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110299 Planning
AGENDA PLANNING COMMISSION MEETING OF NOVEMBER 1, 1999 CITY OF NEW HOPE, MINNESOTA 7:00 p.m. 1. CALL TO ORDER 2. ROLL CALL 3. CONSENT BUSINESS 4. PUBLIC HEARING * 4.1 Case 99-21 Request for Concept/Development Stage Planned Unit Development, Rezone from R-1 single Family Residential to PUD, and Preliminary Plat Approval of 13 Lots by L & A Homes, 4850 Winnetka Avenue North and 7829 49th Avenue North, Lloyd and Alice Vagle, Petitioners 5. COMMITTEE REPORTs 5.1 Report of Design & Review Committee - Next Meeting: Thursday, October 14, at 8 a.m. 5.2 Report of Codes & Standards Committee 5.3 Report of Comprehensive Plan Update Committee 5.4 Report of Zoning Code Update Committee - Scheduled for December 2 6. OLD BUSINESS 6.1 Miscellaneous Issues 6.2 Review 2000 Planning Commission Schedule 7. NEW BUSINESS 7.1 Review/Approval of Planning Commission Minutes of October 5, 1999. 7.2 Review of City Council Minutes of September 27, 1999. 7.3 Review of EDA Minutes of July 26 and October 11, 1999. 8. ANNOUNCEMENTS 9. ADJOURNMENT o Petitioners are required to be in attendance Planning Commission Guidelines for Public Input The Planning Commission is an advisory body, created to advise the City Council on land use. T~ Planning Commission will recommend Council approval or denial of a land use proposal based upon th= Planning Commission's determination of whether the proposed use is permitted under the Zoning Code and the Comprehensive Plan, and whether the proposed use will, or will not, adversely affect the surrounding neighborhood. The Planning Commission holds informal public hearings on land use proposals to enable you to learn, first-hand, what such proposals are, and to permit you to ask questions and offer comments. Your questions and comments become part of the record and will be used by the Council, along with the Planning Commission's recommendation, in reaching its decision. To aid in your understanding and to facilitate your comments and questions, the Planning Commission will utilize the following procedure: 1. The Planning Commission Chair will introduce the proposal. 2. City staff will outline the proposal and staff's recommendations and answer any questions from the Planning Commission. 3. The petitioner is invited to describe the proposal, make comments on the staff report, and answer questions from the Planning Commission. 4. The Chair will open the public hearing, asking first for those who wish to speak to so indicate by raising their hands. The Chair may set a time limit for individual questions/comments if a large number of persons have indicated a desire to speak. Spokespersons for groups will have a longer period of time for questions/comments. 5. When recognized by the Chair, the person wishing to speak is asked to come forward and to give their full name and address clearly. Remember, your questions/comments are for the record. 6. Direct your questions/comments to the Chair. The Chair will determine who will answer your questions. 7. No one will be given the opportunity to speak a second time until everyone has had the opportunity to speak initially. Please limit your second presentation to new information, not rebuttal. 8. At the close of the public hearing, the Planning Commission will discuss the proposal and take appropriate action. Al If the Planning'Commission recommends that the City Council approve or deny a request, the planning case will be placed on the City Council agenda for the next regular meeting. Usually this meeting is within one to two weeks of the Planning Commission meeting. B. If the Planning Commission tables the request, the petitioner will be asked to return for the next Commission meeting. PLANNING CASE REPORT City of New Hope Meeting Date: November 1, 1999 Report Date: October 29, 1999 Planning Case: 99-21 Petitioner: Lloyd & Alice Vagle Landowner/s: Adelyn Luther Gordon (west lot) & Andrew Longtin (east lot) Address: 4850 Winnetka Avenue North and 7829 49th Avenue North Request: Concept/Development Stage Planned Unit Development, Rezone from R-1 Single Family to PUD, and Preliminary Plat Approval of 13 Lots by L & A Homes I. Request The petitioner has purchase agreements on both lots. They are requesting concept/development stage planned unit development, rezoning from R-1 single Family Residential to PUD, and preliminary plat approval of 13 lots by L&A Homes, pursuant to Sections 4.19, 4.20 and Chapter 13 of the New Hope Code of Ordinances. II. Zoning Code References The following development applications are necessary to process the proposed development: Preliminary Plat - The developer proposes to combine the two existing lots into 12 lots and one common lot or outlot. Rezoninq - The developer is requesting to rezone the site to PUD to allow the construction of 12 townhome units. PUD - The project includes a cluster of lots with an integrated site design that provides a private access road, new landscaping and some architectural amenities. III. Property Specifications Zoning: R-l, Single Family Residential Location: Southeast quadrant of 49th and Winnetka Avenues Adjacent Land Uses: R-4 (Wingate Apartments) north of the site across 49th Avenue, R-1 Single Family to the east, south, and across Winnetka Avenue to the west Site Area: 224' x 300.5' = 67,117 square feet (1.54 acres) Building Area: The west lot is vacant and has never been developed. One small home (1,100 square feet) and a detached garage (900 square feet) exist on the east lot, today. The proposed four structures are one-level, with basements; two twinhomes (4 dwelling units) plus two four-unit townhomes (8 dwelling units) = 12 units. Building areas/unit will be 1,297 square feet for twinhome units and 1,172 for townhome units. A small double garage is attached to each. Planning Case Report 99-21 Page 1 10/29/99 Lot Area Ratios: Green Area = 32,164 square feet (48%) Buildings = 20,145 square feet (30%) Asphalt = 14,808 square feet (22%) Planning District: This property is located in Planning District #8, which is found in the center of New Hope and includes, as well as surrounds, Cooper High School and New Hope Elementary School. This area is characterized by its public/semi-public uses and their surrounding Iow density residential neighborhoods. Two apartment complexes and Civic Center Park comprise the southern boundary of this district. A cluster of townhomes and twinhomes abut Winnetka Avenue at 51st Avenue. One of these was a scattered site residential redevelopment made by the City of New Hope. The Comprehensive Plan encourages maintenance and enhancement of its Iow density areas through private reinvestment, as well as redevelopment programs. This PUD is a private redevelopment proposal. This property has been identified in the Comprehensive Plan as a future development/redevelopment site. Specific Information The west lot (27,000 square feet) has never been built upon and it has a significant northern and eastern cluster of mature oaks and maple trees. The balance is flat with a shallow depression near the northeast corner that holds water seasonally. It is a narrow 90' x 300' lot that many people have discussed developing since the 1960s, but its narrowness has always been the problem. The lot size and location have yielded interest limited to greater density than one single family home on .61 acres and a County road. Among the concepts discussed since 1975 are these: 2 homes, 2 or 3 tWinhomes, 3-8 townhomes, etc. The east lot is almost 50 percent larger at 39,600 square feet. It has a tiny single family home built in the 1950s and a large, detached garage built in 1984. Previous owners of this lot and the current owner have discussed with staff other potential uses and combining it with the adjacent west lot, primarily because of the 300-foot depth. It has a gravel driveway and many mature hardwood trees. The lot has a slight crown and drains to the west. V. Background Lloyd and Alice Vagle are proposing to develop 12 twinhome/townhome units on two existing lots located at the southeast corner of 49th and Winnetka Avenues. The site is currently zoned R-l, Single Family. To facilitate this medium density residential development, the applicant is requesting a change in zoning from R-1 to PUD and a subdivision. The PUD zoning district is being requested to accommodate the change in residential land use and provide flexibility related to project density and provision of a private street that would not be available through a standard zoning district. V. Petitioner's Comments The petitioner states in correspondence that "the present use of the land at the southeast corner of 49th and Winnetka is vacant and Iow. The size of the vacant corner lot doesn't lend itself to traditional residential use, as the county wouldn't allow conventional access onto Winnetka. The second lot east presently has a very old house and detached garage that is under contract to purchase, with plans to remove the structures. We are proposing two twinhomes and two quadhomes, both of one level living design with basements. These designs make great use of the land and will appeal to the increasing empty Planning Case Report 99-21 Page 2 10/29/99 nester market. Many designs for this plat were Considered, but few options remained. Because the County would not allow access onto Winnetka, the private road with a one-way entrance off Winnetka seems to be the only reasonable alternative. The setbacks that have been discussed for the project confine the buildable area to the design we are proposing. The price of each single unit should start at $165,000, depending on restrictions and amenities that need to be satisfied. The proposed 2-bedroom twinhomes will feature 1,297 square feet finished on one level. The living/dining/kitchen features a vaulted ceiling and a sliding door to the back yard concrete patio. The main floor laundry makes the plan perfect for our aging market. The four-unit building is also a dynamite plan for one level living. Each unit will have 1,172 finished square feet plus a full basement. The features include owner's suite with a walk-in closet and double entry bath. The second bedroom features a sliding door to allow it to be used as den with access to the back yard 8x8 concrete patio. The greatroom/kitchen will have a skylight to allow for more natural light. There will also be a main floor laundry. All 12 units will have double garages ranging from 420-480 square feet which allows enough area for trash and recycling containers. The exteriors will be maintenance free with aluminum soffit and facia, upgraded dutch lap vinyl siding and brick, per plan. Roof pitches will feature 7/12 and 9/12 on the front elevations and 5/12 and 6/12 on the main roofs parallel to the street. Each unit will be self-contained in all mechanicals and utilities. Air conditioning will be in the back and utility connections in the front. Gas fireplaces and fireplace chases will be optional. All units will have rear concrete patios with freestanding dividing privacy wall between adjoining patios. A privacy fence will be placed on the east property line between the existing single family home and proposed twinhome. Today's labor market has caused us to look at new and improved construction techniques. We are considering a panelized wall system to provide superior quality and less waste by weather and theft. These panels are not to be confused with modular housing, where the house comes finished in two sections. The panels are studs, plates and exterior sheathing only. Several local lumber suppliers are now furnishing these panels custom designed to any plan. We have used the panels in our upper bracket homes, as have many other builders. A local example would be Charles Cudd in Golden Valley. Exterior colors feature beige tones with accent trim off white and brick of the same shades. The roof will be weathered wood 240# asphalt shingles with a 25-year warranty. The question has been asked, "Why put 12 units on this site?" Economics is the determining factor. The property values in the surrounding area do not justify a higher cost per unit. With a lower density, the cost per unit would have to increase. The greater number of units seems to assure the association more control and power over the long term. We are offering additional housing that is affordable and a better use of the land. The City also gains from the improvements by the increase in tax revenues. Many other areas of concern are addressed on the PUD document, site plan and landscape/grading plans. Final construction plans will be submitted at the time of application for building permits. In summary, we feel this proposed project and our experience of over five decades in the construction business is going to enhance the community. With our family owned and hands on operation, this should be a pleasant experience for all involved parties." VI, Notification Property owners within 350 feet of the property were notified and staff received several calls and office visits regarding the proposed density of the site and had neighbors review the proposed plans. Planning Case Report 99-21 Page 3 10/29/99 Some surrounding property owners were opposed to the density of the project, as of October 27, and all persons with an interest in the project were encouraged to attend the public headng. VII. Development Analysis A. Zoning Code Cdteria Preliminary Plat The proposed preliminary plat consists of combining the two existing lots into twelve (12) lots and one common lot or outlot. The plat illustrates a subdivision of the townhomes into unit lots. The plat would be knows as "L and A HOMES." The plat illustrates "typical lot" dimensions for the duplex and fourplex units as follows: Duplex units (Lots 5, 6, 11 and 12) - 83 feet in length x 42 feet in depth = 3,486 square feet per lot. Fourplex units (Lots 1,2, 3, 4, 7, 8, 9 and 10) - 82 feet in length x 38 feet in depth = 3,116 square feet per lot. Drainage and utility easements 10 feet in width must be illustrated on the perimeter of Lot 13 (outlot) and a 15-foot easement will be required over the water main and storm sewer. Each of the unit lots must have a separate utility connection. As per routine policy, the preliminary plat was submitted to City Department Heads, City Attorney, City Engineer, utility companies and Hennepin County for review and comment. Hennepin County responded with the following comments: · The developer should create a 10-foot wide easement for sidewalk and roadway purposes along CSAH 156, beyond the current 40-foot right-of-way. This action will accommodate any future .upgrading of the CSAH 156/49~ Avenue intersection, as well as utilities, snow storage, signs, etc. · The proposed right turn ingress is acceptable. However, we are concerned about wrong- way exiting movements here. Appropriate on-site signage must be provided to preclude other uses, and will be required via the permit process when construction becomes imminent. Should these movements become a problem, the entrance may have to be closed. The site design should allow for this contingency. · All proposed construction within county right-of-way requires an approved Hennepin County permit prior to beginning construction. This includes, but is not limited to access, drainage and utility construction, trail development, and landscaping. Contact our Permits Section at 745- 7601 for the appropriate permit forms. · The developer must restore all areas, within the county right-of-way, disturbed during construction. Please refer to additional comments on the preliminary plat under the City Engineer and City Attorney comments sections of this report. The City Code states that copies of the final plat shall be submitted to the Planning Commission for its review and recommendation, unless this requirement is waived by the Planning Commission during its review of the preliminary plat. The Planning Commission will need to make a determination as to whether it wants to review the final plat or not. Due to the non-routine nature of the plat and the fact that the appropriate easements are not shown, staff is recommending that the final plat be reviewed by the Planning Commission. Planning Case Report 99-21 Page 4 10/29/99 Rezonin.q The change in zoning from R-1 to PUD is a policy decision for the Planning Commission and City Council based on whether the proposed medium density residential development is consistent with City obJectives with regard to redevelopment and housing. The City may approve the zoning request if it finds that the proposed development fulfills the intent of the PUD zoning district and adequately responds to compatibility concerns that may be presented between this project and the adjoining Iow density neighborhood. The City of New Hope considers rezoning decisions to be a policy matter that are warranted only via a positive response to the following criteria: 1. Has the request resulted from a past zoning mistake? The current R-1 zoning is consistent with the surrounding neighborhood and is reflective of the past Comprehensive Plan. In this respect, the current R-1 zoning is not a mistake. 2. Has the character of the area changed to warrant consideration of a zoning change? The westem half of the property is a vacant parcel. The size and location of the site has raised the question as to the appropriateness of the site for Iow density single family development. The west half of the project site was identified in the New Hope Vacant Land Study of 1989. Due to the Iocational and physical constraints of the site, the study recommended a change from Iow density single family land use to a medium density residential land use. New Hope's 1997 Life Cycle Housing Study identified a community need for attached housing (townhomes, twinhomes, cooperative apartments) that offer Iow maintenance, independent housing opportunities. Consistent with the recommendations of the 1989 Vacant Land Study, the 1999 proposed land use plan identified the project site for Iow to medium density residential land use. This land use type was prescribed to offer some development/redevelopment opportunity for this area of the City. Based on the aforementioned planning efforts, the City may find that conditions have changed that warrant consideration of the zoning change. 3. The proposed action is consistent with the goals and policies of the Comprehensive Plan. The proposed project has a density of 7.7 units per acre. The residential density falls within the medium density residential (range 5 - 10 units per acre). The proposed land use plan guides the subject site for Iow to medium density residential land use. The following goals and policies are supportive of the zoning change: Goal 1: Provide a vadety of housing types, styles and choices to meet the needs of New Hope's changing demographics. Policies: A. 'Through infill development and redevelopment efforts, increase life cycle housing opportunities not currently available within the City (i.e., high value housing, townhomes). B. Promote medium density attached housing to address the needs of an expanding empty nester or independently living elderly population. C. Continue the City's efforts to provide special needs housing for people with vadous types of disabilities. Planning Case Report 99-21 Page 5 10/29/99 Goal 3: Promote multiple family housing alternatives as an attractive life cycle housing.. option. B. Adhere to the highest community design and construction standards for new construction and redevelopment projects. C. Accompany medium and high density development with adequate accessory amenities such as garages, parking, open space, landscaping, and recreational facilities to insure a safe, functional, and desirable living environment. The following Comprehensive Plan policies must also be weighed in considering the zoning change as well as project density and design: Goal 4: A cohesive land use pattem which ensures compatibility and strong functional relationships among activities is to be implemented. Policies: A. Maintain and strengthen the character of individual neighborhoods. B. Prevent over-intensification of land use development, that is, development which is not accompanied by a sufficient level of supportive services and facilities (utilities, parking, access, etc.). C. Investigate remedies to correct or eliminate existing land use compatibility problems. D. Examine requested land use changes in relation to adjoining land uses, site accessibility, utility availability, and consistency with the City's Comprehensive Plan and policies. E. Accomplish transitions between distinctly differing types of land uses in an orderly fashion which does not create a negative (economic, social or physical) impact on adjoining developments. F. Infill development of compatible land uses shall be strongly encouraged. G. Where practical, conflicting and non-complementary uses shall be eliminated through removal and relocation. The Comprehensive Plan encourages medium density residential land use for redevelopment in this area of the City. The Planning Commission is considering the zoning and the development project must also evaluate project design and density to determine its compatibility with surrounding Iow density land uses. 4. The proposed land use is or will be compatible with present or future land uses of the area. The site consists of two over-sized, underutilized single family lots. The following land uses surround the site: Land Use Zoning North 49th Avenue High Density Residential R-4 South Single Family Residential R-1 East Single Family Residential R-1 West Winnetka Avenue/Single Family Residential R-1 The site Iocational and physical characteristics have raised questions as to the appropriateness of the R-1 zoning. Winnetka Avenue and 49t~ Avenue are major thoroughfares that separate the site from land uses on the north and west. Planning Case Report 99-21 Page 6 10/29/99 The introduction of the medium density zoning presents compatibility concerns for the adjoining Iow density residential properties to the east and south. Efforts to mitigate the compatibility issues between the different density residential uses include: a. All building orientation and access from a private street system to control traffic and site access. b. The buildings are single story design which blends with the architecture in the area. c. The applicant is proposing the use of a fence on three sides of the property to screen the townhomes and to protect the privacy of the adjoining properties. 5. The proposed use conforms with all the performance standards of the Zoning Ordinance. The applicant is requesting a PUD zoning district to gain design flexibility related to density and private streets. This flexibility is not available through a more traditional zoning district. 6. The proposed use can be accommodated with existing public services and will not overburden the City's service capacity. The site has immediate access to municipal utilities in 49th Avenue that have sufficient capacity to accommodate the 12 proposed residential units. City staff does not foresee any capacity issues related to utilities or public services for the proposed project. 7. Traffic generated by the proposed use is within the capabilities of the streets serving the property. Winnetka Avenue is a minor arterial and 49"~ Avenue is a collector street. Both of the adjoining streets have the capability of accommodating the project's traffic generation. Planned Unit Development 1. The purpose of a PUD is to provide for the grouping of land parcels for development as an integrated, coordinated unit as opposed to traditional parcel by parcel, piecemeal, sporadic and unplanned approach to development. It is intended to introduce flexibility of site design and architecture for the conservation of land and open space through clustering of buildings and activities. It is further intended that PUDs are to be characterized by central management, integrated planning and architecture, joint or common use of parking, maintenance of open space and other similar facilities, and harmonious selection and efficient distribution of uses. 2. The processing steps for a PUD are intended to provide for an orderly development and progressions of the plan, with the greatest expenditure of developmental funds being made only after the City has had ample opportunity for informed decisions as to the acceptability of the various segments of the whole as the plan affects the public interest. The various steps are: A) Application Conference. Preliminary discussions. B) General Concept Plan. Consideration of overall concept and plan. C) Development Sta.qe Plan. One or more detailed plans as part of the whole final plan. D) Final Plan. The summary of the entire concept and each Development Stage Plan in an integrated complete and final plan. 3. The General Concept Plan provides an opportunity for the applicant to submit a plan to the City showing his basic intent and the general nature of the entire development Planning Case Report 99-21 Page 7 10/29/99 before incurring substantial cost. This Concept Plan serves as the basis for the public~_~ hearing so that the proposal may be publicly considered at an early stage. The followin elements of the proposed General Concept Plan represent the immediately significant elements which the City shall review and for which a decision shall be rendered: A) Overall Maximum PUD Density Ran~qe. B) General Location of Maior Streets and Pedestrian Ways. C) General Location and Extent of Public and Common Open Space. D) General Location of Residential and Non-Residential Land Uses with Approximate Type and Intensities of Development. E) Sta,qin,q and Time Schedule of Development. F) Other Special Criteria for Development. 4. The purpose of the Development Stage Plan is to provide one or more specific and particular plans upon which the Planning Commission will base its recommendation to the Council and with which substantial compliance is necessary for the preparation of the final plan. 5. The evaluation of the proposed Development Stage plan shall include, but not be limited to, the following criteria: A) Individual Riqhts. Adequate property control is provided to protect the individual owners' rights and property values and the public responsibility for maintenance and upkeep. B) Traffic Plan. The interior circulation plan plus access from and onto public rights-of-way does not create congestion or dangers and is adequate for the safety of the project residents and the general public. C) Open Space. A sufficient amount of useable open space is provided. D) Privacy and Property Values. The arrangement of buildings, structures and accessory uses does not unreasonably disturb the privacy or property values of the surrounding residential uses. E) Compatibility. The architectural design of the project is compatible with the surrounding area. F) Drainaqe. The drainage and utility system plans are submitted to the City Engineer and the final drainage and utility plans shall be subject to his approval. G) Sound Development. The development schedule insures a logical development of the site which will protect the public interest and conserve land. H) Plattin.q Code. The development is in compliance with the requirements of the New Hope Subdivision Code. I) District Requirements. Dwelling unit and accessory use requirements are in compliance with the district provisions in which the development is planned. 6. The Planner had the following comments regarding the PUD: The PUD zoning district allows flexibility in land use and site design intended to provide for the conservation of open space through the clustering of building and activities. Further, it is intended that the PUD will result in integrated planning and architecture, joint and common parking, maintenance of open space and other similar facilities and efficient distribution of land uses. The change of zoning and the flexibility offered through the PUD should be given in exchange for an innovative high amenity development proposal. The applicants have provided a narrative description of their project and have emphasized that the costs associated with land acquisition and site redevelopment are higher than if the project was undertaken on vacant raw land. To offset the costs associated with site redevelopment, the applicant is requesting the PUD and increased project density. P~anning Case Report 99-21 Page 8 10/29/99 Project Density- Section 4.192(6) of the New Hope Zoning Code states that within a PUD Zoning District, the exact density allowable shall be determined by standards agreed upon between the applicant and the City. The City Zoning Ordinance requires the following lot area per unit standards: Twinhome 7,000 square feet per unit Townhome 5,000 square feet per unit The applicant is proposing 12 twinhome units on the 67,317 square foot site. This results in a lot area per unit of 5,609 square feet. The applicant is proposing twinhomes at townhome density. The housing type and density were reviewed by the Design & Review Committee which indicated that the proposed density may be acceptable if the site plan demonstrated quality development, high amenity site design and a compatible land use relationship with adjoining single family area. There are three stages to PUD approval, concept stage, development stage,.and final stage. The applicant is requesting both concept and development stage consideration. If the zoning is found to be acceptable, the Planning Commission may recommend approval of the PUD concept/development stages subject to the aforementioned conditions. However, if the additional information is necessary or the Planning Commission wishes to review revised plans illustrating the aforementioned recommendations, the concept plan approval alone may be appropriate. B. Development Review Team Appropriate city staff and consultants met to review the plans on October 13 and were not very supportive of the preliminary plans due to many concerns, primarily PUD balance (high density without architectural quality, generous landscaping or amenities). C. Desi.qn & Review Committee On October 14, the Design & Review Committee was supportive of the concept, as long as major improvements were made: change the buildings to one story; major upgrades to landscaping, perimeter buffers at east and west; significantly improve building architecture and quality, etc. As a result of the meeting, revised plans were submitted for review by the Planning Commission. D. Plan Description The revised plans include the following details: 1) Setbacks - Per the Planner's report, the PUD zoning district requires the following residential setbacks: Required Proposed Front (49th Avenue) 35 feet 35 feet Rear (South) 35 feet 35 feet Side (Winnetka Avenue) 30 feet 30 feet *Side (Abutting R-1 Zoning District) 16.5 feet 19 feet *Setback Between Buildings 14 feet 18 feet Setback from Private Streets 15 feet 20 feet *These setback requirements are based on the building height. The proposed townhome/twinhome project complies with required setbacks for a residential PUD, Planning Case Report 99-21 Page 9 10/29/99 The building separation from the single family house to the east has raised compatibili~L. concerns. To reduce the impact of the proposed project, the following design items hat been implemented: a) The smaller twinhome has been located adjacent to the single family home to reduce the building scale next to the house. b) The twinhomes/townhomes are single story to blend with the neighborhood. c) The buildings meet the required setback from the adjoining R-1 zoning districts. d) The applicant is proposing a six-foot high wood fence to screen the project from the adjoining single family home. e) The applicant has provided details pertaining to patio location and design. In review of the site plan, staff offers the following recommendations pertaining to the east side yard: a) The air conditioning units within the project must be Iow noise producing units that will comply with city noise levels of Section 9.423 and 9.424 of the City Code. b) Additional landscaping should be provided around the air conditioning units to screen the units and help mitigate the noise. 2) Building Design - At the Design & Review Committee meeting, the city staff expressed issue over the type and quality of the housing units. In response to the recommendation of the Design & Review Committee, the applicant revised their building and site plans. The following review comments are offered pertaining to the building plan: a) All of the townhome/twinhome Units are of single story design. The housing product was suggested by the Design & Review Committee to respond to the current empty nester market. b) The applicant has provided brick accents to the front of the residential building and added some exterior detailing and roof variety, resulting in an improved building appearance. Vinyl siding is proposed for the balance of the building. The lack of architectural accents at the back of the buildings emphasize the building size and mass. Staff suggests additional landscaping along the back perimeter of the building to visually reduce scale of the structures. c) The site plan illustrates an 8' x 8' concrete patio at the rear of building along with landscaping at the perimeter of the patios. In review of the patio design, the following issues should be addressed: (1) The PUD plans should illustrate the type of fence or wall that will separate the shared patio on the four-unit townhomes. (2) The patios do not align with the doorways on the building plans for the four-unit townhomes. The applicant may wish to widen the patio to allow for proper alignment and offer some outdoor living space. d) Garages - City staff questioned the practicality of the garage sizes (380 square feet) shown in the original building plans. The revised building plans provide larger double garages. Gara,qe Floor Area Ranqe Twinhomes 408 square feet to 455 square feet Townhomes 443 square feet to 476 square feet Planning Case Report 99-21 Page 10 10/29/99 ~. Garage storage is viewed as a premium for the compact site design. The Planning , Consultant recommends eliminating the two-foot building jogs created by staggering the garages in favor of larger garages. Through the PUD approval, the City will not permit outdoor storage of trash receptacles, recycling or other miscellaneous items. 3. Landscape Plan - The applicant has provided the following landscape schedule: Key Common Name Quantity Size Root BJ Broadmoor Juniper 3 18-24" 3 gal. GFS Goldflame Spirea 2 18-24" 3 gal. SA Summit Ash 12 2-1/2" B&B GS Goldmound Spirea 76 18-24" 3 gal. AH Annabelle Hydrangea 36 18-24" 3 gal. RM Rose Magnifica 36 18-24" 3 gal. RPW Red Prince Weigela 72 18-24" 3 gal. JSY Japanese Spreading Yew 8 18-24" 3 gal. CS Colorado Spruce 9 3-4' B&B The schedule and plans show that a total of 254 trees and shrubs would be added to the site. In general, the landscaping plan combines a variety of shrubs and two types of trees on site. The plan identifies nine Colorado Spruce trees, three of which will be used along both the east and west property lines inside the cedar fence as screening, and the remaining three trees will be clustered in the northeast corner of the property. There will also be 12 Summit Ash trees used as boulevard trees in front of the townhouse units and along the south property line, adjacent to the one-way drive accessing the site from Winnetka Avenue. The trees, at the time of planting, will be 2 ~ to 4 feet tall. The plan also indicates 233 shrubs to be used as landscaping around the building units. The shrubs are used to screen the backyard patio areas and the front entrances. The plan shows six Red Prince Weigelas around each patio area, with a combination of Goldmond Spirea, Annabelle Hydrangea, and Rose Magnifica around the front entrances. The middle units of the four-unit townhouse buildings were given more landscaping shrubs in front of the units. Five shrubs were used on the property as landscaping away from the buildings, and those are at the southwest corner of the property. Three Broadmoor Junipers and two Goldflame Spirea are indicated between the Winnetka entrance and Unit 6 where traffic will be entering the property. When planted, the shrubs on site will all be 18 to 24 inches tall. The landscaping plan also indicates that 14 trees will be saved for screening purposes. Five mature hardwoods will be saved in the southeast corner of the property, and seven mature hardwoods will remain between the townhouse units and 49th Avenue. Two large oak trees will remain between Unit 12 and the adjacent property to the east. At the time of development, the petitioner is proposing to seed or sod all areas disrupted by the construction process. The green areas on the property will be irrigated. The trees to be planted will be covered with wood chip mulch at the base of the tree, and the shrub areas will receive a complimentary rock mulch treatment to a depth of four inches. The Planning Consultant has made the following recommendations on the landscape plan: A) Consistent with staff recommendations, the applicant is providing a six-foot maintenance-free fence along 225 feet of Winnetka Avenue. This should help screen the townhomes from Winnetka Avenue traffic. However, staff questions the appearance Planning Case Report 99-21 Page 11 10/29/99 of the 225-foot fence as a streetscape amenity along Winnetka Avenue. To soften th~,,. appearance of the fence, the following landscape recommendations are offered.' (1) Provide a landscape accent at the corner of 49th and Winnetka Avenues. Landscaping in this area should be designed in a manner respectful of the traffic visibility requirements. (2) Enlarge the landscape area north of the private drive to extend to the south end of the fence. More extensive landscaping is also suggested. (3) Interrupt the length of the fence at its midway point with either a break in the fence or a jog. Establish a landscape accent on the Winnetka side of the fence to break up the fence length and add a streetscape accent. B) The landscape plan shows three to four-foot Colorado Spruce trees along the back of the townhomes. Staff recommends replacing the Colorado Spruce with over-story deciduous trees as a means of replacing trees that will be removed. The over- story trees will extend above the adjacent fences contributing to the visual appearance of the site and screen the property. Staff also recommends that the number of trees at the rear of the townhomes backing up to Winnetka be increased from three to six with spacing occurring at each of the unit lot lines. C) Additional landscaping should be provided around the air conditioning units to screen the units, mitigate noise, and to break up the building mass. D) The site plan suggests that some of the existing trees will be preserved. To preserve the existing trees no grading or soil compaction should occur within the drip line of the tree canopy. The grading plan. does not provide adequate protection for the existing trees to insure their survival. Improved efforts to preserve the existing trees must be undertaken. E) The landscape plan illustrates a setback between driveways of adjoining garages. Staff suggests that this setback be eliminated and the driveways connected to avoid maintenance issues for this area. 4) Fencing - The applicant is proposing a six-foot fence around three sides of the project site. A boundary line cedar wood fence with alternate sides is proposed along the east and south property lines. The wood fences are consistent with the existing fences. The applicant proposes a maintenance-free fence along Winnetka Avenue. A detail of this fence should be provided to outline the fence material and design. 5) Lighting - The landscape plan shows four private street light standards (one near 49th Avenue, one in center of development, and two near the south portion of the development). The plans state that they will be a 400 watt metal halide shoe box Type A light fixture with 20-foot steel poles. The lighting description is consistent with city standards, however specifications and contours are necessary to insure that there is no light spillover to the south residential property. 6) Private Streets/Parking - The applicant is proposing a private street system to serve the proposed subdivision. An 18-foot wide one-way street is proposed to offer right-in access from Winnetka Avenue (Hennepin County will only authorize a right-in access - see County comments). The main pdvate street has a 25-foot width. The following comments offered relate to the private street and parking: Planning Case Report 99-21 Page 12 10/29/99 a) Hennepin County must approve the access permit for the southern curb cut on Winnetka. The site plan shows proposed signage designating the southern driveway as a one-way street. Additional signage is recommended stating "no exit." b) The applicant has modified the turning radius of the 18-foot driveway into the 25-foot driveway to accommodate a 30-foot single unit truck. c) The 25-foot private street extending south from 49th Avenue complies with PUD standards. This street will be posted no parking. d) The site plan illustrates four guest parking stalls. These stalls are properly dimensioned and compliant with setbacks. The elimination of the setback between adjoining driveways may provide additional opportunity for off-street guest parking. e) The landscape plan illustrates the location of on-site snow storage areas on the south side of the property. Please refer to the City Engineer's comments on the street width and access and utilities/grading. 7. Homeowners Association - The proposed project illustrates a compact design with density requested through a PUD zoning district that would be greater than permitted in a traditional zoning district. To accommodate the project design, the City will require the following use restrictions as part of the PUD approval. This approval will be implemented through the Homeowners Association Declaration and Bylaws. The entire project shall be subject to the condition of PUD approvals which will include: a) The City will require that each of the unit lots will own lot 13 in an equal and undivided interest. The ownership pattern' insures that each unit maintains a vested interest in the common area. b) The Homeowners Association Article IV, Sections 6 and 7 outline the restrictions on outside storage. No changes to these rules may be made without approval by the City. The applicant has provided draft copies of PUD agreements, including Declaration of Covenants, etc., which are currently being reviewed by the City Attorney. E. Plannin.q Considerations Excerpts from the Planning Consultant's report are incorporated throughout this city staff report. The report is included as an attachment. F. Building Considerations Plans are not complete for building permit purposes at this stage. Many details will be needed at permit application, to demonstrate compliance with all Minnesota construction rules, including MN Disability Access Law (4-unit buildings), MN Energy Code, Mechanical Code, etc. G. Legal Considerations The City Attorney has examined the proposed preliminary plat for L and A Homes and made the following comments: 1) The plat does not list the owners of the involved real estate. That information will be needed, and title evidence must also be provided by the developers. All owners will need to be signatories on the final plat. In addition, all mortgage holders must either be signatories on the plat, or sign a recordable consent to the plat. Planning Case Report 99-21 Page 13 10/29/99 2) When the plat is filed, the entire real estate taxes, due and payable for the year in whic~13. the filing takes place, must be paid in advance. So there will be some advantage for t~ owners to completing the platting process in 1999. A. En.qineerin.q Considerations The City Engineer has reviewed the plans and made the following comments: The submitted plans identify 12 proposed units with a private drive access. This is a high number of units given the size of the parcel and access limitations. The parcel also has a number of large trees worthy of preservation. The proposed improvements eliminate a majority of the trees. Site Plan 1) It is recommended that the City and the applicant consider improving on the site plan to increase open space, tree preservation, and on-site parking. One simple option could include eliminating units 1 and 2. This will preserve the area with the highest density of trees. Other options could include realigning Virginia Avenue such that trees in the northwest and southeast corners of the plat are preserved. Realigning Virginia Avenue will result in less units on the plat. Winnetka Avenue/Hennepin County 2) The County has indicated that the "right-in" access as shown on the plan would be acceptable. Proper site signage must be provided to assure that this access is not used for movements onto Winnetka. 3) The future reconstruction of the Winnetka Avenue/49th Avenue intersection may result in the addition of a dedicated left turn lane. This will increase the street width to a minimum 60-foot width. A likely street width is 65 feet. The addition of sidewalks will increase the width to 72 to 75 feet. The existing ROW width is 80 feet. The County has recommended that an additional '10 feet of street easement be dedicated. It is recommended that the City further evaluate this requirement. Comparison of this intersection to similar intersections along Winnetka may indicate that the existing 80-foot ROW will be adequate, however, boulevard width would be compromised. Parking/Access 4) The turn-around, hammerhead areas at the south end of Virginia Avenue must be signed no parking. This area is dedicated for turning movements. 5) Parking on the property is limited. Virginia Avenue must be signed no parking. No parking is currently allowed on the south side of 49th Avenue. Visitor parking is limited. 6) The curb radii appear to be adequate for emergency vehicle access. Grading Plan Several changes are recommended relating to the proposed grading plan. See the attached sheet. 7) Drainage along Winnetka Avenue relies on a swale between the sidewalk and the buildings. It is recommended that the FFE be evaluated such that the backyards can be graded to drain to the boulevard and Winnetka Avenue. 8) A Iow point exists at the southeast corner of the plat. This Iow point is land-locked. It is recommended that storm sewer be extended to serve this area. A proposed alignment is shown on the attached sheet. Planning Case Report 99-21 Page 14 10/29/99 9) The FFE elevation of Units 9 and 10 is Iow when compared to the high point on the east lot line. It is recommended that the FFE be raised to 923.00 (+ or -) and a high point created. Drainage would be achieved via the storm sewer extension. 10)It is recommended that the storm sewer along 49th Avenue be realigned to the boulevard. This will minimize impacts to the existing trees to be saved. The catch basins at Virginia Avenue would be relocated to the mid-rads. 11) It is recommended the site storm sewer be connected directly to the existing storm sewer at Winnetka Avenue. Permits shall be obtained from Hennepin County. 12) Street grades will require adjustment to account for FFE elevation changes and drainage changes. 13) The Iow point in the northeast corner of the plat can be served by storm sewer or graded to eliminate the Iow point. Drainage/grading along the east lot line must be coordinated with existing trees to be saved. I. Police Considerations Street lighting has been added, although contours and specifications are not submitted for revised site plan. VIII. Summary Staff feel that the applicant has done a good job of addressing a variety of issues raised by the Design & Review Committee and commends the petitioner on the revised plans. However, due to the fact that a number of details still need to be submitted or resolved, staff is recommending only concept PUD approval at this time, with the understanding that the applicant will work with staff to finalize all issues and return to the Planning Commission for development/final stage approval. This will also give adequate time for adjacent property owners and the City Council to provide input. In staff's opinion, the two big issues involved are the rezoninq and density. In analyzing the request, it is useful to consider the following three criteria: 1. Is the proposed land use with twinhomes and townhomes reasonable Is rezoning appropriate? Staff contend that this question was answered years ago when the market and owner focUsed on a variety of developments more intense than one dwelling unit. New Hope policy did not allow anyone to attempt rezoning without a specific development proposal (commonly referred to as "speculative rezoning'). Previous concepts involved the west lot only and were not successful. This developer has more than doubled the land area and enhanced the potential. With R-4 apartments across the street, 300 feet of County road frontage, two street frontages, a bus line and local precedent of similar projects along Winnetka in the vicinity, rezoning is appropriate. 2. Is the proposed density reasonable at 5,593 square feet/unit? Staff expect that the developed density on this land will eventually be approved in the range of 5,000 square feet/unit (townhome) to 7,000 square feet/unit (twinhome), which are currently allowed in the respective R-3 and R-2 zones. This is because the location, land area and higher density across the street justify a more intense use than one single family home. In addition, staff is aware of the three neighborhoods in New Hope where 300-foot deep single family lots present problems for owners and development opportunities. This is one of those areas, where some landowners have offered to sell the "back half" of their lots or inquired about options on more land than they can maintain. The City has precedent for platting lots and Planning Case Report 99-21 Page 15 10/29/99 increasing density on exactly this type of oversized corner lot real estate. See Exhibit "A".. I~s. 5,593 square feet the perfect density/unit for the site? Perhaps not, but dropping one build[ (2 dwelling units) yields 6,710 square feet/unit density (close to the R-2 minimum) which the City is considering reducing because it consumes so much land. Staff believe that a case can be made for this density, if a very strong, attractive PUD design includes architectural quality. 3. Is the PUD site design and building architecture attractive and adequate to balance #1 and #2? Staff recognize a very strong revised plan effort to address stated concerns with earlier concept drawings. A few more "quality" upgrades are needed to address concerns: · Building architecture: Improve rear elevations [suggest offsets and dormers) and quality of roof coverings (suggest shake-look). · Landscaping/fencing: Confirm six-foot cedar fence throughout with ornamental features/posts at lot lines (suggest masonry columns, etc.) and a fence opening along Winnetka with 18-24 feet of upright coniferous shrubbery planted 24 inches apart to break up the "walled isolated" look. Provide 5'-6' Colorado Spruce trees (minimum size) and add six to twelve 1.5 inch deciduous trees in rear yards, Save more mature trees - identify snow fence protection methods at crown width of trees on plan, before excavation. · Common Area and Association Issues: Eliminate loopholes in association documents for outdoor storage of recreational vehicles, equipment and trailers, and other rule waivers "by a simple vote of the association." Clarify common area definition, since driveways are not on Lot 13, but suggested to be common area maintenance issues. Building landscaping maintenance/replacement is similar, since it is not on Lot 13. Clarify snow plowing and street pothole/sealcoating policies. Clarify utility maintenance responsibility limits: water and sewer and electric and gas will cross all 13 lots. Clarify siding and roofing color and replacement policies: Partial structure work of these types may not be acceptable. Clarify that lot sales to other builders before construction are prohibited or restricted to the Council-approved building designs. · Some public opposition exists; additional public comment is very important, here, particularly from abutting homeowners. Two homeowners in the neighborhood have visited City Hall and voiced opposition to the concept. Through the PUD, The City is obligated to sustain or improve land values in the immediate vicinity. The change in zoning from R-1 to PUD is a policy decision for the Planning Commission and City Council. The proposed medium density residential development is consistent with city objectives with regard to redevelopment and housing. The City may approve the zoning request if it finds that the proposed development fulfills the intent of the PUD zoning district and adequately responds to compatibility concerns that may be presented between this project and adjoining Iow density neighborhood. IX. Recommendation Pending pubic input, staff recommend approval of the preliminary plat and concept stage PUD approval, subject to the following conditions: Plat 1. Incorporate items from City Attorney's correspondence 2. Add appropriate easements as requested by Hennepin County 3. Consider Hennepin County's request for sidewalk easements. 4. Provide a separate utility connection for each unit Planning Case Report 99-21 Page 16 10/29/99 Site Plan 5. Revise grading plan to provide proper tree preservation measures. 6. Consider eliminating setbacks between driveways of adjoining garages. 7. Obtain appropriate permits from Hennepin County for approval of the private street access to Winnetka Avenue. 8. Utility plan is subject to the review and comment of the City Engineer. 9. Incorporate the grading plan recommendations of the City Engineer. 10. Hammerhead turn-around area and the private drive must be signed no parking. 11. One-way access from Winnetka must be properly signed to assure that the access is not used for movements onto Winnetka Avenue. Landscapin.q 12. Increased landscaping along the rear of the buildings to reduce building mass and around air conditioning units. 13. Replace the three Colorado Spruce trees along Winnetka Avenue with six over story deciduous trees. 14. Provide a landscape accent at the corner of 49th and Winnetka Avenues designed in accordance with the traffic visibility requirements. 15. Enlarge landscape area north of the private drive to extend to the south end of the fence. 16. Add landscaping accents along Winnetka to break up the fence length. 17. Illustrate type of fence or wall to separate patios on four-unit townhouses. 18. Improve efforts to preserve existing trees. Fencin.q 19. Interrupt or jog the fence at the midpoint along west and east property lines. 20. Provide detail of the fence along Winnetka, including materials and design. Building 21. Consider eliminating staggered garage fronts to increase garage size. 22. Consider realigning patio with exterior doors. 23. Improve rear elevations and quality of roof coverings. Li.qhtinq 24. Provide lighting specifications and contours for site Homeowners Association 25. Clarification of common lot issues 26. Common areas to be owned by the unit lots as an equal, undivided interest. 27. City must approve of the Homeowners Association rules and any subsequent changes to the rules. 28. Homeowners dedication shall be subject to review and comment of the City Attorney. Development Aqreement and Performance Bond 29. Developer to execute a development agreement with the City of New Hope and submit a financial guarantee as determined by the City Engineer and Building Official. Attachments: Address/Zoning/Topo Maps 10/21 Petitioner Correspondence Preliminary Plat and Details Site Plan and Details Landscape and Lighting Plan Planning Case Report 99-21 Page 17 10/29/99 Landscape Schedule Planting Details Grading Plan and Details Erosion Control and Street Section Fence Detail Duplex: Elevations Foundation Plan and Details Floor Plan Fourplex: Elevations Foundation Plan and Details Floor Plan 10/20 Petitioner Correspondence re: Declaration Draft Declaration Draft Articles of Incorporation Draft By-Laws Draft Memorandum Planner's Report City Engineer Memo/Comments/Exhibit Hennepin County Correspondence City Attorney Correspondence Staff Exhibit "A" Comprehensive Plan Excerpts Application Log Planning Case Report 99-21 Page 18 10/29/99 ?~--'~ ! "~'- "~'"' ........ ~' ~ 1.1 1 ~'... /,.,,'~-~......." "--..O,m--._.: ~ 48TH AVE N-- ' , 48TH_ ~IR N ,."' ...... . > COOPER ~- ". R-2 ~ ~ x~ / '" :~OF · ~ HIGH SCHOOL __48TH AVEN ~8T~ - Z .~ - ',Z ERAN ~ , .......... - ~H ' ( .... .......... _~2.AV~ HIGHVIEW, ~,s~ .----' ........... ...._. - ........... r ....... ~, ---- ~' ';'~ ~ TOWER NEW HOPE ~-D'~' ~-~" " ELEMENTARY ~ ~, --~ ...... .... ~6ii2 A~E N O ....... 46TH_ ................. Z 42ND AVE N ROCKFORD RD To: City of New Hope From: Lloyd and Alice Vagle Re: L and A Addition - Common Interest Community Date: 10/21/99 The present use of the land at the SE comer of 49t~ and Winnetka is vacant and low. The size of the vacant comer lot doesn't lend itself to traditional residential use, as the county wouldn't allow access onto Winnetka. The second lot east presently has a very old house and detached garage that is under contract to purchase, with plans to remove the structures. We are proposing two twinhomes and two quadhomes, both of one level living design with basements. These designs make great use of the land and will appeal to the increasing empty nester market. Many designs for this plat were considered, but few options remained. Because the county would not allow access onto Winnetka, the private road with a one way entrance off Winnetka seems to be the only reasonable alternative. The setbacks that have been discussed for the project confine the buildable area to the design we are proposing. The price of each single unit should start at $165,000, depending on restrictions and amenities that need to be satisfied. The proposed 2 bedroom twinhomes will feature 1297 sq. feet finished on one level. The owner's suite will have 2 closets and ~A bath or full bath with whirlpool. The Living/dining/kitchen features a vaulted ceiling and a sliding door to the back yard concrete patio. The main floor laundry makes the plan perfect for our aging market. The four-unit building is also a dynamite plan for one level living. Each unit will have 1172 finished sq. feet plus a full basement. The features include owner's suite with a walk-in closet and double entry bath. The second bedroom features a sliding door to allow it to be used as den with access to the back yard 8x8 concrete patio. The greatroom/kitchen will have a skylight to allow for more natural light. There will also be a main floor laundry. All 12 units will have double garages ranging from 420 - 480 sq. feet which allows enough area for trash and recycling containers. The exteriors will be maintenance free with aluminum soffit and facia, upgraded dutch lap vinyl siding and brick per plan. Roof pitches will feature 7/12 and 9/12 on the front elevations and 5/12 and 6/12 on the main roofs parallel to the street. Each unit will be self-contained in all mechanicals and utilities. Air conditioning will be in the back and utility connections in the front. Gas fireplaces and fireplace chases will be optional. All units will have rear concrete patios with free standing dividing privacy wall between adjoining patios are next to each other. A privacy fence will be placed on the east property line between the existing single family home and proposed twinhome. Today's labor market has caused us to look at new and improved construction techniques. We are considering a panelized wall system to provide superior quality and less waste by weather and theft. These panels are not to be confused with modular housing, where the house comes finished in two sections. The panels are studs, plates and exterior sheathing only. Several local lumber suppliers are now furnishing these panels custom designed to any plan. We have used the panels in our upper bracket homes, as have many other builders. A local example would be Charles Cudd in Golden Valley. Exterior colors feature beige tones with accent trim off white and brick of the same shades. The roof will be weathered wood 240# asphalt shingles with a 25-year warranty. The question has been asked, "Why put 12 units on this site?" Economics is the determining factor. The property values in the surrounding area do not justify a higher cost per umt. With a lower density, the cost per unit would have to increase. The greater number of units seems to assure the association more control and power over the long term. We are offering additional housing that is affordable and a better use of the land. The city also gains from the improvements by the increase in tax revenues. Many other areas of concern are addressed on the PUD document, site plan and landscape/grading plans. Final construction plans will be submitted at the time of application for building permits. In summary, we feel this proposed project and our experience of over 5 decades in the construction business is going to enhance the community. With our family owned and hands on operation, this should be pleasant experience for all involved parties. Thank You! WTN: ETT~_-\ 330.50 NORTH . . PRELIMINARY PLAT k AND A HO . ,NORT~ L~NE OF' Ni/a,. O~ N1'11¢1/4, OF 5Wl/4, $EC.8 .... · . ~sg 58 53" -. ,.~: ~.~~ ......... ~ ................ .., - ~:~~ ~ 'I-2 - '" 't '~ ~ --~ ~' RESIDENTI~ ~ ~ ( ~'~'l~ ~ - ~ ~ ~ d TY~ .... --- ~ 7 ' 22 .:~-"-z ........ ~,:, ~:~,, 264. '~'~ S89 . . OVE~HE~ : - SOUTH LIN[ OF NI/4. OF NWl/4, ~ 5WI/4, ~C.8 WINNETKA AVE ..... ~-~ --~ T~'~ ...... ~~ -~' EAST LINE (JF NI/4. OF NW~/4. O[ 5W*/4. 5EC.g ~ ,, . ~' ~ ,,~ ~ .... J_, ANY i ~ NORTH LINE OF 40TH AVE. N. SANITARY SEW£R ~ > ~ o~'vE 7 (ONE w~Y) ~ ~'~ SOUTH LINE OF' NI/4. OF..- NWl/4. OF SWl/4, SEC8 ,~ ~ YPICAL LOT 83.00 ~-'T~o PROPOSED 155-00 ~ O01 RESIOENCE The Wes: E64.00 feet o~ t~:e Nor?' ,/-:, of *,ne :;o-'.,,west ~/'4, ~ = AlP CONDITIONER AC :I TYPICAL LOT ' 82.00 ,8" PRIV WALL 20 ~, "' PATIO D,~:v~ PROPOSED ~ ........ '5.~_.~4.0__0__~ ,,["" PRIV. WALL ~' 82.00 ~ ~v[ RESIDENCE x8" PR'V. WALL / PATIO 2~ ~ ~~BX8 u 82,00 xS' P~lV. WALL LOt Coverocje Arec=67,!~7 (EXCLUD,NG ROADS) ~uitaing- 20,~45 Aspna!t- Green Area-.;32,164 ~ ~?~ WINNETKA AVE. ~ ~ 1,~1 ~-I ~ WlNN~T~ AVE. --~ ~ ~ ~ .............. ~, ~ ~/ ~' ~- ~I' -~-~.~_~F~ ........ ~ ..... 2~ /_ -. , · LANDSCAPE AND LIGHTING PLAN ..... 49TH AVE. N. ' ' ~ PASO (~1 ~~ /~ _..., , - I, i ~' ¢~, ;/, I ~1 ~_T.I ' " ~_~ n,~ ' "' . wOOD SNOW STORAGE ~, , INSTA~ A~EAS ( ~CAL~ ) WOOD NCRETE CAL) TYPICAL LANDSCAPING NO SCALE ~ETE c~'~ Brace aeciauous trees over >~.E o 4' ¢ohDer & evergreens e~ o . ?' high Or over witr. the .~ E ~ tri~o~ method. NOTCHE~ TRIPOD MI THQD NO SCALE 7 Irt ROLLED STEEL POST GH (MNDOT 3403) OR APPROVED EQUAL {3) PER TREE O 120' STAKES SHALL BE DRIVEN A MINIMUM OF .3' lETO GROUNC PRUNE DAMAGED BRANCHES SPECIFIED TREE WRAP 16' LONG POLYPROPYLENE OR POLY~rHYLEN E SET PLAN'/ IqATEI~IAL AT (~,~"'~[~t'~ 1/2- WIDE STRAPS ORIGINAL DEPTH CUT ALL BINDING AND REMOVE BUILAP FROM TOP 1/3 Dr ROOT DOUBLE STRAND 12. GA WIRE 3"-6' MIN DEPTH MULCH 5' SAUCER PREVIOUSLY EXISTING GRADE I '~ 6" DEPTH COMPACTED TOPSOIL I 12" MIN ---,.--- ~ PLANTING DETAIL, FOR DECIDUOUS TREES NO SCALE GRADING PLAN S~-~D~=A,,. 49TH AVE. N. SEE DETAIL ~ ...... POINT DETAIL ~ SILT FENCE ,=,, ELEV.-918.70 SEE DETAIL ~(..U_~ -'-% .... . --.'-- X. :~--.. ~....:% ~'-. ,, ,, ' ~ ,' ,.}.... ~-.~'.,_/ ~,,,~.:.. ,× ,9 1 -'~...-'i '*-----. g .,~. ~... __ - .=.:.. - - - -...% ,, ~ ~,... . ~ :'-'-., I : ~ U il~,:, -~ -~ I ,' ., I ,Iici ;> I ,---- Il I tI I ~ .= , _ *: / !,~ ~ zo., 10 ,,.,, ~. , ., , , , ~ U ~ "- ,., i~LL__' ; a ~"' 9~ ti ': ',11 I ;..._J '~ I · i I ~, I {: II I i o .____L ~ 8 o '~ 11 ---'--:=' " "'", Iii ~ J/ ~/ I ;,".7 i ."% I ;..,~"... l ~.~ , , _ __..~,.~_~.. , ~ -;.... .ii: .. £1..,,... , ,,, ~,.~., . SEE DETAIL ~-- ~'~'~ ~'~ .... '-: "------~-'~'"' "' ........... ;'~ ' 'd ,, ,---~-~ - -~ ........ ' "" ~?~ ........... ~,~';... HIOH POINT '2.75X SLOPE '*~ROVs~OS~ IE×~,,; .cc.: ,'-,:,,:~_- ELEV.=920.55 (TYPICAL) ,SILT FENCE,=,, ~o. SEE DETAILG(~_,) LixOSlOi'i LCIIIROL HOLES COHSTRUCTION REQUIREMENTS . : ............ ,,.. .....,.. ,.,.~,,..,., ,.. c.,, ~.~ .... SILT FENCE DETAIL~ ~'~, ~; , ................................................. ' ................... "' ...................... ~ .................... ' '1;/I '~ I ' ', co~s,t[ I I I I I I I I I I I I I I I l/ I, ~ .-~ ..... ~. I ~re I .~,s~. '~:. Im~ Hakanson NOTES. ............................. I ............ I .... ~SJ~;0~ ~1~1 Anderson CONSTRUCTION R QUI E E S ..... , .... ' ~'""'" ROCK CONS~UC~ON EN~ANC~ ~~~ '~,,~.,,- ......... · ~,;eJ New Hope, U, eso~,] I Z ~) 12' ~ CONCRETE I -H / { T ALL HARDWARE TO BE NOT ENI~ED BOARD &: BOARD FENCE DETAIl 2X4 S'TRtNGE~ W/SPACER -- lX6 ~ ALTERNATE: 8' O.C. ~/,,,-~TOP ELL~. OF' FENCE TO REMAIN CONb~ANT 2X4 S'TRINGI~'~ W/$PACE~ 1X6 CAP I ~ lX6 CEDA,q AL'I~RNATE SIDES POST --~ 8' O.C. ~TOP E~rv. OF F~:NCE TO / RE)&IdN ~ANT 4~4 ~ ~ i , ~.+j I-.= 8' o.c. BOARD &: BOARD FENCE DETAIL 'h jj ;il! 'i ':lI ;Ii ;,1 - ": ill : l'i[i~ll Terpstra, Black, Brandell & Jensen Ronatd G. Btack Attorneys at Law ," ~ E. Brande[[ ~ 913 Main Street ~rfery J. Jensen Elk River, MN 55330-1508 Elizabeth K. Moore (612) 441-7040 cfc Brian A. Park (612) 441-0901 fax James A. Bumgardner John W. Terpstra (retired) October 20, 1999 ~..-~.,,. Mr. & Mrs. Lloyd Vagle 8955 194th Lane P.O. Box 504 Elk River, MN 55330 Dear Mr. & Mrs. Vagle: This letter is written to address issues raised by the New Hope city staff in the Development-Review Team Summary, dated October 12, 1999 and the Memorandum, dated October 13, 1999 from Mr. Frank Brixius to Kirk McDonald. The Development-Review Team Survey at paragraph 11, raises questions on the draft association documents. I will address the points which the city staff is raising. "Dissolution" -- The dissolution of a non-profit corporation and homeowners association is governed by Minnesota law. Two statutes control. The first is M.S. §515B, the Common Interest Community Act. The process to terminate a common interest community such as this is detailed in M.S. §515B.2-119. The second is M.S. §317A which governs all non-profit corporations. The draft documents submitted to the city conform to the requirements of both statutes. See Declaration at Article I, Section 3, Article II and Article Xl. "Common area clarification" -- I understand that Lot 13, Block 1 is to the common area owned and under the control of the L & A Homeowners Association, Inc. "Rental of units" -- It is unclear what the question is. The Declaration permits an Owner to rent a Unit to a third party for residential purposes only. This is no different than what the owner of a free standing single family home can do. The Declaration requires that any Tenant conform to the rules (if any) of the association. The Declaration prohibits daily or weekly rentals. "Sale of lots" -o Again, what the question is, is not clear. The Declarations define a "unit" to be a plot of land shown upon the plat that is intended to be sold to the ultimate buyer as separate property. Plots identified as Lots 1 through 12 are intended Mr. & Mrs. Lloyd Vagle Page 2 ~"~ to be sold to the homeowners. Lot 13 (the Common Area) is to be conveyed to the L & A Homeowners Association. "Other buildings" -- The only buildings to be constructed are shown on the site plan. "Private street, driveway, yard, lighting and lawn sprinkling maintenance responsibilities" -- The maintenance obligations are the responsibility of the L & A Homeowners Association. The duties of the Association are described in the Declaration, Article VII, Section 1, items (a) through (s). No information was noted on storage sheds, clothes lines, fences, gardens, recreational equipment, vehicles and trailers on or off driveways. Storage sheds are not permitted; see Declaration Article IV, Section 7. Clothes lines are not permitted; see Declaration Article IV, Section 4. - Fences are not permitted; see Declaration, Article IV, Section 4. - Gardens are not permitted; see Declaration, Article IV, Section 10, unless authorized by the Association.. - Recreational equipment, vehicles and trailers on or off driveways - must be stored inside; see Declaration, Article IV, Section 7. The Association may grant exceptions. Paragraph 1 9 references occupancy restrictions. In the event you elect to develop the property as a "seniors only" project. The optional paragraphs shown in the draft Declaration must be adopted. Mr. Brixius' Memorandum also discusses the homeowners association on page 4. Item 1 - M.S. §515B requires that the Owner/Developer convey to the Homeowners Association the Common Area contemporaneously with the filing of the plat. Item 2 - Maintenance of the exteriors and common areas is described in Article VII, Section 1 and Article VIII. Item 3 - Maintenance of the exteriors and common areas is described in Article VII, Section 1. Mr, & Mrs. Lloyd Vagle Page 3 Should additional clarification be required, please let me know. Sincerely, TE~ BLACK, BRANDELL & JENSEN CIC NUMBER L and A Homes, a Planned Community DECLARATION THIS DECLARATION is made on this ,: da' , 1999, , by Lloyd S. Vagle and Alice E. Vagle, referred to as "Declarant"). RECITALS: A. Declarant is the owner of certain described on Exhibit A attached hereto and by this reference incorporat~ located in the City of New Hope, County of Hennepin, State of B. Declarant desires to create c~ nity on the Property in accordance with the provisions of 51 5B (hereinafter "Act") and to subject the Propert' the restrictions, and easements herein set forth. C. Declarant has as a non-profit corporation under the laws of the State Homeowners Association, Inc. (hereinaft )r the exercising the powers and duties hereina' NO hereby declares that the Property shall be held, built upon,., subject to the Act and to the following covenant~ and easements which are for the purpose of valu~ bility of, and the benefits and burdens of which shall run with Property ar binding on all parties having any right, title or interest in Property or an hereof, and their heirs, successors and assigns. ARTICLE I Definitions Incorporated. Except as otherwise specified in this De~ n, the terms used in this Declaration which are defined in the Act shall have the same meaning as they have in the Act. ~ Additional Definitions. Throughout this Declaration, the following 1 terms shall have the meaning given to the below: (a) "Association" shall mean and refer to the L and A Homeowners Association, a Minnesota non-profit corporation, its successors and assigns. (b) "Common Elements" shall mean all real property and im thereon owned by the Association for the common use a . of the Owners and such other persons to who .m .~,.e Owr ate this right pursuant to the Declaration. The or to be owned by the Association at the time cony first Unit is legally described on Exhibit B atta¢ (c) "Declarant" shall mean and refer ~, Vagle and Yagle, husband and wife, their succ~ ins, if (i) any such successor or assign should acquire more thl Unit from the Declarant for the purpose of tent of conveyance recites that such suc( h. all of the rights and obligations of the Dech ric obligations pass to such successor or ass~gn~by (d) "Declaration'' shall m-ean ation of L & A Addition as from time to .... in ac~ with the provisions hereof. (e) "Eligible sh holder of a mortgage, which ,ien (f) C¢ ents" shall mean and refer to that portion of the to specific Units in accordance with Arti h~ ~. "Pro mean and refer to that certain real property described on ~A, and such additions thereto as may hereafter be brought jurisdiction of the Association in accordance with the provisions )f. shall mean and refer to any plot of land shown upon any plat of the Property that is intended to be sold to the ultimate uyer as separate property. The term "Unit" shall include any improvements on such plots. "Unit" shall not be construed to mean Common Area even though Common Area is identified as a lot on the plat. 2 (i) "Unit Owner" shall mean and refer to (i) the record holder of the fee simple title to a Unit, other than a contract for deed vendor, or (ii) a ~ contract for deed vendee of a Unit, whether one or more persons or entities. A Unit Owner does not include persons who hold an interest in a Unit merely as security for the performance of an obligation (including contract for deed vendors). ·~?~ ~,. ~ . . ~ IPterDretation. in the event of any confhc~he provlsmns of the Act, the Declaration, the Articles of incorpor~ion,_ ~-~.~.°f ~$s~Ciation, the By- laws of the Association or any Rules and Regulation_~aopte~~~~ociation,__ ~__ th~ shall control in the following orde~o~'-priori~~t;,.,~ ~~ (ii)~'~ documents Declaration, (iii) the Articles of Incorporation, (i~_~he By-I~ a~~~~d RegulatiOns. As appropriate, each reference to a~cu_.~Pron~~'e the feminine and neutral pronoun and each referenc~_gular~_ pronou~'~s~§~t~i~include the multiple pronoun. ~ ARTICLE I~~ ~_~ In accordance with the requiremen of the Act, the Declarant hereby states the followir (a) The number of th~ created hereby is the number set forth on th( this (b) The name & A Homeowners Association, Inc. pursuant to the provisions of Minnesota rapt (c) y created hereby is a planned community. It i., association. The leg[ of the Property included within the common interest community crc .=reby (including all appurtenant easements) is set forth on the attached ~ibit A. 'e) ;cription of the boundaries of each unit created by this declaration, unit identifier number for each Unit, is set forth on the plat of L & which plat has been filed for recording with the office of the ennepin County Recorder and is hereby incorporated herein by reference. (f) The allocated interests are assigned equally to each Unit. Each Unit shall one vote in the affairs of the Association. Except as provided in Article V, Section 3 (relating to the Alternative Assessment Program), each Unit shall share the Common Expenses equally. (g) The common interest'community created hereby shall consist of 12 units, all of which shall be restricted to residential use. . (h) No additional units may be created by the subdivision or ~verston of Units. (i) The use restrictions to which the Unit ',ated in Artic!,~,.~ IV hereof. There is no restriction on the sal t~be received upon the condemnation, :ommon interest community are set forth in XI, respectively. (j) Time shares are not permitted. (k) Matters relating to Special D~.~.Right~ ~ tined in Article III hereof. Matters relating to the ~~mon .~:~ ~nts are contained in Article V, Section I hereof. Ma~~: ca~r~:nd maintenance of the Common Elements are contal'~ed in A'~c~l~i'l~c'~tion 1, hereof. Matters relating to assessments for ~..~.xP_.ens~~ntained in Article V hereof. Matters relating to ~ Eleme~s are contained in Article Xll, Section 7. RIGHTS Notwithstanding anything in this Declaration to the contrary, the Declarant shall have the right to col ~me; J affairs of the Association until the earlier of the followir ? 60 days :he conveyance of seventy five percent of the Units ~ to Unit Owne~ ~ther than the Declarant; or th iears from the date of the first transfer of a Unit to an r than the Declarant. During this period of Declarant Control, larant, subject to Article V, Section 2 (b) of the By-Laws, shall ye the sole right to appoint, remove and replace the officers and directors of the Association. Section 2. Maintenance of Sales Offices. Notwithstanding anything herein to 4 the contrary, so long as the Declarant owns an interest in a Unit, the Declarant may maintain advertising signs on any part of the Common Elements and sales offices, ~" management offices and model units in any Units or in or on any part of the Common Elements and such sales offices and model Units may be relocated by Declarant from time to time. There shall be no limit on the number or location of such offices or model units. ~. Section 3. Easements in Favor of Declarant. provisions contained herein to the contrary, so long as and of Units shall continue, Declarant shall have any easement over Elements for the purpose of carrying out its sales activitie~ for th~~. completing the construction of any Units, including without Ii ingress and egress, vehicular parking, material storage Jslness offices, signs, model units, and sales offices, shall have an~:easement for access to such facilities; provided, however, shall promptly restore any damage to the Common Elements by ruction incident to the foregoing. This Section may not be amended written consent of the Declarant. Section 1. The is shall be used for residential purposes only. No use may ny Un that of a residence for the Unit Owner thereof, th~ social guests. No business or commerci~ shall except as specifically provided in this De~ the ion may maintain an office on or in any part ~nt purposes. With the exception of a secured party in possessio~ in a first mortgage, a foreclosure proceeding, or any ement in lieu of foreclosure, no Unit Owner shall be transient or hotel purposes. For the purposes of this Se( purposes" shall be defined as: any period less than 30 days; or rental if the occupants of the Unit are provided customary s, such as room service for food and beverage, maid service, ishing laundry and linen and bellboy service. The Unit Owners of the respective Units shall not lease less than the entire Unit. Any lease arrangement shall be required to provide that the terms of the lease shall be subject in all respects to the provisions of this Declaration, the By- 5 laws and Articles of Incorporation of the Association and to any rules and regulations established by the Board of Directors, shall contain the agreement of the lessee to be bound by the terms of such documents and shall provide that any failure by the lessee to comply with the terms of such documents or rules shall be a default under the lease or rental agreement. All leases shall be required to be in writing and any,. Unit Owner leasing or renting a Unit shall, prior to the commencement~f the lease or rental term, deliver to the Secretary of th~;~Ass, oclatlon a complete copy of the lease or rental agreement ,::.O~er' tha the foregoing, the Unit Owners of the res Un~t-~shallf~ave the absolute right to lease the same. ~ Prohibited Activities. No nc~i0us or off~h~i~¢tivities shall be carried on in any Unit or elsewhere on ', nor shall an~~e done therein or thereon which shall constitute a nuisanc shall in the judgment of the Board of Directors cause unreasonable noise others. No residents or visitors may park in areas not specifically by the Association. ~_c_tL0_Q~, Unit Exterior. No O~ or ,,- :orate the exterior of a Unit except according to plans and writing by the Board of Directors of the Association, so the gs on the Property shall always be maintained In addition, no clothing, sheets, blankets, laundry or o be displayed or stored outside the Units (except within the s are all ated to the Units), or which may be visible from the outside draperies, curtains, or shades of a custom" nature )earanc, event subject to the 'rules and regulati ctors) shall paint or decorate or adorn the or ;ide his Unit any canopy or awning, or outside radio or televisi, merit, fixtures or items of any kind, without the prior written Directors in its discretion. No Owner of a Unit shall displ the garage which is allocated to his Unit) or use an, n outsi or which may be visible from the outside of his Unit with~ ;sion of the Board of Directors. The foregoing g, an be permitted to display a sign of not more than three s, feet in area :rtising such Owner's Unit for sale or lease. Such sign shall be in the yard between such Owner's Unit and the road in front of such Unit. Pets. Except as provided herein, no animal of any type shall be or in the Common Elements. When deemed appropriate by the Board of rs, it may, but shall not be required to, enact rules and regulations permitting the keeping of a specific type of animal in one or more, but not all, Units when special circumstances are present. An example of the special circumstances contemplated hereby is the need for a seeing eye dog. The Board of Directors shall also have complete discretion as to the substance of any administrative rules and regulation enacted by it regarding the manner in which any permitted animal shall be kept, provided that the Board of Directors may not, in any case, permit the keeping of any animal for any commercial purpose. The Board of Directors shall have the right at any time, to change its rules and regulations relating to special circumstance animals. Such right shall include the right to prohibit the keeping of any animal of a type permitted to be kept by previously enacted rules and regulations, animal permitted to be kept shall be kept in strict accordance with the rules and regulations relating to such animals from time to the Board of Directors and in any event shall be kept in a mannel a to others. Section 6. Trash. Trash, garbage shall in sanitary containers located in the Unit garage, an disposed of i ~an and sanitary manner. The Association may contract for the removal and disposal of garbage, trash and other solid fits in accordance with this Declaration. Each Unit Owner shall be obli such services from the provider designated by the the t and rates negotiated by the Association. In the ew 'uests any services not included within the basic/general Jch Unit Owner, upon written request of the Association reiml for any charges for such services, plus all related y fees and administrative charges of the Association, a by O~ such charges shall be a lien against such Unit Owner's Except as provided in this De the gulation adopted from time to time by the discretion, no personal property of any kind whatsoev to or to any tenant, guest or invitee of such Owner shall be or permanently, outside of a Unit of on the Common g the generality of the foregoing, no motorized or non- rized v campers, cabs, trailers, recreational vehicles, snc bic es, motorcycles or other types of recreational equipment, sh stored exce a garage. The foregoing notwithstanding an Owner may: (a) keep ;onal property in his garage; operational automobiles on the driveway allocated to his Unit; (c) keep normal and customary lawn and patio furniture and potted plants (but no play equipment) on any lawn and/or patio allocated to such Owner's Unit. 7 ~ ~. N° U~it OWner'~h~ll overload the electrical wiring in a Unit or operate any machines, appliances, accessories or equipment in such manner as to cause, in the judgement of the Board of Directors, an unreasonable disturbance to others. ~ Rules and Regulations. A Unit Owner's use of his Unit and the Common Elements will be subject to any rules and regulations by the Association pursuant to Article VII hereof. ~ (~ardens and Shrubs. Exce.p~ the Board Directors in its sole discretion, no gardens, shru~.~flowers shall planted by any Owner on any part of the Comm~~ Elemer ~_r,.tJ_o.Q~ ~lg.L~lrj~Eg. Except for allocated t( all parking areas in the Common Elements are invitees and visitors to the Property and shall not be used by Unit ~ Blocking of Driveways no c,r ;es shall any Unit Owner block access to any garage or garage or driveway serving such Owner's Unit. Section 1. · ' 'after contained, there shall exist favor of each Unit Owner and appurtenant to suc across and upon the Common Elements: e easement for ingress and egress to and from ~ver and across designated pedestrian or vehicular ~ccess areas in the Common Elements and to and from de( or public streets, highways, or rights of way; {ii) non-exclusive easement to construct, maintain, install, re ~nd replace sanitary and storm sewer, water, gas, electric, cable television and other utility lines which may or may ereafter serve a Unit. Such utility lines shall be initially constructed or installed in locations designated by Declarant. New or replacement utility lines shall only be constructed at such locations as may be approved by the Board of Directors of the Association; (iii) In the event that any building or other structures originally constructed by the Declarant or constructed or erected thereafter ~-~ as part of any Unit in accordance with this document encroaches upon any other Unit, or, if any such encroachment shall hereafter arise because of settling or shifting of the building or other cause, an exclusive easement appurtenant to said encroaching Unit for such encroachment and the maintenance thereof shall (iv) A non-exclusive easement for use ~ment of those portions of the Common Area d~ and recreational uses. (b) The rights and easements in and Owners created hereby shall be subject t~ )wing: (i) The right of the Association its Articles and By-laws, to borrow monies for the repairing, and maintaining the Commo ~nts, .~nts thereon, and in aid thereof .~said provided that any such mortgage of the Unit Owners or in writing 67 percent of the total votes in the of the votes allocated to Unit.~ y the t). (ii) The )f the to take such steps as are reasonabl ti Common Elements against Association to suspend the voting and ~r for any period during which any unpaid; provided, however, that nothing conta subparagraph (iii) shall be deemed to deny an owner and from his or her Unit; (iv) right of the Association to dedicate or transfer all or any part Common Elements to any public agency, authority or uti, (including, without limitation, utilities furnishing gas, 'icity, water, telephone or cable television) or to grant licenses and easements over such Common Elements for utilities, roads and other purposes reasonably necessary or useful for the proper maintenance or operation of the Property, provided that, except as otherwise provided herein, no dedication or transfer of an portion of the Common Elements, nor any 9 easements, license, or ~pe~mit OVer or With respect to any portion · thereof shall be effective unless approved at a meeting of the members of the Association, which approval shall be evidenced by a written resolution duly attested to by the Secretary of the Association. All other requirements set forth in the Declaration or the Act must also be satisfied with respect to any transaction of the nature therein described..~..~' (c) Any Owner may delegate such Owne in the Common Elements to his or her family and I" reside ~ on the Property, subject to all the prc ~erein /:' (d) Nothing contained in this Decla n the Incorporation or By-Laws of the Associ~ ~11 be construe a dedication of any part of the Common 31lc or to public use. ~ lye an easement over each Unit, including the right of ac into~'~'~building constructed as part of a Unit, for maintenance all improvements, for the maintenance, repair and replaceme~ utility pipes, ducts, and wires and for the purpose of any er repairs or other duty of the Association. The Associ; this is subject to reasonable notice to affected Unit Owne at reasonable hours. Notice from the Association is her, emergency repairs are required. If work p ~rmed by iociatio e real or personal property of any Owner or replaced by the Association as a Exce rise provided herein, each Owner shall be entitled the exclusi' occupancy of his or her Unit and any Limited ;ommon tllocated thereto in accordance with Article XII, Section 7 of is Declaration, to the exclusion of all others; provided, however, tl generally and all other Unit Owners shall be 'isual easement over all such areas, subject to and limited structures erected thereon by the Declarant. No Owner :ct or cause to be erected any structure of an sort upon his or her or plant any trees or shrubs prior to obtaining the written approval of the Association. (b) Each Unit over which a public utility easement has been dedicated, lO as shown on the recorded plat of the Property, shall be subject to a right and easement for underground general utility purposes over that portion of such Unit which is burdened with such dedicated public utility easement. Such utility purposes shall include, but not be limited to, sewer, water, gas, electrical, telephone and cable television purposes, including the right to build, construct, reconstruct, rebuild, repair, maintain and operate underground sewer, water, electrical main~~ and ~ . telephone or television cables, and any surface connec:~lon,, such underground mains, along with the right to ,~r the ground for such purposes providing that all filled and the surface restored to its former con, (c) The utility easements described in s of this are and shall continue to be superior to Common Eh ts describes in subsection (a) of this Section however, in the event that it shall be necessary to install any utility facilities crossing an such private ~ .repairs and maintenance shall be undertaken to ca extent practicable, minimal interference ~, and any and all damage to driveway, wal~v~ay or yard areas shall be repaired and the Section 4. The easements described in this Article V shall be per in be appurtenant to the Units which are burdened and which '~ All the easements created herein o: may only be used by the Association in connectio,n~~~xerc rights and obligation of the Association which are more full~ this Declaration. _ ARTICLE VI ~<~; Section 1. · v . The Board of Directors shall from time to time, and ~'.......~st annually in'vance of the beginning of the Association's fiscal year, prepare ~!~get~ of Com.~n Expenses for the Association and shall allocate, assess and levy Sa ~~enses against Units equally. The assessment for Common Expenses s~3i costs ncurred by the Association in carrying out the rights and duties gran~'~ it by this Declaration, the By-laws and Articles of the Association, and the Act, including, but not limited to the following: property damage and liability insurance; fidelity bonds; professional fees; maintenance, repair, and replacement expenses; utilities used in the Common Elements; snow removal; and lawn care. Each 11 assessment shall be the personal obligation of the Unit Owners. If a Unit has more than one Unit Owner, each Unit Owner shall be jointly and severally liable for the assessment. Upon the vote of the Board of Directors adopting a resolution which sets forth the budget of Common Expenses and the allocation thereof to the Unit Owners, the amount so allocated to the Unit Owners of each Unit shall, without further resolution by the Board of Directors, be levied as the annual assessment against such Unit, payable in equal monthly installments due on the first day of each during the period covered by the Budget. Declarant shall be responsible all Common Expenses set forth in this Declaration and the By-La of th until such a date that the Board of Directors has adopted a rE forth the firs', budget of Common Expenses and'the T~i~ Common Expenses shall include those Common and the By-Laws of the Association and may incl of Directors may deem proper for the operation and as permitted by the Act and all laws amendatory ~d supplementary thereto. The Board of Directors shall advise all Unit to the beginning of the period covered by the budget as to the amoun; nthly assessments payable by each of them, and shall, upon the furnish copies of each budget on which such £ the ;sment are based to such Unit Owner and to his First Mot budget shall be in the amount of the estimated Common thereby, including a reasonable allowance for Section 2 of this Article VI), less the amounts of any account balances existing from the previous period's any e payments to be received by the Association from rental for the purpose of defraying the costs use o' The total of the budget shall not be increas~ ent ~, without a general meeting of the mere ing in a majority vote to increase said budget more than five If not made by the Board of Directors as required, a monthly required by the last prior budget shall be due upon ~ment date until changed by a new budget. In the event let proves to be insufficient, or in the event of extra~nary or unfc Expenses, the budget and monthly assessments ba~!a' thereon may ~ded, or a special assessment levied, at any time by the Bd~ of Directors. ,ny special assessment shall be assessed against each Unit ly, shall be ~ the Units and shall be enforceable in the same manner as the assess Special assessments shall be payable in installments or lump by the Board of Directors. During any period of the Declarant dget shall not be increased by more than five percent (5%) over the previous year's budget, nor shall any special assessments be imposed without the affirmative vote of 67% of Unit Owners (other than Declarant) at a meeting called for that purpose. 12 ~ Reserve Funds. The assessment for Common Expenses shall include an adequate reserve fund for maintenance, repair and replacement of any and all improvements which the Association has the obligation to maintain under and pursuant to this Declaration. Contributions to any reserve funds established by the Association may not be withdrawn by any Unit Owner. Alternative Assessment Program. (a) Notwithstanding any provision in this when spreading the assessments against of the Assessment levied against those Units ow by the ~all be limited to twenty-five percent (25%) of amou those Units owned by Unit Owners ; however, that at such time as a certificate is issued Unit owned by the Declarant, the such unit shall be increased to the amount originally £hose Units not owned by the Declarant. (b) The alternative assessmer ;hall c with the adoption of the first assessr and shall continue until the tra~ Units to Unit Owners other than the Dec (c) The Declarant ) ;entati is regarding the effect of the alternative assessme~ of services for items set the Ass~ '~'s All Unit Owners shall be obligated to pay af levied by the Board of Directors pursuant to Section 1 may not avoid assessment for Common Expense ;ht to use or enjoyment of the Common Elements. ~ due as provided in Section 1 of this Article VI and s when designated by the Board of Directors. Any ;lagee acquiring mortgage interest from any Owner of a Unit may, as a c of the Ioal include in the mortgage note or deed a requirement that the ]agor, upon :ution of the mortgage deed, make a monthly deposit with the ee of each month sufficient to pay when due and payable all ~s attributable to that Unit. The mortgage note or deed may further !: JIt in making such deposit shall be a default under the terms of the deed. tn the event that mortgagee collects the monthly installments, such mortgagee shall remit the installments monthly on a current basis to the Association. Section 5. Assessment Roll. The assessments against all Owners shall be set 13 forth upon a roll of the Units which shall be available in the office of the Association or of any managing agent retained by the Association for inspection at all reasonable times by Unit Owners or their duly authorized representatives. Such roll shall indicate for each Unit the name and address of the Unit Owners, the assessments for all purposes, and the amounts of all assessments paid and unpaid. ~ Default in Payment and Collection of Common ExDen~:ses. In the event any Owner does not make payment of a Common Exp~ on or before the date when due, such Owner shall be on such assessment from the date due at the rate specified the Board Q[ Directors which shall not exceed the highest rat~ interes' .be char, thereon pursuant to either the Act or the laws of State such Owner shall be obligated to pay all ~es incurred by the Board in any proceeding collect any unpaid assessment, whether or not an action has been respect thereto. The right of a Unit Owner to pay the annual assessm installments is hereby made conditional on the prompt payment when installments. In the event of a default in the prompt paym~ he monl the Board of Directors may, by written notice :lng 0 accelerate the entire unpaid portion of the annual same shall become immediately due and payable. :tors shall have the right to withhold services from any g of Directors shall have the right and duty to attempt to re~ for Common Expenses, together with interest thereon and of )roceeding, including reasonable attorneys' fees, in an a rec~ brought against an Owner, by the lien purs[ ~,ct, any statute amendatory thereof or su idy available under the Act or hereunder. initial purchaser of a Unit from the Declarant shall pay to fee in the amount of $200.00. Said payment is not a de of assessments which the purchaser is otherwise re~ pay to the Association, but rather is a payment to a w~ capital fur by the Association for the initial months of o In the total initiation fees (when combined with the collected assessments) amount necessary to fund the operation of the association, said excess be contributed to the reserve funds to be maintained by the Cost of Damage Caused by. Unit Owner. (a) If any item of maintenance or repair to be performed by the Association is required because of the willful or negligent act or omission of any Unit Owner, his family, guests or tenants, the cost of such 14 maintenance or repair, in excess of net insurance proceeds received by the Association in connection therewith, shall be added to and become a part of the next monthly assessment to which the Unit of such Owner is subject. (b) In the event an Owner's actions causes any sod or s to die, the Association shall have the right to replace any sod or s that have died, and the cost thereof shall be added to part of the Owner's assessment. Section 9. Exceptions for Uneaual AssesSments. (a) Any common expenses associated replacement of a Limited Common undertaken Association may be assessed exclusively Unit or Units to which that Limited Common Element is basis of: (i) equality; (ii) square footage repaired or replaced; or (iii) the actual ic~ to each Unit. (b) Any commol benefiting fewer than all of ma, ~ainst the Units benefited on of the area being maintained, repaired or (iii) ~al cost incurred with respect to each Unit. (c) The of insurance may be assessed in proportion to value, risk ~nd the costs of utilities may be assessed in proportion to Reasonable attorney fees and other costs incurred by the Association in connection with the collection of assessments and the enforcement of the Declaration, By-laws, Act or Rules and Regulations against an Owner or occupant or their guests may be assessed against 15 the Owner's Unit. (e) Fees, charges, late charges, fines and interest may be assessed as provided in Section 51 5B.3-11 6(a) of the Act. (f) Assessments levied under Section 51 5B.3-11 6 of the Act to pay a judgment against the Association may be levied only against th~umts existing at the time the judgment was entered in prq~qrt~o~o their Common Expense liabilities. (g) if any damage to the Common Elem anotl by the action or omission of any Owner or~cupan Association may assess the costs of rep ge Owner's Unit to the extend not covered "~,~ (h) If Common Expense liabilities or any purpose authorized by the Act, common installments thereof not yet due shall be rec~ in with the reallocated common expense liab (i) Assessments de 9 (g) shall not be considered as being specl Section 10. various fees, charges, security deposits and other Sucl ,s, deposits and other requirements shall be a on a u a~ constitute assessments. ARTICLE VII )N The Association shall have and :o carry out the following activities: Mai~ )air the roofs and exterior surfaces of all buildings on the including, without limitation, any improvements constructed of the Units, including without limitation, the painting the sa~ s often as necessary, the replacement of trim and caulking, ~intenance and repair of roofs, overhangs, gutters and down storm windows, screens, doors, decks and garage doors constituting part of a Unit. Notwithstanding the foregoing, the Association shall have no responsibility for the repair or replacement of broken glass which forms the exterior boundary of a Unit. The Association shall also maintain and repair of any portion of any Unit 16 damaged as a result of the roof or exterior surfaces thereof being in a state of disrepair. (b) Maintain and repair the private drive, driveways and walkways, including any portion thereof loCated on any Unit. The Association shall be responsible for the maintenance and repair of the water supply system up to the inlet side of the water meter in each Unit, the unde )und sprinkler lines (if any) and the sanitary sewer system up wall of each Unit. (c) Snow removal from driveways and the Units. The Association, however, shal ot be removal of snow from walkways, Unit Ioca! Unit. (d) Maintain the Common Elements a andscaping and exterior areas of the Units, all to the ,ctors of the Association deems necessary or des (e) Maintain and manage for use by Unit Owners. (f) Adopt and publis regulations governing the operation and th Com~ ~ Elements, the use and occupancy of the of the members and th~ ;nants a th~ parking, matters of )r any part thereof and such other are or desirable to the harmonious use and enjo the Unit Owners, copies of all of which rules available to all Unit Owners. Exerci ~rs, duties and authority vested in or delegated to le Associatic reserved to the Unit Owners by law or by other provisions of laration or the Articles of Incorporation or By-Laws of the Associ~ 'h) ~ociation may obtain and pay for the services of any person manage its affairs, or any part thereof, to the extent it deems e, as well as such other personnel as the Association shall 'ne to be necessary or desirable for the proper operation of the Property whether such personnel are furnished or employed directly by the Association or by any person or entity with whom or which it contracts. The Association may obtain and pay for legal and accounting 17 services necessary or desirable in connection with the operation of the Property or the enforcement of this Declaration. The ASsociation may arrange with others to furnish water, trash collection, snow removal, sewer service and other common services to each Lot. Any agreement entered into by the Association for the management of all or a portion of the affairs of the Association or any other agreement providing for service by the Declarant or an affiliate of the Declarant shall b~i~'of a duration which does not exceed one year, shall be te the Association or the other party thereto without caI without payment of a termination fee upon not more notice and shall be terminable by the Association u than 30 days' written notice. (i) Lease or purchase and mortgage a :s or other res quarters for management and maintenance All rental or debt service paid by the Association pursuan e agreement or mortgage shall be a general Common Ex (j) Determine what shall Ex ~ses required for the affairs of the Associatio Common Expenses from the Unit Own~ in Article VI hereof. (k) Open bank acc of on and designate signatories required th (I) Obtain in,, for :~n or the Community pursuant (m) e for public utilities or other public purpos use of the Common Elements over an' s to any governmental subdivision or agent utility. Keep at ~gistered office of the Association or at such other place as the of Directors may determine, records of the actions of the Board minutes of the meetings of the Board of Directors, meetings of the Members of the Association, names of and names of any secured parties who have requested ;e of default as described in Article X of this Declaration and the on which such First Mortgagee holds a mortgage, and detailed and accurate records, in chronological order, of the receipts and expenditures affecting the Common Elements. Separate accounts shall be maintained for each Unit setting forth the amount of the assessments against the 18 Unit, the date when due, the amount paid thereon and the balance remaining unpaid. (o) Prepare or cause to be prepared the annual report referenced in Article IV, Section (b) of the By-Laws of the Association. (p) Furnish or cause to be furnished a certificate in accordan~ith Section 515B.4-107 (b) of the Act. The A~. the power to establish and collect a fee for such lee shall be in an amount reasonably related to the Association in furnishing such certificate. (q) Obtain the review of the required by Section 51 5B.3-121 of the Owners in accordance with the provisions =tion. (r) Maintain, repair or replace (in the ~n) any party wall which constitutes a dividing any (provided that the obligation to repair or repl nclude improvements or furnishings installed by a (s) Except to the extent exe~ ts with the specific provisions of this Decl, Act ;xercise all other powers lawfully available to under and pursuant to Minnesota Statutes 3' g herein or in the Declaration to the c~ specifically authorized herein or in the Declaratior of lall have no authority, except as may specifically be granted higher number as may otherwise be required hereunder claration) of the members present in person or by proxy __ g do any of the following: Purchas~ except that the Board of Directors may accept any Unit Jered to it for unpaid assessments and may purchase a Unit at any e held pursuant to foreclosure for unpaid assessments )rovided the Board of Directors shall not, unless authorized by the )id, at any such foreclosure sale, any amount in excess of the delinquent assessment on account of which the foreclosure sa is being held, any interest thereon and other costs related thereto which are, pursuant to the Declaration, the Act and hereunder, collectible from the Unit Owner of such Unit. 19 (b) Levy or assess as a Common Expense the cost of any capital improvement or acquisition, other than the repair or replacement of an existing portion of the Property, unless specifically authorized by not less than 90 % of the total voting power of the Association. ARTICLE VIII ARCHITECTURAL CONTROL From and after the completion of constructi~ on f any Unit, no building, fence, wall or other structure shall be ,or maintained?~ upon any Unit, nor shall any exterior addition or ~ge or to..any Unit until plans and specifications showing the m 'e, and location of the same shall have been subm to quality of workmanship and materials, harmon ~rnal design ar !ation in relation to surrounding structures, finish grade topography by the Board of Directors of the Association, or by an )mmittee composed of three (3) or more representatives appointed by ~vent said Board, or its designated committee, fails to a and location within thirty (30) days after said plans ~ ~en submitted to it, such approval will not be required an de~ned to have been fully complied with. The prevailing Association to enforce this Article shall be entitled to reasonable attorney's fees together with all necessary co~ id '.urred in connection therewith. The Board of Directors of the Association, or its duly a )mmercial general liability insurance against claims and with the ownership, existence, use or managem such coverages and limits of liability as the Associ~ o be necessary, but in no event shall the limits of the less than covering all claims for personal injury and/or damage arisl of a single occurrence. Said policy shall insure the Board 'ectors, the Ass iation, any management agent, and their respective employees, and all pe~ s acting as agents. Said policy shall also insure Unit Owners the but only for claims and liabilities arising in connection with stence, use or management of the Common Elements. Said policy s r claims of one or more insured parties against other insured parties. ~ Casualty Insurance on the Living Units and the In$~lrable Common Ar~a. Except as such requirements shall be modified by Federal National Mortgage Association ("F.N.M.A."), or Federal Home Loan Mortgage Corporation ("F.H.L.M.C."), 20 the Association shall keep all Units and all insurable improvements and fixtures of the Common Elements, if any, insured against loss or damage by fire and other hazards covered by the standard extended coverage endorsement and by sprinkler leakage (if applicable), debris removal, cost of demolition, vandalism, malicious mischief, windstorm, and water damage, as well as other risks customarily covered in similar projects for an amount equal to the full insurable replacement cost (i.e., 100% of current "replacement cost") excluding land, foundation, excavation, an~i3ther items normally excluded from coverage. Such insurance to cover all th~its and all of the Common Elements owned by the Association (includin. and building service equipment to the extent they are a part of as well as common personal property and supplies), togethe~ as ay,be required by F.N.M.A., or F.H.L.M.C. Any insuran~ )r/~and covering the Units shall not cover betterments or ,.~. ailed by the Owners. Section 3. Terms of Insurance Policies. carried pursuant to Sections 1 and 2 of this Article X shall [ (a) Each Unit Owner and insure under the policy with respect to liability interest in the Common Elements or memb~ (b) The insurer waive, ubrog n under the policy against any Unit Owner or m .~hold and against the Association and the Board of Directors; act by af or Secured Party shall void to recovery under the policy; and (d) the policy there is other insurance in the =overing the same property covered by the the s policy is the primary insurance. (e) The in~ rees to issue certificates or memorandum of insurance, up( request, to any Owner or Secured Party, and the insurer agrees that Insurance may not be canceled until 30 days after notice if the ,"d cancellation has been mailed to the Association and to ::)wner and each Secured Party to whom certificates of ..e have been issued. Section 4, Maintenance of Insurance Bv Owners of Living Unitr.. In the event the insurance described in Sections 1 and 2 of this Article X is not reasonably available, the Association shall give reasonable notice of that fact to the Unit Owners. 21 Thereafter, each Unit Owner, by his or her acceptance of a deed therefor, whether or not it shall be expressed in any such deed or other conveyance, covenant to carry, maintain and timely pay the premium or premiums on the policy of fire and extended coverage insurance, with the coverages included in the standard "all risk" endorsement. Such insurance shall cover, at a minimum, the full insurable replacement cost of the Unit owned by such Unit Owner, shall be in a form satisfactory to the Association and, as applicable, F.N.M.A., F.H.L.M.C., or any go.vernme~l or private purchase, insurer or guarantor of any mortgage on a Unit, that such policy may not be canceled or substantially modifi~ 'ithout at least thirty (30) days prior written notice to the shall furnis.~. the Association satisfactory evidence of the m /~e~. association may, but shall not be required to, ~nce premiums on behalf of any Unit Owner; provid~ that if does pay such premiums, the amount so paid by shall b~ y due and payable by such Unit Owner to the Ass may be included in the Common Expense assessment against such Section 5. All insurance coverage with respect to the ~all bE in the name of, adjusted by, and the proceeds Association. Said insurance proceeds shall be applied admi~ in accordance with the terms of the Act, and all Section 6. ~suran~red to in Section 2 or 4 above, all coverage shall be payable to the Association as ~r (s) of said Unit (s) and the Secured Parl (s). Said insurance proceeds shall be a Association in accordance with the terms e Act, ~ ~nts thereto. In the damage to a Unit, the Association may (i) pay the deductible as common expense, (ii) assess the deductible amount against the affected in any reasonable manner, or (iii) require the Owr ~f the Units affected to pay the deductible directly. Waiver of Subrogation. To the extent permitted by the standard Min form of fire and extended coverage insurance with all risk endorsements and to the extent benefits are paid under such policy, each owner of a Living Unit and the Association do hereby mutually release each other, and their respective officers, agents, employees and invitees, from all claims for damage or destruction of their 22 respective physical properties if such damage or destruction results from one or more of the perils covered by the standard Minnesota form of fire and extended coverage. Section 8. EJd.eJJ~_~O_QJ~. The Board of Directors shall, to the extent such coverage is available and affordable at what the Board of Directors determines to be reasonable rates, also provide fidelity bonds providing protection to the Association against loss by reason of acts of fraud or dishonesty on the directors, managers, officers, employees or volunteers )onsible for handling funds of the Association in an amount sufficient to less protection than one and one-half (1-1/2) times the estimated ;penses of the Association, including reserves. Any policy or bo hall provjde that it may not be canceled or substantially mo( (incl payment of premium) without at least thirty (,'. )rior the Association. Section 9. Other Insurance. (a) The Association may in the Board of Directors deems appropriate. (b) The Owners may m ir benefit in addition to the insurance Section 10, of Insurance Proceeds. ~nsur fidelity bonds, if any, maintained his Article IX shall be borne by all members thrc (b) placement of the Common Area fixtures or of insurance proceeds and reserves shall be ~ and in Section 6 of this Article X. The cost of repair by the ive Owner of the Living Unit. ARTICLE X RIGHTS OF ELIGIBLE MORTGAGEES Conflicting Provisiorls. The following provisions shall take prec~ ;nce over all provisions of this Declaration, and in the event of any inconsistency or contradiction, the following provisions of this Article X shall control. ~ Notice of ActiQrm. An Eligible Mortgagee, or its assigns, upon 23 request, will be entitled to written notification from the Association of: (a) any default in the performance by the Unit Owner of any obligation under this Declaration of the By-laws of the Association which is not cured within sixty (60) days; (b) any lapse, cancellation or material modification of an' insurance policy or fidelity bond maintained by the Association; o (c) any proposed action which, pursuan' Act, requires the consent of a s .[gible Mortgagees. Section 3. Certain Amendments. In ~nts for amendment of this Declaration and By-laws of unless at least sixty- seven percent (67%) (or such higher uired by law or this Declaration) of the Eligible Mortgagees, or their assigns one vote for each first mortgage owned), and of the Unit tha developer, or builder including the Declarant) of the Un their approval, the Association shall not be entitled to: (a) By act or omission st to ab on, er .'r, sell or transfer the Common elements (the ~1 for public utilities or for other public purposes the use of the Common Elements shall not ;med a rice p~ [or losses to any Units or to the other than the repair, replacement or recor of except as provided by the Act. (c) any Unit or the Common Elements. Add or material provision of this Declaration or the Articles or B ,f the Association which establishes, provides for, governs or re any of the following: (i) g; Assessments for Common Expenses, assessment liens or subordination of such liens; (iii) Reserves for maintenance, repair and replacement of the Common Elements; 24 (iv) Insurance or Fidelity Bonds; (v) Rights to use of the Common Elements; (vi) Responsibility for maintenance and repair of the several portions of the property; (vii) Expansion or contraction of the planned c~unity minimum or the addition, annexation or to or from the planned community; (viii) Boundaries of any Unit; (ix) The interest in the Common (x) Convertibility of Units into or of Common Elements into Units; (xi) Leasing of Units; (xii) Imposition of similar restriction on the right of a Unit )r otherwise convey his or her Unit; (xiii) Any express benefit of the holders o' iortgag! Any shall not be considered material if it is for the purpose c i' or for clarification only. Any Eligible Mortgagee, or its a upo entitled to: Ia) inspect )ooks, records and financial statements of the Association a current copies of this Declaration, the By-laws of the Association the rules and regulations of the Association, as the same me to time, be amended or promulgated, during normal receive an annual reviewed financial statement of the Association within 90 days following the end of any fiscal year of the Association; and 25 (c) written notice of all meeting of the Association and be permitted to designate a representative to attend all such meetings. ~ Prigritv: Notice of Certain Events. No provisions of this Declaration or of the By-laws shall be deemed to give a Unit Owner, or any other party, priority over any rights of an Eligible Mortgagee, or their Successors in interest, ,pursuant to their mortgages in the ease of a distribution to the Unit Owners of insura~'e proceeds or condemnation awards or settlements for losses to or a ,, ~'Units and/or of substantial dama to o ~ion of any Unit Common Elements. In the event or any part of the Common Elements, the holder o ~"~ on a Unit will be entitled to timely written notice of any such da i~lf* any Unit~'~r portion thereof or the Common Elements or an, )rtion thof ~s-~a~?~the subject matter of any condemnation or eminent domain or is oth~,~=~0ught to be acquired by a condemning authority, then ]agee with~a~ortgage on such Unit or Common Element will be entitled notice of any such proceeding or proposed acquisition. Upon th igible Mortgagee, the Association shall agree in writing to notify !tity servicing such mortgage, and/or any other entity havin! i e whenever damage to the Unit covered by such $ ).00 and whenever damage to the Common Elements Section 6. of a Unit Owner to sell, transfer, or otherwise convey will be subject to any right of first refusal or any similar the Except as specifically provid( (b) if an Eligible Mortgagee or a purchaser at a m :ains title to, or comes into possession of, a Unit pursuant in the mortgage or by foreclosure of the first mortgage or thereof, such acquirer of title or possession, his uire such title or possession free of any claims, and be lia share of the unpaid Common Expenses or assessments to such accrued prior to the acquisition of title or possession to Unit by such except as provided or permitted in the Act. Any unpaid sh~e of the Expenses or assessments shall be deemed to be Common collectit from all of the Unit Owners, including such acquirer, his and ns. ARTICLE Xl DISSOLUTION The common interest community created by this Declaration may only be terminated with the assent given in writing and signed by not less than the Unit 26 Owners holding eighty percent (80%) of the votes of the Association and eighty percent (80%) of the Eligible Mortgagees (each mortgagee having one vote for each Unit financed). Upon termination of the common interest community, after payment of all the debts and obligations of the Association, all Units, Common Elements,.~and Association property shall be administered in accordance with the provi GENERAL PROVlSI~r~Ts ~ Enforcement/Le_oal ProceediL~" u'nit_ ~~er family, tenants or guests shall not comply with ~~~~atlo.n., or with rules and regulations adoPted by the Associa~J~~e~s).sh..all be subject to legal action for damages, for injunctive ~~~re _of_ liens,- or any combination thereof, without limitation or electT~"~which,.,~,~~ relief may be In-any sought by the Association or by one or~ ~~, or both. proceeding arising from an allege failure ~~-aration, or rules and regulations of the Association, the ~tled to recover the costs of the proceeding and reasom ay be determined by the court. Failure by the Association enforce any covenant or restriction herein contained be a waiver to the right to do so thereafter. ~f any one of the covenants or restric idgement or court order shall in no way affect of this Declaration. covenants and restrictions of the Declaration shall run Except as provided herein to the contrary, this De may b. by an instrument signed by not less than sixty-seven perc~ of Any amendment shall also require the consent of th~ ders of (51%) of the Eligible Mortgagees (based on one vote Lot mort. except to the extent a higher percentage of Eligible ]agees is by Article X hereof. Any amendment must be recorded. FHA/VA A_oDroval. If all or a portion of the Property involves fi ;ih the Federal Housing Administration or the Department of Veterans Afl ~e following actions will require the prior approval of the Federal Housing Administration or the Department of Veterans Affairs until the termination of the period of Declarant Control: Annexation of additional properties, dedication of Common Elements and amendment of this Declaration. 27 ~ Meintenance of Unit Interiors / Imorovements. (a) Maintenance and repair of the interior of any Unit and all other portions thereof, structural or non-structural, not required hereunder to be maintained and repaired by the Association, shall be performed by each Unit Owner and such interior or other portions shall be maintained . in good, clean, attractive and sanitary condition, order commensurate with first class, residential property. (b) A Unit Owner may only seek to make to his ~. or her Unit in accordance with the ' ' )f Secti~ 3. ~ ~yoilabilitv of Records. shall for examination by the Owners or Eligible Mortgage~ ~venient hours Cs. Any member of the Association shall have the reasonable notice to the Treasurer, to review the accounts and financial Association. ~ ~ortio~ other than the Units are Common Elements. £he Co~ Elements designed to service a single Unit are, by operati (d) and (f) of the Act, Limited Common Elements allocat~ the respective Units serviced thereby to the exclusion the driveways or the half of the driveways adjacent to U are Limited Common Elements allocated for the exclusive u .ective to the exclusion of the Other Units. A y, the ar oning equipment serving each Unit and the d yard any, which are accessible from each Unit al the exclusive use of such Unit to the excl~ air conditioning equipment which is a Limited Common Init shall be maintained, repaired and replaced by the Owner of sole cost and expense. All other portions of the Lira hall be maintained as Common Elements under the pursua the VII hereof. The expense of any such maintenance and shall be ct Unit as a Common Expense under and pursuant to th~ of Arti hereof. Section 8. In the event of the taking of any of the Common ts by er domain or any action or proceeding in lieu of eminent domain ), the Association shall represent the Unit Owners in any s or in negotiations, settlements and agreements with the mnmng authority, and each Unit Owner hereby appoints the Association as his or her attorney-in-fact, irrevocably, for such purposes. If deemed necessary by the Association, it may obtain the services of a trustee to act on behalf of the Unit Owners in carrying out any functions under this Section. In the event of a condemnation of 28 part or all of the Common Elements, the award of proceeds of settlement shall be payable to the Association. All proceeds payable with respect to any condemnation ~-~' of Common Elements shall be applied to the restoration or repair of such Common Elements remaining after such condemnation or to such other purposes as may be in accordance with the functions and powers of the Association and the welfare of the Unit Owners. If all of a Unit is taken through condemnation, or if so much of that the remaining property cannot reasonably be used f~ ~ by this Declaration, then the entire Unit shall be consider~ Unit Owner's interest in the Common Elements and be on date such condemnation is completed. If part of a Unit is taken through condem~ the Unit car be used for a purpose allowed by this Declaration, then be no effect on the Unit Owner's interest in the Common Elements or Any proceeds of any condemnation belong and be paid to the Owner thereof and his or hel , as thei may appear. RIGHTS GR CIT~ NEW HOPE Section 1. shall be subject to a non- exclusive t in the Hope or the purpose of ingress and gress ;rgency calls, animal control, health and to the Owners other public services deemed necessary for the purposes set forth in this Section 1. No part of the released from the terms of the easements described :lared without the prior written consent of the City of N~ be evidenced by a Resolution adopted by a majority vote City Cou copy of said Resolution shall be recorded in the of~ 3f the County of Hennepin County, Minnesota. OPTIONAL ARTICLE XIV ELDERLY HOUSING RESTRICTIONS Age VerificatiQrh (a) The Association shall be entitled to verify the age of the Unit occupants from time to time as a means of ensuring that the Property complies with the 29 elderly housing provisions and restrictions of Section 18 hereof, the Fair Housing Act under 42 U.S.C. 3607 and regulations issued in connection therewith. (b) Within thirty (30) days following receipt of an age verification form from the Association, an Owner shall accurately complete and deliver said verification form to the Association. lc) Upon the occurrence of a "Event of (as defined below), an owner shall notify the Associatior and age. of the proposed transferee and the intend~ followi~l such transfer, which occupants shall includ~ lears.of:age or older as provided in Section 18 of this by Federal law relating thereto. (d) An "Event of proposed transfer" si .include the following: proposed or actual transfer, voluntary al or equitable title or interest therein to the Unit from ,more o by sale, gift, foreclosure, inheritance, devise or ~ance; provided, if there appear two named ), then any such transfer or conveyance whic of one of the Named Owners shall not be consi~ an transfer to the extent such transfer or conve~ th. Named Owners, and such surviving Named Owt ,ears of age; (ii) retains some equitable or legal occupies the Unit as his or her residen During the period that the restriction and covenants of force and effect, the Association shall provide "signil specifically designed to meet the physical and soc' occupying the Property as necessary to comply ~f 42 U S.C. 3607 and regulations adopted thereunder, the same from time to time. The Association shall be to mo, ~h facilities and services provided to the Owners from time to time to co~ with changes in the above described laws. In no event, however, the Association be liable to the Owners for any claim, liability or iamage from the Association's failure to accurately determine the "significant facilities and services" necessary to effect said ~ Elderly Housing OccuDancy Restrictions, Other Restrictions. Obligations and Rights of Owners, 30 (a) Elderly Housing Occupancy Restrictions. The following restrictions set forth in this Section 18(a) shall apply through December 31, 2028; (1) Each Unit shall have at least one person occupying the Unit who is 55 years of age or older (a "Qualifying Occupant"); provided, in the event the only Qualifying Occupant of a unit dies or otherwise ceases to occupy the Unit, the spouse of that Qualifying Occupant a~d any other persons residing in the Unit at the time of that Occupant's departure (each a "Remaining sh~ fled to make written application to the Associati( a .the foregoing, Qualifying Occupant requirement; pre that it s~ll be a condition precedent to am Association that (I) such owns or equitable title to the Unit Remaining mt to possession of the Unit; and (ii) suct Occupant occupied the Unit immediately prior to the de ifying Occupant as his or her principal residence. The rrant or deny such a waiver in it sole discretion ta part, whether a grant of the waiver Prop disqualification as "housing for elderly per in the Fair Housing Act, 42 U.S.C. Sectior ~ established thereunder, In the event the ont a unit ceases to occupy a Unit, the Remain' shall to the Association written notice of the Qu~ Occupant within thirty (30) days foliowi dep[ Units reserved for persons who meet the age ~reme~ 18(a) above. person younger than 18 years of age occupy :erin basis. {4) that the Property qualify as "housing for older persons' the Fair Housing act and comply with 42 U.S.C. Section 3607 in particular. Compliance with the Fair Housing Act, and said secti( in particular, allows the Property to be used exclusively for "h, for older persons" as defined therein. In the event the Fair act is amended, such that provisions of the Fair Housing act plicable to the Property and pursuant to which the Property is able to operate as an elderly person housing project are modified, the following provisions shall apply: (i) in the event the legal requirement defining the phrase 31 "housing for older pbrSO~§~' b~come less restrictive than those set forth in 42 U.S.C. Section 3607 (b)(3), as reflected in Subsection 18(a) hereof, the requirements set forth in Subsection 18 hereof shall remain unchanged; and (ii) in the event the legal requirements defining the phrase "housing for older persons" become more restrictive those set forth in 42 U.S.C. Section 3607 (b)(3), as Subsection 18(a) hereof, then the Associal shall efforts to comply with the more restricti~ to the exte~ necessary to effect such corn ~ce, sha OwneY~' and First Mortgagees ~la~al~fOn. In the event the Associati to requirements without ami and First Mortgagees of 1 do not amend this Declaration as necessary compliance, the age requirement therein and the set forth in Subsection 18(a)(3) he bec ble and the Property shall there limitE ~g exclusively reserved for older (iii) the fore :tions in this Section 18 shall ex 2021 are subject to the provisions of Article (b) Certain for S~ Notwithstanding the provisions the Declarant may sell or convey up to ~ Units in this Condominium to persons less than 55 yea one person occupying the Unit is at least 50 years o any such sale or conveyance shall not violate eith Housing Act or Subsection 18(a)(3) above. WITNESS the Declarant has executed this Declaration on the day an~ ar first above Lloyd S. Vagle Alice E. Vagle 32 STATE OF MINNESOTA ) ) SS. COUNTY OF SHERBURNE) The foregoing instrument was acknowledged before me this day of 1999, by Lloyd S. Vagle and Alice E. Vagle, on behalf of the corporation. THIS INSTRUMENT WAS DRAFTED BY: TERPSTRA, BLACK, BRANDELL & JENSEN Attorneys at Law 913 Main Street Elk River, MN 55330 612/441-7040 re~data\l&a-decl, 33 EXHIBIT A Legal Descri_~tion Lots One (1) through Lot Thirteen (13), inclusive, Block One (1), L & A Addition, Hennepin County, Minnesota. EXHIBIT B Common Elements Descri_Dtion Lot 1 3, L & A Addition, according to the duly recorded plat thereof on file and of record in the Office of the County Recorder, Hennepin County, Minnesota. ARTICLES OF INCORPORATION OF L AND A HOMEOWNERS ASSOCIATION, INC. The undersigned incorporators, being natural persons years of age, desiring to form a non-profit corporation under Cha~...~317. Statutes, known as the "Minnesota Non-Profit Corporatio~/~'Ct," an( mdatory supplementary thereof, does hereby make, subsc¥~:~e~ and g Articles of Incorporation: ARTICLE I Name The name of the corporation shall ~rs Association, Inc. This corporation is or, erated for the general purposes of constitutir and actin assoc within the meaning of Chapter 515B as ar commonly known as the "Minnesota £ :," upon certain real property situated in the City of New Hop He State of Minnesota. Its specific purposes shall include, but lowing: hance, protect and perfect the community welfare and mutual benefit of all persons, either natural or artificial, hereafte ring an interest of whatsoever kind on a common interest to be hereafter established by the recordation with the Henm County Recorder or Registrar of Titles of a certain Declaration "Declaration"), By-laws of this corporation, and Common ;st Community Plat of said common interest community; To further, execute, administer, manage, maintain and operate the plan of ownership and occupancy of said common interest community to be established in said Declaration and By-laws; (c) 'To levy and collect assessments from the members and to use the proceeds thereof for the purposes of the common interest community; (d) To carry insurance pertinent to the ownership, use and maintenance of the property, as well as on any personal property of the corporation, exclusive of any coverage for contents and personal effects belonging to any of the members, to collect all premiums and charges for the same from the members, to use, reimburse, or expend the proceeds for the rebuilding, repair, renovation, rehabilitation, and/or replacement of any loss or damage to any of the above property, as provided for in more pertinent detail in the Declaration and By-laws; (e) To contract for any employ persons, firms or corporations to assist in the management, operation, maintenance and administration of said common interest community; (f) To make and enforce reasonable regulations concerning the use and enjoyment of said common interest community; (g) To acquire, own, hold, lease, mortgage, convey or dispose of any real or personal property and to borrow money or issue evidences of indebtedness in furtherance of any or all of the Within objects, and to secure the same by mortgages, pledge or other liens, subject to limitations contained in the Declaration; (h) In general, to enter into any kind of activity, to make and perform any contract and to exercise all powers necessary, incidental or convenient to the administration, management, maintenance, repair, replacement and operation of said common interest community and to the accomplishment of any of the purposes thereof; (i) To do anything required of or permitted to it as the administrator and operator of said common interest community; or as the association of owners by the Minnesota Common Interest Ownership Act (Chapter 51 5B of Minnesota Statutes) and any further laws amendatory thereof and supplementary thereto, and by the Declaration and By-laws, as amended from time to time; and (j) To exercise such other powers and to do such other things required of or permitted to it which are consistent with the forgoing purposes and which are afforded to a non-profit corporation by the Minnesota Non- Profit Corporation Act (Chapter 317A of Minnesota Statutes) and any further laws amendatory thereof and supplementary thereto. 2 ARTICLE III No Pecuniary_ Gain This corporation is formed exclusively for purposes for which a corporation may be formed under the Minnesota Non-Profit Corporation Act (Chapter 317A of Minnesota Statutes), as required by the Minnesota Common Interest Q~nership Act (Chapter 515B of Minnesota Statutes), as amended, and corporation does not and shall not, incidentally or otherwise, affol its members, directors or officers; provided, however, that this c¢ its member~ directors and officers out-of-pocket expenses in of t duties, may lease and purchase from, sell to, al directors and officers and others in respect of r~ pro in Hennepin County, Minnesota, and may hire e.c or shall have the power to own, encumber and sell prop by the Minnesota Common Interest Ownership Act (Chapter 51 Statutes). ARTIC The period of duration of shall be perpetual. A V corporation shall be located at: 8955 194th Lane, .Elk River ARTICLE VI In the event dissolution of this corporation, all of its then assets shall be in acc~ with the provisions of Minn. Stat. 317A.701. ARTICLE VII Incor_Dorator of the CorDoratiQn The name and address of the incorporator of the corporation, who is a natural person of full age, is as follows: 3 Ronald G. Black 913 Main Street Elk River, MN 55330. ARTICLE VIII Board of Directors The first Board of Directors shall consist of one (1) natural person, of full age, who shall serve for a term of one (1) year or until their successors have been duly elected and have qualified, The name and address of the person comprising the first Board of Directors is as follows: Name Address Lloyd S. Vagle 8955 194th Lane Elk River, MN 55330 Alice E. Vagle 8955 194th Lane Elk River, MN 55330 Michael L. Vagle 8955 194th Lane Elk River, MN 55330 ARTICLE IX No personal Liability Members, directors and officers of this corporation shall not be personally liable to any extent whatsoever for corporate obligations. ARTICLE X No Ca_oital Stock This corporation shall have no capital stock, either authorized or issued. ARTICLE Xl No CorDorate Seal This corporation shall have no corporate seal. 4 ARTICLE Xll Amendment Until the second Board of Directors of this corporation has been constituted pursuant to the By-laws, an amendment to these Articles shall be considered adopted upon its receiving an unanimous vote of the directors constitut~ing Board of Directors at a meeting thereof, notice of which containing amendment having been given to each of said directors at least o ) said meeting. After the second Board of Directors has been By-laws, ~t3 amendment to these Articles shall be adopted its rece vo~e of at least seventy-five percent (75%) of the tot~°ting )tq;- as that term is defined in the By-laws, at any the Association. IN WITNESS WHEREOF, the undersigned hereunto set his hand this 27th day of September, 1999. STATE OF MINNESOTA ) ) ss. COUNTY OF SHERBURNE) was ;ted before me, a notary public within and for ~y of .~r, 1999, by Ronald G. Black as his free act Notary Public THIS IN~ } BY: TER BLACK, BRA JENSEN At at Law 9 Street 'er, MN 55330 [ -7040 re\data\l&a-art. 5 BY-LAWS OF L AND A HOMEOWNERS ASSOCIATION, INC. ARTICLE I NAME AND LOCATION The name of the corporation is L and A ;sociation, Inc., hereinafter referred to as the "Association." The pursuant ,~.'" Chapter 317A and Sections 515B.1-101 et Mir known respectively as the Minnesota Non-Profit Corp~ Interest Ownership Act (the latter being as the % laws amendatory thereof and supplemental thereto. ~al office of the ~sociation shall be located at 8955 194th Lane, Elk River, }ut meetings of members and directors may be held at such places linnesota, as may be designated by the Board of Directors. Except as otherwise s tel ~d in these By-laws shall have the same meaning as they L and A Homes (hereinafter the "Declaration"), which he office of the Hennepin County Recorder. .E !11 Owner or Owners of estates or interests in a Unit whi ~/, aggregate a fee simple absolute, shall by virtue of su~ be of the Association. Any person or persons with a ven interest in act for deed shall also, by virtue of such interest, be M~ ,ers of the ~. Membership in the Association is appurtenant to the Unit ,~d by the Uni' and is inseparable from such ownership and shall be to be co~ or encumbered along with the Unit. Interest in Association Pro_~ert_v. No Owner shall have any se ht or interest in any property, funds or reserves of the Association, but merely a right to the joint use and enjoyment thereof so long as he continues as a Unit Owner. ~ Personal Aoolication. All present or future Unit Owners, tenants, future tenants or their employees, or any other person or entity that might use the facilities of the planned community in any manner, are subject to these By-laws. The acquisition or rental of any of the Units or the act of occupancy of any of said Units will signify that the Declaration and these By-laws are accepted, ratified and will be complied with. ~ More than One Owner. When one or more persons own an interest in a Unit, all such persons shall be Members of the Association. ~ Declarant's Membership. The Declarant, or its successors in interest or assigns, shall be entitled to membership in the Association only so long as the same is the Owner of one or more Units in L and A Homes, a common interest community. ARTICLE IV MEETING OF MEMBERS Section 1. Annu{~l Meeting/Annual Reports. (a) The first annual meeting of the members shall be held within one (1) year from the date of incorporation of the Association, and a subsequent regular annual meeting of the members shall be held at .least once per year on such date and at such place as shall be designated by the Board of Directors in a notice sent in accordance with Section 3 of this Article IV. (b) At each annual meeting, the following items of business shall be addressed: (i) election of successor directors for those directors whose terms have expired, (ii) consideration of the annual report, and (iii) consideration of and action on any other matters included in the notice of meeting. (c) An annual report shall be prepared by the Association and a copy of the report shall be provided to each Unit Owner at or prior to the annual meeting. The annual report shall contain the following information: (i) a statement of any capital expenditures in excess of two percent of the current budget or $5,000.00, whichever is greater, approved by the Association for the current fiscal year or succeeding two fiscal years; (ii) a statement of the balance in any reserve or replacement fund; (iii) a copy of the statement of revenues and expenses for the Association's last fiscal year, and a balance sheet as of the end of said fiscal year; (iv) a statement of the status of any pending litigation or judgments to which the Association is a party; and (v) a statement of the insurance coverage the Association; (vi) a statement of the total past nits, current as of not more than 60 prim meeting. Section 2. $_Decial Meetin_as. Special me members may be called at any time by the president or by the Board shall be called by the president upon written request of the mE to vote at least twenty-five percent (25%) of the votes ~ssocial shall be transacted in a special meeting of the as s' in the notice of the meeting, as hereinafter provided. Section 3. ays nor more than 30 days in advance of any annual meet th[ ;even nor more than 30 days in advance of any special ~11 cause written notice of each meeting of the r sent postage pre-paid by United States mai the maili of 3r to any other address designated in writing their address for notice purposes. Such notice ¥ and hour of the meeting, and, in the case of a special mE The notice shall also state if voting by proxy is perrr for appointing a proxy. Failure to comply with the n in this Section 3 shall not invalidate any meeting of the or taken at a meeting of the members. t. The presence at the beginning of the meeting of entitled to or of proxies entitled to cast, twenty percent (20%) of the of the shall constitute a quorum for any action except as otherwise in the icles of Incorporation, the Declaration, or these By-laws. If, uorum shall not be present or represented at any meeting, the ed to vote thereat shall have power to adjourn and reconvene the rom time to time, without notice other than announcement at the meeting, until a quorum as aforesaid shall be present or be represented. A quorum, having once been established at a meeting, shall continue to exist for that meeting, notwithstanding the departure of any member previously in attendance in person or by proxy. Section 5. Voting Registration. It shall be the duty of each Unit Owner to register with the Secretary of the Association in writing (i) the name and address of such Unit Owner; (ii) the nature and satisfactory evidence of such Unit Owner's interest or estate in a Unit; and (iii) the addresses at which such Unit Owner desires to receive notice of any duly called meeting of the Members. If a Unit Owner does not register as provided in this paragraph, the Association shall be under no duty to recognize such person's right to vote as provided herein, but such failure to register shall not relieve a Unit Owner of any obligation, covenant or restriction under the Declaration or these By-laws. If there is more than one Unit Owner of a Unit, each must execute the registration as provided in this paragraph. Section 6. Voting Re_oister. At the beginning of each meeting of the members, the Secretary shall deliver to the chairman for the meeting a written list of the Unit numbers, the respective name or names of the Unit Owners entitled to notice of such meeting, and the respective name of the person (in the case of multiple Unit Owner) authorized to vote. Section 7. Proxies. At all meetings of members, votes may be cast by members, in person or by proxy. All proxies shall be in writing and filed with the secretary. Every proxy shall be revocable and shall automatically cease upon conveyance by the member of his or her. Unit. A proxy is valid for 1 1 months unless a different period is expressly provided in the proxy, provided, however, that a proxy is not valid for more than three years from its date of execution. Section 8. Association as Unit Owner. No vote shall be deemed to inure to any Unit during the time when the Unit Owner thereof is the Association. Section 9. Action Taken Without A Meeting. Any action which might be taken at a meeting of the Unit Owners may be taken without a meeting if authorized in a writing or writings signed by all of the Unit Owners. ARTICLE V SELECTION OF BOARD OF DIRECTORS AND TERM OF OFFICF Section 1, Number. (a) During the Period of Declarant Control (as defined in Article III, Section 1, of the Declaration), the Board of Directors shall consist of the three persons designated as directors in the Articles of Incorporation of the Association, who need not be members. 4 (b) Upon the termination of the Period of Declarant Control, the Board of ~-~ Directors shall be composed of five (5) directors, all of whom shall be members. ~ Term of Office. (a) The first Board of Directors shall serve until they are replaced by the Declarant or until the expiration of the Period of Declarant Control. (b) Notwithstanding the foregoing, within conveyance of 50 percent of the Units to Unit Owners other than affiliate of Declarant, a special meeting of the Association (1) dire( who shall be a Unit Owner other than the Declar~ This replace one of the existing directors and shall set terminat of Declarant Control. (c) Upon the termination of the Period ontrol, another special meeting shall be called to elect five (5) new a term of 1 year, two directors for a term of 2 years, and tw( for 3 years. At each annual meeting thereafter, the membe~ a directors for the director of directors whose term is shall not be allowed. Section 3. Removal. (a) During the Peri~ Declarant shall have the sole right to remove provided however, that this right does not to an, to Section 2(b) of this Article V. of the Period of Declarant Control, any director may be rE without cause, by a majority vote of the Unit Owners at a that purpose. A Director of the Association may resign at any time by written no' Board of Directors, such resignation to take effect at ~e of receipt of or at any later date or time specified therein. Unless specified ein, acceptance of a resignation shall not be necessary to make Vacancies. In the event of death or resignation of a director, such director's successor shall be selected by the remaining members of the Board and shall serve for the unexpired term of his or her predecessor. (b) A vacancy on the board created by the exercise of the removal powers set forth in Section 3(b) of this Article V, may only be filled by a vote of the members at a special meeting duly called for that purpose. Section 6. Compensation. No director shall receive compensation for any service he or she may render to the Association, unless such compensation is approved at a meeting of the members. However, any director may, by resolution of the board, be reimbursed for his or her actual expenses incurred in the performance of his or her duties. ARTICLE VI. NOMINATION AND ELECTION OF DIRECTORS Section 1. Nomination. After the termination of the Period of Declarant Control, nomination for election to the Board of Directors shall be made by a Nominating Committee. Nominations may also be made from the floor at the annual meeting. The Nominating Committee shall consist of a Chairperson, who shall be a member of the Board of Directors, and two or more members of the Association. The Nominating Committee shall be appointed by the Board of Directors prior to each annual meeting of the members to serve from the close of such annual meeting until the close of the next annual meeting, and such appointment shall be announced at each annual meeting. The Nominating Committee shall make as many nominations for election to the Board of Directors as it shall in its discretion determine, but not less than the number of vacancies that are to be filled. ~ ~. Election to the Board of Directors shall be by secret written ballot. At such election, the members or their proxies may cast, in respect to each vacancy, as many votes as they are entitled to exercise under the provisions of the Declaration. The persons receiving the largest number of votes shall be elected. Cumulative voting is not permitted. ARTICLE VII. MEETING OF DIRECTOR-~ Section 1. Regular Meeting~. Regular meeting of the Board of Directors shall be held at such place and hour as may be fixed from time to time by the Board of Directors. If such meeting falls upon a legal holiday, then that meeting shall be held at the same time on the next day which is not a legal holiday. _~e,_.C..tLg_Q_~ Special Meeting-~. Special meetings of the Board of Directors shall be held when called by the president of the Association, or by any two (2) directors, after not less than three (3) days notice to each director. 6 ~ ~. A majority of the number of directors shall constitute a quorum for the transaction of business. Every act or decision done or made by a majority of the directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the Board. ~ ~lotice and O_Den Meeting Reauiremenl:s. The Board of Directors shall give reasonable notice to the members of the date, time and of each meeting of the Board of Directors. Except as otherwise pr section, meetings of the Board of Directors must be open ,gs of the Board of Directors may be closed to discuss the (a) personnel matters; (b) pending or potential litigation, arbit potenti~ proceedings, between members, between the B ~rs or the Association and members, or other matters in which any me~ an adversarial interest, if the Board of Directors determines that closin ecessary to discuss strategy or to otherwise protect the f the Directors of the Association or the privacy of a member a (c) Criminal activity ' ' if the Board of Directors determines that closing the the privacy of the victim or that opening the meeting inve ation of the activity. Nothing in this section i~ a ard of Directors to provide special facilities leerings, ure to required by this Section 4 shall not invali( any iken at the meeting. ~RTICLE VIII. Associ~ through its Board of Directors, shall manage the affairs of the Association. Without limiting the generality of ;Ioing, the Bo~ Directors shall have the rights and obligations set forth in e VII of the De which Article is incorporated herein by reference. ARTICLE IX. OFFICERS AND THEIR DUTIES Enumeration of Officers. The officers of this Association shall be a president, who shall at all times be a member of the Board of Directors, a secretary, and a treasurer, and such other officers as the Board may from time to time by resolution create. 7 Section 2. Election of Officers. The election of officers shall take place at the first meeting of the Board of Directors following each annual meeting of the members. Section 3. Term. The officers of this Association shall be elected annually by the Board and each shall hold office for one (1) year unless he or she shall sooner resign, or shall be removed, or otherwise disqualified to serve. Section 4. S~ecial A~_oointments. The Board may elect such other officers as the affairs of the Association may require, each of whom shall hold office for such period, have such authority, and perform such duties as the Board may, from time to time, determine. Section 5. Resi_onation and Removal. Any officer may be removed from office with or without cause by the Board. Any officer may resign at any time by giving written notice to the Board, the president or the secretary. Such resignation shall take effect on the date of receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 6, Vacancies. A vacancy in any office may be filled by appointment by the Board. The officer appointed to such vacancy shall serve for the remainder of the term of the officer replaced. Section 7. Multi_Die Offices. The offices of secretary and treasurer may be held by the same person. No person shall simultaneously hold more than one of any of the other offices except in the case of special offices created pursuant to Section 4 of this Article. Section 8. Duties of Officers. The officers shall have the duties and responsibilities normally pertaining to their respective offices together with such specific duties as may be specified by the Articles of Incorporation, these By-laws or the Board of Directors. The President shall preside over the meetings of the Board of Directors and of the Association of Unit Owners, shall have all of the general powers and duties which are normally vested in the office of President of a corporation and shall have the power to execute contracts and similar documents on behalf of the Association. The Secretary shall keep the minute book of the Association wherein minutes of all meetings and all resolutions and proceedings of the members and of the Board of Directors shall be recorded, and shall keep a record of the name and mailing address of each Unit Owner, and the Unit or Units in which he has an interest and shall give all notices required by the Articles of Incorporation of the Association, these By-laws, the Declaration of the Act. The Treasurer shall keep the financial records and books of account of the Association. The Treasurer shall have custody of all intangible property of the Association, including funds securities and evidences of indebtedness. 8 The Treasurer shall deposit all moneys and other valuable effects in the name of or to the credit of the Association in such depositories as may be designated by the Board of Directors and shall disburse the funds of the Association as ordered by the Board of Directors and shall perform all other duties incident to the office of Treasurer. He shall furnish upon request of any Unit Owner a statement as to the current account of the Unit Owner the assessment rolls of the Association. Officers shall serve without compensation except for reimbursement for out-of-pocket ex incurred in the performance of their duties. If desired by the Board, tasks of the officers may be performed by a managing agent I. ARTICLE X. The Association shall appoint an Committe irovided in the Declaration, and a Nominating Committe{ in these By-laws. In addition, the Board of Directors shall appoint oth as deemed appropriate in carrying out its purpose. As more fully provided in ~ber is obligated to pay to the Association the full ;nt for Common Expenses. Assessments which are not e shall subject to collection as provided in the Declaration and th~ VI. These only in the same manner and to the same extent as ARTICLE VII. The Associ~ ~ shall indemnify and hold harmless every Director and officer, ~nd administrators, against all loss, cost, judgment and expense, fees, which may be imposed upon or reasonably incurred by him i~ or arising out of the defense or settlement of any claim, action, suit or r g to which he may be made a party by reason of his being or having been a director or officer of the Association whether or not he is an officer or director at the time of incurring such loss, cost, judgment or expense, except as to matters as to which he shall be finally adjudged in such action, suit or proceeding to have been guilty of willful or fraudulent conduct detrimental to the best interests of the Association. In the event of a settlement, indemnification shall be provided only in connection with such matters covered by the settlement as to which the Board of Directors has agreed on behalf of the Association that the person to be indemnified has not been guilty of willful or fraudulent conduct detrimental to the best interest of the Association in relation to the matter involved. The foregoing rights shall not be exclusive of other rights to which such director or officer may be entitled. All liability, loss, damage, costs and expenses incurred or suffered by the Association by reason or arising out of or in connection with the foregoing indemnification provisions shall be treated and handled by the Association as a Common Expense. Nothing in this Section shall be deemed to obligate the Association to indemnify any Owner who is or has been a director of officer of the Association, with respect to any duties or obligations assumed or damage or liabilities incurred by him solely in his capacity as an Owner. ARTICLE VIII. MISCELLANEOUS ~ Notices. All notices required these By-laws or the Declaration to be given to the Association or the Board of Directors shall be sent to the Board of Directors at the office of the Association or to such other address as the Board of Directors may hereafter designate from time to time. All notices to any Unit Owner required by these By-laws or the Declaration, shall be sent to such person's Unit address or to such other address as may be designated by such Unit Owner in writing from time to time to the Association. All notices to secured parties with an interest in a Unit shall be sent by U.S. mail to their respective addresses as designated by them from time to time in writing to the Association. All notices shall be deemed to have been given (i) upon hand delivery, or (ii) when deposited in the U.S. mail, properly addressed and postage prepaid, except notices of change of address, which shall be deemed to have been given when received. ~ Invalidity. The invalidity of any part of these By-laws shall not impair or affect in any manner the validity, enforceability or effect of the balance of these By-laws. Section 3. Ca_orions. The captions herein are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope of these By-laws or the intent of any provision hereof. Section 4. Waiver. No restriction, condition, obligation or provision contained in these By-laws shall be deemed to have been abrogated or waived by reason of any failure to enforce the same, irrespective of the number of violation or breaches thereof which may occur. 10 Section 5. No Coroorate Seal. The Association shall have no corporate seal. Section 6. Election Under Internal Revenue Code. The Board shall make and file all elections and documents required pursuant to the Internal Revenue Code, and any other applicable statute or regulation, in order to exempt from taxation, insofar as possible, the income of the Association consisting of assessments paid by Unit Owners. Section 7, EiEA~[_)L~.Q[. The fiscal year ~n shall be as determined by the Board of Directors. The undersigned hereby certify that the fo~ )ing B' By-laws of L and A Homeowners Association, In, corpc the laws of the State of Minnesota, by action of the at th meeting thereof, effective this day of 999. THIS INSTRUMENT WAS DRAFTED BY: TERPSTRA, BLACK, BRANDELL & JEI Attorneys at Law 913 Main Street Elk River, MN 55330 612/441-7( re~data\l&a-byl. 11 MEMORANDUM FROM: Lloyd S. Vagle and Alice E. Vagle TO: Prospective Purchasers of a Home in L and A Homes, a Planned Community, CIC Number ~, Hennepin New Hope, Minnesota ("L and A Homes") DATE: ~:. As prospective purchasers at L and A be al of information concerning the planned communi as part o' )ackage of "Community Documents: are: 1. the Declaration of CIC Number , a planned community; 2. the Articles of Incorpon Association, Inc., (the "Association"); 3. the By-laws of 4. a projected r the Association prepared by Lloyd ;. Vagle :e E. V~ t"). ts explain in detail the legal framework upon which the planne, the rules by which it will be governed. Careful reading of th~ a basis for understanding exactly how L and A Homes is The Association ~--. The Declarant is Lloyd S. Vagle and Alice E. Vagle, husband and wife, 8955 194th Lane, Elk River, Minnesota, 55330. As the owner of L and A Homes, they are establishing it as a planned community and will be the first seller of the townhomes. The mailing address of L and A Homeowners Association, Inc., is 8955 194th Lane, Elk River, MN 55330. L and A Homes will consist initially of 12 homes. Construction of the first building commenced on or about and is scheduled to be completed on or about L and A Homes also includes landscaped grounds, and driveways. All these facilities are part of the common elements and will be maintained by the Association. The costs of maintaining the common elements will be a common expense. As set forth in the Declaration, the Declarant has reserved the right, so long as it owns any lot, to maintain and relocate, from time to time, sales offices, management offices and model homes. Otherwise, except for limited common elements, the common elements will be available for use of all home owners subject to rules and regulations, which the Association may adopt from time to time. Rules and Regulations are contained in the Declaration and additional rules and regulations are attached hereto as Appendix D. Insurance coverage to be provided initially by the Association will include: (a) fire insurance with 'extended coverage" and "all-risk" endorsements insuring the personal property belonging to the Association and all structures, fixtures, buildings and other improvements included in the community for the full insurable replacement cost thereof, subject to a deductible per occurrence of not more than $1,000.00; (b) comprehensive public liability insurance with a combined single-limit of not less than ~ 1,000,000 covering events occurring on the common elements or arising out of or in connection with the use, ownership or maintenance of the common elements, and (c) workers' compensation insurance, if needed. These policies will not cover the individual homes or the personal property belonging to individual home owners. Nor will such insurance cover the owner's liability for events occurring within such owner's home. Each owner will be responsible for obtaining, at the owner's' expense, any insurance which such owner may desire to obtain affording coverage upon such property or for such liability. The foregoing is a general description of the insurance coverage to be initially provided by the 2 Association. Detailed information regarding insurance coverage is contained in Paragraph 6 of the Declaration. The type and limits of insurance coverage provided by the Association may be changed from time to time by the Board of Directors of the Association, subject to the provisions of the Declaration and applicable law. The Declarant may make unsold homes available for rent and may_market lots blocks of lots) to investors or other builders. (or It is anticipated that the Association will enter into a management agreement with which, by its terms, could be c~'~eled b~ the Association upon 60 days notice by the Association. The Associat~'~'has not at present entered any other contracts or agreements. The first yea-'r budget'~ projected based u~-on estimated costs for anticipated services and supp ~l~s to the'Tnitial '- home~d the initial common elements within the community, Which will' become a con~'mon expense of the Association. Subsequent to the conveyance of liens defects, or encumbrances on or affecting the title to su¢~t~"O"mes othE described on Appendix "A" and other than any the crE by the purchaser of each such home. In addition, as ~Xll of the Declaration, Declarant has reserved the right, more of the Additional Parcels referred to in said Article Jnity, to create utility and access easements over an~ ;merits within the community for the benefit of the owners of Parcels which are not added to the community, to be used tb~ners of homes in the community. the~ ided in the Minnesota Common Interest Own~ Statutes Section 327A.01 et seq. (see attached Appendix forth in any other express written warranty documents d are sold with NO WARRANTY concerning the condit matter relative thereto. are no against the Association, pending suits to which the As is a any pending suits material to L and A Townhomes. No arrangemel have been provided for the completion pursuant to Section 17 of the ~nesota Common Interest Ownership Act of any improvements "MUST on the CIC plat (not included herewith). no delinquent real estate taxes on the homes or on any real property owne the Association. Real estate taxes due and payable in the year in which these "Community Documents" are furnished for the home including the amount of any special assessments certified for payment with the real estate taxes as set forth on the attached Appendix "C" This common interest community has not received approval for FHA financing. Conventional and VA financing approval may be granted on a home by home basis with limited project review. No financing is being provided or arranged by the Declarant. The home will be substantially completed at the time of conveyance to a purchaser. Pursuant to the Declaration, Declarant pays assessments to the Association under an Alternative Assessment Plan. Under the Alternative Assessment Plan, the assessment paid by Declarant are 25% of the usual assessment. Once a certificate of occupancy is issued for a home, the Declarant pays assessments at the full rate. Other than assessments, no fees or other charges are being imposed by the Association for the use of common elements. Escrow Any earnest money paid in connection with the purchase of a home will be held in an escrow account until closing, or until the termination of the purchase agreement, and will be returned to the purchaser if the purchaser cancels the contract pursuant to Minn. Stat. Sec. 515B.4-106. The name and address of the escrow agent is: Cancellation Within 15 days after the receipt of this disclosure statement, a purchaser may cancel any contract for the purchase of a home from the Declarant; provided: (i) that the right to cancel terminates upon the purchaser's voluntary acceptance of a conveyance of the home from the Declarant; (ii) if a purchaser receives a disclosure statement more than 15 days before signing a purchase agreement, the purchaser cannot cancel the purchase agreement; and (iii) if a declarant obligated to deliver a disclosure statement fails to deliver a disclosure statement which substantially complies with Minn. Stat. Chapt. 515B, the Declarant shall be liable to the purchaser as provided in Minn. Stat. Sec. 515B.4-106 (d). re~data\l&a-memo. 4 APPENDIX "A" CIC Number L and A Homes, a planned community LIENS, DEFECTS, OR ENCUMBRANCES ON, OR AFF..~ ~ TO HOMES, IF A~ 1. The Declaration of CIC Number , a plaid HomeS~~: 5 APPENDIX "B" CIC Number L and A Homes, a planned community CHAPTER 327A HOUSING AND HOME IMPROVEMENT STATUTORY WARRANTIES Sec. 327A.01 Definitions 327A.02 Statutory warranties 327A.03 Exclusions 327A.04 Waiver and modification limited 327A.05 Remedies 1. New home warranties 2. Home improvement warranty 327A.06 Other warranties 327A.07 Variations 327A.08 Limitations 327A.01 Definitions Subdivision 1. As used in section 327A.01 to 327A.07, the terms in this section shall have the meanings assigned to them. Subd. 2. "Building standards," means the structural, mechanical, electrical, and quality standards of the home building industry for the geographic area in which the dwelling is situated. Subd. 3. "Dwelling" means a new building, not previously occupied, constructed for the purpose of habitation; but does not include appurtenant recreational facilities, detached garages, driveways, walkways, patios, boundary walls, retaining walls not necessary for the structural stability of the dwelling, landscaping, fences, nonpermanent construction materials, off-site improvements, and all other similar items. Subd. 4. "Initial vendee" means a person who first contracts to purchase a dwelling from a vendor for the purpose of habitation and not for resale in the ordinary course of trade. Subd. 5. "Major construction defect" means actual damage to the load-bearing portion of the dwelling or the home improvement, including damage due to subsidence, expansion or lateral movement of the soil, which affects the load-bearing function and which vitally affects or is imminently likely to affect use of the dwelling or the home improvement for residential purposes. "Major construction defect" does not include damage due to movement of the soil caused by flood, earthquake or other natural disaster. ~'~ Subd. 6. "Vendee" means any purchaser of the initial vendee and any subsequent purchasers. ~.~ Subd. 7. "Vendor" means any person, fi or co~ dwellings for the purpose of sale, including th of land owned by vendees. Subd. 8. "Warranty date" means the dat which the statutory warranties provided in section 327A.02 shall the earliest of (a) The date of the initial dwelling; or (b) The date on which th~ v, or equitable title in the dwelling. In the case of a home the w; ~nty date is the date on which the home improvement work ~ns the repairing, remodeling, altering, conw ~dding to a residential building. For the purpose of this definil not include appurtenant recreational facilities, detached ga~ patios, boundary walls, retaining walls not nece: y of the building, landscaping, fences, nonper col s, off-site improvements, and all other similar item: Subd. 10. "H improvement contractor" means a person who is engaged in of hol ~mprovement either full-time or part-time, and who holds himself elf out public as having knowledge or skill peculiar to the business of It, 11. "Owner" means any person who owns a residential building on which home improvement work is performed, and includes any subsequent owner of the residential building. 7 327A.02 Statutory warranties Subdivision 1. In every sale of a completed dwelling, and in every contract for the sale of a dwelling to be completed, the vendor shall warrant to the vendee that: (a) During the one year period from and after the warranty date the dwelling shall be free from defects caused by faulty workmanship and defective materials due to noncompliance with building standards; (b) During the two year period from and after the warranty date, the dwelling shall be free from defects caused by faulty installation of plumbing, electrical, heating, and cooling systems; and (c) During the ten-year period from and after the warranty date, the dwelling shall be free from major construction defects. Subd. 2. The statutory warranties provided in this section shall survive the passing of legal or equitable title in the dwelling to the vendee. Subd. 3. (a) In a sale or in a contract for the sale of home improvement work involving major structural changes or addition to a residential building, the home improvement contractor shall warrant to the owner that: (1) During the one year period from and after the warranty date the home improvement shall be free from defects caused by faulty workmanship and defective materials due to noncompliance with building standards; and (2) During the ten-year period from and after the warranty date the home improvement shall be free from major construction defects. (b) In a sale or in a contract for the sale of home improvement work involving the installation of plumbing, electrical, heating or cooling systems, the home improvement contractor shall warrant to the owner that, during the two year period from and after the warranty date, the home improvement shall be free from defects caused by the faulty installation of the system or systems. (c) In a sale or in contract for the sale of any home improvement work not covered by paragraphs (a) or (b) of this subdivision, the home improvement contractor shall warrant to the owner that, during the one year period from and after the warranty date, the home improvement shall be free from defects caused by faulty workmanship or defective materials due to noncompliance with building standards. 327A.03 Exclusions 8 The liability of the vendor or the home improvement, contractor under sections 327A.01 to 327A.07 is limited to the specific items set forth in section 327A.01 to 327A.07 and does not extend to the following: (a) Loss or damage not reported by the vendee or the owner to the vendee or the home improvement contractor in writing within six months after the vendee or the owner discovers or should have discovered the loss or damage; (b) Loss or damage caused by defects in or materials which the vendee or the owner supplied, installed his directio.~; (c) Secondary loss or damage such as ige; (d) Loss or damage from normal wear (e) Loss or damage from normal shrink~ drying of the dwelling or the home improvement within tolerances of (f) Loss or damage from dart due to insufficient ventilation after occupancy; (g) Loss or damage fro :e or alteration of the dwelling or the home impr .er than the vendor or the home improvement contractor; (h) .Loss or from grading of the ground around the dwellir ;ment ies other than the vendor of the home im (i) or damage; Loss from failure to maintain the dwelling or the home impr in goo. (k) Loss or which the vendee or the owner, whenever feasible, has timely n to minimize; or damage which occurs after the dwelling or the home improvement ',ed primarily as a residence; (m) Accidental loss or damage usually described as acts of God, including, but not limited to: fire, explosion, smoke, water escape, windstorm, hail or lightning, falling trees, aircraft and vehicles, flood, and earthquake, except when the loss or 9 damage is caused by failure to comply with building standards; (n) Loss or damage from soil movement, which is compensated by legislation or covered by insurance; (o) Loss or damage due to soil conditions where construction is done upon lands owned by the vendee or the owner and obtained by him from a source independent of the vendor or the home improvement contractor; (p) In the case of home improvement work, loss or damage due to defects in the existing structure and systems not caused by the home improvement. 327A.04 Waiver and modification limited Subdivision 1. Except as provided in subdivision 2 and 3 of this section, the provisions of sections 327A.01 to 327A.07 cannot be waived or modified by contract or otherwise. Any agreement which purports to waive or modify the provisions of sections 327A.01 to 327A.07, except as provided in subdivision 2 and 3 of this section, shall be void. Subd. 2. At any time after a contract for the sale of a dwelling is entered into by and between a vendor and vendee or a contract for home improvement work is entered into by and between a home improvement contractor and an owner, any of the statutory warranties provided for in sections 327A.02 may be excluded or modified only by a written instrument printed in bold face type of a minimum size of ten points, which is signed by the vendee or the owner and which sets forth in detail the warranty involved, the consent of the vendee or the owner, and the terms of the new agreement contained in the writing. No exclusion or modification shall be effective unless the vendor or the home improvement contractor provides substitute express warranties offering substantially the same protections to the vendee or the owner as the statutory warranties set forth in section 327A. Any modification or exclusion agreed to by vendee or vendor or the owner and home improvement contractor pursuant to this subdivision shall not require the approval of the commissioner of administration pursuant to section 327A.07. Subd. 3. If a major construction defect is discovered prior to the sale of a dwelling, the statutory warranty set forth in section 327A.02, subdivision 1, clause (c) may be waived for the defect identified in the waiver instrument, after full oral disclosure of the specific defect, by an instrument which sets forth in detail: the specific defect; the difference between the value of the dwelling without the defect and the value of the dwelling with the defect, as determined and attested to by an independent appraiser, contractor, insurance adjuster, engineer or any other similarly knowledgeable person selected by the vendee; the price reduction; the date the construction was completed; the legal de~d~l~tioh of the dwelling; the consent of the vendee to the waiver; and the signatures of the vendee, the vendor, and two witnesses. A single waiver agreed to pursuant to this subdivision may not apply to more than one major construction defect in a dwelling. The waiver shall not be effective unless filed for recording county recorder or registrar of titles who shall file the waiver for reco 327A.05 Remedies ~..~..~-: Subdivision 1. New home warranties. U by section 327A.02, subdivision 1, the vendee . ~use of ~ the vendor for damages arising out of the breach, or ific performal ges shall be limited to: (a) The amount necessary to remedy ~reach; or (b) The difference between the vt hout the defect and the value of the dwelling with the defect. Subd. 2. Home improvement any warranty imposed by section 327A.02, subdivision 3, ownE ~se of action against the home improvement contractor fo~ the breach, or for specific performance. Damages shall amo~ necessary to remedy the defect or breach. 327A.06 ler ovided for in section 327A.02 shall be in addition to all other w Dr agreement. The remedies provided in section 327A.05 sba the remedies in any action not predicated upon nties imposed by section 327A.02. 327, The commiss er of administration may approve pursuant to sections 14.05 ..28, variatio :rom the provisions of sections 327A.02 and 327A.03 if the the vendor or the home improvement contractor requesting the least substantially the same protections to the vendee or owner as e statutory warranties set forth in sections 327A.02. 327A.08 Limitations Notwithstanding any other provision of Laws 1981, chapter 119, sections 1 to 11 10: (a) The terms of the home improvement warranties required by Laws 1 981, chapter 119, sections 1 to 10 commence upon completion of the home improvement and the term shall not be required to be renewed or extended if the home improvement contractor performs additional improvements required by warranty; (b) The home improvement warranties required by Laws 1981, chapter 119, sections 1 to 10 shall not include products or materials installed that are already covered by implied or written warranty; and (c) The home improvement warranties required by Laws 1981, chapter 119, section 1 to 10 are intended to be implied warranties imposing an affirmative obligation upon home improvement contractors, and Laws 1981, chapter 119, sections 1 to 10 do not require that written warranty instruments be created and conveyed to the owner. MINN. STAT. SECTIONS 515B.4-112 THROUGH 515B.4-115 515B.4-112. Express warranties (a) Express warranties made by a declarant or an affiliate of a declarant to a purchaser of a unit, if reasonably relied upon by the purchaser, are created as follows: (1) Any affirmation of fact or.promise which relates to the unit; use of the unit; rights appurtenant to the unit; improvements to the common interest community that would directly benefit the purchaser or the unit; or the right to use or have the benefit of facilities which are not a part of the common interest community, creates an express warranty that the unit and related rights and uses will conform to the affirmation or promise. (2) Any model or description of the physical characteristics of a unit or the common interest community, including plans and specifications of or for a unit or other improvements located in the common interest community, creates an express warranty that the unit and the common interest community will conform to the model or description. A notice prominently displayed on a model or included in a description shall prevent a purchaser from reasonably relying upon the model or description to the extent of the disclaimer set forth in the notice. (3) Any description of the quantity or extent of the real estate compromising the common interest community, including plats or surveys, creates an express warranty that the common interest community will conform to the description, subject to customary tolerances. (b) Neither the form of the word "warranty" or "guaranty", nor a specific intention to make a warranty are necessary to create an express warranty of quality, but a statement purporting to be merely an opinion or commendation of the real estate or its value does not create a warranty. 12 (c) Any conveyance of a UNit t~ansfers to the purchaser all express warranties. 51 5B.4-113. Implied warranties (a) A declarant warrants to a purchaser that a unit will be in at least as good condition at the earlier of the time of the conveyance or as it was at the time of contracting, reasonable wear and tear exc~ (b) A declarant warrants to a purchaser that: (1) a unit and the common elements in th y al suitable for the ordinary uses of real estate of its and (2) any improvements subject to b or contracted for by the declarant, or made by in cont{ the creation of the common interest community, from ~aterials and (ii) constructed in and accordance with a aw, according to sound engineering and construction standards, and in manner. (c) In addition, a declarant warrants which under the declaration is available for residential use will not violate applicable law at the earlier of the time or of possession. (d) Warranties imposed by t ed or modified only as specified in section 515B.4-114. (e) For purposes of this ~ade or contracted for by an affiliate of a declarant are ed for declarant. (f) Any conve~ a s to the purchaser all implied warranties. (g) This secti not er abrogate the provisions of chapter 327A g, or affect any other cause of action under w. 51 5B.4-114. of implied warranties With unit available for residential use, no general disclaimer of ~d warranties but a declarant may disclaim liability in an instrument se te from the pu~ agreement signed by the purchaser for a specified defect o failure with applicable law, if the defect or failure entered into and a part of of the bargain. lb) to a unit restricted to nonresidential use, implied warranties: be excluded or modified by agreement of the parties; and re excluded by expression of disclaimer, such as ' as is, with all faults," or ~nguage that in common understanding calls the purchaser's attention to the exclusion of warranties. 51 5B.4-11 5. Statute of limitations for warranties 13 (a) A judicial proceeding for breach of an obligation arising under section 515B.4-106(d), shall be commenced within six months after the conveyance of the ~-~ unit. (b) A judicial proceeding for breach of an obligation arising under section 51 5B.4-11 2 or 51 5B.4-113 shall be commenced within six years after the cause of action accrues, but the parties may agree to reduce the period of limitation to not less than two years. With respect to a unit that may be occupied for residential use, an agreement to reduce the period of limitation must be evidenced by an instrument separate from the purchase agreement signed by the purchaser. (c) Subject to subsection (d), a cause of action under section 51 5B.4-11 2 or 515B.4-113, regardless of the purchasers lack of knowledge of the breach, accrues: (1) as to a unit, at the earlier of the time of conveyance of the unit by the declarant to a bona fide purchaser of the unit other than an affiliate of a declarant, or the time the purchaser enters into possession of the unit; and (2) as to each common element, the latest of (i) the time the common element is completed, (ii) the time the first unit in the condominium is conveyed to a bona fide purchaser, or if the common element is located on property that is additional real estate at the time the first unit therein is conveyed to a bona fide purchaser, or (iii) the termination of the period of declarant control. (d) If a warranty explicitly extends to future performance or duration of any improvement or component of the common interest community, the cause of action accrues at the time the beach is discovered or at the end of the period for which the warranty explicitly extends, whichever is earlier. 14 APPENDIX "C" CIC Number L and A Homes, a planned community For taxes due and payable in 1998, the real estate taxes and iQ~llments of special assessments certified for payment with real estate unit are approximately 15 APPENDIX "D" CIC Number L and A Homes, a planned community RULES AND REGULATIONS 16 ]I NORTHWEST ASSOCIATED CONSULTANTS COMMUNITY PLANNING DESIGN MARKET RESEARCH MEMORANDUM TO: Kirk Mcdonald FROM: Alan Brixi'us DATE: 28 October 1999 RE: New Hope - L and A Homes FILE NO: 131.01 - 99.13 BACKGROUND .. Lloyd and Alice Vagle are proposing to develop twelve twinhome/townhome units on two existing lots located at the southeast corner of 49th and Winnetka. The site is currently zoned R-l, Single Family Zoning. To facilitate this medium density residential development, the applicant is requesting a change in zoning from R-1 to PUD and a subdivision. The PUD zoning district is being requested to accommodate the change in residential land use and provide flexibility related to project density and provision of a private street that would not be available through a standard zoning district. In the following pages, a review of the proposed zoning change, site plan and subdivision is offered. Attachments: Exhibit A Project Description Exhibit B Landscape Plan Exhibit C Grading Plan Exhibit D Utility Plan Exhibit E Site Plan Exhibit F Twinhome Building Plan Exhibit G Four Unit Townhome Building Plan Exhibit H Homeowners Association Declaration 5775 WAYZATA BOULEVARD. SUITE 555 ST. LOUIS PARK. mINNESOTA 55416 PHONE 61 2-595-9636 FAX 61 2-595-9837 E-MAIL NAC@WINTERNET.COM RECOMMENDATION The change in zoning from R-1 to PUD is a policy decision for the Planning Commission and City Council. The proposed medium density residential development is consistent -. with City objectives with regard to redevelopment and housing. The City may approve the zoning request if it finds that the proposed development fulfills the intent of the PUD zoning district and adequately responds to compatibility concerns that may be presented between this project and adjoining Iow density neighborhood. If the rezoning is approved, the Planning Commission must take action on the concept and development stage PUD plans and preliminary plat. Plan and plat approval should be Conditioned on the following items: 1. Building Design a. Increased landscaping along the rear of the building to reduce building mass. b. Fence detail is provided for fence separating, the shared patio on the four unit townhomes. c. Proper alignment of the patio with exterior doors. d. Increased garage size through the elimination of staggered garage fronts. e. Each unit must have a separate utility connection. f. Air conditioning units must be compliant with City noise regulations. g. Additional landscape around air conditioning units. 2. Landscape Plan a. Revise the landscape plan to address the streetscape recommendation along Winnetka Avenue. b. Replace Colorado Spruce with over stow deciduous trees. Increase number of trees from three to six between Winnetka Avenue and townhomes. c. Additional landscaping around the air conditioning units. d. Revise grading plan to provide proper tree preservation measures. e. Eliminate the setback between driveways of adjoining garages. · $. Private streets a. Provide documentation of Hennepin County approval of the private street ' access to Winnetka. 4. Fencing : a. Provide' a description of fence material for the fence along Winnetka Avenue. 5. Homeowners Association a. Common areas will be owned by the unit lots in an equal, undivided interest. b. in approving the PUD, the City approves the Homeowners Association rules pertaining to oUtdoor storage, site and building maintenance, and snow removal. Any future changes to the Homeowners Association rules must be approved by the City. The City approval of future rule changes should be included in the Homeowners Association Declarations. c. The Homeowners dedication shall be subject to review and comment of the City Attorney. 6. Utilities a. The utility plan shall be subject to the review and comment of the City Engineer. There are three stages to PUD approval, concept stage, development stage, and final stage. The applicant is requesting both concept and development stage consideration. If the zoning is found to be acceptable, the Planning Commission may recommend approval of the PUD concept/development stages subject to the aforementioned conditions. However, if the additional information is necessary or the Planning Commission wishes to review revised plans illustrating the aforementioned recommendations, the concept plan approval alone may be appropriate. ' ISSUES ANALYSIS Zoning Change The City of New Hope considers rezoning decisions to be a policy matter that are warranted only via a positive response to the following criteria: 1. Has the request resulted from a past zoning mistake? The current R-1 zoning is consistent with the surrounding neighborhood and is reflective of the past Comprehensive Plan. In this respect, the current R-1 zoning is not a mistake. 2. Has the character of the area changed to warrant consideration of a zoning change? The western half of the property is a vacant parcel. The size and location of the site has raised the question as to the appropriateness of the site for Iow density single family development. The west half of the project site was identified in the New Hope Vacant Land Study of 1989. Due to the Iocational and physical constraints of the site, the study recommended a change from Iow density single family land use to a medium density residential land use. .. New Hope's 1997 Life Cycle Housing Study identified a community need for attached housing (townhomes, twinhomes, cooperative apartments) hat offer low maintenance, independent housing opportunities. Consistent with the recommendations of the 1989 Vacant Land Study, the 1999 proposed land use plan identified the project site for Iow to medium density residential land use. This land use type was prescribed to offer some development/redevelopment opportunity for this area of the City. Based on the aforementioned planning efforts, the City may find that conditions have changed that warrant consideration of the zoning change. 3. The proposed action is consistent with the goals and policies of the Comprehensive Plan. The proposed project has a density of 7.7 units per acre. The residential density falls within the medium density residential (range of 5-10 units per acre). The proposed land use plan guideS the subject site for Iow to medium density residential land use. The following goals and policies are supportive of the zoning change: ' RESIDENTIAL GOALS Goal 1: Provide a variety of housing types, styles and choices to meet the needs of New Hope's changing demographics. Policies: A. Through infill development and redevelopment efforts, increase life cycle housing opportunities not currently available within the City (i.e., high value housing, townhomes). B. Promote medium density attached housing to address the needs of an expanding empty nester or independently living elderly population. C. Continue the City's efforts to provide special needs housing for people with various types of disabilities. Goal 3: Promote multiple family housing alternatives as an attractive life cycle housing option. Policies: B. Adhere to the highest community design and construction standards for new construction and redevelopment projects. C. Accompany medium and high density development with adequate accessory amenities such as garages, parking, open space, landscaping, an recreational facilities to insure a safe, functional, and desirable living environment. The following Comprehensive Plan policies must also be weighed in considering the zoning change as well as project density and design: Goal 4: A cohesive land use pattern which ensures compatibility and strong functional relationships among activities is to be implemented. Policies: A. Maintain and strengthen the character of individual neighborhoods. B. Prevent over-intensification of land use development, that is, development which is not accompanied by a sufficient level of supportive services and ~ facilities (utilities, parking, access, etc.). C,' Investigate remedies to correct or eliminate existing land use compatibility problems. D. "Examine requested land use changes in relation to adjoining land uses, site accessibility, utility availability, and consistency with the City's Comprehensive Plan and policies. E. *Accomplish transitions between distinctly differing types of land uses in an orderly fashion which does not create a negative (economic, social or physical) impact on adjoining developments. F. Infill development of compatible land uses shall be strongly encouraged. G. Where practical, conflicting and non-complementary uses shall be eliminated through removal and relocation. The Comprehensive Plan encourages medium density residential land use for redevelopment in this area of the City. The Planning Commission is considering the zoning and the development project must also evaluate project design and density to determine its compatibility with surrounding low density land uses. 4. The proposed land use is or will be compatible with present or future land uses of the area. The site consists of two over-sized, underutilized single family lots. The following land uses surround the site: Land Use Zoning North 49th Avenue High Density Residential R-4 South Single Family Residential R-1 East Single Family Residential R-1 West Winnetka Avenue/Single Family Residential R-1 6 The site Iocational and physical characteristics have raised questions as to the appropriateness of the R-1 zoning: ,Winnetka Avenue and 49th Street are major .f thoroughfares that separate the site from land uses on the north and west. The introduction of the medium density zoning presents compatibility concerns f~r the adjoining Iow density residential properties to the east and south. Efforts to mitigate the compatibility issues between the different density residential uses include: a. All building orientation and access from a private street system to control traffic and site access. b. The buildings are single story design which blends with the architecture in the area. c. The applicant is proposing the use of a fence on three sides of the property to screen the townhomes and to protect the privacy of the adjoining properties. 5. The proposed use conforms with all the performance standards of the Zoning Ordinance. The applicant is requesting a PUD zoning district to gain design flexibility related to density and private streets. This flexibility is not available through a more traditional zoning district. A detailed evaluation of the requested PUD and subdivision later in this report will provide a more thorough analysis of this performance criteria. 6. The proposed use can be accommodated with existing public services and will not overburden the City's service capacity. The site has immediate access to municipal utilities in 49th Avenue that have sufficient capacity to accommodate the twelve proposed residential units. City staff does not foresee any capacity issues related to utilities or public services for the proposed project. 7, Traffic generated by the proposed use is within the capabilities of the streets serving the property. Winnetka Avenue is an minor arterial and 49th Avenue is a collector street. Both of the adjoining streets have the capability of accommodating the project's traffic generation. 7 Hennepin County must approve the access permit for Winnetka Avenue. Other issues related to site access, traffic circulation and parking are addressed later in this report. PUD/Site Plans PUD Intent and Purpose. The PUD zoning district allows flexibility in land use and site design intended to provide for the conservation of open space through the clustering of building and activities. Further, it is intended that the PUD will result in integrated planning and architecture, joint and common parking, maintenance of open space and other similar facilities and efficient distribution of land uses. The change of zoning and the flexibility offered through the PUD should be given in exchange for an innovative high amenity development proposal. The applicants have provided a narrative description of their project and have emphasized that the costs associated with land acquisition and site redevelopment are higher than if the project was undertaken on vacant raw land. To offset the costs associated with site redevelopment the applicant is requesting the PUD and increased project density. Project Density. Section 4.192 (6) of the New Hope Zoning Code states that within a PUD Zoning District, the exact density allowable shall be determined by standards agreed upon between the applicant and the City. The City Zoning Ordinance requires the following lot area per unit standards: Twinhome 7,000 sq.ft, per unit Townhome 5,000 sq.ft, per unit The applicant is proposing twelve twinhome units on the 67,317 square foot site. This results in a lot area per unit of 5,609 square feet. The applicant is proposing twinhomes at townhome density. The housing type and density were reviewed by the Design and Review Committee which indicated that the proposed density may be acceptable if the site plan demonstrated quality development, high amenity site design and a compatible land use relationship with adjoining single family areas. Building Design. At the Design and Review Committee meeting, the City staff expressed issue over the type and quality of the housing units. In response to the recommendation of the Design and Review Committee, the applicant revised their building and site plans. The following review comments are offered pertaining to the building plan: 1. All of the townhome/twinhome units are of single stow design. The housing product was suggested by the Design and R~'iew Committee to respond to the current empty nester market. 2. The applicant has to provide brick accents to the front of the residential building, resulting in an attractive building appearance. Vinyl siding is proposed for the balance of the building. The lack of architectural accents at the back of the buildings emphasize the building size and mass. We would suggest additional landscaping along the back perimeter of the buildings to visually reduce scale of the structures. 3. The site plan illustrates an 8' x 8' concrete patio at the rear of buildings along with landscaping at the perimeter of the patios. In review of the patio design, the following issues should be addressed:. a. The PUD plans should illustrate the type of fence or wall that will separate the shared patio on the four unit townhomes. b. The patios do not align with the doorways on the building plans for the four unit townhomes. The applicant may wish to widen the patio to allow for proper alignment and offer some outdoor living space. 4. Garages. City staff has questioned the practicality of the garage sizes (380 square feet) of the original building. The revised building plans provide larger garages. Garage Floor Area Range Twinhomes 406 sq. ft. to 455 sq. ft. Townhomes 443 sq. ft. to 476 sq. ft. Garage storage is viewed as a premium for the compact site design. In this respect, we recommend eliminating the two foot building jogs created by staggering the garages in favor of larger garages. Through the PUD approval, the City will not permit outdoor storage of trash receptacles, recycling or other miscellaneous items. 5. Individual dwelling units shall be required to separate utility connections to each unit. Setbacks. The PUD zoning district requires the following residential setbacks: Required Proposed ~.-' Front (49th Avenue) 35 feet 35 feet Rear (South) 35 feet 35 feet Side (Winnetka AVenue) 30 feet 30 feet *Side (Abutting R-1 Zoning District) 16.5 feet 19 feet *Setback Between Buildings 14 feet 18 feet Setback from Private Streets 15 feet 20 feet *These setback requirements are based on the building height. As illustrated above, the proposed townhome/twinhome project complies with required setbacks for a residential PUD. The building separation from the single family house to the east has raised compatibility concerns. To reduce the impact of the proposed project, the following design items have been implemented: 1. The smaller twinhome has been located adjacent to the single family home to reduce the building scale next to the house. 2. The twinhomes/townhomes are single story to blend with the neighborhood. 3. The buildings meet the required setback from the adjoining R-1 zoning districts. 4. The applicant is proposing a six foot high wood fence to screen the project from the adjoining single family home. 5. The applicant has provided details pertaining to patio location and design. In review of the site plan, staff offers the following recommendations pertaining to the east side yard: 1. The air conditioning units within the project must be Iow noise producing units that will comply with City noise levels of Section 9.423 and 9.424 of the City Code. 2. Additional landscaping should be provided around the air conditioning units to screen the units and help mitigate the noise. 10 Landscape Plan. Review of the landscape plan raises the following recommendations: 1. Consistent with staff recommendations, the applicant is providing a six foot maintenance free fence along 225 feet of the Winnetka Avenue. This should he!p screen the townhomes from Winnetka Avenue traffic. However, staff questions the appearance of the 225 foot fence as a streetscape amenity along Winnetka Avenue. To soften the appearance of the fence, the following landscape recommendations are offered: a. Provide a landscape accent at the corner of 49th and Winnetka Avenue. Landscaping in this area should be designed in a manner respectful of the traffic visibility requirements. b. Enlarge the landscape area north of the private drive to extend to the south end of the fence. More extensive landscaping is also suggested. c. Interrupt the length of the fence at its midway point with either a break in the fence or a jog. Establish a landscape accent on the Winnetka side of the fence to break up the fence length and add a streetscape accent. 2. The landscape plan shows 3 to 4 foot Colorado Spruce trees along the back of the townhomes. Staff recommends replacing the Colorado Spruce with over-story deciduous trees as a means of replacing trees that will be removed. The over-story trees will extend above the adjacent fences contributing to the visual appearance of the site and screen the property. Staff also recommends that the number of trees at the rear of the townhomes backing up to Winnetka be increased from three to six with spacing occurring at each of the unit lot lines. 3. Additional landscaping should be provided around the air conditioning units to screen the units, mitigate noise, and to break up the building mass. 4. The site plan suggests that some of the existing trees will be preserved. To preserve the existing trees no grading or soil compaction should occur within the drip line of the tree canopy. The grading plan does not provide adequate protection for the existing trees to insure their survival. Improved efforts to preserve the existing trees must be undertaken. 5. The landscape plan illustrates a setback between driveways of adjoining garages. Staff suggests that this setback be eliminated and the driveways connected to avoid maintenance issues for this area. ]! Fencing. The applicant is proposing a six foot fence around three sides of the project site. A boundary line wood fence is proposed along the east and south property lines. The wood fences are consistent with the existing fences. The applicant proposes a maintenance free fence along Winnetka Avenue. A detail of this fence should be provided to outline the fence material and design. Private Streets/Parking. The applicant is proposing a private street system to serve the proposed subdivision. An 18 foot wide one-way street is proposed to offer right-in access from Winnetka Avenue. The main private street has a 29 foot width. The following comments are offered related to the private street and parking: 1. Hennepin County must approve the access permit for the southern curb cut on Winnetka. The site plan shows proposed signage designating the southern driveway as a one-way street. 2. The applicant has modified the turning radius of the 18 foot driveway into the 25 foot driveway to accommodate a 30 foot single unit truck. · 3. The 25 foot private street extending south from 42nd Avenue complies with PUD standards. This street will be posted no parking. 4. The site plan illustrates four guest parking stalls. These stalls are properly dimensioned and compliant with setbacks. The elimination of the setback between adjoining driveways may provide additional opportunity for off-street guest parking. 5. The landscape plan illustrates the location of on-site snow storage areas. Lighting. The landscape plan shows four light standards. The lighting description is consistent with City standards. Homeowners Association. The proposed project illustrates a compact design with density requested through a PUD zoning district that would be greater than permitted in a traditional zoning district. To accommodate the project design, the City will require the following use restrictions as part of the PUD approval, this approval will be implemented through the Homeowners Association Declaration and Bylaws. The entire project shall be subject to the condition of PUD approvals which will include: 1. The City will require that each of the unit lots will own lot 13 in an equal and undivided interest. This ownership pattern insures that each unit maintains a vested interested in the common area. 2. The Homeowners Association Article IV, Sections 6 and 7 outline the restrictions on outside storage. No changes to these rules may be made without approval by the City. Utilities. The proposed utility plan appears to respond to the past recommendations.of" City staff, the utility plan shall be subject to the review and recommendation of the City Engineer. Plat. The plat illustrates a subdivision of the townhomes into unit lots. The plat muSt include: 1. Each of the unit lots must have a separate utility connection. 2. Drainage and utility easements should be provided around the perimeter of Lot 13. CONCLUSION The change in zoning is a policy decision for the Planning Commission and City Council. The proposed medium density residential land use is consistent with the City's stated redevelopment and housing objectives of the Comprehensive Plan. In considering the PUD zoning, the Planning Commission must determine if the proposed project fulfills the intent and purpose of the PUD zoning district. pc: Steve Sondrall Doug Sanstad ]3 Pr~ncJl~al$' Otto (3. Bonestroo, RE. · Joseph C. Anclerlik. RE · Marvin L. Sorvala. PE · (31ann R. Cook. RE. · Robert (3, $chunicht. nE. · Jerry A. Elouraon. I~E . Rosene Robert ~ Rosene. PE.. R,c.ara E. Turner ~E. and Susan M. EDerhn. C.,A.. Sen,or Consultants ~ Anderlik& ~,,o~,,~, Princ,pal,.'HowardA.~anrord. ~[.- Keith A. Gor~on, ~[.. Robert R Pfefferle. Associates R,cnard W. Foster. RE.. David O. Los~ota. RE.- Robert C. Russek. A.LA.. Mark A. Hanson. Michael T. Rautmann, PE · Ted K.Field, RE. · Kenneth ~ Anderson, RE. · Mark R. ~olfs, RE. · Sidney A ~illiamson. ~E.. L.S · Robert ~ Kotsmlth · Agnes M. Ring · Alla~ Rick Scnm~dt, Office~: S: P~ul. Rochester. ~illmar and St. Cloud. MN. Milwaukee. ~1 Enaineers & Architects ~,,~,, .... MEMO TO: Kirk McDonald, Doug Sandstad FROM: Vince Vander Top/Mark Hanson DATE: October 27, 1999 SUBJECT: L & A Addition (49t~ and Winnetka) Our File No. 34-Gen E99-18 The submitted plans identify 12 proposed units with a private drive access. This is a high number of units given the size of the parcel and access limitations. The parcel also has a number of large trees worthy of preservation. The proposed improvements eliminate a majority of the trees. Site Plan 1. It is recommended that the City and the applicant consider improving on the site plan to increase open space, tree preservation, and on-site parking. One simple option could include eliminating units 1 and 2. This will preserve the area with the highest density of trees. Other options could include realigning Virginia Avenue such that trees in the NW and SE corners of the plat are preserved. Realigning Virginia Avenue will result in less units on the plat. Winnetka Avenue/Hennepin County 2. The County has indicated that the "right-in" access as shown on the plan would be acceptable. Proper site signage must be provided to assure that this access is not used for movements onto Winnetka. 3. The future reconstruction of the Winnetka Ave/49th Ave. intersection may result in the addition of a dedicated left turn lane. This will increase the street width to a minimum 60 foot width. A likely street width is 65 feet. The .addition of sidewalks will increase the width to 72 to 75 feet. The existing ROW is width is 80 feet. The County has recommended that an additional 10 feet of street easement be dedicated. It is recommended that the City further evaluate this requirement. Comparison of this intersection to similar intersections along Winnetka may indicate that the existing 80-foot ROW will be adequate, however boulevard width would be compromised. 2335 West Highway 36 · St. Paul, MN 55113 · 651-~3~-4600 · Fax: 651-636-1311 ~ Parking/Access 4. The mm-around, hammerhead area at the south end of Virginia Ave. must be signed no parking. This area is dedicated for mining movements. 5. Parking on the property is limited. Virginia Avenue must be signed no parking. No parking is currently allowed on the south side of 49th Avenue. Visitor parking is limited. 6. The curb radii appear to be adequate for emergency vehicle access. Grading Plan Several changes are recommended relating to the proposed grading plan. See the attached sheet. 7. Drainage along Winnetka Avenue relies on a swale between the sidewalk and the buildings. It is recommended that the FFE be evaluated such that the backyards can be graded to drain to the boulevard and Winnteka Avenue. 8. A low point exists at the SE comer of the plat. This low point is land-locked. It is recommended that storm sewer be extended to serve this area. A proposed alignment is shown on the attached sheet. 9. The FFE elevation of Units 9 and 10 is low when compared to the high point on the east lot line. It is recommend that the FFE be raised to 923.00 (+ or -) and a high point created. Drainage would be achieved via the storm sewer extension. 10. It is recommended that the storm sewer along 49th Avenue be realigned to the boulevard. This will minimize impacts to the existing trees to be saved. The catch basins at Virginia Ave. would be relocated to the mid-rads. 11. It is recommended the site storm sewer be connected directly to the existing storm sewer at Winnetka Avenue. Permits shall be obtained from Hennepin County. 12. Street Grades will require adjustment to account for FFE elevation changes and drainage changes. 13. The low point in the NE comer of the plat can be served by storm sewer or graded to eliminate the low point. Drainage/Grading along the east lot line must be coordinated with existing trees to be saved. End of comments cc: Mark Hanson GRADING PLAN ,:~,~,.,~F~ SEEDETAIL'49TH AVE. N. ~,~. ,,,,..~ SEE DETAIL ~ -~-E-r -® '-- '~ ~E~,L.~&~d ~,T~C-,5 tE,.,,_~. POINT AIL ~\ --,'c F;--~'r~d'r "'r~_=Eg ~'1FV.--918.70 1 I \ ' \ /I/ ,,,, ~ )-7 ....... ~lt / : ~'-----.\~ ¢,~'~ o~ C'll ,~ ir Il / Il .... '~12 "'" ¢' ~'"'"' II II O ,, o,11 il ; ~"J II !1 ' ! ~ / l, ~0 c°' II ,~, L~'-.P II II " "" "' \ G,'",+' 1'3 "XISTING WOOD F[NI POIN' ~ ~ SILT FENCE..=.. . SEE' DETAIL C(~ GRADING PLAN 49TH AVE N SEE DETAIL( ' ' SEE DETAIL P~NT :E DETAIL ~ / ~ ..... ~ ?, ~ : \ C) !1 / ~ / ~ [ PRIV~ DRI~ ~1 II ~ / :~,s~ wo~ SILT FENCE SEE' DETAIL~ Hennevln County October 25, 1999 Kirk McDonald City of New Hope 4401 Xylon Ave. N. New Hope, MN 55428 Re: Proposed Plat - L & AthI-Iomes CSAH 156 SE quad 49 Ave. N. Section 8, Township 118, Range 21 Hennepin County Plat No. 2503 Review and Recommendations Dear Mr. McDonald: Minnesota Statutes 505.02 and 505.03, Plats and Surveys, require county review of proposed plats abutting county roads. We reviewed the above plat and make the following comments: · The developer should create a 10' wide easement for sidewalk and roadway purposes along CSAH 156, beyond the cu~. ent 40 foot right of way. This action will accommodate any future upgrading of the CSAH 156/49~' Avenue intersection, as well as utilities, snow storage, signs, etc. · The proposed right mm ingress is acceptable. However, we are concerned about wrong-way exiting movements here. Appropriate on-site signage must be provided to preclude other uses, and will be required via the permit process when construction becomes imminent. Should these movements become a problem, the entrance may have to be closed. The site design should allow for this contingency. · All proposed construction within county right of way requires an approved Hennepin County permit prior to beginning construction. This includes, but is not limited to access, drainage and utility construction, traildevelopment, and landscaping. Contact our Permits Section at 745-7601 for the appropriate permit forms. · The developer must restore all areas, within the county right of way, disturbed during construction. Please direct any response to Dave Zetterstrbm at 745-7643. As a matter of procedure, we request that the City Clerk inform us of the City Council's action on the right of way and access provisions. Sincerely,_ ~ ~ Thomas D. J6hnson, P.E. Transportation Planning Engineer TDJ:DKZ:jrh cc: Pete Tulkki Brad Moe Transportation Department 1600 Prairie Drive J~ecycled Pa~er Medina, MN 55340-5421 (612) 745-7500 FAX: (612) 478-4000 TDD: (612) 852-6760 ·: SWANSO & SONDRALL, P.A. Attorneys ,4t Law -) 8525 EOI~ROOK CROSSINa, ST£. 2ol _ BROOKLYN PARK. MINNESOTA 55443-1999 TELEPHONE (612) 424-8811 · TELEFAX (612) 493-5193 E-MAIL jss~jsspa.com GORDON L. JENSEN* WILLIAM G. SWANSON STEVEN A. SONDRALL C. ALDEN PEARSON~ October 1 g, 1999 DEAN A. TRONGARD'I' JULIE A. TH~LL OF COUNSEL Kirk McDonald LORENS Q. BRYNESTAD City of New Hope 4401 Xylon Avenue Nerth New Hope, MN 55428 RE: L and A Homes Our File No. 99.15050 Dear Kirk: I have examined the proposed preliminary plat for L and A Homes and have the following comments: 1. The plat does not list the owners of the involved real estate. That information will be needed. And title evidence must also be provided by the developers. All owners will need to be signatories on the final plat. In addition, all mortgage holders must either be signatories on the plat, or sign a recordable consent to the plat. 2. As you know, when the plat is filed, the entire real estate taxes, due and payable for the year in which the filing takes place, must be paid in advance. So there will be some advantage for the owners to comr>leting the platting process in 1999. Be sure to contact me if you have any questions. Sincerely, Martin P. Malecha Assistant City Attorney cc: Daniel J. Donahue, City Manager · R~C~i~By ~L'~ s~i~,~ Steven A. Sondrall, City Attorney Minnesola Sla~e Bar Association ~'Qualified ADR N~Jtral Staff Exhibit ~ n~ 1995 REZONE to R-2 PLAT 2 new lots [ Cameron Addition ] Collaboration with City & 2 landowners 19 91 Disability Access Twinhome FUTURE DEVELOPMENT AND REDEVELOPMENT SITES Residential Opportunity Commercial Opportunity Industrial Opportunity Commercial / Industrial Opportunity Deteriorating / Blighted Areas Underdeveloped Areas Vacant Areas Source: Ci~/of New Hope , I © c~ooer 1997 Ba.~ Map: 0 1000 2000 3000 · Oonestroo Rosene ~ ~ m Anderlik & A~ocmates SCALE IN FEET GOLDEN VALLEY Ci~ of New Hope Comprehensive ~lan Update 45 Invento~ Land Use ~, HOUSING NEED The diversity of New Hope's housing stock goes a long way in meeting the needs of a variety of income and age groups. The City has been very aggressive in addressing housing issues pertaining to housing conditions, housing affordability, and housing for special needs residents (the elderly and people with disabilities). In looking to the future, the City has conducted the 1997 Life Cycle Housing Study for the year 2010 which identifies the following housing needs: 1. Higher Value. Move UP Housino. Due to the lack of vacant land supply in New Hope, this housing need must be met through continued maintenance upgrading and modernization of existing single family housing stock. The City may also look to satisfy the housing need through redevelopment of blighted sites which may have amenities that would be attractive to higher value medium or high density housing options. 2. Owner 0(;:Cu_oied or Rental Attached Housing. The Life Cycle Housing Study identified the need for attached housing (townhomes, twinhomes, cooperative apartments) that offer low maintenance, independent housing opportunities. These types of housing opportunities are attractive to empty nesters or older residents wishing to live in New Hope. 3. Affordable Rental. The Life Cycle Housing Study identified a need for additional affordable rental units before year 2010. Due to the City's extensive rental housing supply, these units can be provided through rental assistance certificates for use within existing rental units. 4. Soecial Needs Housing. New Hope has made special efforts to provide housing for people with special needs such as the elderly and disabled. New Hope will continue to expand its special needs housing stock as opportunities present themselves. The specific quantifiable housing nccds for New Hope are included in the 1997 Life Cycle Housing Study for the Year 2010 which has been included as Addendum A of the Comprehensive Plan. The City's housing policies and implementation plan is identified in the New Hope Housing Policy Action Plan, 1996, included as Addendum B of this Comprehensive Plan. City of New Hope Comprehensive Plan Update Development Framework 41 Planning Districts PLANNING DISTRICT 8. Planning Distdct 8 is found in the center of New Hope and includes, as well as surrounds, Cooper High School and New Hope Elementary School. Quebec Avenue borders on the east and Boone Avenue on the west, with dynamic northern and southern boundaries. This area is characterized by its public/semi-public uses and their surrounding Iow density residential neighborhoods. The following recommendations are offered for Planning District 8. 1. The Iow density residential neighborhoods are generally in good condition. The City has undertaken some scattered site residential development within the neighborhood north of 49th Avenue. The City will continue to encourage the maintenance and enhancement of its iow density areas through private reinvestment in homes, enforcement of the Housing Maintenance Code, and scattered site renovation and redevelopment programs. 2. The medium density housing located along 51 st Avenue displays declining building and site conditions. Area redevelopment is recommended. 3. The high density residential land uses at the comer of Xylon Avenue and 45th Avenue face flooding issues due to its proximity to an adjoining wetland. Efforts to remedy this flooding problem should be investigated. 4. The Homeward Bound Group Care Facility is currently vacant. Future reuse of the facilities will be evaluated with regard to the use's compatibility with surrounding residential neighborhoods. 5. Cooper High School and New Hope Elementary SchoOl are located in the center of Planning District 8. Compatibility issues with regard to the high school and adjoining neighborhoods have identified issues pertaining to students leaving the school (trespassing, littering, and noise). The City will work closely with the School District to monitor ongoing issues and undertake efforts to mitigate existing problems. City of New Hope Coml3rehen$ive Plan Update Development I=rarnework 88 BROOKLYN PARK ~ PLANNING DISTRICTS 8 0 , 1000 2000 ~000 · Am:tef~ & A~t~ SCALE IN FEET , City of New Hope GOLDEN VALLEY Comprehensive Plan Update 77 Development Framework CITY OF NEW HOPE SPECIAL ZONING PROCEDURES APPLICATION LOG A B C D E F G H I J Appli- Applicant Date Date Applicant Date 60- Date 120- Date Deadline Date City Date City cation application was sent day time day time Applicant for City approved or sent response number Name received notice limit limit was notified action denied the to Applicant Address by City that required expires expires of under application Phone information extension extension was missing or waiver 99-21 Lloyd & Alice Vagle 10/8/99 12/7/99 2/5/2000 8955 194th Lane, Box 504 Elk River 55330 441-7259 718-1697 cell .., Boxes A-C and E-F will always be filled out. Whether the other boxes are filled out depends on the City's procedures and the date of a specific application. A. Assign each application a number. B. List the Applicant (name, address and phone). C. List the date the City received the application. D. List the date the City sent the Applicant notice that required information was missing. If the City gives such notice, it must do so within '10 business days after the date in Box C. If the time clock is "restarted" by such a notice, assign the application a new number and record all subsequent deadlines on a new line. E. To calculate the 60-day limit, include all calendar days. F. To calculate the 120-day limit, include all calendar days. G. Despite the automatic extension, the City will notify the Applicant a second time by mail that a 120-day approval period applies to the application. (The date in Box G must come before the date in Boxes E and F.) H. List the deadline under any extension or waiver. I. The City must act before the deadline. (The date in Box I must come before the date in Boxes E or F, or, if applicable, Box H.) J. List the date that the City sent notice of its action to the Applicant. It is best if the City not only takes action within the time limit, but also notifies the Applicant before the time limit expires. Memorandum To: Planning Commission Members From: Kirk McDonald, Director of Community Development Date: October 29, 1999 Subject: Miscellaneous Issues NOTE: The purpose of this miscellaneous issues memo is to provide commissioners with additional detail on CounciI/EDA/HRA actions. It is not required reading and is optional information provided for your review, at your discretion. 1. October 11 CouncillEDA Meetinqs - At the October 11 Council/EDA meetings, the Council/EDA took action on the following planning/development/housing issues: A. Proiect #646, Motion Approving Final Payment to the Demolition Contractor for 5546 Sumter Avenue North: Council approved final payment. B. Resolution Approving Agreement Between the City of New Hope and Independent School District 281 Re.qardin.q Ice Arena Rental for Hiqh School Teams and Authorize Mayor and Manager to Siqn: Approved, see attached Council request. C. Resolution Supporting the Bureau of the Census and the Census 2000 Campaign in the City of New Hope: Approved, see attached Council request. D. Resolution Declarinq October 25-29, 1999, "Minnesota Manufacturers Week" in the City of New Hope: Approved, see attached Council request. E. Resolution Vacating Utility Easement at 4200 Winnetka Avenue (Planninq Case 99-18): Approved, see attached Council request. F. Proiect #659, Discussion Reqarding Fire Station Roof Repair: Still proceeding, see attached Council request. G. Planninq Case 99-17~ Resolution Adopting Water Supply Pla..n Element of the New Hope Comprehensive Plan: Approved, see attached Council request. H. Planning Case 99-20, Request for CUP to Allow Outdoor Sales of General Home Improvements and Garden Shop Related Merchandise, 4300 Xylon Avenue, Kmart: Approved, see attached Council request. I. Motion Accepting Final Report by Don Salverda & Associates Relatinq to the City Council'.~ S.trate.qic Planninq Process and 2000 City Plan: Council accepted report, see attached Council request. J. Motion Approvin.q the Twin Cities Business Monthly Three-City Publication Proposal: EDA approved expenditure of funds for ads, see attached EDA request. K. Discussion Regarding 2000 Resident Guide and Business DirectorY: EDA approved undertaking publication of the 2000 Resident Guide and Business Directory, see attached EDA request. 2. October 25 Council Meetinq - At the October 25 Council meeting, the Council took action on the following planning/development/housing issues: A. Proiect #613 and #641, Motion Approvin.q Final Pay Request in the Amount of $3,138.86 to Veit & Company for Buildinq Demolition at 7601/7621/7641 62"d Avenue: Approved, see attached Council request. B. Planninq Case 98-05, Resolution Authorizin.q Release of Performance Bond for Paddock Laboratories, 3940 Quebec Avenue: ApprOved, see attached Council request. C. Resolution Acceptin,q Public Easement Re,qardin,q 49th Avenue Liqhted Ballfield: Approved, see attached Council request. D. Planning Case 99-18, Request for Final Stage PUD and Final Plat Approval (Wal.qreens): Approved, see attached Council request with final plans and Declaration of Covenants. E. Proiect #626, Presentation of Feasibility Report for Proposed 36th .Avenue Improvements: Report accepted, see attached Council request and excerpts. F. Discussion Regarding Hosterman Middle SchoOl: Council directed Planner to prepare concept plans. G. Proiect #662, Resolution Approvin.q the CoOper Gym Expansion Development Aqreement and Facility Use A.qreement: Approved, see attached Council and EDA requests. H. Discussion Re.qardin.q Property at 5550 Winnetka Avenue and Other Properties on East Side- of Winnetka Between 5340 and 5550 winnetka: Council directed staff to send letters to property owners indicating City would like to acquire PrOperties on a voluntary "willing seller" basis as they become available. 3. Codes & Standards Committee - Codes & Standards has not been meeting, as the entire Zoning Code is in the process of being updated. 4. Design & Review Committee - Design & Review met to review plans for the townhome development at 49~ and Winnetka Avenues. 5. Comprehensive Plan Update Committee - The Committee did not meet in October. The "Parks" element of the GOlden Valley Comprehensive Plan was received and is in the process of being reviewed by the Planning Consultant. 6. Zoning Code Update Committee - A preliminary draft of the first half of the Zoning Code re-write has been received and it is in the process of being reviewed internally. A Committee meeting will be scheduled in November. Staff will be meeting again for a final review on November 12 and a Committee meeting has been scheduled for December 2. 7. Miscellaneous Issues: A. City staff continued to work on the following potential developments: 1) Met on 49th & Winnetka housing development 2) Keelor Steel expansion - filing expected soon 3) SuperAmerica new construction on Medicine Lake Road/Hillsboro - filing expected before end of year. 4) Continue to discuss Navarre expansion 5) Mr. Lasky has made several inquiries regarding his property 6) No further action on A.C. Carlson property 7) AvteC application administratively extended until December 8) Expect CareBreak plans before end of year 8. Bus Benches - U.S. Bench completed pad replacement pursuant to Planning Commission recommendations. 9. Proiect Bulletins: Enclosed is a project bulletin regarding the 1999 Infrastructure Project. 10. 2000 Planninq Commission Schedule: ThE ~Schedule is attached for your review. Note the changes to the July and November meetihg tO holiday/election. (separate attachment) · _.. Attachments: 5546 Sumter Avenue Demo Distdct 281 Ice Arena Use Rental Census 2000 Minnesota Manufacturers Week 4200 42nd Avenue Easement Vacation Fire Station Roof Repair Water Supply Plan Kmart Don Salverda Report Twin Cities Business Monthly 2000 Resident Guide & Business Directory 62"d Avenue Apartment Demo Paddock Bond Release Walgreens Final Stage 36t~ Avenue Feasibility Report Hosterman Middle School Cooper Gym Expansion Development Agreement 5550 Winnetka Avenue Project Bulletin 2000 Schedule (separate attachment) RF_ b'E T FOR ACTION Originating Deparl=nent Approved for A~enda Agenda Sect/on Community Development ~ Cons~'rl~ Item No. ~,~ue Henry 10-11-99 -"Community Development Specialist B3r:. 6.4 / MOTION APPROVING FINAL PAYMENT TO THE DEMOLITION CONTRACTOR FOR 5546 SUMTER AVENUE NORTH (IMPROVEMENT PROJECT #646) REQUESTED ACTION Staff is requesting the Council approve final payment to contractor Fan. Construction for the demolition of house and garage at 5546 Sumter Avenue North in the amount of $1,000. POLICY/PAST PRACTICE The City Engineer normally reviews the City's demolition projects to ensure the job is completed to contract specifications. BACKGROUND On June 22, 1999, the contract was awarded to Fart Construction in the amount of $8,495 for the demolition of the home and garage located at 5546 Sumter Avenue North. In late August, the City Engineer reviewed the job completed by Fan' Construction and concluded that $1,000 should be w~hheld from the contractor until the site was properly restored and in a maintainable condition. The remaining work included adding more dirt and seed to the site, removing some concrete debris and tree roots, and removing the driveway. Upon recent inspection, the City Engineer has concluded the requested work has been completed. Staff recommends final payment to the contractor in the amount of !$1,000. FUNDS ~AII demolition costs for this project was paid with tax increment funds (TIF). ATI'ACHMENTS · City Engineer's Memos from August 31 and October 1 · Map MOT/ON ~ ~"O~ BY TO: , I II III I RFA-O01 RF Ul T FOR ACTION O~~g D~en~ ~P~ for ~e~a ~enda SecUon Parks and Recreation & Oc~11, 1999 Community Development~~ , Co.sea~ Item No. ~nch ~ ' 6.7 & McDonald RESOLUTION APPROVING AGREEMENT B~EN THE CI~ OF NEW HOPE AND INDEPENDENT SCHOOL DISTRICT NO. 281 REGARDING ICE ARENA RENTAL FOR HIGH SCHOOL T~MS AND AUTHORIZE MAYOR AND MANGER TO SIGN REQUESTED ACTION Staff is recommending that the Council adopt a resolution appwving the agreement ~een the City and lSD 281 regarding i~ arena rental for high school hockey teams through the year 2009. An identical resolution was approved by the School Board for I~dependent School Distfi~ No. 281 at their October 4, 1999 meeting. (copy affached) BACKGROUND The City has been renting "home' ice to lSD 281 high school hockey teams since the i~ arena opened in 1975. It is the City's intention to continue to rent "home" ice to these teams into the foreseeable future. This agreement lays out a ten year, renewable Pla~ for this 'home" i~ designation. It states that the boys' and girls' teams from Cooper will designate the New hope Ice Arena as their 'home" ice. It fu~her states that A~stwng gi~s' and A~stwng boys'high school hockey programs will alternate eve~ ~o years be~een the New Hope Ice Arena and the Plymouth Ice Arena with the A~strong Girls' high school hockey program designating the New Hope ICe Arena their 'home" ice for the ~o seasons of 1999-2000 and 2000-2001. ~e A~stmng Boys' high school program then would designate the New Hope Ice Arena as "home" ice for the 2001-2001 and 2002 - 2003 seasons, and so on through the 2008 - 2009 season. It should be noted that there is an existing stat~o~ contracting limitation applicable to ISO 281 limiting the School Board to ~o year agr~ments. Therefore, we ~n only contra~ually bind lSD 281 to a ~o year agreement. However, the resolutions are intended to establish an unde~tanding be~een the City and IDS 281 to renew the agreement eve~ ~o yearn and that any change to this agreement du~ng the ten year time per/od, wou/d take a~ion by the School Board and the CiW Council. A change to the agreement can not be made by individual staff pemons of either body. After the expiration of the ten year period, the CiW and School Board will ~ free to amend Or discontinue this agreement. M~ON ~ S~O~ ~ ....... ~: , CO~Y~Cff,, ! ) aF, gtms'r AC XO Originating Dep~ ~ent ~p~d for ~e~a ~enda Sec~on Communi~ Development Consent 10-11-99 Phil Kern It~ ~dministrative Assistant ~ '. 6. t 0 RESOLUTION SUPPORTING THE BURE~ OF THE CENSUS AND THE CENSUS 2000 CAMPAIGN IN THE Ci~ OF NEW HOPE. ACTION REQUESTED S~ff recommends that the Ci~ Council approve a resolution supposing the 2000 Census. POLICY/PAST P~CTICE In past de,des, the Ci~ of New Hope has supposed the effo~s of the Bureau of the Census. BACKGROUND The Bureau of the Census has asked for assistance from the Ci~ of New Hope in the o~cial 2000 Census count to take place April 1, 2000. The Ci~ has assisted in the past year by reviewing the local address lists, identi~ing areas of new const~ction'since the 1990 Census and areas of the Ci~ that may be hard to enumerate. By supposing the effo~s of the Bureau of the Census, the Ci~ of New Hope will continue publish pedodic news releases in i~ newsle~er and on its web site, display promotional materials provided by the Census at Ci~ Hall, and continue to assist in identi~ing areas of the Ci~ that may be hard for Census o~cials to get an accurate ~unt of the population. COUNCIL RF..QUEST FOlt ACTION Ongtnatmg Depa~t.~uent Approved for A~enda A~enda Section Community Development Consent 10.11-99 Phil Kern Item No. E~y:Administrative Assistant By:. '- 6. ]. 1 RESOLUTION DECLARING OCTOBER 25-29, 1999, "MINNESOTA MANUFACTURERS WEEK" IN THE CITY OF NEW HOPE. ACTION REOUESTED Staff recommends that the City Council approve a resolution declaring October 25-29, 1999, "Minnesota Manufacturers Week" in the City of New Hope. POLICY/PAST PRACTICE In 1998, the City Council recognized a week in October as "Minnesota Manufacturers Week" in coordination with the State of Minnesota. BACKGROUND The State of Minnesota has declared October 25-29, 1999, "Minnesota Manufacturers Week." In addition to State recognition, the Department of Trade and Economic Development (DTED) is working with cities all across Minnesota to recognize this week as well. DTED has made this declaration in an effort to raise the general public awareness of manufacturing's importance in providing high-wage, high-skill jobs and a Stable tax base for our communities. New Hope is one of these communities that has benefited from the high-skill jobs and a strong tax base thanks to its manufacturers. Statewide, manufacturers are responsible for the largest single portion of Minnesota's gross product, and have the largest payroll of anY business sector. Staff feels it is important to recognize the importance of manufacturers in New HOpe. MOT/ON ~ SF.,COND ~ TO: I RFA.O01 ~ .RF. URST FOR ACTION Onginaung Depa~U~ent Al}prov~/'or Agenda Publi~genda SecUon Community Development Hearing 1~.1~99 Itc)m No. B3~(. irk McDonald · 7.2 / PUBLIC HEARING, RESOLUTION VACATING UTILITY EASEMENT AT 4200 WINNETKA AVENUE NORTH (PLANNING CASE 99-18) ACTION REQUESTED Staff is requesting Council approval of the attached Resolution Vacating Utility Easement at 4200 Winnetka Avenue North. The easement vacation is being requested in conjunction with the Walgreens redevelopment at 42~ and Winnetka. POLICY/PAST PRACTICE In the past, the City Council has approved easement vacations to facilitate redevelopment and new construction projects. BACKGROUND At the September 13 Council meeting, the Council approved a resolution initiating vacation of utility easement at 4200 Winnetka Avenue North and scheduled a public headng for this meeting to consider that request. At the same meeting, the Council approved the preliminary plat and concept/development PUD plans for the Walgreens redevelopment at the comer of 42"= and Winnetka, subject to certain conditions. One of the co,ditions of the approval was that the petitioner process the appropriate easement vacations. The developer is meeting that condition by submitting this request. The developer has also recently submitted a final plat and final plans, which will be presented to the City Council on October 25. The City Code states that the City Council may by resolution vacate any street, alley, public grounds, public way or any publicly owned utility easement or any portion thereof. No vacation of the premises shall be made unless the Council determines that it is in the interest of the public to vacate the public i street, public grounds or public utility. The Clerk shall mail wdtten notice of the hearing ... to utility companies ... and to each property owner affected by the proposed vacation. The Code further states that the fee for the vacation shall be the actual costs incurred by the City, with a minimum $200 charge. The developer has submitted the appropriate documentation and fees. (cont'd.) MOTION BY ~OND B~ TO: Request forAction Page 2 10- L~2 Semper Development Ltd. has petitioned the City for vacation of a utility easement located along the northern border of 4200 42"d Avenue North, the Citgo Station currently owned by Jay Showalter. The request has been joined in by the contract for deed purchaser of the only adjacent property, that of 4210 Winnetka, immediately to the north. The easement is 5 feet in width and 140 feet in length and is denoted on the attached graphics. The City Attorney has indicated that the notice of the public hearing has been published, posted, and mailed as required by law. The only responses that the City received on the mailings were from Reliant Energy Minnegasco and Media One, who both responded that they have no facilities within the described area and had no objection to the vacation. Staff recommends that after any public comment has been received, that the. Council close the public headng and approve the resolution. A'I'rACHMENTS · Resolution · City Attorney Correspondence · Request by Petitioner · Graphics COUNCIl, ~ Originating Depart.merit Appraved for Agenda ~ A~enda SecUon vevelogment Community Development & Planning " Item No. Bt~Jrk McDonald By:. '- 8.1 / DISCUSSION REGARDING FIRE STATION ROOF REPAIR (IMPROVEMENT PROJECT NO. 659) ACTION REQUEST£D Staff requests to update the Council on the negotiations with the Johns Manville Co. for the repair of the Fire Stat/on roof. BACKGROUND This issue was discussed at the September 27 Council meeting and the Council requested to be updated at this mgeting. Per the attached correspondence from the City Attorney, since the last Council meeting the City [Engineer and City Attorney participated Jn a conference call with a representative of Johns Manville and their consulting engineer. The City Attorney indicates that there are two issues that need to be resolved between the engineers before the City can reach a solution regarding repair of the roof. Those issues are: 1. The weight bearing capacity of the metal decking to withstand snow loads, 2. The wind shear capacity of the metal decking providing structural support for the building walls. The City Attorney indicates that he may have reached an acceptable solution regarding the first issue contingent on Council approval. The snow load issue involves mainly the northern portion of the building described as the office/metal seamed roof area; as opposed to the apparatus bay area or southern portion of the building. In the office area the buJlding's roof structure has varying elevations. This is conducive to drifting snow which necessitates a need for more weight beadng capacity in this area. Johns Manville has agreed to overlay the entire office or northern area with new metal decking in addition to their other proposed remediation repairs. The additional decking w/Il insure adequate weight bearing capacity for possible snow drifting in the office area. (cont'd.) MOT/ON I~Y $~COND BY TO: RFA-O01 ~ Request for Action Page 2 10-1 Issue two involves the large fiat roof area above the apparatus bay. The City Attorney states that the roof elevation in this southern area is uniform, therefore, snow drifting is not a problem. The metal decking used on the roof has excess weight bearing capacity to handle normal snow loads al~sent a drifting problem. The engineers agree snow drifting will not cause a problem in the apparatus bay area. However, the capacity of the deteriorated metal decking to withstand wind shear loads is currently being debated. There is an honest disagreement between the engineers concerning decking thickness and wind shear load capacity. JM's engineer believes wind shear capacity is more a function of deck fastening or anchoring to the building rather than deck thickness. In other words, the ability of a roof system to support a building structure is dependent upon the manner in which the. roof is attached to the building. If the roof is not attached properly, its thickness won't matter. Therefore, a deck overlay/replacement is not as cdtical in the apparatus bay area in the opinion of the JM engineer. However, he does believe that in those areas where the deck attachment has been compromised due to the corrosion, additional deck anchoring procedures must be utilized in addition to the proposed remediation and repair. As indicated, the engineers are still working on resolving this issue and have not yet agreed on a mutually satisfactory solution to this problem. Lastly, the City Attorney indicates if an agreement can be reached, repairs can be accomplished in two to four weeks according to Johns Manville. Therefore, repairs can still possibly be made before winter. If repairs are postponed until next spring, the City Attorney believes Johns Manville will make temporary repairs to the area near the hose tower at no cost to the City. Also, the City's cost and the basic remediation procedure are still under discussion. The City Attorney will be prepared to discuss these issues in more detail with the Council on October 11. ATTACHMENTS · City Attorney Correspondence ~ma~ Deponent ~p~ for ~e~a ~ ~enda ~c~on ueve~men[ Community Development~ & Planning ~irk McDonald ~// -. 8.2 P~NNING CASE 99-17, RESOLUTION ADOPTING WATER SUPPLY P~N ELEMENT OF THE NEW HOPE COMPREHENSIVE P~N ACTION REQUESTED Staff is requesting approval of the enclosed Resolution Adopting Water Supply Plan Element of the. New Hope Comprehensive Plan. POLICY/PAST P~CTICE On September 14, 1998, the New Hope Ci~ Council approved the New Hope Comprehensive Plan Update, a~er approximately one year of wo~ by the Comprehensive Plan Update Commi~ee. The Ci~ recently re~ived ~espondence from the Metropolitan Council indicting that they had focally accepted the New Hope Plan. Many of the Ci~'s existing plans, such as the Surface Water Management Plan and the Transpo~ation Plan were adopted as a~achments to the Comprehensive Plan. The Met Council also requires that each ci~ ~mplete a Water Supply Plan and this effo~ was unde~aken by the 3-Ci~ Joint Water Commission. Golden Valley, C~stal and New Hope am now simultaneously processing the Water Supply Plan as an aEachment to or element of their respective Comprehensive Plans. BACKGROUND In the eady 1960s, the Ci~ of Golden Valley decided to enter into a contract with Minneapolis for wholesale purchase of water. ShoWy thema~er, the ~ntra~ was amended to add the cities of New Hope and C~stal. This wo~ing mlaaonship among the ~me ~mmunities has been focalized in the Joint Water Commission. Essentially, the Commission purchases water from the Ci~ of Minneapolis and distributes the water through its system of rese~oirs, pumping facilities, water towem, and 12" and larger water mains. All of the smaller pipes, the water metem, etc. are owned by each individual ci~. This Water Supply Plan Update was prepared as pa~ of the update to eaCh Ciys Comprehensive Plan. The Metropoli~n Coundi is r~uidng that each ci~ focally adopt the plan as an amendment to their Comprehensive Plan before ~ey focally accept the Plan. C~stal and Golden Valley are also in the ~rocess of adopting this plan. ~e Metropolitan Council will require that the water supply potion of the Comprehensive Plan be updated eve~ 10 yearn. (~nt'd.) Request for Action Page 2 10-117~ The plan was prepared by Howard R. Green Company, Consulting Engineers, in conjunction with the three cities. A representative from that firm who has worked closely with the Joint Water Commission on the preparation of the plan, Kathryn Force, will be present at the meeting to give a short presentation on the plan. Representatives from the New Hope Public Works Department may also be present to answer questions. New Hope resident and Planning Commissioner Adam Kramer is the Director of Water Works for the City of Minneapolis and, therefore, is also very familiar with this plan. Please refer to the attached summary of the plan prepared by Kathryn Force for more detailed information. A full copy of the plan was distributed with the Planning Commission. packets on October 1. The Planning Commission held a public hearing on this plan at the October. 5 Planning Commission __... meeting and the Commission approved a resolution recommending that the City Council adopt the plan as an element of the New Hope Comprehensive Plan update. he City recently received correspondence indicating that the DNR has approved the JWC Water Supply Plan, therefore, New Hope is on track to adopt the plan as part of its Comprehensive Plan. ATTACHMENTS · Council Resolution · Water Supply Plan Update Summary · Planning Commission Resolution · DNR Correspondence I COUNCIL ~ ' REgUEST FOR Ac'r 01 Originating Department Al)proved for Agenda A~enda SecUon Deve]o~iment Community Development & Planning Item ~o. B~irk McDonald By:. : 8.3 PLANNING CASE 99-20, REQUEST FOR CONDiTiONAL'USE PERMIT TO ALLOW OUTDOOR SALES OF OUE ,U. OVEUE S A.OE S.O. UE C.^ O SE.. 00 X .O, AVENUE NORTH, KMART/FANCHER DEVELOPMENT SERVICES/MASTER LP ASSOCIATES, PETITIONERS ~ ACTION REQUESTED S~ff requests that the Council approve the a~ched msolu~on which approves a conditional use ~it to allow outdoor sales of garden shop memhandise at KmaA, lo,ted at 4300 Xylon Avenue No~h. The Planning Commission considered this request at the O~ober 5 Planning Commission meeting and recommended approval, subje~ to ~e following condiaons: 1. All wo~ to be completed by August 1, 2000. 2. Annual inspec[ion by staff. 3. Professionally stdpe~ut the last paAing s~lls in ~e no,beast comer of the proposed sales ama. .4. Removal of all tables, rocks, palle~, and displays as ~ey become emp~ and no trailer use for outside sales or stooge. 5. Installation of sidewalk from 42nd Avenue to the front of the principal st~ctum, per previous approval. 6. Ins~llation of ma~ed crosswalks in ~e following ~ree Io~tions: from ~e sales ama to the Garden Center, from the sales ama to the front of the KmaA building, and from the sales ama to ~e pa~ing ama west of the main access ddve. :7. Ins~llation of ~me addiaonal Fees on east side of sales am~pa~ing lot and 18" to 24" high evergreen- ~pe shrubs on the no~ side of sales am~pa~ing lot. ~8. Submit a final revised site plan of outd~r storage ama showing sidewalk from 42~ Avenue, an~ striping, crosswalks, and lands~ping. , POLICY/PAST P~CTICE ~The Ci~ Council has previously appmv~ ~ndiaonal use pe~i~ for outdoor sales of galen shop memhandise for other business es~blishmen~ in the Ci~ if the conditions of the Code am met. ~ACKGROUND The appli~nt is mquesang approval of a condiaonal use pe~it to allow ~e operation of an outdoor sales and se~ice ama. This pm~ is zon~ 5~, Communi~ Business Dis~. This dis~ allows outdoor sales and se~ice areas a~esso~ to a principal use wi~ a ~ndiaonal use pe~it. The pu~ose of ~e proposed outdoor sales and se~ice ama is to a~mmodate ~e sale of general home improvement and galen shop memhandise. The sales and se~ice ama will ~ I~t~ in ~e site's ~u~eastem pa~ing lot and will o~te Imm Mamh ~mugh July. ~ON ~ , ~O~ ~ , · ~: , ,, Request for Action Page 2 10-11-99---.~ In August, the petitioner received approval for a sign vadance in conjunction with a number of proposed site improvements, which will be completed this fall and next spring. One of the conditions of that approval was that Kmart submit this application to formalize its outdoor storage use, which was administratively approved on a temporary basis for the last several years. Since the August Planning and City Council meeting approvals, the City has executed a Development Agreement with Kmart and has received a financial guarantee on the improvements. Section 4.125(4) of the City Code specifies five standards to examine when considering a conditional use permit to allow open or outdoor service, sales and rental activities as an accessory use. Listed below are these standards, as well as other applicable issues, and staff's finding for each. .. 1 ) Area..Limit - Outside services, sales and equipment rental connected with the principal use is limited to 30 pement of the gross floor area of the principal use. Finding: According to the applicant's plans, the outdoor service and sales area is 130 feet in width by 145 feet in length producing an area of approximately 18,850 square feet. The principal building is approximately 94,500 square feet. Therefore, the outdoor sales and service area amounts to only 20 percent of the gross floor area of the principal use and conforms to this standard. 2) Liqhtinq Shielded - All lighting shall be hooded and so directed that the light source shall not be visible from the public right-of-way or from neighboring residences and shall be in compliance with Section 4.033(5) of this Code. Finding: The applicant submitted and ~eceived approval of their lighting plan as part of the proposed Kmart renovation. This lighting plan included a light standard in the center of the proposed sales area. 3) Surfacing - Sales area is grassed or surfaced to control dust, mud, and to provide a clean, attractive and usable surface. Finding: According to the applicant's plans, the proposed sales area will have a bituminous surface. 4) Parkinq - Does not take up parking space required for conformity to this Code. Finding: According to the City's Building Official, the Kmart site exceeds the parking requirements by at least 100 stalls. The applicant's plans indicate that the proposed sales area will consume 61 parking stalls. Therefore, the proposed sales area will not take up required parking stalls. 5) Screened from Residential - Outside sales areas ara fenced or screened from view of neighboring residential uses or an abutting 'R' District in compliance with Section 4.033(3) of this Code. Finding: The adjacent Gethsemane Cemetery is zoned R-1. Due to the distance between the cemetery and the Kmart site, the on-site setback and existing landscaping, the site conditions may satisfy the screening requirements. The previous approved plan included landscaping on 42'~ Avenue (six ornamental crab apples) and seven maple trees in the smaller islands near the front of the building. It also includes several ash trees in the curbed median east of the main parking lot and west of the storage area. The Planning Commission requested that consideration be give to additional screening on the north and east sides of the storage area. Kmart responded that "the addition of trees to the planter area proposed to the north of the sales area would serve a two-fold purpose, both equally counterproductive. First, they will effectively screen the sales area from the building - a secudty issue, and second, screen the sales area from the main parking lot - defeating the odginal purpose, that is, of drawing patrons' attention to the sales area. The recently approved__plan for installation of landscaping and walkways across Kmart's parking lot from Xylon Avenue and 42'" Avenue, together with existing street trees will provide more than ample "softening" of the parking lot. Finally, they stated that they were concamed over installing anything higher than the ground cover already proposed in this area, as it poses a potential conflict with vehicular/pedestrian visii:)ility." Request for Action Page 3 10-11.-99 Kmart also does not feel that additional landscaping on the east side of the stOrage area is needed, due to the fact that there is some landscaping there already. After taking these viewpoints into consideration, the Commission recommended that three additional trees be planted on the east side of the sales area and that evergreen shrubs, 18" to 24" in height, be planted in the median on the north side of the sales area and these are included as a condition of approval. 6) Scope of Sales Activity - The applicant should define the range and type of merchandise to be sold. Sales or storage of merchandise in semi-trailers and other vehicles must be excluded from the outdoor sales and storage area. Generally at the beginning of the growing season, the Kmart sales area is attractive, however, as the season progresses and the volume of memhandise is reduced:' empty tables, racks and pallets become unattractive. Therefore, staff recommends that a condition of approval require the applicant to remove all tables, racks, pallets, and displays as they become empty, Kmart has agreed that semi-trailers will not be utilized in the storage or display of goods in the sales area and staff recommends this also be a condition of approval. 7) Access - To ensure safe pedestrian and vehicular access to this site, staff recommends that a condition of approval require the following access improvements: A) Stdped island at northeast comer. One of the recommendations for consideration was that curbing be added to the northeast comer of the site to better control traffic movement. Kmart has stated that "the addition of curb at the northeast comer of the sales area will significantly limit ingress and egress from the area by the tractor-trailers utilized in stocking this area." They would propose in the alternative, to stripe-out the last stall at the northeast comer "so as to allow better truck access to the area and avoid the damage to curb and landscaping that would inevitably ensue with a curbed planter at this location. Staff agree that a striped island provided at the northeast comer, rather than a curbed island, in order to facilitate their truck loading/unloading in the sales area is acceptable. B) Installation of a sidewalk from 42n~ Avenue to the front of the principal structure. (Kmart had agreed on the previous approval of the site improvements to install a sidewalk from 42n~ Avenue to the sales area, similar to the connection to Xylon Avenue,) C) Installation of marked crosswalks in the following three locations: from the 'sales area to the Garden Center, from the sales are to the front of the Kmart building, and from the sales area to the parking area west of the main access drive. Kmart is not in total agreement with the additional landscaping and the painted crosswalks, but will comply with the conditions if required to do so. Kmart has indicated that the improvements to the outdoor storage area would be completed in the spring/summer of 2000 along with the other site improvements. ATi'ACHMENTS · Resolution · Plans · Landscape Schedule · Petitioner Correspondence FOI/ACTION Originating Depar~,,,ent Approved for Agenda Agenda Secuon Unfinished & Dan Donahue Item No. ~ By:. ~ '.11.1 / MOTION ACCEPTING FINAL REPORT BY DON SALVERDA & ASSOCIATES RELATING TO THE CITY COUNCIL'S STRATEGIC PLANNING PROCESS AND 2000 CITY PLAN REQUESTED ACTION Staff requests that the Council formally accept the strategic planning document which is a result of the team building session facilitated by Don Salverda. BACKGROUND On April 16, 1999, the City Council and City Manager participated in a day long team building session with Consultant Don Salverda. A subsequent wrap-up session was held at a work session on August 16. All discussion matter of the team building session was documented by the consultant and presented in written form to the City Council for amendments. The document is now in its final form and it is appropriate for the Council to formally approve the document. The strategic planning process included revising the City's mission statement. The new mission statement is as follows: "To deliver quality public services to all citizens, property owners, and organizations within the City in a prudent and efficient manner". SUMMARY The City Council unanimously Concurred that the team building session was a positive and productive experience. ATTACHMENTS Executive Summary as revised August 16, 1999 MOTION BY $~,C0~ BY , Donald Salverda & Associates Roseville Professional Center ° Suite 511 · 2233 N. Hamline Avenue * F~oseville, MN 55113 (651) 484.1335 CFT~ OF ArE ~r ttOPE CO UIVCIL MEMBERS ~ C1TYM. AiVA GER 1999 LE~4 DERSHIP- TE~ BUI~DIIVG REdA T As Revised August 16, 1999 Attachment ["-"~ I,ssu~s ^.. o..o.~u.m~s .^c~.~ ~.~ c,~l /HIGHEST PRIORITYl 1) THE NEED TO ADDRESS INCREASING FINANCIAL PRESSURES i · TO DO MORE WITH LESS · TO BECOME MORE EFFECTIVE AND EFFICIENT IN WHAT WE DO ! i 2) THE NEED TO PURSUE THE REDEVELOPMENT OF THE COMMERCIAL AND RESIDENTIAL STRUCTURES IN THE CITY I 3) THE NEED TO INCREASE THE CITY'S AWARENESS OF ENVIRONMENTAL AND WATER-RELATED ISSUES I 4) THE NEED TO MONITOR AND RESPOND TO THE CHANGING I DEMOGI::~,PHICS OF THE CITY i 5) THE NEED TO MAINTAIN AND IMPROVE THE CITY'S INFORMATION SYSTEMS AND TECHNOLOGIES 14 Attachment D continued 6) THE NEED TO IMPROVE COMMUNICATION AND TEAM WORK OF THE COUNCIL MEMBERS AND STAFF 7) THE NEED TO FOSTER A POSITIVE WORK ENVIRONMENT FOR THE CITY'S EMPLOYEES 8) THE NEED TO RE-EXAMINE THE CITY'S ASSESSMENT POLICIES 9) THE NEED TO IMPROVE COMMUNICATION WITH (FROM) THE PUBLIC 10) THE NEED TO REVIEW THE CITY'S COMMISSIONS AND ADVISORY COMMITTEES · THE APPOINTMENT PROCESS · OVERALL PERFORMANCE · THEIR OUTREACH AND PROMOTION 11) THE NEED TO ADDRESS THE INCREASING NUMBER OF CITIZEN REQUESTS FOR INFORMATION 12) THE NEED TO INCREASE THE CITY'S INFLUENCE IN THE LEGISLATURE 13) THE NEED TO ENCOURAGE APARTMENT OWNERS AND LANDLORDS TO PARTICIPATE IN THE APARTMENT OWNER'S ASSOCIATION 15 Attachment [SUGGESTED GOALS PROGRAM FOR THE CITY] J HIGHEST PRIORITYJ GOAL #1 TO ADDRESS INCREASING FINANCIAL PRESSURES GOAL #2 TO PURSUE THE REDEVELOPMENT OF THE CITY'S COMMERCIAL AND RESIDENTIAL STRUCTURES GOAL #3 TO INCREASE THE CITY'S AWARENESS OF ENVIRONMENTAL AND WATER RELATED ISSUES GOAL ~, TO MONITOR AND RESPOND TO THE CHANGING DEMOGRAPHICS OF THE CITY GOAL #5 TO MAINTAIN AND IMPROVE THE CITY'S INFORMATION SYSTEMS AND TECHNOLOGIES LHIGH PRIORITYJ GOAL#6 TO IMPROVE COMMUNICATION AND TEAM WORK BETWEEN COUNCIL MEMBERS AND STAFF GOAL #7 TO FOSTER A POSITIVE WORK ENVIRONMENT GOAL #8 TO RE-EXAMINE THE CITY'S ASSESSMENT POLICIES GOAL #9 TO IMPROVE COMMUNICATION WITH (FROM) THE PUBLIC GOAL #10 TO REVIEW THE CITY'S COMMISSIONS AND ADVISORY COMMITTEES 16 I f'~ Attachment F ! I I ROLE AND RESPONSIBILITIES OF THE CITY COUNCIL I I 1) TO DETERMINE COMMUNITY DIRECTION AND SET POLICY FOR THE CiTY I 2) TO MAINTAIN THE HIGHEST FIDUCIARY STANDARD8 I 3) TO MONITOR AND EVALUATE THE PERFORMANCE OF THE CiTY MANAGER 4) TO ENCOURAGE AND PROMOTE CITIZEN PARTICIPATION 5) TO INFORM CITIZENS ON PUBLIC ISSUES 17 Attachment F (continued) t j ROLE AND RESPONSIBILITIES OF THE INDIVIDUAL COUNCIL MEMBERS I 2) TO BE PREPARED FOR MEETINGS BY DOING THEIR HOMEWORK I 3) TO LISTEN TO STAFF AND FELLOW COUNCIL MEMBERS I 4) TO BE ACCESSIBLE AND LISTEN TO CITIZEN'S CONCERNS I 5) TO INFORM CONSTITUENTS 6) TO WORK WITHIN THE'CHAIN OF COMMAND' OF THE CITY 18 Attachment F (continued) ROLE AND RESPONSIBILITIES OF .ALL EMPLOYEES & ELECTED OFFICIALS IHIGHEST PRIORITYI 1) TO TREAT CITIZENS AND FELLOW EMPLOYEES AS CUSTOMERS WITH RESPECT AND COURTESY i 2) TO BE SELF-MOTIVATED AND DISPLAY A POSITIVE A~-FITUDE 3) TO BE HONEST AND ETHICAL IN THEIR DEALINGS WITH THE PUBLIC AND EACH OTHER 4) TO STRIVE FOR QUALITY AND EXCELLENCE IN PERFORMING THEIR JOB RESPONSIBILITIES 5) TO BE TEAM PLAYERS 22 Attachment G "TO DELIVER QU.AL~ PUBLIC SERVICES TO ALL CITIZENS, PROPERTY OWNERS, d AND ORGANIZATIONS ~ THE CITY IN A PRUDENT AND EFFICIENT 5C4_NNER" Attachment G continued f VALUES STATEMENT FOR THE CITYI THE FOLLOWING VALUES ARE FUNDAMENTAL TO THE CITY OF NEW HOPE'S SUCCESS AND THE FULFILLMENT OF OUR MISSION: 1) EXCELLENCE AND QUALITY IN THE DELIVERY OF SERVICES · We believe that service to the public is our reason for being and strive to deliver quality services in a highly professional and cost-effective manner. 2) FISCAL RESPONSIBILITY We believe that fiscal responsibility and the prudent stewardship of public funds is essential if citizens are to have confidence in government. 3) ETHICS~ INTEGRITY AND PROFESSIONALISM We believe that ethics, integrity, and professionalism are the foundation blocks of public trust and confidence and that all meaningful relationships are built on these values. 4) TREATING THE CITIZEN AS OUR CUSTOMER We strive to treat every citizen with courtesy and as a valued customer who deserves the best service we can provide. 5) RESPECT FOR THE INDIVIDUAL We believe uniqueness every employee, accept, in the of citizen and and appreciate, and respect diversity and the differing of opinions. 6) OPEN AND HONEST COMMUNICATION We believe that open and honest communication is essential for an informed and involved citizenry and to foster a positive working environment for employees. 7) COOPERATION AND TEAMWORK We believe that the public is best served when departments and employees work cooperatively as a team rather than at cross purposes. 8) VISIONARY LEADERSHIP AND PLANNING We believe that the very essence of leadership is to be visionary and to plan for the future. 25 Attachmem G continued THE CITY'S VISION OF THE FUTURE THE FOLLOWING PRINCIPLES WILL GUIDE THE FUTURE DEVELOPMENT AND REDEVELOPMENT OF THE CITY OF NEW HOPE: 1) THE CITY IS VIEWED AS AN 'URBAN VILLAGE' AND WILL PROMOTE SOCIAL AND HUMAN VALUES THAT ARE BOTH SUPPORTIVE AND EQUITABLE 2) ESSENTIAL SERVICES WILL BE CONTINUED, ENHANCED, AND STREAMLINED 3) THE CITY IS FUTURE-ORIENTED, VISIONARY, AND VALUES LONG-TERM BENEFITS 4) CITIZENS WILL HAVE INPUT ON SERVICE DEVELOPMENT AND SERVICE OUTCOMES t 5) THE CITY STRIVES TO MAINTAIN THE "CULTURAL VALUES" OF 'THE "URBAN VILLAGE" IN ITS BROADEST CITY PLANNING INTERPRETATION I 6) CITIZENS WITHIN THE CiTY ARE SAFE AND SECURE 7) PROGRAMS AND SERVICES ARE BENEFICIAL, COST EFFECTIVE, AND RESULTS DIRECTED. 8) THE CITY WILL PROVIDE AN INFORMATION SYSTEM THAT MEETS THE COMMUNICATION NEEDS OF CITIZENS, ELECTED OFFICIALS, AND CITY I STAFF 26 ' II I EDA III IIII t REQUEST FOR ACTION Originating Department Approved for Agenda · EDAAgenda SecUon Community Development 10-11-99 , Susan Henry Item No. l~. omrnunity Development Specialist MOTION APPROVING. THE TWIN CITIES BUSINESS MONTHLY THREE-CITY PUBLICATION PROPOSAL ACTION REQUESTED Staff recommends Council approval for a three-city (Crystal, New Hope, and Robbinsdale) promotional EDA publication for insert into the Twin Cities Business Monthly publication for January 2000. Crystal, New Hope, and Robbinsdale are similarly aligned in terms of redevelopment. Each community is also unique enough to speak of separately. It makes-sense to tell the good stories collectively. It also makes the project financially feasible. BACKGROUND In August, city staff was approached by representatives of Twin Cities Business Monthly about a 3romotional insert for their publication. Staff looked at the cost and decided it was too expensive for the City to do alone. Staff was presented with another idea: collaborating on the project with some of the neighboring cities, such as Robbinsdale and Crystal. Representatives from the three cities met and discussed the project potential. Attached is the proposal as a result of the meeting. The City of Robbinsdale approved the proposal on October 4. The City of Crystal will consider the proposal on October 19. With much of the City's focus on redevelopment, it does make sense to do a promotional project of this nature. In brief, the concept of the three-city publication is to promote each city as well as give an overview of the area. Given the numbers on the proposal and if all three cities agree to participate, a four-color 12-page publication is planned. Each city will have 2.5 pages for an individual message and share 1.5 pages for the overview. The remaining pages would be sold for advertising by the magazine to support the project. The publication will focus on business recruitment, with an emphasis on increasing interest and enthusiasm for the benefits of relocating, building, or expanding a business within the three-city area. If .the publication is approved, under the direction and approval of the three cities, Twin Cities Business Monthly will produce and publish a high quality 12-page section for the January 2000 issue of the magazine. The magazine boasts a circulation of 37,000, including key decision makers in the Twin Cities business community. MOT~OI~ BY , SECOND BY , Request for Action Page 2 10-11-9~''-''~ The New Hope section could focus on a variety of topics, including an overview of the City with a focus on housing, parks and recreational facilities, major commercial/industrial properties, business partnerships and city services. Current redevelopment projects such as PPL and Walgreens could be featured. The piece would also be an ideal way to start marketing the city-owned property at 42"d and Quebec for commercial development. The article could also market the industrial property owned by the City at 9200 49~ Avenue and highlight residential redevelopment opportunities. Twin Cities Business Monthly has produced similar materials for the Moorhead-Fargo area and for the City of Lakeville. Samples of these materials will be available Monday evening to look at. Both pieces are quite impressive and have proved to be effective for the said communities. FUNDING For the proposed project, each participating city will contribute $5,000 in seed money. Other project revenues will be attracted by advertising. * In addition, staff recommends approval of an additional $2,000 for custom reprints of New Hope's information only. This way the City will have a stand along piece for direct marketing purposes. In sum, staff recommends Council approval of $7,000 for the Twin Cities Business Monthly three-city project, pending approval by the City of Crystal. There is $36,000 budgeted in the 1999 EDA budget for Special Programs such as business promotions and advertisements and the current balance is $22,000, therefore, there are adequate funds available for this $7,000 expenditure. A'I'rACHMENT · Proposal from Twin Cities Business Monthly · Letter from Robbinsdale EDA II II I?~.,~UE~T FOR ACTION : Onglnatlng Department Approved for Agerata EDAAgenda Section · Community Development Susan Henry ~ommunity Development Specialist DISCUSSION REGARDING 2000 RESIDENT GUIDE AND BUSINESS DIRECTORY AcTIoN REQUESTED Staff requests a discussion with the EDA regarding the update and production of a 2000 New Hope Resident Guide and Business Directory. POLICY/PAST PRACTICE In 1998, the City produced its first Resident Guide and Business Directory. The publication proved to be useful for both residents and the business community. BACKGROUND In 1998, the Resident Guide and Business Directory was the first attempt at putting the City's most requested information under one cover. At this time, the information contained in first edition is becoming outdated. A new Councilmember has been elected, several Department Heads have changed, and recent innovations such as the web page are not included. When the edition was printed, it was assumed the shelf life would be approximately two years. If the City is interested in continuing on with ~the project, it is time to consider an update to the document. Planet Publications, the company that produced the first edition, has completed a preliminary proposal for the 2000 project. City staff was pleased with the quality product produced by Planet Publications in 1998 and recommends the company for the 2000 guide. In 1998, the City spent $14,000 on the project. Fifty percent of the project was subsidized by advertising. For the 2000 run, it is anticipated the City will spend $9,000. Again, advertising dollars will fund part of the project. The $9,000 includes an update to the information, production costs, and direct delivery to businesses and residents. Since the document only needs editing and modifying of the current guide, the costs are less. It is important to note, though, that the bulk of the costs stem from layout of the publication, art direction, and ad sales, which still need to be accomplished the second time around. The four-color front cover design will change to give the document a little different look and distinguish it from the first edition. MOTION BY ,, , ,%~COND BY , I I IIII I RFA.O01 Request for Action Page 2 10-11-99~- In 1998, a delivery service was utilized to deliver the guides around the City; this time, however, staff recommends direct mail due to issues that resulted from the drop off method. Also, for the next run, staff recommend printing less copies. In 1998, there were a total of 20,000 copies run. There was an overabundance of guides left. It is recommended that 12,000 be printed this time. There will be a total of 8,500 directly mailed to businesses and residents and the remaining copies will be' available for on-going random distribution over a two year span.. Although the press will be at 12,000 versus 20,000, the costs of living, ink, and paper rates have increased since 1998. If the EDA is agreeable to proceeding with the 2000 guide project, details will be'finalized and staff will present the contract with Planet Publications at the November 8 EDA meeting.' FUNDING There are adequate funds budgeted in the 1999/2000 EDA budgets to cover this expense. ATFACHMENT · Preliminary proposal from Planet Publications · Background Memo from Kelly Barrett, Communication Intern COUNC~ IIII RF. U ST FOR ACTION ~~ De~~t ~p~d for ~e~a ~da ~c~on Communi~ Development ~ ~ Con~ent Item No. ~irk McDonald ~ 10-25-99 6. & / MOTION APPROVING FINAL PAY REQUEST IN THE AMOUNT OF $3,138.86 TO VEIT & COMPANY INC. FOR BUILDING DEMOLITION AT 7601~621~641 62ND AVENUE NORTH (IMPROVEMENT PROJECT NOS. 613 AND 641) ACTION REQUESTED Staff is requesting that the Council approve a motion approving the final pay request to Veit & Company, Inc. in the amount of $3,138.86 for the demolition/removal of the three fou~lex buildings at 7601, 7621, and 7641 62"~ Avenue. BACKGROUND At the October 26, 1998, Ci~ Council meeting, the Ci~ Council awarded the contract for demolition to Veit & Company, Inc. in the amount of $27,000.30. The Ci~ Engineer repo~s that all work has been completed on the project. Restoration was completed this summer and appears to be in adequate condition. A payment of $23,861.44 was previously made to the contractor and the outstanding balance to be paid is $3,138.86. All of ~e appropriate final pape~ork has been provided and the City Engineer recommends approval of the final payment. The contractor was 10 days late in completing the demolition, however, liquidated damages were not pursued bemuse additional time was required for State asbestos removal pe~its and this issue was not clearly identified in the speci~tions. Staff recommends approval of the motion approving the final payment A~ACHMENTS · 10/18/99 Ci~ Engineer Correspondence · Pay Request · 3/11/99 Ci~ Engineer Co~espondence M~ON ~ , S~O~ ~ , ~: ,, COUNCIZ, ACrXO Or~mattng Depa~ t~ent Approved for Allenda A/lends Section City Manager ~ Conser~{ 10-25-99 Item No. Kirk McDonald By:. Communit7 Development Dire( to?Y: 6. _~ RESOLUTION AUTHORIZING RELEAS~ OF PERFORMANCE BOND FOR PADDOCK LABORATORIES, INC., 3940 QUEBEC AVENUE NORTH, PLANNING CASE 98-05 ACTION REOUESTED Staff recommends that the City Council approve a resolution releasing the financial guarantee for the Paddock Laboratories, Inc. site improvements at 3940 Quebec Avenue North (Planning Case 98-05). The release would be subject to the payment of final administrative/consultant expenses. It is staff's opinion that Paddock Laboratories, Inc. has completed all of the required improvements to the property. POLICY/PAST PRACTICE It is the policy and past practice of the City to require a financial guarantee for specific site improvements/amenities to insure that improvements are completed and to release the financial guarantee when the improvements have been completed. !,BACKGROUND The original financial guarantee was in the amount of $165,000, and this amount was reduced to $37,500 in January 1999. Paddock Laboratories request a release of funds in July 1999, however, all of the work had not been completed to the satisfaction of the City Engineer and Building Official, and they recommended a reduction to $7,500. Paddock requested that no action be taken at that time until all work had been completed. Paddock has now notified the City that all work has been completed and are requesting release of funds in the amount of $37,500 at 3940 Quebec Avenue North (Planning Case 98- 05) for the installation of public improvements and on-site exterior amenities, including sodding, ~restoration in the parking lot islands, and restoration along the pond on the east side of the property. The City Engineer and Building Official have inspected the property for completion of the improvements and are recommending that the bond be released as all improvements have been completed. The City Engineer is recommending that the silt fence be removed next year after the vegetation is established. The enclosed resolution authorizes release of the performance bond, subject to the payment of any remaining administrative expenses, and staff recommends approval of the resolution. ATTACHMENTS ,· September 29, 1999, Bond Release Request from Paddock Laboratories ·City Engineer Correspondence ·Building Official Memo MOTION BY ,, SECOND BY ,, TO: RFA-O01 ~ ~ COUNCIL ~ ~_~(k ~"~ !~) REQUEST FOR ACTION Originating Depa~ b. uent Approved for Agenda Agenda SecUon Parks and Recreation 10-25-99 Consent By: Shad French 6.10 RESOLUTION ACCEPTING PUBLIC EASEMENT REGARDING 49TM AVENUE LIGHTED BALLFIELD REQUESTED ACTION Staff is recommending that the Council pass a resolution accepting a public easement regarding 49'" Avenue Lighted Ballfield. The property from whom the easement is being obtained is Midtown Manufacturing owned by Mr. Lester Goetzke. BACKGROUND This resolution and attached Settlement Agreement and Release and Public Easement resolves the long standing dispute between the City and Midtown Manufacturing regarding the asphalt path on the eastern boundary of the ballfield. The settlement basically requires the City to make a $2,000 payment to Mr. Goetzke in consideration for the public easement. The easement provides the City with the right to continue to use and maintain that portion of the asphalt path on Mr. Goetzke's property which is shown on the attached diagram to the Public Easement. This area is approximately located on the north 100 feet of the west 4 feet of the Midtown Manufacturing property as indicated on the diagram. It should be noted that the City will also pay to have the fence relocated so that it does not any longer interfere with use of the path. The relocation will follow directly along the eastern edge of the now existing asphalt pavement on the Easement tract. ATTACHMENTS A copy of the resolution and attached Settlement Agreement and Release and Public Easement, and a cover letter from the City Attorney is attached. MORON ~ SECOND ~ TO: ,, I:Rfa~Pul~wo~$'¢~41~ Re~olutlOn acc~g final ~a~ernents COUNCIL RE D'I T FOR ACTION Originating Department Approved for Agenda _Agenda Section Development & Community Development, 10/25/99 Planning Item No. ]~y.: Kirk McDonald By:. PLANNING CASE #99-18 - REQUEST FOR FINAL STAGE PLANNED UNIT DEVELOPMENT AND FINAL PLAT APPROVAL, SEMPER DEVELOPMENT LTD./JOHN KOHLER, PETITIONER ACTION REQUESTED Semper Development Ltd. Is requesting final stage Planned Unit Development approval and final plat approval of Annabel's Addition for the redevelopment at the northeast corner of 42nd/Winnetka Avenues to accommodate the construction of a new Walgreen's store and a free standing commercial building. The attached resolution approves the final plans and plat and related zoning requests, and staff recommends approval of the resolution. POLICY/PAST PRACTICE in the past, the City Council has approved multiple applications and PUD flexibility to encourage new development and redevelopment. BACKGROUND Extensive background information on this request is contained in the September 13th Council request, which is attached. The Planning Commission considered the preliminary plat and concept/development stage PUD plans at their September 7th meeting, and recommended approval, subject to conditions. The Planning Commission waived its review of the final plat. On September 19th, the City Council approved the preliminary plat and concept/development stage PUD plans, subject to similar conditions. Subsequent to that approval, staff and consultants met with the developer and reviewed all the outstanding conditions and issues. The developer submitted revised plans and a final plat, which were distributed to the appropriate staff and consultants for review. The Zoning Code does not require final plan approval by the Planning Commission, therefore, the final plans are being submitted directly to the City Council for consideration and approval. MOTION BY SECOND BY TO: Request For Action Page 2 The following development applications are necessary to complete the process for this development: 1. FINAL PLAT - the developer is proposing to combine the three existing lots into two commercial lots. 2. CUP/PUD - the project proposes an integrated site design that provides shared access, parking, and similar architectural amenities. 3. VARIANCE - a nine-foot variance from the 25-foot sideyard setback requirement, so that the freestanding retail building can be located 16 feet from the north property line. 4. COMPREHENSIVE SIGN PLAN APPROVAL - to approve signage for the two building commercial PUD. The City Council approved the concept/development stage PUD plans subject to the following conditions: Preliminary P!at 1. Incorporate recommendations of City Engineer (resolve 2 cfs issue), City Attorney, and most recent from Hennepin County. 2.Process appropriate easement vacations. 3.Planning Commission waives review of final plat. 4.Submittal of final plat. CUP/PUD 1. Developer to execute Development Agreement with City and provide appropriate financial guarantee (amount to be determined by City Engineer and Building Official). 2.Submission of Final Stage PUD plans. 3.Incorporate recommendations of City Engineer and Hennepin County. 4. Applicant establish cross easement for establishing shared access and shared parking between Lots 1 and 2. 5. Applicant provide maintenance agreement outlining maintenance responsibilities for the shared access, parking areas, and landscaping. 6.Applicant provide a description for Lot 2 building loading area. 7.Applicant comply with landscape recommendations outlined in the planning report. 8.Freestanding signs be relocated to provide 10-foot setback from property lines. 9.Indicate roof-top equipment to be screened. 10.Incorporate roof hatch changes. 11. Work with staff on recommendations from Police Department on interior design recommendations. 12. City approve the flexibility of the requested site signage and on the reduction of required parking as part of the PUD. 13.Indicate snow storage on site plan. The developer has addressed these conditions and made the appropriate changes to the plans, as outlined below. FINAL PLAT The final plat consists of combining three existing lots into two new commercial lots, which will be known as "Annabel's Addition." Request For Action Page 3 ~'~,, Lots - The B-4 Zoning District does not establish minimum lot area and lot width standards. The proposed lot sizes in Annabel's Addition are: Lot 1: 60,767 square feet in area 214 feet wide Lot 2: 34,945 square feet in area 123 feet wide The lots offer sufficient land area to accommodate the proposed buildings. As per routine policy, the final plat was submitted to City Department Heads, City Attorney, City Engineer, utility companies and Hennepin County for review and comment and the City Attorney responded with the attached correspondence. The City Attorney recommends approval of the final plat and Declaration of Easements, Covenants, Conditions And Restrictions, subject to the following three conditions: 1. The plat shall be filed with the Registrar of Titles office, followed immediately by the filing of the Declaration of Easements, Covenants, Conditions and Restrictions. Both the plat and the Declaration shall be filed after record title is established in the owner and then the declarant, respectively, and prior to the filing of any other interests in the property, including mortgages. 2. The Declaration of Easements, Covenants, Conditions and Restrictions shall be changed prior to filing to include all of the modifications recommended in the final plat review letter from the City Attorney's office dated October 15, 1999. 3. All private easements burdening Tract D, Registered Land Survey No. 1247 shall be terminated or extingUished, by merger or otherwise, prior to the filing of the plat. No other comments were received on the final plat, as the necessary easements and right-of-way and access points were provided on the Preliminary plat, per the City Engineer and Hennepin County. FINAL PLANS The developer has addressed the previous conditions of the approval as follows: 1. Developer to execute Development Agreement with City and provide appropriate financial guarantees (amount to be determined by City Engineer and Building Official). Finding: A preliminary Development Agreement has been prepared by the City Attorney and forwarded to the developer. Execution of the Agreement and provision of a financial guarantee will be a condition of approval, and the developer has agreed to this. 2. Submission of Final Stage PUD plans. Finding: The revised plans and Declaration of Covenants represent the Final Stage PUD plans. 3. Incorporate recommendations of City Engineer and Hennepin County. Finding: The City Engineer and Public Works have reviewed the final plans and provided comments in the attached memo addressing water service and grading drainage issues. Compliance with these recommendations will be included as a COndition of approval. 4. Applicant establish cross easement for establishing shared access and parking between Lots 1 Request For Action Page 4 and 2. Finding: The applicant provided a copy of the Declaration of Easements, Covenants, Conditions and Restrictions which include a description of the easement for shared access in Section 2. l(a) and 2.1(d). 5. Applicant provides a maintenance agreement outlining maintenance responsibilities for the shared access and parking area and landscaping. Finding: Section three (3) of the applicant's Declaration of Easements, Covenants, Conditions and Restrictions details the maintenance agreement for this site. 6. Applicant provides a description of Lot 2 building loading area. Finding: The applicant's revised plans include a Preliminary Site Plan which indicates a loading area in the drive lane of the parking lot along the proposed building's west side. 7'. Applicant complies with landscape recommendations outlined in the planning report. The planning report outlines four suggested additions and modifications. These include: A. All landscape should occur within the lot's boundary. Finding: The applicant's revised plans show all landscape within the site's borders. B. Add some landscape treatments at the building entrance. Finding: The revised plans do not indicate landscaping around the building's entrance, Staff feels this provision is no longer an issue, give the site's overall landscape design. C. Plant three or four upper story trees along the north side of the Lot 2 building. Finding: The applicant's revised plans show ten 6-foot high Austrian Pine trees along the northern property line. D. Blend coniferous shrubs with the deciduous plants to provide a year round screening effect along the northern side of the site. Finding: While the revised landscape schedule mislabeled the Sea Green Juniper shrubs along the site's northern boundary, the landscape plan does show a mix of Junipers and Austrian Pines as called for in this condition. 8. Freestanding sign be relocated to provide a 1 O-foot setback from property lines. Finding: The applicant's revised plans show that the proposed sign is setback 10 feet from the property line. 9. Indicate roof top equipment to be screened. Request For Action Page 5 Finding: The revised plans do not specifically show how the roof top equipment will be screened, however, the exterior elevations do show ornamentation that could screen this equipment. The applicant should provide more specific information regarding how the roof top equipment will be screened. 10. Incorporate roof hatch changes. Finding: The Building Official has approved the roof hatches. 11. Work with staff on recommendations from Police Department on interior design recommendations. Finding: The applicant has made interior changes that address the concerns of the Police Department. 12. Indicate snow storage on site plan. Finding: The applicant has indicated that snow storage will occur in the pond area in the northeast comer of the site. The only remaining issue that staff has with the final plans is that the landscaping shown on the earlier plans south of the pond has been removed. This landscaping is necessary to screen the apartment complex to the north and the developer has agreed to install plantings in this area similar to the original plan. Staff recommends approval of the final plat and final stage PUD plans subject to the following conditions: Final Plat 1. The plat shall be filed with the Registrar of Titles office, followed immediately by the filing of the Declaration of Easements, Covenants, Conditions and Restrictions. Both the plat and the Declaration shall be filed after record title is established in the owner and then the declarant, respectively, and prior to the filing of any other interests in the property, including mortgages. 2. The Declaration of Easements, Covenants, Conditions and Restrictions shall be changed prior to filing to include all of the modifications recommended in the final plat review letter from the City Attorney's office dated October 15, 1999. 3. All private easements burdening Tract D, Registered Land Survey No. 1247 shall be terminated or extinguished, by merger or otherwise, prior to the filing of the plat. Final Plans 1. Execute Development Agreement with City and provide appropriate financial guarantee, as determined by City. 2. Incorporate recommendations of City Engineer on water service and grading/drainage. 3. Add original landscaping to south side of pond. Request For Action Page 6 4. Provide additional details on roof top screening. ATTACHMENTS Revised Plans Title Sheet Existing Conditions Preliminary Site Plan Preliminary Grading Plan Preliminary Utility Plan Preliminary Plat Construction Details Preliminary Lighting Plan Preliminary Landscape Plan Landscape Details Walgreen's Floor Plan Elevations/Sign Details Final Plan City Engineer Memo City Attorney Correspondence Planner's Report Declaration of Easements, Covenants, Conditions and Restrictions September 13th Council Request regarding Concept/Development PUD Plans CITY OF NEW HOPE RESOLUTION NO. 99-170 RESOLUTION APPROVING PLANNING CASE NO. 99-18 REQUESTING FINAL STAGE PLANNED UNIT DEVELOPMENT, VARIANCE TO THE SIDE YARD SETBACK REQUIREMENT, CONDITIONAL USE PERMIT FOR DRIVE-THROUGH WINDOW, FINAL PLAT APPROVAL, AND COMPREHENSIVE SIGN PLAN AT 4200, 4210 WINNETKA AND 7858 42ND AVENUES (PID #17-118-21-22-0013, 17-118-21-22-0012, AND 17-118-21-22-0011 ) SUBMITTED BY SEMPER DEVELOPMENT LTD./JOHN KOHLER WHEREAS, the applicant, Semper Development/John Kohler, has submitted a request identified as Planning Case No. 99-18 for concept/development stage planned unit development, variance to the side yard setback requirement, conditional use permit to allow a drive- through window, final plat approval, and comprehensive sign plan for the construction of a new Walgreen's store and a freestanding commercial building 4200, 4210 Winnetka Avenue and 7858 42'~ Avenue, pursuant to Sections 4.034(4), 4.134(2), 4.19, 4.21, 4.22, 3.493, and Chapter 13 of the New Hope Code; and WHEREAS, the Planning Commission held a public hearing on Planning Case No. 99-18 on September 7, 1999, found that all conditions required by the New Hope Zoning Code for the concept/development stage planned unit development, variance, conditional use permit, preliminary plat, and comprehensive sign plan have been satisfied by the applicant, and recommended approval of the planning case request subject to all conditions as set forth in the City Staff Report dated September 3, 1999; and WHEREAS, the City Council on September 14, 1999, considered the report of the City staff, findings and recommendations of the Planning Commission, and the comments of persons attending the City Council meeting; and WHEREAS, the City Council on October 25, 1999, considered the final stage PUD plans and final plat of Annabel's Addition, as submitted by the applicant; and the comments of persons attending the City Council meeting; and WHEREAS, the City Council hereby finds and concludes that the applicant has satisfied all conditions required by the New Hope Zoning Code for issuance of the requested planned unit development, variance, conditional use permit, final plat, and comprehensive sign plan. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of New Hope that the final stage planned unit development, variance to the side yard setback requirement, conditional use permit for drive-through window, final plat approval, and comprehensive sign plan to allow construction of a new Walgreen's store and a freestanding commercial building, as submitted in Planning Case No. 99-18, is approved subject to the following conditions: Final Plat 1. The plat shall be filed with the Registrar of Titles office, followed immediately by the filing of the Declaration of Easements, Covenants, Conditions and Restrictions. Both the plat and the Declaration shall be filed after record title is established in the owner and then the declarant, respectively, and prior to the filing of any other interests in the property, including mortgages. 2. The Declaration of Easements, Covenants, Conditions and Restrictions shall be changed prior to filing to include all of the modifications recommended in the final plat review letter from the City Attorney's office dated October 15, 1999. 3. All private easements burdening Tract D, Registered Land Survey No. 1247 shall be terminated or extinguished, by merger or otherwise, prior to the filing of the plat. CUP/PUD Final Plans 1. Execute Development Agreement with City and provide appropriate financial guarantee, as determined by City. 2. Incorporate recommendations of City Engineer on water service and grading/drainage. 3. Add original landscaping to south side of pond and correct minor errors in landscape schedule. 4. Provide additional details on roof top screening. Adopted by the City Council of the City of New Hope, Hennepin County, Minnesota, this 25th day of October, 1999. Mayor Attest: City Clerk '~ ~ 'i ," ' - - -'- ';J -.: '. : '- -- .. i j~ - Kll~ ~W Al.I. PUNS( *H-q BY i'IIESE I'tO~Sk't,f[5, TI-d $cmpel r~vclopmcnt. 1, 1 FI. i Kemncsola cc~p&ny., lee owner M (ollowm8 dc~4,~bed ~opeit~ ! hereby crawly Ihal I have lufveyed ,m,I platted Ihs land dfldlbed on liul id~d Sd ANNABEL-q ADDITION. Ibl Tle~t A #cilstued I,u~l Stncy No ! 247. Fdes ed #elVeuSd of Talcs, Co~ty ~l IicmePm. toledlcl ~th ti W.f mw-e~ r~n.c~(chaive cuemem ~ ctoSd end rcao~u, wds m wid,o~l tracks, mlomobilee at other vehicles TrBcl D, kclis~cd LmqJ urvcy No 124'/as shown iA deed Documcm No Ilemepm Counts,. heinflcspt~ Leiane~,~, (.items No ~TATE OF MIt'It'tE~,OTA ,md 199 . by r~slid L Thmm~. Lend .qufv~ym T~tict,, C emi ri. I~qistc~cd [.sAd Survey No 1147, Hamq)m Co~,~y. Holm/P. alRi~:. Hermqm Coudy, NEW flOPl. RIINNE~O~A ~m~_~y a( ........ I~.~ co~ente md reco~nen~b~, u ~ovided ~ M~muh 3l.mles, Se~un SOS 0]. 3ub~d~ 2 t'~Y COUNCIl, OW 1 lit ~l ff Ol NEW IIOll, hflNN[Iol A ST ATG ~ ~y (~ T~eAYER SERYIC~ DWISi~. IJ~n C~. ~neso~ ~L MEMO TO: Kirk McDonald, Doug Sandstad FROM: Vince Vander Top DATE: October 21, 1999 SUBJECT: Walgreens (42nd / Winnetka Avenues) Our File No. 34-Gen E99-14 The following comments relate to the most current plan set, "Construction Documents 10/01/99". Water Service Previous comments addressed issues relating to the property water service. It is desired to maintain separate services to both buildings. The City must have the ability to turn off the water service to each building. Typically this is accomplished with a curb stop and box in the service line located at or near the property line. The current plans show separate domestic services; however, the following additional comments are provided. 1. The intent of the current design is to reuse the existing Hardees building water service line. The City would prefer that this line not be used. Instead, this line should be properly abandoned. 2. The site is served by a six-inch line extended from the existing hydrant located in the southwest comer of the property. This line is shown to provide domestic and fire protection service to the Walgreens building and fire protection service to the north building. The City will require that this line provide domestic and fire protection service to both buildings as follows: a. The domestic and fire protection services shall be split outside of the building. An appropriately sized copper service shall be tapped into the fire protection line outside of the building. b. A new curb stop and box shall be provided in the domestic service after the tap and corporation stop. c. No copper to copper connections are permitted. d. Curb stop and box and service line are installed to City standards. 2335 ~(/est Highway 36 · St. Paul, MN 55113 · 651-63b-4600 · Fax: 651-636-1311 e. The installation of the curb stop . d box are coordinated and inspected by Citx staff. f. The fire protection lines shall also be equipped with a 6-inch valve outside the buildings. This will enable all water to the buildings to be shut off externalh, if required. 3. The City acknowledges that the stop boxes and building shut off valves will not be located by the property lines. The City does consider all of the water main after the 6- inch valve at the property line to be private. 4. All hydrant assemblies shall include a 6-inch gate valve on the lead for isolation purposes. 5. All hydrant assemblies and valve materials shall be provided and installed according to City standards. Coordinate with Public Works. 6. A six-inch gate valve shall be provided at or near the property line where the water main enters the property. This is shown on sheet C4, I. The six-inch Iine feeds the hydrants on-site and also provides domestic water to the Walgreens building and fire protection to both buildings. 7. All water main leading to hydrants shall be pressure and flow tested according to City standards. Use stainless steel bolts on valves and fittings. The water service comments provided in this memo are summarized on the attached sheets. Gradin~./Drainage Previous comments issued have been addressed. The following item is noted. 8. The estimated capacity of the storm sewer down stream of this parcel is 2 cfs. Calculations submitted by the engineer indicate that this capacity will be exceeded during relatively frequent events. Large rain events will most certainly exceed this capacity. Therefore, it is important that an overflow be maintained and protected from the pond. Furthermore, a downstream overland drainage route must be protected. End of comments cc: Mark Hanson Paul Coone Guy Johnson Dale Reed JENSEN SWANSON & SONDRA L, P.A. /jttornLry$ At LEw 8525 EnlNarool( Cro~nG, ST~ 201 ' BR~ PA~ MINN~OT~ ~ T~L~HON~ (612)4~11 ~ ~LEF~ (612) 49~51~3 E=MAIL j~j~a.com W~ G. SWAIN ~A.~ ~m~e.m~ Octo~ 15, 1999 o~ ~u,~ Ci~ of New Ho~ ~ O.s.~.ma~ ~I Xylon Avenue No~ New Ho~, ~ 55428 ~ls Ad&finn O~ N~ No.' 99.15~9 Dear Kirk: I have examined the proposed final plat for Annabels Addition and have the following comme~: 1. The plat lists "Semper Development, L.T.D., a Minnesota company", as the owner of the real estate to be platted. According to the Secretary of State, the company is officially called Semper Development, Ltd., and is a Minnesota corporation. Sheet 1 of the plat must be changed accordingly. 2. While the plat lists Semper Development, Lid. as the owner, the title information we have been provided shows several different parties as owning the various parcels involved in the plat. Semper Development will need to provide evidence that they have in fact become the owners of ali of the land to be platted. 3. Along the same lines, the Declaration of Easement. s, Covenants, Conditions and Restrictions (discussed in more detail below) lists Reliance Development Company, L.L.P. as the Declarant. The interest of Reliance Development Company needs to be established of record prior to the recording of the Declaration. 4. Tl~li~x~'ation must be recorded immediately after the plat is recorded, and before any mortgages or other interests in the property. The first four issues raised by this leuer can be dealt with by approving the plat upon the following condition: The plat shall be ~ed with the Registrar of T'fles office, followed immediately by the ~ing of the Declaration of Kirk McDonald October 15, 1999 Page 2 Easements, Covenants, Conditions and Restrictions. Both the plat and the Declaration shall be f'ded after record title is established in the owner and the= the declarant, respectively, and prior to the filing of any other interests in property, ineludin~ mortgages. 5. The proposed final plat is accompanied by a Declaration of Easements, Covenants, Conditions and Restrictions. This I)cclaration establishes private access, drainage, utility, and parking casements in the plat. These private casements are in addition the public casements dedicated as part of the plat. Thc Declaration is acceptable thc City's standpoint, with several modifications. These in¢Iudc the following: a) thc definition of "Site Plan" in section I (g) should be changed to specifically refc.~ to the site plans as approved by the City. Thc fu'st sentence of the definition should rcacl "It]he term "Site Phn' shall mean that site plan of the Parcels attached hereto as Exhibit "B' and by reference made a pan hereof, which has been finally approved for the development of the Parcels by the Ci.ty of New Hopeaspan of Pl~nnin_~ Case ] '!.-.. 99-18.' (Additional language underlined); b) Written City consent must be require~ for any changes to the Water Detention and Drainage Facilities, so sections 2.1Co)(i'~ and (ii) must be changed to require the written consent of the City in addition to ~c written consent of the Owner and Tenant; c) Written City consent mu.st also be required for any changes in Driveway, Cross-Parking Area, and ingress and egr~z, so section 3.3(iii) must be changed to require the written consent of the City in addition to the written consent of the Owner and Tenant; and d) Written City must be required for any changes in the Declaration of Easements, Covenants, Conditions and Rr..stricfions. So section 11.2 (a) must be changed to require the written consent of the City in addition to thc written consent of all record Owners Parcel A and Parcel B. Thc plat should be approved upon the foIlowinE condition: The Declaration of Easements, Covenants, Conditions and Restrictions shall be changed prior to filing to include all of the modifications recommended in the final plat review letter from the City Attorney's office dated October 15, 1999. 6. I have exarained thc three casements referred to in my letter on the preliminary pla'.. Thc casements are all private (as opposed to public). As such, the private eascmer..:: will be extinguished when one entity owns ali of thc land to loc platmd, unless steps arc taken tO reserve the easemcm rights. The pht should be approved upon following condition: All private ~ents burdening Tract D, Registered Survey No. 12A7 shall be terminated or extinguished, by merger or otherwise, prior to the f'fling of the plat. Kirk McDona.ld Octoberl5,1999 Page 2 Be sure to contact me if you have any questions. Sincerely, Martin P. Malecha Assistant City Attorney cc: Daniel $. Donahue, City Manager Stcven A. $ondraIl, City Attorney John Kohler, Semper Dcvelopmem, Ltd. I N COMMUNITY plANNING DESIGN ' MARKET MEMORANDUM /~'~~* TO: Kirk McDonald FROM: Jason Lindahl / Alan Brixius DATE: October 6, 1999 RE: Review of Revised Plans for Walgreens - New Hope FILE NO. 131.00 - 99.18 BACKGROUND Planning case 99-18 for the City of New Hope was a request for approval of a concept/development stage planned unit development, conditional use permit for a drive through window, variance to the north side yard setback requirement, preliminary plat approval, and comprehensive sign plan. These would allow the construction of a new Walgreens store and a freestanding commercial building on the site at the corner of County Road 9 and Winnetka Avenue. Below are the recommendations made by the City regarding this development. I will compare them with the revised plans submitted by the applicant on October 4, 1999. 1. Developer to execute Development Agreement with City and provide appropriate financial guarantees (amount to be determined by City Engineer and Building Official). Finding:The details of the Development Agreement and financial guarantees will be addressed by the City's Attorney and Building Official. 2. Submission of Final Stage PUD plans. Finding: The revised plans represent the Final Stage PUD plans. 3. Incorporate recommendations of City Engineer and Hennepin County. Finding: This condition will be reviewed by the City Engineer. 4. Applicant establish cross easement for establishing shared access and parking 5775 WAYZATA BOULEVARD. SUITE 555 ST. LOUIS PARK. MINNESOTA 55416 PHONE 612-595-9636 FAX 612-595-9Ei37 E-MAIL NAC(~WINTERNET.COM between Lots 1 and 2. Finding: The applicant provided a copy of the Declaration of Easements, Covenants, Conditions and Restrictions which include a description of the easement for shared access in Sections 2.1(a) and 2.1(d). However, this document references Exhibit A - Legal Descriptions of Parcels A and B as well as Exhibit B - Site Plan, which are not attached. The applicant must include these exhibits with this document. 5. Applicant provides a maintenance agreement outlining maintenance responsibilities for the shared access and parking area. Finding: Section three (3) of the applicant's Declaration of Easements, Covenants, Conditions and Restrictions details the maintenance agreement for this site. This language appears adequate; however, the City Attorney should review it to confirm it addresses all of the City concerns. 6. Applicant provides a description of Lot 2 building loading area. Finding: The applicant's revised plans, include a Preliminary Site Plan which indicates a loading area in the drive lane of the parking lot along the proposed building's west side, The Planning Commission feels this location is adequate, 7, Applicant complies with landscape recommendations outlined in the planning report, The planning report outlines four suggested additions and modifications, These include: A, All Landscape should occur within the lot's boundary. Finding: The applicant's revised plans show all landscape within the site's borders, B. Add some landscape treatments at the building entrance. Finding:The revised plans do not indicate landscaping around the building's entrance. The Planning Commission feels this provision is no longer an issue give the site's overall landscape design. C. Plant three or four upper story trees along the north side of the lot 2 building. Finding:The applicant's revised plans show ten 6-foot high Austnan Pine trees along the northern property line. D. Blend coniferous shrubs with the deciduous plants to provide a year round screening" effect along the northern side of the site. Finding: While the revised landscape schedule mislabeled the Sea Green Juniper shrubs along the site's northern boundary, the landscape plan does show a mix of Junipers and Austrian Pines as called for in this condition. 8. Freestanding sign be relocated to provide a 10-foot setback from property lines. Finding:The applicant's revised plans show that the proposed sign is setback 10 feet from the property line. 9. Indicate roof-top equipment to be screened. Finding:The revised plans do not specifically show how the roof top equipment will be screened; however, the exterior elevations do show ornamentation that could screen this equipment. The applicant should provide more specific information regarding how the roof top equipment will be screened. CONCLUSION After reviewing the revised plans for Walgreens, staff finds that the applicant has essentially complied with the recommendations called for in the staff report. Nevertheless, staff recommends three additional actions. 1. The applicant provide copies of Exhibit A (Legal Descriptions of Parcels A and B) and Exhibit B (Site Plan) as references for the Declaration of Easements, Covenants, Conditions and Restrictions. 2. The City Attorney should review Section 3 of the Declaration of Easements, Covenants, Conditions and Restrictions to confirm it addresses all of the City maintenance concerns. 3. The applicant should provide more specific information regarding the screening of the roof top equipment. ~ RECORDED DOCUMENT TO: Malkerson Gilliland Martin LLP ~)01 Marquette Avenue South, Suite 1500 Minneapolis, MN 55402 Atto: Kathleen M. Martin This Instrument Prepared by: Malkerson Gill/land Martin LLP 901 Marquette Avenue South, Suite 1500 Minneapolis, Mb/55402 Attn: Kathi~en M. Martin DECLARATION OF EASBlVtENTS, COVENANTS, CONDITIONS AND RESTRICTIONS TH/S DBCLAKATION OF BASElvfENTS, COVENANTS, CONDITIONS AND RESTRICTIONS (the "Declarationw) is made and entered into this day of ,1999 by Reliance Development Company, L.L.P., a Minnesota limited liability parmership ("Declarant"). A. Declarant is the owner of that certain real property situated in the City of New Hope, County of Hennepith State of Minnesota, more particularly described on Exhibit "A" attached hereto and incorporated herein by this reference, which real pmpmay is made up of two parcels, legally described on Exhibit "A" and referred to herein individually as "Parcel A" and ''Parcel B," and collectively as the "Parcels". B. Declarant intends to develop Parcel B for use by Walgreen (hereinafter defined) and to simultaneously or thereafter develop or allow or cause the development of Parcel A as a retaiFcommercial site. C. Declarant desires to impose certain easements upon the Parcels, and to establish certain covenants, conditions and restrictions with respect to said Parcels, for the mutual and reciprocal benefit and complement of Parcel A and Parcel B and the present and future owners and occupants thereof, on the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the above premises and of the covenants herein contained, the Declarant does hereby declare that the Parcels and all present and future owners and occupants of the Parcels shall be and hereby are subject to the terms, covenants, easements, restrictions and conditions hereinafter set forth in this Declaration, so that said Parcels shall be maintained, kept, sold and used in full compliance with and subject to this Declaration and, in connection therewith, Declarant covenants and agrees as follows: 29~16 ~GREEMENTS ~'~ 1. Definitions. For purposes hereof: (a) The term "Owner" or "Owners" shall mcan the Declarant and any and all successors or assigns of such persons as the owner or owners of fee simple title to all or any portion of the real property covered hereby, whether by sale, assignment, inheritance, operation of law, trustcc's sale, foreclosure, or otherwise, but not including the holder of any lien or encumbrance on such real property. (b) The term "Parcel" or "Parcels" shall mcan each separately identified parcel of real property now constituting a part of thc real property subjected to this Declaration as described on Exhibit "A", that is, Parcel A and Parcel B, and any future subdivisions thereof. (c) The term "Permittees" shall mcan thc tenant(s) or occupant(s) of a Parcel, and the respective employees, agents, contractors, customers, invitecs and licensees of (i) the 0wncr of such Parcel, and/or (ii) such tenant(s) or occupant(s). (d) The term "Common Area" shall mean those portions of Parcel A and Parcel B that are outside of exterior walls ofbuildin§s or other structures fi.om time to time located on the Parcels, and which are either unimproved, or are improved as (without limitation) parking areas, landscaped areas, driveways, roadways, walkways, light standards, curbing, paving, entrances, exits and other similar exterior site improvements. (e) The term "Walgreen" or "Walgreens" shall mean Walgreen Co., an Illinois corporation (or any of its affiliates, subsidiaries, successors or assign.s). Walgreen shall be deemed a third party beneficiary to this Declaration. (f) The term "Walgreen Lease" or "Walgreens Lease" shall mean that Lease of Parcel B fi.om Declarant as landlord to Walgreen as tenant, and any amendments, extensions or replacements thereof. (g) The term "Site Plan" shall mean that site plan of the Parcels attached hereto as Exhibit "B" and by reference made a part hereof, which has been finally approved for the development of the Parcels. Except as may be otherwise provided in - this Declaration, the Site Plan is for identification purposes only. (h) The term "Driveway" shall mean that driveway and related driveway improvements, paving, curbing, entrances and exits, in the location on the Parcels as shown on the Site Plan. 29816 (i) The term "Long-Term Tenant~' or "Long-Term Tenants" shall refer to tenants of Parcels pursuant to written leases with the Owners of such Parcels and having an initial lease term of at least ten (10) years or more; Walgreens shall at all times during the continuance of the Waigrecns Lease be deemed to be a Long-Term Tenant. 2.1 Grant of Recit~rocal Easements. Subject to any express conditions, limitations or reservations contained herei~ Declarant hereby declares that the Parcels, and all Owners and Permittees of the Parcels, shall be benefitted and burdened by the following nonexclusive, perpetual and reciprocal easements which are hereby imposed upon the Parcels and all present and future Owners and Permittces of the Parcels: (a) Access. An easement for reasonable access, ingress and egress over all paved driveways, roadways and walkways as presently or hereafter conslructed and constituting a part of the Common Area of Parcel B and the Common Area of Parcel A including, without limitation, the Driveway, so as to provide for the passage of motor vehicles and pedestrians between all portions of the Common Area of such Parcels intended for such purposes, and to and from all abutting streets or rights of way furnishing access to such Parcels. (b) ~. An easement upon, under, over, above and across the Common Areas of the Parcels for the discharge, drainage, use, detention and retention of storm water runoff in the manner and in the location indicated on the Site Plan, and to install, maintain, repair and replace storm water collection, retention, detention and distribution lines, conduits, pipes and other apparatus under and across those portions of the Common Areas indicated on the Site Plan. The storm water detention areas, if any, indicated on the Site Plan, and all lines, conduits, pipes and other apparatus for water drainage, and all storage systems necessary in connection therewith, shall be hereinafter called the "Water Detention and Drainage Facilities". The easement granted herein shall include the right of reasonable ingress and egress with respect to the Water Detention and Drainage Facilities as may be required to maintain and operate the same. The Water Detention and Drainage Facilities required for Parcel B shall initially be constructed by the Declarant in accordance with the Site Plan and pursuant to Plans approved by Walgreen under the Walgreen Lease, as a part of the initial development of the Walgreens improvements on Parcel B under the Walgreen Lease. Once constructed by the Declarant, (i) the Water Detention and Drainage Facilities on Parcel B shall not be modified, altered, relocated or otherwise changed, without the prior written consent of the Owners of Parcel B and Walgreen (during the continuance of the Walgreen Lease); (ii) the Water Detention and Drainage Facilities on a Parcel shall not be modified, altered, relocated or changed in any manner that materially adversely affects the drainage on any other Parcel without the prior written consent of the Owner and Long-Term Tenant of such affected Parcel (and if the affected Parcel is Parcel B, without the prior written consent of Walgreens during the continuance of the Walgreen Lease); and (iii) each Owner shall operate and maintain, or 29816 cause to be operated and maintained, in good order, condition and repair, the Water Detention and Drainage Facihfies located upon its Parcel and make any and all repairs and replacements that may from time to time be required with respect thereto, provided, however, that the storm drainage pond located on Parcel A and all connections thereto from Parcel B shall be main~_ained by the Owner of Parcel B. (c) _~.IJfilifim. An easement under and acwss the Driveway and those pans of the Common Areas that are not within any permissible building areas shown on the Site Plan, for the installation, maintenance, repair and replacement of water mains, storm drains, sanitary sewer lines, water sprinkler system lines, telephone or electrical conduits or systems, cable, gas mains and other utility facilities necessary for the orderly development and operation of the Common Areas and each building from time to time located within the Pa_reels; provided that (i) the fights granted pursuant to such easements shall at all times be exercised in such a manner as not to interfere materially with the normal operation of a Parcel and the businesses conducted therein, (ii) the exact location of any utilities (except those installed within utility easements shown on the plat of which the Parcels are a pan or utility easements proVided for in this Declaration, or as part of the construction of initial building improvements to a Parcel) shall be subject to the approval of the Owner(s) of the burdened Parcel(s) (and, as W Parcel B during the continuance of the Walgreen Lease, Walgreen), and (iii) except in an emergency, the right of any Owner to enter upon the Parcel of another Owner for the exercise of any right pursuant to such easements shall be conditioned upon proViding reasonable advance written notice to the other Owner (and, as to any entry upon Parcel B during the continuance of the Walgreen Lease, Walgreen) as to the time and manner of entry. All such systems, structures, mains, sewers, conduits, lines and other public utilities shall be installed and maintained below the ground level or mniace of the Parcel (except for such pans thereof that cannot and are not intended to be placed below the surface, such as transformers and control panels, which shall be placed in such location as appwved by the Owner ofthe affected Parcel and if such in.~tallafion is on Parcel B, by Walgreen during the continuance of the Walgreen Lease. Once the initial consu-uction of Parcel B shall be completed by the Owner of Parcel B pursuant to the Walgreen Lease, thereafter no additional utility easements affecting Parcel B shall be installed without Walgreen's consent (during the continuance of the Walgreen Lease). (d) Ealkillg. A non-exclusive, perpetual easement over and upon Parcel A in the area generally shown on the Site Plan as the "Cross-Parking Area", for the benefit ofParcel B and the Own~ and Permit'tees of Parcel B to use the seven (7) parking stalls located in the Cross-Parking Area, including the right of reasonable access for ingress .,- and egress to such stalls over Parcel A. 2.2 ~. Each Owner having rights with respect to an easement granted hereunder shall indemnify and hold the Owner whose Parcel is subject to the easement (including tenants of such Parcels) harmless from and against all claims, liabilities and expenses (including reasonable attorneys' fees) relating to accidents, injuries, loss, or damage of or to any 29816 person or property (including impwvements to anY ~ent area) arising from the ncgligent, intentional or willful acts or omissions of such Owner, its Permittees, contractor~, employce~, agents, or others acting on behalf of such Owner. 2.3 p. easonable Use of Eas~nents. (a) The easements herein above granted shall be used and enjoyed by each Owner and its Permittees in such a manner so as not to unreasonably interfere with, obstruct or delay the conduct and operations of the business of any other Owner or its ?ermittees at any time conducted on its Parcel, including, without limitation, public access to and from raid business, and the receipt or delivery of merchandise in connection ther¢.~rith. Co) Once the Driveways are installed in the easements granted in ~ hereof, the Water Detention and Drainage Facilities are installed pursuant to the easements granted in oara_m-aph :2.1 Co) hereof, utility lines, systems and equipment are installed pursuant to ~e utility easements granted in para_m-aph 2.1 (c) hereof, no permanent building, structures, trees or other improvements inconsistent with the use and enjoyment of such easements shall be placed over or permitted to encroach upon such permitted installations. The Owner of the Parcel served by such installations shall not unreasonably withhold its consent to the reasonable relocation of such installations requested by the Owner of a Parcel where such installations are located, at such requesting Owner's sole cost and expense, so long as located in such easements, as applicable, to the other Owner's Parcel are not unreasonably interrupted and the remaining provisions of this p.a~grllV, k2J. are complied with. No such relocation of the Driveways or any relocation affecting Parcel B or the services thereto constructed in any easements granted herein shall be performed without the consent of Walgreen (during the continuance of the Walgreen Lease). (e) Once commenced, any construction undertaken in reliance upon an easement granted herein shall be cliligenfly prosecuted to completion, so as to minimize any interference with the business of any other Owner and its Permittees. Except in eases of emergency, the right of any Owner or its tenants to enter upon a Parcel of another Owner for the exercise of any right pursuant to the easements set forth, or to prosecute work on such Owner's own Parcel if the same interferes with utility or drainage, easements or easements of ingress, egress or access to or in favor of another Owner's Parcel, shall be undertaken only in such a manner so as to minimize any interference with the business of the other Owner and its tenants. In such ease, no affirmative monetary obligation shall be imposed upon the other Owner (and/or, during the continuance of the Walgreen Lease, Walgreen), and the Owner undertaking such work shall with due diligence repair at its sole cost and expense any and all damage caused by such work and restore the affected portion of the Parcel upon which such work is performed to a condition which is equal to or better than the condition which existed prior to the commencement of such work. In addition, the Owner undertaking such work shall pay 29816 all costs and expenses associated therewith and shall indemnify and hold harmless thc other Owner(s) and its Pcrmitt~es from all damages, losses, liens or claims auributablc to ~--~ the performance of such work. Notwithstanding the foregoing or anything contained in this Declaration to the contrary, no Owner or permittees shall in any event undertake any work described in this paragraph (except normal minor repairs in the ordinary course which do not interfere with the business of the Owner of the other Parcel or its tenants) which is not of an emergency nature during the months of November or December unless the Owner of such other Parcel (and, as to Parcel B, Walgreen, during the continuance of the Walgreen Lease) shall consent thereto. 3.1 General. Until such time as improvements are constructed on a Parcel, the Owner thereof shall maintain the same in a clean and neat condition and shall take such measures as are necessary to control grass, weeds, blowing dust, dirt, litter or debris. 3.2 ]3uildings and Appurtenances Thereto. Each Owner covenants to keep and maintain, at its sole cost and expense, the building(s) located from time to time on its respective Parcel in good order, condition and repair. Once constructed, in the event of any damage to or destruction of a building on any Parcel, the Owner of such Parcel shall, at its sole cost and expense, with due diligence either (a) repair, restore and rebuild such building to ils condition prior to such damage or destruction (or with such changes as shall not conflict with this Declaration), or Co) demolish and remove all portions of such damaged or destroyed building then remaining, inclur~ing the debris resulting therefrom, and otherwise clean and restore the area affected by such casualty to a level, graded condition. Nothing contained in subparagraph 3.2Co) shall be deemed to allow an Owner to avoid a more stringent obligation for r~pair, restoration and rebuilding contained in a lease or other written agreement between an Owner and such Own~s Permittees. 3.3 ~ Each Owner ora Parcel covenants at all times during the term hereof to operate and maintain or cause to be operated and maintained at its expense all Common Area located on its Parcel in good order, condition and repair. Following the construction of improvements thereon, maintenance of Common Area shall include, without limitation, maintaining and repairing all sidewalks and the surface of the parking and roadway areas (including portions of the Driveway on such Parcel), removing all snow, ice, papers, debris and other refuse from and periodically sweeping all parking and road areas to the extent necessary to maintain the same in a clean, safe and orderly condition, maintaining appropriate lighting fixtures for the parking areas and roadways, maintaining marking, directional signs, lines and striping as needed, maintaining landscaping, maintaining signage in good condition and repair, and performing any and all such other duties as are necessary to maintain such Common Area in a clean, safe and orderly condition. Except as otherwise expressly provided in this Declaration, once constructed, in the event of any damage to or destruction of all or a portion of the Common Area on any Parcel, the Owner of such Parcel shall, at its sole cost and expense, with due diligence repair, restore and rebuild such Common Area to its condition prior to such damage or 29816 destruction (or with such changes as shall not confl/ct with this Declaration). Each Owner reserves the fight to alter, modify, reconfigure, relocate and/or remove the Common Arca~ or building areas on its Parcel (except the Driveway on such Parcel), subject to the following conditions: (i) as to Parcel B, during the continuance of the Walgreen Lease, thc express written consent of Walgreen shall be required as to any change to the Common Areas on Parcel B and any change to thc Driveways on any portion of thc Parcels; (ii) thc reciprocal easements between the Parcels pursuant to paragraph 2.1 shall not be closed or materially impaired; (iii) the Driveway and Cross-Parking Area, and ingress and egress thereto, and to and from the Parcels and adjacent streets and road~, shall not be so altered, modified, relocated, blocked and/or removed without thc express written consent of all Owners and Walgreen (during the continuance of the Walgreen Lease); (iv) any such change shall not violate any of the provisions and casements granted in paragraph 2; and (v) as to Parcel A, the requirements of paragraph 3.2 of this Declaration shall be complied with. 3.4 ~. Each Owner shall at all times during the t~,,, hereof consm~ct, operate and maintain or cause to be constructed, operated and maintained, in good order, condition and repair, at its sole expense, any utility or other installations serving the Parcel of such Owner and from time to time existing on the Parcel of another Owner pursuant to an easement described herein, provided, however, that the storm drainage pond located on Parel A and connections thereto from Parcel B shall bc maintained by thc Owner of Parcel B. 4. Construction ofImprovem~r~t.~. Every building (including its appurtenant Common Area improvements), now or in thc furore constructed on thc Parocls shall be constructed, operated and maintained so that the same is in compliance with all applicable governmental requirements. The Driveway shall be constructed and completed by the Owner of Parcel B at thc same time as such Owner develops Parcel B for Walgreen under the Walgreen Lease (in accordance with plans approved by Walgreen under the Walgreen Lease). 5. Rcstricti0ns~ 29816 5.1 C-cn~l. Each Parcel shall be used for lawful purposes in conformance with all restrictions imposed by all applicable governmental laws, ordinances, codes, and regulatious, and ~-- no use or operation shall be made, conducted or permitted on or with respect to all or any portion ora Parcel which is illegal. In addition to the foregoing, throughout the term of this Declaration, it is expressly agreed that neither all nor any portion of Parcel A shall be used, directly or indirectly, for purposes of a cocktail lounge or bar (except in connection with a restaurant), disco, bowling alley, pool hall, billiard parlor, skating rink, roller rink, amusement arcade, children's play or party facility, adult book store, adult theatre, adult amusement facility, any facility selling or displaying pornographic materials or having such displays (provided however, that operations of a video store such as a Blockbuster Video, Hollywood Video or the like shall be permitted, provided that such video store shall be permitted to have only incidental sales or rental of pornographic videos which arc not advertised or visible from the exterior of the video store premises), second hand store, odd lot, closeout or liquidation store (except chain-store operations selling used goods such as Play h Again Sports, Disco Round and similar type businesses), auction house, flea market, educational or training facility, blood bank, sleeping quarters or lodging, the outdoor housing or raising of animals, the sale, leasing or storage of automobiles, boats or other vehicles, any industrial use, a car wash, an assembly hall, off track betting establishinent, bingo parlor, any use involving the use, storage, disposal or handling on any Parcel of hazardous substance materials or underground storage tanks (except incidental to a retail or service use and further excepting those items customarily sold or handled fi.om time to time in connection with a retail drag, grocery, convenience or department store), any office use (except incidental to a retail or service use and further excepting office uses typically found in retail shopping centers (e.g. medical, dental, chiropractic offices, travel, insurance brokerage or real estate offices, banks or financial institutes or the like)). 5.2 Additional Parcel A Restrictions. Throughout the term of this Declaration, it is expressly agreed that during the continuance of the Walgreen Lease or if Walgreen shall become the Owner of Parcel B, neither all nor any portion ofPareel A shall be used, directly or indirectly, for any one or more of the following purposes: (a) a drug store or a so-called prescription pharmacy or for any other purpose requiring a qualified pharmacist or other person authorized by law to dispense medicinal drugs, directly or indirectly, for a fee or remuneration of any kind except that medical providers may dispense sample doses of medication to a patient in connection with office visits at no fee or additional charge; (b) the operation of a medical diagnostic lab and/or the provision oftreatrnent services (except for so-called medical clinics or facilities or dentist offices); (c) the sale of so-called health and/or beauty aids and/or drug sundries, except that the following shall not be a violation of this subsection (c): sales incidental to the primary business of a tenant in an area not to exceed ten percent (10%) of such tenant's sales area or 100 square feet, whichever is less, except that a beauty salon may devote up to 200 square feet of floor area to the sale of such items; (d) the operation of a business in which photofinishing services and/or photographic film are offered for sale; and (e) the operation of a business in which greeting cards and/or gift wrap are offered for sale, except that the following shall not be a violation of this subsection (e): sales incidental to the primary business of a tenant in an area not be exceed ten percent (10%) of such tenant's sales area or 100 square feet, whichever is less. 29816 5.3 Additional Parcel B Restrictions. Throughout the t~rm of this Declaration, it is expressly agreed that neither all or any portion of Parcel B shall be used, directly or indir~tly, for the sale, rental and/or distribution of prerecorded video cassettes, video tapes, video discs, laser discs, video games (including without limitation CD-l), digital video discs or other video software (including without limitation CD°ROM) and/or any substitutes for, or items which are a technological evolution of, the foregoing items (hereinafter collectively the "Video Exclusive Items"); provided, however, that nothing herein shall be deemed to prohibit the sale by an Owner or Pennittee of Parcel B of Video Exclusive Items, pwvided (a) such Video Exclusive Items are directly related to the business of such Owner or Occupant (e.g. a golf store may sell golf-related video tapes), and (b) the sale of such Video Exclusive Items constitutes less than 5% of such Owner's or Permittee's display area. 5.4 Drive-Throu_ehs. No facility on Parcel A for vehicular drive-up or drive through in which the stopping or standing of motor vehicles in line at a location for dropoff and/or pickup is intended (as, for example, at a restaurant, car wash or bank) shall be constructed, used or operated in any manner such that motor vehicles in line at such facility stop or stand onto Parcel B and/or the Driveway, or otherwise interfere with the normal pattern and flow of pedestrian or vehicular waffic on and across Parcel B and/or the Driveway. Nothing contained herein shall be deemed to affect the drive-through serving the building for Walgreen to be initially conslructed on Parcel B by the Owner thereof, which is hereby expressly approved. 6. Ins~ce. Throughout the term of this Declaration, each Owner shall procure and maintain (or cause to be procured and maintained) commercial public liability and property damage insurance against claims for personal injury (including contractual liability arising under the indenmity contained in paragtm_ph 2.2 above), death, or property damage occurring upon such Owner's Parcel, with single limit coverage of not less than an aggregate of Two Million Dollars ($2,000,000.00) including umbrella coverage, if any, written by one or more responsible insurance carriers licensed to do business in the state in which the Parcels are located and naming each other Owner and Long-Term Tenant (provided the Owner obtaining such insurance has been supplied with the name of such other Owner and Long-Term Tenant in the event ora change thereof) as additional insureds. Upon written request, each of the Owners shall deliver to a requesting Owner or Long-Term Tenant certificates of insurance evidencing the existence in force of the policies of insurance hereinabove provided for. Each of such certificates shall provide that such insurance shall not be canceled or materially amended unless ten (10) days prior written notice for such cancellation or amendment is given to the Owners designated on such certificate as holder thereof. All such insurance may be carried under a master or blanket policy covering other locations, provided that the coverage afforded by such blanket policy shall not be reduced or diminished by reason of the use of such blanket policy of insurancc, and provided further that the requirements of this paragraph are otherwise satisfied. Any Long-Term Tenant (whether as a tenant or in the evem such tenant becomes an Owner of a Parccl) may elect to self-insure provided that the self- insuring entity issues a ccrtificate of such self-insurance consistent with the requirements of the 29816 pr~eding paragraphs. ~_~,~ 7. Taxes and Assessments. Each Owner shall pay all taxes, assessments, or charges of any type levied or made by any governmental body or agency with respect to its Parcel. 8. No Rights in Public: No Imolied Easements. Nothing contained herein shall be construed as creating an~ rights in the genera/public or as dedicating for pubhc use any portion of either Parcel. No easements, except (i) those expressly set forth in ~, and/or (ii) an easement over Parcel A or Parcel B so as to enable the construction of the Driveway and other improvements required for the initial development for Walgreens by the Owner of Parcel B, shall be implied by this Declaration. 9. Remedies and Enforcement. 9.1 ,&fl Leeal and Faa_uitahle Remedies Available. In the event ora breach or threatened breach by ~ny Owner or its Pcrmittces of any of the terms, covenants, restrictions or conditions hereof, the other Owner(s) and Long-Term Tenant(s) shall be entitled forthwith to full and adequate relief by injunction and/or all such other available legal and equitable remedies from thc consequences of such breach, including payment of any amounts due and/or specific performance. Walgreen shall have the right, but not the obligation, to enforce this Declaration on behalf of the Owner of Parcel B, and/or to cure a breach or default hereunder by the Owner of Parcel B, which enforcement or cure shall be accepted by thc other Owner(s) as if effected by the Owner of Parcel B. The Owner of Parcel A may similarly, in its written lease with a Long-Term Tenant, delegate such rights of enforcement and cure, but such delegation shall not relieve such Owner of its obligations hereunder. 9.2 ~. In addition to all other remedies available at law or in equity, upon the failure of a defaulting Owner to cure a breach of this Declaration within thirty (30) days following written notice thereof by an Owner or Long-Term Tenant (unless, with respect to any such breach the nature of which cannot reasonably be cured within such 30-day period, the defaulting Owner commences such cure within such 30-day period and thereafter diligently prosecutes such cure to completion), thc notifying Owner or Long-Term Tenant shall have the right to perform such obligation contained in this Declaration on behalf of such defaulting owner and be reimbursed by such defaulting Owner upon demand for the reasonable costs thereof together with interest at the prime rate charged from time to time by First Chicago NBD (or its · successors or assigns), plus two percent (2%) (not to exceed thc maximum rate of interest allowed by law). Notwithstanding thc foregoing, in thc event of (i) an emergency, (ii) blockage or material impairment of the casement rights in violation of thc terms hereof, and/or (iii) thc - unauthorized parking of vehicles on either Parcel, an Owner or Long-Term Tenant may immediately cure the same and be reimbursed by the defaulting Owner upon demand for the reasonable cost thereof together with interest accruing thereon from thirty (30) days following the written demand at the prime rate, plus two percent (2%), as above described. 9.3 ~. Any claim for reimbursement, including interest as aforesaid, 29816 10 and all cos~ and cxp~ i~cludin~ r~sonabl¢ attorneys' ~ng-T~ T~t ~ ~fion ~ ~e excise ofi~ fi~ set fo~ ~ p~phs 9.1 ~or ~ ~ove) ~ ~ow~g ~y pa~t ~ ~Y s~t or pwc~ing ~d~ ~s D~l~fion shall be ~sess~ ag~t ~e deh~g ~ ~ hvor of~e pmv~g p~ ~d ~l (~c "~ses~t Li~") ~ ~e P~el of~e defad~g ~er ~fil p~& eff~five upon ~c r~or~g of a notice of~ ~ ~t ~to ~ ~e O~ce of~e ~~ of Titl~ of H~ Co~, ~o~ pw~d~ howev~, ~t ~y such ~~t Li~ sh~l subj~t ~d subor~tc to (i) li~ for ~ md o~ public ch~g~ wMch by ~pli~blc law ~c cxpr~sly made s~or, (ii) ~l li~ r~rd~ ~ ~e O~ce of~e Re~s~ of Titles of Hc~E Co~, ~o~ prior to ~e date of~ation of~d notice ofli~, ~d (iii) all le~es enter~ ~to, whe~ or not r~rd~, prior to ~e ~te of r~fion of s~d notice of licn. ~l li~ r~rd~ subs~u~t to ~e ~rdafion of notice of~ ~s~t Lien sh~l be j~or ~d subord~ate to ~e ~ses~t Li~. Upon ~e ~ely c~g by ~e defaul~g ~er of ~y dehult for wMch a notice ofli~ w~ r~ord~ ~e p~ ~r~g appwpfiatc mle~e of ~ch nofi~ of ~ ~d ~s~m~t Li~. 9.4 R~i~ ~ulafive. ~e rcm~ ~ifi~ h~ sh~l be cmulative ad~fion to ~l o~ ~~ p~~ at law or ~ ~. 9.5 No T~ination Nor Breach. No~~g ~e-forego~g to ~c con~, no bm~h here~d~ sh~l ~fifle ~y ~ to ~cel, ~c~ or o~se t~te ~s d~l~fion. No b~h h~d~ s~l defer or r~d~ ~v~d ~e li~ of ~y mortgage or d~ of ~ upon ~y P~el ~e ~ g~d f~ for v~ue, but ~e ~~m, ~v~, ~d r~ctio~ h~f s~l be b~g upon ~d eff~five ag~t ~y ~ of such P~el cov~ h~eby whose fire ~eto is ~~ by fo~los~, ~ee's ~e, or o~s~. 9.6 ~ble H~. ~ ~e ev~t of a ~ola~on or ~t ~fof~y of ~c pwvisiom ofp~phs 2 ~or 5 offs D~l~fio~ ~h ~ a~ ~t such ~olafion or ~at ~fs~l ~e ~e non~efa~g ~ ~or i~ P~~ to s~ ~ble h~ md such non~efa~g ~ ~d i~ P~~ s~l have no ad~te mm~y at law. ~ a res~ ~ ~e ~t of a ~ol~on or ~t ~f of ~y of ~ offs D~l~fiom ~e non~efaul~g ~ or ~ng-T~ T~ r~ies av~lable at law or o~se ~d~ ~s D~l~fio~ s~l be ~fitl~ to ~j~cfive or o~cr ~mble relief to ~jo~ a ~olafion or ~at ~e~fofpam~phs 2 ~or.~ offs D~l~fion. 10. Term. The easements, covenants, conditions and restrictions contained in this Declaration shall be effective commencing on the date of recordation of this Declaration in the office of thc Hennepin County, Minnesota Registrar of Titles and shall remain in full force and effect thereaflcr in perpetuity, unless this Declaration modified, amended, canceled or terminated by the written consent of all then record Owners of Parcel A and Parcel B (and any holders of mortgages of record against any Parcel) in accordance w/th ~ hereof. 29gl6 11 11.1 Attorneys' Fees. In the evc'nt an Owner or Long-Term Tenant institutes any legal action or pwceeding f~r the enforcement of any right or obhgation herein contained, the prevailing party after a final adjudication shall bo entitled to mc, over its costs and reasonable attorneys' fees incurred in the preparation and prosecution of such action or proceeding. 11.2 (a) Declarant a~s that the provisions of this Declaration may be modified or amended, in whole or in par~, or terminated, only by the written consent of all record Owners ofPamel A ~d Parcel B (and Parcel), evidenc~ by a document that has been full¥ executed and acknowledged by ail such entities and recorded in the official records of the Registrm' o£Titles of Henn~in Count~, l~finnesota. (b) Notwifl~'tanding ~bpara~'~ph I 1.2(a) above to the contrary, no t~r~tion of this Declaration, and no modification or arnendm~nt of this Declaration shall be made nor shall the same be effective unless the ~m¢ has been expressly consented to in writing by Walgreen (during the continuance of the Walgreen Lease). 11.~ Cons~t.~. Wherever in this Declaration the cons~t or ~proval of an Owner or Long-?~rrn Tenant is requir~ unless otherwise expr~sl¥ provided h~rein, such consent or approval shall not be unre~on~bl¥ withheld or delayed. Any r~quest for consent or approval shall: (a) be in writing; (b) specif~ the section hereof which r~luir~ that such notice be given or that such consent or approval be obtained; and (c) be accompanied by ~ch back, round dat~ a~ is reasonably necessar~ to make an informed decision thereon. The consent of an Owner or Walgreen or other Long-Term ?en~t under this Declaration,.to be effective, mnst be ~iven, deni~ or conditioned expr~sl¥ and in writing. During the continuan~ of the W~l~-~en L~¢, any consent by the Owner of Pm'~el B, to be effective, ~ al~o r~uire the consent of Walgreen. Any consent of Walgre~ ma~ he given, denied or conditioned by Walgreen in Wal~een's sole and absolute discretion. 11.4 ~. No waiver of any default of any obligation by any party hereto shall be implied from any omission by the other party to take any action with respect to such default. 11.5 ]~Ig_lfi, giB~. Nothing in this Declaration shall be deemed or construed by either party or by any third person to create the relationship of principal and agent or of limited or general partners or of joint venturers or of any other association between the parties. 11.6 Covenants to Run with Land. It is intended that each of the easements, covenants, conditions, restrictions, rights and obligations set forth herein shall mn with the land and create equitable servitudes in favor of the real property benefitted thereby, shall bind every person having any fee, leasehold or other interest therein and shall inure to the benefit of and be binding upon the Owners, Permittees and their successors, assigns, heirs, and personal representatives. 29816 11.7 Gr-antee's Acc~tance. The grantee of any Parcel or any portion thereof, by acceptance of a deed conveying title thereto or the execution of a contract for the purchase thereof, whether from an original party or from a subsequent owner of such Parcel, shall accept such deed or contract upon and subject to each and all of the easanents, covenants, condit/ons, re. stricfions and obligations contained herein. By such acceptance, any such grantee shall for itself and its successors, assigns, heirs, and personal representatives, covenant, consent, and agree W and with the other Owner or Long-Term Tenants, to keep, observe, comply with, and perform the obligations and agreements set forth herein with respect to the property so acquired by such grantee. 1 1.$ ~c~2aa21hiii~. Each pwvision of this Declaration and the application thereof to Parcel A and Parcel B are hereby declared to be independent of and severable from the remainder of this Declaration. If any provision contained herein shall be held to be invalid or to be unenforceable or not to nm with thc land, such holding shall not affect thc validity or enforceability of the remainder of this Declaration. In thc event the validity or enforceability of any provision of this Declaration is held to be dependent upon thc existence of a specific legal description, the parties agree to promptly cause such legal description to be prepared. Ownership of both Parcels by the same person or entity shall not t~minatc this Declaration nor in any manner affect or impair the validity or enforceability of this Declaration. 1 1.9 Time of Essenge. Time is of thc essence of this Declaration. 1 1.1 0 F~ntire A~eernerlt. This Declaration contains the complete understanding and agreement of the Owners hereto with respect to all matters referred to herein, and all prior representations, negotiations, and understandings are superseded hereby. 1 1.11 Notices. Notices or other communication hereunder shall be in writing and shall be sent certified or registered mail, remm receipt requested, or by other national overnight courier company, or personal delivery. Notice shall be deemed given upon receipt or refusal to accept delivery. Each party and Walgreen may change from time to time their respective address for notice hereunder by like notice to the other party and Walgreen. Notice given by any Owner hereunder to be effective shall also simultaneously be delivered to Walgreen (during thc continuance of the Walgreen Lease). The notice, addresses of Declarant and Walgreen arc as follows: Walgreen: Walgreens Attention: Law Department '" Mail Stop No. 2252 200 Wilmot Road Deerfield, Illinois 60015 Declarant: Reliance Development Company, L.L.P. Arm: Richard J. Hauser 29816 527 Marquette Avenue South, Suite 1000 Minneapolis, MN 55402 11.12 ~. The laws of the State in which the Parcels are located shall govern the interpretation, validity, pm'formancc, and enforcement of this Declaration. 11.13 Estoppel Certificate. Each Owner, within twenty (20) day of its receipt ora written request from thc other Owner(s) or Walgr~n, shall from time to time provide the requesting Owner or Walgreen, a certificate binding up on such Owner stating: (a) to the best of such Owner's knowledge, whether any party to this Declaration is in default or violation of tiffs Declaration and if so identifying such default or violation; and (b) that this Declaration is in full force and effect and identifying any amendments to the Declaration as of thc date of such certificate. 11.14 ]~alia:llp. t~. In the event of any bankruptcy affecting any Owner or occupant of any Parcel, the parties agree that this Declaration shall, to the maximum extent permitted by law, be considered an agreement that runs with the land and that is not rejectable, in whole or in part, by the bankrupt person or entity. IN WITNESS WI-EE~OF, Declarant has executed this Declaration as of the date first written above. RELIANCE DEVELOPMENT COMPANY, L.L.P., a Minnesota limited liability partnership By HTW Investment Partners, Inc., a Minnesota corporation, its General Partner By. Richard J. Hauser, Its President 29816 14 STATE OF MINNESOTA ) COUNTY OF HENNEPIN ) On this ~ day of ,1999, before me, the undersigned, a Notary Public in and for said state, personally appeared Richard J. Hauser, to me known to be the President of HTW InvesUnent Parmers, Inc., a Minnesota corporation and the general partner of Reliance Development Company, L.L.P., a Minnesota limited liability partnership, the parmership that executed the foregoing insmunent, and acknowledged to me that said instnunent is the free and voluntary act and deed of said parmership and that he is authorized to execute the foregoing instrument on behalf of said partnership. Notary Public Exhibit "A" - Legal Descriptions of Parcels A and B. Exhibit "]3" - Site Plan. Identify Parcels A and B, the Driveway, Cross-Parking Area and drainage and utility easement areas. 29816 Originating Depaxt.~ent Approved for Agenda Agenda Section Public Works 10-25-99 Development & Planning /~ Item No. By: Guy Johnson By:. 8,2 PRESENTATION OF FEASIBILITY REPORT FOR PROPOSED 36TM AVENUE IMPROVEMENTS (IMPROVEMENT PROJECT 626). REQUESTED ACTION ~taff requests the Council to receive and discuss a presentation regarding the feasibility report describing the proposed improvements to 36~ Avenue North. BACKGROUND In April of 1998 the City Council reviewed a concept report for this project and directed City staff to meet with neighborhood residents to review and discuss proposed improvements to 36th Avenue. Neighborhood meetings were held in August of 1998 and in January of this year. On April 26, 1999, the City Council authorized preparation of a feasibility report for the 36~ Avenue Improvement Project. Originally, this report was intended for presentation to the Council on September 27, 1999. Since the presentation has been delayed by one month, the date for acceptance of the report shown on the following schedule has been changed. However, changes to the dates given in the report have not yet been made. Those changes will be made pending the discuss/on of the report at this Council meeting. Should the Council accept the feasibility report, the proposed schedule for the proiect {as will be reflected in changes to the report) would be: · Present Feasibility Report October 25, 1999 · Accept feasibility report, schedule Public Hearing December 13, 1999 · Public Hearing/Authorize plans and specifications January 24, 2000 · Approve Plans and Specifications for bidding October 2000 · Receive Bids/Schedule Assessment Headng November 2000 · Assessment Hearing December 2000 · Award Contract January 2001 · Begin Construction March 2001 · Substantial Completion October 2001 · Final Completion (Bituminous Wear Course/Restoration) July 2002 MOTION B~ SECOND BY , ........................................... I RFA-O01 Request for Action 36= Avenue Improvements October 25, 1999 Page 2 FUNDING Proposed revenue sources for the 36th Avenue Improvement Project are Special Assessment Bonds, Municipal State Aid, and Water/Sewer Utility Fund. ATTACHMENTS The feasibility report for 36TM Avenue Improvements is attached. The report describes proposed construction of water mains, storm sewer, curb and gutter, driveway approaches, and streets as brought forth at public information meetings and in a residents' petition. Estimated costs and proposed financing for the project and the engineer's recommendations are also included in the report. I:Rfa~PubWorks~626 Present Feasibility 10-25-99 Borlestroo ~ones,roo i?o ..... Anaer; .... cl q$$oclot~'$. Inc ts an/~ff~rfnattt, e Ac£ton EQu~/ Opportunity Emo Prznc~pals Otto G. Bonestroo. PE · Joseph C. An~erhK. PE · Marvin L Sorvala. ~E Glenn R Cook. RE - RoDert G ScnunzcnL ~E. · Jerry A Bouraon. RE · Rose e RoDert ~ Rosene. RE. R,c~ara E Turner. RE. an~ Susan M. EDerl,n. CPA.. Sen,or ~ Associate Principals' Howard A. Sanford RE · Kelth A Gordon RE · Robert R Pfefferle PE · Anderlik & M~c~ael T Rautmann. PE · Ted K Field. PE · Kenneth P Anderson PE · Mark R Ro/ts. RE S~dney R ~llllamson, RE, L.S · RoDert F Kotsmffn · Agnes M Ring · Allan Rick SChml~t. PE Engineers & Architects w,~,,~. .... September 9, 1999 City of New Hope 4401 Xylon Avenue N New Hope, MN 55428 Re: 36th Avenue Street Improvements Winnetka Ave. (CSAH 156) to TH 169 City Project No. 626 BRA File No. 34-98-217 Dear Mayor and Council: Attached is our report for 36th Avenue, Street Improvements. Proposed storm sewer, water main and street improvements are presented and discussed within the report along with detailed cost estimates and a preliminary assessment roll. We will be pleased to meet with the Council and other interested parties at a mutually convenient time to discuss the report. Respectfully submitted, BONESTROO, ROSENE, ANDERLIK & ASSOCIATES, ENC. VJnce Vander Top Karen L. Wiemeri Sheldon Johnson Enclosures , -- I hereby certify that this plan, specification, or report was prepared by me or under my direct supervision and that I am a duly Registered Professional Engineej: under the laws of the S ta~e/9~Min~j~°ty / Mark'-A. H~son Date: September 9, 1990 Registration No. 14260 2335 West Highway 36 · St. Paul, MN 55113 · 651-636-4600 · Fax: 651-636-1311 . Feasibility Report: 36th Avenue Street Improvements Winnetka Avenue(C.S.A.H. 156) to T.H. 169 City Project No. 626 New Hope, MN September, 1999 File No. 34217 J/Ii Bonestroo , ,, ~ Rosene ,, , Anderlik & Associates Engineers & Architects Table of Contents Letter of Transmittal 1 Table of Contents 2 Introduction 4 Project Location 4 Concept Report and Neighborhood Information Meetings 4 Figure 1 - Location Plan 5 Feasibility Report 6 Figure 2 - Street Improvement Location Plan 7 Feasible, Necessity, and Cost Effectiveness 8 Recommendations 9 Discussion 13 Street 13 Table 1. Average Annual Daily Traffic 14 Figure 3 - Street Design Options 15 Figure 4 - Option A 16 Stidewalk/Trail 18 Traffic Control Boone Avenue 18 Streetscape 20 Traffic Management/Calming Techniques 21 Figure 5 - Traffic Calming 36th/Boone Avenue 26 Private Utilities 21 36~h Avenue Street Improvements 2 Water Main 22 Figure 6 - Water Main Improvements 27 Sanitary Sewer 22 Storm Sewer 22 Figure 7 - Sanitary Sewer Improvements 28 Figure 8 - Storm Sewer Improvements 29 Permits 24 Right-of-Way/Easements 24 Cost Analysis, Assessments, and Revenue 30 Cost Analysis 30 Table 2. Cost Summary 30 Assessments 31 Table 3. Residential Property Assessment Rates 31 Revenue Sources 34 Table 4. Revenue Sources 34 Figure 9 - Assessment Areas 33 Project 35 Schedule Appendix A Preliminary Cost Estimates Appendix B Preliminary Assessment Roll Appendix C Preliminary Cost Estimates - Residential Equivalent Appendix D Neighborhood Information Meeting (To be provided by City Staff for Final Draft) Appendix E Photo's 36th Avenue 36~ Avenue 3 Street Improvements I Introduction Project Location This project includes street and utility improvements for 36th Avenue and Boone Avenue in the City of New Hope. The project location is presented on Figure t. The street segments included in this report are: · 36th Avenue from Trunk Highway 169 to approximately 400 feet west of Winnetka Avenue. · Boone Avenue from Boone Circle to Aquila Avenue. Past Street improvements on 36t~' Avenue include: · Winnetka Avenue to Louisiana Avenue constructed in 1996. · Louisiana Avenue to Trunk Highway 100 in the City of Crystal constructed after 1990. The New Hope Transportation Plan designates that 36th Avenue as a Community Collector, which is a roadway that collects traffic from. various residential, commercial, and industrial areas. Concept Report and Neighborhood Information Meetings A concept report was recently prepared identifying improvements proposed for 36th Avenue. The City Council reviewed the concept report in April of 1998, and directed City staff to meet with neighborhood residents to review and discuss the proposed improvements. Two Neighborhood meetings were held. Information relating to the meetings is included in Appendix Nei[hborhood Information Meeting #1 (August 17, 1998) The first Information Meeting with property owners reviewed existing conditions and received input from abutting property owners. 36~n Avenue 4 Street Improve,'nenrs ND AV~' (ROCKFORD ! - r-~---~, ,[ "',, ,, .... ,r ........ (CO RD NO 70) MEDICINE LAKE RD 27TH AVE N 0 600 3200 J LOCATION PLAN Rosene - , " ' A~ik ! NEW HOPE, MINNESOTA FIGURE 1 A~tes ! 36th AVE N (TH -169 to WINNETKA AVE N) C~( PROdECT No. 623 ~. /~4217%342~.,-0~.~G AUGUST ~999 COMM. 3~217 Neighborhood Information Meeting #2 (January 27, ! 999) The second meeting presented two design options to reconstruct the roadway. The first option provided for a center turn lane, which would reduce the roadway width from 44 feet to 40 feet. The parking lane along each side of the roadway would be removed. The second option would maintain the existing road width (44 feet wide) including a drive lane in each direction and parking lane on each side. Both design options for the roadway would include an 8' wide concrete sidewalk-trail on the south side of 36th Avenue and a 5' wide sidewalk on the north side. Two design options at the intersection of Boone Avenue were also discussed. Option one provides for the construction of a traffic signal, which would include a traffic lane in each direction and a protected left turn lane. Option two would maintain the existing 4-way stop that includes 4 traffic lanes, two lanes in each direction. On April 26, 1999, following the neighborhood meeting, the City Council authorized the preparation of a feasibility report for 36t~ Avenue that would include both design options. Feasibility Report This report examines the feasibility of providing street, storm water, sanitary sewer and water improvements to the area. The proposed location plan for street improvement is shown on Figure 2. Water main improvements are presented on Figure 6 with sanitary sewer improvements shown on Figure 7. The proposed storm sewer improvements are presented on Figure 8. Descriptions of the proposed improvements are found in the following sections of this report. Project costs, assessments, and revenue sources are summarized in this report and presented in detail in the appendices located at the back of this report. 3~'~ Avenue 6 Street Irnprowme~ts I STREET IMPROVEMENTS ,~ eonestroo Rosene Anderlik & NEW HOPE, MINNESOTA FIGURE 2 Associates I 56th AVENUE N (TH 169 to WINNETKA AVE N) :,i "!.Ty PROJECT No. 623 I '"x'-3~217\3~2~7--03.DWG AUGUST 1999 COMM. 34217 FEASIBLE, NECESSITY, AND COST EFFECTIVENESS This project is feasible from an engineering standpoint and is in accordance with New Hope's Comprehensive Plans for Utilities/Streets. The project is necessary to properly maintain existing collector streets and the safe flow of traffic, including sidewalks for pedestrians. The utility improvements for sanitary sewer and water main are required to properly maintain utilities to acceptable standards in accordance with the Minnesota Pollution Control Agency (MPCA), Minnesota Department of Health and the Joint Water Commission. The storm water improvements are required and are in accordance with New Hope's Surface Water Management Plan and Bassett Creek Watershed. The street improvements for both design options are in accordance with State Aid Standards. The project is cost effective based on existing conditions and acceptable reconstruction standards for street, and utility improvements. 3~th A 0 /~ven~e 8 Street Imprcvernents Recommendations The following recommendations are presented for consideration by the City Council. 1. The feasibility report be adopted as the guide for installation of water main, sanitary sewer, storm sewer and street improvements along and adjacent to 36ta Avenue from approximately 400 feet west of Winnetka Avenue to TH 169 and Boone Avenue from approximately Aquila Avenue to Boone Circle. 2. City Council/Staff reviews the feasibility report. Once the review is complete and appropriate revisions are made, the feasibility report be accepted by the City Council at it's November 8, 1999 Council Meeting and a public hearing be scheduled for December 13, 1999. 3. The estimated project cost in this feasibility report for Option A (Center Turn Lane) is summarized below: Water Main $37,210 Storm Sewer $370,570 Sanitary Sewer $24,750 Sidewalk/Streetscape $407,130 Street (Option A) $1,321,990 Subtotal (36th Ave) $2,161,650 Boone Avenue $251,740 Traffic Signal $216,560 Bury Overhead Electric $150,000 Total Project $2,779,950 The above cost estimate assumes new granular borrow and gravel base. If 36th Avenue can be closed completely during construction (except for local traffic) it is estimated the project cost could be reduced by $250,000 using salvaged/reclaim material from the existing roadway. In addition, a contractor is likely to bid the project more competitively if maintaining traffic in each direction is not required. 4. The feasibility report provides for two design options to be considered for the roadway design in 36th Avenue and the intersection design at Boone Avenue. The design options are summarized below: Roadway Design Options - 36t~ Avenue 36~ Avenue 9 Street Improvements 1 I Option A - Center left mm lane, parking lane cutout at four select / locations, and one drive lane in each direction. I Option B - Maintain existing (parking lane both sides of 36th Avenue, one drive lane each direction) design section. I Intersection Design Options - 36th/Boone Avenue Option A - Traffic signal and center left turn lane. B Maintain existing (4 sign, 4 lanes of traffic - 2 lanes Option way stop each direction). i Each design option will be presented at the public hearing. Following the public hearing, the City Council will select the design option for the roadway design in 36th Avenue and I intersection design of Boone Avenue. The selected design will be included in plans and specifications for bidding. From a safety, police enforcement, and engineering i perspective the center left turn lane for the roadway design in 36t~ Avenue and traffic signal at the intersection of Boone Avenue (Option A) is recommended. Municipal and State Aid Standards, however, will likely approve both design options and the funding. 5. The sidewalk on the north side shall be 5 feet wide concrete, while the sidewalk on the south side shall be 8 feet wide concrete to satisfy bike trail requirements. However, recent discussions with the Cities of Crystal, Golden Valley, Robbinsdale and Plymouth i and Hennepin County have indicated that portions of 36th Avenue may be designated a regional trail link. Therefore, those portions designated a regional trail shall be 10' wide. 6. The sanitary sewer/water main reconstruction shall be reviewed further with City staff to i insure all needed improvements for utilities are included with the street reconstruction. 7. The storm water improvements off-road shall be reviewed with affected property owners to finalize the storm sewer design. The storm sewer design shall also be reviewed by Bassett Creek Watershed. The need and estimated cost to clear the channel from Northwood Park to Winnetka Avenue through the wetland area shall be reviewed. In the event it is determined that cleaning/dredging shall happen with this project, further II review with the DNR is required. 8. The roadway design for Boone Avenue from Boone Circle to Aquila Avenue is intended I I to improve access and boulevard frontage for the abutting residential property owners. At this time the abutting property owners feel very strongly that the existing roadway i 36m Avenue 10 Street Irnprcvements design should not change and that a traffic signal will not provide an improvement. In addition, they also feel that the inside lane-especially Boone Avenue southbound should ~-' be restricted to right turn only. Initially (1981) the inside lane was stripped both as a thru and right turn lane. However, since the initial stripping, the right mm designation has only been provided. The purpose of designating the inside lane both as a thru lane and right turn lane is to improve the capacity of the intersection, which will minimize delays. From an engineering standpoint, based on traffic volumes, turning movements, and pedestrian movement the intersection will function much more efficiently and safer for pedestrians with a traffic signal than a 4-way stop. Wan'ants for a traffic signal at Boone Avenue have been met based on studies done in the early 1980's and 1990's. 9. A traffic study was done at the intersection of 36th Avenue and Jordan/Hillsboro Avenue in the middle 1980's. The study concluded that a traffic signal did not meet warrants at this intersection due to low traffic volumes in Jordan/Hillsboro Avenue. This report assumes conditions have not changed. Therefore, a traffic signal is not proposed. The existing intersection of 36th Avenue and Jordan/Hillsboro Avenue is proposed to remain a four-way stop. 10. Special assessments prepared for abutting property owners shall be reviewed in accordance with New Hope's Assessment Policy and legal requirements. Projects previously assessed to properties abutting this project include Boone Avenue Overlay, Project No. 411, in 1988-89 and 36th Avenue Widening at Jordan/Hillsboro Avenue, Project No. 425, in 1987. The Boone Avenue Overlay in 1981, project No. 369, was not assessed. 11. The burying of overhead electric shall be reviewed with NSP to determine the cost and benefit. If it is determined that the overhead electric is to be buried an agreement between NSP and New Hope will be required. A further review with US West and cable TV (Media One) will also be required. 12. Streetscape improvements assume an estimated budget amount of $10,000, which includes boulevard trees and planting beds. Additional street/pedestrian lighting is not included. The location and type of improvements have not been determined. Therefore, if additional streetscape improvements are to be included further review is required. 3~''~ Avenue 11 Street Improvements calming techniques presented near the intersection of 36t~/Boone 13. Traffic have been Avenues in accordance with New Hope's Traffic Management Policy. Their estimated costs have not been included in the project cost. If all, a portion, or other techniques are to be considered, the project scope/cost will change. 14. The project financing assumes revenue sources from Municipal State Aid, Special Assessment Bond, and Water/Sewer. City staff Shall perform a fiscal review to insure that all revenue sources have been properly noted. 15. The proposed project .schedule is summarized below: Present Feasibility Report September 27, 1999 Accept Feasibility Report/Schedule Public Hearing November 8, 1999 Public Hearing/Authorize Plans/Specifications December 13, 1999 Approve Plans/Specifications for Bidding October 2000 Receive Bids/Schedule Assessment Hearing November 2000 Assessment Hearing December 2000 Award Contract January 2001 Begin Construction March 2001 Substantial Completion October, 2001 Final Completion (Bituminous Wear Course/Restoration) July, 2002 As noted, the project construction is not proposed until the 2001. year I 36th Avenue Street irnprouem, e~ts 12 I Discussion The existing condition and proposed improvements of streets, curb and gutter, water main, storm sewer, and sanitary sewer included in the following sections. Street The existing roadway is generally 44 feet Wide except for a 50 foot wide segment between Hillsboro Avenue and TH 169, a 48 foot wide section at Boone Avenue, and a 60 foot wide segment immediately west of Winnetka Avenue. The 60 foot wide segment west of Winnetka Avenue was recently improved as part of the 36th Avenue Street Improvement Project east of Winnetka Avenue and provides a center left turn lane. The current street facility provides for one traffic lane in each direction with parking lanes on each side of the ~street as shown on Figure 3, except at Winnetka Avenue, Boone Avenue, and west of Hillsboro Avenue. Sidewalk also exists along each side of 36t~ Avenue separated by a grassed boulevard. The existing street section is shown on Figure 3. Braun Intertec completed a pavement evaluation of 36th Avenue in 1997. The evaluation shows that there is need for 51% full street reconstruction, 39% bituminous overlay and 10% seal coat. The pavement evaluation gives the street an overall rating of "poor". The "poor" condition rating recommends street reconstruction. A bituminous overlay was constructed in 1981 from Winnetka Avenue to Hillsboro Avenue. The bituminous overlay was constructed over the existing concrete gutter except at Boone Avenue where both 36th Avenue and Boone Avenue were widen a short distance from the intersection to accommodate four traffic lanes (2 lanes in each direction), which included a four way stop. The average daily traffic volumes experienced in 36~h Avenue from Winnetka Avenue to TH 169 have been stable for many years. It is not expected that these volumes will increase or decrease to any substantial degree in the near future. However, it should be noted that traffic counts are 3~h Avenue 13 Street Improvements typically taken on Tuesday through Thursday to represent an average. Staff and residents feel the peak volumes have increased. The average annual daily traffic (AADT) volumes are shown in Table 1 and is provided on MnDOT Municipal State Aid traffic flow maps, latest version 1995 Table 1. Average Annual Daily Traffic Volume AADT LOCATION 12,800 Between the east TH 169 ramps and Hillsboro Avenue 9,000 West of Boone Avenue 10,000 Between Boone Avenue and Winnetka Avenue 10,500 East of Winnetka Avenue The hourly capacity of a roadway lane for an undivided facility such as 36th Avenue ranges from 600 to 900 vehicles. For analysis purposes, the median value of 750 vehicles per hour per lane will be utilized. The average daily traffic figure of 10,000 vehicles along 36th Avenue will experience approximately 1,000 vehicles in the peak hour, which is 10% of the peak hour. Of this total, a directional distribution of 60/40 is estimated. This provides a peak direction hourly volume of 600 vehicles along 36th Avenue, which is the low end of the capacity, when delays would be expect to begin. Accident data for 36th Avenue North has been obtained from MnDOT. The data is for the most recent three-year period that MnDOT has available at this time. The three-year period is from 1995 through 1997. During that time period there have been 35 reported accidents along 36th Avenue from Hillsboro Avenue to Winnetka Avenue. The three-year average accident rate for this section of 36th Avenue is 3.67 accidents per 1 million vehicle miles of travel. The state average is 3.21 accidents per 1 million vehicle miles of travel, which implies the accident rate on 36th Avenue is slightly above the state average. Il There are two design options, as shown on Figure 3, proposed for the roadway reconstruction in i. 36th Avenue. Option A, as shown on Figure 3 and 4, is to provide for a three-lane roadway design; one lane in each direction and a center turn lane. The existing roadway width would be f 36tn Avenue Street Improvements 14 reduced from 44 feet wide to 40 feet wide. However, at four locations an 8-foot wide parking lane would be provided on either the north or south side, depending on where existing homes abut and take access to 36th Avenue. The parking lane locations are shown on Figure 4. Option B provides for maintaining the existing roadway width (44 feet wide), one driving lane in each direction and a parking lane along both sides (north and soUth). From an engineering standpoint based on traffic volumes/turning movements, Option A is the preferred option. Option A does provide more capacity, which allows 36th Avenue to function more efficiently, and safer because a protected left turn lane has been added. It should be noted that 36th Avenue east of Winnetha Avenue to TH 1-00 is a four lane roadway (2 lanes each direction) and carries similar traffic volumes as this section of 36th Avenue from Winnetka Avenue to Hillsboro Avenue. Typically the progression of collector roadway design based on traffic volume is as follows: Roadway Design AADT Range One lane Each Direction 0-10,000 One Lane Each Direction/Center Left Turn Lane 8,000-15,000 Two Lane Each Direction 10,000 - + Although the preferred design is a protected center left mm lane, Municipal State Aid Standards will likely approve Option B, which is the existing roadway design (one lane each direction, parking lane both sides). The proposed street section including new B618 concrete curb and gutter is as follows: 1 V2" Bituminous Wear 2" Bituminous Binder 3" Bituminous Base Course 8" Class 5 Aggregate Base 12" Granular Base 3~h Avenue 17 Street irnproverne~,ts I i However, if 36th Avenue can be closed completely during construction (except for local traffic) the existing bituminous surface/aggregate base will be reclaimed and utilized to satisfy the i granular base and aggregate base requirement. Sidewalk/Trail A 5 foot wide concrete sidewalk presently exists along both sides of 36th Avenue. The distance between the existing sidewalk and back of the curb and gutter varies between 5 and 12 feet. The condition of the sidewalk and pedestrian ramps was reviewed as part of the 1997 Sidewalk Improvement Program for future reconstruction projects. Ten percent of the sidewalk was identified for replacement and 35 percent of the pedestrian ramps require replacement to meet the American Disabilities Act Requirements. With both street design options the sidewalk would be reconstructed. A 5-foot wide concrete walk would be constructed on the north side of the street. On the south side of the street an 8 foot wide concrete sidewalk would be constructed, separated by an 8 foot wide boulevard from the roadway except where a parking lane is provided. The 8 foot wide sidewalk will satisfy requirements for a bike trail. It is also felt that the 8 foot wide concrete sidewalk on the south side of 36th Avenue will replace trail requirements proposed in 42nd Avenue by Hennepin County. The trail requirements in 42aa Avenue from Winnetka Avenue to TH 169 and over TH 169 are difficult and costly to satisfy due to right-of-way constraints and traffic volumes. Traffic Control Boone Avenue In 1981 a traffic study was done at the intersection of Boone Avenue to determine if a traffic signal was justified based on warrants. Although the traffic study justified the installation of a traffic signal in 1981, it was not constructed. Instead 36th Avenue and Boone Avenue were widened a short distance each direction from the intersection to provide 4 traffic lanes (2 lanes each direction) and a four-way stop. The additional traffic lanes were added as an attempt to improve the capacity of the intersection. In 1995 a similar traffic study was done and warrants for a traffic signal were again met. 3~n Avenue 18 Street Improvements There are two design options proposed at the intersection of 36th Avenue and Boone Avenue. Option A provides for installation of a traffic signal that would include one lane of traffic in each direction and a protected center left turn lane. The second design alternative (Option B) provides for maintaining the existing design, which includes a four way stop and 4 traffic lanes (2 lanes in each direction). From an engineering standpoint based on traffic volumes/turning movements the installation of the traffic signal is the preferred option. The traffic signal will allow the intersection to function more efficiently, safer, and provide more capacity. Typically, a four way stop intersection functions best when traffic volumes in opposite directions are similar. In the case of this intersection, the traffic volumes on Boone Avenue (5,000 AADT) are nearly half the traffic volumes in 36th Avenue (10,000 AADT). In addition, pedestrians typically find an intersection with four traffic lanes less comfortable to cross if it is controlled by a four way stop verses a traffic signal. An accident analysis done by New Hope Police compared the accident rate at the intersection of 36th Avenue/Winnetka Avenue to the accident rate at 36th Avenue/Boone Avenue. The accident analysis found the accident rate at Boone Avenue to be greater than Winnetka Avenue even though the traffic volumes in Winnetka Avenue are greater than Boone Avenue. The lower accident rate at 36th Avenue/Winnetka Avenue is likely attributable to the fact that a protected left turn lane and a traffic signal exist when compared to Boone Avenue. As part of the informational meeting process, the residents directly abutting Boone Avenue north of 36th Avenue do not favor the traffic signal option. The reasons for not favoring the traffic signal option are as follows: · Traffic will move faster along 36th Avenue and Boone Avenue. A four way stop requires all vehicles to stop. · The traffic signal will make driveway access onto Boone Avenue more difficult especially during a green light favoring Boone Avenue. I 36~ Avenue 19 Street Improvements ! · The traffic signal is not considered an amenity in a residential area similar to the area abutting 36th Avenue/Boone Avenue. Traffic signals typically exist in commercial/industrial areas. · The steep grade in Boone Avenue north of 36th Avenue favors a four way stop because traffic will move slower to and from the intersection because all traffic must stop. The traffic signal could allow vehicles to move faster through the intersection as they move down the steeper grade or accelerate up the grade to make a green light. Although the above arguments favor a four way stop verses a traffic signal, many of the arguments can be argued the other way in favor of a traffic signal: · Traffic engineers and police enforcement officers feel speed limits are respected more if intersections are controlled by traffic signal verses four way stops, especially if traffic volumes in opposite directions are dissimilar as they are in Boone Avenue (5,000 AADT) verses 36th Avenue (10,000 AADT). · The driveway access for the abutting homes on Boone Avenue north of 36th Avenue is difficult because of the steep grade and peak traffic volumes on Boone Avenue. It is likely a traffic signal will provide gaps in the traffic allowing easier driveway access onto Boone Avenue. · The area abutting 36th Avenue/Boone Avenue is residential, therefore more pedestrian traffic is likely than in industrial/commercial areas. It is typically felt that pedestrians feel safer crossing an intersection with a traffic signal verses a four way stop including four traffic lanes. Robbinsdale School District representatives from Sonneyson Elementary School do support a traffic signal. Streetscape Streetscape improvements provide for boulevard tree plantings and planting beds. The amount budgeted is $10,000. The location and type of plantings has not been determined. The budget and maintenance for streetscape improvements must be reviewed with staff to determine the extent and if streetscape improvements should be constructed. Additional street/pedestrian lighting is also not included at this time. 36~ Avenue 20 Street Improvements Private Utilities Private utility improvements provide for burying all overhead utilities including electric by Northern State Power, telephone by US West, and cable TV by Media One. Agreements and costs will have to be finalized with each owner if burying of overhead utilities is approved. Traffic Management/Calming Techniques New Hope's Traffic Management Policy provides techniques for traffic calming. Due to concerns with speeding and other traffic enforcement issues along 36th Avenue/Boone Avenue, proposed traffic calming techniques are shown on Figure 5, which could be considered in 36th Avenue and Boone Avenue. The techniques include median islands along 36~h Avenue and chokers along Boone Avenue. The Traffic Management Policy suggest that each of these techniques are effective; however, each technique will have an impact to abutting property owners. The median island will restrict driveway access to one lane of traffic while the chokers will potentially limit on street parking. The center medians will provide additional cost while the chokers will not unless significant streetscape/plantings are included in the green space area. The estimated cost for each center median, based on sodded and planted (trees/shrubs) islands, is summarized below: Sodded Center Median Concrete Curb 900 LF @ $10.00/LF $9,000.00 Irrigation Lump Sum 8,000.00 Sod 500 SY @ $4.00/SY 2,000.00 Total $19,000.00 Planted Center Median Concrete Curb 900 LF @ $10.00/LF $9,000.00 Irrigation Lump Sum 8,000.00 Plantings Lump Sum 8,000.00 Total $25,000.00 3~h Avenue 21 Street Improveme/~ts The traffic calming techniques are not included in the project at this time, If the above techniques or modified versions are included, the project scope/cost would need to be modified. Water Main Cast iron water mains exist in 36th Avenue and were installed in the mid 1960s through the early 1970s (all existing water mains are 8" and 6" in diameter). Water main breaks and leaks have occurred in the section of water main from Boone Avenue to Decator Avenue causing inconvenience and maintenance costs to the City of New Hope. It is proposed to abandon this section of existing 8-inch water main, as shown on Figure 6, and install a new 8-inch ductile iron water main. Old hydrants and gate valves will be replaced as needed. Water services will also be replaced as needed with new copper water service pipe from the new main to the property line. Damaged curb boxes will also be replaced as needed. Sanitary Sewer The existing sanitary sewer has been televised and all the existing manholes have been inspected. The existing pipe and structures appear to be in good condition. However it is proposed to replace the existing sanitary sewer from Wisconsin Avenue to Virginia Avenue, as shown on Figure 7. It is also proposed to replace and repair the existing sanitary sewer services as needed. Storm Sewer Existing storm sewers within or near the 36th Avenue project area serve approximately 258 acres. All of the storm runoff from this area eventually reaches Northwood Lake and the wetland/channel east of Boone Avenue. The Surface Water Management Plan describes improvements recommended for storm sewer replacement, new storm sewer construction and storm water pond construction. The storm sewer improvements for the area in and around 36th Avenue is shown on Figure 8. For storm water quantity, it is proposed that the storm water from the low point at the intersection of Ensign Avenue and 35th Avenue be rerouted through a new 30-inch storm sewer 3~n Avenue Street Improvements 22 to the ravine west of St. Joseph's Catholic Church. The proposed storm sewer will discharge to a ponding area proposed in the St. Joseph Catholic Church ravine, near the downstream end of the St. Joseph's Subdrainage Area. The proposed pond will meet water quality and water quantity requirements laid out in New Hope's Surface Water Management Plan. Current runoff volumes have resulted in erosion in the ravine from the proposed storm water pond to 36t~ Avenue. Pond construction on the St. Joseph site will require the removal of trees in the proposed ponding area. Overall, the improvements would include wetland and upland plantings designed as an amenity to the ponding area. A storm sewer outlet pipe from the St. Joseph pond would be constructed in the ravine through the depressed area immediately upstream of the existing 36- inch storm sewer crossing in 36th Avenue. This would eliminate further erosion in the ravine and control storm water flow from the pond. The storm water improvements proposed on St. Joseph property will require coordination and approval from representatives of St. Joseph Catholic Church. The existing 21 inch storm sewer from Hidden Valley Park and neighboring residential properties would be extended so it would discharge into the proposed pond on the St. Joseph site. The 36 inch RCP storm sewer crossing below 36th Avenue conveying storm water from the ravine west of St. Joseph's Church and east of Decatur Avenue was upgraded in 1994. However, a portion of the existing pipe was not upgraded immediately under 36th Avenue. Approximately 40 feet of the culvert is 36 inch steel pipe. It is proposed that this old, deteriorated steel pipe be removed and reconstructed with 36-inch RCP in conjunction with the street and water main improvements in 36th Avenue. The Xyon Subdrainage Area includes a 21 inch and 36 inch storm sewer crossing in 36t~ Avenue east of the intersection of Northwood Parkway and 36th Avenue. The Surface Water Management Plan recommends that this crossing be joined into one 48inch crossing. At the end of the 48 inch crossing a water quality improvement pond would be constructed adjacent to the Northwood Park wetland between Northwood Park and Winnetka Avenue. 36~ Avenue 23 Street Irnprovem6nts Permits Permits are required from various agencies for the construction of this project. They include: · Minnesota Department of Health (MDH) for the construction of water main; · Minnesota Pollution Control Agency (MPCA) for the construction of sanitary sewer and storm sewer.; · Bassett Creek Watershed review for construction of storm water improvements. Right-of-Way / Easement Right-of-way along 36th Avenue presently exists as a 40 foot wide half right-of-way except at four (4) parcels where the half right-of-way is 33 feet wide. The proposed roadway/sidewalk design can be accomadated in the existing right-of-way provided the boulevard width at these location is reduced from 8 feet wide to either 6 feet wide or 4 feet wide. During the design phase, the right-of-way requirements at these locations shall be reviewed further to determine if the boulevard requirements can be reduced or if additional right-of-way is required. The four (4) parcels where additional right-of-way and approximate area of additional right-of-way may be required is summarized below. Existing Proposed Approximated Parcel ID 1/2 R.O.W. 1/2 R.O.W. Additional R.O.W. Section 18 SE % 44-0006 (8000 36th Ave) 33' 40' 1,720 S.F. 44-0007 (8100 36th Avenue) 33' 40' 2,170 S.F. Section 19 NE IA 21-0001 (St. Joseph) 33' 40' 3,990 S.F. 21-0003 (8916 36th Ave) 33' 40' 700 S.F. 36~h Avenue 24 Street Improvements The storm water improvements proposed on St. Joseph property require coordination and easements. The utility/pond easement requirements will be dependent on the final design, however, the approximate area is estimated at 40,000 square feet (SF). 3~h Avenue Street Improvements 25 ~ ~,~ COUNCIL Originating Depa~,,..ent Apprm~d for Agenda Agenda Section Development & Community Development, ~ 10125199 Planning Item No. By: Kirk McDonald By:. 8.3 DISCUSSION REGARDING HOSTERMAN MIDDLE SCHOOL ACTION Staff requests to discuss with the City Council the proposed closing of Hosterman Middle School by the District #281 School Board. POLICY/PAST PRACTICE The City has had a good cooperative working relationship with District #28`1 in regard to the school facilities located in New Hope, and the City desires to keep the lines of communication open on the proposed future uses of School District facilities and sites within the City. BACKGROUND Per the attached article from the October 13" edition of the Sun Post, the District #28`1 School Board is proposing to close Hosterman Middle School in the spring of 2000. Staff requests to discuss with the Council how the City can prepare for this potential closing and to discuss potential future uses for the facility and/or the site. The middle school is located at 5530 Zealand Avenue North, between 56'h and 55" Avenues. The propert7 is currently zoned R-`l, single-family residential. Surrounding land use and zoning include Winnetka Elementary School to the east (R-'I); Masonic Home/North Ridge and apartments to the west (R-4 and R-5); multiple family apartments, some single family and commercial to the north (R-I, R-3, R-4, and B-2); and Begin Park and single family homes to the south (R-I). The City's records indicate that the school was built in '1962. The building contains 176,000 square feet, and is a one story masonry structure with a fiat roof. The total land area for Hosterman is 903,000 square feet, or 20.7 acres. The athletic fields (undeveloped area) occupy approximately 60% of the site, and the building/parking areas occupy about 40% of the site. Staff recommends that the Council coordinate closely with the District on the potential vacating of the building, and/or sale of the site. Staff recommends that the Council consider directing staff to work with the City Planning Consultant to develop concept plans for the future redevelopment of the site. The property is located in an area where tax increment financing funds could be spent for redevelopment purposes. MOTION BY ,, ,~,COND ~ ,, TO: RFA-O0~I Request For Action Page 2 FUNDING There are funds budgeted in the 1999 EDA budget for special development studies. ATTACHMENTS Vicinity Plan Site Plan/Data TIF Map Sun Post Article iR-0 R-3 B-2 v HOSTERMAN JR HIGH SCHOOL WINNETKA ELEMENTAR SCHOOL -. ~,,:. : ' i O~ SITE DATA Site: Iiosterman Junior High School Land Area = 903,01)0 af { 211,7 acres I "Undeveh)ped Area" { a(hletic fields] = 60 % Building Area = 176,00(I sf [ 4 acres ] = 19 % Year Built: 1966 Building ~pe: One Story masonry sch~l with fiat roof ~ning Dislrict: R-l, Single Family Street Frontages: 55~ Ave., 56,h Ave. and Zealand Ave. cou c Origmattng Depa.~ t~ent ~p~d for ~e~ ~daueve~opmen[Sec¢~n~ communi~ Development. 10/25/99 Planning Parks & Recreation It~ No. ~ Kirk McDonald, Shari French ~ 8.4 RESOLUTION APPROVING THE COOPER GYM ~PANSION DEVELOPMENT AGREEMENT AND FACILI~ USE AGREEMENT (IMPROVEMENT PROJECT ~62) ACTION REQUESTE~ Staff requests that the Ci~ Council approve the a~ached resolution approving the Cooper Gym Expansion Development Agreement and Facili~ Use Agreement, which was prepared by the City A~orney. Final dra~ copies of each of the Agreements are also enclosed. POLICY/PAST P~CTICE The Ci~ Council's direction to the staff in the past has been to prepare Development and Facility Use Agreements that outline the te~s and conditions unaer which the Ci~ and School District will pa~icipate in this project. BACKGROUND In April, the Ci~ Council met with representatives of the School District at a Ci~ Council Worksession to discuss options to add gyms to Cooper High School, after staff had met with District representatives earlier in the year to discuss communi~/school district needs and design options. The Council was favorable toward the proposal and directed that a public hearing be scheduled to consider modi~ing the reaevelopment and ~x increment financing plans to include the Cooper High School prope~ in an area where tax increment financing (TIF) ~nds could be utilized for communi~ center and recreational purposes. On June 28~, said public hearing was conducted and the Council and EDA approved resolutions modi~ing the redevelopment and ~x increment financing plans to allow the expenditure of up to $3.25 million on the Cooper gyms expansion project, which also includes the reconstruction of tennis couas on the site with costs being prorated be~een the ~o entities. The approval of the resolutions authorized the use of TIF funds for the project, but did not commit the Ci~ to the project. Prior to a financial commitment, ~o additional steps needed to be taken: 1. Approval of the plans and zoning code approval for the expansion, and 2. The appropriate agreements needed to be araffed. M~ON ~ ~O~ ~ ,, ~: .......... I ~A~I ~ Recluest For Action Page 2 In July, the plans were reviewed by the Planning Commission and the Commission recommended approval of the conditional use permit amendment request to the City Council. On August gt~, the City Council accepted the recommendation from the Commission and approved the ptans and the CUP amendment request. Subsequent to the approval, staff and the City Attorney have been coordinating with the School District on the appropriate agreements. One of the issues that the City Council wanted addressed prior to consideration of the Cooper Gyms Agreement was the Ice Arena Rental Agreement. The School District approved an agreement acceptable to the City on October 4"~, and the City Council approved the agreement on October 11t~. With all of the above steps being completed, the City Council is now being requested to approve the final two agreements for the Cooper gyms project. Per the City Attorney's correspondence, the agreements outline the City/EDA's intent to provide Independent School District No. 281 with a $3,250,000 grant, primarily for the addition of new gyms at Cooper High School. In consideration for the contribution, the School District will provide the City with priority use of the gym facilities. The agreements are further defined by the City Attorney as follows: DEVELOPMENT AGREEMENT The Development Agreement sets forth the terms and conditions under which the $3.25 million grant will be disbursed to the School District during the construction phase of the project. The Development Agreement indicates that so long as the project is constructed in accordance with the construction contract and plans approved by the City and the Facility Use Agreement is signed by the School District, the School District will not be required to repay any portion of the grant. Aisc, the Development Agreement limits the City's contribution to no more than $3.25 million and from that amount, the City will pay for all of its engineenng and legal costs, bond issuance costs, concession room equipment costs, and music equipment and sound system costs which will be incorporated into the project. FACILITY USE AGREEMENT The Facility Use Agreement sets forth the City's right to use the expanded gym facility for a 40-year term. Section 1.03 of the Facility Use Agreement describes how the City will be able to use the facility. The City will have the primary use of the facility during those times that school is not in session. This will be primarily on school days from 5:30 p.m. until 6:00 a.m. and at all times on Saturdays, Sundays and summer vacations. The Facility Use Agreement also sets forth a repayment schedule in Section 5.02 in the event the School District terminated this agreement prior to the expiration of its 40-year term. The 40- year term is established by Section 1.02 of the Agreement. This length of time was used in that 40 years is considered the economic life of the facility for accounting purposes. The City Attorney and Director of Parks and Recreation will be present at the City Council meeting to review the Agreements in more detail and answer questions. A representative from the School District will also be present. Staff recommends approval of the resolution approving the Agreements. ATTACHMENTS Resolution October 19th City Attorney correspondence Development Agreement Facility Use Agreement RESOLUTION NO. 99- ., RESOLUTION APPROVING THE COOPER GYM EXPANSION DEVELOPMENT AGREEMENT AND FACILITY USE AGREEMENT BE IT RESOLVED by the City Council of the City of New Hope as follows: WHEREAS, the Economic Development Authority in and for the City of New Hope (hereafter "EDA") and the City of New Hope (hereafter "Ciw") both adopted resolutions at their respective June 28, 1999 meetings approving a 1999 amendment to the master modification to redevelopment plans and tax increment financing plans initially approved on July 25, 1994, and WHEREAS, the purpose of the 1999 amendment was to allow for the payment of public redevelopment costs of the City and EDA for construction of a gym addition/expansion to Cooper High School located at 8230 - 47~h Avenue North in the City of New Hope with tax increment revenue to be derived from the EDA's TIF districts, and WHEREAS, the City and EDA have agreed to contribute an amount not greater than $3,250,000 to the Independent School District No. 281 (hereafter "ISD 281 ") for construction by ISD 281 of a gym expansion at Cooper High. School, and WHEREAS, in consideration for this financial contribution by the City and EDA, ISD 281 will agree to enter into a Cooper Gym Expansion Development Agreement (attached hereto as Exhibit A) and a Facility Use Agreement (attached hereto as Exhibit B), and WHEREAS, the Cooper Gym Expansion Development Agreement sets forth the terms and conditions regarding the manner in which the $3.25 Million TIF fund will be used to construct the gym expansion project and the Facility Use Agreement sets forth the manner in which the City will be permitted to use the gym expansion during certain periods when it is not in use for school purposes, and WHEREAS, the respective bodies of the City, EDA and ISD 281 have reviewed Exhibits A and B attached to this Resolution and have determined that the attached exhibits accurately set forth the understanding and agreements between the respective parties. NOW, THEREFORE, BE IT RESOLVED: -1- 1. The City Council or the City of New Hope hereby approves the Cooper Gym Expansion Development Agreement and the Facility Use Agreement attached hereto as Exhibits A andB. 2. That the Mayor and City Manager are hereby authorized and directed to sign the documents and that the City Manager is hereby authorized and directed to take all necessary steps to implement the terms and conditions of the Cooper Gym Expansion Development Agreement and the Facility Use Agreement. Dated the ~ day of , 199 W. Peter Enck, Mayor Attest: Valerie Leone, City Clerk -2- ' JENSEN SWANSON & SONDRALL, P.A. Attorneys At / · BROOKLYN pARK. ~IY~F_,SO'FA ~4~-1999 TELEPHON'E (612) 424-8811 · Tga~FAX (612) 493-5193 E-MAIL j~s(~jsspa.com C, OgUO~ L. Jr~-m~ JU~ A. TroLL o~coussr~ October 19, 1999 Kirk McDonald Communivy Development Director City of New Hope z1401 Xylon Avenue North New Hope, ~ 55428 ]Re: Cooper Gym Expansion Development Agreement and Facility Use Agreement Our Pile No.: 99.11231 Dear Kirk: Please find enclosed for consideration at thc October 2.5, 1999 Council and EDA meetings two proposed Resolutions Approving the Cooper Gym Expansion Development Agreement and Facility Use Agreement. Also enclosed are proposed drafts of each agreement. As you know, it is the City/EDA's intent to provide thc Independent School District No. 281 with a $3,250,000 grant for the expansion of the Cooper High School Gym. It is my understanding these dollars will come from the City/EDA's existing tax increment 6nsncing funds. In consideration for the City's contribution, Independent School District No. 281 will provide the City with a priority use of the expanded Cooper Gym pursuant to the terms of the Facility Use Agreement being approved by the enclosed Resolution. Basically, the Development Agreement sets forth the terms and conditions under which the $3.25 Million grant will be disbursed w the School District during the consu'uclion phase of the project. The Development Agreement indicates that as long as the project is consmw.~l in accordance with the construction conwact and plans approved by the City and the Facility Use Agreement is signed by thc School Dislrict, the School Distric~ will not be required to repay any portion of the grant. Also, thc Development Agr¢cmcn~ limit~ the City's conn'ibufion to no more than $3.25 Million and from that amount, the City will pay for all of its engineering and legal costs, bond issuance costs, concession room equipmcm costs, and mus/c equipment and sound sysu:m costs which will bc incorporated into the project. October 19, 1999 Page 2 The Facility Use Agreement sets forth thc City's right to use the expanded gym fa~:ility for a 40 year term. Section 1.03 of the Facility Use Agr~ment d~scribes how the C:ty will be able to use the facility. Basically, the City will have the primary use of the facility during those times that s~hool is not in session. This will I~ primarily on school days from 5:30 p.m. until 6:00 a.m. and at all times on Saturdays, Sundays and summer vacations. Thc Facility Use Agreement aisc' sets forth a repayment schedule m Section 5.02 in thc event the School District tnrminat~! this agre~mer.: Drior to the expiration of its 40 year term. The 40 year term is established by Section 1.02 of the Agreement. This length of time was used in that 40 years is considered the economic life of thc facility for accounting purposes. If you have any questions or comments regarding the Resolution, the enclosed documents or this letter, please contru:t me. Very tnfly yours, Steven A. Sondrall J£NSEN SWANSON & SONDRALL, P.A. Enclosures cc: Shari I:rench Dan Donahue Va]erie Leone CNH11231-01.lOsk L~r. qs~d mm rev~s~ aaeumem £.%00CL // ~' Con~ateR~e foun~ 3 c~Lqi~e~ s ) m t~' COOPER GYM EXPANSION DEVELOPMENT AGREEMENT THIS AGREEMENT is made and entered into on .1999. by and be~veer. INDEPENDENT SCHOOL DISTRICT NO. 281, an independent school district created an~ existing under the laws of the State of Minnesota (hereinafter referred to as "ISD 281"), with its principal place of business located at Education Sen'ice Center, 4148 Winnetka Avenue North. Ne'er Hope, MN 5542%1288, the CITY OF NEW HOPE, a Minnesota Municipal Corporation (hereinafter referred to as "City") and the ECONOMIC DEVELOPMENT AUTHORITY in and for the City of New Hope, a Minnesota municipal corporation (hereinafter referred to as "EDA") with their principal place of business located at 4401 Xylon Avenue North, New Hope. MN 55428. RECITALS WHEREAS, the EDA and the City both adopted resolutions at their respective June 28, 1999 meetings approving a 1999 amendment to the Master Modification To Redevelopment Plans and Tax Increment Financing Plans initially approved on July 25, 1994; and WHEREAS, the purpose of the 1999 amendment is to allow for the payment of public redevelopment costs of the City and EDA for construction of a gym addition/expansion to Cooper High School located at 8230 - 47th Avenue North in the City of New Hope with tax increment revenue to be derived from the EDA's TIF Districts; and WHEREAS, the City and EDA have agreed to contribute an amount not greater than $3,250,000.00 to lSD 281 for construction by lSD 281 of a .gym expansion and tennis court addition at Cooper High School i~, .,.,.~,,.~,,.~ ..,., , to_oether with certain related site improvement and other work (e011ec,tiveiv, ,the "Project"), all as more fully described, and set forth in the plans and specifications attached hereto as Exhibit A (together with an3' and all exhibits, amendments, modifications and change orders thereto, collectively referred to herein as the "Plans"); and WHEREAS, in consideration for this financial contribution by the Ci.ry and EDA. lSD 281 agrees to enter into a Facility Use Agreement with the City. in the form attached as Exhibit B (the "Facility Use Agreement") permitting the City to have primary use of the gym expansion during certain periods when the gym expansion is not in use for school purposes as set forth in the Facility Use Agreement; and WHEREAS? in further consideration for the Ci~"s and EDA's financial contribution, ISD 281 agrees to use the ~unds and construct the gym addition/expansion in accordance with the terms and conditions of this Cooper Gym Expansion Development Agreement. ARTICLE I Definitions Section 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set out respectively after each (such meanings to be equally applicable to both the singular and plural forms of the terms defined): (a) "Advance" - In each instance, an advance made or to be made by the Ci~' andJor EDA to ISD 281 pursuant to Article II hereof. (b) "Architec. t" - Wold Architects and Engineers, which will administer the Construction Contract Documents. (c) "Completion Date" - June 1,2001 (unless ISD 281 shall extend such date in writing, then the Completion Date shall be such later date), being the date of required completion of the ProJect. (d) "Construction Contract" - The construction contract to be entered into between ISD 281 and the General Contractor regarding the construction of the ProJect. (e) "Construction Contract Docume. nts"- The document or documents, including without limitation the Construction Contract and the Plans, which, together with any and all exhibits, amendments, modifications and change orders thereto, collectively form the contract or contracts between ISD 281 and the General Contractor concerning construction and/or rehabilitation of the ProJect. (f) "Contribution Amount" - This term shall have the meaning ascribed to it in Section 2.01 below. (g) "Draw Requisition" - The draw requisition, in the form attached hereto as Exhibit C, which is to be submitted to the City when an Advance is requested, and which is referred to in Section 2.02 hereof. (h) "Engineer" -; KARGE, S-FAULCONBRIDGE, INC., a Minnesota corporation. (i~ "Event of Default (CiwfEDA)" - One of the events of default specified in Section 6.01 (b) hereof. (-i-)(i) "Event of Default (lSD 281y~ ': 6he 0fthe events of default specified in Section 6.01 (a) hereof. (:j-)~ "Facilir,' Use A~,reernen~t" - This term shall have the meaning ascribed to it in the Recitals above. (~(l) "General Contractor" - The person or entity selected by ISD 281 to serve as the general contractor for the Project. (-'Df m) "Inspectin~ Official" - The City Building Official or Ci~' Engineer, Bonestroo, Rosene, Anderlik & Associates. (-rrr)~n) "Plans." - This term shall have the meaning ascribed to it in the Recitals above. - -. '- -'~--' ~ ,,~,~./o) "Proieet" - This term shall have the meaning ascribed to it in the Recitals above, (-~(p) "Real Estate" - The land upon which the Project is located, described on Exhibit D attached hereto, commonly known as Cooper High School located in the City of New Hope. ~:r)ia) "Subcontractor" - Any person, other than the General Contractor, who shall be engaged to work on, or to furnish materials and supplies for, the Project. ARTICLE II Commim~ent ~o Make Contribution Section 2.01 City Contribution/Cost Sharing. The City and EDA agree, subject to the conditions hereinafter set forth, to contribute to ISD 281 in an aggregate principal mount not to exceed Three Million Two Hundred Fifty Thousand ($3,250,000.00) (the "Contribution Amount") for construction of the Project. ISD 281 shall not be obligated to repay the City or EDA any portion of this contribution if the Project is completed substantially in accordance with the Plans and the Facility Use Agreement is entered into by the parties, subieet only. to the obligatio, n of ISD 28,1 to pay the Termination Fee in the event of any termination of the Faeili~- Use Agreement in ace. ord.anee with Section $.02(b) thereof. The total construction cost for the Project is estimated at $ . The parties will share the Project costs as set forth in the Project Cost Sharing Schedule attached hereto as Exhibit E. Not withstanding this agreement to share construction costs, in no event will the City be required to contribute more than the Contribution Amount to the cost for the Project. ISD 281 also acknowledges and agrees that the City's costs for those items described in Section 2.01(a) below will be paid from and included as part of the Contribution Amount. ISD 281 further acknowledges and agrees that the costs of ISD 281 for purchase of equipment described in Section 2.01(b) below shall not be paid from the Contribution mount. The net effect of this cost sharing provision is that the entire Contribution Amount wilt not be available to ISD 281 solely for construction costs, but will additionally include those costs described in Section 2.01(a) below. (a) City's Cost.s.. ISD 281 acknowledges and agrees the Ciw intends to sell bonds to finance the Contribution Amount. ISD 281 further acknowledges and agrees the Cit>' intends to make equipment purchases for (i) the concession room to be constructed as part of the Project. and (ii) a music/sound system to be installed as part of the Project. As herein agreed, these costs will be paid from the Contribution Amount. The City's costs to be funded from the Contribution Amount are estimated as follows: (i) general engineering and legal costs - $25,000.00 (ii) bond issuance costs - $75,000.00 (including consultant and bond attorney fees) (iii) all concession room equipment (coolers, freezers, cookers, pop machine, etc.) -$ l 0,000.00 (iv) music equipment/sound system - $5,000.00 The parties agree the referenced costs are estimated and that the actual costs incurred by the City will be controlling to determine the remaining Contribution Amount available to ISD 281 for construction costs. (b) lSD 281 Excluded Costs. lSD 281 further acknowledges and agrees that its costs for the following items will not be funded from the Contribution Amount: (i) Volleyball standards and nets (ii) All tennis nets, wind screens, poles, flags and bleachers for tennis courts (iii) All equipment needed for the ball fields including but not limited to bleachers and scoreboards Section 2.02 Draw. Requisitions. WheneverISD 281 requires an advance hereunder, which shall be no more often than monthly, ISD 281 shall submit to the City a Draw Requisition, duly completed and executed on behalf of the ISD 281, setting forth the information requested therein. Each Draw Requisition shall be certified as true and accurate by the Architect relative to the percentage of work completed on which payment is requested. Each Draw Requisition with respect to construction items shall be limited to amounts equal to (i) the amount of work actually completed, plus (ii) the value of materials and equipment not incorporated in the Project, but delivered and suitably stored on or off the Project site in a manner reasonably acceptable to City, less (iii) any ~ ~m f~mm ~.~mm ~m~mm ,~mmm~ 4 retainage required under the Construction ConU-act (in ~ amount not less than five percent (5%) o£ the contract amount, or portion thereof (except as to Draw Requisitions to fund the retainage in accordance with the Construction Contract)). and (i',') less prior Advances. to the extent such prior Advances consisted of prepayments of any of the foregoing. At the time of submission of each Draw Requisition, ISD 281 shall submit to the Cit3.' the following: (a) A waiver of mechanic*s lien and/or materialman's lien, executed by the General Contractor in the amount of the Iienable costs of the Project payable from the requested advance, together with a waiver of mechanic's lien andy'or materialman's lien, executed b.v each Subcontractor. to which any portion of the immediately preceding Advance ("Prior Advance"), if any, was paid. covering liens for all work done and materials supplied for which disbursement was made from the Prior Advance, in the form reasonably required by the City. (b) Such other supporting evidence as may be reasonably requested by the CiD' to substantiate all payments which are to be made out of the relevant Draw Requisition and/or to substantiate all payments then made with respect to the Project. (c) Satisfactory evidence that all work then requiring inspection by municipal or other governmental authorities having jurisdiction has been duly inspected and approved by such jurisdiction, and that all then required certificates of occupancy and other approvals by municipal or other governmental authorities having jurisdiction have been issued. If on the date an Advance is desired, ISD 281 has performed all of its agreements and complied with all requirements therefore to be performed or complied with hereunder, and the Inspecting Official approves the relevant Draw Requisition, which approval shall not be un_reasonably withheld, the City shall disburse such funds directly to ISD 281 on such date. If the Inspecting Official does not so approve the Draw Requisition, the Draw Requisition shall nevertheless be deemed approved in the event the City fails to notify. ISD 281 in writing of the reason for such disapproval within five (5) business days of either the City's receipt of the Draw Requisition. Section 2.03 City Inspections. City shall have the right but not the obligation, and solely for its own protection, to make such inspections of the improvements as it deems advisable. ISD 281 ac-knowledges that it does not and shall not reply upon any inspections which City may make pursuant hereto. City and its agents, inspectors, and employees may enter upon the Real Estate at any reasonable time to inspect the progress of construction. CiD' is not responsible for seeing that the improvements are constructed in accordance with the Plans, that the improvements contemplated under the Construction Contract Documents will be completed, that sufficient funds will be available for completion, or that the design, engineering details, or architectural features are adequate or appropriate. City shall also not be required to provide architectural supervision of construction or any services related to construction quality control or judgment. All inspections b.~, or on behalf of, the City. in accordance with this Section 2.03 shall be at the City's sole cost and expense, payment for which shall be in addition to, and not as part of, the mount of the Contribution Amount. Section 2.04 Advances Without Receipt of Draw Requisition. Notv, qthstanding anything herein to the contrat3', the City shall have the irrevocable fight at an>' time and from time to time. to apply funds which it agrees to advance hereunder to pay any and all of the expenses referred to in Section 7.04 hereof, all without receipt of a Draw Requisition for funds from ISD 281. ARTICLE III Conditions of Funding Section 3.01 Condition Precedent to Any Advance. The obligation of the City to approve Advances hereunder shall be subject to the condition precedent that it shall have received the following on or before the date of the initial draW request: (a) The Plans. (b) A copy of the fully executed Construction Contract Documents, with such contracts being reasonably acceptable to the City. (c) A sworn construction statement duly executed on behalf of ISD 281, in form and substance reasonably satisfactory to the City, shoWing all incurred and anticipated costs and expenses for construction of the Project. (d) Evidence reasonably satisfactory to the City that all then required permits have been obtained. (e) Copies of, or binders for the delivery of, or certificates evidencing, the policy of fire and extended coverage and comprehensive general liability insurance required under Section 5.01 (c) hereof, with all such insurance in full force and effect. (f) The Facility Use Agreement duly executed by ISD 281. (g) Any and all such other documents and agreements which City deems reasonably necessary to establish that there are sufficient additional funds, after giving effect to the City's Advance and in additiOn to the remainder of the Contribution Amount, to pay for the unfunded portion of the work remaining to be performed under the Construction Contract Documents. Section 3.02 F. urther Conditions Precedent to Any Advance. The obligation of the City to make any Advance hereunder shall also be subject to the following conditions precedent: (a) No Event of Default (lSD 281) hereunder, Or event which would constitute such an Event of Default (lSD 281) but for the requirement that notice be given or that a period of grace or time elapse, shall have occurred and be continuing. ARTICLE Il,; Representations and Warranties Section 4.01 Representations and Warranties of ISD 28.1. ISD 281 represents and warrants as follows: (a) The execution of this Agreement, the Facilit2,,' Use Agreement and any and all other documents referred to herein to which ISD 281 is a part3', are within the powers of ISD 281 and do not violate any provision of law to which lSD 281 is subject. (b) This Agreement, the Facility Use Agreement and any and all other documents referred to herein to which lSD 281 is a party, are the legal, valid and binding obligations of ISD 281 enforceable against ISD 281 in accordance with their respective terms. (c) lSD 281 has title to the Real Estate. (d) The Project will be constructed substantially in accordance with the Construction Contract Documents, will be constructed entirely on the Real Estate, and will not encroach upon or overhang any easement right-of-way of land not constituting part of the Real Estate. (e) The Project and the contemplated use thereof, both during construction and at the time of completion, will not violate any applicable zoning or use statute, ordinance, building code, rule or regulation, or any covenant or agreement of record. (f') ISD 281 agrees that it will furnish from time to time such satisfactory evidence regarding the representations and warranties described herein as may be required by the City. Section 4.02 Representations and Warranties of the City and EDA. The City and EDA do each represent and warrant as follows: (a) The execution of this Agreement, the Facility Use Agreement and any and all other documents referred to herein to which either or both the City and EDA are a part)', are within the powers of the City and EDA and do not violate any provision of law to which either or both the City and EDA are subject. (b) This Agreement, the Facility Use Agreement and any and all other documents referred to herein to which either or both the City and EDA are a party, are the legal, valid and binding obligations of the City and EDA, as applicable, enforceable against the City and EDA. as applicable, in accordance with their respective terms. ARTICLE V Additional Covenants Section 5.01 Covenants oflSD 28!. lSD 281 agrees that: (a) ISD 281 will cause construction of the Project to commence, and thereafter will cause the Contractor or Contractors to diligently proceed with construction of the.Project according to the Construction Contract Documents, so that the Project can be completed by the Completion Date. ISD 281 further agrees to provide all funds required over and above the Contribution Amount to the extent such additional funds should be necessary to complete the construction of the Project. (b) ISD 281 will comply with the Uniform Municipal Contracting Law, as enacted in the State of Minnesota, in letting contracts and expending public funds on this project. Also ISD 281 will require the General Contractor to comply with all rules, regulations, ordinances and laws bearing on its conduct of work on the Project. (c) ISD 281 will provide and maintain at all times during the process of building the Project, and, from time to time at the request of the City, fun'fish the City with proof of payment of premiums on, the following insurance: (i) fire and extended coverage, in an mount equal to the lesser of the aggregate amount of the City's Advances or the full insurable value of the Project, with the City named as loss payee, and to include an overlap endorsement or rider covering the risk of any rehabilitation work; (ii) comprehensive general liability insurance, including the City as a named insured, with limits against bodily injury and property damage in an amount greater than or equal to the limits ISD 28 l's statutory immunity under Minnesota law; The policies of insurance required pursuant to Sections 5.01 (e)(i) and (ii) hereinabove (A) shall be in form and content reasonably satisfactory to the City, and (B) shall be placed with financially sound and reputable insurers licensed to transact business in the State of Minnesota. The policy of insurance delivered pursuant to Section 5.01 (c)(i) hereinabove shall contain an agreement of the insurer to give not less than ten (10) days advance written notice to the Ci~' in the event of cancellation of such policy or change affecting the coverage thereunder. (d) lSD 281 will cause the General Contractor to maintain at all times during the process of building the Project, and, from time to time at the request of the CID', cause the General Contractor to furnish the City with proof of payment of premiums on, the following insurance: (i) comprehensive general liability insurance, including the City and ISD 281 as a named insured, with limits (i) against bodily injury of not less than $1,000,000, and (ii) against property damage of not less than $250,000 (to accomplish the above-required limits, an umbrella excess liabili~' policy may be used): and (ii) workmen's compensation insurance, with statutoD' coverage. The policy of insurance required pursuant to Section 5.01 (d)(i) hereinabove (A) shall be in form and content reasonably satisfactory to the City, and (B) shall be placed with a financially sound and reputable insurer licensed to transact business in the State of Minnesota. Acceptance by the Cit).' of an insurance policy delivered pursuant to Section 5.01 (d)(i) hereinabove shall not bar ISD 281 from requiring additional insurance which it reasonably deems necessaxs.'. (e) ISD 281 will permit the Cit-)', acting by and through its officers, employees and agents, to examine all books, records, contracts, plans, drawings, permits, bills and statements of account pertaining to the Project and to make extracts therefrom and copies thereof. (f) ISD 281 will furnish to the City, as soon as possible and in any event within ten (10) days after ISD 281 has obtained actual knowledge thereof, written notice of the occurrence of each Event of Default (ISD 281), or each event which with the giving of notice or lapse of time or both would constitute an Event of Default (ISD 281), which is continuing on the date of such statement, the statement of lSD 281 setting forth details of such Event of Default (lSD 281) or event and the action which ISD 281 proposes to take with respect thereto. (g) ISD 281 agrees that, without the. prior written consent of the CID', it will not agree or consent to any material changes in the Construction Contract Documents, or to any change orders thereto, individually exceeding $25,000.00 without the consent of City, which consent will not be unreasonably withheld. Any change orders not exceeding $25,000.00, approved without the prior consent of the City will be presented to the City for review as soon as practicable after its approval by ISD 281; provided, however, the City shall have no right to object to the form or content thereof. Section 5.02 Covenants of the City and EDA. The City and EDA agree that: (a) The City and EDA will furnish to ISD 281, as soon as possible and in any event within ten (10) days after either or both the City and EDA have obtained actual knowledge thereof, written notice of the occun'ence of each Event ofDefault (City/EDA), or each event which with the giving of notice or lapse of time or both would constitute an Event of DefauLt (City/EDA), which is continuing on the date of such statement, the statement of the City and EDA setting forth details of such Event of Default (City/EDA) or event and the action which the City and EDA propose to take with respect thereto. ARTICLE VI Events of Default and Rights and Remedies Section 6.01 Events of Default.. (a)- lSD 281 Events of Defaul.t. The following shall constitute Events of Default (lSD 2gl): (i) lSD 281 shall fail to duly observe or perform any of the material terms. conditions, covenants, or agreements required to be observed or performed by lSD 2g I hereunder. and such failure shall continue uninterrupted and without cure for a period of thirt3' (30) days after delivery of written notice of default to 1SD 281. (ii) Any representation or warranty made by ISD 281 herein, or in any financial statement, certificate, report or Draw Requisition furnished pursuant to this Agreement, or in order to induce the City to approve any Advance hereunder, shall prove to have been untrue in any material respect or materially misleading as of the time such representation or warranty was made. (iii) The Project is materially damaged or destroyed by fire or other casualb' and the loss, in the reasonable judgment of the City, is not adequately covered by insurance actually collected or in the process of eollection. (iv) The construction of the Project is abandoned, or shall be unreasonably delayed beyond the Completion Date (subject to such extensions as may be permitted in accordance with the Construction Contract Documents), or shall be discontinued for a period of twenty (20) consecutive calendar days, in each instance for reasons other than acts of God, fire, storm, strikes, blackouts, labor difficulties, riots, inability to obtain materials, equipment or labor, governmental restrictions or any similar cause over which ISD 281 is unable to exercise control. (v) The Project is not substantially completed in accordance with the Plans or Construction Contract Documents. (b) City, DA Events of Default. The following shall constitute Events of Default (City/EDA): (i) Either or both the City and the EDA shall fail to duly observe or perform any of the material terms, conditions, covenants, or agreements required to be observed or performed by either or both the City and the EDA hereunder, and such failure shall continue uninterrupted and without cure for a period of thirty (30) days after delivery of written notice of default to the City and the EDA. (ii) Any representation or warranty made by the City or EDA herein, or in any financial statement, certificate, or report furnished pursuant to this Agreement shall prove to have been untrue in any material respect or materially misleading as of the time such representation or warranty was made Section 6.02 Rights and Remedies,. (a) Rights and Remedies Upon Event of Default (ISD 281). Upon the occurrence of an Event of Default (ISD 281) and at any time thereafter until such Event of Default (ISD 281 ) is cured to the reasonable satisfaction of the City, the City may, at its option, exercise any and ali of the following rights and remedies, along with any other rights and remedies available to it: (i) The City may, by notice in v, xiting to ISD 281, refrain from approving Advances hereunder ('but City may make Advances after the occurrence of an Event of Default without thereby waiving its rights and remedies hereunder), or terminate this Agreement; and (ii) The City shall be entitled to recovery of reasonable costs of collection and enforcement of this Agreement, including without limitation reasonable attorneys' fees. (b) Rights and Remedies Upon Event of Default (Ciw/EDA). Upon the occurrence of an Event of Default (City/EDA) and at any time thereafter until such Event of Default (CityfEDA) is cured to the reasonable satisfaction of ISD 281, ISD 281 may, at its option, exercise any and all of the rights and remedies available to ISD 281 under applicable law, including without limitation the following: (i) ISD 281 shall be entitled to terminate either or both this Agreement and the Facility Use Agreement; and (ii) ISD 281 shall be entitled to recovery of reasonable costs of collection and enforcement of this Agreement, including without limitation reasonable attorneys' fees. ARTICLE VII Miscellaneous Section 7.01 Inspections. 1SD 281~ Architect and the :~-ctrh'cct ~, shall be responsible for making inspections of the Project during the course of construction, and shall determine to their own satisfaction that the work done or materials supplied by the General Contractor and Subcontractors to whom payment is to be made out of each Advance has been properly done or supplied in accordance with the applicable contracts with such General Contractor and Subcontractors. If any work done or materials supplied by the General Contractor or a Subcontractor are not reasonably satisfactory to ISD 281 m~trr: the Architect a. nd/or the Engineer, or if the General Contractor or a Subcontractor does not materially comply with the Construction Contract Documents in any material respect, ISD 281 will, upon discovery thereof, promptly notify the City in writing of such fact. It is expressly understood and agreed that the City, and its Inspecting Official may, at the City's sole cost and expense (and without reduction of the amount of the (bmmr 21. f~ 1 I Contribution Amount), conduct such inspections of the Project as either ma.',' deem necessary for the protection of the Cig"s interest, and that any inspections which ma.',' be made of the Project by the City or the Inspecting Official are made, and all certificates issued by the Inspecting Official '~11 be isst~ed, solely for the benefit and protection of the City, and that ISD 281 will not rely thereon. Section 7.02 Indemnification. (a) Indemnification by ISD 28..1. ISD 281 shall bear all loss. expense (including attorney's fees) and damage in connection with, and agrees to indemnify, and hold harmless the Cit3.'. its agents. servants and employees from all claims, demands and judgments made or recovered against the Cig', its agents, servants and employees, because of bodily injuries, including death at any time resulting therefrom, and/or because of damages to property of the City or others fincluding loss of use) from any cause whatsoever, arising out of, incidental to, or in connection with the construction of the Proj ecl, whether or not due to any act of omission or commission, including gross negligence, breach of statutory duty or willful misconduct oflSD 28 I, the General Contractor or any Subcontractor, or its or their employees, servants or agents, excluding, however, any claims, demands or judgments due to acts of omission or commission of the City, its employees, servants or agents. The obligation oflSD 281 under this Section 7.02(a) shall survive completion of the Project. (b) Indemnification by Cirv/EDA. The City and EDA shall bear all loss, expense (including attorney's fees) and damage in connection with, and agrees to indemnify and hold harmless ISD 281, its agents, servants and employees from all claims, demands and judgments made or recovered against ISD 281, its agents, servants and employees, because of bodily injuries, including death at any time resulting therefrom, and/or because of damages to property, oflSD 281 or others (including loss of use) from any cause whatsoever, arising out of. incidental to, or in connection with any act of omission or commission, including gross negligence, breach of statutory duty or willful misconduct of the City or EDA, or its or their employees, servants or agents, excluding, however, any claims, demands or judgments due to acts ofomiss: ~n or commission of ISD 281, its employees, servants or agents. The obligation of the City and EDA under this Section 7.02(b) shall survive completion of the Project. (c) Limitations on Indemni~. Notwithstanding Sections 7.02(a ::nd 7.02(b) of this Agreement, ISD 281, the City and EDA shall, and do hereby, release each c ':er from all claims, demands, liabilities, judgments and expenses to the extent subject to and in e-, tess of each party's limits of statutory immunity under Minnesota law, or to the extent otherwise ~overed, or required under this Agreement to be covered, by insurance. Section 7.03 Title to Project. Notwithstanding anything to the contraD' in this Agreement or otherwise, and except only as otherwise provided in the Facility Use Agreement. title to the Project, together with any and all fights and interests, legal, equitable or other',vise, therein, shall at all times be vested solely with, in and to ISD 281. Section 7.04 Fees.. Whether or not any Advance shall be made hereunder, lSD 281 agrees to pay all fees including inspection fees, appraisal fees, survey fees, recording fees. license and permit fees and title insurance and other insurance premiums relatin-~ to the Project. all of Which fees, costs and expenses shall be subject to proram reimbursement from the Conu'ibution Amount. Section 7.05 Addresses for Notices. All notices to be given by either parts.' to the other hereunder shall be in writing and deemed to have been given when delivered personally or when deposited in the United States Mail, registered or certified postage prepaid, addressed as follows: To ISD 2gl at: Thomas H. Walerius Independent School District 281 Education Service Center 4148 Winnetka Avenue North New Hope, MN 55427-1288 To the City and EDA at: Daniel J. Dona,hue, City Manager City of New Hope 4401 Xylon Avenue North New Hope, MN 55428 or addressed to such party at such other address as such party shall hereafter furnish by notice to the other party. Section 7.06 Termination of this Agreement. The obligations of ISD 2~, 1 allp. arties under this Agreement, but not under the Facility Use Agreement or any other agreement(s) attached hereto or incorporated herein by reference, shall cease upon (i) I~avment b.v City of the Contribution Amount in aeeordanee with this A~reement. and (ii) City's certification that the construction of the Project has been completed in accordance with the Plans and Construction Contract Documents. Section 7.07 Time of Essence. Time is of the essence in the performance oft his Agreement. Section 7.08 Binding Effect and Assignment. This Agreement shall be binding upon and inure to the benefit of ISD 281 and the City. and their respective successors and assigns. Section 7.09 Waivers. No waiver by the City or ISD 281 of any default hereunder shall operate as a waiver of any other default or of the same default on a future occasion. No delay on the part of the City or ISD 281 in exercising any fight or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any fight or remedy preclude other or further exercise thereof or the exercise of any other fight or remedy. Section 7.10 Remedies Cumulative. The rights and remedies herein specified of each of the City and 1SD 281 are cumulative and not exclusive of any rights or remedies which either or both the City and lSD 281 would othem'ise have. Section 7.11 Governing Law and Entire A~eement. This Agreement shall be governed by the laws of the State of Minnesota. This Agreement contains the entire agreement of the parties on the maners covered herein. No other agreement, statement or promise made by any parD.' or by any employee, officer, or agent of any party that is not in writing and signed by all the parties to this ,Agreement shall be binding. Section7. I2 Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or caused it to be executed by their duly authorized officers or panners, as of the date first above wrinen. CITY OF NEW HOPE INDEPENDENT SCHOOL DISTRICT No. 281 By By Its Mayor Its By By Its City Manager Its ECONOMIC DEVELOPMENT AUTHORITY in and for the City of New Hope By Its President By Its Executive Director STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEP1N ) The foregoing was acknowledged before me this ~ day of 1999, by W. Peter Enck and Daniel J. Donahue, the Mayor and City Manager, respectively, of the City of New Hope, a Minnesota municipal corporation, on behalf of said municipal corporation. Notary Public STATE OF MINNESOTA ) COUNTY OF HENNEPIN ) The foregoing was acknowledged before me this dav of ,1999 by W. Peter Enck and Daniel J. Donahue, the President and Executive Director, respectively, of the Economic Development Authority in and for the City of New Hope, a Minnesota municipal corporation, on behalf of said corporation. Notary Public STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEPIN ) The foregoing was acknowledged before me this day of ,1999 by and the and respectively, of Independent School District 281, a Minnesota , on behalf of said Notary Public EXHIBIT "A" ~ .Plans [To be provided by City, EDA and ISD 281J EXHIBIT "B" Form of Facility Use Agreement [To be attached] EXHIBIT "C" Form of Draw Requisition [To be provided by City and EDAJ EXHIBIT "D" · Leeal Description of Real Estate [To be provided by lSD 28 ! ] EXHIBIT "E" Proiect Cost Sharing Schedul.e [To ~ab,v,,,,~,,~ .... ,~: '~'--,~,,~, ~,~"~ * ~..' ,~,~'"" ~.o,j"~" Th e foliowin_~ table lorovides an allocation of Proiect-related costs as between the City and lSD 281:. PERCENTAGE OF RESPONSIBILITy. DESCRIPTION OF WORK. CITYI. ISD 281: Site lmprovement~ · Construction, Parkin_o and Drainage, 100% 0,% =~ Perimeter Walks, Plantings alon_o 47~ Avenue,,Utilities (Sanitary Sewer, Storm Sewer, Water and Gas), and Related Work · Accessible Route to Ballfields, and 30% 70% Related Work BuiidinR Constructiom ~ Gymnasium Facility ~lnclusive of Code ! 00% 0% Ut)erades), and Related Work Tennis Court Construction: ~ Construction 9f 7 Tennis Courts~ an,,dr 30% 70% Related Work ~The City's percentage of responsibility is as shown in this table subject only to the requirement that the City's aggregate percentage of responsibility for the entire Project shall in no event exceed the Contribution Amount. ~ISD 28 l's percentage of responsibility is subject to increase for any Projected-related costs, normally allocable to the City in accordance with the City's percentage of responsibility as set forth in this table, which exceed the Contribution Amount. Expanded Fencing. Screen Planting,/ ~30% 70% Access paths and Draina_oe. and ~ Related Work .................. COMPARISON OF FOOTNOTES -FOOTNOTE lr City's percentage of respon, sibilil~' is as shown in this table subiect only to the requirement that the City's aggregate Dercenta_~e of resDonsibilin' for the entire Proiect shall in no event exceed the Contribution Amount. -FOOTNOTE 281's percentage of responsibilitn' is subiect to increase for any Proiected-related costs, normalh' allocable to the Ci,IT. in accordance with the City's pereenta.oe of respo,nsibililn' as set forth in this table, which ex. eeed the,,Contribu, tion, Amount. .................. COMPARISON OF FOOTERS ................. -FOOTER 1- ::ODMAWCDOCSLR. IDER\438230~b 4 October -1- 19, 1999 and rev~d ~t F.~~~G~SV~s ~D FACILITY USE AG~EME~ AGREEMENT made this__ day of ,1999 by and between the CITY OF NE%X HOPE a Minnesota municipal corporation (hereinafter the "Ci~"'), and INDEPENDENT SCHOOL DISTRICT NO. 281, an independent school district created and existing under the of the State of Minnesota (hereinafter "ISD 281"). RECITALS WHEREAS, lSD 281 is constructing an addition to the existing Cooper High School gynmasium, on real property legally described on Exhibit A attached hereto, which addition shall consist of a second fully enclosed gymnasium, concessions room, storage areas, rest rooms and miscellaneous other amenities, all as more fully described and set forth on that site plan attached hereto as Exhibit B (the "Site Plan") (such addition, together with all amenities therein, hereafter referred to as the "Facility"); WHEREAS, the New Hope Economic Development Authority, a Minnesota municipal corporation ("EDA"), and the City are contributing up to $3,250,000.00 towards the cost of constructing and equipping the Facility from EDA Tax Increment Financing Funds (the actual amount of such contribution hereinafter referred to as the "Contribution Amount"); WHEREAS, the parties desire to provide for joint use of the Facility; WHEREAS, this Agreement sets forth the rights and obligations of the parties relating to the joint use of the Facility; NOW, THEREFORE, the parties agree as follows: ARTICLE I Joint Use 1.01 Joint Use. The City and lSD 281 shall jointly use the Facility in accordance with the terms and conditions set forth herein. 1.02 ~ Term. This Agreement shall be for a term of forty (40) years commencing on ~he date of substantial completion of the Facility and expiring on ~June 30~ 2040. 1.03 Use and Scheduling. The facilin.' shall be used by the parties as follows: a. 1SD 281 will have primary, use of the Facility on school days from 6:00 a.m. ~: :il 5:30 p.m. b. The City will have primary use of the Facility on school days from 5:30 p.m. · -:til 6:00 a.m., and at all times on Saturdays, Sundays, Summer vacation and any other day that aool is not in session. c. Each party may schedule .gym time during the other pans."s primar>.' use, with . .e primary party's consent which may not be unreasonably withheld if time is available. d. The City will supervise the Facility when it has primary, use of the Facilin.' and .~all hire and pay any building attendant necessary to perform such supervision. Supervision shall at include maintenance or cleaning which shall be the responsibility of the ISD 281 per Section . .02 of this Agreement. City supervision shall only mean supervision of the activity that is being -onducted by, on behalf of, or is the responsibility of the ~ City. when the Facility is under City ..se ~[the "Prinei,pal Activity"}, lol[ether with supervision of any and al.! uses or. activities · ssoeiated with. or related to, such Principal Activin,', including without...limitatjon supe.rg, ision ,f such interior or exterior common areas and, parking areas as may be used bv employees or nvitees of the City in connection with such Principal Activity. However, the City will be 'esponsible for cleaning the concession room area and equipment after each-use by the City. .towever, ISD 281 will clean the floors, walls and ceiling of the concession room area as part of _,eneral routine cleaning of the facility. Also, ISD 281 will dispose of all garbage from use of the :onccssion room area on condition it is properly bagged and placed in a designated area for disposal · .s determined by ISD 281. e. The City will have reasonable access to the Facility. during its primary, use :ime. f. lSD 281 will permit the City, and its employees, agents and invitees to use the internal roadway system and school parking lot for access to the Facility, and the school parking lot for parking purposes, subject to ISD 281's reasonable rules and regulations. g. The City will have the exclusive use of the west storage space and the concession room/area as shown on the Site Plan. ISD 281 agrees it will not be permitted use of these areas without the written consent of the City. h. The City and lSD 281 shall meet at least annually to review the Facility use schedule. 1.04 Alcohol and Tobacco Policy. The Facility shall be treated as "school ground" as contemplated by the alcohol control provisions of Minn. Stat. {} 624.701; that ISD 281 's alcohol and gna F~ t~ A~ tobacco policies and regulations, and any additions Or amendments thereto, shall apply to the Facility; that the area should be appropriately posted: and that the Ci~' shall withhold access from groups for alcohol or tobacco violations. ARTICLE II Ownership and Maintenance of Facili~' 2.01 ~. 1SD 281 is the owner of the Facilits', subject to the rights and obligations of the parties set forth in this Agreement. 2.02 Maintenance and Upkeep. ISD 281 will be responsible for all maintenance, repairs. replacement and upkeep of the Facility necessary to keep the Facility in good repair and clean condition. However, the City acknowledges and agrees it will be responsible for all maintenance. repair and cleaning of the concession room/area and equipment after each event, referred to in Section 1.03(g) of this Agreement. ISD 281 shall only be required to clean, repair and maintain the general structure of the concession room/area including the floor, walls, ceiling, plumbing, heating and electrical to the concession room/area including the general cleaning referred to in Section 1.03(g) of this Agreement. 2.03 Operatin~ Cost and Utilitie_s. The School District will be responsible for all operating costs relating to the Facility, including providing and paying for all electric, heat, phone, water, sewer, trash removal and other utilities and services. ISD 281 will maintain adequate temperatures in the Facility during the City's primary use time to allow comfortable use of*he Facility by the City. 2.04 Insurance. ISD 281 will at its expense insure the Facility, fixun'es, furnishings, and therein against loss or damage by fire and loss or damage by such other risks now or hereafter embraced by "extended coverage," so called. However, ISD 281 shall not be required to insure the food service equipment installed by the City in the concession room/area or the sound system equipment installed in the west storage area. Each parry will obtain and maintain during the term of this Agreement a comprehensive liability insurance policy in at least the amounts specified as to the extent of liability under Minn. Stat. § 466.04. ISD 281 will be named as an additional insured on the City's policy and the City will be named an individual insured on ISD 281 's policy. Each party shall furnish the other party a certificate of insurance documenting the required coverage. ARTICLE III Indemnification 3.01 Indemnification by lSD 28 I. lSD 281 hereby indemnifies and holds the City harmless from and against any and all claims, demands, liabilities, and expenses, including attorney's fees, arising from the ISD 281's use of the Facility, or from any act permitted, or any omission to act, in or about the Facility by ISD 281, or its officers, employees, independent contractors, agents, or invitees, or from any breach or default by ISD 281 of this Agreement, except to the extent caused by the City's gross negligence or willful misconduct. In the event any action or proceeding shall be brought against the City by reason of any such claim, ISD 281 shall defend the same at ISD 28 l's expense by counsel reasonably satisfactory, to the Cit3'. The provisions of this Section 3.01 shall survive any termination of this Agreement. 3.02 Indemnification bv Cit~_'. The City. hereby indemnifies and holds/SD 28I harmless from and against any and all claims, demands, liabilities, and expenses, including attorney's fees, arising from the City's use of the Facility, or from any act permitted, or any omission to act, in or about the Facility by the City, or its officers, employees, independent contractors, agents, or invitees, or from any breach or default by the City of this Agreement, except to the extent caused by the lSD 28 l's gross negligence or willful misconduct. In the event any action or proceeding shall be brought against ISD 281 by reason of any such claim, the City shall defend the same at the Ci .t'y's expense by counsel reasonably satisfactory to ISD 281. The provisions of this Section 3.02 shall survive any termination of this Agreement. ARTICLE IV Dispute Resolution 4.01 If a dispute develops between the parties regarding interpretation of the rights and obligations of the parties under this Agreement, such disputes shall be referred to the next administrative level of the respective bodies who shall attempt to settle the dispute. Such referral shall continue to succeeding levels of the respective bodies until all administrative levels have been exhausted; provided, however, all such administrative levels shalI be deemed to have been exhausted in the event such dispute remains ura'esolved in whole or in part for a period of sixty (60) days from and after the date of initial occurrence of the dispute. In the case of any dispute which also involves a material breach authorizing the nonbreaching party to exercise its fights under Section 5.01 of this Agreement, the nonbreaching party shall be entitled, but not required, to exercise its rights under Section 5.01 concurrent with any exercise of rights under this Section 4.01. If the dispute cannot be resolved in accordance with this Section 4.01, either party may (except to the extent theretofore exercised under Section 5.01 as hereinabove permitted) then exercise any and all of the rights and remedies available to such party under applicable law. ARTICLE V Termination 5.01 Termination for Cause. In the event of any material breach of any of the terms of this Agreement, the party alleging the breach ma>', in addition to, and not in lieu of, any other remedies available to such party under Section 4.01 of this Agreement or otherwise under applicable law, seek to terminate this Agreement by giving the breaching party written notice specifying the nature of the breach. If the breach is not remedied within thirty (30) days of the date of delivery of such notice, or if additional breaches of a materially similar nature occur within the thirty '(30) day period following the date of delivery of said notice, the party alleging the breach may send the breaching party a second written notice setting forth the time, place and date of a meeting to discuss the breach, the time, date and place for which shall in all respects be reasonable and shall specify a date not later than ten (10) days from the date of such written notice. The Superintendent for the District or his or her designee(s) and the City Manager for the City. or his or her designee(s) shall attend such meeting. If the breach continues for more than thirty. (30) days after the date of such meeting, the party alleging the breach may send a final written notice of termination to the breaching parts.' terminating this Agreement effective upon the date of delivery, of such notice. 5.02 Termin~at_ion Without Cause. This Agreement may be terminated without cause as follows: a. Either party may terminate this Agreement prior to the award of contract to construct the Facility by giving written notice of such termination to the other. ISD 281 shall give the City ten (10) days written notice of its intent to award a contract. A,O and all actual If thi____~s Aoreement is terminated in accordance with this Section 5.02 a any and ali actual out-of- oc~9~ costs incurred by the ' ' ' ' ' '-- -~- ~j~c~. non-terminatin~ ~artv shall be paid bv the terminating_ Dartx'. b:-. b. Commencing as of calendar year 2001, ISD 281 may terminate this Agreement, effective as of June 30 of any calendar year, upon delivery to the City, on or before February 1 of such calendar year, of advance written notice of termination (an "Early Termination"). In the event of an Early Termination, ISD 281 shall, on or before the effective date of such Early Termination, pay to the City the sum of the unamortized portion of the Contribution Amount~ inclusive of interest calculated,at a fixed rate of interest equal to five percent (5%) per annum, in accordance with the Termination Fee Schedule attached hereto as Exhibit C (the :'Termination F "' -- "' ' - ~ ~ ....... ~ .... '" .......... ~'" - -'- -" ..... s .... ,__ _e., ,_ Ag, c;,-c,c~-~t. Said Termination Fee shall be the City's sole and exclusive remedy for the Early Termination, and the City hereby waives any and all fights to specific performance, damages, or any other remedy available in equity or in law. ARTICLE VI Miscellaneous 6.01 Buildin~ Securi~. Upon completion of construction of the Facility, lSD 281 shall issue to the City a reasonable number of keys and/or security cards for the exterior doors to the Facility, together with any lockable interior doors thereto, if any, for which the City is entitled to access pursuant to the terms and provisions of this Agreemem. On all days during which ISD 281 is entitled to priority of use in accordance with Section 1.03(a) of this Agreement, ISD shall be responsible for opening up the Facility. On all days during which the City is entitled to priority of use in accordance with Section 1.03(b) of this A~reement, the City shall be responsible for opening up the Facility. The City shall at all times during the term of this Agreement be responsible for closing and securing the Facility, including without limitation securing all exterior doors to the Facility. The procedures and requirements applicable to the issuance of' keys and/or security cards, and to the opening, closing and securing of the Facility, shall be in accordance with such reasonable rules and regulations as ISD 2g 1 may issue from time to time. The City hereby agrees to indemnify and defend lSD 281 from and against an>' and all claims, demands, liabilities, and expenses, including attorney's fees, arising from any failure b.v the City to perform its responsibilities for closing and securing the Facility in accordance with this Agreement. 6.02 Relationship of Parties. The parties hereto agree that it is their intention hereby to create only the relationships of licensor and licensee, and no provision hereof, or act of either parr),, hereunder, shall ever be construed as creating the relationship of lessor and lessee, principal and agent, or a partnership, joint venture or enterprise between the parties hereto. 6.03 Assignment. Neither party may assign its rights or obligations under this Agreement without the prior wrirten consent of the other party. 6.04 Binding, Effect. All of the covenants, conditions and agreements herein contained shall extend to, be binding upon, and inure to the benefit of the parties hereto and their respective permitted successors and assigns. 6.05 Severabilirv. If any provisions of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect. 6.06 Gove~. This Agreement shall in all respects be governed by and interpreted under the laws of the State of Mirmesota. IN WITNESS WHEREOF, the parties have subscribed their names as of the day and ),ear first above wrinen. INDEPENDENT SCHOOL DISTRICT NO. 251 By hs By Its CITY OF NEW HOPE By. Its Mayor By. Its City Manager STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this __ day of ,1999, by and ...... respectively the Mayor and City Manager of the City of New Hope, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council. Notary Public STATE OF MINNESOTA ) COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this__ day of ,1999 by and , the and of Independent School District No. 281 on behalf of said independent school district. Notary Public EXHIBIT A Le_oal Description [To be provided by ISD 281] EXHIBIT Site Plan :/~.~ ~] :Budget ~q~ of New Ho~ ~ ~ ~ ~ ~.~n~ Amount peter Co~c~on ~ ~ncml ~ndifio~ ~ ~6,g79 7~A ~7~79iE 3 O~ Ocneml [ $1,810,000 ~ 100% S1,SlO, O00 ~ I I I I' A~F~ ~ $199,730 ~ 10~ $1~,730~ 0% ~ion~g ~,000 10~ $7,0001[ 0% S0 O~m~ml! S3,0~: I0~ ~,~0 0% $0, Bid Adv~e~ ~,~0 10~ $5,000 ' 0% ~0~ S~I S~ I~o~ S6,000 1~ S6,~0: 0% ~umitu~ and ~u~ment F~ ~d Si~ S5,~ I~ $5,000 0% SO ~d S~m & ~n~ ~uipm~ $15,~ I~A $15,000 0% ~u~ S3,0~ 10~ · $3,000 0% Con~ $105~70 1 ~ $ 105~70 ~ $0: ~nan~ ~ ~5,~ S75~ G~ ~T~ $3,4~,~ ~ ~,250,000 ~40,000 Con..~'uction Budget- TW Page 1 I0/19/9~ cHS Gym Improvements DLst 281 Termination of Use Agreemen~ Fee ._ / C~ty of New Hopc $1au't ~ ~te t~ ~n~n] P~ent Ori~nnl Amount 12 ~ Zffi 1, 2012 $189.4~ $143,3S9 ~6,~15 ~ I2,g21,76~ 1~ Jul 1,201g 14 Jul J, 20] 4 1~ Jul 1.2015 $189~ S136,136 S53~68 ~ $2,669.450 16 J~ 2,2016 '17 Jul l. 2017 $~89.~ $I20,676 SSS.~g ~ ~.554.790 19 Jul l, 2019 S189,4~ $124.6~ *~,748 ~ $2,428,~78 25 ~Z 1, 2~5 S1~,4~ $10~6 S86,768 ~ $1,965,949 27 Jul I, 2~7 28 Jut Z, 2~8 S!89,4~ $88.959 $100,~5 ~ $1.678,736 2e Jul 1, 2029 $189,~ $g3,937 S105,467 ~ $1,573,268 30 ~1 I, 2~0 $189,~ ~8,663 $110,741 $1,462,528 3] Jul 1, ~31 $189,~ ~3,1~ ~ JUl 1, 203~ ~1S9,4~ ~8,~8 $14]~36 ; ' $g20'~0 - - - ~ a z ay.4~ S9.019 $180~ 85 . SO EDA ~ RF UEST FOR ACTION Originating Depa~t~uent Approved for Agenda Agenda Section Community Development, ~ 10/25/99 EDA Item No. Kirk McDonald 5 DISCUSSION REGARDING PROPERTY AT 5550 WINNETKA AVENUE NORTH AND OTHER PROPERTIES ON EAST SIDE OF WINNETKA BETWEEN 5340 AND 5550 WINNETKA ACTION Staff requests to discuss with the EDA the vacant commercial property currently for sale, located at 5550 Winnetka Avenue North, to determine if the EDA wants to direct staff to inquire about the potential acquisition of the property. Staff would also like to discuss approaching other property owners on the east side of Winnetka between the Bauer property and the Donut Shop about the potential acquisition for redevelopment. POLICY/PAST PRACTICE In the past, the EDA has directed staff to pursue the acquisition of vacant commercial and available residential property that is located in areas of the City that the Comprehensive Plan has identified for potential redevelopment. BACKGROUND The commercial property located at the southeast quadrant of the intersection of Winnetka Avenue and Bass Lake Road, has become vacant within the last several months. The Donut Shop is located in an area identified by the Comprehensive Plan for future redevelopment. Staff requests to discuss with the EDA if you are interested in having staff investigate the potential acquisition of this site. The property is located in a B-2, Retail Business, Zoning District. Surrounding land uses include single family residential to the south; B-2 Retail Business to the east; R-1 Winnetka Elementary to the west; and B-2 and B-3, Retail and Auto-oriented Business, across Bass Lake Road to the north. The property contains 20,700 square feet (.47 acres), and the 1,300 square foot, one story masonry structure on the site was constructed in 1975. The current market value of the property is $164,000 ($126,000 land/S38,000 building). This property is located within Planning District 6 of the Comprehensive Plan, which outlines an aggressive strategy for enhancing the commercial character along Bass Lake Road. Recommendations ~nclude: MOTION BY , ,, SECOND BY , , RFA-O01 ~ Request For Action Page 2 · Expand the commercial land use patterns along Bass Lake Road to increase the land area for commercial redevelopment. · Assemble and redevelop smaller commercial sites to create longer commercial lots for contemporary retail, service, and office uses. As the EDA is aware, the City has already acquired some residential properties in this area on a voluntary basis for redevelopment purposes. The City recently submitted a Livable Communities Grant Application to Metropolitan Council for planning purposes in this area. If the EDA determines to proceed on potentially acquiring this property, staff recommends that the EDA direct staff to: 1. Contact the realtor and inform them of the City's interest in the property, and 2. Authorize staff to obtain an appraisal of the property. The estimated cost for an appraisal on this property is $2,500. Staff further requests that the EDA authorize staff to contact the residential property owners between 5340 and 5550 Winnetka (15 properties) to inquire if they may be interested in a voluntary sale to the City, as these properties are also sited in the Comprehensive Plan for redevelopment. FUNDING The cost for the appraisal would be funded out of EDA funds, and, if acquisition proceeds, would be charged against the project. The property is located in an area where TIF funds can also be expended for redevelopment activities. ATTACHMENTS Vicinity Plan Site Plan/Data Comprehensive Plan Excerpts TIF Map Grant Application Excerpts Vicinity P1 ' i i o ail' / ~ ......... ' L._::.'I--" ' : ' '- AVE N i ....... B-2 . ': R-0 B-2 )STERMAN HIGH ;HOOL WINNETKA ....... ~ ' ELEMENTAR' s+. RAPHAEL CATHOLIC SCHOOL E CHURCH ~) :n < -r ...... ~[ ............. 54TH AyF hi I-1 -' /'"'" // '" ~; ..... · '"~ ., '~ ~ I / . , ,,..~, , -~f"~'" ~/' ./' -1 SITE DATA Site: Donut Shop ' Address: 5550 Winnetka Ave. No. Land Area = 20,700 sf [ .47 acres ] Building Area = 1,300 sf [ 6 % ] Year Built: 1975 Building Type: One story masonry with flat roof Zoning District: B-2, Retail Business Street Frontages: 2 county roads; Winnetka and Bass Lake Road "°'"~'-' ~ I~1~ '~ '1 "~ '.. __,,' . ~ - ~o. ~, ~ J t~ I"l i~ {,~) ?,,~-..~lt; -'-v~---~~-:.~---.~ -. ' ~1 , , , I : ~..- 31 f i , , ~, = ~ (~) T , '- ~~ ~ = ~ - ' ............................ ~ ............... ........................ ~ ................. ,~ ..... > ~ , ........................................ ,,o "; ~ ; ~ - I I I ..................................... I~ I I C I?) 8 ~ ~ ~ I K (99) - (86) - I .................................... I ~ I '~ "~"~ ~ ~ ~ (97) ._.;.,_-. .: a __ COUNTY HOSTERMAN WINN HIGH SCHOOL ELI -lq4-o -~-'-""~v E. N. AVE. N. AVE. N. ~! [ ~ /~''1 51 Sr AVE N. l COMMERCIAl, aEOEVELOP~E~r : [ ~ '' AREA ~ ~ SSTH AVE. CONCEPT CONCEPT PROJECT BULLETIN ~ CITY OF NEW HOPE PROJECT BULLETIN ~4 1999 INFRASTRUCTURE IMPROVEMENT PROJECT City Project No. 648 Introduction The intent of this project bulletin is to update residents on the status of the 1999 Infrastructure Improvement Project. Most of the construction scheduled for 1999 has been completed. Thank you for your patience and cooperation during this project. Work Completed All the necessary water main and storm sewer replacement work in the project area has been completed. New curbs and driveway aprons have been installed, and the base coat of asphalt has been applied to the streets. Some of the old trails in Liberty Park have been eliminated and others have been upgraded and improved. Many of the disturbed areas and boulevards within the project area have been sodded. UDcomin~ work The remaining restoration work, including the placement of sod, will be completed in the next few weeks. The disturbed areas in Liberty Park will also be restored. The streets will be swept clean this fall but the wear course, the final layer of asphalt, will not be placed on the streets until next summer. Allowing the base course of bituminous to go through the winter season allows engineers and City staff to detect any soft spots or settling of the subgrade below the street surface. Any needed repairs can then be made before the wear course is applied in the spdng, resulting in a better final product. Important notes Now that the entire project area has been paved and all the driveway entrances have been repaired, the New Hope Police Department will once again start to enforce the on-street parking regulation. The regulation prohibits parking a vehicle on City streets between the hours of 2 a.m. and 6 a.m. On-street parking had been allowed during the project because the construction prevented some homeowners from getting to their driveways. Enforcement of the on-street parking ban in the project area will go into effect October 17, 1999. The contractor is responsible for the new sod placed as part of this improvement project for the first 60 growing days. Due to the time of year the sod was placed, these 60 growing days (as defined by MN Dot standards) will extend into next spring. Anything that you, as property owners, can do to help with the establishment of this sod will ensure healthy looking lawns in the future. You are encouraged to water the new sod on a regular basis, this fall as well as next spring. Property owners are advised to avoid mowing the new sod this fall. If mowing becomes necessary, the cutting height of the lawn mower should be raised for the first few cuttings. Once the sod has been inspected and accepted by the City next spring, it will be the homeowner's responsibility to continue care and maintenance of the sod that was placed as part of this project. Oct. 6, 1999 Projects~648\PB#.4 10-6-99 Contact Persons If you have questions or concerns about the street and utility improvement project, please direct your calls to Vince VanderTop, Project Engineer, at (651)604-4790 or Tom Schuster, Contract Manager, at (612)533-4823, ext. 13. City of New Hope 4401 Xylon Avenue North New Hope, MN 55428 Phone: 531-5100