storm water
application must be submitted. Before work can begin, a copy of the MPCA
NPDES permit and Storm Water Pollution Prevention Plan (SWPPP) must be
submitted to the City and posted at the job site.
4.18 Fire/SafetyReguirement. Project must be constructed to comply with City Code
and statutory requirements.
4.19 Requirements for Building Permit. No building permit shall be issued for this
Property until the Developer has signed and returned this Development
Agreement, obtained any necessary easements and provided the City with a copy
of the easement documents, submitted any additional information as directed by
the City Engineer, and complied with all conditions set forth in this Developer
Agreement which must be met prior to issuance of a building permit.
4.20 Required Permits. The Developer is required to obtain the following permits
before issuance of the building permit: Minnesota Dept. of Health Water Main
Extension, MPCA Sanitary Sewer Extension, Minnesota Dept. of Labor &
Industry Plumbing Plan Approval, and NPDES Storm Water Permit.
4.21 Requirements for Certificate of Occupan cy. No Certificate of Occupancy shall be
issued for this property until the Developer has complied with all requirements of
this Developer Agreement and has complied with all State and City Building
Codes and Ordinances.
4.22 Construction Schedule. The Developer shall apply for a building permit within
one year of the execution of this agreement. Failure to apply within the one year
period, shall render this Agreement null and void. The improvements shall be
substantially completed by the first (1") anniversary of the date the building
permit for the Project has been issued to Developer, and no later than the second
anniversary of the execution of this Agreement, subject to reasonable extension
for delays due to force majuere causes and material supply shortages beyond the
control of Developer (the "Completion Date ").
4.23 Temporary Paved Road from Elena Lane to 7a' Avenue Southeast. The Developer
must construct a temporary, paved rural road section from Elena Lane to 7a'
6 SCR io 0 f ;—t q
1
Avenue Southeast before any construction may start. However, the final wear
coat may be applied at the time the parking areas are paved but before the
Certificate of Occupancy is issued.
4.24 Storm Water Treatment Pond. The pipe grade entering the storm water treatment
pond shall be adjusted lower from the rear yard to minimize discharge velocity
and erosion potential. Additionally the Certificate of Occupancy cannot be issued
until the Stormwater Treatment Pond is completed and accepted by the City
Engineer. The Developer, its assigns and heirs, shall provide maintenance for the
storm water sedimentation and infiltration areas and for the site storm sewers.
4.25 Construction Parkins. All vehicles for construction workers or other persons
working on the project must be parked on the property legally described as Outlot
B, Graceview Estates (see Exhibit F).
4.26 Spoil Pile Management. The Developer shall provide a spoil pile management
plan before final plat approval. The plan will identify all spoil and stock piles,
including location, material type, and erosion control. At any given time, the
stock piles cannot exceed twelve (12) feet in height and only select grading
material and topsoil may be stored on site. All stock piles must be removed no
later than one (1) year from the date of execution of the final plat.
4.27 Eniggencv Storm Water Pumping. The Developer acknowledges that the setback
distance between the storm water sedimentation pond and the apartment complex,
duplex patio home, and 9 -unit garage is closer than recommended by the City's
Storm Water Management Plan. Therefore, the Developer, it assigns and heirs,
agrees to maintain a service agreement with a local pumping equipment provider
for emergency pumping services for the building units in the event of flooding.
The pumping services contract shall be provided annually to the City with the
rental license. The Developer further agrees to indemnify the City and its
officers, agents, and employees against claims for damages caused by flooding as
identified in the indemnification provision elsewhere in this agreement at Section
5.5.
4.28 Water /Sewer Access and Trunk Fees. The Developer shall pay WAC and SAC
charges for all structures on the Property to be connected to the municipal water
and sanitary sewer system as determined by St. Joseph Ordinance No. 44. The
City agrees to calculate the apartment SAC and WAC charges as follows: for
permits issued in 2009, using rates for 2008 (See Exhibit G); for permits issued
after 2009, such rates will be the rate for the previous year. The patio -bay home
SAC and WAC charges shall be charged at the then - current rate charged by the
City. Lastly, the SAC and WAC fees are due prior to issuance of the building
permit.
5.0 GENERAL TEEMS AND CONDITIONS
7
SCR,_.Z,_,,of 2'i
5.1 Title. The Developer hereby warrants and represents to the City, that
Developer's interest in the Development is fee owner.
5.2 Binding Effect on Parties and Successors. The terms and provisions of this
Agreement shall be binding upon and accrue to the benefit of the heirs,
representatives, successors and assigns of the parties hereto and shall be binding
upon all future owners of all or any part of the Development and shall be
deemed covenants running with the land. Reference herein to Developer, if
there be more than one, shall mean each and all of them. This Agreement, at the
option of the City, shall be placed on record so as to give notice hereof to
subsequent purchasers and encumbrances of all or any part of the Property
and/or Project and all recording fees shall be paid by the Developer. If the
Property and Project are sold or conveyed to a third party, and the third party, in
a writing satisfactory to the City, takes an assignment of, and agrees to assume
the obligations of the Developer under, this Agreement, the prior
owner /transferor will, from and after the effective date of the assignment and
assumption, be released from any further obligations under this Agreement;
provided however, that in no event will S &H Partnership be released from its
obligations under this Agreement prior to the City's issuance of a certificate of
occupancy for the Project.
5.3 Notice. Any notices permitted or required to be given or made pursuant to this
Agreement shall be delivered personally or mailed by United States mail to the
addresses set forth in this paragraph, by certified or registered mail. Such
notices, demand or payment shall be deemed timely given or made when
delivered personally or deposited in the United States mail in accordance with
the above. Addresses of the parties hereto are as follows:
If to the City at: City Administrator /Clerk
City of St. Joseph, P.O. Box 668,
St. Joseph, MN 56374
If to the Developer at: S &H Partnership
229 5a' Avenue South
Suite 101
St. Cloud, MN 56301
Telephone: (320) 251 -8284
5.4 Incorporation of Documents by Reference. All general and special conditions,
plans, special provisions, proposals, specifications and contracts for the
improvements furnished and let pursuant to this Agreement shall be and hereby
are made a part of this Agreement by reference as if fully set out herein in full.
5.5 Indemnification. The City and its officers, agents and employees shall not be
personally liable or responsible in any manner to the Developer, contractor or
subcontractors, materialmen, laborers, or to any other person or persons
8
SCR -.._ of
whomsoever, for any claims, demands, damages, actions, or causes any action of
any kind or character whatsoever arising out of or by reason of the execution of
this Agreement, or the design, performance, and completion of the work and the
improvements to be provided by the Developer pursuant to this Agreement and
for flooding and related damages of the storm water sedimentation pond. The
Developer shall hold the City and City Engineer harmless from claims by third
parties, including but not limited to other property owners, contractors,
subcontractors and materialmen, for damages sustained or costs incurred
resulting from plat approval, development of the Property, and use of Property
to include flooding from the storm water sedimentation pond. The Developer
shall indemnify the City for all costs, damages or expenses, including
engineering and attorney's fees, which the City may pay or incur in consequence
of such claims by third parties.
5.6 License to Enter Land. The Developer hereby grants the City, its agents,
employees, officers and contractors a license to enter the Property to perform all
work and/or inspections deemed appropriate by the City during the development
of the Property.
5.7 Streets.
(a) The Developer shall promptly clean any soil, earth or debris from streets
in or near the Development resulting from construction work by the
Developer or its agents or assigns as often as necessary and as directed
by the City for public safety and convenience. In the event the
Developer fails to clean the streets within 48 hours of the direction of the
City, the City may undertake the work and seek reimbursement from the
security provided by the Developer as set forth in paragraph 5.10 of this
Agreement, or alternatively, assess the cost against property owned by
the Developer within the City.
(b) Any damage to existing City streets due to construction activities within
the development shall be repaired to the satisfaction of the City at the
Developer's expense.
(c) The Developer shall repair at the Developer's expense any structural
damage to the temporary street connection between Elena Lane and 7a'
Avenue SE. This responsibility shall survive the issuance of the
Certificate of Compliance under paragraph 5.8 of this Agreement until
such time as the underlying property develops and a permanent street
connection to 7`s Avenue SE is constructed.
5.8 Certificate of Compliance. This Agreement shall remain in effect until such
time as Developer shall have fully performed all of its duties and obligations
under this Agreement. Upon the written request of the Developer and upon the
adoption of a resolution by the City Council finding that the Developer has fully
E
SCR 9 of ��
complied with all the terns of this Agreement and finding that the Developer
has completed performance of all the Developer's duties mandated by this
Agreement, the City shall issue to the Developer on behalf' of the City an
appropriate Certificate of Compliance. The Acceptance of the Improvements
contracted in accordance herewith by the City does not constitute a certificate of
compliance and does not release the Developer from ongoing duties or
responsibilities arising under this contract. The issuance of a Certificate of
Compliance does not release the Developer or any Surety from warranty
responsibilities or responsibilities for future improvements or from ongoing
duties or responsibilities arising under this Agreement.
5.9 Reimbursement of City's Costs. The Developer shall reimburse the City for all
costs, including all reasonable engineering, legal, planning and administrative
expenses, incurred by the City in connection with all matters relating to the
negotiation, administration and enforcement of this Agreement and its
performance by the Developer. The Developer shall also reimburse the City for
any add -to- construction costs related to the installation of street lighting or private
utilities within the Development. The Developer shall also be responsible for the
cost of acquiring and installing street signage consistent with that used in other
recent developments within the City. Such reimbursement shall be made within
14 days of the date of mailing the City's notice of costs. If such reimbursement is
not made, the City may place a hold on all construction or other work related to
the Development, or refuses the issuance of building permits until all costs are
paid in full.
5.10 Renewal of Security. If any escrow account or bond deposited with the City in
accordance with this Agreement shall have an expiration date prior to the
Developer's obligations hereunder being complete, the Developer shall renew
such security or deposit substitute security of equal value meeting the approval of
the City at least thirty (30) days prior to the expiration of such security. Failure to
post such alternate security or renew such security shall constitute a default and
the City may place a moratorium on all construction or other work related to the
Development, refuse the issuance of building permits, and declare the entire
amount thereof due and payable to the City in cash. Such cash shall thereafter be
held by the City as a security deposit in the same manner as the security
theretofore held by the City.
5.11 Plattine. The Developer must include all of the Development Property in the final
plat of the development.
5.12 Utility Location. The Developer agrees that all utilities within the Development
will be installed underground, including without limitations electrical, telephone,
cable television and natural gas.
5.13 Plat Dedication. Upon approval and execution of this Agreement, the City shall
approve the final plat provided it otherwise meets the requirements of the City's
10
SCR _ 112 - of --2A-
Ordinance governing Subdivisions. If the Plat contains the dedication of an
easement, the use of property within the area of an easement is specifically
restricted by prohibiting the construction of any structure or fence, planting trees
or shrubs, or storing of personal property within the area of the easement which
could delay, restrict or impede access within the easement area by a person or
vehicle.
5.14 Street Li ting and Signage. The Developer shall be responsible for the cost of
purchase and installation of street lights and street signs. The Developer will
name all streets within the Development in accord with City Ordinance
regulations. The improvement shall not be accepted until installation of street
lights and street signs are completed.
5.15 Assignment. This Agreement may not be assigned by the Developer except upon
obtaining the express written consent of the City. Unless expressly released by
the City, the Developer shall remain obligated to fulfill the duties required under
this agreement.
5.16 Integration. This Agreement contains all of the understandings and agreements
between the parties. This Agreement may not be amended, changed, or modified
without the express, written consent of the parties hereto.
5.17 Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
5.18 Governed by Minnesota Law. This Agreement shall be interpreted under the laws
of the State of Minnesota.
5.19 Representation. Rajkowski Hansmeier Ltd. represents the City with regard to this
Agreement. The Developer is hereby advised to seek independent legal advice
prior to execution of this Agreement.
6.0 DEFAULT AND REMEDIES
6.1 Default. Failure by the Developer to observe and perform any covenant,
condition, or obligation contained in this Agreement shall be considered a default
by the Developer under the Agreement.
6.2 Right to Cure. The City shall give the Developer written notice of any default
under this Agreement. The Developer shall have 10 days in which to cure the
default (or in which to commence good faith efforts to cure if the default is one
which cannot reasonably be cured in 10 days).
6.3 Remedies. if an event of default is not cured by the Developer within the
applicable cure period, the City may do any, all or any combination of the
following:
11
SCR ,_i 1—of
(a) halt all further approvals regarding improvements or issuance of
building permits or occupancy permits relating to the Development
Property;
(b) seek injunctive relief;
(c) take any other action at law or in equity which may be available to the
City.
Signed and executed by the parties hereto on this day of 01U& 112009.
CITY:
ATTEST
Ju y eyr s
C' y dministrator /Clerk
STATE OF MINNESOTA )
)ss
COUNTY OF STEARNS )
CITY OF ST. JOSEPH
By
Alan Rassier
Mayor
On this day of kil u t , 2009, before me, a notary public within
and for said County, personally appeared Alan Rassier and Judy Weyrens, Ito me personally
known, who, being each by me duly sworn did say that they are respectively the Mayor and the
City Administrator /Clerk of the City of St. Joseph, Minnesota, the municipal corporation named
in the foregoing instrument, that said instrument was signed on behalf of said municipal
corporation by authority of its City Council and said Mayor and City Administrator
acknowledged said instrument to be the free act and deed of said corporation.
(WoA 10;�AJAA-
SARAH MALKE Notary Public
NOTARY PUBLIC - MINNESOTA
My Commission Expires Jan. 31.2010
DEVELOPER:
S &H PARTNERSHIP
B
PWA-� mo (P—RE, s I dey*
12
SCR 12-of
STATE OF MINNESOTA )
)ss
COUNTY OF STEARNS. )
On this 5.%J day of #A IL `, 2009, before me, a �t, bl � within and for said County, personally appeared A6dr tN c N. F- �e�..r. ♦ �`'e f '� ",5
S &H Partnership, the Developer named in the foregoing instrument, and that said instrument was
signed on behalf of said company by authority of its Board of Governors/Directors and said
resident/CEO acknowl t� drw n t to be the free act an d of said corpo tion.
JOHN R. KOCH
NDT MIY PUBLIC- MNNESOr11►
My Comm. Exp. ,Nn. 81, 2010 Not P lic
THIS INSTRUMENT WAS DRAFTED BY:
Thomas G. Jovanovich — 5284X
Rajkowski Hansmeier Ltd.
11 Seventh Avenue North
P.O. Box 1433
St. Cloud, Minnesota 56302
Telephone: (320) 251 -1055
13
SCR 1-3 of
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https: // portal. sehinc. com /sehsvc/html /dvo /mapLayout.htm SCR _¢, of-4- 7/27/2009
City of St. Joseph Print Form"
'EXHIBIT G Water / Sewer Access Charge (WAC /SAC) - Non Residential
Project Name 5 & H Partnership (Graceview Apartments)
Please check one fx— New Building F- Alteration (Change in Use) r Addition
of the following:
j- Demolition with new use r Demolition Declaration Only
Proposed Occupant S & H Partnership
Type of Business 60 Unit Apartment Complex
Site Address Only Valid if construction begins In 2009 Total Square Footage
Calculation of Water Access Charge p? Applicable, select type of Facility
(— Not Applicable
Units/
Square Feet
Facility
Parameter
Value
Number of
Parameters
Vakreof
Parameters
60
Multiple Family Residence
1
60
234,000
Trunk Sewer
1
0
S 0.00
Subtotal
S 0.00
Water Access Fee per parameter 3,900
Subtotal 234,000
Calculation of Sewer Access Charge IF Applicable, select type of Facility
r Not Applicable
Units/
Square Feet
Facility
Parameter
Value
Number of
Parameters
Value of
Parameters
60
Multiple Family Residence
1
60
120,000
Trunk Sewer
t
0
$ 0.00
Subtotal
1 $ 0.00
Sewer Access Fee per parameter 2,000 Subtotal 120,000
T
Calculation of Trunk Sewer/Water Fees Applicable, select type of Facility J Not Applicable
F'
E
S.
CREDITS - If this project includes property that has
previously paid WAC/SAC fees, please complete the
Application for WAC/SAC credit.
Determination made by Judy Weyrens
Less Credits
Total Development Fees 354,000
Date July'24, 2009
SCR -!2�a of Li
Name of Lift Station
Fee Per
Unit/Acre
Units /
Acres
Total
Fee
Trunk Water
Trunk Sewer
Subtotal
CREDITS - If this project includes property that has
previously paid WAC/SAC fees, please complete the
Application for WAC/SAC credit.
Determination made by Judy Weyrens
Less Credits
Total Development Fees 354,000
Date July'24, 2009
SCR -!2�a of Li
City of St. Joseph
Water / Sewer Access Charge (WAC /SAC) - Non Residential
Project Name S & H Partnership (Graceview Apartments)
Please check one r New Building (- Alteration (Change in Use) (- Addition
of the following:
F- Demolition with new use (' Demolition Declaration Only
Print Form
Proposed Occupant S & H Partnership Type of Business 60 Unit Apartment Complex
Site Address Fees if construction begins in 2010 Total Square Footage
Calculation of Water Access Charge OZ Applicable, select type of Facility r Not Applicable
Units/
Square Feet
Facility
Parameter
Value
Number of
Parameters
Value of
Parameters
W
Multiple Family Residence
1
60
246,000
Trunk Sewer
1
0
$ 0.00
Subtotal
$ 0.00
Water Access Fee per parameter 4,100
Subtotal 246,000
Calculation of Sewer Access Charge OZ Applicable, select type of Facility
r- Not Applicable
Units/
Square Feet
Facility
Parameter
Value
Number of
Parameters
Value of
Parameters
60
Multiple Family Residence
1
ISO
132,000
Trunk Sewer
1
0
$ 0.00
Subtotal
$ 0.00
Sewer Access Fee per parameter 2,200
Subtotal 132,000
T..
R;" Calculation of Trunk Sower/Water Fees r Applicable, select type of Facility 1W Not Applicable
U`:
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Sr
CREDITS - If this project includes property that has
previously paid WAC/SAC fees, please complete the
Application for WAC/SAC credit.
Determination made by Judy Weyrens
Less Credits
Total Development Fees 378,000
Date July 24, 2009
SCR y4 of_� -1
Name of Lift Station
Fee Per
Unit/Acre
Units /
Acres
Total
Fee
Trunk Water
Trunk Sewer
Subtotal
CREDITS - If this project includes property that has
previously paid WAC/SAC fees, please complete the
Application for WAC/SAC credit.
Determination made by Judy Weyrens
Less Credits
Total Development Fees 378,000
Date July 24, 2009
SCR y4 of_� -1
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St. Cloud Office
3717 23rd Street South
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Phone: 320 -251 -4553
Fax: 320 - 251 -6252
I AS HEREBY
PRE CERTIFY THAT THIS PLAN, SPECIFICATION, OR REPORT
WAS PREPARED By ME OR UNDER MY DIRECT SUPERVISION
AND THAT I AM A DULY UCENSED ENGINEER
UNDER THE LAW 5 OF THE STATE OF MINNESOTA,
PRINT NAM E: THOMAS J.
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PRE CERTIFY THAT THIS PLAN, SPECIFICATION, OR REPORT
WAS PREPARED By ME OR UNDER MY DIRECT SUPERVISION
AND THAT I AM A DULY UCENSED ENGINEER
UNDER THE LAW 5 OF THE STATE OF MINNESOTA,
PRINT NAM E: THOMAS J.
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DATE 06/26/09 LTC NO 25520
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RIVERSIDE REAL ESTATE I HEREBY CERTIFY THAT E OR U S PLAN, SPECIFICATION, OR REPORT SURVEY
St. Cloud Office WAS PREPARED BY ME OR UNDER MY DIRECT SUPERVISION
3717 23rd Street South AND THAT I AM A DULY LICENSED ENGINEER DRAWN SMF
UNDER THE LAWS OF THE STATE OF MINNESOTA.
S &H REPLAT OF GRACEVIEW ESTATES 2 Bonestroo St. Cloud, MN 56301 PRINT NAME: THOMAS 1.HERKENHOFF DESIGNED TJF
ST. JOSEPH, MINNESOTA Phone: 320 -251 -4553 APPROVED TIF
Fax: 320 - 251 -6252 SIGNATURE: DATE 7/14/200E
GRADING PLAN 06/26/09 25520
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COMMON INTEREST COMMUNITY NO.
PLANNED COMMUNITY
GRACEVIEW ESTATES 2 PLANNED
COMMUNITY
DECLARATION
THIS DECLARATION is made in the County of Stearns, State of Minnesota, effective
January 2, 2014, by JLT, LLC, a Minnesota Limited Liability Company (the "Declarant ").
Recitals:
A. Declarant is the owner of real property located in Stearns County, Minnesota,
legally described on the attached Exhibit A together with all improvements on the property
(collectively the "Property ").
B. Declarant desires to subject the Property and any Additional Real Estate added to
the Property to this Declaration and Covenants to ensure the architectural character of the
Property and to provide for the maintenance of Common Elements and portions of the Units.
C. The Property and the Association are subject to the provisions of Minnesota
Statutes Chapter 515B, known as the Minnesota Common Interest Ownership Act.
D. This Common Interest Community is not subject to a master association.
E. Declarant has formed Graceview Estates 2 Homeowners Association, a Minnesota
non - profit corporation formed under Minnesota Statutes Chapter 317A (the "Association ")
which will manage and maintain the integrity of the Property.
F. The real estate included in this Common Interest Community is the Property
described on Exhibit A together with any appurtenant easements.
1
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G. The boundaries of each Unit created by this Declaration as well as the Unit's
identifiers are described in Section 2 of this Declaration.
H. The Common Elements of this Declaration are defined in Section 1 and Section 3
of this Declaration.
1. The allocation of the Unit Owner's interest is described in Section 4 of this
Declaration.
J. The total number of Units and restrictions relating to residential use are described
in Section 2 of this Declaration.
K. A statement of the maximum number of Units is made in Section 2 of this
Declaration.
L. Prohibitions on timeshares are found in Section 8 of this Declaration.
SECTION 1
DEFINITIONS
The following words when used in the Governing Documents have the following
meanings (unless the context indicates otherwise):
1.1 "Association" means Graceview Estates 2 Homeowners Association, a Minnesota
nonprofit corporation, whose members consist of all Owners (defined below).
1.2 "Additional Real Estate" shall mean the real property, including all improvements
located thereon now or in the future, and all easements and rights appurtenant thereto, which
property Declarant has the right to add to the Property and make it subject to this Declaration and
which real property is described on Exhibit A.
1.3 "Board" means the Board of Directors of the Association as provided for in the
By -Laws.
1.4 "By- Laws" means the By -Laws governing the operation of the Association, as
they may be amended. A copy of the initial By -Laws of the Association is attached as Exhibit B.
1.5 "Common Elements" means all portions of the common interest community (the
Property) other than the Units, specifically including Outlots A, B, C and D, and including
Common Elements and Additional Real Estate, if any.
1.6 "Common Expenses" means and include all expenditures made or liabilities
incurred by or on behalf of the Association and incident to its operation, including without
limitation allocations to reserves and those items specifically identified as Common Expenses in
the Governing Documents (defined below).
2
1.7 "Common Interest Community Act" means Minnesota Statues 515B, as amended
from time to time.
1.8 "Declarant" means JLT, LLC, a Minnesota Limited Liability Company, and its
successors or assigns.
1.9 "Declarant Control" means the period of time that Declarant controls the
operation of the Association.
1.10 "Dwelling" means a part of the building consisting of one or more floors,
designed and intended for occupancy as a single family residence, and located within the
boundaries of a Unit. The Dwelling includes any garage attached or otherwise located within the
boundaries of the Unit on which the Dwelling is located.
1.11 "Eligible Mortgagee" means any Person owning a mortgage on any Unit, which
mortgage is first in priority to all other mortgages that encumber such Unit, that has requested, in
writing, notification from the Association about any proposed action which requires approval by
the Eligible Mortgagees.
1.12 "Governing Documents" means this Declaration, the Articles of Incorporation of
the Association, and its By -Laws, as they may be amended, all of which shall govern the use and
operation of the Property.
1.13 "Member" means all persons who are members of the Association by virtue of
being Owners. The words "Owner" and "Member" may be used interchangeably.
1.14 "Occupant" means any person or persons, other than an Owner, in possession of a
Unit or residing in a Dwelling.
1.15 "Owner" means a Person who owns a Unit, excluding contract for deed vendors,
guests, lessees, mortgagees and other secured parties. The term "Owner" includes, without
limitation, contract for deed vendees and holders of a life estate.
1.16 "Person" means a natural individual, corporation, limited liability company,
partnership, trust, or other legal entity capable of holding title to real property.
1.17 "Plat" means the S & H Replat of Graceview Estates 2, and any plat filed as part
of the Additional Real Estate.
1.18 "Propert y" means all of the real property subject to this Declaration, including the
improvements located thereon now or in the future. The Property as of the date of this
Declaration is legally described on Exhibit A.
1.19 "Rules and Regulations" means the rules and regulations of the Association as
approved from time to time.
9
1.20 "Unit" means any Unit subject to this Declaration as shown on the Plat Each Unit
will be identified by its Unit number as shown on the Plat. Units will include those added as part
of the Additional Real Estate.
SECTION 2
DESCRIPTION OF UNITS
2.1 Units. There are 10 Units on the Property and 10 Units consist of the maximum
number of units which may be created on the property.
2.2 Unit Boundaries. The Unit boundaries are those shown on the Plat as the lot lines.
2.3 Recorded Easements. The Property shall be subject to such other easements as
may be recorded against it or otherwise shown on the Plat.
2.4 Easement for Maintenance Repair Replacement and Reconstruction. Each Unit
is subject to an exclusive, appurtenant easement in favor of the Association for the purposes of
maintenance, repair, replacement and reconstruction work necessary to fulfill the Association's
obligations under the Governing Documents.
2.5 Easement over Common Elements. Each Unit is the beneficiary of a perpetual
appurtenant easement for the use and enjoyment on and across the Common Elements subject to
any restrictions authorized by the Governing Documents.
2.6 Easement for Party Walls and Common Roofs. Each Unit shall be subject to and
the beneficiary of a party wall easement for walls serving as party walls to that Unit and a
common roof easement for the common roof serving that Unit. Party walls and common roofs
will be repaired and maintained (including replacement) by the Association in accord with the
Governing Documents, and all such costs shall be allocated in accord with the Governing
Documents.
2.7 Easements are Appurtenant. All easements and similar rights burdening or
benefiting a Unit or any other part of the Property shall be appurtenant thereto, and shall be
permanent, subject only to termination in accordance with the terms of the easement or the
Governing Documents. Any recorded easement benefiting or burdening the Property shall be
construed in a manner consistent with, and in conflict with, the easements created by this
Declaration.
2.8 Impairment Prohibited_ . No person may materially restrict or impair any easement
benefiting or burdening the Property and the right of the Association to impose reasonable Rules
and Regulations governing the use of the Property.
0
SECTION 3
COMMON ELEMENTS
3.1 Common Elements.
3.1.1 The Common Elements include those parts of the Property not identified as Units,
specifically including Outlots A and C, as well as areas specified as such when
and if the Additional Real Estate is added. The Common Elements are owned by
the Association for the benefit of the Owners and Occupants.
3.1.2 Maintenance, repair, replacement, management and operation of the Common
Elements are the responsibility of the Association.
SECTION 4
ASSOCIATION MEMBERSHIP: RIGHTS AND OBLIGATIONS
Membership in the Association, and the allocation of votes and Common Expenses are
governed by the following provisions.
4.1 Membership. Each Owner is a member of the Association by virtue of Unit
ownership. When more than one Person is an Owner of a Unit, each Owner will be a Member,
but multiple ownership will not increase the voting rights allocated to a Unit and will not allow
voting rights to be divided.
4.2 Voting. Each Unit has one vote.
4.3 Appurtenant Rights and Obligations. The ownership of a Unit includes the Voting
Rights and Common Expense obligations, and these rights and obligations may not be separated.
4.4 Authority to Vote. The Owner, or a natural person designated as the Owner's
proxy, may cast the vote allocated to the Owner's Unit. If there are multiple Owners of a Unit,
only one Owner or other Person designated pursuant to the By -Laws may cast the vote allocated
to the Unit.
SECTION 5
ADMINISTRATION
5.1 General. This Association is responsible for the operation and management of the
Common Elements and the maintenance and repair obligations of the Association relating to the
Units as set out by the Governing Documents. All power and authority of the Association is
vested in the Board, unless action or approval by the individual Owner is specifically required by
the Governing Documents. All references to the Association will mean the Association acting
through the Board unless specifically stated otherwise.
5.2 Binding, Effect of Actions. All actions by the Association will be binding upon all
Owners and Occupants and any other Person with an interest in the Property.
5.3 By -Laws. The By -Laws will govern the operation and administration of the
Association.
5.4 Mana eg ment. The Board may delegate to a manager or managing agent the duties
of the Association's officers and directors, but any delegation will not relieve the officers and
directors of their responsibility for the performance of their duties.
5.5 Rules and Regulations. The Board has authority to approve and implement
appropriate and reasonable Rules and Regulations regulating the use of the Property. Rules and
Regulations may not be inconsistent with the Governing Documents. New or amended Rules and
Regulations will be effective after ten (10) days written notice of the new Rule and Regulation
has been given to the Owners.
SECTION 6
ASSESSMENTS FOR COMMON EXPENSES
6.1 General. Assessments for Common Expenses will be made by the Board Annual
assessments will be established and levied by the Board based upon a budget approved annually
by the Owners, and annual assessments must provide for contributions to a separate reserve fund
sufficient to cover the periodic cost of maintenance. repair and replacement of the Common
Elements and those portions of the Units which the Association is responsible to repair and
maintain. Annual assessments will be payable in annual installments or at such other time
interval as approved by the Board. Annual Assessments will be allocated equally among the
Units, except in the following situations:
6.1.1 Expenses benefiting only some of the Units may be assessed against the benefited
Units, on the following basis. (i) the actual cost incurred for each Unit, if known.
(ii) square footage of the area being maintained, repaired or replaced, or (iii) other
equitable criteria established by the Board. For example when repairs or
replacement to roofs or other portions of a specific building containing 3 Units,
only those three Units would be assessed for the repairs or replacements.
6.1.2 Reasonable attorneys fees and other costs incurred by the Association in
connection with (i) the collection of assessments, and (ii) the enforcement of the
Governing Documents, or the Rules and Regulations against an individual Owner
or Occupant, may be assessed against the Owner and the Owner's Unit and may
include late charges, fines and interest.
6.1.3 Assessments levied to pay a judgement against the Association will be levied only
against Units existing at the time the judgment was entered.
6.1.4 If any damage to the Common Elements, or portions of a Unit for which the
Association is responsible for the maintenance and repair, is caused by the act or
2
omission of an Owner, Occupant, or their guests, including both intentional and
negligent actions, the Association may assess the costs of repairing the damage
against the Unit Owner and the Owner's Unit to the extent not covered by
insurance.
6.1.5 In any other manner allowed by the Common Interest Community Act.
6.2 Special Assessments. In addition to Annual Assessments, the Board may levy
Special Assessments against all Units for the purpose of defraying the costs of the following: (i)
any unforeseen or unbudgeted Common Expense, (ii) any reserves for maintenance, repair or
replacement, and (iii) the maintenance, repair or replacement of any part of the Common
Elements or portion of the Units for which the Association is responsible for maintenance and
repair. Prior to levying a Special Assessments, the Board must obtain the approval of a majority
of the Owners. Assessments under Subsections 6.1.1 -6.1.5 above are not considered Special
Assessments and do not require approval of the Owners.
6.3 Reserves. The annual budgets of the Association shall provide from year to year
on a cumulative basis for adequate reserve funds to cover the replacement of those parts of the
Common Elements and portions of the Units which the Association is obligated to maintain,
repair, or replace. Any surplus funds that the Association has remaining after payment of or
provision for Common Expenses and reserves shall be, (i) credited to the Unit Owners to reduce
their future Common Expense assessments, or (ii) credited to reserves, or any combination
thereof, as determined by the Board of Directors.
6.4 Working Capital Reserve Payment Due From Purchaser to Association at
Closin . At the closing, Purchaser will pay to the Association an assessment for working capital
in an amount of $200.00. Such assessment is to be used to provide a working capital reserve fund
for the association. The assessment is neither refundable, nor is it to be considered an advance
payment of monthly assessments. In addition, Purchaser shall pay to the Association at closing
the full Common Expense assessment for the month succeeding the closing.
6.5 Liability of New Owners for Assessments. The obligation of an Owner to pay
assessment will commence at the later of, (i) the recording dated for the Declaration or
amendment which creates the Owner's Unit, or (ii) the date the Owner acquires title to the Unit.
Upon the purchase of a Unit the buyer must pay the Association a pro rata share of the Annual
Assessment.
6.6 Liability of Bum In a voluntary conveyance, unless the buyer agrees, the buyer
will not be personally liable for any Association assessments or other Association charges made
against the seller or the seller's Unit before conveyance to the buyer. However, the lien of such
assessments will remain against the Unit until satisfied.
6.7 Statement of Assessments Available. The Association must furnish to a Unit
Owner or the Owner's authorized agent upon written request of the Unit Owner or the authorized
agent a statement, in recordable form, setting forth the amount of unpaid assessments currently
7
levied against the Owner's Unit. The Statement must be furnished within ten business days after
receipt of the request and is binding on the Association and every Unit Owner.
6.8 Personal Liability for Assessments. Each Unit Owner is personally liable for the
Common Expenses assessed against its Unit. Liability will be joint and several for Units with
multiple Owners. Liability is absolute and unconditional. No Owner is exempt from liability for
payment of its share of Common Expenses by right of set -off, by waiver of use or enjoyment of
any part of the Property, by absence from or abandonment of the Unit, by waiver of any other
rights, or by reason of any claim against the Association or its officers', directors or agents.
6.9 Assessment Lien. The Association has a lien on a Unit for any assessments levied
against that Unit when the assessment becomes due. If an assessment is payable in installments,
the full amount of the assessment is a lien when the first installment becomes due. Late charges,
fines and other fees or charges imposed by the Association are enforceable as assessments and
immediately become liens against the Unit Recording the Declaration constitutes record notice
and perfection of any lien under this Section, and no further record notice of perfection is
required.
6.10 Lien Priority. A lien under this Section is prior to all other liens and
encumbrances on a Unit, except the following: (i) liens and encumbrances recorded before the
Declaration, (ii) any first mortgage on the Unit, and (iii) liens for real estate taxes and other
governmental assessments against the Unit.
SECTION 7
MAINTENANCE
7.1 Association Maintenance. The Association will provide for maintenance and
repair (including replacement if necessary) of the Common Elements, all exteriors of Dwellings
(which includes garages), and all structural building components and foundations of buildings
which are part of the Units. This maintenance and repair includes, but is not limited to, the
following: maintenance and repair of the exterior surfaces of all buildings, replacement of trim
and caulking, roofs, gutters, down spouts, overhangs, exterior doors, foundations and structural
portions of the party walls.
The Association has an affirmative duty to provide adequate maintenance and upkeep of
the Common Elements and specified portions of the Units as provided for above.
Maintenance of Common Elements will include mowing, raking, watering and trimming
lawns to the extent deemed necessary by the Association. The Association will not be
responsible to maintain plantings done by individual Owners (Owners may only do so with
permission of the Association and subject to any conditions set by the Association).
The Association's maintenance obligations also include snow removal (at such level and
frequency as deemed appropriate by the Association) from driveways and sidewalks on the
Common Elements and Units.
In the event City services or other utilities are not separately metered to each Unit, the
Association shall he responsible to pay for utilities which are not separately metered. Such
expenses will constitute Common Expenses to be paid by the Unit Owners.
7.2 Optional Maintenance by Association. In addition to the maintenance described in
this Section the Association may, with the approval of a majority of votes cast in person or by
proxy at a meeting called for such purposes, undertake to provide additional services and
maintenance.
7.3 Maintenance by Owner. Each Owner must at the Owner's sole cost and expense,
maintain and keep in good repair and condition the Owner's Unit to the extent not otherwise
maintained by the Association. Owner maintenance includes, but is not limited to, replacement
of exterior glass in the Dwelling, washing of windows, maintenance. repair and replacement of
heating, ventilation and air conditioning units serving only the Unit, maintenance of garage
floors and garage doors, maintenance of exterior door and window hardware, maintenance of
sewer and water utilities located within the Unit and running to the common service lines,
maintenance of ceiling, floor and wall coverings (including drywall /plaster), maintenance of
fixtures and appliances within the Unit. Each Owner must keep its Unit free from hazardous
substances, vermin, cockroaches, pests, debris which may pose a threat to the health and safety
of Owners and Occupants of other Units. The Association may from time to time set reasonable
standards for the upkeep of Units which includes without limitation that the Association may
require Owner's to employ professional exterminators or other appropriate contractors to take
corrective action to upkeep the Owner's Unit so as not to affect the health, safety or welfare of
other Unit Owners and Occupants. Owners and Occupants of Units may not take any actions
which may impair the structural soundness or integrity of the building or which may adversely
effect the Common Elements or other Units. All Owners and Occupants have a duty to promptly
notify the Association of defects in or damage to the Common Elements.
To prevent damages to water and sewer utilities, all Unit Owners must maintain heating
systems within their respective Units at all times at a minimum of 50 degrees Fahrenheit or such
other reasonable temperature as established by the Board of Directors from time to time.
SECTION 8
RESTRICTIONS ON USE AN ALTERATIONS OF THE PROPERTY
8.1 Covenants. All Owners and Occupants, and all parties, by their acceptance or
assertion of an interest in the Property, or by their occupancy of a Unit, covenant and agree that,
in addition to any other restrictions which may be imposed by the Governing Documents, the
occupancy, use, operation, alienation and conveyance of the Property shall be subject to the
restrictions set out in this Section, which restrictions shall run with the Property and burden and
benefit all Owners, Occupants and their heirs, personal representatives, successors and assigns.
8.2 Subdivision Prohibited. No Unit may be subdivided or partitioned.
8.3 Residential Use. The Units shall be used by Owners and Occupants and their
guests exclusively as private, single family residential dwellings, and not for transient, hotel,
N
commercial business or other non - residential purposes, except as provided in this Section. Any
Lease of a Unit (except for occupancy by guests with the consent of the Owner) for a period of
less than 30 days, or any occupancy which includes services customarily furnished to hotel
guests, shall be presumed to be for transient purposes.
8.4 Business Use Restricted. Except in accord with all applicable Zoning Code provisions
and upon the written approval of the Association, no business, trade, occupation or profession of
any kind, whether carried on for profit or otherwise, shall be conducted, maintained or permitted
in any Unit, except (i) caring for children and (ii) an Owner or Occupant residing in a Unit may
keep and maintain his or her business or professional records in such Unit and handle matters
relating to such business by telephone or correspondence therefrom, provided that such uses are
incidental to the residential use, do not involve physical alteration of the Unit and do not involve
any observable business activity such as signs, advertising displays, bulk mailings, deliveries, or
visitation or use of the Unit by customers or employees.
8.5 Leasing. Leasing of Dwellings is allowed, subject to reasonable regulation by the
Association, and subject to the following conditions. (i) that no Unit shall be leased for transient
or hotel purposes, (ii) that no Unit may be subleased, (iii) that all leases shall be in writing, and
(iv) that all leases shall provide that they are subordinate and subject to the provisions of the
Governing Documents and the Rules and Regulations, and that any failure of the lessee to
comply with the terms of such documents shall be a default under the lease. The Association
may impose such reasonable Rules and Regulations as may be necessary to implement
procedures for the leasing of Units, consistent with this Section.
8.6 Time Shares Prohibited. The time share form of ownership, or any comparable form
of lease, occupancy rights or ownership which has the effect of dividing the ownership or
occupancy of a Unit into separate time periods, is prohibited.
8.7 Quiet Enjoyment. Interference Prohibited. All Owners and Occupants shall use the
Property in such a manner as will not cause a nuisance, nor unduly restrict, interfere with or
impede the use of the Property by other Owners and Occupants and their guests. No substance,
thing, or material may be kept on the Property if that material emits foul or obnoxious odors, or
will cause any noise that will or might disturb the peace, quiet, comfort, or serenity of neighbors.
Unit Owners and Occupants shall not use televisions or amplifiers in a way that disturbs other
residents of the Property.
8.8 Animals. No animal may be bred or maintained for business or commercial
purposes anywhere on the Property. The word `animal" shall be construed in its broadest sense
and shall include all living creatures except humans. All applicable ordinances of the City
relating to the keeping of domestic animals must also be complied with by Owners and
Occupants of the Property.
8.9 Compliance with Law. No use shall be made of the Property which would violate
any then existing codes or ordinances, or state or federal laws, nor shall any act or use be
permitted which could cause waste tot he Property, cause a material increase in insurance rates
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on the Property, or otherwise cause any unusual liability, health or safety risk. or expense, for the
Association or any Owner or Occupant.
8.10 No Unsightly_ Activities. No clotheslines, sheets, blankets, laundry of any kind or
other articles shall be hung out on any portion of a Unit so as to be visible from outside the
Dwelling, nor shall a clothesline, including retractable, he installed or maintained anywhere on
the exterior areas of the Unit or on the Property.
8.11 Hazardous Materials. No storage of hazardous or flammable materials is allowed
on the Property except for reasonable quantities of usual household materials.
8.12 No Discharge of Firearms. Discharging of firearms and hunting are not allowed
on any portion of the Property.
8.13 Outside Storage. Outside storage or placement on decks /patios, or any items
including, without limitation, sporting equipment, toys, camping equipment, garage, trash, or
cooking equipment (except seasonal furniture and one gas or charcoal grill per Unit) is strictly
prohibited except as may be authorized by the Association.
8.14 Parkin . Garages and parking areas on the Property shall be used only for parking
of automobiles owned or leased by Owners and Occupants and their guests, and such incidental
uses as may he authorized in writing by the Association. No parking on landscaped areas is
permitted.
8.15 Vehicle Storage. A camping trailer, camping vehicle or recreational vehicle may
be parked on the individual Unit Owner's driveway for up to 72 hours, but no boats,
snowmobiles, trailers, buses, all- terrain vehicles, tractor /trailers, commercial vehicles, trucks in
excess of 9,000 pounds, or unlicensed or inoperable vehicles shall at anytime be stored or parked
on any part of the Property except inside an enclosed garage and out of view of others.
8.16 Repairs to Vehicles. Except for emergency repairs on vehicles registered to the
Owners or Occupants of the Unit, no repairs or adjustment to motor vehicles may he completed
on any Unit except in the garage out of view of others.
8.17 Sins. Except for the signs advertising the sale of a Unit, no advertisement, poster
or sign of any sort may be placed on the exterior of a Unit or in a window such that it could be
seen from the outside except as authorized by the Association.
8.18 No Window Alterations. No film or coating may be applied to the interior or
exterior of a window which may darken, make reflective, or alter the color or appearance of a
window as viewed from outside Styrofoam, cardboard, newspaper, bed sheets, reflective foil or
similar items may not be used as window coverings in any Dwelling or attached garage on the
Property.
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SECTION 9
ARCHITECTURAL CONTROL
9.1 Restrictions on Construction and Alterations. The following restrictions and
requirements shall apply to any construction or alterations on the Property.
9.1.1 Except as expressly provided in this Section 9, and except for construction or
alterations made by Declarant in consideration of the initial sale of a Unit, no
addition, deck, patio, fence, wall, enclosure, window, exterior door, sign. display,
decoration, color change, nor any other exterior improvements or structural
changes to or on a Unit or Dwelling or alteration of any part of a Unit or Dwelling
which is visible from the exterior of the Unit of Dwelling (collectively
"alterations "), may be started, erected or maintained unless the plans and
specifications showing the nature, kind, shape, height, color, materials and
location of the alterations have been approved in writing by the Board of the
Association or a committee appointed by it.
9.1.2 Declarant's written consent is also required for all alterations until Declarant no
longer owns any unsold Unit.
9.1.3 Approval of alterations is in the sole discretion of the Association and when
applicable the Declarant.
9.1.4 The minimum criteria for approval will include and require: (i) substantial
uniformity of color, size, location, type and design in relation to existing
improvements, (ii) comparable or better quality of materials as used in existing
improvements on the Property, (iii) ease of maintenance and repair, (iv) adequate
protection of the Property, the Association , Owners, and Occupants from liability
and liens arising out of the proposed alterations, (v) structural changes will not
negatively affect (including but not limited to negative impact on value or
increased ongoing costs) on the Unit, other Units, the Common Elements or the
Association, and (vi) compliance with governmental laws, codes and regulations.
9.2 Review Procedures. The following procedures govern request for
construction /alterations.
9.2.1 Detailed plans. specifications and related information regarding any proposed
alteration, in form and content acceptable to the Board of Directors, must be
submitted to the Board, or to the Declarant during the period of Declarant
Control, at least thirty (30) days before the proposed start of construction. No
alterations may be completed without approval of the Board or Declarant, as the
case may be.
9.2.2 The Board of Directors will give the Owner written notice of approval or
disapproval. If the Board of Directors does not approve or disapprove of the
plans and specifications within thirty (30) days after receipt of all information
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requested by the Board of Directors, then approval will not be required, and this
Section shall he deemed to have been fully complied with so long as the
alterations are done in accordance with the plans, specifications and related
information which were submitted.
9.2.3 If no request for approval is submitted, approval is denied, unless (i) all
alterations are reasonably visible, and (ii) written notice of the violation is not
given to the Owner who made the alteration within one year following the date of
completion of the alterations. Notice may be by written notice or the
commencement of legal action by an Owner or the Association. The Owner of the
Unit in which the alterations are made shall have the burden of proof, by clear and
convincing evidence, that construction /alterations were completed and reasonably
visible for at least one year following completion and that notice was not given.
9.3 Remedies for Violations. The Association may pursue any remedy, legal or
administrative, to enforce compliance with this Section 9 and shall be entitled to recover all
attorney's fees and costs of enforcement from the Owner causing or permitting the violation,
whether or not a legal action is started. Such attorney's fees and costs shall be a lien against the
Owner's Unit and a personal obligation of the Owner.
SECTION 10
INSURANCE
10.1 Required Coverage. The Association shall obtain and maintain, at a minimum, a
master policy or policies of insurance issued by a reputable insurance company or companies
authorized to do business in the State of Minnesota, as follows:
10. l .1 Property insurance in broad form covering all risks of physical loss in an amount
equal to 100% of the insurable "replacement cost" of the improvements on the
Common Elements and the Units (as to portions maintained by the Association
and with certain exclusions to be covered by Owners) less deductibles, exclusive
of items normally excluded from coverage (but including building service
equipment and machinery). The policy or policies shall cover personal property
owned by the Association. The policy or policies shall also contain "Inflation
Guard" and "Agreed Amount" endorsements, if reasonably available. Such policy
or policies shall include such additional endorsements, coverage's and limits as
may be required by regulation of the Federal Housing Administration ( "FHA "),
the U S. Department of Veterans' Affairs ( "VA "), or the Federal National
Mortgage Association ( "FNMA ") as a precondition to their insuring, purchasing
or financing a mortgage on a Unit. The Board may also enter into binding written
agreements with a mortgagee, insurer or service obligating the Association to
keep certain specified coverage's or endorsements in effect.
10.1.2 Comprehensive public liability insurance against claims and liabilities arising
from the ownership, existence, use or management of the Common elements in an
amount deemed sufficient in the judgment of the Board, insuring the Board, the
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Association, their respective employees, agents and all persons acting as agents.
In the discretion of the Board, the Unit Owners may be included as additional
insureds but only for claims and liabilities arising in connection with the
ownership, existence, use or management of the Common Elements. The
Insurance should cover claims of one or more insured parties against other insured
parties.
10.1.3 Fidelity bond or coverage against dishonest acts on the part of directors, officers,
managers, trustees, employees or persons responsible for handling finds
belonging to or administered by the Association if deemed advisable by the Board
or required by regulation of the FHA or FNMA as a precondition to their insuring,
purchasing or financing a mortgage on a Unit. The fidelity bond or insurance shall
name the Association as the named insured and shall, if required by the FHA or
FNMA, be written in an amount equal to the greater of (i) the estimated maximum
of Association funds including reserves, in the custody of the Association or
management agent at any given time while the bond is in force, or (ii) a sum equal
to three months aggregate assessments on all Units plus reserves. An appropriate
endorsement to the policy to cover any persons who serve without compensation
shall be added if the policy would not otherwise cover volunteers, or a waiver of
defense based upon the exclusion of persons serving without compensation, shall
be added.
10. 1.4 Workers' Compensation insurance as required by law.
10.1.5 Such other insurance as the Board may determine to be in the best interests of the
Association and the Owners.
If the insurance described above is not reasonably available, the Association will
promptly notify all Owners.
102 Insured. Insurance policies must provide that each Owner and secured party is an
insured person with respect to liability arising out of the Owner's interest in the Common
Elements or membership in the Association.
10.3 Premiums. All insurance premiums will be assessed and paid as a Common
Expense.
10.4 Loss Payee; Insurance Trustee. All insurance coverage maintained by the
Association must be written in the name of the Association, and the proceeds of any insurance
coverage maintained by the Association must be payable to the Association or an insurance
trustee designated by the Association for that purpose, for the benefit of the Owners and secured
parties, including Eligible Mortgagees, which suffer loss. The Association, or any person
selected by it, shall have exclusive authority to negotiate, settle and collect upon claims or losses
under any insurance policy maintained by the Association.
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10.5 Proceeds. The proceeds shall be disbursed first for the repair or restoration of the
damaged Common Elements and areas for which the Association is responsible to maintain. Any
remaining amounts shall be retained by the Association.
10.6 Waivers of Subro ag tion. All policies of insurance shall contain waivers of
subrogation by the insurer against the Association or its officers or directors, or all Owner or
members of the Owner's household, as applicable. If available, the policies shall also contain
waivers of any defense based on co- insurance or of invalidity from any acts of the insured.
10.7 Cancellation: Notice of Loss. All policies of property insurance and
comprehensive liability insurance maintained by the Association shall provide that the insurer
that has issued an insurance policy under this section shall issue certificates or memoranda of
insurance, upon request, to any Owner or secured party. The insurance may not be canceled until
60 days after notice of the proposed cancellation has been mailed to the Association and each
Person to whom a certificate of insurance has been issued.
10.8 Restoration. All policies of property insurance maintained by the Association
shall provide that any portion of the Common Elements or Units which is damaged or destroyed
as the result of a loss covered by the Association's insurance shall be promptly repaired or
replaced by the Association unless 80 percent of the Owners vote not to rebuild. The cost of
repair or replacement of the Common Elements and Units (for which the Association is
responsible) which exceeds the insurance proceeds and reserves may be paid as a Common
Expense.
10.9 No Contribution. All policies of insurance maintained by the Association shall be
the primary insurance where there is other insurance in the name of the Owner covering the same
property, and may not be brought into contribution with any insurance purchased by Owners or
their Eligible Mortgagees.
10.10 Effect of Acts Not Within Association's Control. All policies of insurance
maintained by the Association shall provide that the coverage shall not be voided by or
conditions upon (i) any act or omission of an Owner or Eligible Mortgagee, unless acting within
the scope of authority on behalf of the Association, or (ii) any failure of the Association to
comply with any warrant or condition regarding any portion of the Property over which the
Association has no control.
10.11 Owner's Personal Insurance. Each Owner must obtain property insurance
covering all risks of physical loss in an amount equal to 100% of the insurable `replacement
value, of the portion of the Unit not covered by the Association's policies, exclusive of items
normally excluded from coverage. The policies shall meet the same requirements of those
required for the Association. Owners must also maintain additional personal coverage, at his or
her own expense, covering personal property and personal liability. All Owners' insurance
policies shall provide that they are without contribution as against the insurance purchased by the
Association. THE ASSOCIATION'S INSURANCE DOES NOT COVER OWNER'S
PERSONAL PROPERTY, FIXTURES AND SIMILAR IMPROVEMENTS TO THE UNITS,
DECORATING ITEMS, FLOOR COVERINGS, CABINETRY, FINISHED MILLWORK AND
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TRIM, CEILING AND WALL FINISHINGS, BUILT -IN APPLIANCES, ELECTRICAL AND
PLUMBING SERVING ONLY THE UNIT, AND BETTERMENTS AND IMPROVEMENTS
TO AN INDIVIDUAL UNIT.
SECTION 11
COMPLIANCE AND REMEDIES
11.1 Entitlement to Relief. The Association may commence legal action (i) to recover
sums due, (ii) for damages, (iii) for injunctive relief or (iv) to foreclose alien owned by it, (v)
take any action authorized by the Common Interest Community Act; (vi) any combination of
these remedies. The Association may also commence an action for any other relief authorized by
the Governing Documents or available at law or in equity. Legal relief may be sought by the
Association against any Owner, or by an Owner against the Association or another Owner, to
enforce compliance with the Governing Documents, the Rules and Regulations, or the decisions
of the Association. However, an Owner may not withhold paying assessments to the Association,
or take other action in violation of the Governing Documents, the Rules or Regulations for any
reason.
11.2 Sanctions and Remedies. In addition to any other remedies, the Association has
the right, but not the obligation, to implement any one or more of the following actions against
Owners and Occupants and /or their guests, who violate the provisions of the Governing
Documents or the Rules and Regulations:
11.2.1 Commence legal action for damages or equitable relief in any court of competent
jurisdiction.
11.2.2 Impose late charges of up to 15% of each late payment of an assessments or
installment.
11.2.3 Upon 10 days prior written notice, accelerate installments of assessments after a
default in payment of any assessment or installment continues for more than 30
days.
11.2.4 Impose reasonable fines, penalties or charges for each violation.
11.2.5 Restore any portions of the Common Elements or Units damaged or altered, or
allowed to be damaged or altered, by any Owner or Occupant or their guests in
violation of the Governing Documents, and assess the cost of restoration against
the responsible Owners and their Units.
11.2.6 When the violation materially affects, or is likely to materially affect, the health
or safety of the other Owners or Occupants, or their guests or other parts of the
Property or the property of the Owners or Occupants the Association or agents of
the Association may enter the Unit, and summarily abate and remove, at the
expense of the offending Owner or Occupant, any structure, thing or condition in
the Unit which is causing the violation.
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11.2.7 Foreclose any lien arising under the Governing Documents or under law, in the
manner provided for mortgage foreclosures by action or advertisement under a
power of sale.
11.3 Rights to Hearing. Upon imposition of any remedy- authorized by Section 11.2,
the Board will, upon written request, grant to the offender a fair and equitable hearing. The
offender will be given notice of the nature of the violation and the right to a hearing, and at least
ten (10) days to request a hearing. The hearing will be scheduled by the Board and held within
thirty (30) days of the Board's receipt of the hearing request, and with at least five (5) days prior
written notice to the offender. If the offending Owner fails to appear at the hearing, the right to a
hearing is waived and the Board may take such action as it deems appropriate. The decision of
the Board and the Board's rules for the conduct of hearing will be final and binding on all
parties. The Board's written decision will be delivered to the offender within ten (10) days after
the hearing, if not delivered at the hearing.
11.4 Costs of Proceeding and Attorneys Fees. For any collection action or any
enforcement or legal action which the Association takes whether or not finally determined by a
court or arbitrator, the Association may assess the violator and his or her Unit with any expenses
from such enforcement, including without limitation fines or charges imposed by the
Association, reasonable attorneys fees, and interest (at the highest rate allowed by law) on
delinquent amounts owed to the Association. Attorneys fees maybe assessed by the Association
whether or not Court action is necessary.
11.5 Enforcement by Owners and Declarant. This Section does not limit or impair the
independent right of other Owners to enforce the Governing Documents or the Rules and
Regulations. Owners who take action to enforce the provisions of the Governing Documents or
the Rules and Regulations will be entitled to attorney's fees and costs incurred in such
enforcement. Declarant is entitled to take whatever legal or administrative action necessary to
cause compliance with the terms and conditions of this Declaration Declarant is not obligated or
responsible for the enforcement of the obligations and restrictions contained in this Declaration.
SECTION 12
SPECIAL DECLARANT RIGHTS
Notwithstanding anything in the Governing Documents to the contrary, Declarant
reserves exclusive and unconditional authority to exercise the following special Declarant rights,
for as long as it owns a Unit:
12.1 Complete Improvements. To complete all improvements indicated on the Plat, or
otherwise included in Declarant's development plans or allowed by the Declaration.
12.2 Sales Facilities. To operate and maintain a temporary sales office, management
office sales, and rental facilities in any Units owned by Declarant and where applicable on the
Common Elements.
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12.3 Sims. To erect and maintain signs, and other sales displays offering the Units for
sale or lease, in any Unit owned by Declarant and on the Common Elements.
12.4 Easements. To have and use easements, for itself, its employees, contractors,
representatives, agents and prospective purchasers through and over any land included in the
Common Elements and Units to exercise its special Declarant rights.
12.5 Control of Association. To control the operation and administration of the
association, including without limitation the power to appoint and remove the members of the
Board, until the earliest of (i) voluntary surrender of control by Declarant, (ii) an Association
meeting which shall be held within 60 days after conveyance to Owners other than a Declarant of
75% of the total number of Units authorized to be included in the Property, or (iii) the date three
(3) years following the date of the first conveyance of a Unit to an Owner other than Declarant.
SECTION 13
AMENDMENTS
This Declaration may be amended by the consent of (I) Unit Owners that are collectively
allocated at least seventy -five percent (75 %) of the votes in the Association. (ii) the Eligible
Mortgagees (based upon one vote per first mortgage owned) for amendments requiring their vote
as outlined in Section 14, and (iii) the Declarant's consent to certain amendments as provided in
this Declaration. Owners' consent may be obtained in writing or at a duly held meeting of the
Association. Consents of Eligible Mortgagees an Declarant must be in writing. Amendments will
be effective when recorded. An affidavit by the Association's Secretary attesting to the vote
results, or execution of the foregoing agreements or consents, will be adequate evidence thereof
for all purposes, including without limitation, the recording of the amendment.
SECTION 14
RIGHTS OF ELIGIBLE MORTGAGEES
Eligible Mortgagees have the following rights and protections.
14.1 Consent to Certain Amendments. Written consent of Eligible Mortgagees
representing at least fifty -one percent (51 %) of the Units subject to first mortgages held by
Eligible Mortgagees (based upon one vote per first mortgage owned) is required for any action
which causes any change in the following: (i) voting rights, (ii) priority of assessment liens; (iii)
responsibility for maintenance and repairs; (iv) reallocation of interest in the Common Elements
or rights to their use; (v) redefinition of any Unit boundaries, (vi) convertibility of Units into
Common Elements or vice versa: (vii) insurance or fidelity bonds; (viii) imposition of any
restriction on an Owner's right to sell or transfer a Unit; (ix) a decision by the Association to
establish self management when professional management is in effect as require previously by
the Governing Documents or an Eligible Mortgagee, (x) restoration or repair of the Common
Elements (after a hazard damage or partial condemnation) in a manner other than specified in the
Governing Documents, (xi) any action to terminate the legal status of the Association after
substantial destruction or condemnation occurs, or (xii) any provisions that expressly benefit
Eligible Mortgagees. insurers or mortgage guarantors.
14.2 Consent to Certain Actions. Written consent of Eligible Mortgagees representing
at least eight percent (80 %) of the Units subject to first mortgages held by Eligible Mortgagees
(based upon one vote per first mortgage owned) shall be require to (i) abandon or terminate the
Association, or (ii) change the allocations of voting rights, Common Expense obligations or
interest in the Common Elements.
14.3 Consent to Subdivision. No Unit may be partitioned or subdivided without the
prior written approval of an Eligible Mortgagee of the Unit.
14.4 Priority of Lien. Any holder of a first mortgage on a Unit or any purchaser of a
first mortgage at a foreclosure sale, that acquires ownership of a Unit by foreclosure or by deed
or assignment in lieu of foreclosure, takes the Unit free of any claims for unpaid assessments or
any other charges or liens imposed against the Unit by the Association which have accrued
before the acquisition of the Unit by the first mortgage holder or purchaser, except as otherwise
provided in this Declaration, and except that any unreimbursed assessments or charges may be
reallocated among all Units according to their interest in the Association.
14.5 Priority for Condemnation Awards. No provision of the Governing Documents
gives an Owner, or any other party, priority over any rights of the applicable Eligible Mortgagee
to such Owner's share of insurance proceeds or condemnation awards for the loss or taking of
the Unit and /or the Common Elements. The Association will notify all Eligible Mortgagees of
any condemnation or eminent domain proceeding affecting the Common Elements promptly
after receiving notice from the condemning authority.
14.6 Requirements Management Agreements. Any management agreement must allow
termination (without, penalty or termination fee), with cause upon thirty (30) day prior written
notice, and without cause upon one hundred eighty (180) days prior written notice.
14.7 Access to Books and Records /Audit. Eligible Mortgagees have the right to
examine the Association books and record upon reasonable notice during normal business hours,
and to receive, upon written request, free copies of the Association's annual reports and other
financial statements. Financial statements, including audited financials, if any, will be available
within one hundred twenty (120) days of the end of the Association's fiscal year. If a request is
made, by a government agency issuing a mortgage, or any institutional guarantor or insurer of a
mortgage loan against a Unit, for an audit of the Association's financial statements for the
preceding year, the Association will cause an audit to be made and deliver a copy to the
requesting party.
14.8 Notice Requirements. Upon written request to the Association, identifying the
name and address of the holder, insurer' or guarantor of a mortgage on a Unit, and the Unit
number or address, the holder, insurer or guarantor will be entitled to timely written notice of:
14.8.1 A condemnation loss or casualty loss which affects a material portion of the Unit
securing the mortgage of which the Association has been provided written notice.
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14.8.2 A 60 -day delinquency in payment of assessments or charges owed by the Owner
of the mortgaged Unit.
14.8.3 A lapse, cancellation or material modification of any insurance policy by the
Association.
14.8.4 A proposed action requiring the consent of a specified percentage of Eligible
Mortgagees.
SECTION 15
MISCELLANEOUS
15.1 Severability. If any term, covenant, or provision of this instrument or attached
exhibit is held to be invalid or unenforceable for any reason whatsoever, such determination will
not alter, affect or impair in any manner whatsoever any other portion of this instrument or
exhibits.
15.2 Construction. Where applicable the masculine gender of any word used herein
shall mean the feminine or neutral gender, or vice versa, and the singular of any word used
herein shall mean the plural, or vice versa.
15.3 Tender of Claims. If any incident occurs which could reasonably give rise to a
demand by the Association against Declarant for indemnification, the Association shall promptly
tender 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.
15.4 Notices. Unless provided otherwise in the Governing Documents, all notices
required to be given by or to the Association, the Board of Directors, the Association officers,
the Eligible Mortgagees or the Owners or Occupants shall be in writing and shall be effective
upon hand delivery, or upon mailing if properly addressed with postage prepaid and deposited in
the United States mail. Under Section 2.2 of the Bylaws, registrations shall be effective upon
receipt by the Association.
15.5 Conflicts Among Documents. If any conflict arises between the provisions of the
Common Interest Community Act, Declaration, By -Laws and Rules and Regulations, the
Common Interest Community Act shall control over all of the others, the Declaration shall
control over the By -Laws and the Rules and Regulations, the By -Laws shall control over the
Rules and Regulations.
IN WITNESS WHEREOF, the undersigned has executed this instrument the day and
year first set forth in accordance with the requirements of the Act.
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JLT, LLC
By
Thomas Klein, C i Manager
By
Lawrence N. Heim, is - President
STATE OF MINNESOTA )
)ss.
COUNTY OF STEARNS )
The foregoing instrument was acknowledged before me this � day of December, 2013,
by Thomas Klein and Lawrence N. Heim, the Chief Manager and Vice - president of JLT, LLC, a
Minnesota Limited Liability Company.
NOTARY ,��iWC Pa�VV SOTA
Notary Public
L:xP all 3i, 2016
THIS INSTRUMENT WAS DRAFTED BY:
John R. Koch #57008
Attorney at Law
616 Roosevelt Road
PO Box 1556
St. Cloud MN 56302
320 - 252 -7600
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EXHIBIT A
PROPERTY DESCRIPTION
Lots 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, Block 1, S & H Replat of Graceview Estates 2, according to the
plat and survey thereof on file and of record in the office of the County Recorder in and for
Stearns County Recorder.
NOTE: Each Unit's identifier is its lot and block number.
Lots 2 through 11 inclusive, Block 1, S & H Replat of Graceview Estates 2
represent Units and Lot 1, Block 1, S & H Replat of Graceview Estates 2,
represents the Common Element.
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