HomeMy WebLinkAboutEDA March 6, 2002
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" ,I CITY OF ANDOVER
1685 CROSSTOWN BOULEVARD N,W. . ANDOVER, MINNESOTA 55304. (763) 755.5100
FAX (763) 755.8923. WWW,CLANDOVER.MN.US
ECONOMIC DEVELOPMENT AUTHORITY MEETING
WEDNESDAY, MARCH 6, 2002 - 5:45 P.M.
CONFERENCE A
1. CALL TO ORDER
2. UNITED PROPERTIES - OPTIONS
AGREEMENT,
3. ENVIRONMENTAL INDEMNIFICATION
, AGREEMENT - Hans Hagen Homes,
, j 4. DISCUSS OFF-SALE LIQUOR STORE
RESTRICTIONS
5. WDE SITE - VERBAL UPDATE
6. GREAT RIVER ENERGY PROPER TIES -
VERBAL UPDATE
7. COMMERCIAL BOULEV ARD -
RENAMING (If Time Permits)
8. SCHEDULE NEXT MEETING
9. ADJOURN
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CITY OF ANDOVER
1685 CROSSTOWN BOULEVARD N.W. . ANDOVER, MINNESOTA 55304 . (763) 755.5100
FAX (763) 755-8923. WWW.cI.ANDOVER.MN.US
TO: EDA President and Commissioners
FROM: John Erar, City Administrator
SUBJECT: Andover Station - Revise Options Agreement Providing for Additional Land Sale
DATE: March 6, 2002
INTRODUCTION
During the course of staff review of the commercial site plan submitted by United Properties for
Andover Station, it was discovered that additional land is needed by the developer to allow for
the construction of Quinn Street. Under the terms and conditions of the development agreement,
Section 3.3, United Properties is required to construct a private street i.e. Quinn Street to allow
for internal access to the commercial site.
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DISCUSSION
Additional property required by United Properties has been surveyed and amounts to
approximately .94 acres or 40,946.4 square feet. Staff has negotiated a preliminary agreement
with United Properties calling for the sale of this additional square footage at a price of$3,20 per
square foot-similar to the original and optioned land sales terms,
United Properties has requested that this additional land sale for construction of the private road
be handled separately by revising the existing option agreement. The City Attorney has revised
the Options Agreement in response to this accommodation. The purchase price of this additional
property will be due and payable regardless of whether United Properties exercises the full
option on the remaining land.
BUDGET IMP ACT
The additional land sale will generate approximately $131,028.48 for the City's Economic
Development Authority,
RECOMMENDATION
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Approve the revised options agreement as attached allowing United Properties to purchase
\ additional property for the construction of Quinn Street. Minor, non-substantive additions to the
agreement will be made once the necessary information has been reviewed and received by the
City Attorney.
Respectfully submitted,
Attachments
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EXHIBIT A-I
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EXHIBIT C
OPTION TO PURCHASE
THIS OPTION is granted this _ day of , 2002, by the
Andover Economic Development Authority, a body corporate and politic under the
laws of Minnesota, (hereinafter called "Optionor"), to United Properties Investment,
LLC, (hereinafter "Optionee").
WHEREAS, Optionor is the legal owner of certain real property situated in the
County of Anoka, State of Minnesota, and more particularly and specifically
described on Exhibit A.
(hereinafter called "Option Premises"); and
WHEREAS, Optionee is desirous of obtaining the exclusive right, without
becoming so obligated, to purchase the Option Premises at an agreed consideration,
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and Optionor is willing to grant such right on certain terms and conditions as
hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, and One hundred thirty-one thousand twenty-eiqht dollars and 48 cents
($131,028.48) Dollars paid by the Optionee to Optionor, which amount shall be
applied to the purchase price described hereunder in the event this Option is
exercised, Optionor hereby grants to Optionee an irrevocable Option to purchase
the Option Premises on the following terms:
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SECTION 1. PURCHASE PRICE AND OPTION PREMISES.
1.1 In the event the Option hereby granted is exercised, the purchase price
to be paid by Optionee to Optionor shall be Three and 20/100 Dollars
($3.20) per square foot and shall be paid in cash to the Optionor at the date
of closing.
Payment of the purchase price upon the exercise of the Option shall entitle
Optionee to a Warranty Deed for all right, title and interest of Optionor in and
to the Option Premises, free and clear of all mortgages, liens and
encumbrances, except as created hereunder, and except those matters set
forth in Paragraphs A through H of Section 4 of Exhibit B to the Development
Agreement.
SECTION 2. OPTION TERM AND EXERCISE OF OPTION.
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2.1 Unless extended, the term of the Option granted herein is for a period
commencing on execution thereof and continuing until 4:00 p.m., March 15,
2003, at the expiration of which time the Option shall terminate, and unless
it is exercised prior thereto, Optionee shall have no further rights in and to
the Option Premises.
2.2 The Option may be exercised by Optionee at any time during its term
by providing notice of the exercise thereof in writing in the manner provided
for notices in Section 10 hereof.
2.3 In the event this Option terminates, Optionee shall forfeit any right to
the return of any sums paid to Optionor and Optionee agrees at his expense
to execute, acknowledge, and deliver to Optionor, within twenty (20) days
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after written request, release of this Option or such other document as may
be required by any title company, or title examiner, to remove the cloud of
this Option from the Option Premises.
SECTION 3. TITLE EXAMINATION.
3.1 Optionor, as soon as possible after exercise of this Option by
Optionee, shall deliver to Optionee an abstract of title, certified to a current
date, including all appropriate searches, including without limitation, state
and federal tax lien searches, judgment searches in the district and county
court in the county in which the Option Premises is located, current and
delinquent taxes, special assessments, and delinquent utility bills, as such
searches are made by the abstracter, showing marketable title to the Option
Premises in Optionor. Optionee shall have twenty (20) days from and after
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receipt of the abstract of title in which to examine the same and notify
Optionor in writing of any objections thereto. In the event no objections are
made within said twenty (20) days period, such objections shall be deemed
waived. If any objections are made, Optionor, in good faith, shall use all
diligence and make all reasonable efforts to promptly cure such objections
and make title marketable and shall be allowed one-hundred-twenty (120)
days after receipt of notice thereof to do so.
SECTION 4. TITLE DEFECTS.
4.1 In the event, following the exercise of this Option, Optionor is unable
to close on the date designated for closing in Section 7 hereof, because of
the existence of title defects or objections which have not been removed to
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the satisfaction of counsel for Optionee or a title insurance company licensed
to do business in the State of Minnesota, Optionee may elect anyone of the
following procedures:
(a) Accepting the Option Premises subject to any title defects or
objections and closing shall be held within ten (10) days after Optionee gives
written notice of such election.
(b) Extending closing for such time as may be mutually agreeable to the
parties to afford Optionor time for curing said defects or objections up to
sixty (6) days or;
(c) Terminating this Agreement.
If Optionee makes the election set forth in Section 4.1 (b) above, at the
expiration of said sixty (60) days extension, if the objections to title or title
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defects have not been removed or cured to the satisfaction of counsel for the
Optionee or such title insurance company described above, Optionee may
then elect to terminate this Agreement, or waive such defect.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
5.1 Optionor represents and warrants to Optionee as follows:
(a) Optionor is, or will be, lawfully seized in fee simple of the Option
Premises at the time of closing;
(b) Optionor will defend title and quiet enjoyment of the Option Premises
against the lawful claims and demands of all persons;
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(c) Optionor knows of no unrecorded agreements not described herein
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affecting any of the Option Premises;
(d) Optionor will not commit waste or materially damage the Option
Premises.
SECTION 6. CONDITIONS PRECEDENT.
6.1 Notwithstanding anything stated herein to the contrary, Optionee's
obligation to perform at the closing shall, at Optionee's election, be
conditioned upon the satisfaction of each of the following conditions
precedent:
(a) Optionor shall have performed and complied with all agreements and
conditions required by this Option to be performed and complied with prior to
J or at the closing, and shall certify in such detail as Optionee may specify to
the foregoing effect;
(b) At the closing, there shall have been no material damage to, or
destruction of, the Option Premises;
(c) All legal matters in connection with the performance of Optionor of its
obligations in this Option shall be reasonably satisfactory to counsel for
Optionee, or such title insurance company described in Section 4.1.
6.2 Notwithstanding anything stated herein to the contrary, Optionor's
obligation to perform at the closing shall, at Optionor's election, be
conditioned upon the satisfaction of each of the following conditions
precedent:
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(a) Optionee shall perform and comply with all agreements and conditions
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required by this Option to be performed and complied with prior to or at
closing, and shall certify in such detail as Optionor may specify the foregoing
effect; and
(b) All legal matters in connection with the performance of Optionee of its
obligations under this Option shall be reasonably satisfactory to counsel for
Optionor, or such title insurance company described in Section 4.1.
SECTION 7. CLOSING.
7.1 Closing hereunder shall take place on one of the following applicable
closing dates:
(a) Thirty (30) days after Optionor has delivered the abstract of title to
Optionee for examination pursuant to Section 3 hereof, provided no
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objections have been made to title and there are no title defects; or
(b) Ten (10) days after the expiration of the one-hundred-twenty (120)
day period permitted for the removal of title objections and title defects as
provided in Section 3 hereof, provided, however, that all title objections and
title defects have been removed to the satisfaction of counsel for the
Optionee, or such title insurance company described in Section 4.1.
SECTION 8. REAL ESTATE TAXES AND SPECIAL ASSESSMENTS.
In the event this Option is exercised, real estate taxes due and payable in the
year of closing shall be pro-rated between the Optionor and Optionee on a
calendar year basis to the actual date of closing.
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Optionor shall pay on the date of closing all installments of special
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assessments certified for payment with the real estate taxes due and payable
in the year of closing.
Optionor shall pay on Date of Closing all other special assessments levied or
pending as of the date hereof.
Optionor shall pay on the Date of Closing any deferred real estate taxes or
special assessments or deferred connection charges, payment of which is
required as a result of the closing of the sale.
Optionee shall pay real estate taxes due and payable in the year following
closing and thereafter and any unpaid special assessments payable therewith
and thereafter, the payment of which is not otherwise provided herein.
Optionor makes no representation concerning the amount of future real
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estate taxes or of future special assessments.
SECTION 9. POSSESSION.
Possession of the Option Premises to be conveyed hereunder shall be given
and the risk of loss and damage thereto shall pass at the closing, and
pending closing shall be borne by Optionor.
SECTION 10. NOTICES.
10.1 All notices, requests, demands, elections, and other communications
required or permitted by this Option Agreement shall be in writing and shall
be deemed to have been given at the time when mailed in any United States
Post Office or Branch United States Post Office, registered or certified mail,
J with return receipt requested, postage prepaid, to the addresses set forth
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below, which addresses may be amended in writing from time to time, in the
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manner herein provided for notices:
Notice as to Optionor: Executive Director
Andover Economic Development Authority
1685 Crosstown Boulevard NW
Andover, Minnesota 55304
Notice as to Optionee: United Properties Investment, LLC
3500 West 80th Street
Suite 200
Bloomington, Minnesota 55431
Attn: Frank J. Datke and Bruce Carlson
SECTION 11. ENTIRE AGREEMENT, MODIFICATION AND WAIVER.
This Agreement constitutes the entire Agreement between the parties hereto
pertaining to the subject matter hereof and supersedes all prior agreements,
understanding, negotiations and discussions, whether oral or written, of the
parties; there are no warranties, representations or agreements among the
parties in connection with the subject matter hereof, except as set forth or
referred to herein. No supplement, modification or waiver to this Agreement
or any provisions shall be binding unless executed in writing by the parties to
be bound. No waiver of any of the provisions of this Agreement shall
constitute a waiver of any other provisions, nor shall such waiver constitute
a continuing waiver unless otherwise expressly provided.
SECTION 12. ASSIGNMENT; RECORDING
12.1 All representations, warranties, covenants and conditions made
pursuant to this Agreement, and all agreements made by the parties pursuant
to this Agreement shall survive the consummation of the transaction or
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transactions contemplated by this Agreement, and all the representations and
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warranties made in any document delivered in connection herewith shall
survive the delivery of the deed and shall not be merged therein, any rule of
law to the contrary notwithstanding.
IN WITNESS WHEREOF, the parties have duly executed this Option
Agreement the day and year first above written.
ANDOVER ECONOMIC DEVELOPMENT UNITED PROPERTIES INVESTMENT,
AUTHORITY LLC
By: By:
Michael R. Gamache Its:
President
By: By:
John Erar Its:
Executive Director
STATE OF MINNESOTA
ss
COUNTY OF ANOKA
The foregoing instrument was acknowledged before me this _ day of
, 2002 by Michael R. Gamache and John Erar, the President
and Executive Director of the Andover Economic Development Authority, a
body corporate and politic under the laws of Minnesota, on behalf of the
authority.
Notary Public
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STATE OF MINNESOTA
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COUNTY OF
The foregoing instrument was acknowledged before me this _ day of
, 2002 by and
, the and
of United Properties Investment LLC, a limited liability
company under the laws of Minnesota, on behalf of the company.
Notary Public
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CITY OF ANDOVER
1685 CROSSTOWN BOULEY ARD N.W. . ANDOYER, MINNESOTA 55304 . (763) 755.5100
FAX (763) 755.8923. WWW.CLANDOYER.MN.US
TO: EDA President and Commissioners
FROM: John Erar, Executive Director
SUBJECT: Environmental Undertaking Agreement/Hans Hagen Homes Inc.
DATE: March 6, 2002
INTRODUCTION
My office has been notified that Hans Hagen Homes Inc. is requesting the approval of an
environmental undertaking agreement that would effectively indemnify the developer from any
business loss during construction should contaminated soils be discovered, as well as mitigate
their liability resulting from future potential residential claims arising from the soils correction
activities that occurred on the Andover Station site. The provisions provided by this prospective
/ agreement would reinforce existing requirements that the EDA would cooperate in the event
contamination is encountered in the course of excavation and construction and that any costs
associated with remediation are borne by the City,
DISCUSSION
In discussions with Mr. Hagen, staff had previously indicated that the City would be willing to
indemnify the developer to a certain degree given the history of soil corrections work on the site.
A review of site clean-up activities indicates that the City has received an MPCA
Commissioner's Certificate of Completion of Response Actions under the Land Recycling Act of
1992, This certificate also provides that the City is qualified to obtain protection from liability
provided by the Land Recycling Action of 1992. Attached, please find information regarding the
history of site clean-up activities that have taken place in order to receive the aforementioned
certificate,
To this point, the developer is requesting indemnification from any liability associated with the
site work relative to project development and residential occupancy, Mr. Hagen has indicated
that without this agreement he may be unwilling to continue forward with the residential
development of the site, City Attorney Bill Hawkins has reviewed the agreement and is awaiting
responses from the developer's attorney, but has indicated no particular objection to the
developer's request given the site's history as a federal superfund site and the City's completion
of the MPCA's Voluntary Investigation and Cleanup program (VIC) requirements,
J RECOMMENDATION
Authorize the Executive Director and City Attorney to negotiate an acceptable Environmental
Undertaking Agreement between the City of Andover Economic Development Authority and
United Properties on the Andover Station site. A copy of the proposed agreement is attached, but
is subject to additional revisions as deemed legally appropriate by the City Attorney.
Re.POC~nlltte~
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Attachments
Cc: Bill Hawkins, City Attorney
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ENVIRONMENTAL UNDERTAKING AGREEMENT
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(Andover Economic Development Authority - United Properties Investment LLC)
THIS AGREEMENT is made and entered into as of the _ day of February, 2002 by
and between ANDOVER ECONOMIC DEVELOPMENT AUTHORITY (the "EDA"), a body
corporate and politic under the laws ofthe State of Minnesota, and UNITED PROPERTIES
INVESTMENT LLC, a Minnesota limited liability company (the "Company"), with its
principal offices at 3500 West 80th Street, Suite 200, Minneapolis, MN 55431.
PREMISES:
WHEREAS, EDA and Company entered into a Development Agreement on September
25,2001 (the "Development Agreement"); and
WHEREAS, the Development Property (therein defined) is wholly or partially located
within an area known as the South Andover Redevelopment Site (formerly the Best Oil Parts
Site), which has been the subject of environmental study and remedial efforts by both the United
States Environmental Protection Agency ("EPA") and the Minnesota Pollution Control Agency
("MPCA"); and
WHEREAS, pursuant to such efforts, the City of Andover ("City") has obtained a
Certificate of Completion of Response Actions under the Land Recycling Act of 1992, as
) amended ("Certificate of Completion"), and the parties desire to set forth with particularity
their respective responsibilities regarding the environmental condition of the Development
Property.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual benefits to EP A and Company,
which include the closing of transactions described in the Development Agreement, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
EDA and Company agree as follows:
1. Definitions. Terms not otherwise defined herein shall have the meanings ascribed
to them in the Development Agreement, unless the context clearly requires otherwise,
2. Monitoring Activities; EP A Covenant Not to Sue or Prospective Purchaser
Agreement. EDA shall cause City to carry out any remaining groundwater monitoring or other
activities now or hereafter required by the MPCA or the EP A with respect to the Development
Property, or property adjacent to the Development Property, such activities to be carried out in a
manner so as to cause minimal interference with the use or enjoyment of the Development
Property by Company, or its successors in interest in the Development Property. In the event the
Company elects to secure coverage under any existing EP A Covenant not to Sue, or to obtain a
Prospective Purchaser Agreement directly with the EP A, for any portion of the Development
Property, EDA agrees to cooperate and join, and cause the City or any third party defendant in
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, the original EP A Consent Decree in the South Andover Superfund case, to cooperate and join, in
) any actions or documents reasonably required for such Covenant not to Sue, or Prospective
Purchaser Agreement.
3, Recording of Certificate of Completion Against the Development Property. EDA
shall record, or cause the City to record, the Certificate of Completion issued by the MPCA
against the Development Property, without cost or expense to Company, such recording to be
accomplished not later than the transfer of the Development Property, or the initial portion
thereof, to the Company pursuant to the Development Agreement.
4. Environmental Information, Upon request, EDA shall furnish, or cause the City
to furnish, to the Redeveloper copies of all environmental studies, reports, data or '
correspondence with the MPCA or the EP A in the possession of EDA or the City relative to the
environmental condition of the Development Property, and any investigative, remedial or
response actions carried out with respect thereto. Particular efforts shall be directed to studies or
reports bearing on the extent and depth of soil excavation or removal actions on the
Development Property, as well as in-situ deposit of contaminated material in berms or roadways
on or adjacent to the Development Property, to the end that Company, and its contractors and
subcontractors, may gauge the extent to which redevelopment activities may exceed previous
excavation limits or otherwise be affected by such previous remedial or removal activities,
5. Contingency Plan; Response by EDA. In the event Company, or its contractors or
subcontractors, encounters contamination in the course of excavation or other development or
, redevelopment activities (and as used herein "Contamination" is to be broadly construed as
I including pollutants, contaminants or hazardous substances, as defined under state or federal
environmental law and regulations), then in any such event, Company, or such contractor or
subcontractor, may halt work immediately pending the preparation or updating by City or EDA
of a Site Contingency Plan, and the taking of all appropriate response or remedial actions by the
City or EDA, pursuant to applicable requirements of the MPCA's Voluntary Investigation and
Cleanup ("VIC") or Voluntary Petroleum Investigation and Cleanup (''VPIC'') Programs, as the
case may be. Any preparation or updating of such Contingency Plan, any study or investigative
expense or removal or remedial or other expense incurred or to be incurred by the City or the
EDA, including all costs of the VIC or VPIC Programs in connection therewith, shall be the sole
responsibility of the City or the EDA,
6, Extension of Time for Completion, The deadlines established in Article IV of the
Development Agreement for completion of the Commercial Minimum Improvements or
Residential Minimum Improvements (as the case may be) shall be extended by a period of time
equal to the delay caused by the Redeveloper encountering contamination, and any necessary
response to such discovery, as described above.
7. No Association Letter. Upon request by Redeveloper, the EDA, or the City on
behalf of the EDA, shall obtain a "no association" letter from the MPCA, pursuant to Minnesota
Statutes, Section 115B.178, covering a particular parcel in the Development Property, without
cost or expense to Redeveloper, such no association letter to be addressed to the Redeveloper, or,
at its designation, the actual purchasing entity, and any tenant of, or lender on, the particular
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parcel, as the case may be, Redeveloper agrees, at its expense, to furnish such information as
, may be necessary for the MPCA to process such no association request, including, but not
I limited to, site plans, grading plans, utility plans or excavation plans for any proposed
improvement, information regarding the proposed tenant, user or occupant of the Development
Property, and the chemical, industrial or other processes proposed to be employed on the parcel.
8, Other Terms Unaffected. All ofthe terms, covenants or conditions of the
Development Agreement shall remain in full force and effect, including all of the rights and
remedies of the parties thereunder, and shall not be deemed altered or amended in any manner by
the within Agreement.
IN WITNESS WHEREOF, the parties have executed this Environmental Undertaking
Agreement as of the day and year first abov(}-written.
ANDOVER ECONOMIC DEVELOPMENT AUTHORITY
By:
Its:
UNITED PROPERTIES INVESTMENT LLC
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Its:
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STATE OF MINNESOTA
POLLUTION CONTROL AGENCY
Commissioner's Certificate
of Completion of Response Actions
Under the Land Recycling Act of 1992, As Amended
Whereas, the city of Andover (the City) has undertaken response actions pursuant to
Minn. Stat. S 115B.175 (the Land Recycling Act of 1992, as amended) at the South Andover
Redevelopment site (formerly referred to as the Best Auto Parts site), located in Andover and
bounded approximately by Bunker Lake Boulevard, Thrush Street Northwest, Commercial
Boulevard Northwest, and Jay Street and further described in a legal description in Exhibit A
to this CERTIFICATE (the Sitet. and
Whereas, the City submitted a Voluntary Response Action Plan including an
'\ Investigation Report (comprised of the documents A.l through A.15 on Exhibit B), to the
, - ) 11innesota Pollution Control Agency (MPCA) under 11inn. Stat. S 115B.17, subd. 14,
governing review of voluntary investigation and response actions; and
Whereas, in accordance with Minn. Stat. SS U5B,17, subd, 14, and 115B.175. the
Commissioner of the MPCA (Commissioner) or the Commissioner's delegate has determined
that the Investigation Report adequately identified and evaluated the nature and extent of the
releases and threatened releases at or from the Site; and
Whereas, the Commissioner or the Commissioner's delegate has approved a
Voluntary Response Action Plan (comprised of the documents B.l through B.ll on EK.hibit
B) including the response actions determined by the Commissioner or the Commissioner's
delegate to be necessary to protect public health and welfare, and the environment, from
releases or threatened releases of hazardous substances, pollutants, or contaminants at or
from the Site; and
Whereas, based upon information contained in correspondence from Scott Erickson
of the City, dated September 1, 1999, the MPCA Commissioner or Commissioner's delegate
'* has determined that the City is qualified to obtain protection from liability provided by the
Land Recycling Act of 1992, as amended, as a person not otherwise responsible for the
release or threatened release of hazardous substances, pollutants, or contaminants at the Site
under Minn, Stat. ~~ U5B,01 to 115B.18; and
/ Whereas, the City has completed the response actions set forth in the approved.
Voluntary Response Action Plan;
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Now, Therefore, pursuant to Minn, Stat. S 115B,175, subd, 5,
L KAREN A, STUDDERS, COMMISSIONER OF THE MINNESOTA
POLLUTION CONTROL AGENCY, CERTIFY UNDER MINN. STAT. S 115B.175 (THE
LAND RECYCLING ACT OF 1992, AS AMENDED) THAT RESPONSE ACTIONS
HAVE BEEN COMPLETED AS SET FORTH IN THE APPROVED VOLUNTARY
RESPONSE ACTION PLAN FOR THE SITE,
Upon issuance of this CERTIFICATE, the persons qualified for protection under
Minn. Stat. S 115B.175, subd. 6 are entitled to protection from liability under Minn. Stat.
SS 1 15B.Ol to l15B,18, to the extent provided in the Land Recycling Act of 1992, as '
amended, The protectionfrom liability provided under Minn. Stat. S 115B.175, does not
apply to any person excluded from that protection under Minn. Stats 115B.175, subd. 7.
Nothing in this CERTIFICATE or in the Land Recycling Act of 1992,as amended,
affects the authority of the MPCA or the MPCA Commissioner to exercise any powers or
duties under Minn, Stat SS 115B.0! to 115B.18, or other law with respect to any release or
threatened release at the $ite, or the right of the MPCA or the MPCA Commissioner to seek (j
any relief available under those sections against any person who is not entitled to protection
from liability under the Land Recycling Act of 1992, as amended, with respect to such release
or threatened release.
SIGNED AND CERTIFIED this 25"1!t day of 0;vu"L ,2000
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STATE OF MlNJ'..TE,SOTA )
) ss,
COUNTY OF RAMSEY )
The foregoing was ackn?wledged before me this :l. 5 day of ~ ' ,
2000, by 0~ ~'~ ,the Deputy Commissioner of the Minnesota Pollution
Control Agency 0 ehalf of th Minnesota Pollution Control Agency.
_.~ ~
e COREN' LAUBACH ,/ \
' ,.'- NOTARY 1"..';~!.iC. MINNESOTA )
, MY COMMISSION ,
, ,',. EXPlRE!'; JAN, 31. 2005
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EXHIBIT A
LEGAL DESCRIPTION
South Andover Redevelopment Site
MPCA Project Number VP6290
Lots 1,2,3 and 4, WATT'S GARDEN ACRES, Andover County, Minnesota, including
Andover Highway Right-of-Way Plat No.1, over the southerly 100 feet of said lot 4.
The Northeast Quarter ofthe Southwest Quarter of Section 34, TOVvTIship 32, Range 24,
Anoka County, Minnesota, including Andover Highway Right-of-Way Plat No, 4 across the
above described property.
The north 658.00 feet of the east 625.00 feet of the NOlihwest Quarter of the Southwest of
Section 34, Township 32, Range 24, Anoka County, Minnesota, including 136'h Avenue
Northwest lying southerly of and adjacent to the above described property.
Outlot D, Andover Commercial Park, Anoka County, Minnesota.
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EXHIBIT B
SITE DOCUMENTS
South Andover Redevelopment Site
MPCA Project Number VP6290
A. Site Remedial Investigation Reports
1. "Environmental Soils Assessment, Best Auto Parts Property," prepared by Braun Intertec
Corporation, dated October 30,1995;
2. "Phase I Environmental Site Assessment, Best Auto Parts," prepared by Maxim
Technologies Inc" dated JUly 16, 1996;
3, "Waste Characterization Plan, Commercial Boulevard Northwest," prepared by Maxim,
dated November 8, 1996;
4, "Phase II Environmental Investigation, Mom's Auto Salvage," prepared by Maxim, dated
December 17, 1996;
5. "Analytical Data Summary, West of Best Auto Site, Paint and Solvent A.rea, Table II ()
(addendum to data of January 13, 1997 correspondence)," prepared by Maxim, dated
February 7, 1997;
6. "Waste Characterbition Report, Best Auto Parts, Paint and Solvent Area Excavated Soil,"
prepared by Maxim, dated February 10, 1997;
7. Facsimile correspondence from JeffEIIiott ofMFRA (Soil Pile Information) to
Richard M. Jolley of the MPCA, dated February 26, 1997;
8, "Addendum No.1, City of Andover, Specifications for Commercial Boulevard Northwest,
Contaminated Soil and Debris Disposal Project, City Project No. 94-33C," prepared by
MFRA, dated April 18, 1997;
9, "Phase II Investigation Work Plan," prepared by Maxim, dated July 11, 1997;
10. "Phase II Groundwater Investigation Report," prepared by Maxim, dated March 24, 1998;
11. "Historical Site Re~earch Summary, Commercial Auto Parts," prepared by Maxim, dated
July 16, 1998;
12. "Historical Site Research Summary, Andover Auto Parts," prepared by Maxim, dated ,,-)
July 16, 1998; , I
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13. "Historical Site Research Summary, Sandeen Parcel," prepared by Maxim, dated July 16, 1998;
14. "Historical Site Research Summary, Wilber Auto Palis Parcel," prepared by Maxim, dated
July 16, 1998; and
15. Correspondence from R, Jeff Elliott ofMFRA to the MPCA, Soil Stockpile Data for Wilber,
Andover, and Commercial Parcels, dated August 11,1998.
B. Site Remedial Design, Response Action Plans and Response Action Implementation Reports
1. "Site Contingency Plan," prepared by Maxim Technologies, Inc. (Maxim), dated
August 19,1996;
2. "Interim Response Action Plall, Commercial Boulevard Northwest Development Site,"
prepared by Maxim, dated June 16,1997;
3. Facsimile correspondence from Jonathan P. Nedved of Maxim to Rick Jolley of the MPCA,
Revised Table V and Table VI for the June 16, 1997, Interim Response Action Plan dated
June 18, 1997;
4. "Proposed Remedial Actions" (Mom's Auto Salvage Interim Response Action Plan),
correspondence from Jonathan p, Nedved of Maxim to the MPCA, dated October 23,1997;
5, "Conceptual Remedial Action Plan,"prepared by Maxim, dated November 15, 1997;
6, "Interim Response Action, Mom's Auto," prepared by Maxim, dated February 11, 1998;
7. "Proposed Interim Response Action, Andover Auto Parts," prepared by Maxim, dated
June 23, 1998;
8. "Proposed Interim Response Action, Wilber Auto Parts," prepared by Maxim, dated
June 23, 1998;
9. "Proposed Disposition of Excavated Contaminated Soil Excavation "A" and Excavation
"B" Areas - Wilber Auto Parts and Andover Auto Parts Parcel," letter report from
Jonathan P. Nedved of Maxim to the MPCA, dated September 15,1998;
10. "Results of Tier II SL V Screening of Excavated Contaminated Soil," letter report submitted
by Jonathan P. Nedved of Maxim to the MPCA, dated September 21,1998;
11. "Interim Response Action Plan, Excavated Waste Material and Contaminated Soil," letter
J report submitted by Jonathan p, Nedved of Maxim to the MPCA, dated October 13" 1998;
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12. "Draft Corrective Action Report," prepared by Maxim, dated December 18, 1998;
, 13. "Placement of Excavated Impacted Soil Beneath Jay Street Northwest, Wilber Auto Parts
and Andover Auto Parts Parcels," letter report prepared by Jonathan P. Nedved of Maxim
to the MPCA, dated November 24, 1998;
14. "Draft Corrective Action Report" (Revision #1), prepared by Maxim, dated
February 19,1999;
15. "Corrective Action Report," prepared by Maxim, dated May 7,1999; and
16. MPCA RAP and RAP Implementation Report Approval Letters:
a) Correspondence from Deborah B. DeLuca of the MPCA to Scott Erickson of the city of
.A.ndover, Site Contingency Plan Approval, dated September 3, 1996;
b) Correspondence from J. Joseph Otte of the MPCA to Scott Erickson of the city of Andover,
Approval of Mom's Auto Salvage Interim Response Action Plan, dated October 29.1997;
c) Correspondence from J. Joseph Otte of the MPCA to Scott Erickson of the city of Andover,
Approval for Interim Response Action Plan for Mom's Auto Salvage parcel, dated
February 19,1998; / \
d) Correspondence from Richard M, Jolley of the MPCA to Scott Erickson of the city of J
An~over, Approval of the Interim Response Actions for the Andover and Wilber Parcels,
dated September 9,1998;
e) Correspondence from Richard M. Jolley of the MPCA to Scott Erickson of the city of
Andover, Approval of On-Site Placement of Marginally Impacted. Soils, dated
September 25, 1998;
f) Correspondence from Richard M, Jolley of the MPCA to Scott Erickson of the city of
Andover, Approval ofInterim Response Action Plan, Excavated Waste Material and
Contaminated Soil, dated October 21, 1998; and
g) Correspondence from Richard M. Jolley of the MPCA to Scott Erickson of the City of
Andover, Approval of Corrective Action Report, dated May 17, 1999,
C. Miscellaneous Site Documents and Correspondence
L "Specifications for Commercial Boulevard Northwest; Andover, Minnesota," prepared by
McCombs Frank Roos Associates, Inc, (MFRA), dated July, 1996;
2. Correspondence from R. Jeff Elliott ofMFRA to Richard M, Jolley of the MPCA,
Program Application Addition and legal description of the Site, dated July 11, 1996;
3, Correspondence from Frederick A. Micke of the United States Environmental Protection .' '\
Agency (EP A) to Deborall DeLuca of the MPCA (EP A comments on the Site Contingency J
Plan), c:ated August 30, 1996;
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4. Office Memorandum from Pat Matuseski of the Hazardous Waste Division of the MPCA to
Rick Jolley of the VIC Program of the MPCA (hazardous waste determination prepared for
preliminary soil analytical data received from the Best Auto Palts parcel), dated
December 4, 1996;
5, "Hazardous Waste Determination, Waste Material Excavated from Best Auto Parts Site,'"
letter report received from Jonathan P. Nedved of Maxim, dated January 13, 1997;
6. MPCA Office Memorandum (Hazard evaluation of soil stockpile sampling data from the
Best Auto Pal.ts/South Andover Redevelopment site) from Helen Goeden, Ph.D. to
Rick Jolley (both of the MPCA), dated February 24,1997;
7. "Specifications for Commercial Boulevard Northwest, Contaminated Soil and Debris
Disposal Project, City Project No, 94-33C," prepared by MFRA, dated March 1997;
8. Correspondence from Jonathan P. Nedved of Maxim (TCLP Analytical Data, "West of Best
Auto Parts" Area Soil Piles) to Rick Jolley of the MPCA, dated March 19, 1997;
9. Correspondence from Jonathan P. Nedved of Maxim (Hazardous Waste Detem1ination,
/ Waste Material Excavated from "West of Best Auto Parts" Area, Soil Pile No. 29), dated
March 19,1997;
10, MPCA Office Memorandum (Hazardous Waste Determination) from Beth Gav,TYs of
Hazardous Waste Division to Rick Jolley of the MPCA, dated March 31,1997;
1 LCorrespondence from Jonathan p, Nedved of Maxim (Estimated Schedule for Field
Activities) to Rick Jolley ofthe MPCA, dated May 19, 1997;
12, Correspondence from Jonathan p, Nedved of Maxim (Results for Toxicity Screening of
Excavated Soil) to Rick Jolley of the MPCA, dated May 22, 1997;
13. Correspondence from Jonathan P. Nedved of Maxim (Evaluation of Waste Materials
Against Revised Site Screening Levels) to Rick Jolley of the MPCA, dated June 2, 1997;
14, Correspondence from James 1. Warner of the MPCA to Scott Erickson of the city of
Andover, No Action Letter for the Sandeen and the Commercial Auto Parts parcels. dated
September 11, 1998; and
15, Affidavit from Scott Erickson documenting the City of Andover's association with the
South luidover Redevelopment Site, dated September 1, 1999,
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EXHIBIT C
SITE SUMMARY
South Andover Redevelopment Site
MPCA Project Number VP6290
The South Andover Redevelopment Site (forn1erly referred to as the Best Auto Parts Site) (the Site) is
located in Andover and is bounded on the north by Bunker Lake Boulevard, on the west by Thrush
Street Northwest, on the southeast by Commercial Boulevard Northwest, on the southwest by
developed residential properties, and on the east by Jay Street. 111e Site is roughly rectangUlar,
includes what was originally 24 separate parcels and covers approximately 90 acres as is shown on the
figure of Exhibit D. The Site is part of the South Andover Superfund site, which is on the National
Priorities List (NPL), with the United States Environmental Protection Agency (EPA) in Region 5
serving as administrative lead. Historically, activities at the Site have included numerous automobile
scrapyards, foundry operations, and the filling of wetlands by contaminated fill. In 1993, the EPA
conducted soil remediation activities at the NPL site and subsequently continued to monitor the ground
water contamination from the Site wide monitoring network. The City has been working cooperatively
with the MPCA Voluntary Investigation and Cleanup (VIC) Program to develop and implement
investigation and cleanup plans for the Site since June 1996 in order to prepare the Site for
redevelopment. In October 1998, the EPA delisted the soil and the wetland operable wlits of the 1\PL
site from the NPL. The EPA and the Superfund Administrative Group, representing several potential
responsible parties for the NPL site, are continuing to investigate and monitor ground water , - )
contamination in a portion ofthe NPL site located southwest of the portion of the Site,
Initially, the City entered only the Best Auto Parts parcel within the VIC Program for investigation.
Thus, many of the files and reports concerning the investigation and response actions from 1996 to 1999
refer to the Site as the "Best Auto Parts Site." The Site was later renamed at the request of the City and
in order to better reflect the multi-parcel nature of the redevelopment Site.
The City's response action plan for the Site was initially designed as a comprehensive Site Contingency
Plan whose purpose was to specify how potentially hazardous compounds were to be screened,
characterized, and remediated as the City graded and prepared the Site for redevelopment. The City
prepared the Contingency Plan to meet the guidelines of the MPCA VIC Prognun in order to eJlSure that
hazardous materials, pollutants, and contaminants encountered during Site redevelopment activities are
properly remedied in accordance with requirements of the Minnesota Environmental Response and
Liability Act (MERLA), The MPCA approved the Site Contingency Plan with modifications on
September 3, 1996.
On numerous parcels of the Site, the City conducted additional Phase I Investigations and targeted
specific areas of the Site for further investigation through the use of extensive test pits, in-field soil
screening and monitoring, and soil sampling. The Site Contingency Plan, parcel-specific investigations,
and interim response action proposals were implemented by the City to identify and remediate additional
areas of soil contamination not previously addressed during the NFL site investigation. Table 1
summarizes investigative activities and response actions conducted by the City at the Site,
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The following parcels not noted in Table I were evaluated during clearing and grading activities by an
on.site environmental technician, but no environmental concerns were observed and no response actions
were required: the A TV (West), A TV (South), David Heidelberger, Rick Heidelberger (North), the
Leisinger (North), the Leisinger (South) Parcel, the Punk in City (East and West), Charles Mistelski,
M.R. Olson, and the Tax Ladies, Inc, (East, West, and South).
The City documented the completion of several interim response actions during the course of the project.
A summary of all response actions conducted at the Site by the City is presented in the "Corrective
Action Report,"dated May 7, 1999. This report was approved by the MPCA on May 17, 1999.
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Table 1
Summary of Response Actions Conducted by the City of Andover
South Andover Redevelopment Site
MPCA Project Number VP6290
Andover Auto 625 cubic yards of impacted soil was excavated and The excavated soil placed beneath south bound lane of
Parts Parcel characterized with concentrations that were between Jay Street.
Tier I and Tier 2 Soil Leaching Values (SL Vs),
ATV (East) 2,800 cubic yards of soil/waste contaminated with l\onhazardous waste was disposed of in Buffalo, I
Parcel VOCs, lead and PCBs, was excavated, A small portion Minnesota at the Superior Services Forest City Road
of this material was excavated from the adjacent Tax facility, a RCRA Subtitle D landfill. PCBs in excess of
Ladies (Central) Parcel. the Toxic Substances Control Act (TSCA) limit of 50
parts per mill ion (ppm) was disposed of at a Resource
Conservation and Recovery Act (RCRA) Subtitle C
landfill.
Best Auto Pans Contaminated soil impacted by Palllt solvents, paint Several stockpiles underwent ex~sitll venting to reduce
Parcel - Soil wastes and metals associated with a grease trap concentrations ofVaCs; these soils were subsequently
totaling 2600 cubic'yards were excavated and disposed of at Superior Services Forest City Road
characterized. (FCR) Landfill, a RCRA Subtitle D pennitted landfill.
A portion of the excavated soils did not require
-- remediation and were replaced onsite on the ATV
Parcel as fill.
Best Auto Parts The contaminated soil identifred on this parcel A ground water plume consisting ofVOCs sImilar to
Parcel - Ground extended to tile ground water table, as a result the those identified in the excavated soil were identified,
Water VIC Program required the extent ofthe resulting however the pbme was largely confmed to the area ()
Contamination ground water contamination to be determined. surrounding the excavated soil contamination. No
response actions were required due to the limited
nature of the plume and the fact that L'le source for
contamination had been removed.
Commercial A total of94 test excavations were dug and slight No response a~tions were conducted or required.
Auto Parts petroleum odors were noted in eight excavations. VOCs
Parcel were identified, but were below risk based actien levels.
Rick 16 test excavations were conducted and an area oflead The leadaimpacted soil was excavated and
Heidelberger impacted soil was identified approximately 70 cubic yards disposed of off.site at the Superior FCR Landfill.
(South) Parcel in volume.
South Andover Partially crushed drums and associated soil was The drums were piaced in overpacked drums and
Parcel excavated, Elevated levels of chromium, lead, and transported as hazardous waste to the Mi chigan
VOCs were identified in the associated soils. Disposal, Inc. RCRA Subtitle C landfill in Wy..,dot,
Michigan, Approximately 100 cubic yards of soils was
disposed of eff.site at the Superior FCR La,dfill.
Mom's Auto A Phase II investigation was conducted including nine The impacted soil from these two areas \oVer:
Salvage Parcel soil borings and 24 test pits. Two areas of concern were excavated and disposed of off-site at the Superior
identified with a total volume of approximately 470 cubic FCR Landfill.
yards.
Sandeen Parcel Historical information indicated the possible presence of No response actions were conducted or required
solvents and oils had been burned on titis property, A for this parcel.
Phase 11 Investigation was conducted consisting of soil
borings, test excavations and observations made during
grading activities. however no soil contamination was
identified.
Tax Ladies, Inc, Wastes and contaminated soil was excavated in See A TV (East) Parcel
(Central) Parcel conjunction with the excavation of wastes and
contaminated soil at the adjacent ATV (East) and the
Best Auto Parts parcel.
Wilber Auto 70 cubic yards of soil containing elevated levels ofiead The excavated soil was disposed of off.s i te at the
Parts Parcel with traces ofPAHs, PCBs and vacs was identified in Superior FCR Landfill.
the central portion of the site; 690 cubic yards of , "-
petroleum impacted soil, and 20 cubic yards of metal )
impacted soil was identified in the eastern portion by use
of test excavations.
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EAl-fIBIT D
IvLAJl ILLUSTRATING SITE STUDY AREA
South Andover Redevelopment Site
MPCA Project Number VP6290
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CITY OF ANDOVER
1685 CROSSTOWN BOULEVARD N.W.. ANDOVER, MINNESOTA 55304. (763) 755-5100
FAX (763) 755-8923. WWW.cJ.ANDOVEKMN.US
TO: EDA President and Commissioners
FROM: John Erar, Executive Director
SUBJECT: Discuss Off-Sale Liquor Store Restrictions
DATE: March 6, 2002
INTRODUCTION
The EDA has discussed issues regarding the permitting of multiple off-sale liquor stores in a
concentrated commercial area, The Executive Director has been directed to provide additional
information on regulatory authority.
DISCUSSION
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While state statute does not regulate the number of off-sale liquor licenses a city may issue, it
does allow municipalities to locally regulate off-sale liquor store operations, Currently, the City
does not have any ordinances regulating off-sale liquor store operations. In review of
neighboring communities, staff has prepared a brief survey! of neighboring communities.
CITY # LICENSES ALLOWED NOTES
Anoka Municipal only
Blaine 6 One license per 7,000 residents
Chanhassen 4 500 foot radius restrictions with building valuation
of not less than $100,000
Champlin 3
Coon Rapids 6 One mile radius restrictions
Elk River Municipal only
Ham Lake 3 One license per 5,000 residents
Plymouth No limit
Ramsey No limit
/ I Provided by the City Clerk's Office
Cities with municipal liquor store operations generally do not allow private competition, and
J essentially construct additional municipal stores in response to market demand, Minnesota
Statute 340AA08, subd, 3 regulates the amount of fees cities can charge for off-sale liquor
licenses-Andover is limited to $200 per license, There is no statutory limit on the number of off-
sale liquor licenses that may be issued other than what the City may limit by ordinance subject to
Council discretion.
In discussions with City Attorney Bill Hawkins, it was indicated that off-sale liquor stores do not
typically result in additional City enforcement actions as the product is purchased for off-site or
home consumption. However, the City Council has the flexibility to impose restrictions as it
deems appropriate, Of the cities surveyed, the Council has the following options:
I) Develop license restrictions based on radius locations; given the limited and
concentrated commercial retail land areas remaining in the City, this may essentially
preclude more than one liquor store from locating in the Andover Station\WDE area,
2) Develop license restrictions based on population;
3) Develop license restrictions based on construction valuation; this would create
economic barriers to more pedestrian liquor store retailers and allow the City
Council/EDA to be more selective in choosing preferred off-sale liquor store retailers
while guaranteeing certain architectural and building construction standards.
4) Develop license restrictions based on a combination off actors;
5) Status Quo; Allow market factors to determine the economic sustainability of
multiple off-sale liquor stores that would also facilitate consumer competition,
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ACTION REQUIRED
Given the interest by multiple developers in locating off-sale liquor stores in the WDE and
Andover Station sites, EDA Board discussion is requested regarding the nature of preferred off-
sale liquor license restrictions, A recommendation by the EDA would then be advanced to the
Planning and Zoning Commission for review and comment, with final consideration and action
by the City Council.
Respectfully submitted,
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CITY OF ANDOVER
1685 CROSSTOWN BOULEVARD N.W. . ANDOVER, MINNESOTA 55304 . (763) 755-5100
FAX (763) 755-8923. WWW.CLANDOVER.MN.US
TO: EDA President and Commissioners
FROM: John Erar, Executive Director
SUBJECT: Commercial Boulevard - Renaming
DATE: March 6, 2001
INTRODUCTION
At the February 6, 2001, the EDA discussed interest in renaming Commercial Boulevard to more
appropriately reflect the true nature and character of the Board's vision of Andover Station,
DISCUSSION
'. , My office has received submittals of possible street names for Board consideration.
ACTION REQUESTED
EDA consideration of submitted street names,
Respectfully submitted,
John Erar
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Submitted by EDA Commissioner Don Jacobson
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Possible names for the "old" Commercial Blvd
. Oak Ridge Road
. Railroad Drive
. Andover Drive
. Arbor Lake Drive
. Sand Point Road
. Brickstone Court
. Broadway Drive
. Burl Oak Trail
. Zepher Lake
. Water Tower Drive
. City Center Circle (or drive)
. Coach Road
. Roundhouse Road
. Great Northern Trail
. Empire Trail
. Station Trail
. North Star Drive
. Grand Avenue
, . Great Oaks Trail
A Iron Horse Way
.
. Overland Trail
. Golden Spike Road
. Carriage Drive
. Market Street
. Round House Road
. Muskrat Run
. Oak Terrace
. Old Settlers Trail
. Patriot Lane
. Rail Way
.
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FIRST AMENDMENT
TO
DEVELOPMENT AGREEMENT
This First Amendment to Development Agreement ("First Amendment") is dated as of
March 15,2002 (which date is for reference purposes only), by and between the Andover
Economic Development Authority (the "EDA"), a body politic and corporate under the laws of
Minnesota, and United Properties Investment LLC, a Minnesota limited liability company (the
"Company").
WITNESSETH:
WHEREAS, the EDA and the Company entered into that certain Development
Agreement dated September 25, 2001 (the "Development Agreement");
WHEREAS, the Development Agreement concerns, inter alia certain property located
southeast ofthe comer of Bunker Lake Boulevard NW and Thrush Street in Andover,
Minnesota, more fully set forth on Exhibit A and Exhibit A-I to the Development Agreement
and referred to therein as the "Development Property" consisting of the "Commercial
Development Property" and the "Residential Development Property," all of which is being
acquired from the EDA by the Company for development purposes;
WHEREAS, the EDA is in the process of registering the Commercial Development
Property and Residential Development Property pursuant to the Torrens Act, and replatting the
same substantially pursuant to the preliminary plat attached hereto as Exhibit A-I (the "Andover
Station First Addition Replat"); and
WHEREAS, the parties desire to clarify and otherwise amend the Development
Agreement on the terms and conditions as hereafter set forth,
NOW, THEREFORE, in consideration of the premises, of the mutual obligations of the
parties hereto and other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the parties covenant and agree with each other as follows:
1. Recitals. The parties agree to incorporate the provisions of the above recitals into
and as a part of the provisions of this Agreement the same as if they were repeated
in their entirety,
2. Definitions. Any term or phrase with initial capitalized letters shall have the
meanings as defined in the above recitals, or elsewhere defined herein or if not so
defined shall have the meaning as set forth in the Development Agreement.
3, Revised Le!!al Descriotion, Exhibits A and A-I to the Development Agreement
are hereby deemed deleted therefrom and Exhibits A and A-I attached to this
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First Amendment shall be deemed substituted in lieu thereof,
4, Exhibit B/Purchase Al!reement. Exhibit B to the Development Agreement (the
"P A") sets forth the terms of conveyance between the EDA and the Company
with respect to the Development Property and is hereby amended, modified and
revised as follows:
A, Closinl! Date, The Date of Closing as set forth in paragraph 3 of
the P A shall be extended to allow for the finalizing of the Andover
Station First Addition Replat, and accordingly such Date of
Closing shall now be Friday, April 19, 2002, or such earlier date
agreed to by the parties,
B. Simultaneous c1osinl! of Residential and Commercial
Development Properties, At the Closing on the conveyance of
the Development Property, the EDA agrees to execute and delivery
separate warranty deeds for each of the Residential Development
Property and Commercial Development Property which shall run
to the Residential Assignee and to the Company, respectively, and
paragraph 4 of the PA is hereby revised and amended accordingly.
C, Price and Terms. The parties agree that the price for the entire
Development Property shall not exceed $2,648,448,00 (19 acres
times $3.20 per square foot), To the extent that the area of the
Development Property exceeds 19 acres (827,640 square feet) then
the amount of square feet over 19 acres times $3.20 shall be added
to the purchase price to be paid for the "Option Property" (as
defined below) (the "Additional Option Price"). If, at the
expiration of the Option Agreement (4:00 p,m. March 15, 2003),
the Company has not exercised, in whole or in part, the Option,
then the Company agrees to pay the Additional Option Price to the
EDA on or before March 17,2003.
5, Option Al!reement, Exhibit C to the Development Agreement (the "Option
Agreement") shall be revised as follows:
A. Option Price, The Additional Option Price shall be added to the
purchase price to be paid by Optionee to Optionor for all of the
real estate subject to the Company's Option (the "Option
Property"), which shall result in an increase in the $3.20 per
square foot price to be paid for the Option Property (the "Revised
Per Square Foot Price"). The Revised Per Square Foot Price
shall be calculated by dividing the number of square feet of area
contained within the Option Property into the following sum: i)
the Additional Option Price, plus ii) the product of $3,20 times the
number of square feet of area contained within the Option
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Property, Thus, the $3,20 per square foot figure set forth in
Section 1.1 of the Option Agreement shall be deemed deleted and
the Revised Per Square Foot Price shall be inserted in lieu thereof.
The Option Property, which is to be attached as Exhibit A to the
Option Agreement is the property set forth on Exhibit A-2 attached
to this First Amendment.
B, Partial Takedowns, The Option Agreement is hereby revised to
provide that the Optionee shall be entitled to exercise the Option
one or more times for portions or all of the Option Property (at
Optionee's election), by Optionee designating to Optionor (such
designation to be by survey, legal description or otherwise), the
portion of the real estate for which it desires to exercise its Option.
Such partial take-down of the Option can be exercised more than
once provided however, that no exercise is subsequent to 4:00 p.m.
March 15,2003, In the event that Optionee exercises a partial
take-down of the Option as set forth herein, it shall arrange to plat
the property so designated by Optionee and Optionor agrees to
cooperate with Optionee in connection with said platting process.
The parties agree and acknowledge that closing on the real estate
for which Optionee-has so exercised its partial take-down of the
Option shall occur pursuant to Section 7 of the Option Agreement,
or within ten (10) days following the platting of the parcel of real
estate for which the Option has been exercised, whichever shall be
last to occur, The EDA acknowledges and agrees to allow the
Company to enter upon any of the Option Property to inspect,
survey and plat the same at all times prior to the expiration of the
Option,
6, Environmental Indemnification, The parties agree to amend, modify and revise
Section 10 of the Development Agreement by adding thereto the following:
"Section 10.3 Environmental Indemnitv. The EDA agrees to deliver at
the Closing on the Commercial Development Property, an Environmental
Indemnity Agreement, in the form attached to this First Amendment as
Exhibit B, The EDA agrees to also delivery an Environmental Indemnity
Agreement in substantially the same form, at the closing(s) of the Option
Property, The EDA further agrees to delivery an Environmental
Indemnity Agreement at the closing of the Residential Development
Property on terms and conditions separately agreed to between the EDA
and the Residential Assignee,"
7. Declaration of Restrictive Covenant. The legal description to be attached to
Exhibit D ("Declaration of Restrictive Covenant") to the Development
Agreement is attached hereto as Exhibit A-3.
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8, Covenants. Conditions and Restrictions, The parties have agreed that the form
of the Covenants, Conditions and Restrictions referenced in paragraph 4H of the
Development Agreement has been approved by the parties, a copy of which is
attached hereto as Exhibit C.
IN WITNESS WHEREOF, the EDA and the Company have caused this Agreement to be
executed in their respective names,
ANDOVER ECONOMIC DEVELOPMENT
AUTHORITY
By:
Michael R. Gamache, President
By:
John Erar, Executive Director
UNITED PROPERTIES INVESTMENT LLC
By: -
Its:
By:
Bruce Carlson, Vice President
Retail Development
SCHEDULE OF EXHIBITS
Exhibit A - Revised Legal Description for Development Property
Exhibit A-l-Andover Station First Addition Replat
Exhibit A-2 - Legal Description of Option Property Option
Exhibit A-3 - Legal Description to be attached to Declaration of Restrictive
Covenant
Exhibit B - Environmental Indemnity
Exhibit C - Approved Form of Covenants, Conditions and Restrictions
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EXHIBIT A
DEVELOPMENT PROPERTY
1. Commercial Development Property
Legal Description:
Lots 1,2 and 3, Block 1, Andover Station First Addition, Anoka County,
Minnesota.
2. Residential Development Property
Legal Description:
Lot 1, Block 2, Andover Station First Addition, Anoka County,
Minnesota.
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EXHIBIT A-3
LEGAL DESCRIPTION TO BE ATTACHED
TO DECLARATION OF RESTRICTIVE COVENANTS
Parcel 1
That part of the Northeast Quarter of the Northeast Quarter, Section 34, Township 32, Range 24,
Anoka County, Minnesota, lying southerly of the following described line:
Commencing at the northwest comer of said Northeast Quarter of the
Northeast Quarter; thence on an assumed bearing of South 00 degrees 18 minutes
44 seconds West, along the west line of said Northeast Quarter of the Northeast
Quarter, a distance of 15 feet to the actual point of beginning of the line to be
described; thence South 89 degrees 08 minutes 39 seconds East a distance of
180.52 feet; thence South 75 degrees 30 minutes 33 seconds East a distance of
190.89 feet; thence South 89 degrees 08 minutes 39 seconds East a distance of
474,80 feet; thence North 67 degrees 05 minutes 08 seconds East a distance of
111,64 feet; thence South 89 degrees 08 minutes 39 seconds East a distance of-
373.94 feet to a point on the east line of said Northeast Quarter of the Northeast
Quarter and said line there terminating.
Parcel 2
That part of the Northwest Quarter of the Northeast Quarter, Section 34, Township 32, Range 24,
Anoka County, Minnesota, lying westerly and southerly of the following described line:
Commencing at the northeast comer of said Northwest Quarter of the
Northeast Quarter; thence on an assumed bearing of North 89 degrees 08 minutes
39 seconds West, along the north line of said Northwest Quarter of the Northeast
Quarter, a distance of 1078.71 feet to the actual point of beginning of the line to
be described; thence South 68 degrees 56 minutes 31 seconds East a distance of
402.99 feet; thence South 81 degrees 03 minutes 01 seconds East a distance of
109.56 feet; thence North 70 degrees 32 minutes 11 seconds East a distance of
198.91 feet; thence North 80 degrees 59 minutes 38 seconds East a distance of
411.73 feet to a point on the east line of said Northwest Quarter of the Northeast
Quarter distant 15 feet south from said northeast comer of the Northwest Quarter
of the Northeast Quarter, and said line there terminating,
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EXHIBIT C
APPROVED FORM OF
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
THIS DECLARATION made this day of , 2002, by the
Andover Economic Development Authority (EDA), a body corporate and politic, hereinafter
referred to as "Declarant",
WITNESSETH:
WHEREAS, Declarant is the owner of certain real property located in the City of
Andover, Anoka County, Minnesota, more-particularly described in Article II below and Exhibit
"A" attached hereto, herein the "Property."
WHEREAS, Declarant desires to create a community of compatible and complimentary
commercial, residential and office buildings for the benefit of the owners and to protect the value
and desirability of the Andover Station development; and
WHEREAS, Declarant has deemed it desirable for the preservation of Andover Station
and for the assurance of consistent quality and architectural design to establish certain
restrictions and covenants as to how Andover Station may be developed; and
WHEREAS, Declarant intends that certain of the following covenants and restrictions are
to be administered and enforced by Declarant and Andover Station Owners Association
established for Andover Station for the purposes expressed in the Articles of Incorporation for
Andover Station Owners Association; and
NOW, THEREFORE, Declarant hereby declares that all of the properties described
above, known as Andover Station, and such additions thereto as may hereinafter be brought
within the jurisdiction of the Association, shall be held, sold, and conveyed subject to the
following restrictions, covenants and conditions which are for the purpose of protecting the value
and desirability of, and which shall run with the real property and be binding on all parties
having any right, title or interest in the described properties or any part thereof, their heirs,
successors and assigns and shall inure to the benefit of each owner thereof.
Section 1.1
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The following words, when used in this Declaration (unless the context shall prohibit),
shall have the following meanings:
a. "ASSOCIATION" shall mean and refer to the Andover Station Owners
Association, a nonprofit corporation created by Declarant under the laws
of State of Minnesota for the purpose of administering and enforcing on
behalf of the Owners and Covenants and Restrictions contained in this
Declaration,
b. "COMMON EXPENSES" shall mean and include (i) all expenses
approved or incurred by the Board of Directors by Officers of the
Association, pursuant to authority granted by the Governing Documents or
by law, in the performance of their powers and duties; (ii) those items
identified as Common Expenses In this Declaration and In the
Association's Bylaws,
c, "COMMON PROPERTY" shall mean and refer to all real property
improvements thereon and property rights and easements owned by the
Association for the common use and enjoyment of the Owners.
d, "DECLARANT" shall mean and refer to Andover Economic -
Development Authority (EDA), its successors and assigns, if such
successors and assigns should acquire any undeveloped portions of the
property from the Declarant for the purpose of Development or by virtue
of foreclosure of a mortgage or by any transfer in lieu thereof.
e. "FIRST MORTGAGE" shall mean and refer to any person named as a
mortgage under any mortgage against a Lot, which mortgage is first in
priority upon foreclosure to all other mortgages against said Lot, or any
successors in interest to such person under said mortgage or any rights
arising therefrom.
f. "GOVERNING DOCUMENTS" shall mean and refer to this
Declaration, and the Articles of Incorporation and Bylaws of the
Association, and Andover Station Design Standards, as amended and
supplemented from time to time, all of which shall govern the use and
operation of the property.
g, "LOT" shall mean and refer to any platted plot of land shown in Exhibit
A, excluding the Common Property,
h. "ASSOCIATION MAINTENANCE AREA" shall mean the common
property and those areas of the Lots for which the Association is
responsible for maintaining in accordance with these Declarations.
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1. "MEMBER" shall mean and refer to members of the Association as
described in this Declaration and in the Bylaws of the Association.
J. "OCCUPANT" shall mean and refer to each temporary or permanent
occupant of a dwelling constructed on a Lot, whether said occupant is an
Owner, tenant or other person or entity.
k. "OWNER" shall mean and refer to the record owner, whether one or
more persons or entities, of the fee simple title to any Lot except that if (i)
a Lot is being sold in a contract for deed, (ii) the contract vendee is in
possession of the Lot and (iii) the contract so provides, then the vendee
and not the vendor shall be deemed the "Owner",
1. "PROPERTY" shall mean and refer collectively to all of the real
property now or hereafter submitted to the Covenants and Restrictions of
this Declaration,
m, "RULES AND REGULATIONS" shall mean and refer to the Rules and
Regulations of the Association as approved from time to time by the
Association pursuant to Section 5.3.
~
n, "BUILDING" shall mean and refer to any building located on a Lot and
designated and intended for use and occupancy and including any
accessory building which may be adjacent to or within such building,
0, "ANDOVER STATION" shall mean that part of the property described
in Exhibit A.
p. "ANDOVER STATION DESIGN STANDARDS" shall mean those
design standards adopted by the Andover Economic Development
Authority dated December 18, 2001 and including any subsequent
amendments thereto.
q, ARCHITECTURAL CONTROL COMMITTEE" shall mean the
Andover Review Committee which shall consist of representatives from
the following Andover City Departments: planning, engineering, building,
public works, fire, administration and finance,
ARTICLE II.
PROPERTY SUBJECT TO THIS DECLARATION
Section 2.1 Property.
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The Property shall mean and refer to all Lots and Blocks in Andover Station, a plat duly
recorded in Anoka County, Minnesota, as listed in Exhibit A, in Andover Station II, a plat duly
recorded in Anoka County, Minnesota, and in Andover Station First Addition, a. plat duly
recorded in Anoka County, Minnesota.
Section 2,2 Transfer of Lots.
The Lots shall be freely transferable in accordance with the applicable laws of the State
of Minnesota and the provisions of the Governing Documents, provided, that the share of an
Owner in the assets of the Association, and the Owner's rights and obligations as a member of
the Association cannot be assigned, pledged, encumbered, conveyed or transferred in any
manner, except as an appurtenance to his or her lot.
ARTICLE III.
MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION
Section 3,1 Membership,
The qualifications of members and the manner of their admission into the Association
shall be as follows: -
a, Every Owner shall, solely by virtue of such ownership interest, be a member of
the Association, and such membership shall automatically cease when the person
is no longer an Owner. When one or more persons is an Owner, all such persons
shall be Members,
b, It shall be the duty of each Owner to register Owner's name, Lot address, the
name and address of the Owner's First Mortgagee, and the nature of the Owner's
interest with the Secretary of the Association, If the Owner does not so register,
the Association shall be under no duty to recognize the Owner's ownership for
purposes relating to the operation of the Association, including voting, but such
failure to register shall not relieve the Owner of the Owner's obligations under the
Governing Documents.
c, Membership in the Association is appurtenant to ownership of a Lot, and transfers
of any interest of any Owner in the Property may be made only in accordance
with provisions of the Governing Documents.
Section 3.2 Voting Rights,
The Association shall have two classes of voting membership.
a. Class A Members, Class A members shall be all Owners, with exception of the
Declarant. Class A members shall be entitled to one vote per acre contained
within the Lot of which they are the Owner, When more than one person is an
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Owner of any Lot, all such persons shall be members, but the Owners of such Lot
shall be collectively entitled to only one vote per acre contained within that Lot,
When there is more than one Owner of a Lot, the votes for such Lot shall be cast
by one person designated in writing signed by all Owners of the Lot. Such voting
authority shall be valid until revoked in writing by such Owners.
b. Class B. Members. The Class B Member shall be the Declarant who shall be
entitled to three (3) votes per acre contained within the Lot(s) owned. The Class
B membership shall cease and Declarant shall then (notwithstanding provisions of
Paragraph 3.2a above, to the contrary) be entitled to Class A membership
pursuant to Paragraph 3.2a above, upon the occurrence of the earlier of the
following (hereinafter called the "Conversion Date"):
a, When the total votes outstanding in the Class A membership equal the
total votes outstanding in the Class B membership,
or
b. December 31, 2003
ARTICLE IV.
RIGHTS AND OBLIGATIONS OF OWNERS
Section 4.1 Rights and Easements in Common Property.
Subject to the provisions of Section 4.2, every Owner shall have the following non-
exclusive, appurtenant rights and easements of enjoyment over, under and upon the Common
Property:
a. For access and use of utilities such as sewer, water, gas, power, telephone
and cable, which may be installed by, for or with the permission of the
Association.
b. For access by pedestrians or vehicle travel, subject to reasonable
regulation by the Association.
c. For parking as located and constructed by the Declarant or the Association
and as may be reasonably limited and regulated by the Association,
Section 4.2 Limitations on Owners' Rights and Easements,
Except as otherwise provided herein, the Owners' rights and easements created hereby,
the right of the Association to govern the use and enjoyment of the Property, and the right and
title of the Association to the Common Property, shall be subject to the following:
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a, The right of the Association, in accordance with the Governing
Documents to maintain, repair and replace portions of the Common
Property and to maintain the Association Maintenance Area pursuant to
Article IX; and
b. The right of the Association, in accordance with the Governing
Documents, to improve the Common Property, and in furtherance thereof
to borrow money and to mortgage said Common Property; provided,
however, that the rights of such mortgagee in said Common Property shall
be subordinate to this Declaration and to the rights of the Owners and the
First Mortgagees; and
c, The right of the Association to suspend the right of any Owner to vote and
the right of any Owner, Occupants of the Owner's Lot and their respective
guests to use the Common Property for any period during which any
assessment against the Owner's Lot remains unpaid and for an additional
period of up to 30 days for each violation of the provisions of the
Governing Documents and Rules and Regulations by the Owner,
Occupants of the Owner's Lot their respective guests; and
d. The right ofthe Owners to use the common parking areas, if any, subject
to reasonable regulation by the Association; and
e, The right of the Association to dedicate or transfer all or any part of the
- Common Property to any public agency, authority, or utility for public or
utility purposes subject to written approval by Members entitled to cast
two-thirds (2/3) of the votes of each class of membership and a like
percentage of the First Mortgagees, or the right of the Declarant to effect
such a dedication or transfer at its sole discretion prior to the Conversion
Date.
Section 4.3 Use of Lots.
In addition to any other restrictions that may be imposed by the Governing Documents or
by law, the use and conveyance of Lots shall be governed by the following provisions:
a, Each Lot and each Building constructed on a Lot shall be in conformance
only, with the use allowed under the Zoning Ordinances and Regulations
of the City of Andover, as described in and authorized by the Governing
Documents and the Rilles and Regillations.
b, Any lease between an Owner and a lessee shall be required to provide that
the terms of the lease shall be subject in all respects to the provisions of
the Governing Documents and the Rules and Regulations, and that any
failure by the lessee to comply with the terms of such documents shall be a
default under the lease. The Association may approve and enforce such
other reasonable rules and regulations governing leasing as it deems
necessary from time to time,
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c. The Association shall construct, repair and maintain upon the Common
Property vehicle parking spaces and roadways for the common use of the
Owners, the Occupants and their guests in accordance with applicable
municipal requirements and any parking regulations established by the
Association.
d. Each Lot shall be held, conveyed, encumbered, leased, used and occupied
subject to all covenants, conditions, restrictions, uses, limitations and
obligations expressed in the Governing Documents and the Rules and
Regulations. All such covenants and obligations are in furtherance of a
plan for the preservation and enjoyment of the Property, and shall be
deemed to run with the land and be a burden and benefit to any person
acquiring or owning an interest in the Property, their heirs, personal
representatives, grantees, successors and assigns. Each Owner, Occupant
and their guests shall use the Owner's Lot in such a manner as will not
unduly restrict, interfere with or impede the use by other Owners and
Occupants of their Lots,
e, No use shall be made of the Property which would violate the then
existing municipal ordinances or state or federal laws, nor shall any act or
use be permitted which would cause an increase in insurance rates on the
Property or otherwise tend to cause liability or unwarranted expense for
the Association or any Owner,
f. No alteration or improvement, of any type, temporary or permanent shall
be made or caused or suffered to be made by an Owner or Occupant on the
exterior of any Building without the prior written authorization of the
Board of Directors, or a Architectural Control Committee appointed by it,
pursuant to Article XIII of this Declaration.
g. In the event of damage to the Common Property cause by the willful or
negligent act of any Owner or Occupant, or their guests, the Association
shall have the right to restore the Common Property to its prior condition
and assess the costs thereof against the Owner who violates, or whose
Occupants or guests violate, such provisions, and such cost shall become a
lien upon the Owner's Lot and shall be due and payable upon demand,
Section 4.4 Delegation of Use,
Any Owner may delegate, in accordance with the Governing Documents, the Owners
right of enjoyment to the Common Property to the Owners lessees who occupy the Building; but
the Owner shall remain responsible for any damages caused by the willful or negligent acts of
such persons, and such persons shall be subject to the provisions of the Governing Documents.
Section 4,5 Taxes and Special Assessments on Common Property,
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Any taxes or special assessments levied separately against the Common Property by a
governmental authority shall be divided and levied against the Lots as the Association shall
direct, which levies shall be a lien against said Lots and shall be collectible by the Association as
part ofthe annual assessment, if the same are not required to be paid directly to the governmental
authority,
ARTICLE V.
RIGHTS AND OBLIGATIONS OF THE ASSOCIATION
Section 5,1 General.
The Association shall be responsible for the management and control of the Common
Property and all improvements thereon (including furnishings and equipment related thereto), all
trail improvements, street lighting, irrigation systems, landscaping, sidewalks and pertinent
improvements constructed thereon, and refuse service located upon all public easements within
the Property ("Andover Station Improvements"). The Association shall keep the same in good,
clean, attractive and sanitary condition, order and repair.
Section 5.2 Services,
The Association may contract and pay for the services of any person or entity who or
which is a professional property manager to manage the Association's affairs, or any part
thereof, to the extent it deems advisable. Such manager may employ such personnel as the
manager shall determine to be necessary or desirable for the proper operation of the
Associations' affairs, whether such personnel are furnished by the manager or by third parties
hired by the manager. However, any such contract for professional management shall provide
for termination by either party, with cause upon thirty (30) days prior written notice, and without
cause and without payment of a termination fee or penalty upon ninety (90) days or less prior
written notice. In addition, when professional management of the Property ahs been required by
any First Mortgagee and in fact utilized by the Association, any decision to discontinue
professional management and establish self-management by the Association shall require the
prior consent of: (i) Owners of Lots to which at least sixty-seven percent (67%) of the vote in the
Association are allocated; and (ii) the approval of First Mortgagee's holding mortgages on Lots
to which are allocated at least fifty-one percent (51 %) of the votes in the Association,
Section 5.3 Rules and Regulations.
The Association may make such reasonable Rules and Regulations governing the use,
maintenance and enjoyment of the Common Property, including but not limited to parking and
access rules and regulations, as it deems reasonably necessary, which Rules and Regulations
shall not be inconsistent with their rights and duties established by the Governing Documents,
Section 5.4 Board of Directors.
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The power and authority of the Association in the Governing Documents and Rules and
Regulations shall be vested in a Board of Directors elected by the Owners in accordance with the
Bylaws of the Association. The Association shall act through the Board of Directors, unless
specifically provided otherwise in the Governing Documents. Accordingly, all referenced to the
Association shall mean the Association acting through its Board of Directors.
ARTICLE VI.
COVENANTS AND ASSESSMENTS
Section 6.1 Creation of the Lien and Personal Obligation of Assessments,
The Declarant, for each Lot owned within the Properties, hereby covenants and each
Owner of any Lot by acceptance of a deed therefore, whether or not it shall be so expressed in
such deed, is deemed to covenant and agree to pay the Association: (1) annual assessments or
charges, and (2) special assessment for capital improvements or capital equipment to be owned
by the Association; such assessments to be established and collected as hereinafter provided.
The annual and special assessment, together with interest, costs, and reasonable attorney's fees,
shall be a charge on each Lot and shall be a continuing lien upon each Lot. Annual assessments
shall become a lien upon each Lot on the first day of January of the year in which such
assessment is due and--payable, Special assessments shall become a lien on the earliest date any
part of the same is due and payable. Each such assessment, together with interest, costs and
reasonable attorney's fees, shall also be the obligation of the person or entity which is the Owner
of such property at the time the assessment fell due. The personal obligation for delinquent
assessments shall not pass to the Owner's successors in title unless expressly assumed by them,
Section 6.2 Purposes of Assessments.
The assessments levied by the Association shall be used exclusively to promote the
health, safety and welfare of the Owners and occupants and their guests in the Property and for
the improvement and the maintenance of the Common Property and common personal property
thereon, including but not limited to:
a, Payment by the Association of charges for utility services to the Common
Property;
b. Taxes and special assessments against the Common Property, if any, and
income and other taxes levied or assessed against or charge to the
Association, if any;
c. Premiums for liability and other insurance carried upon the Common
Property by the Association, including hazard insurance maintained on the
Common Property pursuant to Article VII hereof, the deductible amount
not covered by such insurance and the additional amounts deposited by the
Association or its Board of Directors to repair or restore improvements on
the Common Property;
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d. Repair, replacements, construction, reconstruction, alterations,
maintenance, snow removal and additions undertaken by the Association
pursuant hereto;
e. Creation of reasonable contingency, emergency, and working capital
reserves (an adequate reserve fund funded from annual assessments and
not from special assessments, shall be maintained for maintenance, repair
and replacement of those elements of the Common Property which must
be replaced on a periodic basis, including but not limited to replacement of
mail boxes);
f, The cost of labor, equipment, and materials for all work done by or for the
Association; and
g, Reasonable fees for management and supervision of the Common
Property pursuant to this declaration during the time the Common
Property is owned by the Association,
Section 6.3 Annual Assessments
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A proposed annual assessment shall be established by the Board of Directors. The Board
of Directors may increase the maximmn annual Association assessment in an amount not to
exceed the greater of (i) twenty percent (20%) of the previous year's Association assessment or
(ii) the percentage increase in the most recently published US Department of Labor, Bureau of
Labor Statistics, Consmner Price Index (Urban Wage Earners and Clerical Workers,
Minneapolis-St. Paul Index, All Items), compared to the same index published 12 months
earlier, Any increase in excess of this amount shall require the approval of sixty-seven percent
(67%) of the Members of a class who are voting in person or by proxy,
Section 6.4 Special Assessments for Capital Improvements.
In addition to annual assessment authorized above, the Association may levy, in any
calendar year, one or more special assessments applicable to that year only for the purpose of
defraying in whole or in part, the cost of any construction, reconstruction, repair or replacement
(i) of capital improvements upon the Common Property, including fixtures and personal property
related thereto or, (ii) capital equipment to be owned by the Association; provided that each such
assessments shall have the assent of two-third (2/3) of the votes of each class of Members who
are voting in person or by proxy at a meeting duly called for this purpose. Special assessments
shall be due and payable as determined by the board,
Section 6.5 Notice of Quorum for Any Action Authorized under Sections 6.3 or 6.4
Written notice for any meeting called for the purpose of taking any action authorized
under Section 6.3 or 6.4 shall be sent to all Members not less than 30 days nor more than 60 in
advance 0 the meeting. At the first such meeting called, the presence of Members or of proxies
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entitled to case sixty percent (60%) of all the votes of each class of membership shall constitute a
quorum, If the required quorum is not present, another meeting may be called subject to the
same notice requirement, and the required quorwn at the subsequent meeting shall be one-half
(1/2) of the required quorwn at the preceding meeting, No such subsequent meeting shall be
held more than 60 days following the preceding meeting,
Section 6,6 Rate of Assessment.
Both annual and special assessments shall be fixed at a pro-rata rate for all Lots when the
Property is based on the square feet of the Building or Buildings on each Lot.
Section 6,7 Date of Commencement of Annual Assessments; Due Dates,
The Board shall fix the amount of the annual assessment provided for herein with the
occupancy against each Lot at least fifteen (15) days in advance of each annual assessment
period. The initial annual assessment period shall commence as to all Lots on the first day of the
month following the conveyance of the Common Property to the Association and shall run
through and including the next succeeding December 31, Each succeeding annual assessment
period shall be a calendar year. Written notice of the annual assessment shall be sent to every
Owner, Initially, annual assessments shall be due and payable in four equal quarterly
installments on the first day of each quarter, beginning on the first day of January and the 151 day -
of each April, July, October and January thereafter.
Section 6.8 Certificate of Payment.
The Association shall, upon demand and free of charge, furnish a certificate signed by an
officer of the Association setting forth whether the assessments on a specified Lot have been
paid in full and, if not paid in full, stating which assessments are unpaid, A properly executed
certificate of the Association as to the status of assessments on a Lot shall be binding upon the
Association as of the date of its issuance,
Section 6,9 Remedies for Non-Payment of Assessments.
a. If any assessment is not paid on or before its due date, the Association
may impose interest from the due date at the rate of eight percent (8%) per
annum, and/or bring an action at law against the Owner personally
obligated to pay the same or foreclose the lien by action in the manner
provided for foreclosure of mortgage liens. Each Owner, by acceptance of
any conveyance of any interest in the Property, grants to the Association a
power of sale to accomplish the foreclosure and sale of each Owner's lot.
In a foreclosure action, the Association shall be entitled to recover, in
addition to the principal amount of assessments, all costs of collection,
including interest, attorney's fees and the cost of prosecuting such action
and filing any liens. In addition, the Association may impose an
administrative charge of up to 25 % of the delinquent installments for each
delinquent installment of assessments, and/or involve any other remedies
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or sanction set forth in Article XIII. All remedies shall be cumulative, and
the exercise of one remedy shall not constitute a waiver of any other.
b, No Owner may waive or otherwise escape liability for any assessments or
other obligations impose under the Governing Documents or Rules and
Regulations by non-use or waiver of any rights in the Common Property
or abandonment of his or her Lot.
Section 6,10 Subordination of Lien to Mortgages.
The lien of the assessments provided for herein shall be subordinate to the lien of any
First Mortgage now or hereafter placed upon a Lot; provided, however, that such subordination
shall apply only to the assessments which have become due and payable prior to the date of
expiration of the period of redemption following a mortgage foreclosure sale, or the date of any
sale or transfer in lieu offoreclosure, Upon the expiration of the period of redemption of a
mortgage foreclosure sale, or the delivery of a deed or other transfer in lieu of foreclosure, the
interest of the holder of the Sheriffs Certificate or other instrument of transfer shall be prior and
superior to the lien of any assessments then against the Lot, and such assessments shall, at the
option of the Association become a lien against all of the Lots in equal shares. Any sale or
transfer shall not release a Lot from liability for any assessment thereafter becoming due, nor
from a lien of any subsequent assessment.
Section 6.11 Assessments by Municipal Government.
It is expressly declared that the foregoing Sections of this Article shall not in any way
interfere with, abrogate, or affect the power of any local governmental authority to levy and
collect taxes and special assessments.
ARTICLE VII.
INSURANCE AND RECONSTRUCTION
Section 7,1 Liability Insurance; Fidelity Bonds,
The Board of Directors of the Association or its duly authorized agent, shall obtain a
broad for of public liability insurance insuring the Association, with such limits of liability as the
Association shall determine to be necessary, against all acts, omissions to act and negligence of
the Association, its employees and agents, The Association's Board of Directors shall also
provide fidelity bonds providing protection to the Association against loss by reason of acts of
fraud or dishonesty on the part of the Association's Directors, manager, officers, employees or
volunteers who are responsible for the handling of funds of the Association in an amount
sufficient to provide no less protection than one and one-half (1 II2) times the estimated annual
operating expenses and reserves ofthe Association.
ARTICLE VIII.
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ARCHITECTURAL CONTROL
Section 8.1 Review by Architectural Control Committee.
No building, structure, fence, wall, patio or other structure shall be commenced,
constructed, altered or maintained upon any Lot, or portion thereof, nor shall any exterior
addition to or change or alteration therein be made, unless and until the plans and specifications,
proposals, site plans, and certificate of survey showing the nature, kind, shape, height, materials,
color, surrounding landscaping, and location of the same (hereinafter collectively referred to as
"plans") shall have been filed in writing with and have been approved by the Architectural
Control Committee, These submitted plans shall contain details of design, elevation, site grade,
fencing and location and dimensions of structures, walks and driveways and shall also state the
type of construction and materials to be used in construction. The basis for review and approval
of such plans shall be the guidelines and standards established by the Declarant in the Andover
Station Design Standards, a copy of which is on file at the offices of the Declarant. The
Architectural Control Committee shall not unreasonably withhold approval of any plan
submitted pursuant hereto; provided, however, that failure to meet the covenants and restrictions,
and conditions contained herein shall be grounds for the Architectural Control Committee
reasonable disapproval of such plans.
Plans approved by the Architectural Control Committee-shall permit the Owner of a Lot
to construct in accordance with said plans and in conformity with the applicable codes ofthe
City of Andover, Minnesota, as the case may be, Excavation or construction shall not be
commenced until approval therefore has been received from the Architectural Control
Committee in writing, or in the form of an approved signature upon said plans, All buildings,
structures, or improvements must be completed within twelve (12) months of the approval of
commencement of construction by Declarant; otherwise, all approvals become null and void.
Any deviation in construction on any Lot from approved plans, which in the judgment of
the Architectural Control Committee is of substantial detriment to the appearance of the structure
or the surrounding area, shall be corrected to conform to the approved plans at the expense of the
Owner and that Lot.
The Architectural Control Committee must approve any and all privacy fences prior to
their construction.
Section 8.2 Architectural Liability,
Neither Declarant or the Architectural Control Committee shall be liable to anyone in
damages who has submitted plans for approval, or to any Owner by reason of mistake in
judgment, negligence, or nonfeasance or themselves, their agents or employees arising out of or
in connection with the approval or disapproval of any such plans, Declarant and the
Architectural Control Committee shall be concerned about aesthetic characteristics and
compliance with these Declarations and does not assert architectural expertise, It is the sole duty
and responsibility of the applicant to employ an architect or other person to design the requested
modification in a safe and architecturally sound manner. Each Owner of any interest in Andover
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Station, their heirs, successors and assigns, as a condition oftheir ownership, waives any right to
damages which result from architectural designs requested by Declarant or the Architectural
Control Committee. Declarant and the Architectural Control Committee shall exercise their best
judgment as to aesthetic characteristics of architectural design and their judgment shall be final.
Section 8.3 Relief Against Owners.
a. If construction of or exterior changes to a dwelling or other improvement
are commenced without approval of the plans and specifications, or if
construction of or exterior changes to a dwelling or other improvements
are completed not in accordance with approved plans and specifications,
the Association or any Owner of a Lot in the Properties, may bring an
action to enjoin further construction and compel the offending Owner to
conform the dwelling or other improvement with plans and specifications
approved by the Architectural Control Committee, provided that such
action shall be commenced and a notice Lis Pendens shall be filed no later
than ninety (90) days after the date on which the certificate of occupancy
is issued by the appropriate municipal authority, in the case of a dwelling,
or the date of completion, in the case of any other improvement.
b. If the Association or complaining Owner prevails as to any relief sought in
any action brought to enforce compliance with this Article, it shall be
entitled to recover from the offending Owner reasonable attorney's fees
and costs shall be a lien against the offending Owner's Lot and in personal
obligation of the offending Owner. In addition, the Association shall have
the right to restore any Lot to its prior condition, if any alteration was
made in violation of this Article, and the costs of such restoration shall be
a personal obligation of the offending Owner and a lien against such
Owner's Lot.
Section 8.4 Relief Against Architectural Control Committee,
In the event that the Architectural Control Committee and/or the members of the
Architectural Control Committee shall fail to discharge their respective obligations under this
Article, then any Owner of a Lot in the Properties may bring an action to compel the discharge of
said obligations. Such an action shall, be the exclusive remedy of any Owner of a Lot in the
Properties for failure of the Architectural Control Committee and/or its member to discharge
such obligations. Under no circumstances shall the Architectural Control Committee and/or its
members be liable to any person for damages (direct, consequential or otherwise).
Section 8.5 Retention of Records.
The Board of Directors shall retain for a period often (10) years all plans and
specifications submitted to the Architectural Control Committee and a record of all actions taken
with regard to them,
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ARTICLE IX
MAINTENANCE OF COMMON PROPERTY
Section 9.1 Maintenance and Repair,
The Association shall provide for the maintenance and repair of the Common Property
and Andover Station Improvements, The Association shall also provide and is hereby given the
right to enter upon the Lots to maintain the Areas of the Lots lying outside of a Building which
contain driveways, sidewalks or landscaping including trees, shrubs and grass. Maintenance and
repair shall be determined and implemented from time to time by the Board of Directors at its
sole discretion and assessed against all the Owners pursuant to Article VI of this Declaration,
Section 9,2 Damage by Owner
If, in the judgment of the Board of Directors, the need for maintenance, repair or
replacement, by the Association of any part of the Common Property or Andover Station
Improvements is caused by willful or negligent act of an Owner of Occupant of their guests, the
cost of such maintenance or repair may be added to become part of the assessment to which such
Owner and his or her Lot are subject, rather than assessed against all Owners,
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ARTICLE X,
EASEMENTS
Section 10.1 Platted Easements
All Lots shall be subject to the utility, drainage and street easements dedicated in the plat
of Andover Station.
Section 10.2 Other Easements.
Certain Lots shall be subject to easements in favor of the Association for the
construction, maintenance, use and repair of sidewalks and entry monuments, Deeds to those
certain Lots, shall reserve an easement in favor of the Association or reserve the right of the
Declarant to convey an easement in favor of the Association for purposes of the sidewalks,
ARTICLE XI.
RIGHTS OF FIRST MORTGAGEES
Section 11.1 Changes in Rights
Any amendment to this Declaration which either restricts the rights granted by this
Declaration to anyone or more First Mortgagees or which deals with the subject matter as an
amendment as hereinafter described must be approved by the vote of seventy-five percent (75%)
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of the votes of all Owners (other than the sponsor, builder or Declarants) entitled to vote, in
person or by proxy, at a meeting duly called for such purpose, and by the written consent of
seventy-five percent (75%) of the First Mortgagees (based upon one vote for each Lot subject to
a First Mortgage); to wit:
a. Any amendment which authorizes or allows the Association to abandon,
partition, subdivide, encumber, mortgage, sell or transfer the Common
Property; provided, however, that to the extent that the Association is
requested to do so (and has a legal interest therefore) the granting of
easements for public utilities consistent with the intended use of the
Property shall not be deemed a transfer within the meaning of the
foregoing prohibition; and
b. Any amendment which changes the method of determining the
obligations, assessments, dues or other charges which may be levied
against an Owner, including specifically the ratio of assessments against
an Owner, or which otherwise changes the pro rata interest or obligations
of any individual Lot for the purpose of allocating distributions of hazard
insurance proceeds or condemnation awards or determining the share of
the Owner of such Lot in the Common Property; and
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c, Any amendment which shall operate to waive or abandon the scheme of
regulation or enforcement pertaining to architectural design or exterior
maintenance and appearance of the homes or garages or the maintenance
of the Common Property; and
d, Any amendment which shall have as its effect the release of the
Association from its duty to maintain insurance coverage as provided in
Article VII; and
e. Any amendment which would permit the partition or subdivision of any
Lot.
Section 11,2 Notice of Defaults
In the event of a default in the keeping of the terms of the Governing Documents by an
Owner or any person violating or attempting to violate the same, and provided such default has
not been cured within sixty (60) days from the date of the default, the Association agrees to give
notice of such default in such specificity as fully informs the recipient, such notice to be given to
the First Mortgagee of the Owner who has committed or permitted the default. Each First
Mortgagee shall register with the Secretary of the Association its name, address, the Lot against
which its mortgage lies and the name of the mortgagor, and shall further notify the Association
upon the satisfaction of such mortgage, Notice shall be given to the First Mortgagee by mailing
the same postage prepaid to the address of the First Mortgagee stated on the books of the
Association.
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Section 11.3 Right to Cure Certain Defaults
First Mortgagees may, jointly or singly, pay taxes or other charges which are in default
and which mayor have become a charge against the Common Property and may pay overdue
premiums on insurance policies, or secure new insurance coverage on the lapse of a policy, for
such Common Property. First Mortgagees making such payments shall be entitled to immediate
reimbursement therefore from the Association,
Section 11.4 Right to Examine Records
First Mortgagees shall have the right to examine the books and records of the Association
during the regular business hours upon reasonable notice, which shall not be less than three (3)
business days.
Section 11.5 Inapplicability of Association liens
The Purchaser at a foreclosure sale, in addition to taking the Lot free and clear of the lien
of all assessments of the Association arising subsequent to the recordation of the lien of the
mortgage deed foreclosed, shall take the Lot free and clear, and shall have the right to sell the
same free from any such liens, but shall be subject to any liens arising after the foreclosure sale.
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ARTICLE XII.
AMENDMENTS
This Declaration may be amended by the Association with approval of the Owners of not
less than seventy-five percent (75%) of the Lots and ratification by the Declarant, in writing or at
a duly constituted meeting of the Association held for such purposes, subject to the rights of First
Mortgages as set forth in Article XI. In the case of approval of an amendment at a special or
annual meeting of Association members, a copy of the proposed amendment shall be delivered to
the Owners by the same means and at the same time as the notice of the meeting. Whenever
such as an amendment has been so approved, it shall be recorded in the form substantially
similar to this Declaration with the Anoka County Registrar of Titles and shall not be effective
until so recorded, The Association shall have the power and authority to certify such approval,
and such certification shall be sufficient evidence of approval for all purposes including
recording.
ARTICLE XIII,
COMPLIANCE, SANCTIONS AND REMEDIES
Each Owner and Occupant shall be governed by and shall comply with the provisions of
the Governing Documents, and such amendments thereto as may be made from time to time, A
failure to comply shall entitle the Association (and/or Owners in certain stated instances) to the
following relief:
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Section 13.1 Entitlement to Relief,
An Owner or the Association may commence legal action to recover sums due, for
damages, injunction relief, foreclosure of lien or any combination thereof, or any action for any
other relief authorized by the Governing Documents as available at law or in equity, Relief may
be sought by the Association or, if appropriate, by an aggrieved Owner, but in no case may any
Owner or Occupant withhold any assessments due and payable to the Association, or take (or
omit) other action in violation of the Governing Documents, as a measure to enforce such
Owners or Occupant's position, or for any other reason.
Section 13.2 Sanctions and Remedies.
In addition to any other remedies or sanction, express or implied, administrative or legal,
the Association shall have the right, but not the obligation, to implement anyone or more of the
following actions against Owners and Occupant's who violate (or whose guests violate) the
provisions of the Governing Documents:
a, Impose interest charges at the highest rate allowed by law for any
delinquent assessment payments.
b. Impose administrative charges (in addition to interest), in amount up to
25% of each delinquent installment for each such delinquent assessment
, payment.
c. In the event of default of more than thirty (30) days in the payment of any
assessments or installment thereof, all remaining installment of
assessments assess against the defaulting Owner or Occupant may be
accelerated and then shall be payable in full, forthwith at the call of the
Board of Directors. Prior written notices of such acceleration shall be
given to the defaulting Owner or Occupant.
d, Impose reasonable monetary penalties for each violation of the Governing
Documents, and the Rules and Regulation and for the continuing violation
thereof, other than delinquent assessment payments,
e, Foreclose any lien arising under the provision of the Governing
Documents or under law, in the manner provided for in the foreclosure of
mortgages in the state where the property is located.
Any assessment, charges, penalties, or interest imposed under this Article XIII shall be a
lien against the Lot of the Owner or Occupant against whom the same are imposed in the same
manner as a lien for Common Expenses, and shall also be an obligation of such Owner of
Occupant, The lien shall attach as of the date of imposition of the Remedy, but shall not be final
as to violations appealed under Section 13.3 until affirmed in writing following the hearing
provided for in Section 13.3.
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Section 13.3 Right to a Hearing,
In the case of imposition of any of the remedies authorized by Section 13.2, Paragraph d,
the Board of Directors shall cause to be mailed or delivered to the Owner or Occupant against
whom the remedy is sought to be imposed written notice specifying the general nature of the
violation, the remedy to be imposed written notice specifying the general nature of the violation,
the remedy to be imposed and the effective date of such imposition, which notice must be
delivered at least ten (10) days prior to such effective date. Said Owner or Occupant shall have
the right, upon written request delivered to the Board of Directors, to a hearing before the Board
of Directors or a committee of no fewer than three disinterested persons appointed by the Board
to hear such matters. The hearing shall be set by the Board at a reasonable time and place, with
reasonable notice to the parties involved, but in no case later than 30 days after the request for a
hearing,
The Board of Directors shall establish, and make known to all parties involved, uniform
and fair rules for the conduct of such hearing, including without limitation the right of interested
parties to appear and be heard. If a hearing is requested, the remedy imposed shall not take
effect until the hearing is completed or the matter is otherwise resolved by mutual agreement of
the Board of Directors and the person against whom the remedy is sought, whichever event
occurs first, provided, however, that if the person or persons against' whom the remedy is sought
do not appear at their duly noticed hearing, the remedy imposed may be enforced forthwith, The-
decision of the Board, or the hearing committee, and the rules for the conduct of hearings
established by the Board, shall be final and binding on all parties. The rights bestowed upon
Owners and Occupants by this paragraph 13.3 shall be the sole and exclusive remedy of such
Owners and Occupants with respect to the matters covered by this Article, except as may be
specifically authorized by statute or by the Governing Documents.
Section 13.4 Costs of Proceeding and Attorney Fees,
In any legal or arbitration proceeding (exclusive of any proceeding authorized under this
Article XIII) arising between the Association and an Owner or Occupant, or between Owners or
Occupants, because of an alleged default or violation by any Owner or Occupant, the Association
shall, if it prevails as to any material part of the relief sought, be entitled to recover the costs of
the proceeding and such reasonable attorney's fees as may be determined by the court or
arbitration board, In any situation in which the Association has incurred costs and expenses,
including attorney's fees, in order to collect unpaid monthly assessments or to correct any other
default or violation by an Owner or Occupant of the provisions of the Governing Document, the
Owner of the Documents who has caused the Association to incur such costs and expenses shall
be responsible therefore, and such costs and expenses shall become an assessment against such
Owner's and Occupant's Lot.
Section 13.5 Liability for Owner's and Occupants' Acts,
All Owners and Occupants shall be liable for the expense of any maintenance, repair or
replacement rendered necessary by their willful acts or negligence, or by that of their guests, but
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only to the extent that such expense is not met by the proceeds of insurance carried by the
Association or such Owner of Occupant.
ARTICLE XIV,
GENERAL PROVISIONS
Section 14.1 Duration.
The covenants, restrictions, conditions and reservation imposed and created by this
Declaration shall bind the property for a period of thirty (30) years from the date of recordation
of this Declaration, After the expiration of said thirty (30) year period, all of such covenants,
restrictions, conditions and reservations shall continue to run with and bind the Property for
successive periods often (10) years unless revoked by Members entitled to cast at least ninety
percent (90%) of each class of votes and evidence by a recorded instrument executed by a duly
authorized officer of the Association and such percentage of First Mortgagees as may be required
by Article XI.
Section 14,2 Notices.
Any notice required to be sent to any person or entity under the provisions of this
Declaration shall be deemed to have been properly sent when mailed, postage paid, to the last
known address of the person on the records of the Association at the time of such mailing, except
for registrations pursuant to Section 3.1, b, which shall be effective upon receipt by the
Association.
Section 14.3 Construction,
This Declaration shall be construed under the laws of the State of Minnesota, The
singular shall be deemed to include the plural wherever appropriate and unless the contest clearly
indicates to the contrary, any obligations and duties as of the owners shall be joint and several.
Invalidation of anyone of these covenants or restriction by judgment or court order, or
otherwise, shall in no way affect the validity of any other provision.
Section 14.4 Invalidation
Invalidation of anyone of these covenants or restrictions by judgment or court order, or
otherwise, shall in no way affect the validity of any other provision.
ANDOVER ECONOMIC DEVELOPMENT AUTHORITY
By By
Chairman Executive Director
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STATE OF MINNESOTA )
) ss.
COUNTY OF ANOKA )
On this _ day of , 2002, before me, a Notary Public within
and for said County, personally knO\V11, who, being each by me duly sworn did say that they are
respectively the Chairman and Executive Director of the Andover Economic Development
Authority, a body corporate and political, the Municipal Corporation named in the foregoing
instrument, and the seal affixed to said instrument is the corporate seal of said Municipal
Corporation, and the said instrument was signed and sealed on behalf of said Municipal
Corporation by authority of the Andover Economic Development Authority and said
and acknowledged said instrument to be the free act and deed of
said Municipal Corporation,
Notary Public
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THIS INSTRUMENT WAS DRAFTED BY:
William G. Hawkins
William G. Hawkins and Associates
2140 Fourth Avenue North
Andover, Minnesota 55304
(763) 427-8877
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