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CITY OF SHOREWOOD
DEVELOPMENT AGREEMENT
CIC NUMBER 700
THE SEASONS
PLANNED UNIT DEVELOPMENT
THIS AGREEMENT, made this 13th day of May, 1994, by and between the CITY
OF SHOREWOOD, a Minnesota municipal corporation, hereinafter referred to as the
"City," and Pete Boyer Development Co., a subsidiary of Pete Boyer Construction, Inc., a
Minnesota Corporation, hereinafter referred to as the "Developer."
WHEREAS, the Developer is the fee owner in certain lands legally described in
Exhibit A, attached hereto and made a part hereof, which lands are hereinafter referred to as
the "Subject Property"; and
WHEREAS, Developer proposes to develop the Subject Property by means of a
Planned Unit Development ("PUD") consisting of 25 lots, one of which is common area for
thePUD;and
WHEREAS, the Developer has made application with the Zoning Administrator for a
Conditional Use permit for a PUD and submitted a Concept Plan and Development Stage
Plan for the property, which matters were considered by the City Planning Commission at
Public Hearings held on 13 October 1992 and 4 May 1993; and
WHEREAS, upon recommendation of the City Planning Commission, the City
Council did consider and grant Concept Plan and Development Stage Plan approval as set
forth in Resolution 55-93;
NOW, THEREFORE, in consideration of the mutual covenants and guarantees
contained herein, the parties hereto agree as follows:
1.) Conditions of Approval - The Developer shall comply with the conditions of
approval as adopted by the City Council and set forth in Resolution 55-93, incorporated
herein as Exhibit B.
2.) Improvements - In accordance with the preliminary and final plats of the
Subdivision, the City's approval thereof, and applicable standards and ordinances of the City,
the following described improvements (the "Improvements") shall be constructed and
installed on the terms and conditions hereinafter contained:
1.
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(01) Private street grading, graveling and stabilizing, including constructing and
sodding of berms, swales, and boulevards and planting of trees on boulevards
("Private Street Improvements");
(02) Permanent private street surfacing, including curbs, gutters and driveway
approaches ("Permanent Private Street Improvements");
(03) Street name signs at all newly opened intersections and such other traffic
control signs and street lights within the Subdivision determined to be necessary by
the City Engineer ("Traffic Signing Improvements");
(04) Storm sewers, when determined to be necessary by the City, including all
necessary catch basins, ditches, inlets, retention areas and other appurtenances
("Storm Sewer Improvements");
(05) Sanitary sewer laterals or extensions, including all necessary building
services and other appurtenances ("Sanitary Sewer Improvements");
(06) Water main laterals or extensions, including all necessary building services,
hydrants, valves and other appurtenances ("Water Main Improvements");
(07) (Others) Required landscaping, including common area and individual unit
lots ("Landscaping Improvements").
3.) Installation of Improvements - Improvements to be installed at Developer's
expense by the Developer as hereinafter provided are hereinafter referred to as "Plan A
Improvements". Improvements which the Developer has petitioned the City to install and
finance through the regular City Assessment Procedure are hereinafter referred to as "Plan B
Improvements" .
4.) Plan A Improv~ments -
(01) Types - The Developer will construct and install at Developer's expense the
following Plan A Improvements according to the following terms and conditions:
Description of Improvement
Private Street Improvements
Permanent Private Street Improvements
Landscaping Improvements
Traffic Signing Improvements
2.
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.
"
Total Estimated Construction Costs of
Plan A Improvements
$41.221
(02) Completion Date - All Plan A Improvements shall be completed not later
than 1 July 1995.
5.) Plan B Improvements -
(01) Types - The Developer has petitioned the City for the installation of Plan B
Improvements as follows:
Description of Improvement
Storm Sewer Improvements
Sanitary Sewer Improvements
Water. Main Improvements
Total Estimated Costs of
Plan B Improvements
$225.000
(02) Construction of Plan B Improvements - The City Council will order the
installation of the Plan B Improvements in accordance with the following and
applicable statutory provisions, and the costs thereof will be assessed against
benefitted properties.
(03) Completion Date - The construction of Plan B Improvements shall be
completed by no later than 31 August 1994.
(04) Construction - On petition of the Developer, the City will prepare
preliminary plans and estimates with respect to Plan B Improvements and an
Improvement Hearing will be held by the City Council for the purpose of ordering
Plan B Improvements. Thereafter, the City shall prepare final plans and
specifications for said Improvements and bids will be taken by the City and contracts
awarded for the installation of the Improvements under the City's supervision.
(05) Levy of Special Assessments - The entire cost of constructing Plan B
Improvements, including any engineering, legal and administrative costs. incurred by
the City shall be assessed against the benefitted properties in ten (10) equal annual
installments with interest to accrue at the rate of six percent (6.0%) per annum.
Reference herein to special assessments shall be deemed to include and shall include
all interest due thereon. All installments of such assessments shall be paid to the
Treasurer of Hennepin County as and when the general property taxes become due
upon said property.
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6.) Final Plan. Grading. Drainage and Utility Plan. Building Plan - The
Developer has filed with the City Clerk the final plat titled The Seasons for the development
of the Subject Property. Said plat is attached hereto and made a part hereof as Exhibit C.
Said final plat, together with the Grading, Drainage, and Utility Plan, the Twinhome
Building Plans, and the Landscape Plan, all of which plans are on file at the Shorewood City
Offices, and this Development Agreement, is herewith adopted and approved by the City as
the Developer's final plan for development of the property.
7.) Pre-construction Meeting - Prior to the commencement of construction,
Developer or its engineer shall arrange for a pre-construction meeting to be held at
Shorewood City Hall. Such meeting shall be coordinated with the City Engineer and shall
include all appropriate parties specified by the City Engineer.
8.) Standards of Construction - Developer agrees that all of the Improvements set
forth in 4.) and 5.) above, shall equal or exceed City standards, shall be constructed and
installed in accordance with engineering plans and specifications approved by the City
Engineer and the requirements of applicable City ordinances and standards, and that all of
said work shall be subject to final inspection and approval by the City Engineer.
9.) Materials and Labor - All of the materials to be employed in the making of
said Improvements and all of the work performed in connection therewith shall be of
uniformly good and workmanlike quality, shall equal or exceed City standards and
specifications, and shall be subject to the inspection and approval of the City. In case any
materials or labor supplied shall be rejected by the City as defective or unsuitable, then such
rejected materials shall be removed and replaced with approved materials, and rejected labor
shall be done anew to the satisfaction and approval of the City at the cost and expense of
Developer.
10.) Schedule of Work - The Developer shall submit a written schedule in the
form of a bar chart indicating the proposed progress schedule and order of completion of
work covered by this Agreement. It is understood and agreed that the work set forth in
paragraph 4.) shall be performed to be completed by 1 July 1996. Upon receipt of written
notice from the Developer of the existence of causes over which the Developer has no
control, which will delay the completion of the work, the City, at its discretion, may extend
the dates specified for completion.
11.) As-Built Plan - Within sixty (60) days after the completion of construction
of the Plan B Improvements, the City shall cause its' engineer to prepare a full set of "as-
built" plans, including a mylar original and two (2) black line prints, showing the location of
said Improvements within the plat.
4.
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12.) Easements - Developer, at its expense, shall acquire all easements, if any,
from abutting property owners necessary to the installation of the sanitary sewer, storm
sewer, surface water drainage facilities and watermains within the plat, and thereafter
promptly assign said easements to the City.
13.) Pre-existing Drain Tile - All preexisting drain tile disturbed by Developer
during construction shall be restored by Developer.
14.) Staking. Surveying and Inspection - It is agreed that the Developer, through
his engineer, shall provide for all staking and surveying for the Plan A Improvements. In
order to ensure that the completed improvements conform to the approved plans and
specifications, the City will provide for resident inspection as determined necessary by the
City Engineer.
15.) Grading. Drainage. and Erosion Control - Developer, at its expense, shall
provide grading, drainage and erosion control plans to be reviewed and approved by the City
Engineer. Said plans shall provide for temporary dams, earthwork or such other devices and
practices, including seeding of graded areas, as necessary, to prevent the washing, flooding,
sedimentation and erosion of lands and streets within and outside the plat during all phases of
construction. Developer shall keep all streets within and adjoining the plat free of all dirt
and debris resulting from construction therein by the Developer, its agents or assignees.
.
16.) Street Signs - Developer, at its expense, shall provide standard city street
identification signs and traffic control signs in accordance with the Minnesota Manual on
Uniform Traffic Control Devices.
17.) Access to Residences - Developer shall provide reasonable access, including
temporary grading and graveling, to all residences affected by construction until the streets
are approved by the City Engineer, pursuant to paragraphs 8.) and 9.) hereof.
18.) Occupancy Permits - The City shall not issue a permanent certificate of
occupancy until the first lift of bituminous surfacing has been installed on the road serving
the units for which a certificate of occupancy is requested. Exception: Certificates of
occupancy may be issued for Lots 7 and 8 prior to installation of the first lift of bituminous
surfacing.
19.) Final Inspection - Upon completion of the Improvements set forth in
paragraph 4.) above, the City Engineer, the contractor, and the Developer's engineer will
make a final inspection of the work.
20.) Restoration of Streets. Public Facilities and Private Properties - The
Developer shall restore all City streets and other public facilities and any private properties
disturbed or damaged as a result of Developer's construction activities, including sod with
necessary black dirt, bituminous replacement, curb replacement, and all other items disturbed
. during construction.
5.
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21.) Required Landscaping - The Developer shall provide a letter of credit,
alternative security agreement, or cash escrow for the purpose of assuring that required
landscaping in the common areas (Lot 25, Block I) shall be constructed and installed
according to the Landscape Plan attached as Exhibit D and made a part hereof.
Landscaping associated with individual unit lots shall be constructed and installed
prior to issuance of certificates of occupancy for said unit lots. If required unit lot
landscaping has not been completed at the time of occupancy, the Developer shall escrow
$600 per unit to ensure that the required landscaping shall be installed within eight months.
22.) Reimbursement of Costs - The Developer shall reimburse the City for all
costs, including reasonable engineering, legal, planning and administrative expenses incurred
by the City in connection with all matters relating to the administration and enforcement of
the within Agreement and the performance thereof by the Developer. Such reimbursement of
costs shall be made within thirty (30) days of the date of mailing of the City's notice of costs
to the address set forth in paragraph 30.) below.
23.) Claims for Work - The Developer or its contractor shall do no work or
furnish no materials not covered by the plans and specifications and special conditions of this
Agreement, for which reimbursement is expected from the City, unless such work is first
ordered in writing by the City Engineer as provided in the specifications. Any such work or
materials which may be done or furnished by the contractor without such written order first
being obtained shall be at its own risk, cost and expense.
24.) Surety for Improvements - Deposit or Letter of Credit - For the purpose of
assuring and guaranteeing to the City that the Improvements to be constructed, installed and
furnished by the Developer as set forth in paragraph 4.) above, shall be constructed, installed
and furnished according to the terms of this Agreement, and to ensure that the Developer
shall pay all claims for work done and materials and supplies furnished for the performance
of this Agreement, the Developer agrees to furnish to the City a cash deposit or Irrevocable
Letter of Credit approved by the City in an amount equal to 150 % of the total cost of said
Improvements estimated by the Developer's engineer and approved by the City Engineer.
Said deposit or Letter of Credit shall remain in effect for until completion and approval of
the required improvements.
25.) Alternative Security Agreement - In lieu of the letter of credit or cash deposit
required by paragraph 24.) above, the Developer may provide an agreement proving
alternative security, subject to the following conditions:
(01) All documentation evidencing the Alternative Security Agreement shall be
approved by the City Attorney prior to the commencement of work covered by the
Agreement.
6.
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(02) All work covered by the Alternative Security Agreement shall be inspected
by the City Engineer.
(03) No disbursement of funds shall be made by the escrow agent under said
Alternative Security Agreement to contractors on pay requests until the City Engineer
certifies that the work has been done in accordance with City standards and the plans
and specifications.
(04) Disbursements of funds shall be made only upon completion of the following
stages of construction:
(a) After the first lift of asphalt has been placed on St. Albans Bay Circle
(b) After the first lift of asphalt has been placed on Spring Circle
(c) After the last lift of asphalt has been placed on St. Albans Bay Circle
(d) Upon completion of all construction, including landscaping, and last lift
of asphalt has been placed on Spring Circle
26.) Insurance - The Developer shall take out and maintain during the life of this
agreement public liability and property damage insurance covering personal injury, including
death, and claims for property damage which may arise out of the Developer's work or the
work of its subcontractors, or by one directly or indirectly employed by any of them. This
insurance policy shall be a single limit public liability insurance policy in the amount of
$1,000,000.00. The City shall be named as additional insured on said policy and the
Developer shall file a copy of the insurance coverage with the City.
Prior to commencement of construction of the Improvements described in paragraph
4.) above, the Developer shall file with the City a certificate of such insurance as will protect
the Developer, its contractors and subcontractors from claims arising under the workers'
compensation laws of the State of Minnesota.
27.) Laws. Ordinances. Regulations and Permits - Developer shall comply with all
laws, ordinances, and regulations of all regulatory bodies having jurisdiction of the Subject
Property, said laws existing during the period of construction, and shall secure all permits
that may be required by, but not limited to, the City of Shorewood, the State of Minnesota,
the Minnehaha Creek Watershed District, the Minnesota Department of Health, the Hennepin
County Transportation Department, and the Metropolitan Waste Control Commission before
commencing development of the plat.
28.) Sewer Charges - The Developer shall pay $1000 per unit for local sanitary
sewer access charges (LSSAC) pursuant to Shorewood City Code. As an elderly housing
project, the Developer shall receive credit for twelve (12) sewer units. The Developer shall
pay LSSAC for twelve (12) units ($12,000) prior to release of the final plat.
7.
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29.) Park Fund Payment - The Developer shall pay $750 per unit to the Park
Fund pursuant to Shorewood City Code. As an elderly housing project, the Developer shall
receive credit for twelve (12) units. The Developer shall pay $9000 to the Park Fund prior
to release of the final plat.
30.) Notices - All notices, certificates and other communications hereunder shall
be sufficiently given and shall be deemed given when mailed by certified mail, return receipt
requested, postage prepaid, with proper address as indicated below. The City and the
Developer by written notice given by one to the other, may designate any address or
addresses to which notices, certificates or other communications to them shall be sent when
required as contemplated by this Agreement. Unless otherwise provided by the respective
parties, all notices, certificates and communications to each of them shall be addressed as
follows:
To the City:
City Administrator
CITY OF SHOREWOOD
5755 Country Club Road
Shorewood, Minnesota 55331
With a Copy to:
Shorewood City Attorney
c/o LARKIN, HOFFMAN, DALY &
LINDGREN, Ltd.
1500 Norwest Financial Center
7900 Xerxes Avenue South
Minneapolis, Minnesota 55431
To the Developer:
Pete Boyer Development Co.
19685 Excelsior Boulevard
Excelsior, Minnesota 55331
31.) Proof of Title - Developer shall furnish a title opinion or title insurance
commitment addressed to the City demonstrating that Developer is the fee owner or has a
legal right to become fee owner of the Subject Property upon exercise of certain rights and to
enter upon the same for the purpose of developing the property. Developer agrees that in the
event Developer's ownership in the property should change in any fashion, except for the
normal process of marketing lots, prior to the completion of the project and the fulfillment of
the requirements of this Agreement, Developer shall forthwith notify the City of such change
in ownership. Developer further agrees that all drainage and utility easements provided to
City shall be free and clear of all liens and encumbrances.
32.) Indemnification - The Developer shall hold the City harmless from and
indemnify the City against any and all liability , damage, loss, and expenses, including but
not limited to reasonable attorneys' fees, arising from or out of the Developer's performance
and observance of any obligations, agreements, or covenants under this Agreement. It is
8.
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further understood and agreed that the City, the City Council, and the agents and employees
of the City shall not be personally liable or responsible in any manner to the Developer, the
Developer's contractors or subcontractors, materialmen, laborers, or any other person, finn
or corporation whomsoever, for any debt, claim, demand, damages, actions or causes of
action of any kind or character arising out of or by reason of the execution of this Agreement
or the performance and completion of the work and Improvements hereunder.
33.) Declaration of Covenants. Conditions and Restrictions - Developer has
provided a copy of the Declaration of Covenants, Conditions and Restrictions of The
Seasons, which Declaration shall include the City as a signatory thereto, for review and
approval by the City prior to recording.
The Developer agrees to incorporate the following provisions in the Declaration:
(01) Private Road. It is understood that the private streets within the plat shall be
maintained by the Developer or his successors in interest, including the appropriate
homeowner's association and will not be accepted or maintained by the City until such
time as it is made to conform to the standards which exist for public streets at the
time of request for acceptance.
(02) Elderly Housing. Occupancy of dwelling units is limited to no more than
two (2) adults, sixty-two (62) years of age or older, except that the age limitation
need not apply to one adult, live-in, care-provider serving the needs of the primary
occupant(s). If such care-provider resides on the premises for more than thirty (30)
days, notice must be given to the Shorewood Zoning Administrator.
(03) The Developer or homeowner's association shall annually fIle with the City
Clerk and the Zoning Administrator a certified copy of a quarterly resume of
occupants of such building or buildings, listing the number of tenants or occupants by
age, by unit.
34.) Remedies Upon Default-
(01) Assessments. In the event the Developer shall default in the performance of
any of the covenants and agreements herein contained and such default shall not have
been cured within thirty (30) days after receipt by the Developer of written notice
thereof, the City may cause any of the Improvements described in paragraphs 4.) and
5.) above to be constructed and installed or may take action to cure such other default
and may cause the entire cost thereof, including all reasonable engineering, legal and
administrative expense incurred by the City to be recovered as a special assessment
under Minnesota Statutes Chapter 429, in which case the Developer agrees to pay the
entire amount of such assessment within thirty (30) days after its adoption. Developer
further agrees that in the event of its failure to pay in full any such special assessment
9.
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within the time prescribed herein, the City shall have a specific lien on all of
Developer's real property within the Subject Property for any amount so unpaid, and
the City shall have the right to foreclose said lien in the manner prescribed for the
foreclosure of mechanic's liens under the laws of the State of Minnesota. In the event
of an emergency, as determined by the City Engineer, the notice requirements to the
Developer prescribed by Minnesota Statutes Chapter 429 shall be and hereby are
waived in their entirety, and the Developer shall reimburse the City for any expense
incurred by the City in remedying the conditions creating the emergency.
(02) Performance Guaranty. In addition to the foregoing, the City may also
institute legal action against the Developer or utilize any cash deposit made or letter
of credit delivered hereunder, to collect, pay, or reimburse the City for:
(a) The cost of completing the construction of the improvements
described in paragraphs 4.) and 5.) above.
(b) The cost of curing any other default by the Developer in the
performance of any of the covenants and agreements contained herein.
(c) The cost of reasonable engineering, legal and administrative expenses
incurred by the City in enforcing and administering this Agreement.
(03) Legal Proceedings. In addition to the foregoing, the City may institute any
proper action or proceeding at law or at equity to abate violations of this Agreement,
or to prevent use or occupancy of the proposed dwellings.
35.) Headings - Headings at the beginning of paragraphs hereof are for
convenience of reference, shall not be considered a part of the text of this Agreement, and
shall not influence its construction.
36.) Severability - In the event any provisions of this Agreement shall be held
invalid, illegal, or unenforceable by any court of competent jurisdiction, such holding shall
not invalidate or render unenforceable any other provision hereof, and the remaining
provisions shall not in any way be affected or impaired thereby.
37.) Execution of Counteq>arts - This Agreement may be simultaneously executed
in several counterparts, each of which shall be an original, and all of which shall constitute
but one and the same instrument.
38.) Construction - This Agreement shall be construed in accordance with the
laws of the State of Minnesota.
10.
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.
39.) Successors and Assigns - It is agreed by and between the parties hereto that
the Agreement herein contained shall be binding upon and inure to the benefit of their
respective legal representatives, successors, and assigns.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed on the day and year first above written.
DEVELOPER:
CITY:
City of Shorewood
r Development Company
U
By:
BY~~
Its: May r
11.
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STATE OF MINNESOTA
ss.
COUNTY OF HENNEPIN
On this/"G, -::!: day of m~.--t 1994, before me, a Notary Public within and for said
County, personally appeared Barb J. Brancel and James C. Hurm to me personally
known, who, being each by me duly sworn, did say that they are respectively the Mayor and
City Administrator/Clerk of the municipal corporation named in the foregoing instrument,
and that said instrument was signed and sealed on behalf of said corporation by authority of
its City Council, and said Mayor and City Administrator/Clerk acknowledged said instrument
to be the free act and deed of said corporation.
~1I18-'1tl Theresa L. Naab1
~. ., NoIaI'f PubUc.Minnesola I..
-W Hennepin County !
ilt./lIG&'" My Commission Exp 1-31-00 1
STATE OF MINNESOTA
~.~tUaa-L
Notary Public
ss.
COUNTY OF HENNEPIN
The foregoing instrument was acknowledged before me this /& ~ day of
m~ ' 1994, by Pete Boyer, President of Pete Boyer Development
Company, subsidiary of Pete Boyer Construction, Inc.
~adaL
Notary Public
~1I18-'1tl Theresa L. Naab
~, Notary Publlc.Mlnnesota
~~ Hennepin County
l'~./ftM... My Commission Exp. 1.31.00
THIS INSTRUMENT WAS DRAFTED BY:
Larkin, Hoffman, Daly & Lindgren, Ltd.
1500 Norwest Financial Center
7900 Xerxes Avenue South
Minneapolis, Minnesota 55431
(TJK)
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LEGAL DESCRIPTION
"All that part of the Northeast Quarter of the Southeast Quarter of the Southwest
Quarter of Section 25, Township 117, Range 23, Hennepin County, Minnesota
according to the Government Survey thereof, described as follows: Commencing at a
point on the North line of the right-of-way conveyed to the St. Paul, Minneapolis and
Manitoba Railway Company, which point is 411.68 feet in a straight line from a point
on the said North right-of-way line where the same intersects the west line of the
above mentioned tract at a point 41 feet North of the Southwest corner thereof; thence
Easterly along said right-of-way curving to the right along the circumference of a
circle, the radius of which is 673 feet to the South line of said tract at a point of same
508 feet from the Southwest corner thereof; thence East along said South line 63.5
feet to a point 88.64 feet West of the Southeast corner of said tract; thence
Northeasterly parallel with and 58 feet Northwesterly from the centerline between the
tracks of the Suburban Railroad 98.29 feet to the East line of said tract and at a point
42.47 feet North of the Southeast corner of the same; thence North 617.1 feet to the
Northeast corner of said tract; thence west 284.5 feet more or less, to a point 374.4
feet East of the West line of the Northeast Quarter of the Southeast Quarter of the
Southwest Quarter said Section, Township and Range; thence Southerly 619.2 feet to
the point of beginning.
ALSO
That part of the Northeast Quarter of the Southwest Quarter of Section 25, Township
117, Range 23, Hennepin County, Minnesota described as follows: Beginning at the
Southeast comer of said Northeast Quarter of the Southwest Quarter; thence North 7
rods to the centerline of Glencoe road; thence Southwesterly along said centerline to
the south line of said northeast Quarter of the Southwest Quarter; thence east along
said south line to the point of beginning. Subject to Public Road Easement.
Also that part of Lot 30, Aud. Sub. No. 141 Hennepin County, Minnesota lying
Northwesterly of the Northwesterly right-of-way line of State Highway No. 7 and
Southwesterly of the following described line: Commencing at the intersection of said
Northwesterly right-of-way line with the west line of the Southeast Quarter of Section
25, Township 117, North, Range 23 West of the 5th Principal Meridian; thence North
o degrees 17 minutes 30 seconds East, assumed bearing, along said west line of the
Southeast Quarter a. distance of 360 feet to the point of beginning of the line being
described; thence South 12 degrees 52 minutes 12 seconds East to said Northwesterly
right..of-way line, and said line there ending.
Exhibit A
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RESOLUTION NO. 55-93
A RESOLUTION APPROVING A REVISED CONCEPT PLAN,
DEVELOPMffiNTSTAGEPLAN
AND PRELIMINARY PLAT FOR
SEASONS P.U.D.
WHEREAS, the City Council of the City of Shorewood (City) approved a Concept
Plan for "Seasons P.U.D." on 30 November 1992 (Resolution No. 116-92); and
WHEREAS, Pete Boyer Construction, Inc. (Developer) has now submitted its request
for a revised Concept Plan, Development Stage Plan and Preliminary Plat approval for said
P.U.D. to include 24 lots and dwelling units (12, two-unit buildings); and
WHEREAS, the Developer's request has been reviewed by the City Planner, and his
recommendations have been duly set forth in Memoranda to the Planning Commission, dated
3 May and 20 May 1993, which Memoranda are on file at City Hall; and
WHEREAS, the matter was considered by the City Council at its regular meeting of
24 May 1993, at which time the Planning Commission recommendations were reviewed, and
reports were received from the City staff; and
WHEREAS, after due discussion and deliberation and after consideration of the
reports, comments, and recommendations of the City staff, and the Planning Commission,
the City Council voted to approve the revised Concept Plan, Development Stage Plan, and
Preliminary Plat for the Seasons P. U.D., and directed the City staff to prepare Findings of
Fact in accordance therewith, to be presented at the next meeting.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Shorewood as follows:
FINDINGS OF FACT
1. That the density of the proposed P. U.D. is within the guidelines of the
Shorewood Comprehensive Plan.
2. That the Development Stage Plan is consistent with the previously approved
Concept Plan for the P. U.D.
3. That the Developer proposes to acquire additional property as described in
Exhibit A, attached hereto and made a part hereof, and combine it with his original 4.2 acres
of land.
4. That the Developer has submitted a landscape plan for the development.
5. That the Developer's plans have been discussed with representatives of
MNDOT and the Minnehaha Creek Watershed District.
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Exhibit B
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6. That the Developer has agreed to obtain drainage easements as required by the
Watershed District.
7. That inadequate room exists within the project for all units to have optional
decks, patios or porches.
CONCLUSION
That the Developer's request for revised Concept Plan and Development Stage approval for
12, two-family dwellings (24 lots and units) and the Preliminary Plat submitted therewith are
hereby approved, subject to the following conditions and restrictions:
1. A Final Plan and Final Plat must be submitted by the Developer by
14 September 1993.
2. The Developer must prepare protective covenants which notify prospective
buyers that certain units will not be able to include optional decks, patios and screen porches.
3. The Final Plan must clearly demonstrate that a minimum of 13 feet will be
maintained between structures.
4. The design of center islands must be approved by the City Engineer and the
Fire Marshal. .
5. Construction of a privacy fence along the westerly boundary of the site will be
considered as part of the final plan.
6. Prior to submitting the final plan for the project, the Developer must obtain
approvals from the Minnesota Department of Transportation and the Minnehaha Creek
Watershed District.
7. The Developer may obtain a grading permit, subject to the approval and
supervision of the City Engineer, prior to submitting a final plat.
8. . The Developer shall provide a letter of credit or cash escrow to guarantee that
the site will be restored in the event the project is not commenced.
ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 14th day of
June, 1993.
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Rob Daugherty, Acting Mayor
ATTEST:
(l''''114 (, 1),AN/'/\
James C. Hurm, City Administrator/Clerk
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DECLARATION OF COVENANTS.
CONDITIONS AND RESTRICTIONS
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OF THE SEASONS
THIS DECLARATION, made this J7 day of Mft~ ' 1994,
by Pete Boyer Construction, "Inc. a Minnes ta corporation
(hereinafter called If Declarant If), and Victoria State Bank, a
Minnesota corporation, mortgagee.
WITNESSETH:
WHEREAS, Declarant is the owner of the real property described
in Article II, Section 1, of this Declaration and desires to create
thereon a senior residential neighborhood with permanent open
spaces and other common amenities for the benefit of said
neighborhood; and
WHEREAS, Declarant has caused the incorporation of The Seasons
Townhouse Association of Shorewood under the laws of the State of
Minnesota as a non-profit corporation, which shall own the Common
Area and to which shall be assigned the powers and duties of
maintaining the Common Area and certain other portions of the
property, administering and enforcing the covenants and
restrictions herein, and collecting and disbursing the assessments
and charges herein created.
WHEREAS, Victoria State Bank holds a mortgage on the subject
property and for the purpose of passing clear title does hereby
join in this Declaration.
NOW, THEREFORE, Declarant hereby declares that the real
property described in Article II, Section 1, hereof and such
additions thereto as may hereafter be made pursuant to Article II,
Section 2, hereof, shall be held, sold, conveyed and occupied
subject to the following covenants, restrictions, easements,
charges and liens, which are for the purpose of protecting the
value and desirability of, and shall run with, the real property,
and which shall be binding on all parties having any right, title
or interest in the described properties or any part thereof, their
heirs, successors and assigns, and shall inure to the benefit of
each Owner thereof.
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ARTICLE I
DEFINITIONS
The following words when used in this Declaration or any
Supplementary Declaration shall have the following meanings:
Section 1.
Association.
"Association" shall mean The Seasons Townhouse
Section 2. "Common Area" shall mean all of Lot 25, Block 1
of The Seasons, according to the recorded plat thereof.
Section 3. "Common Expenses" shall mean expenses of the
Association for maintenance, repair, operation, management and
enforcement; expenses declared common expenses by the provisions
of this Declaration; and all sums lawfully assessed against the
Lots by the Board of Directors of the Association.
Section 4. "Declarant" shall mean Pete Boyer Construction,
Inc., a Minnesota corporation, and its successors and assigns if
such successors or assigns should acquire more than one undeveloped
Lot for the purpose of development.
Section 5. "First Mortgagee" shall mean any person owning a
mortgage on any Lot, which mortgage is first in priority upon
foreclosure to all other mortgages which may affect such Lot.
Section 6. "Home" shall mean a residential dwelling
constructed on a Lot subject to this Declaration.
Section 7.
Garage.
"Unit" shall mean a Home and its corresponding
Section 8. "Member" shall mean a Member of the Association
as provided in Article III hereof.
Section 9. "Owner" shall mean the record Owner, whether one
or more persons, or entities of title to any Lot subject to this
Declaration, including contract for deed vendors and vendees, but
excluding those having such interest merely as security for the
performance of an obligation.
Section 10. "Property" shall mean the real property described
in Article II, Section 1, hereof, and such additions thereto
described in Article II, Section 2, as may hereafter be brought
within the jurisdiction of the Association.
Section 11. "Lot" shall mean each numbered Lot of Block 1,
The Seasons, according to the plat thereof, excluding Lot 25.
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Section 12. "Resident" shall mean the person or persons whose
primary house is in this development, and all residents must be
sixty-two (62) years of age or older.
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION
Section 1. Existina Property. The real property which is and
shall be held, sold, conveyed and occupied subject to this
Declaration is located in the City of Shorewood, County of Hennepin
and State of Minnesota, and is legally described as follows:
Lots 1 through 25, Block 1, The Seasons, according to the
plat thereof on record in the office of the Hennepin
County Recorder.
Section 2. Additional Property. The Declarant reserves the
right for a five (5) year period from and after the date of the
execution of this Declaration to add additional property to The
Seasons Townhouse Association and make such property subject to
this Declaration of Covenants, Conditions and Restrictions.
ARTICLE III
MEMBERSHIP AND VOTING RIGHTS
IN THE ASSOCIATION
Section 1. Members. All Owners of Units shall automatically
by virtue of such interest be Members of the Association. When
more than one person is an Owner of a Unit, all such persons shall
be Members. It shall be the duty of each Owner to register his or
her name and the nature of his or her interest with the Secretary
of the Association. If an Owner fails to register his or her name
or interest, the Association shall be under no duty to recognize
his or her ownership. However, one exception to this general rule
exists: an Owner may assign membership to a resident if and only
if the relationship between the Owner and resident is that of
parent-child or siblings.
Section 2. Votina. The Association shall have two classes
of voting membership:
Class A. Class A Member(s) shall be all Owners, with the
exception of the Declarant, who shall be entitled to one vote
for each Uni t owned. When more than one person holds an
interest in any Unit, all such persons shall be Members. The
vote for such Unit shall be exercised as they determine, but
in no event shall more than one vote be cast with respect to
any Unit.
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Class B. The Class B Member(s) shall be the Declarant
who shall be entitled to three (3) votes for each Unit owned.
The Class B membership shall cease and be converted to Class
A membership on the happening of ei ther of the following
events, whichever occurs earlier:
(a) when the total votes outstanding in the Class
A membership equals or exceeds the total votes
outstanding in the Class B membership, or
(b) on the expiration of three (3) years from and
after the date of execution of this Declaration.
Section 3 . Trans fer of Membership. Membership shall be
appurtenant to and may not be separated from ownership of a Unit.
The share of a Member in the funds and assets of the Association
cannot be assigned, pledged, encumbered or transferred in any
manner, except as an appurtenance to his or her Unit.
Section 4. Proxy. Owners may give a proxy to another member
(owners, as well as assignees in a parent-child or sibling
relationship with an owner) or a lien-holder. This proxy must be
in writing, signed by all owners of the unit, and filed with the
Secretary of the Association before the appointed time.
ARTICLE IV
PROPERTY RIGHTS IN 'l'HE
CODON AREA
Section 1.
shall have the
easements over
purposes:
Members' Easements of En10vment. Every Member
following rights and nonexclusive appurtenant
and across the Common Area for the following
(a) Ingress and egress.
(b) Utilities, water and sewer.
(c) Parking.
(d) EnjOYment for recreational purposes.
Every Member shall also have an exclusive appurtenant easement over
the Common Area for the use and enjoYment of the sidewalk, steps
and entry way adjacent to his or her Lot.
Section 2. Title and Improvements to the Common Area. The
Declarant shall convey and record marketable title to the Common
Area to the Association prior to the conveyance of fee title to
any Unit. The Declarant covenants and agrees with the Association
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that it will make and pay for all improvements on the Common Area
as set forth in the plans and specifications on file with the
Association, and delivery of the deed to the Common Area shall not
constitute a release of Declarant from the obligation to perform
such work. Upon the Declarant having fulfilled its obligation to
improve the Common Area, the Association shall file in the office
of the County Recorder a release of the Declarant. Until the
Declarant has completed the work as set forth in said plans and
specifications, the Declarant shall have the right to enter and to
store materials and equipment upon the Common Area for the purpose
of completing such work.
Section 3. Extent of Members' Easements. The rights and
easements of enjoyment described herein and the title of the
Association to the Common Area shall be subject to the following:
(a) The right of the Association, in accordance with
its Articles of Incorporation and By-Laws, to borrow money for
capital improvements on the Common Area, and in aid thereof
to mortgage the Common Area. The rights of any such
mortgagees in the Common Area shall be subordinate to the
rights of the Members hereunder. No indebtedness authorized
by this paragraph shall exceed twice the sum of the annual
assessment levied against all Units. No such mortgage shall
be given or other encumbrance of the Common Area permitted
unless first approved in writing by the Owners and First
Mortgagees representing seventy-five percent (75%) of the
Lots.
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(b) The right of the Association to take such steps as
are reasonably necessary to protect the Common Area against
foreclosure.
(c) The right of the Association to suspend the
enjoyment rights of allY Melllbe.! fo.! any period not to exceed
sixty (60) days and to impose a fine not to exceed Ten Dollars
($10.00) for each infraction of its published rules and
regulations. Nothing contained in this paragraph, however,
shall be deemed to deny an Owner easements for access and
utility purposes. Furthermore, any such fine may not exceed
$50.00 for all consecutive infractions arising out of the same
violation of published rules and regulations of this
Declaration.
(d) The right of the Association to charge reasonable
admission and other fees for the use of the Common Area.
(e) The right of the Owner of each Unit to an exclusive
appurtenant easement over the Common Area for areas occupied
by bay windows, roof overhangs, air conditioning compressors,
flower boxes and other appurtenances which are part of the
original construction of any Unit or which are added pursuant
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to the provisions of Section 1 of Article VI hereof.
(f) The right of the Association to dedicate or transfer
all or any part of the Common Area to any public agency,
authority or utility for such purposes and subject to such
condi tions as may be agreed to by the Members. No such
dedication or transfer shall be effective unless first
approved in writing by the Owners and First Mortgagees of one
hundred percent (100%) of the Units.
Section 4. Delegation of Use. Any Owner may delegate, in
accordance with the By-Laws, his or her right of enjoyment to the
Common Area to members of his or her family and his or her guests.
Section 5. Taxes and Special Assessments on the Common Area.
The Association shall have the right, power and authority to
collect taxes and special assessments levied against the Common
Area as part of the annual assessment, if such taxes and special
assessments are not collected by the governmental body from the
Owners or paid by the Owners to the governmental body when the same
are due and payable.
Section 6. Use of the Common Area. The Common Area shall be
used strictly in accordance with the easements granted thereon.
Except as herein provided, no Owner shall obstruct or interfere
with the rights and privileges of other Owners in the Common Area,
and nothing shall be planted, altered, constructed upon or removed
by an Owner from the Common Area except by prior written consent
of the Association. If an Owner shall violate this Section, the
Association shall have the right to restore the Common Area to its
prior condition and assess the cost thereof against the Owner who
violates this Section, and such cost shall become a lien upon the
Unit of such Owner which is due and payable upon demand. The
Association shall have the same right and powers to collect the
cost of such restoration as provided in Article VII hereof for the
collection of delinquent annual assessments. If any Owner
interferes with the right and privileges of another Owner in the
use of the Common Area, except as provided herein, the Association
or the Owner may commence an action to enjoin such interference,
and the prevailing party shall be entitled to recover such
reasonable attorneys' fees as the court may allow, together with
all necessary costs and disbursements incurred in connection
therewith.
ARTICLE V
RIGH'l'S AND OBLIGATIONS OF THE ASSOCIATION
Section 1. Common Area Maintenance. The Association shall
be responsible for the maintenance and repair and for the exclusive
management and control of the Common Area and the Lots and all
exterior improvements thereon, and shall keep the same in good,
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clean, attractive and sanitary condition. The Common Area and lot
improvements shall be deemed to include such things as private
streets, driveways, sidewalks, trees, flowers and shrubs, patios
and decks, and docks; together with all lines, pipes, wires,
conduits, systems or other utilities which are installed on or
across the Common Area or the Lots. The Association, or its
contractor, shall have the right to enter upon the Lots to perform
the maintenance and repair outlined herein.
Section 2. Exterior Maintenance. The Association shall be
responsible for the maintenance and repair of the exterior surfaces
of each Home and Garage, including painting, repair, replacement
and care for roofs, gutters and downspouts, exterior building
surfaces, overhangs and other exterior improvements. Such
responsibility for exterior maintenance shall not extend to glass
surfaces or doors, screens or screen doors, or exterior door or
window fixtures, unless specifically included in insurance
coverage.
Section 3. Incidental Damaae. The Association shall be
responsible for the repair of all incidental damage caused to a
Home or Lot by any maintenance, repair, alteration or improvements
of the Common Area or the exterior surfaces of the homes performed
by or with the authority of the Association.
Section 4. Services. To the extent it deems advisable, the
Association may obtain and pay for the services of any person or
entity to manage its affairs, to fulfill its obligations hereunder,
or to enforce this Declaration or the By-Laws. The Association may
arrange with others to furnish water, trash collection, sewer
service, and other common services to each Lot.
Section 5. Personal Property for Common Use. The Association
may acquire and hold for the use of all of the Members tangible and
intangible personal property and may dispose of the same by sale
or otherwise. Every Member may use such property in accordance
with the purpose for which it is intended and without hindering or
encroaching upon the lawful rights of other Members.
Section 6. Rules and Regulations. The Association may make
reasonable rules and regulations governing the use of the Lots and
the Common Area, which rules and regulations shall be consistent
with the rights and duties established in this Declaration.
Section 7. Access at Reasonable Hours. For the purpose of
performing the Common Area and exterior maintenance authorized by
this Article, the Association, acting through its duly authorized
agents or employees, shall have the right after reasonable notice
to the Owner to enter upon any Lot at reasonable hours of the day.
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ARTICLE VI
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OBLIGATIONS OF THE OWNERS
Section 1 . Archi tectural Control. From and after the
completion of construction and sale of any Lot, no building, fence,
wall or other structure shall be commenced, erected or maintained
upon the Property, nor shall any modification to the exterior of
any Home or Garage, whether to the structure or appearance thereof,
be made until the plans and specifications showing the nature,
kind, shape, height, materials and location of the same shall have
been submitted to and approved in writing as to harmony of external
design and location in relation to surrounding structures and
topography by the Association or by an architectural committee
composed of three or more representatives appointed by the
Association. The Association or the architectural committee shall
not approve any alterations or structural modifications which would
jeopardize or impair the soundness, safety or appearance of the
Property. In the event the Association fails to approve or
disapprove such design and location within thirty (30) days after
said plans and specifications have been submitted to it, approval
will not be required and this Article shall be deemed to have been
fully complied with. The prevailing party in an action brought by
the Association pursuant to this Section shall be entitled to
recover from the other party reasonable attorneys' fees together
with all necessary costs and disbursements incurred in connection
therewith.
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Section 2. Use of Lots. Each Lot shall be used for
residential Unit purposes only, except that the Declarant shall be
entitled to maintain model townhouses on the Property. No
structure of a temporary character, trailer, tent, shack, or other
building shall be used on any Lot or the Common Area at any time
as a residence, either temporarily or permanently. No improvement
or structure whatsoever, other than single-family dwellings or
garages or other structure appurtenant to a Home and approved as
provided in Section 1 of this Article may be erected, placed or
maintained. No noxious or offensive activities shall be carried
on upon any Lot, nor shall anything be done thereon which may be
or may become an annoyance or a nuisance to the neighborhood.
Section 3. Use of the Unit. The Units may be rented. I f the
Owner allows renters, the renters must follow the covenants and
bylaws, which apply to renters as residents.
Section 4. Interior Maintenance. Every Owner shall maintain
and keep in repair the interior of his or her Unit. Every Owner
shall perform promptly all maintenance and repair work within his
or her Unit which, if omitted, would adversely affect the Property
in its entirety or in part belonging to other Owners or to the
Association, being expressly responsible for any damage or
liability that his or her failure to do so may cause. Every Owner
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shall be deemed to own and shall be responsible for the maintenance
and repair of all lines, pipes, wires, conduits, systems or other
utilities, together with the fixtures and equipment served or
supplied thereby, which are installed within his or her Unit or
upon his or her Lot, commencing at the point where such utilities
enter upon his or her Lot.
Section 5. Responsibilitv for Misuse and Nealiaence. In the
event that the need for maintenance or repair of the Common Area
and improvements thereon or the exterior surfaces of any Unit is
caused by the misuse or negligence of an Owner, his or her family,
guests, tenants or invi tees, the cost of such maintenance or repair
shall be assessed against such Owner. Such cost shall become a
lien upon the Lot of such Owner which is due and payable on demand,
and the Association shall have the same right and powers to collect
the amount so assessed as provided in Article VII for the
collection of delinquent annual assessments.
ARTICLE VII
ASSESSMENTS
Section 1. Creation of the Lien and Personal Obliaation of
Assessments. The Declarant for each Lot owned hereby covenants,
and each Owner of any Lot by acceptance of a deed therefor, whether
or not it shall be so expressed in such deed, is deemed to covenant
and agree to pay to the Association (1) annual assessments or
charges and (2) special assessments for capital improvements, such
assessments to be established and collected as hereinafter
provided. The annual and special assessments, together with
interest, costs and reasonable attorneys' fees, shall be a charge
on the land and shall be a continuing lien upon the Lot against
which each such assessment is made. Each such assessment, together
with interest, costs and reasonable attorneys' fees, shall also be
the personal obligation of the person who was the Owner of such Lot
at the time when the assessment fell due. The personal obligation
for delinquent assessments shall not pass to his or her successors
in title unless expressly assumed by them.
Section 2. Use of Assessments. The assessments shall be used
exclusively for the benefit of the Owners, to promote the health,
safety and welfare of the Owners, to preserve, protect and enhance
the value of the Property, and to ensure the enjoyment of rights,
privileges and easements with respect to the Common Area.
Section 3. Method of Levvina Annual Assessments. Annual
assessments against the Lots for Common Expenses shall be levied
by a majority vote of the Board of Directors of the Association.
The Board of Directors shall fix the amount of the annual
assessment against each Lot at least thirty (30) days in advance
of each annual assessment period and send written notice thereof
to every Owner. All Units shall be assessed equally. The annual
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assessments shall be due and payable in monthly installments on
such dates as are established by the Board of Directors. If an
annual assessment is not timely made, there shall be an assessment
in the amount, installments, and on the due dates of the last prior
annual assessment. The Board of Directors may require each Owner
to deposit and maintain with the Board of Directors an amount equal
to one quarterly estimated annual assessment for use as working
capital.
Section 4. Commencement and Maximum Amount of Annual
Assessments. The annual assessments herein authorized shall
commence as to all Lots on the first day of the first month
following conveyance of the Common Area to the Association. Until
January 1 of the year following the conveyance of the first Unit
to an Owner, the maximum annual assessment shall be $1,200.00 per
~on which there is a completed Unit.
(a) At the time each Unit on which has been awarded a
certificate of occupancy is sold by Declarant the Purchaser
(Owner) shall pay a capitalization fee to the Association of
$300.00.
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(b) The Declarant shall, after the commencement of the
obligation to pay assessments, pay to the Association for each
Unit which has not been awarded a certificate of occupancy
reduced monthly assessment payments in the amount of 25% of
full monthly assessment payments. No assessments are due for
vacant Lots.
(c) The Declarant shall pay full monthly assessment
payments as to each Unit which has been awarded a certificate
of occupancy but has not been conveyed to a purchaser.
(d) From and after January 1 of the year immediately
following the conveyance of the first Unit to an Owner, the
maximum annual assessment may be increased each year not more
than 5% or a percentage equal to the increase for the
immediately preceding year in the Consumer Price Index
established by the United States Department of Labor for the
Minneapolis area, whichever of said percentages is greater,
above the maximum assessment for the previous year without an
affirmative vote of a majority of the membership approving
such an increase.
Section 5. Reserves and Surplus. Annual assessments for
Common Expenses shall include an allocation to maintain an adequate
Replacement Reserve Fund for maintenance, repair and replacement
of those elements of the Common Area and the exterior surfaces of
the Units that must be repaired or replaced on a periodic basis.
Such elements include, by way of example and without limitation,
roadways and driveways, sidewalks, roofs, common utility lines,
decks and outdoor lighting systems. In addition, the Board of
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Directors may establish and fund as part of the annual assessments
a General Operating Reserve to provide a measure of financial
stability during periods of special stress and to be used to meet
deficiencies as a result of delinquent payments and other
contingencies. The Association shall not be obligated to apply any
such surplus to the reduction of the annual assessments in the
succeeding year, but may carry forward such surplus from year to
year as the Board of Directors may determine to be desirable for
the greater financial security and the effectuation of the purposes
of the Association.
Section 6. Special Assessments. In addition to annual
assessments, the Board of Directors may levy special assessments
for the purpose of defraying, in whole or in part, the cost of any
construction or reconstruction, unexpected repair or replacement
of capital improvements on the Common Area, exterior surfaces of
Units, or utility lines serving more than one Lot. Any such
assessment, however, shall first be approved by a vote of Owners
representing seventy-five percent (75%) of the Units at a meeting
duly called for such purpose, written notice of which shall be sent
to all Owners at least thirty (30) days in advance.
Section 7. Uniform Rate of Assessments. Both annual and
special assessments shall be fixed at a uniform rate for all Units.
Section 8. Record of Assessments. The assessments against
all Units shall be set forth on a roll of the Units kept by the
Secretary of the Association and available for inspection at
reasonable times by any Owner or his or her authorized
representative. Such roll shall indicate for each Unit the name
and address of the Owners, the assessments levied for all purposes,
and the amounts of all assessments paid and unpaid.
Section 9. Delinauent Assessments: Interest and Liens. Any
assessment or installment thereof not paid within ten (10) days
after becoming due shall bear interest at the rate of eight percent
(8%) per annum from the date when due until paid. All sums
assessed by the Association but unpaid for the share of Common
Expenses chargeable to any Unit shall constitute a lien on such
Unit commencing on the due date of the assessment and prior to all
other liens except only tax liens and liens for special assessments
on the Unit in favor of any taxing and assessing unit of government
and all sums unpaid on a first mortgage of record. The sale or
transfer of any Unit shall not affect the assessment lien.
However, the sale or transfer of any Unit pursuant to foreclosure
of any first mortgage shall extinguish the lien of such assessments
as to payments which become due prior to the foreclosure sale and
transfer. Any such unpaid assessments shall thereupon be spread
over and become a lien on all Units in equal shares. No
foreclosure sale or transfer shall relieve any Unit from liability
for any assessments thereafter becoming due or from the lien
thereof. A lien for assessments may be foreclosed by suit by the
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Board of Directors of the Association in like manner as foreclosure
by action of a mortgage on real property. The Board of Directors
shall have the power to convey the Unit so acquired. In addition,
the Association shall have the right to pursue any other remedy at
law or in equity against any Owner who fails to pay any assessment
or charges against his or her Unit.
Section 10. Ineffectiveness of Waiver or Abandonment. No
Owner may exempt himself from liability for his or her contribution
toward the Common Expenses by waiver of the use or enjoyment of any
of the Common Area, by waiver or protest of the need for
maintenance or repair of exterior surfaces of any Home, or by
abandonment of his or her Unit.
ARTICLE VIII
INSURANCE
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Section 1. Casualtv Insurance on Insurable Common Area. The
Association shall keep all insurable improvements and fixtures of
the Common Area insured against loss or damage by fire for the full
insurance replacement cost thereof, and may obtain insurance
against such other hazards and casualties as the Association may
deem desirable. The Association may also insure any other property
whether real or personal, owned by the Association, against loss
or damage by fire and such other hazards as the Association may
deem desirable, with the Association as the owner and beneficiary
of such insurance. The insurance coverage wi th respect to the
Common Area shall be written in the name of, and the proceeds
thereof shall be payable to the Association. Insurance proceeds
shall be used by the Association for the repair or replacement of
the property for which the insurance was carried. Premiums for all
insurance carried by the Association are Common Expenses included
in the assessments made by the Association.
In addi tion to casualty insurance on the Common Area, the
Association, through the Board of Directors, shall elect to obtain
and continue in effect, on behalf of all Owners, adequate blanket
casualty and fire insurance in such form as the Board of Directors
deem appropriate in an amount equal to the full replacement value,
without deduction for depreciation or coinsurance, of all of the
Dwelling Units, including the structural portions and fixtures
thereof, owned by such Owners. Insurance premiums from any such
blanket insurance coverage, and any other insurance premiums paid
by the Association shall be a Common Expense of the Association to
be included in the regular assessments of the Owners, as levied by
the Association, but such assessments for insurance premiums shall
not be subject to the limits on percentage increases recited in
Article VII hereof. The insurance coverage with respect to the
Dwelling Units shall be written in the name of, and the proceeds
thereof shall be payable to the Association as Trustee for the
Homeowners.
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Section 2. Replacement or Repair of Property. In the event
of damage to or destruction of any part of the Common Area
Improvements, the Association shall repair or replace the same from
the insurance proceeds available. If such insurance proceeds are
insufficient to cover the costs of repairs or replacement of the
property damaged or destroyed, the Association may make a
reconstruction assessment against all Lot Owners to cover the
additional cost of repair or replacement not covered by the
insurance proceeds, in addition to any other Common Assessments
made against such Unit Owner.
In the event that the Association is maintaining blanket
casualty and fire insurance on the Dwelling Units on the Lots in
the Properties, the Association shall repair or replace the same
from the insurance proceeds available.
Section 3. Annual Review of Policies. All insurance policies
shall be reviewed at least annually by the Board of Directors in
order to ascertain whether the coverage contained in the policies
is sufficient to make any necessary repairs or replacement of the
property which may have been damaged or destroyed.
Section 4. Waivers of Subroaation. All policies of physical
damage insurance shall contain waivers of subrogation and waivers
of any reduction of the pro-rata liability of the insurer as a
result of any insurance carried by Owners or of invalidity arising
from any acts of the insured or any Owners. provisions shall be
made for issuance of certificates of physical damage insurance to
mortgagees.
Section 5. Notices to FNMA and FHLMC. All policies of
physical damage, fidelity and comprehensive liability insurance
maintained by the Association shall provide that the policies shall
not be cancelled or substantially modified without at least thirty
(30) days' prior written notice to the Federal National Mortgage
Association ("FNMA") and the Federal Home Loan Mortgage Corporation
("FHLMC"), all of the insureds and all First Mortgagees of record.
The Association agrees to notify FNMA and FHLMC in writing whenever
damage to the Common Area exceeds Ten Thousand Dollars ($10,000.00)
from a single occurrence, or whenever damage with respect to any
Unit covered by a mortgage purchased in whole or in part by FNMA
or FHLMC exceeds One Thousand Dollars ($1,000.00).
Section 6. Individual Owner's Insurance. Insurance coverage
on the furnishings and. other personal property belonging to an
Owner and casualty and public liability insurance coverage within
each Unit shall be the responsibility of the Owner thereof. Each
Owner may obtain insurance at his or her own expense providing
coverage on his or her personal property and for his or her
personal liability, provided that any such policy shall contain a
waiver of subrogation comparable to that referred to in Section 4
of this Article. Each Owner may obtain additional fire and
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extended coverage insurance at his or her own expense on his or her
Unit, provided that any such policy shall provide that it shall be
without contribution as against the fire and extended coverage
insurance maintained by the Association. If a casualty loss is
sustained and there is a reduction in the amount of the proceeds
which would otherwise be payable on the insurance maintained by the
Association due to proration of insurance purchased by any Owner,
such Owner agrees to assign the proceeds of this latter insurance,
to the extent of the amount of such reduction, to the Association
to be distributed as hereinafter provided, and such Owner shall be
liable to the Association to the extent of any such diminution or
loss of proceeds.
ARTICLE IX
RECONSTRUCTION AND REPAIR
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Section 1. Casualty. In the event of damage or destruction
by casualty to any part of the Property subject to this
Declaration, the determination of whether or not to reconstruct or
repair the same shall be made as follows:
( a) Any portion of the Common Area damaged or destroyed
by a casualty otherwise not affecting the Units shall be
restored to substantially the same condition existing prior
to such casualty. If insurance proceeds are insufficient to
pay the costs of such restoration, the Board of Directors
shall levy a special assessment as provided in Section 6 of
Article VII hereof to meet the costs thereof which assessment
shall be fixed at a uniform rate for all Lots.
(b) If a Unit is damaged or destroyed by a casualty it
shall be restored by the Owner to substantially the same
condition which existed prior to such casualty. If insurance
proceeds are insufficient to pay the costs of such restoration
or reconstruction, then the Owner shall be responsible for the
difference needed to complete such restoration or
reconstruction, except that in the event such loss is covered
by blanket casualty insurance carried by the Association as
provided in Section 1 and 2 of Article VIII, then the Board
of Directors shall levy a special assessment to meet such
deficiency in costs, which assessment shall be fixed at a
uniform rate for all Lots.
(c) Partial destruction, which shall mean damage or
destruction which renders less than sixty percent (60%) of the
Units, collectively, unfit for occupancy, shall be
reconstructed or repaired unless this Declaration is revoked
within ninety (90) days after the date of such casualty.
(d) Total destruction, which shall mean destruction
which renders sixty percent (60%) or more of the Homes and
Garages, collectively, unfit for occupancy, shall not be
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reconstructed or repaired unless at a special meeting of the
Members which shall be called within ninety (90) days after
the date of such casualty or if by such date the insurance
loss has not been fully adjusted, then within thirty (30) days
thereafter, Owners representing eighty percent (80%) or more
of the Units vote in favor of such reconstruction or repair.
.
Immediately after a casualty causes damage to the Property, the
Board of Directors shall obtain reliable and detailed estimates of
the cost to restore the damaged property to substantially the same
condition existing prior to such casualty. If the insurance
proceeds are insufficient to pay the estimated cost of restoring
the Property, or, if at any time during reconstruction or repair
or upon the completion thereof, the funds for payment of the cost
of restoration are insufficient, the Board of Directors shall levy
a special assessment against all Lots for that portion of the
deficiency related to damage to the Common Area and against
individual Lots for that portion of the deficiency related to
damage to the particular Unit constructed thereon. If the cost of
restoring the Property is less than the insurance proceeds received
by the Association, the Board of Directors shall pay the balance
remaining to the Owners and their First Mortgagees, as their
interest may appear. The Association and any contractors or other
persons engaged on its behalf in reconstruction or repair shall
have temporary easements in and over the Lots, Units and Common
Area to allow such work to be completed. In the event of
reconstruction or repair of damage to any part of the Property, all
Owners agree that minor encroachments on parts of the Common Area
or on adjacent Lots shall be permitted and that a valid easement
for said encroachment and the maintenance thereof shall exist.
Section 2. Condemnation. In the event of taking by the
exercise of the power of eminent domain, or by an action or deed
in lieu thereof, of all or part of the Property, the monies awarded
shall be used and the obligation to rebuild shall be determined in
a manner substantially similar to a case involving damage or
destruction by casualty.
ARTICLE X
PARTY WALLS
Section 1. General Rules of Law to ADDlv. Each wall which
is built as a part of the original construction of the Units upon
the Property and placed on the dividing line between the Lots shall
constitute a party wall, and to the extent not inconsistent with
the provisions of this Article, the general rules of law regarding
party walls and liability for property damage due to negligent or
willful acts or omissions shall apply thereto.
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Section 2. Sharina of Reoair and Maintenance. The cost of
reasonable repair and maintenance of a party wall shall be shared
by the Owners who make use of the wall in proportion to such use.
Section 3. Destruction by Fire or Other Casualty. I f a party
wall is destroyed or damaged by fire or other casualty, either
Owner who has used the wall may restore it, and if the other Owner
thereafter makes use of the wall, he or she shall contribute to the
cost of restoration thereof in proportion to such use, without
prejudice, however, to the right of any such Owner to call for a
larger contribution from the other under any rule of law regarding
liability for negligent or willful acts or omissions.
Section 4. Weatherproofing. Notwithstanding any other
provision of this Article, an Owner who by his or her negligent or
willful act causes the party wall to be exposed to the elements
shall bear the whole cost of furnishing the necessary protection
against such elements.
Section 5. Right to Contribution Runs with Land. The right
of any Owner to contribution from any other Owner under this
Article shall be appurtenant to the land and shall pass to such
Owner's successors in title.
Section 6. Arbitration. In the event of any dispute ar~s~ng
concerning a party wall or under the provisions of this Article,
each party shall choose one arbitrator, and such arbitrators shall
choose one additional arbitrator, and the decision of a majority
of all arbitrators shall be final and conclusive on the question
involved.
ARTICLE XI
HU'l'UAL EASEHENTS
The title to each Lot shall include an exclusive appurtenant
easement over and across the adjoining Lot or Common Area for
encroachments created by construction, settling and overhangs for
all Units originally constructed by the Declarant or improvements
which are added pursuant to Section 1 of Article VI hereof. A
valid easement for said encroachments and for the maintenance
thereof, so long as such encroachments stand, shall and does exist
upon each Lot in favor of the adjoining Lot or Lots.
ARTICLE XII
RIGHTS OF FIRST MORTGAGEES
For the protection of First Mortgagees and their assigns, the
following provisions shall take precedence over any other
conflicting provisions of this Declaration:
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Section 1. Notification of Default. A First Mortgagee, upon
request, shall be entitled to written notification from the
Association of any default in the performance by an Owner of any
obligation under the Declaration or the By-Laws which is not cured
within sixty (60) days.
Section 2. Exemption from Riaht of First Refusal. Any First
Mortgagee that obtains title to a Unit by foreclosure of the
mortgage, by deed or assignment in lieu of foreclosure, or pursuant
to the remedies provided in the mortgage, shall be exempt from any
right of first refusal contained in the Declaration or By-Laws.
Section 3. Liability for Assessments. Any First Mortgagee
that obtains title to a Unit pursuant to the remedies provided in
the mortgage or by foreclosure of the mortgage will not be liable
for such Unit's unpaid assessments or charges which accrue prior
to the acquisition of title to such Lot by the First Mortgagee.
Section 4. Books and Records. First Mortgagees shall have
the right to examine the books and records of the Association.
Section 5. Approval of Certain Acts. Unless at least
seventy-five percent (75%) of the First Mortgagees of Units, based
upon one vote for each first mortgage owned, or 75% of Owners other
than the Declarant have given their prior written approval, the
Association shall not be entitled to:
.
(a) By act or omission seek to abandon, partition,
subdivide, encumber, sell or transfer the Common Area. (The
granting of easements for public utilities or for other public
purposes consistent with the intended use of the Common Area
by the Owners shall not be deemed a transfer within the
meaning of this clause.)
(b) Change the method of determining the obligations,
assessments, dues or other charges which may be levied against
an Owner.
(c) By act or omission change, waive or abandon any
scheme of regulations, or enforcement thereof, pertaining to
the architectural design or the exterior appearance of the
Units, the exterior maintenance of Units, the maintenance of
party walls or common fences and driveways, or the upkeep of
lawns and plantings on the Property.
(d) Fail to maintain fire and extended coverage
insurance on insurable common property on a current
replacement cost basis in an amount not less than one hundred
percent (100%) of the insurable value (based on current
replacement cost).
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(e) use hazard insurance proceeds for losses to the
Property for other than repair, replacement or reconstruction
of such Property.
Section 6. Liens. All taxes, assessments and charges which
may become liens prior to the first mortgage under Minnesota law
shall relate only to the individual Units and not to the Property
as a whole.
Section 7. Reserves. Assessments for Common Expenses shall
include an adequate reserve fund for maintenance, repairs, and
replacement of those common elements that must be replaced on a
periodic basis. Such routine and foreseeable assessments shall be
payable in regular installments rather than by special assessment.
Section 8. No Priority Over First Mortgagees. No provision
of the Declaration or By-Laws shall be construed as giving to any
Owner or to any other party priority over any rights of First
Mortgagees of Units pursuant to their mortgages in the case of a
distribution to Owners of insurance proceeds or condemnation awards
for losses to or a taking of Units or the Common Area, or both.
Section 9. Contract Terms. The term of any agreement for
professional management of the Property, or any other contract
providing for services of the Declarant, may not exceed two (2)
years. Any such agreement shall provide for termination by either
party without cause and without payment of a termination fee upon
ninety (90) days' prior written notice.
.
ARTICLE XIII
ADDITIONAL RESTRICTIONS
Section 1. Declarant Riahts. Notwithstanding any provision
of the Declaration or By-Laws to the contrary, the Declarant may
operate and maintain upon the Property during the period of
construction and sale of the Units such facilities as may be
reasonably required or convenient to the construction and sale of
the Units, including without limitation a business office, storage
area, construction yards, signs, model units and sales office, and
shall have easements for access to and enjoyment and use of such
facilities for itself, its employees, agent and prospective
purchasers.
Section 2. Keepina of Animals. No animals, livestock or
poultry of any kind shall be raised, bred or kept on any Lot or in
any Unit, except that dogs, cats or other household pets may be
kept, provided they are not kept, bred or maintained for any
commercial purpose. The Association may adopt reasonable rules and
regulations governing the keeping of pets.
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Section 3. Signs. No sign of any kind shall be displayed to
the public view on any Lot or in the Common Area, except that the
Declarant shall be permitted to erect and maintain upon the
Property such signs as it deems appropriate to advertise the
development until the Declarant conveys the last Unit.
Section 4. Miscellaneous. All sporting equipment, toys, and
other equipment and supplies necessary or convenient to residential
living shall be enclosed or shall be screened from view. No boats
or recreational vehicles shall be stored by an Owner unless stored
inside a Garage. In addition, no television or radio antenna shall
be erected or placed on the exterior of any Home.
Section 5. Outdoor Storaae. No boats, cars, campers, or
other personal property shall remain outdoors for more then 48
consecutive hours.
Section 6. Private Road. It is understood that the private
streets within the plat shall be maintained by the Developer or his
successors in interest, including the appropriate homeowner's
association and will not be accepted or maintained by the City
until such time as it is made to conform to the standards which
exist for public streets at the time of request for acceptance.
ARTICLE XIV
SENIOR HOUSING
Section 1. Age of Residents. This neighborhood is for senior
citizens only. All residents must be at least sixty-two (62) years
of age. The only exception to this age limitation is that one
caregiver can reside in the residence, if and only if a caregiver
is medically necessary and not merely incidental to the living
arrangement.
Section 2. Number of Residents. The maximum number of
residents per unit is two, exclusive of a caregiver.
ARTICLE XV
GENERAL PROVISIONS
Section 1. Duration and Binding Effect. The easements
created hereby shall be permanent and the covenants and
restrictions contained in this Declaration shall run with and bind
the land and shall inure to the benefit of and be enforceable by
the Association or any Owner, their respective legal
representatives, heirs, successors and assigns, for a term of
twenty (20) years from the date this Declaration is recorded, after
which time said covenants and restrictions shall be automatically
renewed for successive periods of ten (10) years.
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Section 2. Amendment. This Declaration shall not be amended
or revoked unless at least seventy-five percent (75%) of the Owners
agree to such amendment .or revocation.
Section 3. Enforcement. Enforcement of these covenants and
restrictions shall be by any proceeding at law or in equity against
any person or persons violating or attempting to violate any
covenant or restriction, either to restrain such violation or to
recover damages, and against the land to enforce any lien created
by these covenants. Failure by the Association or any Owner to
enforce any covenant or restriction herein contained shall in no
event be deemed a waiver of the right to do so thereafter.
Section 4. Notices. Any notice required to be given to any
Member or Owner under the provisions of this Declaration shall be
deemed to have been properly given when personally delivered or
when mailed postpaid to the last known address of the person who
appears as Member or Owner on the records of the Association at the
time of such notice.
Section 5. Severability. In the event that any provision of
this Declaration shall be held invalid or unenforceable by any
court of competent jurisdiction, such holding shall not invalidate
or render unenforceable any other provision hereof.
Section 6. Sinaular and Plural: Gender: Joint and Several
Obligations. When required by the context of this Declaration, the
singular shall include the plural, or vice versa, and the masculine
gender shall include the feminine or neutral gender. Any
obligations of the Owners or Members shall be joint and several
except where the context clearly requires otherwise.
Section 7. Governing Law. This Declaration shall be
interpreted in accordance with and governed by the laws of the
State of Minnesota.
IN WITNESS WHEREOF, the Declarant has executed this
Declaration the day and year first above written.
PETE BOYER CONSTRUCTION, INC.
a Minnesota Corporatio
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..
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VICTORIA STATE BANK, Mortgagee
~~~
By: ~tv' (1/ d-<./~/
Its ff.e .s;cIe'f.r
CITY OF SHOREWOOD
By:
s...cde.Lk lAd M\I'\'\~t (de"
I
.
STATE OF MINNESOTA)
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this 17~
day of ~~ , 1994 by Pete Boyer, known to me to be the
President of pe~er Construction, Inc., on behalf of said
corporation.
8" f'ATRIC IA A. DRESSEL
.... NOTARY PUBLIC ........
HENNEPIN COUNTY
..,QInlIIIIIaII"'''' tI, -
~ti~~~
STATE OF MINNESOTA)
) ss.
COUNTY OF )
The foregoing instrument was ackno edged be ore me this t7
day of C)"f\ ~ , 1994 by "1 "'- and
W ~ N.2..1~J"~.U <hind Victoria State Bank,
as Mortgagee, a corporatio the laws of Minnesota, on behalf
of the corporation.
Qldil:;A~
.
......
ill., <;o:m:,:~.:'
, 1/ ~
'\ '\'tootn
_ ' ;.,INNES 'A
;:....UNTY
;xc"rec' 1-29-96
21
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.
J
STATE OF MINNESOTA)
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this / .f!:b
day of YY70-g , 1994 by ,JL1...Y1/\.R.S C. HU./lW\ of the City
of Shorewood, municipal corporation under the laws of Minnesota,
on behalf of the city.
~ "I
IILUL{kJ-0MZcJ~
Notary Public
Theresa L. Naab I
Notary Public-Minnesota
Hennepin County
My Commission Exp. 1-31'-00 I
THIS INSTRUMENT WAS DRAFTED BY:
Melchert, Hubert, Sjodin & Willemssen
121 West Main Street
PO Box 150
Waconia, Minnesota 55387 (bws)
(612) 442-5155
22