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Planning Commission Agenda 03-02-2021AGENDA REGULAR MEETING - MONTICELLO PLANNING COMMISSION Tuesday, March 2nd, 2021 - 6:00 p.m. Mississippi Room, Monticello Community Center Commissioners: John Alstad, Paul Konsor, Andrew Tapper, Alison Zimpfer, and Eric Hagen Council Liaison: Charlotte Gabler Staff: Angela Schumann, Steve Grittman (NAC), and Ron Hackenmueller 1. General Business A. Call to Order B. Consideration of approving minutes a. Workshop Meeting Minutes — February 2nd, 2021 b. Regular Meeting Minutes — February 2nd, 2021 C. Citizen Comments D. Consideration of adding items to the agenda E. Consideration to approve agenda 2. Public Hearings A. Public Hearing — Consideration for Preliminary and Final Plat to Create a Single Lot for an Existing Financial Institution in the Central Community District (CCD) Applicant: CorTrust Bank (Mark Nettesheim) B. Public Hearing - Consideration of an Amendment to Conditional Use Permit for Cross Parking and Access for a Building Expansion in the B-4 (Regional Business) District Applicant: ISG (Andrea Rand) C. Public Hearing - Consideration of a Conditional Use Permit for Vehicle Sales, Rental, and Repair for Recreational Vehicles and Variance for Additional Signage Allowance in the B-3 (Highway Business) District Applicant: RJ Ryan Construction D. Public Hearing - Consideration of a Preliminary and Final Plat for Spaeth Second Addition and an Amendment to Planned Unit Development for the Spaeth Industrial Planned Unit Development Applicant: Ken Spaeth, Spaeth Development 3. Regular Agenda A. Consideration of the Community Development Director's Report 4. Added Items 5. Adjournment MINUTES SPECIAL MEETING - MONTICELLO PLANNING COMMISSION Tuesday, February 2nd, 2021 - 5:00 p.m. Mississippi Room, Monticello Community Center Commissioners Present: John Alstad, Paul Konsor, Andrew Tapper, Alison Zimpfer, and Eric Hagen Council Liaison Present: Charlotte Gabler Staff Present: Angela Schumann, Ron Hackenmueller, and Rachel Leonard 1. General Business A. Call to Order John Alstad called the Special Meeting of the Monticello Planning Commission to order at 5:00 p.m. 2. 2021 Planning Commission Workplan Angela Schumann noted that each year the Planning Commission approves their annual workplan. Schumann noted that the City recently adopted the new Monticello 2040 Vision + Comprehensive Plan, which will guide the Planning Commission workplan. Chapter 9 of the Comprehensive Plan provides all the goals, strategies, and policies that are needed to make sure that the plan comes to fruition. A draft 2021-2025 workplan was created by staff for the Planning Commission to review and provide feedback. The Planning Commission and staff discussed a variety of topics that impact the City. Schumann asked the Planning Commission to revisit the draft workplan and fill in any additional trainings that would be useful for them to complete and other topics that they thought about after their discussion at the meeting. She also requested the Planning Commissioners revisit the strategy document. A high priority item would be the recodification of the zoning ordinance and prioritizing amendments they would like to see changed that stem from the Monticello 2040 Comprehensive Plan. She added that members should also identify any subdivision ordinance amendments that should occur. The current focus for the year would be to accomplish as many of the trainings, research topics, and amendments to the zoning code as possible. Staff would take the comments that were received during the Special Meeting and revise the materials prior to sending out to members to fill in priorities and discussion areas. The goal would be to review the workplan at a special meeting in March. 3. Adiournment ANDREW TAPPER MOVED TO ADJOURN THE MEETING AT 6:08 P.M. ALISON ZIMPFER SECONDED THE MOTION. MOTION CARRIED, 4-0. Recorder: Jacob Thunander Approved: March 2nd, 2021 Planning Commission Minutes (Special Meeting) — February 2nd, 2021 Page 1 1 2 Attest: Angela Schumann, Community Development Director Planning Commission Minutes (Special Meeting) — February 2nd, 2021 Page 2 12 AGENDA REGULAR MEETING - MONTICELLO PLANNING COMMISSION Tuesday, March 2nd, 2021 - 6:00 p.m. Mississippi Room, Monticello Community Center Commissioners: John Alstad, Paul Konsor, Andrew Tapper, Alison Zimpfer, and Eric Hagen Council Liaison: Charlotte Gabler Staff: Angela Schumann, Steve Grittman (NAC), and Ron Hackenmueller 1. General Business A. Call to Order B. Consideration of approving minutes a. Workshop Meeting Minutes — February 2nd, 2021 b. Regular Meeting Minutes — February 2nd, 2021 C. Citizen Comments D. Consideration of adding items to the agenda E. Consideration to approve agenda 2. Public Hearings A. Public Hearing — Consideration for Preliminary and Final Plat to Create a Single Lot for an Existing Financial Institution in the Central Community District (CCD) Applicant: CorTrust Bank (Mark Nettesheim) B. Public Hearing - Consideration of an Amendment to Conditional Use Permit for Cross Parking and Access for a Building Expansion in the B-4 (Regional Business) District Applicant: ISG (Andrea Rand) C. Public Hearing - Consideration of a Conditional Use Permit for Vehicle Sales, Rental, and Repair for Recreational Vehicles and Variance for Additional Signage Allowance in the B-3 (Highway Business) District Applicant: RJ Ryan Construction D. Public Hearing - Consideration of a Preliminary and Final Plat for Spaeth Second Addition and an Amendment to Planned Unit Development for the Spaeth Industrial Planned Unit Development Applicant: Ken Spaeth, Spaeth Development 3. Regular Agenda A. Consideration of the Community Development Director's Report 4. Added Items 5. Adjournment 2A. Public Hearing — Consideration for Preliminary and Final Plat to Create a Single Lot for an Existing Financial Institution in the Central Community District (CCD). Applicant: CorTrust Bank (Mark Nettesheim) Prepared by: Northwest Associated I Meeting Date: I Council Date (pending Consultants (NAC) 3/2/21 Commission action): 3/22/21 Additional Analysis by: Community Development Director, Chief Building and Zoning Official, Community & Economic Development Coordinator, Project Engineer ALTERNATIVE ACTIONS 1. Adopt Resolution PC-2021-007 recommending approval of Preliminary Plat application for CorTrust Bank Monticello, based on conditions and findings in said Resolution. 2. Deny adoption of Resolution PC-2021-007 recommending approval of Preliminary Plat application for CorTrust Bank Monticello, based on findings to be made by the Planning Commission following the public hearing. 3. Table action on Resolution PC-2021-007 recommending approval of Preliminary Plat application for CorTrust Bank Monticello, subject to additional information from the applicant and/or staff. REFERENCE AND BACKGROUND Property: Legal Descriptions: Original Plat Monticello Lots7,8,9, 10, Block-16 PID:155010016100,155010016090,155010016080, 155010016070 Riggs Addition Lower Monticello Lots 7 & 8 Block 16 PID:155019016080 & 155019016070 Planning Case Number: 2021-004 Request(s): Preliminary and Final Plat Deadline for Decision: April 2nd, 2021 (60-day deadline) 1 Land Use Designation Zoning Designation: Overlays/Environmental Regulations Applicable: Current Site Uses: Surrounding Land Uses Project Description: June 1, 2021 (120-day deadline) DMU Downtown Mixed -Use CCD Central Community District (Pine Street Subdistrict) The purpose of the "CCD", Central Community District, is to provide for a wide variety of land uses, transportation options, and public activities in the downtown Monticello area, and particularly to implement the goals, objectives, and specific directives of the Comprehensive Plan, and in particular, the 2017 City of Monticello Downtown Small Area Plan and its design and performance standards. The Zoning Map below shows the zoning for the parcels. b 4 ` 4F qW NA West Parcel: CorTrust Bank East Parcel: Vacant former residential unit North: CCD Commercial (TDS Telecom) East: CCD Residential South: CCD Commercial (DYS Companies) West: Commercial (Pine Street/Wells Fargo Bank) CorTrust Bank has requested to combine six parcels, including the bank site and five parcels adjoining the bank to the east, into one 2 platted lot. There are four parcels that make up the bulk of the bank property fronting on 41h Street East (the "Original Plat" parcels noted above. Two additional remnant triangular parcels (from the "Riggs Addition" in the southeast corner of the site are also included. The bank has removed a previously existing residential unit and has future plans to create additional parking and a landscaped green space with an outdoor sitting area for employees, customers, and the community. All parcels are guided for downtown mixed -use by the City's Comprehensive Plan and are zoned "CCD," Central Community District. The proposed application would combine all six parcels into a single parcel through a preliminary and final plat. The proposed parcel will be zoned CCD. The applicant is seeking both Preliminary and Final Plat as a combined application. The Planning Commission reviews the Preliminary Plat, however, Final Plat goes directly to City Council. As such, comments for both are included in this report. ANALYSIS: Preliminary Plat Lots: The preliminary plat involves the combination of six parcels into a 1.01-acre parcel. There is no minimum lot area and width in the "CCD" zoning district; thus, the proposal meets the zoning ordinance requirements. Streets: No new streets are proposed as part of the proposal and meet the requirements of the zoning ordinance. Easements: The preliminary plat shows an existing easement for road purposes on the western portion of the property. The plans shall be revised to show the required 6 and 12-foot wide drainage and utility easement along the plat perimeter per City Engineer recommendation. Erosion Controi and Drainage: The applicant has submitted a preliminary plat with existing grading shown. No new site grading, erosion control, or stormwater drainage is proposed with this project. Plans are subject to review and approval by the City Engineer. 3 Utilities: The applicant has submitted a preliminary plat with existing utilities shown. No new utilities are proposed at this time. Plans are subject to the review and approval by City Engineer. Park Dedication: No park dedication is required from commercial property plats. Additional Review: The preliminary and final plats are subject to review and comment by the Minnesota Department of Transportation due to Highway 25 adjacency and Wright County in its plat and recording role. At this time, MnDOT has indicated that as there are no proposed access changes and the site is developed, they will not provide review comments. The City Attorney has also reviewed the title commitment for the plat and finds the information in order for the proposed combination plat. No development agreement is recommended at this time as the site is substantially development. The applicant mentions an expansion of parking as a reason for the proposed preliminary and final plat combination. The parking lot design will be subject to review and compliance with the zoning ordinance at such time as proposed. At this time, no additional zoning permits are required, as the proposed plat does not impact the existing site improvements or circulation. It is expected that the driveway curb -cut accessing the former single family home will be removed, and the site plan will continue to rely on two existing curb cuts from 4th Street on the north (including the exit lane for the existing drive -through), and the right -in access from Pine Street (TH 25) on the west. The City Council acts on the decision of final plat, verifying consistency with the approved preliminary plat. STAFF RECOMMENDED ACTION City staff recommends adoption of Resolution PC-2021-007 for approval of the Preliminary Plat subject to revisions delineating required perimeter drainage and utility easements and other comments and conditions recommended by the City Engineer, MnDOT, and Wright County, all as noted in the attached Exhibit Z. SUPPORTING DATA A. Resolution PC-2021-007, Preliminary and Final Plat B. Aerial Site Image C. Applicant Narrative D. Preliminary Plat E. Final Plat Z. Conditions of Approval rd EXHIBIT Z Conditions for Approval Preliminary Plat for CorTrust Bank Monticello The final plat must show required drainage and utility easements around the perimeter of the parcel. Add 12-foot perimeter drainage and utility easement around plat. The easement can be reduced along Pine Street (TH 25) and 4tn Street to the distance between the property line and building if less than 12'. 2. Confirm document for a 10' road easement along Pine Street (TH 25) or 10' of additional ROW. 3. Coordination with the City with regard to future site plan changes to parking and site conditions. Future parking lot expansion will require review by the Engineering and Planning department and additional land use review. 4. Other comments and recommendations of City Staff and City Council. CITY OF MONTICELLO WRIGHT COUNTY, MINNESOTA PLANNING COMMISSION RESOLUTION NO. PC-2021-007 RECOMMENDING APPROVAL OF A PRELIMINARY PLAT FOR CORTRUST BANK MONTICELLO WHEREAS, the applicant seeks to develop property consisting of six individual existing parcels in the Original Plat and Riggs Addition; and WHEREAS, the applicant has submitted a request to plat said property into a single combined parcel, retaining development as a commercial property; and WHEREAS, the site is guided "Downtown Mixed Use" in the City's Comprehensive Plan; and WHEREAS, the proposed Plat is consistent with the long-term use and development of the property for commercial use; and WHEREAS, the Planning Commission held a public hearing on March 2, 2021 on the application and the applicant and members of the public were provided the opportunity to present information to the Planning Commission; and WHEREAS, the Planning Commission has considered all the comments and the staff report, which are incorporated by reference into the resolution; and WHEREAS, the Planning Commission makes the following Findings of Fact in relation to the recommendation of approval: The Plat provides an appropriate means of furthering the intent of the Comprehensive Plan for the site by continuing the development plans for commercial use. The proposed improvements on the site under the Preliminary Plat are consistent with the needs of the development in this location as a downtown mixed use area. 3. The improvements will have expected impacts on public services, including sewer, water, stormwater treatment, and traffic which have been planned to serve the property for the development as proposed. 4.. The Plat is consistent with the intent of the City's economic development objectives, as well as with the intent of the Central Community District zoning regulations. NOW, THEREFORE, BE IT RESOLVED, by the Planning Commission of the City of Monticello, Minnesota, that the Planning Commission hereby recommends that the Monticello City CITY OF MONTICELLO WRIGHT COUNTY, MINNESOTA PLANNING COMMISSION RESOLUTION NO. PC-2021-007 Council approve the Preliminary Plat for CorTrust Bank Monticello, subject to the conditions listed in Exhibit Z of the staff report as follows: 1. The final plat must show required drainage and utility easements around the perimeter of the parcel. Add 12-foot perimeter drainage and utility easement around plat. The easement can be reduced along Pine Street (TH 25) and 41h Street to the distance between the property line and building if less than 12'. 2. Confirm document for a 10' road easement along Pine Street (TH 25) or 10' of additional ROW. 3. Coordination with the City with regard to future site plan changes to parking and site conditions. Future parking lot expansion will require review by the Engineering and Planning department and additional land use review. 4. Other comments and recommendations of City Staff and City Council. ADOPTED this 211 day of March, 2021, by the Planning Commission of the City of Monticello, Minnesota. 11 N7►��[�1����1»_1►1►11►[et�i71 11 I[•�•�N7►1 By: ATTEST: Paul Konsor, Chair Angela Schumann, Community Development Director Pa 0 Ln c� w a� a� IT co Ln c� w a� a� V) It N rl rl 4-," Ln m w N N L N It 10 0 From: Mark F. Nettesheim To: Jacob Thunander Subject: RE: 112 4th St E Date: Friday, February 5, 2021 9:53:24 AM Attachments: image001.png Jacob, Please find a brief description of what we are looking to accomplish below. Let me know if you feel more information is needed. To Whom it May Concern, CorTrust Bank is proposing a plan to combine 6 parcels obtained through the acquisition of First Minnesota Bank in August of 2019. (155010016100, 155010016090, 155010016080, 155010016070, 155019016070, and 155019016080.) These parcels were a combination of commercial and residential uses. The use of the commercial parcels were to operate our Monticello CorTrust Bank Branch and the Residential was a 1-4 family residence that was rented out. The residential property has been removed in late 2020 to clear the way for 6 to 9 additional parking spaces to further service the bank office. The majority of the residential parcel will be landscaped and remain a well maintained green space. Our intent is to have an outdoor sitting area for our employees, customers, and community to sit and/or collaborate. Access points will not be changed or adjusted to the property. The only edit would be the elimination of the Residential Driveway that served the 1-4 property. Thank you, Mark Nettesheim SVP Retail Banking Manager 1300 Babcock Blvd E Delano, MN 55328 D: 763-972-4237 C: 952-992-9840 Ext. 59337 NMLS- 517333 #- CorTrust Bank zs sa a °Er„ ou_ i� p Al _ =w �s ➢:�= - p_ a a Is8sm�.$ 5aAlyc m m o >megsao�_ i II 9 i m3�'m&6< ., w �u'�s„ � E F",E o uRioNog OEoo a p.- :' �- t��o� 2w� o _ °&2z \J� a 1 O mtl1 �Soa T t V$-og�aaR=�� A.o.g�x a 3 AMPg $ m rsa ono ° U \ \ \ h / \ / All / 0,,7 \ \ :S / o� 0 0 5: i i II i II$ L C C II 6 0 8 i y ®o�cai o.0060060000000 M \ 2 nF� e.8 V�o SHW >�3 _ �3 no� 2B. Public Hearing — Consideration of an Amendment to Conditional Use Permit for Cross Parking and Access for a Building Expansion in the B-4 (Regional Business) District. Applicant: ISG (Andrea Rand) Prepared by: Northwest Associated I Meeting Date: I Council Date (pending Consultants (NAC) 3/2/21 Commission action): 3/22/21 Additional Analysis by: Community Development Director, Chief Building and Zoning Official, Community & Economic Development Coordinator, Project Engineer ALTERNATIVE ACTIONS 1. Adopt Resolution PC-2021-008 recommending approval of an amendment to a conditional use permit for cross parking and access for an expansion of the ALDI grocery store, based on conditions and findings in said resolution. 2. Deny adoption of Resolution PC-2021-008 recommending approval of an amendment to a conditional use permit for cross parking and access for an expansion of the ALDI grocery store, based on findings to be made by the Planning Commission following the public hearing. 3. Table action on Resolution No. PC-2021-008, subject to additional information from applicant and/or staff. REFERENCE AND BACKGROUND Property: Legal Descriptions: Monticello Business Center 71hAddition Lot 1, Block 1 PID:155227001010 Planning Case Number: 2021-003 Request(s): Amendment to Conditional Use Permit for the reduction of parking spaces and to construct a building addition. Deadline for Decision: March 29, 2021 (60-day deadline) May 28, 2021 (120-day deadline) 1 Land Use Designation: Commercial -Residential Flex Zoning Designation: B-4, Regional Business District The purpose of the "B-4" regional business district is to provide for the establishment of commercial and service activities which draw from and serve customers from the entire community or region. The Zoning Map below shows the subject parcel zoning district. 09 Overlays/Environmental Regulations Applicable: NA Current Site Uses: ALDI Grocery Store Surrounding Land Uses: North: Agriculture (B-4 Zoned) East: Agriculture (B-4 Zoned) South: Commercial (B-4 Zoned, Dollar Tree & Walmart) West: Commercial (B-3 Zoned, Kwik Trip) Project Description: The applicant proposes to expand the current 17,018 square foot building with a 2,346 square foot addition to the south fagade of the existing Aldi grocery store. The expansion would result in the removal of 7 parking spaces requiring an amendment to the CUP. Background: The development was approved in 2013 and required a CUP to allow for shared cross access and parking from School Boulevard which falls within Outlot A (to the east of the Aldi lot). Outlot A is 2 owned by a separate party. The CUP was approved at that time and allow for the shared parking/access and maintenance agreement between ALDI and the owners of Outlot A. The applicant is proposing an addition to the building and reduction of parking spaces. ALDI is considered a retail use, which is permitted in the B-4. ANALYSIS: The amendment of the Conditional Use Permit is to allow for the reduction of parking spaces and to construct a building addition. Cross Parking. Section 4.8(G)(2)(a) Access and Curbing for Commercial Uses states that adjoining business properties may allow cross parking and/or access if authorized by a Conditional Use Permit per the requirements of Section 2.4(D) (reviewed below) and subject to the following conditions: 1. The required island and landscaping requirements in Section 4.1 are met. Staff Response: All island and landscaping requirements are met by the proposed parking area design. No changes are proposed as a part of this amendment. 2. The vehicular use area meets the required setback at the perimeter of the parcels in question. Staff Response: Vehicular use area setback requirements are met, including maintaining a minimum 6-foot setback from property lines. No changes are proposed as a part of this amendment. 3. The curb cut access locations to the parking iot(s) are approved by the City. Staff Response:_ The curb cut access locations meet setback requirements from nearby intersections and other access points. Access design (width, etc.) appear to meet the requirements of the Zoning Ordinance. No changes are proposed as a part of this amendment. 4. A shared parking/access and maintenance agreement is provided by the parking owners and recorded against aii subject properties. Staff Response: A shared parking/access and maintenance agreement between ALDI (owners of proposed Lot 1) and Ocello, LLC (owners of proposed Outlot A) was provided to the City and recorded against the subject properties. Parking: The CUP was required for shared access from Cedar Street and School Boulevard and shared parking area off School Boulevard. The shared parking areas provide parking for both the ALDI lot and a future lot to the east of the ALDI lot. Based on the finished floor area of the grocery store, the ALDI site is required to have 79 parking spaces. The applicant's proposal (even with the reduction of seven existing parking spaces) will have 88 parking spaces, including those 16 shared spaces on Outlot A. There are a total of 73 remaining stalls on the ALDI site. As such, under the CUP for shared parking, it meets the requirements for parking spaces. As a companion note, the applicant proposes to sign 4 existing parking spaces along the south boundary of the site for curbside pick-up customers. The City's ordinance does not distinguish between undesignated parking and "customer pick-up" spaces by total supply or other factor. There is some industry expectation that over time, delivery services and/or curbside pick-up of pre -ordered goods may reduce overall parking demand. However, as this is a phenomenon that has increased in popularity during Covid-19 restrictions, there is no consensus as to how the delivery/pick-up trends will extend over time. As such, the City's current parking requirements should be retained and monitored over the next few years for any lasting change. With the four spaces designated for pick-up, there remain 84 undesignated spaces available to the ALDI facility, 69 of which are on -site, and 15 of which are shared. Landscaping: The applicants are not proposing any changes to the existing landscaping at this time. Lighting The applicant is proposing new exterior lighting on the outside of the building addition. It appears that the lights are not expected to exceed existing conditions, however no photometric plan has been provided. The applicant should provide a photometric plan for verification as a part of building permit review. Signage: No new signage is shown as a part of the project. The existing sign on the building's upper parapet will not be affected by the addition. The applicant has indicated to staff that they may reface the existing pylon sign. Any proposed signage should meet the requirements of the City's Sign regulation in Zoning Ordinance Section 4.5. Grading Drainage, and Utilities: The structure is expanding upon hard surfacing on the site and as such does not appear to increase the hard surfacing on the site. The City Engineer will comment separately on grading, drainage, and utility impacts of the project. M Conditional Use Permit Requirements. In terms of overall compliance with conditional use permit standards, Section 2.4-(D)-(4)-(a) lists the requirements for such permits. These requirements must be met when considering a conditional use permit. (i) The conditional use will not substantially diminish or impair values within the immediate vicinity of the subject property. Staff Response: The proposed expansion is anticipated to positively impact property values in the surrounding area by expanding the commercial property, providing more amenities to the community, and adding more to the local tax base. (ii) The conditional use will not be detrimental to the health, safety, morals, or welfare of persons residing or working near the use. Staff Response: The proposed amendment will not change the use of the property which as a grocery store is an allowed use in the B-4 District. The expansion and alteration to parking supply meets planned land use objectives and meets all Zoning Ordinance requirements for safe and functional development and is not otherwise anticipated to negatively impact the health of the community. (iii) The conditional use will not impede the normal and orderly development of surrounding property for permitted uses predominant in the area. Staff Response: The purpose of the CUP was to allow for shared access and parking area off School Boulevard. The applicant's proposal to reduce parking does not impede the normal and orderly development of surrounding properties. The future potential commercial lot to the east of the ALDI lot can still share access and parking. (iv) The conditional use will not pose an undue burden on public utilities or roads, and adequate sanitary facilities are provided; Staff Response: No burden is expected from this amendment to conditional use permit. The adjoining roadways are collector -status commercial streets. (v) The conditional use can provide adequate parking and loading spaces, and all storage on the site can be done in conformance with City code requirements; Staff Response: The applicant is proposing the reduction of parking spaces on the site. As mentioned above the applicant is required to have 79 parking spaces and is providing for 88 spaces. As such the applicant is providing adequate parking for the site. (vi) The conditional use will not result in any nuisance including but not limited to odor, noise, or sight pollution; Staff Response: The conditional use will not result in any nuisance including but not limited to odor, noise, or sight pollution. (vii) The conditional use will not unnecessarily impact natural features such as woodlands, wetlands, and shorelines; and all erosion will be properly controlled; Staff Response: The expansion will not increase the hard surface on the site since it is being constructed over an existing hard surface. As a result, the building expansion and reduction of parking spaces is not expected to impact natural features in the area. (viii) The conditional use will adhere to any applicable additional criteria outlined in Chapter 5 for the proposed use. Staff Response: The proposed shared access and parking area is not on the same lot as the principal structure, which is why a conditional use permit is being sought. The use is otherwise anticipated to address criteria outlined in Chapter 5. STAFF RECOMMENDED ACTION City staff recommends approval of the Amendment to Conditional Use Permit, Alternative Action 1, subject to conditions in Exhibit Z. The conditional use permit is consistent with the existing agreement and existing site use and is unlikely to raise any issues with the land uses in the area. SUPPORTING DATA A. Resolution PC-2021-008, Conditional Use Permit B. Aerial Site Image C. Applicant Narrative D. Exterior Elevations E. Erosion Control Plan F. Existing Site Removal Plans G. Site Plans H. Site Utility Plans I. Grading Plans J. Legal Agreement Z. Conditions of Approval R Conditions for Approval CUP Amendment for ALDI Grocery Store PID: 155227001010 1. The applicant updates the legal instrument executed by the parties reflecting the changes in off-street parking facilities, duly approved as to form and manner of execution by the City Attorney, to be filed with the City Administrator and recoded with the County Recorder of Wright County. 2. The applicant submits a revised photometric plan as a part of building permit application, verifying compliance with lighting standards. 3. The proposed construction does not appear to be increasing the impervious surface, if the amount of impervious surface changes further review of the existing infiltration basins would be necessary. 4. Add note to plans that contractor shall contact Public Works when reconfiguring water service. 5. Other comments and recommendations of City Staff and City Council. CITY OF MONTICELLO WRIGHT COUNTY, MINNESOTA PLANNING COMMISSION RESOLUTION NO. PC 2021-008 A RESOLUTION RECOMMENDING APPROVAL OF AN AMENDMENT TO CONDITIONAL USE PERMIT TO ALLOW CROSS ACCESS AND SHARED PARKING REDUCTION FOR A BUILDING EXPANSION WHEREAS, ALDI has requested an amendment to Conditional Use Permit to allow cross access parking between the ALDI parcel located at Lot 1, Block 1 of the Monticello Business Center 71n Addition, and Outlot A of the Monticello Center Business Center 71" Addition; and WHEREAS, the proposed building project expands square footage of the retail floor area of the building; and WHEREAS, the site has adequate existing parking, including shared parking areas on adjacent land, to accommodate both existing and anticipated parking demand; and WHEREAS, the Planning Commission has reviewed the application for Conditional Use Permit pursuant to the regulations of the Monticello Zoning Ordinance; and WHEREAS, the Planning Commission held a public hearing on March 2, 2021 on the application and the applicant and members of the public were provided the opportunity to present information to the Planning Commission; and WHEREAS, the Planning Commission has considered all the comments and the staff report, which are incorporated by reference into the resolution; and WHEREAS, the Planning Commission makes the following Findings of Fact in relation to the recommendation of approval: 1. The proposed uses are consistent with the intent and purpose of the B-4, Regional Business District. 2. The proposed uses are consistent with the existing and future land uses in the area in which they are located. 3. The impacts of the improvements are those anticipated by the existing and future land uses and are addressed through standard review and ordinances as adopted. 4. The proposed building addition meet the intent and requirements of the applicable zoning regulations, pursuant to the conditions attached to the Conditional Use Permit. CITY OF MONTICELLO WRIGHT COUNTY, MINNESOTA PLANNING COMMISSION RESOLUTION NO. PC 2021-008 5. The proposed cross access and shared parking area is not anticipated to negatively impact surrounding commercial properties, and instead may encourage future commercial development in Outlot A to the east of the ALDI site. 6. Approval of the CUP for cross access and shared parking will not result in the need for additional road or utility infrastructure and should not otherwise negatively impact the health or safety of the community. 7. Parking is found to be adequate based on the available off-street parking on the property. NOW, THEREFORE, BE IT RESOLVED, by the Planning Commission of the City of Monticello, Minnesota, that the Planning Commission hereby recommends to the City Council that the proposed Conditional Use Permit be approved, subject to the conditions of Exhibit Z of the staff report, as follows: The applicant updates the legal instrument executed by the parties reflecting the changes in off-street parking facilities, duly approved as to form and manner of execution by the City Attorney, to be filed with the City Administrator and recoded with the County Recorder of Wright County. 2. The applicant submits a revised photometric plan as a part of building permit application, verifying compliance with lighting standards. 3. The proposed construction does not appear to be increasing the impervious surface, if the amount of impervious surface changes further review of the existing infiltration basins would be necessary. 4. Add note to plans that contractor shall contact Public Works when reconfiguring water service. 5. Other comments and recommendations of City Staff and City Council. ADOPTED this 2nd day of March 2021 by the Planning Commission of the City of Monticello, Minnesota. CITY OF MONTICELLO WRIGHT COUNTY, MINNESOTA PLANNING COMMISSION RESOLUTION NO. PC 2021-008 MONTICELLO PLANNING COMMISSION By: ATTEST: Paul Konsor, Chair Angela Schumann, Community Development Director 0 O c-I c-I O N CV Ln •E L 4-j Q) a 4J Q) N N U _ Ln c6 � O O O U � O O c Y Q) U E O m C +, Q) O E J Q L to N O J +-j L Q) Q) ry Q) U � o Ln 't os JANUARY 28, 2021 Jacob Thunander Community and Economic Development Coordinator City of Monticello 505 Walnut Street, Ste 1 Monticello, MN 55362 763-271-3206 Jacob.Thunander@ci.monticello.mn.us RE: APPLICATION TO AMEND THE EXSITING CONDITIONAL USE PERMIT ALDI EXPANSION @ 9400 CEDAR STREET Dear Jacob, Thank you for reviewing the Conditional Use Permit application and supporting documents for the proposed addition to the existing ALDI at 9400 Cedar Street. We understand that an amendment to the Conditional Use Permit for the existing building is needed for the proposed addition. The following narrative describes the proposal and addresses the Conditional Use Permit (CUP) review criteria for the proposed addition. SITE DESIGN The existing ALDI grocery store was approved with a Conditional Use Permit and consists of a 17,018 square foot building. ALDI would like to expand and remodel this store to offer a larger product line to customers. This application is for a 2,346 square foot building addition to the south fagade of the existing ALDI grocery store. As illustrated in the included plans, the expansion would result in the removal of 8 parking spaces, but would the site would still conform to the parking requirements, basing calculations off the size of the new overall building size. There would be no other changes to the remaining parking lot design or access. The proposed additional complies with all the B-4 zone district standards, including building height, setbacks and open space requirements. With this minor building addition, there is very little change to the overall site. The appropriate engineering documents are included for review to ensure the grading, erosion control and stormwater requirements are upheld. Also included for review are the building elevations showing that the proposed addition would be architecturally integrated with the existing building, using the same materials and color palette as the existing building for an overall cohesive design. CUP REVIEW CRITERIA Each item below is the City's CUP Review Criteria and our response to each item: (i)The conditional use will not substantially diminish or impair property values within the immediate vicinity of the subject property; • The addition should have no impact to property values in the vicinity. (ii)The conditional use will not be detrimental to the health, safety, morals, or welfare of persons residing or working near the use; • The addition involves very minor changes to an existing commercial site. There should be no negative impacts to the surrounding community. 115 East Hickory Street + Suite 300 + Mankato, MN 56001 507.387.6651 + ISG I nc.com Architecture + Engineering + Environmental + Planning (iii)The conditional use will not impede the normal and orderly development of surrounding property for permitted uses predominant in the area; • The proposed additional does not impact or impede any development of surrounding properties. (iv)The conditional use will not pose an undue burden on public utilities or roads, and adequate sanitary facilities are provided; • There is adequate utility services available to support the small addition and there will be no burden to the existing public utilities. (v)The conditional use can provide adequate parking and loading spaces, and all storage on the site can be done in conformance with City code requirements; • Even with the small addition, the site complies with the parking, loading and storage requirements. (vi)The conditional use will not result in any nuisance including but not limited to odor, noise, or sight pollution; • There will be no nuisance to odor, noise or sight pollution. (vii)The conditional use will not unnecessarily impact natural features such as woodlands, wetlands, and shorelines; and all erosion will be properly controlled; • No natural features will be impacted and the required site grading, erosion and stormwater requirements will be met. (viii)The conditional use will adhere to any applicable additional criteria outlined in Chapter 5 for the proposed use. Thank you again for reviewing the attached information. Please contact me at 952-426-0699 with any questions or if there is any additional information we can provide in support of this project. Sincerely, Andrea Rand, AICP Project Coordinator Andrea. Rand@ISGlnc.com Attachments: Plans Exterior Elevations Page 2 of 2 952.426.0699 + ISG I nc.com ; •�, � ,,;l,}!;! 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Powers Kayne Law Group 612 N. Park St., Suite 200 Columbus, Ohio 43215 Doc. No. A1255740 OFFICE OF THE COUNTY RECORDER WRIGHT COUNTY, MINNESOTA Certified Filed andlor Recorded on 1 /1312014 at 11:30 AM Check #: 1724123273 Fee: $46.00 Payment Code 02 Addl. Fee Barb Gabrelcik, County Recorder RECIPROCAL EASEMENT AND RESTRICTION AGREEMENT THIS RECIPROCAL EASEMENT AND RESTRICTION AGREEMENT (this "Agreement") is executed, delivered and made effective as of this day of ri 201$(the "Effective Date"), by and between Ocello, LLC, a Minnesota limited liability company ("Ocello"), and Aldi Inc. (Minnesota), a Minnesota corporation ("Aldi"); Ocello and Aldi are sometimes referred to herein individually as a "Party" and collectively as the "Parties". Background Information A. General Location of the Properties. Ocello and Aldi each own certain parcels of real property located at the northeast corner of Cedar Street and School Boulevard in Monticello, Minnesota. A copy of a site plan that generally depicts the properties owned by each of the Parties is attached hereto and made a part hereof as Exhibit A. Aldi's parcel, containing approximately 2.004 acres, is identified on Exhibit A as the "Aldi Property" and is more particularly described on Exhibit B, attached hereto and made a part hereof (the "Aldi Property"). Ocello's parcel, containing approximately 40,776 acres, is located adjacent to the Aldi Property, and is more particularly described on Exhibit C, attached hereto and made a part hereof (the "Ocello Property"; collectively, the Aldi Property and the Ocello Property are sometimes referred to as the "Properties" and individually sometimes as a "Property"). The parcel that is depicted on Exhibit A as "Lot 2" is a 1.119-acre portion of the Ocello Property and is sometimes separately referred to herein as "Lot 2". B. General Description of the Easements and Restrictions. In order to provide for, among other things, (1) the coordinated development, operation and maintenance of 1 f n0 Drafted by: Patricia A. Powers Kayne Law Group 612 N. Park St., Suite 200 Columbus, Ohio 43215 RECIPROCAL EASEMENT AND RESTRICTION AGREEMENT THIS RECIPROCAL EASEMENT AND RESTRICTION AGREEMENT (this "Agreement') is executed, delivered and made effective as of this qfk day of TanLt , 2011(the "Effective Date"), by and between Ocello, LLC, a Minnesota limited liability company ("Ocello"), and Aldi Inc. (Minnesota), a Minnesota corporation ("Aldi"); Ocello and Aldi are sometimes referred to herein individually as a "Party" and collectively as the "Parties". Background Information A. General Location of the Properties. Ocello and Aldi each own certain parcels of real property located at the northeast corner of Cedar Street and School Boulevard in Monticello, Minnesota. A copy of a site plan that generally depicts the properties owned by each of the Parties is attached hereto and made a part hereof as Exhibit A. Aldi's parcel, containing approximately 2.004 acres, is identified on Exhibit A as the "Aldi Property" and is more particularly described on Exhibit B, attached hereto and made a part hereof (the "Aldi Property"). Ocello's parcel, containing approximately 40.776 acres, is located adjacent to the Aldi Property, and is more particularly described on Exhibit C, attached hereto and made a part hereof (the "Ocello Property"; collectively, the Aldi Property and the Ocello Property are sometimes referred to as the "Properties" and individually sometimes as a "Property"). The parcel that is depicted on Exhibit A as "Lot 2" is a 1.119-acre portion of the Ocello Property and is sometimes separately referred to herein as °Lot 2". B. General Description of the Easements and Restrictions. In order to provide for, among other things, (1) the coordinated development, operation and maintenance of the Properties, (2) coordinated ingress, egress and access to, from and between the Properties and the abutting public roads, and (3) installation and delivery of certain utility services to the Properties, the Parties have agreed to grant certain easements benefiting and burdening the Properties. Further, the Parties have agreed to subject the Properties to certain restrictions on use and/or development, as hereinafter set forth. AGREEMENT NOW, THEREFORE, in consideration of the premises, as set forth in the foregoing Background Information, and of the mutual promises herein set forth, and other good and valuable consideration paid, the Parties do hereby agree as follows: ARTICLE 1 Easements 1,01. Ingress/Egress Easement to Aldi. Subject to the terms and conditions set forth in this Agreement, Ocello hereby grants and conveys to Aldi and its successors and assigns (including without limitation Aldi's employees, agents and customers), as an easement appurtenant to the Aldi Property, a permanent, non-exclusive easement and right-of-way for the purpose of pedestrian and vehicular (including, but not limited to, Aldi's tractor trailer delivery trucks) ingress, egress, passage, and traffic upon, over, across, and through the driveways and walkways of the Ocello Property that are designed, constructed and used from time to time for such vehicle and pedestrian traffic. Ocello hereby reserves the right to use the foregoing easement areas for all purposes which will not materially interfere with Aldi's full enjoyment of the non-exclusive rights granted hereby. Ocello shall further have the right to relocate or otherwise modify any and all of such driveways, drive aisles and walkways as may be necessary, in Ocello's reasonable discretion, from time to time; provided that the specific driveway on the Ocello Property designated on Exhibit A (and referred to herein) as the "School Boulevard Access Drive" is intended to provide ingress, egress and maneuvering space for passenger vehicles and Aldi's delivery trucks to and from the Aldi Property. Ocello shall not, without Aldi's prior written consent, alter, relocate or close the School Boulevard Access Drive, or otherwise impair ingress to and egress from the Property via the School Boulevard Access Drive. 1.02. Ingress/Egress Easement to Ocello. Subject to the terms and conditions set forth in this Agreement, Aldi hereby grants and conveys to Ocello and its successors and assigns, as an easement appurtenant to the Ocello Property, a permanent, non-exclusive easement and right-of-way for the purpose of pedestrian and vehicular ingress, egress, passage, and traffic upon, over, across, and through the driveways and walkways of the Aldi Property that are designed, constructed and used from time to time for such vehicle and pedestrian traffic. Aldi hereby reserves the rightto use the foregoing easement areas for all purposes which will not materially interfere with Ocello's full enjoyment of the non- exclusive rights granted hereby. Aldi shall further have the right to relocate or otherwise modify any and all of such driveways, drive aisles and walkways as may be necessary, in Aldi's reasonable discretion, from time to time; provided that the specific driveway on the Aldi Property designated on Exhibit A (and referred to herein) as the "Cedar Street 2 the Properties, (2) coordinated ingress, egress and access to, from and between the Properties and the abutting public roads, and (3) installation and delivery of certain utility services to the Properties, the Parties have agreed to grant certain easements benefiting and burdening the Properties. Further, the Parties have agreed to subject the Properties to certain restrictions on use and/or development, as hereinafter set forth. AGREEMENT NOW, THEREFORE, in consideration of the premises, as set forth in the foregoing Background Information, and of the mutual promises herein set forth, and other good and valuable consideration paid, the Parties do hereby agree as follows: ARTICLE I Easements 1.01. Ingress/Egress Easement to Aldi. Subject to the terms and conditions set forth in this Agreement, Ocello hereby grants and conveys to Aldi and its successors and assigns (including without limitation Aldi's employees, agents and customers), as an easement appurtenant to the Aldi Property, a permanent, non-exclusive easement and right-of-way for the purpose of pedestrian and vehicular (including, but not limited to, Aldi's tractor trailer delivery trucks) ingress, egress, passage, and traffic upon, over, across, and through the driveways and walkways of the Ocello Property that are designed, constructed and used from time to time for such vehicle and pedestrian traffic. Ocello hereby reserves the right to use the foregoing easement areas for all purposes which will not materially interfere with Aldi's full enjoyment of the non-exclusive rights granted hereby. Ocello shall further have the right to relocate or otherwise modify any and all of such driveways, drive aisles and walkways as may be necessary, in Ocello's reasonable discretion, from time to time; provided that the specific driveway on the Ocello Property designated on Exhibit A (and referred to herein) as the "School Boulevard Access Drive" is intended to provide ingress, egress and maneuvering space for passenger vehicles and Aldi's delivery trucks to and from the Aldi Property. Ocello shall not, without Aldi's prior written consent, alter, relocate or close the School Boulevard Access Drive, or otherwise impair ingress to and egress from the Property via the School Boulevard Access Drive. 1.02. Ingress/Egress Easement to Ocello. Subject to the terms and conditions set forth in this Agreement, Aldi hereby grants and conveys to Ocello and its successors and assigns, as an easement appurtenant to the Ocello Property, a permanent, non-exclusive easement and right-of-way for the purpose of pedestrian and vehicular ingress, egress, passage, and traffic upon, over, across, and through the driveways and walkways of the Aldi Property that are designed, constructed and used from time to time for such vehicle and pedestrian traffic. Aldi hereby reserves the right to use the foregoing easement areas for all purposes which will not materially interfere with Ocello's full enjoyment of the non- exclusive rights granted hereby. Aldi shall further have the right to relocate or otherwise modify any and all of such driveways, drive aisles and walkways as may be necessary, in Aldi's reasonable discretion, from time to time; provided that the specific driveway on the Aldi Property designated on Exhibit A (and referred to herein) as the "Cedar Street 2 _ML Access Drive" is intended to provide ingress, egress and maneuvering space for vehicles to and from the Ocello Property. Aldi shall not, without Ocello's priorwritten consent, alter, relocate or close the Cedar Street Access Drive, or otherwise impair ingress to and egress from the Ocello Property via the Cedar Street Access Drive. Aldi reserves the right to have its tractor trailer delivery trucks utilize the Cedar Street Access Drive in addition to the School Boulevard Access Drive. 1.03. Stormwater Easement to Ocello. Subject to the terms and conditions set forth in this Agreement, Aldi hereby grants and conveys to Ocello, and its successors and assigns, as an easement appurtenant to Lot 2 and the driveway that extends along the eastern border of Lot 2 from the School Boulevard curb cut to the northeast corner of Lot 2 (collectively, the "Lot 2 Storm Water Benefited Property") as set forth on Exhibit D) and over and across the portion of the Aldi Property generally depicted on Exhibit D as the "Storm Water Management Easement Area", for the purpose of facilitating drainage of storm and surface water runoff from the Lot 2 Storm Water Benefited Property, a perpetual, non-exclusive right and easement over, under and across the Aldi Property forthe purpose of connecting the Lot 2 Storm Water Benefited Property to that certain storm water management basin as required by the City of Monticello (the "Storm Water Basin"), as set forth on Exhibit D, together with the right of inflow and outflow out of the Storm Water Basin. Ocello hereby acknowledges that, from time to time, storm water may overflow from the Storm Water Basin to the Ocello Property based on a 100-year rainfall event, and Ocello hereby consents to said overflow until such time as said overflow is addressed via separate agreement between the parties, or until such time as the Ocello Property is further improved to provide additional ponding or with another facility to accommodate the overflow, at which time the area of the Ocello Property subject to the overflow will be limited to a necessary defined area acceptable to the City of Monticello. 1.04. Limited Parking Easement to Aldi. Subject to the terms and conditions set forth in this Agreement, Ocello hereby grants and conveys to Aldi and its successors and assigns, as an easement appurtenant to the Aldi Property, a permanent, non-exclusive easement and right-of-way for the purpose of vehicular parking on the Ocello Property over and across those areas set forth on Exhibit A as "Ocello's Parking Area" for vehicular parking and customers while they are visiting a retail store on the Aldi Property. 1.05. Limited Parkinq Easement to Ocello. Subject to the terms and conditions set forth in this Agreement, Aldi hereby grants and conveys to Ocello and its successors and assigns, as an easement appurtenant to the Ocello Property, a permanent, non-exclusive easement and right-of-way for the purpose of vehicular parking on the Aldi Property over and across those areas set forth on Exhibit A as "Aldi's Parking Area" for vehicular parking and customers while they are visiting Lot 2. ARTICLE II Restrictions 2.01. Use Restrictions on the Ocello _Pro . Ocello, for itself, its successors and assigns, hereby declares and imposes on the Ocello Property, for the benefit of the Aldi 3 I , Access Drive" is intended to provide ingress, egress and maneuvering space for vehicles to and from the Ocello Property. Aldi shall not, without Ocello's priorwritten consent, alter, relocate or close the Cedar Street Access Drive, or otherwise impair ingress to and egress from the Ocello Property via the Cedar Street Access Drive. Aldi reserves the right to have its tractor trailer delivery trucks utilize the Cedar Street Access Drive in addition to the School Boulevard Access Drive. 1.03. Stormwater Easement to Ocello. Subject to the terms and conditions set forth in this Agreement, Aldi hereby grants and conveys to Ocello, and its successors and assigns, as an easement appurtenant to Lot 2 and the driveway that extends along the eastern border of Lot 2 from the School Boulevard curb cut to the northeast corner of Lot 2 (collectively, the "Lot 2 Storm Water Benefited Property") as set forth on Exhibit D and over and across the portion of the Aldi Property generally depicted on Exhibit D as the "Storm Water Management Easement Area", for the purpose of facilitating drainage of storm and surface water runoff from the Lot 2 Storm Water Benefited Property, a perpetual, non-exclusive right and easement over, under and across the Aldi Property for the purpose of connecting the Lot 2 Storm Water Benefited Property to that certain storm water management basin as required by the City of Monticello (the "Storm Water Basin"), as set forth on Exhibit D, together with the right of inflow and outflow out of the Storm Water Basin. Ocello hereby acknowledges that, from time to time, storm water may overflow from the Storm Water Basin to the Ocello Property based on a 100-year rainfall event, and Ocello hereby consents to said overflow until such time as said overflow is addressed via separate agreement between the parties, or until such time as the Ocello Property is further improved to provide additional ponding or with another facility to accommodate the overflow, at which time the area of the Ocello Property subject to the overflow will be limited to a necessary defined area acceptable to the City of Monticello. 1.04. Limited Parking Easement to Aldi. Subject to the terms and conditions set forth in this Agreement, Ocello hereby grants and conveys to Aldi and its successors and assigns, as an easement appurtenant to the Aldi Property, a permanent, non-exclusive easement and right-of-way for the purpose of vehicular parking on the Ocello Property over and across those areas set forth on Exhibit A as "Ocello's Parking Area" for vehicular parking and customers while they are visiting a retail store on the Aldi Property. 1.05. Limited Parking Easement to Ocello. Subject to the terms and conditions set forth in this Agreement, Aldi hereby grants and conveys to Ocello and its successors and assigns, as an easement appurtenant to the Ocello Property, a permanent, non-exclusive easement and right-of-way for the purpose of vehicular parking on the Aldi Property over and across those areas set forth on Exhibit A as "Aldi's Parking Area" for vehicular parking and customers while they are visiting Lot 2, ARTICLE II Restrictions 2.01. Use Restrictions on the Ocello Property. Ocello, for itself, its successors and assigns, hereby declares and imposes on the Ocello Property, for the benefit of the Aldi 3 I �� Property, the restrictions on use set forth on Exhibit E, attached hereto and made a part hereof. 2.02. Restriction of Construction Trucks on Access Drives. From and after the date that Aldi completes construction, pursuant to Sections 3.01(a) and 3.01(c) hereof, of the improvements to each of the School Boulevard Access Drive and the Cedar Street Access Drive, neither such drive shall be used for construction vehicles to and from the Ocello Property unless there is no other viable access to and from the Ocello Property. 2.03. Irrigation. The owner of each parcel (and/or future parcel) within the Ocello Property shall install and operate a fully -functioning underground irrigation system to irrigate all landscaped portions of such parcel. 2.04. Underground Utilities. Except as may be required by the applicable utility service company or governmental agency, all utilities that service any portion (and/or future parcel) within the Ocello Property shall be installed underground except for any necessary above -ground connections and/or tie-ins. ARTICLE III Construction and Maintenance Obligations 3.01. Construction Maintenance and Repair of the Properties. Subject to the provisions hereinafter set forth: Except as otherwise set forth below, Ocello shall be responsible for maintaining the Ocello Property at its sole cost and expense, and Aldi shall be responsible for maintaining the Aldi Property at its sole cost and expense. Each Party shall maintain its Property and shall construct and maintain all of the improvements thereon, at all times, in a good and safe condition and state of repair. Further, while any portion of the Ocello Property remains undeveloped, Ocello shall, at its sole cost, keep the Ocello Property seeded and mowed and in a visually appealing condition; provided, however, Ocello shall have the right to continue to use for agricultural purposes any portion of the Ocello Property that is currently being used for agricultural purposes. (a) School Boulevard Access Drive. Coincident with Aldi's construction of its building and related improvements on the Aldi Property, Aldi shall construct the driveway, curbs, curb cut and related improvements within the School Boulevard Access Drive, at its sole cost and expense and in accordance with plans and specifications approved by Ocello. Aldi shall be responsible for repairing and maintaining said improvements within the School Boulevard Access Drive. Until the date that building improvements on any portion of the School Boulevard Improved Property (defined below) is open for business to the public, such repair and maintenance shall be at Aldi's sole cost and expense. From and after the date that any building improvements on any portion of the School Boulevard Improved Property are open for business to the public, Buyer and the owners) of the School Boulevard Improved Property shall share the cost of repairing and maintaining the School Boulevard Access Drive improvements pro-rata, based on the relative area of the Property, the restrictions on use set forth on Exhibit E, attached hereto and made a part hereof. 2.02. Restriction of Construction Trucks on Access Drives. From and after the date that Aldi completes construction, pursuant to Sections 3.01(a) and 3.01(c) hereof, of the improvements to each of the School Boulevard Access Drive and the Cedar Street Access Drive, neither such drive shall be used for construction vehicles to and from the Ocello Property unless there is no other viable access to and from the Ocello Property. 2.03. Irrigation. The owner of each parcel (and/or future parcel) within the Ocello Property shall install and operate a fully -functioning underground irrigation system to irrigate all landscaped portions of such parcel. 2.04. Underground Utilities. Except as may be required by the applicable utility service company or governmental agency, all utilities that service any portion (and/or future parcel) within the Ocello Property shall be installed underground except for any necessary above -ground connections and/or tie -ins - ARTICLE III Construction and Maintenance Obligations 3.01. Construction, Maintenance and Repair of the Properties. Subject to the provisions hereinafter set forth: Except as otherwise set forth below, Ocello shall be responsible for maintaining the Ocello Property at its sole cost and expense, and Aldi shall be responsible for maintaining the Aldi Property at its sole cost and expense. Each Party shall maintain its Property and shall construct and maintain all of the improvements thereon, at all times, in a good and safe condition and state of repair. Further, while any portion of the Ocello Property remains undeveloped, Ocello shall, at its sole cost, keep the Ocello Property seeded and mowed and in a visually appealing condition; provided, however, Ocello shall have the right to continue to use for agricultural purposes any portion of the Ocello Property that is currently being used for agricultural purposes. (a) School Boulevard Access Drive. Coincident with Aldi's construction of its building and related improvements on the Aldi Property, Aldi shall construct the driveway, curbs, curb cut and related improvements within the School Boulevard Access Drive, at its sole cost and expense and in accordance with plans and specifications approved by Ocello. Aldi shall be responsible for repairing and maintaining said improvements within the School Boulevard Access Drive. Until the date that building improvements on any portion of the School Boulevard Improved Property (defined below) is open for business to the public, such repair and maintenance shall be at Aldi's sole cost and expense. From and after the date that any building improvements on any portion of the School Boulevard Improved Property are open for business to the public, Buyer and the owner(s) of the School Boulevard Improved Property shall share the cost of repairing and maintaining the School Boulevard Access Drive improvements pro-rata, based on the relative area of the 4 /_ML Aldi Property and the School Boulevard Improved Property. For purposes of this section 3.01(a), the "School Boulevard Improved Property" shall mean any portion of the Ocello Property that has driveway or street access to the School Boulevard Access Drive. Notwithstanding anything to the contrary herein, any damage to the School Boulevard Access Drive caused by Ocello or its contractor(s) shall be the responsibility of Ocello, and Ocello hereby indemnifies and holds harmless Aldi from and against any claims, losses or expenses incurred by Aidi as a result of or arising out of such construction activities. (b) Ocello's Parking Improvements. Coincident with Aldi's construction of the improvements within the School Boulevard Access Drive, Aldi shall construct, for the benefit of Ocello, and subject to the limited parking easement set forth in Section 1.04 hereof, certain pavement improvements ("Ocello's Parking Improvements") within Ocello's Parking Area. Ocello's Parking Improvements shall be constructed in accordance with plans and specifications provided by Ocello. At the closing of the sale of the Aldi Property from Ocello to Aldi (said closing to take place on the date of execution of this Agreement), Aldi shall receive a credit against the purchase price of the Aidi Property in an amount equal to 110% of the estimated cost of constructing Ocello's Parking Improvements ("Ocello's Deposit'). The estimated cost of constructing Ocello's Parking Improvements shall be subject to approval by Ocello, said approval not to be unreasonably withheld, delayed or denied. Upon Aldi's completion of such construction, Ocello shall reimburse Aldi the excess cost incurred and approved by Ocello, if any, if the actual cost of completing Ocello's Parking Improvements exceeds Ocello's Deposit, and if excess funds remain from Ocello's Deposit after Aldi's payment of all costs of completing Ocello's Parking Improvements, Aldi shall remit such excess to Ocello. (c) Cedar Street Access Drive. Coincident with Aldi's construction of its building and related improvements on the Aldi Property, Aldi shall construct the driveway, curbs, curb cut and related improvements within the Cedar Street Access Drive, at its sole cost and expense and in accordance with plans and specifications approved by Ocello. Aldi shall be responsible for repairing and maintaining the improvements within the Cedar Street Access Drive. Until the date that building improvements on any portion of the CedarStreet Improved Property (defined below) are open for business to the public, such repair and maintenance shall be at Aldi's sole cost and expense. From and after the date that any building improvements on any portion of the Cedar Street improved Property are open for business to the public, Buyer and the owner(s) of the Cedar Street Improved Property shall share the cost of repairing and maintaining the Cedar Street Access Drive improvements pro-rata, based on the relative area of the Aldi Property and the Cedar Street Improved Property. For purposes of this section 3.01(c), the "Cedar Street Improved Property" shall mean any portion of the Ocello Property that has driveway or street access to the Cedar Street Access Drive. Notwithstanding anything to the contrary herein, any damage to the Cedar Street Access Drive caused by Ocello or its contractor(s) shall be the responsibility of Ocello, and Ocello hereby indemnifies and holds harmless Aldi from and against any claims, losses or expenses incurred by Aldi as a result of or arising out of such construction activities. 5 1- [ Aldi Property and the School Boulevard Improved Property. For purposes of this section 3.01(a), the "School Boulevard Improved Property" shall mean any portion of the Ocello Property that has driveway or street access to the School Boulevard Access Drive. Notwithstanding anything to the contrary herein, any damage to the School Boulevard Access Drive caused by Ocello or its contractor(s) shall be the responsibility of Ocello, and Ocello hereby indemnifies and holds harmless Aldi from and against any claims, losses or expenses incurred by Aldi as a result of or arising out of such construction activities- (b) Ocello's Parking Improvements. Coincident with Aldi's construction of the improvements within the School Boulevard Access Drive, AIM shall construct, for the benefit of Ocello, and subject to the limited parking easement set forth in Section 1.04 hereof, certain pavement improvements ("Ocello's Parking Improvements") within Ocello's Parking Area. Ocello's Parking Improvements shall be constructed in accordance with plans and specifications provided by Ocello. At the closing of the sale of the Aldi Property from Ocello to Aldi (said closing to take place on the date of execution of this Agreement), Aldi shall receive a credit against the purchase price of the Aldi Property in an amount equal to 110% of the estimated cost of constructing Ocello's Parking Improvements ("Ocello's Deposit"). The estimated cost of constructing Ocello's Parking improvements shall be subject to approval by Ocello, said approval not to be unreasonably withheld, delayed or denied. Upon Aldi's completion of such construction, Ocello shall reimburse Aldi the excess cost incurred and approved by Ocello, if any, if the actual cost of completing Ocello's Parking Improvements exceeds Ocello's Deposit, and if excess funds remain from Ocello's Deposit after Aldi's payment of all costs of completing Ocello's Parking Improvements, Aldi shall remit such excess to Ocello. (c) Cedar Street Access Drive. Coincident with Aldi's construction of its building and related improvements on the Aldi Property, Aldi shall construct the driveway, curbs, curb cut and related improvements within the Cedar Street Access Drive, at its sole cost and expense and in accordance with plans and specifications approved by Ocello. Aldi shall be responsible for repairing and maintaining the improvements within the Cedar Street Access Drive. Until the date that building improvements on any portion of the Cedar Street Improved Property (defined below) are open for business to the public, such repair and maintenance shall be at Aldi's sole cost and expense. From and after the date that any building improvements on any portion of the Cedar Street Improved Property are open for business to the public, Buyer and the owner(s) of the Cedar Street Improved Property shall share the cost of repairing and maintaining the Cedar Street Access Drive improvements pro-rata, based on the relative area of the Aldi Property and the Cedar Street Improved Property. For purposes of this section 3.01(c), the "Cedar Street Improved Property" shall mean any portion of the Ocello Property that has driveway or street access to the Cedar Street Access Drive. Notwithstanding anything to the contrary herein, any damage to the Cedar Street Access Drive caused by Ocello or its contractor(s) shall be the responsibility of Ocello, and Ocello hereby indemnifies and holds harmless Aldi from and against any claims, losses or expenses incurred by Aldi as a result of or arising out of such construction activities. (d) Storm Water Basin and Related Improvements. Coincident with Aldi's construction of its building and related improvements on the Aldi Property, Aldi shall construct the Storm Water Basin and related improvements within the Storm Water Management Easement Area, at its sole cost and expense and in accordance with plans and specifications approved by the City of Monticello and Ocello. Ocello shall, at its sole cost and expense, prepare and deliver to Aldi storm water management calculations to determine the storm water capacity required to manage storm water runoff from the Lot 2 Storm Water Benefited Property. Aldi shall design and construct the Storm Water Basin in order to adequately accommodate the management requirements of both the Aldi Property and the Lot 2 Storm Water Benefited Property. In the event that the Storm Water Basin and related improvements require any modification as a result of any additional future development or construction on the Ocello Property, Ocello shall be responsible, at its sole cost and expense, for any such modifications. Aldi shall be responsible for repairing and maintaining the Storm Water Basin and related improvements within the Storm Water Management Easement Area. Until the date that construction of improvements commences on any portion of the Lot 2 Benefited Property, such repair and maintenance shall be at Aldi's sole cost and expense. From and after the date that construction commences on any portion of the Lot 2 Benefited Property, Aldi and Ocello and Ocello's successor in ownership shall share the cost of repairing and maintaining the Storm Water Basin and related improvements within the Storm Water Management Easement Area pro- rata, based on the relative storm water burden of each such parcel (as determined by the parties' storm water management calculations to determine the storm water capacity of each parcel). (e) Each Party shall perform its construction and maintenance obligations hereunder in a manner so as not to impair, interfere with or block the access to the other Property or the business operations of the other Party. (f) In the event a Party fails to diligently perform its maintenance, repair and replacement obligations within 10 business days after receiving a written request from the other Party to do so (the "Requesting Party"), the Requesting Party shall have a temporary easement and right to perform the requested maintenance, repair and/or replacement. The non -performing Party shall reimburse the Requesting Party for any and all costs incurred in connection with the requested maintenance and repair within 10 business days after receiving from the Requesting Party a bill therefor together with supporting documentation. (g) Notwithstanding the foregoing to the contrary, damage to the School Boulevard Access Drive and/or the Cedar Street Access Drive caused by a Party or its contractors or employees shall be the responsibility of such Party. (h) The obligations hereunder shall run with the land. If a Property is subdivided, any obligation or expense attributed to a subdivided Property shall be deemed an expense of such subdivided Property and the then owner(s) thereof. Upon conveyance by a Party of all or a portion of its Property, such Party shall be released from any maintenance or other obligations for the Property (or portion thereof) actually conveyed. 6/ (d) Storm Water Basin and Related Improvements. Coincident with Aldi's construction of its building and related improvements on the Aldi Property, Aldi shalt construct the Storm Water Basin and related improvements within the Storm Water Management Easement Area, at its sole cost and expense and in accordance with plans and specifications approved by the City of Monticello and Ocello. Ocello shall, at its sole cost and expense, prepare and deliver to Aldi storm water management calculations to determine the storm water capacity required to manage storm water runoff from the Lot 2 Storm Water Benefited Property. Aldi shall design and construct the Storm Water Basin in order to adequately accommodate the management requirements of both the Aldi Property and the Lot 2 Storm Water Benefited Property. In the event that the Storm Water Basin and related improvements require any modification as a result of any additional future development or construction on the Ocello Property, Ocello shall be responsible, at its sole cost and expense, for any such modifications. Aldi shall be responsible for repairing and maintaining the Storm Water Basin and related improvements within the Storm Water Management Easement Area. Until the date that construction of improvements commences on any portion of the Lot 2 Benefited Property, such repair and maintenance shall be at Aldi's sole cost and expense. From and after the date that construction commences on any portion of the Lot 2 Benefited Property, Aldi and Ocello and Ocello's successor in ownership shall share the cost of repairing and maintaining the Storm Water Basin and related improvements within the Storm Water Management Easement Area pro- rata, based on the relative storm water burden of each such parcel (as determined by the parties' storm water management calculations to determine the storm water capacity of each parcel). (e) Each Party shall perform its construction and maintenance obligations hereunder in a manner so as not to impair, interfere with or block the access to the other Property or the business operations of the other Party. (f) In the event a Party fails to diligently perform its maintenance, repair and replacement obligations within 10 business days after receiving a written requestfrom the other Party to do so (the "Requesting Party"), the Requesting Party shall have a temporary easement and right to perform the requested maintenance, repair and/or replacement. The non -performing Party shall reimburse the Requesting Party for any and all costs incurred in connection with the requested maintenance and repair within 10 business days after receiving from the Requesting Party a bill therefor together with supporting documentation. (g) Notwithstanding the foregoing to the contrary, damage to the School Boulevard Access Drive and/or the Cedar Street Access Drive caused by a Party or its contractors or employees shall be the responsibility of such Party. (h) The obligations hereunder shall run with the land. If a Property is subdivided, any obligation or expense attributed to a subdivided Property shall be deemed an expense of such subdivided Property and the then owner(s) thereof. Upon conveyance by a Party of all or a portion of its Property, such Party shall be released from any maintenance or other obligations for the Property (or portion thereof) actually conveyed. 6 1 ML (i) Pipeline Encroachment Agreement. There currently exists a Right of Way Conveyance in favor of NuStar Pipeline Operating Partnership LP ("NuStar") over a portion of the Aldi Property and Lot 2 (the "Pipeline Easement"). Said Pipeline Easement is in full force and effect. In order to accommodate Aldi's development plans as contemplated herein, Ocello is entering into an Encroachment Agreement with NuStar wherein NuStar consents to Ocello encroaching on the Pipeline Easement pursuant to the terms and conditions set forth therein. A copy of the Encroachment Agreement is attached hereto as Exhibit F. From and after the date that Aldi acquires fee title to the Aldi Property, Aldi will succeed to the rights and obligations of Ocello as contained in the Encroachment Agreement in so far as it relates to the Aldi Property, and Aldi agrees to be bound by the terms of said Encroachment Agreement to the extent it relates to the Aldi Property. Further, Aldi will indemnify and hold Ocello harmless in regard to the provisions of the Encroachment Agreement to the extent that it relates to the Aldi Property. ARTICLE IV Lien Removal 4.01. Lien Removal. If, as a result of either Party's (the "Contracting Party's") exercise of any of the rights granted to it in this Agreement to enter onto and/or perform' work upon the other Party's Property, a lien is filed by any contractor, subcontractor, laborer or materialman, then the Contracting Party shall discharge, bond or otherwise remove each such lien within 30 days following written notice from the other Party. If the Contracting Party fails to so discharge, bond or otherwise remove any such lien within such period of time, the other Party may do so and the Contracting Party shall reimburse the other Party for the reasonable cost thereof, including, without limitation, reasonable attorney fees incurred in discharging such lien upon demand therefor. ARTICLE V Defaults and Remedies 5,01. Defaults. If any Party (the "Defaulting Party") should fail to observe any of the terms, conditions, restrictions or provisions of, or should fail to perform any of its covenants or obligations under this Agreement within a period of 30 days after the other Party (the "Non -Defaulting Party") has given to the Defaulting Party written notice thereof, then the Defaulting Party shall be in default under this Agreement; provided that if the obligation is of such a nature that the same cannot, with due diligence, be reasonably performed within such 30-day period, then such default shall be deemed to have been cured if the Defaulting Party commences such performance within such 30-day period and thereafter undertakes and proceeds with due diligence to complete the same and does complete the same within a reasonable time. If a default has occurred and is not cured within the time period specified in this Section 5.01, then the Non -Defaulting Party shall have all of the rights and remedies afforded to it by law and also all of the rights and remedies set forth in Section 5.02 hereof (whether or not they are expressly provided by statute or recognized by judicial precedent), any one or more of which may be exercised and enforced independently or concurrently at any time that such default remains uncured, without further notice to the Defaulting Party and without waiving any of the Non -Defaulting 7 I^f 0) Pipeline Encroachment Agreement. There currently exists a Right of Way Conveyance in favor of NuStar Pipeline Operating Partnership LP ("NuStar") over a portion of the Aldi Property and Lot 2 (the "Pipeline Easement"). Said Pipeline Easement is in full force and effect. In order to accommodate Aldi's development plans as contemplated herein, Ocello is entering into an Encroachment Agreement with NuStar wherein NuStar consents to Ocello encroaching on the Pipeline Easement pursuant to the terms and conditions set forth therein. A copy of the Encroachment Agreement is attached hereto as Exhibit F. From and after the date that Aldi acquires fee title to the Aldi Property, Aldi will succeed to the rights and obligations of Ocello as contained in the Encroachment Agreement in so far as it relates to the Aldi Property, and Aldi agrees to be bound by the terms of said Encroachment Agreement to the extent it relates to the Aldi Property. Further, Aldi will indemnify and hold Ocello harmless in regard to the provisions of the Encroachment Agreement to the extent that it relates to the Aldi Property. ARTICLE IV Lien Removal 4.01. Lien Removal. If, as a result of either Party's (the "Contracting Party's") exercise of any of the rights granted to it in this Agreement to enter onto and/or perform work upon the other Party's Property, a lien is filed by any contractor, subcontractor, laborer or materialman, then the Contracting Party shall discharge, bond or otherwise remove each such lien within 30 days following written notice from the other Party_ If the Contracting Party fails to so discharge, bond or otherwise remove any such lien within such period of time, the other Party may do so and the Contracting Party shall reimburse the other Party for the reasonable cost thereof, including, without limitation, reasonable attorney fees incurred in discharging such lien upon demand therefor. ARTICLE V Defaults and Remedies 5.01. Defaults. If any Party (the "Defaulting Party") should fail to observe any of the terms, conditions, restrictions or provisions of, or should fail to perform any of its covenants or obligations under this Agreement within a period of 30 days after the other Party (the "Non -Defaulting Party") has given to the Defaulting Party written notice thereof, then the Defaulting Party shall be in default under this Agreement; provided that if the obligation is of such a nature that the same cannot, with due diligence, be reasonably performed within such 30-day period, then such default shall be deemed to have been cured if the Defaulting Party commences such performance within such 30-day period and thereafter undertakes and proceeds with due diligence to complete the same and does complete the same within a reasonable time. If a default has occurred and is not cured within the time period specified in this Section 5.01, then the Non -Defaulting Party shall have all of the rights and remedies afforded to it by law and also all of the rights and remedies set forth in Section 5.02 hereof (whether or not they are expressly provided by statute or recognized by judicial precedent), any one or more of which may be exercised and enforced independently or concurrently at any time that such default remains uncured, without further notice to the Defaulting Party and without waiving any of the Non-DefaLitirAg 7 1 M1 Party's other rights and remedies, and all of which shall, to the extent applicable, survive the termination of any right granted in this Agreement. The rights set forth in this Article 5 are in addition to those set forth in Section 3.01 above with respect to a Party's failure to perform its construction, maintenance and repair obligations hereunder. 5.02. Remedies. (a) Cure. The non -defaulting Party may cure any default of the defaulting Party under this Agreement; and if the non -defaulting Party should do so, then it shall be entitled to be reimbursed for all reasonable costs and expenses incurred by it in connection therewith, from either the defaulting Party, its contractors, or its insurance carriers. (b) Civil Actions. The non -defaulting Party may sue the defaulting Party for the specific performance of any obligation undertaken by the defaulting Party in this Agreement, for injunctive or other equitable relief, or for damages in any court of competent jurisdiction in order to recover any such amount as may be due and payable to the non - defaulting Party. 5,03. Obstruction Defaults. Notwithstanding anything to the contrary contained in this Agreement, in the event vehicular access to a Property is completely obstructed (each such event, an "Obstruction Default"), the non -defaulting Party may notify the defaulting Party by any means reasonable under the circumstances, including via facsimile or telephone, of the Obstruction Default and demand that the Obstruction Default be remedied. If, after 24 hours after such notice has been provided, the defaulting Party has not remedied the Obstruction Default or commenced to remedy the Obstruction Default and thereafter remedies such Obstruction Default within 24 hours, the non -defaulting Party shall have the right (but not the obligation) to remedy the Obstruction Default (including the right to enter upon the defaulting Party's Property) and shall be reimbursed by the defaulting Party for the reasonable costs for such remedy upon demand. ARTICLE Vi Notices; Notice of Transfer 6.01. Notices. Any notice or other communication required or permitted to be given to a Party under this Agreement shall be in writing and shall be given by one of the following methods to such Party at the address set forth at the end of this Section 6.01: (i) It may be sent by ordinary U.S. mail or by registered or certified U.S. mail, return receipt and postage prepaid, or (ii) it may be delivered in person or by over -night courier, telefacsimile, interconnected computers, or any other means for transmitting a written communication. Any such notice shall be deemed to have been given as follows: (iii) when sent by regular, registered or certified U.S. mail, as of the third business day after it was mailed, and (iv) when sent or delivered by any other means, upon receipt. Either Party may change its address for notice by giving written notice thereof to the other Party. The address of each Party for notice initially is as follows: 8 f `' —G'` Parry's other rights and remedies, and all of which shall, to the extent applicable, survive the termination of any right granted in this Agreement. The rights set forth in this Article 5 are in addition to those set forth in Section 3.01 above with respect to a Parry's failure to perform its construction, maintenance and repair obligations hereunder. 5.02. Remedies. (a) Cure_ The non -defaulting Party may cure any default of the defaulting Party under this Agreement; and if the non -defaulting Party should do so, then it shall be entitled to be reimbursed for all reasonable costs and expenses incurred by it in connection therewith, from either the defaulting Party, its contractors, or its insurance carriers. (b) Civil Actions. The non -defaulting Party may sue the defaulting Party for the specific performance of any obligation undertaken by the defaulting Party in this Agreement, for injunctive or other equitable relief, or for damages in any court of competent jurisdiction in order to recover any such amount as may be due and payable to the non - defaulting Party. 5.03, Obstruction Defaults. Notwithstanding anything to the contrary contained in this Agreement, in the event vehicular access to a Property is completely obstructed (each such event, an "Obstruction Default"), the non -defaulting Party may notify the defaulting Party by any means reasonable under the circumstances, including via facsimile or telephone, of the Obstruction Default and demand that the Obstruction Default be remedied. If, after 24 hours after such notice has been provided, the defaulting Party has not remedied the Obstruction Default or commenced to remedy the Obstruction Default and thereafter remedies such Obstruction Defaultwithin 24 hours, the non -defaulting Party shall have the right (but not the obligation) to remedy the Obstruction Default (including the right to enter upon the defaulting Parry's Property) and shall be reimbursed by the defaulting Party for the reasonable costs for such remedy upon demand. ARTICLE VI Notices: Notice of Transfer 6.01. Notices. Any notice or other communication required or permitted to be given to a Party under this Agreement shall be in writing and shall be given by one of the following methods to such Party at the address set forth at the end of this Section 6,01. (i) It may be sent by ordinary U.S. mail or by registered or certified U.S. mail, return receipt and postage prepaid, or (ii) it may be delivered in person or by over -night courier, telefacsimile, interconnected computers, or any other means for transmitting a written communication. Any such notice shall be deemed to have been given as follows: (iii) when sent by regular, registered or certified U.S. mail, as of the third business day after it was mailed, and (iv) when sent or delivered by any other means, upon receipt. Either Party may change its address for notice by giving written notice thereof to the other Party. The address of each Party for notice initially is as follows: 8 I (a) If intended for Ocello, to: Ocello, LLC Attn: Shawn P. Weinand 4065 Chelsea Road W Monticello, MN 55021 Fax #: (763) 271-8650 Email shawnweinand@gmail.com With a copy to; Gries & Lenhardt, P_L.L.P Attn: John R. Gries 12725 43rd Street NE, Suite 201 St. Michael, MN 55376 Fax #: (763) 497-3639 Email: johng@grieslenhardt.com (b) If intended for Aldi, to: Aid! Inc. (Minnesota) Attn: Andrew Mack, Director of Real Estate 4201 Bagley Ave. N Faribault, MN 55021 Fax #: (507) 333-9475 With a copy to: Kayne Law Group 612 Park Street, Suite 200 Columbus, Ohio 43215 Attn: Patricia P. Powers, Esq. Fax #: (614) 559-6768 6.02. Notice of Conveyance. If a Party should convey its Property to another Person, it shall immediately notify the other Party(s) of such conveyance in the manner provided in Section 6.01 hereof. Such notice shall contain the name of the grantee and the address of such grantee for purposes of receiving notices hereunder. If a Party fails to notify the other(s) of a conveyance of its Property, or fails to include the address of the grantee in a conveyance notice, the other parties may send notices hereunder to such grantee, at the tax mailing address listed for such grantee on the books of the County Treasurer in which the grantee resides, until such time as the grantee has notified the other Party of a different notice address in the manner provided in Section 6.01 hereof. ARTICLE VII Miscellaneous Provisions 9 r�� (a) If intended for Ocello, to: Ocello, LLC Attn: Shawn P. Weinand 4065 Chelsea Road W Monticello, MN 55021 Fax #: (763) 271-8650 Email: shawnweinand@gmaii.com With a copy to: Gries & Len hardt, P.L.L.P Attn: John R. Gries 12725 431d Street NE, Suite 201 St. Michael, MN 55376 Fax #: (763) 497-3639 Email: johng@griesienhardt.com (b) If intended for Aldi, to: Aldi Inc. (Minnesota) Attn: Andrew Mack, Director of Real Estate 4201 Bagley Ave. N Faribault, MN 55021 Fax #: (507) 333-9475 With a copy to: Kayne Law Group 612 Park Street, Suite 200 Columbus, Ohio 43215 Attn: Patricia P. Powers, Esq. Fax #: (614) 559-6768 6.02. Notice of Conveyance. If a Party should convey its Property to another Person, it shall immediately notify the other Party(s) of such conveyance in the manner provided in Section 6.01 hereof. Such notice shall contain the name of the grantee and the address of such grantee for purposes of receiving notices hereunder. If a Party fails to notify the other(s) of a conveyance of its Property, or fails to include the address of the grantee in a conveyance notice, the other parties may send notioes hereunder to such grantee, at the tax mailing address listed for such grantee on the books of the County Treasurer in which the grantee resides, until such time as the grantee has notified the other Party of a different notice address in the manner provided in Section 6.01 hereof. ARTICLE VII Miscellaneous Provisions 9 ML 7.01. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the respective successors and assigns (including successive, as well as immediate, successors and assigns) of the Parties. 7.02. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. 7.03. Restoration. If, as a result of the exercise of any easement rights created under this Agreement, a Party shall damage or disturb the improvements of another Party, the Party causing such damage ordisturbance shall promptly repair or restore the Property of such other Party to, as near as possible, the condition existing prior to such damage or disturbance. 7.04. Duplicate Originals. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be a duplicate original, but all of which, taken together, shall constitute a single instrument. 7.05. Article and Section Captions. The Article and Section captions contained in this Agreement are included only for convenience of reference and do not define, limit, explain or modify this Agreement or its interpretation, construction ormeaning and are in no way to be construed as a part of this Agreement. 7.06. Severabilit . if any provision of this Agreement or the application of any provision to any Person or any circumstance shall be determined to be invalid or unenforceable, then such determination shall not affect any other provision of this Agreement or the application of said provision to any other Person or circumstance, all of which other provision shall remain in full force and effect. 7.07. Amendments in Writing. No change, amendment, termination or attempted waiver of any of the provisions of this Agreement shall be binding upon any Party unless in writing and signed by both of the parties hereto. 7.08. Agreement for Exclusive Benefit of Parties. The provisions of this Agreement are for the exclusive benefit of the parties hereto and not for the benefit of any other Person, nor shall this Agreement be deemed to have conferred any rights, express or implied, upon any third Person. 7.09. No Partnership, Joint Venture or Principal -Agency Relationship. Neither anything contained in this Agreement nor any acts of the parties hereto shall be deemed or construed by the parties hereto, or any of them, or by any third Person, to create the relationship of principal and agent, or of partnership, or of joint venture, or of any association between the parties to this Agreement. 10 ��/ 7.01. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the respective successors and assigns (including successive, as well as immediate, successors and assigns) of the Parties. 7.02. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. 7.03. Restoration. If, as a result of the exercise of any easement rights created under this Agreement, a Partyshall damage or disturb the improvements of another Party, the Party causing such damage or disturbance shall promptly repair or restore the Property of such other Party to, as near as possible, the condition existing prior to such damage or disturbance. 7.04. Duplicate Originals. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be a duplicate original, but all of which, taken together, shall constitute a single instrument. 7.05. Article and Section Captions. The Article and Section captions contained in this Agreement are included only for convenience of reference and do not define, limit, explain or modify this Agreement or its interpretation, construction or meaning and are in no way to be construed as a part of this Agreement. 7.06. Severability. If any provision of this Agreement or the application of any provision to any Person or any circumstance shall be determined to be invalid or unenforceable, then such determination shall not affect any other provision of this Agreement or the application of said provision to any other Person or circumstance, all of which other provision shall remain in full force and effect. 7.07. Amendments in Writing, No change, amendment, termination or attempted waiver of any of the provisions of this Agreement shall be binding upon any Party unless in writing and signed by both of the parties hereto. 7.08. Agreement for Exclusive Benefit of Parties. The provisions of this Agreement are for the exclusive benefit of the parties hereto and not for the benefit of any other Person, nor shall this Agreement be deemed to have conferred any rights, express or implied, upon any third Person. 7.09_ No Partnership, Joint Venture or Principal -Agency Relationship. Neither anything contained in this Agreement nor any acts of the parties hereto shall be deemed or construed by the parties hereto, or any of them, or by any third Person, to create the relationship of principal and agent, or of partnership, or of joint venture, or of any association between the parties to this Agreement. 10 fL 7.1 fl. Reasonableness of Consent or Approval. Whenever a Party is entitled to exercise some right under this Agreement, only with the prior consent or approval of another Party, such consent or approval shall not be unreasonably withheld or delayed. 7.11. Covenants Run With the Land. It is intended that the covenants, easements, agreements, promises and duties of each Party, as set forth in this Agreement, shall be construed as covenants and not as conditions and that all such covenants shall run with and be enforceable against both the covenantor and the land or constitute equitable servitudes as between the Property of the respective covenantor, as the servient tenement, and the Property of the respective covenantee, as the dominant tenement. Any owner of a Property which is the subject hereof may grant the benefit of, or allow the use of, any right, easement or interest hereunder to any Permittee of any owner from time to time; provided that any such Permittee shall look solely to its permittor, in each case, for the enforcement of the provision of this Agreement. 7.12. No Merger. All of the provisions of this Agreement are forthe mutual benefit and protection of the present and all future owners of the Properties; and if there should at any time be common ownership of any of the Properties, or any estate therein then it is the intention of the parties hereto that there be no merger into the respective fee simple estates of the rights and benefits and the obligations and burdens of this Agreement, but rather that such rights and benefits and such obligations and burdens shall be separately preserved for the benefit of all future owners of the fee simple estates in the Properties. 7.13. No Dedication. Nothing in this Agreement shall be deemed to constitute a gift, grant or dedication of any portion of the Aldi Property or the Ocelio Property to the general public or for any public purpose; provided that the parties hereto shall have the right to extend the benefit of any of the easements granted herein to any governmental unit, public body and/or utility company for the purpose of the construction, installation, operation, maintenance, repair, relocation, modification, extension or alteration of utility lines and related facilities, but such grant shall be subject to the terms and conditions hereof. 7.14. Termination of Liability Upon Transfer. If the owner of a Property should transfer its fee simple interest in and ownership of such Property, then the liability of the transferor for the breach of any covenant or provision contained in this Agreement, occurring after the date of such transfer, shall automatically be terminated; and the transferee, by the acceptance of the conveyance of such fee simple interest, shall automatically be deemed to have accepted, assumed and agreed to observe or perform such covenant or provision after the date of such transfer. 7.15. Definition of Certain Terms. As used in this Agreement, the term "Person" means a corporation, association, partnership, limited liability company, trust, estate, governmental agency or other entity, as well as an individual or natural person, unless the context otherwise requires, and the term "Permittee" means the respective employees, agents, customers, tenants, subtenants, contractors, licensees, guests and invitees of Ocello and Aldi. 7.10. Reasonableness of Consent or Approval. Whenever a Party is entitled to exercise some right under this Agreement, only with the prior consent or approval of another Party, such consent or approval shall not be unreasonably withheld or delayed. 7.11. Covenants Run With the Land. It is intended that the covenants, easements, agreements, promises and duties of each Party, as set forth in this Agreement, shall be construed as covenants and not as conditions and that all such covenants shall run with and be enforceable against both the covenantor and the land or constitute equitable servitudes as between the Property of the respective covenantor, as the servient tenement, and the Property of the respective covenantee, as the dominant tenement. Any owner of a Property which is the subject hereof may grant the benefit of, or allow the use of, any right, easement or interest hereunder to any Permittee of any owner from time to time; provided that any such Permittee shall look solely to its permittor, in each case, for the enforcement of the provision of this Agreement. 7.12. No Merger. All of the provisions of this Agreement are for the mutual benefit and protection of the present and all future owners of the Properties, and if there should at any time be common ownership of any of the Properties, or any estate therein then it is the intention of the parties hereto that there be no merger into the respective fee simple estates of the rights and benefits and the obligations and burdens of this Agreement, but rather that such rights and benefits and such obligations and burdens shall be separately preserved for the benefit of all future owners of the fee simple estates in the Properties. 7.13. No Dedication. Nothing in this Agreement shall be deemed to constitute a gift, grant or dedication of any portion of the Aldi Property or the Ocello Property to the general public or for any public purpose; provided that the parties hereto shall have the right to extend the benefit of any of the easements granted herein to any governmental unit, public body and/or utility company for the purpose of the construction, installation, operation, maintenance, repair, relocation, modification, extension or alteration of utility lines and related facilities, but such grant shall be subject to the terms and conditions hereof. 7.14. Termination of Liability Upon Transfer. If the owner of a Property should transfer its fee simple interest in and ownership of such Property, then the liability of the transferor for the breach of any covenant or provision contained in this Agreement, occurring after the date of such transfer, shall automatically be terminated; and the transferee, by the acceptance of the conveyance of such fee simple interest, shall automatically be deemed to have accepted, assumed and agreed to observe or perform such covenant or provision after the date of such transfer. 7.15. Definition of Certain Terms. As used in this Agreement, the term "Person" means a corporation, association, partnership, limited liability company, trust, estate, governmental agency or other entity, as well as an individual or natural person, unless the context otherwise requires, and the term "Permittee" means the respective employees, agents, customers, tenants, subtenants, contractors, licensees, guests and invitees of Ocello and Aldi. 11 / 7.16. Index of Exhibits. All exhibits referred to in this Agreement are attached hereto and incorporated herein by reference. 12 ' 6r4, 7.16. Index of Exhibits. All exhibits referred to in this Agreement are attached hereto and incorporated herein by reference. 12 ML IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives, to be effective as of the date first above written. SELLER: Ocello, LLC, a Minnesota limited liability company By: awn Weinand Chief Manager STATE OF MINNESOTA SS. COUNTY OF WV', xma CQelr\ a Notary Public for said County and State, do hereby certify that Shawn Weinand personally appeared before me this day and acknowledged that he is Chief Manager of Ocello, LLC, a Minnesota limited liability company, and that by authority duly given and as the act of said limited liability company, the foregoing instrument was signed on behalf of the said limited liability company. WITNESS my hand and notarial seal, this .00 day of bets:bCnO—, 2013 (-Notary Public PrintName: My commission expires: 3l- 15 (NOTARIAL SEAL) ELIZABETHA GIESE k NOTARY PUBLIC. MINNESOTA ;4 Gcmmisssnn Expires Jan, 31, 2015 13 r nK BUYER: Aldi Inc. (Minnesota), a Minnesota corporation Matt Lill Vice President STATE OF MINNESOTA SS. COUNTY OF` ,c-e—� I, re-S, L C-� { , a Notary Public for said County and State, do certify that Matt Lilla personally appeared before me this day and acknowledged that he is Vice President of Aldi Inc. (Minnesota), a Minnesota corporation, and that by authority duly given and as the act of the said corporation, the foregoing instrument was signed on behalf of the said corporation. Witness my hand and notarial seal, this 3 day of , 2943 2--L: k �- Notary Public Print Name: � f—C 0- My Commission Expires: (NOTARIAL SEAL) Theresa L Sierakowski 1 (8 Notary Pubiio. State of Minnesota My Commission Expinri January 31, 2018 14 ML 1 EXHIBIT A Site Plan 15 /�� EXHIBIT A Site Plan 15 EXHIBIT B Aldi Property Legal Description Lot 1, Block 1, Monticello Business Center, Seventh Addition, Wright County, Minnesota 16 /�� EXHIBIT B Aldi Property Legal Description Lot 1, Block 1, Monticello Business Center, Seventh Addition, Wright County, Minnesota 16 /� EXHIBIT C Ocello Property Legal Descri Lion Outlot A, Monticello Business Center, Seventh Addition and Outlot C, Monticello Business Center, Wright County, Minnesota 17 1 EXHIBIT C Ocello Property Legal Description OutlotA, Monticello Business Center, Seventh Addition and Outlot C, Monticello Business Center, Wright County, Minnesota 17 1 ML EXHIBIT D Storm Water Basin and Related Imrvemen s ¢ . . . . ... . - . ! ji( .,,:_ * w-• . ;. � ƒ{ \j \ § � q . §■ � 'C3 •to §■/ ~� s. � e §|■/ �_ § mg. /)IS 18 /e7ev" EXHIBIT D Storm Water Basin and Related Improvements 18 EXHIBIT E Use Restrictions "Outlot A" in this Exhibit shall mean Outlot A, Monticello Business Center, Seventh Addition Wright County, Minnesota. "Outlot C" in this Exhibit shall mean Outlot C, Monticello Business Center, Wright County, Minnesota. Ocello, for itself, its successors and/or assigns, covenants and agrees that it will not lease, rent or sell any portion of the Ocello Property or otherwise permit any portion of the Ocello Property to be used or occupied for the uses set forth below: (a) Outlot A — Retail Grocery Store "Retail Grocery Store" shall mean a supermarket, meat market, grocery store, fruit and vegetable store or stand, frozen or otherwise processed food store and any store where there is 1,000 square feet of grocery items that are sold for off - premises consumption. However, this restriction shall not apply to such stores as, and similar to Target, Costco, Sam's Lowes, Home Depot, Fleet Farm or Menards. "Retail Grocery Store" shall not include a delicatessen, or any restaurant wherein prepared food is sold for on -premises consumption or for "take-out" consumption. Outlot C --- Retail Grocery Store "Retail Grocery Store" shall mean a supermarket, grocery store, fruit and vegetable store or stand, frozen or otherwise processed food store and any store where more than 3,500 square feet (including adjacent aisle space) is used for the sale or display of grocery items. However, this restriction shall not apply to "high -end) concepts like Whole Food's or Byerly's nor shall it apply to such stores as and similar to Target, Costco, Sam's, Lowes, Home Depot, Fleet farm or Menards. "Retail Grocery Store" shall not include a delicatessen or any restaurant wherein prepared food is sold for on -premises consumption or for "take-out" consumption. (b) On Outlot A and Outlot C — a use or operation that is generally considered to be an environmental risk to any portion of the Center or surroundings properties; however continued farming of agricultural crops will be allowed; (c) On Outlot A — a business selling alcoholic beverages for on -premises consumption except for a restaurant with sit down table service as its primary 19 /N EXHIBIT E Use Restrictions "Outlot A" in this Exhibit shall mean Outlot A, Monticello Business Center, Seventh Addition Wright County, Minnesota. "Outlot C" in this Exhibit shall mean Outlot C, Monticello Business Center, Wright County, Minnesota. Ocello, for itself, its successors and/or assigns, covenants and agrees that it will not lease, rent or sell any portion of the Ocello Property or otherwise permit any portion of the Ocello Property to be used or occupied for the uses set forth below: (a) Outlot A — Retail Grocery Store "Retail Grocery Store" shall mean a supermarket, meat market, grocery store, fruit and vegetable store or stand, frozen or otherwise processed food store and any store where there is 1,000 square feet of grocery items that are sold for off - premises consumption. However, this restriction shall not apply to such stores as, and similar to Target, Costco, Sam's Lowes, Home Depot, Fleet Farm or Menards. "Retail Grocery Store" shall not include a delicatessen, or any restaurant wherein prepared food is sold for on -premises consumption or for "take-out" consumption. Outlot C — Retail Grocery Store "Retail Grocery Store" shall mean a supermarket, grocery store, fruit and vegetable store or stand, frozen or otherwise processed food store and any store where more than 3,500 square feet (including adjacent aisle space) is used for the sale or display of grocery items. However, this restriction shall not apply to "high -end) concepts like Whole Food's or Byerly's nor shall it apply to such stores as and similar to Target, Costco, Sam's, Lowes, Home Depot, Fleet farm or Menards. "Retail Grocery Store" shall not include a delicatessen or any restaurant wherein prepared food is sold for on -premises consumption or for "take-out' consumption. (b) On Outlot A and Outlot C — a use or operation that is generally considered to be an environmental risk to any portion of the Center or surroundings properties; however continued farming of agricultural crops will be allowed; (c) On Outlot A — a business selling alcoholic beverages for on -premises consumption except for a restaurant with sit down table service as its primary 19 1ML operation in which the sale of alcoholic beverages does not exceed 50% of its gross sales; (d) On Outlot A — a laundry or dry cleaning establishment, provided, the foregoing restriction shall not include an establishment for dry cleaning drop-off and pick-up only, with no cleaning services being performed at the subject property; (e) On Outlot A and Outlot C --- any establishment which stocks, displays, sells, rents or offers for sale or rent any merchandise or material commonly used or intended for the use with or in consumption of any narcotic, dangerous drug, or other controlled substance (provided that the foregoing is not intended and shall not be construed to prohibit a pharmacy); (f) On any adjacent/contiguous parcel -- a pool or billiard hall, arcade, night club dance club, movie theater or cinema, gym or health club greater than 5,000 square feet, schools or learning centers having more than thirty students at any one time, skating rink or bowling alley; (g) On any adjacent/contiguous parcel — children's play or party center, telemarketing, polling and surveying center, or office use; however the foregoing shall be permitted provided there is sufficient parking to maintain a ratio of 6 spaces per 1,000 square feet of g.l.a; (h) On Outlot A and Outlot C — an abortion clinic; Planned Parenthood; (i) A pet store shall be permitted providing the location of such use is located no less than 250' from the Aldi Premises; 0) On Outlot A — a gasoline station or an auto repair shop unless it is a regional or national brand with multiple locations; (k) On Outlot A and Outlot C — a lot for the sale of used automobiles; (1) On Outlot A and Outlot C — a mobile home park, trailer court (except that this provision shall not prohibit the temporary use of construction trailers during any periods of construction, reconstruction or maintenance) or mobile home sales lot. On Outlot C — living quarters, hotel or apartment building will be allowed; (m)On Outlot A and Outlot C-- off track betting establishment, bingo parlor or any gambling use as a primary use; (n) On Outlot A and Outlot C — a business which would emit or produce noxious fumes, gasses, excessive dust, dirt or loud noises; however Buyer acknowledges Seller is currently using the remainder of the site for agricultural farming and will continue to allow that use; 20 W 1 operation in which the sale of alcoholic beverages does not exceed 50% of its gross sales; (d) On Outlot A — a laundry or dry cleaning establishment, provided, the foregoing restriction shall not include an establishment for dry cleaning drop-off and pick-up only, with no cleaning services being performed at the subject property; (e) On Outlot A and Outlot C — any establishment which stocks, displays, sells, rents or offers for sale or rent any merchandise or material commonly used or intended for the use with or in consumption of any narcotic, dangerous drug, or other controlled substance (provided that the foregoing is not intended and shall not be construed to prohibit a pharmacy); (f) On any adjacent/contiguous parcel — a pool or billiard hall, arcade, night club dance club, movie theater or cinema, gym or health club greater than 5,000 square feet, schools or learning centers having more than thirty students at any one time, skating rink or bowling alley; (g) On any adjacenttcontiguous parcel — children's play or party center, telemarketing, polling and surveying center, or office use; however the foregoing shall be permitted provided there is sufficient parking to maintain a ratio of 6 spaces per 1,000 square feet of g.l.a; (h) On Outlot A and Outlot C — an abortion clinic; Planned Parenthood; (i) A pet store shall be permitted providing the location of such use is located no less than 250' from the Aldi Premises; (j} On Outlot A — a gasoline station or an auto repair shop unless it is a regional or national brand with multiple locations; (k) On Outlot A and Outlot C — a lot for the sale of used automobiles; (1) On Outlot A and Outlot C — a mobile home park, trailer court (except that this provision shall not prohibit the temporary use of construction trailers during any periods of construction, reconstruction or maintenance) or mobile home sales lot. On Outlot C — living quarters, hotel or apartment building will be allowed; (m)On Outlot A and Outlot C— off track betting establishment, bingo parlor or any gambling use as a primary use; (n) On Outlot A and Outlot C — a business which would emit or produce noxious fumes, gasses, excessive dust, dirt or loud noises; however Buyer acknowledges Seller is currently using the remainder of the site far agricultural farming and will continue to allow that use; (o) A distilling, refining, smelting, drilling or mining operation; Farming crops will be allowed on the balance of Outlot A and Outlot C; assembly, manufacturing, industrial will be allowed on Outlot C but not allowed on Outlot A; (p) On Outlot A and Outlot C — a junk yard, stock yard, animal raising operation, a dump or disposal or any operation for the incineration or reduction of garbage or refuse; (q) On an adjacent/contiguous parcel - a pawn shop, a thrift store, consignment shop or "re -sell" shop, a "Good Will" or "Salvation Army" type store, flea market or a store dedicated to the sale of tobacco products; (r) On Outlot A — a mortuary or funeral home; (s) On Outlot A — a church or other place of worship, banquet hall, auditorium or meeting hall; (t) On Outlot A — carnival, amusement park or circus; or (u) On Outlot A and Outlot C — adult book store, an establishment selling or exhibiting pornographic materials or any form of adult entertainment or an operation whose principal use is an exotic dancing and/or massage parlor (provided this restriction shall not prohibit massages in connection with a beauty salon, health club or athletic facility or a national massage chain such as Massage Envy). 21 ,. / ! fY (o) A distilling, refining, smelting, drilling or mining operation; Farming crops will be allowed on the balance of Outlot A and Outlot Q assembly, manufacturing, industrial will be allowed on Outlot C but not allowed on Outlot A; (p) On Outlot A and Outlot C — a junk yard, stock yard, animal raising operation, a dump or disposal or any operation for the incineration or reduction of garbage or refuse; (q) On an adjacenticontiguous parcel — a pawn shop, a thrift store, consignment shop or "re -sell" shop, a "Good Will" or "Salvation Army" type store, flea market or a store dedicated to the sale of tobacco products; (r) On Outlot A — a mortuary or funeral home, (s) On Outlot A — a church or other place of worship, banquet hall, auditorium or meeting halt; (t) On Outlot A — carnival, amusement park or circus; or (u) On Outlot A and Outlot C — adult book store, an establishment selling or exhibiting pornographic materials or any forth of adult entertainment or an operation whose principal use is an exotic dancing and/or massage parlor (provided this restriction shall not prohibit massages in connection with a beauty salon, health club or athletic facility or a national massage chain such as Massage Envy). 21 NTI EXHIBIT F ENCROACMENT AGREEMENT _Drafted by: Denise Skinner Right of Way Agent NuStar Pipeline Operating Partnership L.P. 19003 IH-10 San Antonio, Texas 78257 ENCROACHMENT AGREEMENT STATE OF MINNESOTA COUNTY OF WRIGHT THIS AGREEMENT made and entered into between NuStar Pipeline Operating Partnership L.P., a Delaware limited partnership, whose mailing address is 19003 IH-10, San Antonio, Texas 78257 ("NuStar") and OCELLO, LLC a Minnesota limited liability company, whose mailing address is 4065 Chelsea Road West, Monticello, Minnesota, 55021 ("Owner"). WHEREAS, Pursuant to the transactions set forth on Exhibit A, attached hereto, NuStar is the successor in interest to the Right of Way Conveyance for a pipeline ("Pipeline") granted to Standard Oil Company by Ralph Roscoe Sanborn and Bertha Dorsey Sanborn, his wife on, over and through the following described land situated in Wright County, Minnesota, to -wit: E%Z of the SWY4 and North 10 Acres of SW'/4 and all that part of the NW%a of SW'/4 lying and being East of the Monticello and Buffalo Public Road in Section 14, Township 121 North, Range 25 West; and the Lot designated Lot A of SE'/4 of Section 15, Township 121 North, Range 25 West, according to the Plat by E.B. McCord, dated May 25, 1887, all in 121-25, containing in all 123.43 acres more or less (the "Property"), which Right of Way Conveyance being filed of record in Book 5, of Misc. on Page 579, as Document No. 165753 of the Office of Register of Deeds for Wright County, Minnesota; WHEREAS, the Owner desires to improve the Property with a commercial development; WHEREAS, the commercial development, as proposed, will encroach on NuStar's easement as defined in the Partial Release of Right of Way Conveyance, dated August 25, 1982 and recorded on 22 /V EXHIBIT F ENCROACMENT AGREEMENT Drafted bv: Denise Skinner Right of Way Agent NuStar Pipeline Operating Partnership L.P. 19003 IH-10 San Antonio, Texas 78257 ENCROACHMENT AGREEMENT STATE OF MINNESOTA COUNTY OF WRIGHT THIS AGREEMENT made and entered into between NuStar Pipeline Operating Partnership L.P., a Delaware limited partnership, whose mailing address is 19003 IH-10, San Antonio, Texas 78257 ("NuStar") and OCELLO, LLC a Minnesota limited liability company, whose mailing address is 4065 Chelsea Road West, Monticello, Minnesota, 35021 ("Owner"). WHEREAS, Pursuant to the transactions set forth on Exhibit A, attached hereto, NuStar is the successor in interest to the Right of Way Conveyance for a pipeline ("Pipeline") granted to Standard Oil Company by Ralph Roscoe Sanborn and Bertha Dorsey Sanborn, his wife on, over and through the following described land situated in Wright County, Minnesota, to -wit: E%2 of the SW'/4 and North 10 Acres of SWY4 and all that part of the NW'/4 of SW'/4 lying and being East of the Monticello and Buffalo Public Road in Section 14, Township 121 North, Range 25 West; and the Lot designated Lot A of SE'/4 of Section 15, Township 121 North, Range 25 West, according to the Plat by E.B. McCord, dated May 25, 1887, all in 121-25, containing in all 123.43 acres more or less (the "Property"), which Right of Way Conveyance being filed of record in Book 5, of Misc. on Page 579, as Document No. 165753 of the Office of Register of Deeds for Wright County, Minnesota; WHEREAS, the Owner desires to improve the Property with a commercial development; WHEREAS, the commercial development, as proposed, will encroach on NuStar's easement as defined in the Partial Release of Right of Way Conveyance, dated August 25, 1982 and recorded on R1 22 August 30,1982 as Document 367722 in the Office ofthe CountyRecorder, Wright County, Minnesota (the "Easement"); WHEREAS, NuStar is willing to grant permission for the encroachment of said proposed development plan over its Easement, subject to the following conditions: 1. The permission granted is subject to the existing Easement rights of NuStar. NuStar hereby approves the development plans attached hereto as Exhibit B (the "Development Plans") subject to the terms and conditions contained herein. 2. Owner agrees to construct, maintain, relocate, and remove (to the extent necessary forNuStar to access its Pipeline facilities) any of Owner's improvements within NuStar's Easement at no expense to NuStar. if any such improvements, or portions thereof, need to be removed for NuStar to access its Pipeline facilities, NuStar will contact Owner to arrange for removal. However, in the event of an emergency or similar circumstances, it may be necessary for NuStar to remove any such improvements, or portions thereof. NuStar will not be responsible for any costs or damages associated with said removal, whether by Owner or NuStar. 3. Should the Pipeline need to be lowered, encased or relocated to protect it as a result of Owner's improvements, Owner agrees to reimburse NuStar for the reasonable costs incurred to lower, encase or relocate said Pipeline. NuStar hereby acknowledges and agrees that, provided that Owner's improvements conform to the Development Plans, the Pipeline does not need to be lowered, encased or relocated. 4. Parking lots and driveways must have a minimum of five (5) feet of cover over the Pipeline. All driveways must cross the Pipeline as close to ninety (90) degree angle as possible and may not parallel the Pipeline within the Easement. 5. No cover shall be removed from over the Pipeline or the Easement area. 6. There shall be no fences, obstructions, buildings, engineering works or other structures constructed or permitted to be constructed within NuStar's Easement, other than as may be set forth in the Development Plans. All utility crossings, with the exception of service laterals, must be installed below NuStar's Pipeline, with a minimum of 24 inch (24") separation below the bottom of NuStar's pipeline and the top of the utility. All utilities (except sewer and water mains) must be placed in a steel casing, which must extend a minimum often (10) feet either side of the Pipeline. Utilitylines must cross the Pipeline at an angle of not less than forty-five degrees (45°). No utility may be installed parallel to the Pipeline or within NuStar's Easement. 8. NuStar must approve landscaping within the Easement. No trees may be planted within ten (10) feet of the Pipeline, other than as may be set forth in the Development Plans. 9. Owner must notify NuStar in writing at least 48 hours before work commences on or near NuStar's Easement. 23 �6fK August 30,1982 as Document 367722 in the Office ofthe County Recorder, Wright County, Minnesota (the "Easement"); WHEREAS, NuStar is willing to grant permission for the encroachment of said proposed development plan over its Easement, subject to the following conditions: 1. The permission granted is subject to the existing Easement rights of NuStar. NuStar hereby approves the development plans attached hereto as Exhibit B (the "Development Plans") subject to the terms and conditions contained herein. 2. Owner agrees to construct, maintain, relocate, and remove (to the extent necessary forNuStarto access its Pipeline facilities) any of Owner's improvements within NuStar's Easement at no expense to NuStar. If any such improvements, or portions thereof, need to be removed for NuStar to access its Pipeline facilities, NuStar will contact Owner to arrange for removal. However, in the event of an emergency or similar circumstances, it may be necessary for NuStar to remove any such improvements, or portions thereof. NuStar will not be responsible for any costs or damages associated with said removal, whether by Owner or NuStar. 3. Should the Pipeline need to be lowered, encased or relocated to protect it as a result of Owner's improvements, Owner agrees to reimburse NuStar for the reasonable costs incurred to lower, encase or relocate said Pipeline. NuStar hereby acknowledges and agrees that, provided that Owner's improvements conform to the Development Plans, the Pipeline does not need to be lowered, encased or relocated. 4. Parking lots and driveways must have a minimum of five (5) feet of cover over the Pipeline. All driveways must cross the Pipeline as close to ninety (90) degree angle as possible and may not parallel the Pipeline within the Easement. 5. No cover shall be removed from over the Pipeline or the Easement area. 6. There shall be no fences, obstructions, buildings, engineering works or other structures constructed or permitted to be constructed within NuStar's Easement, other than as maybe set forth in the Development Plans. 7. All utility crossings, with the exception of service laterals, must be installed below NuStar's Pipeline, with a minimum of 24 inch (24") separation below the bottom of NuStar's pipeline and the top of the utility. All utilities (except sewer and water mains) must be placed in a steel casing, which must extend a minimum often (10) feet either side of the Pipeline. Utility lines must cross the Pipeline at an angle of not less than forty-five degrees (45). No utility may be installed parallel to the Pipeline or within NuStar's Easement. 8. NuStar must approve landscaping within the Easement. No trees may be planted within ten (10) feet of the Pipeline, other than as may be set forth in the Development Plans. 9. Owner must notify NuStar in writing at least 48 hours before work commences on or near NuStar's Easement. 23 IML 10. No work shall take place without NuStar staff being present at the site at all times of construction over or around the Pipeline. Provided sufficient notice is given pursuant to Section 9, NuStar shall endeavor to have staff present at the site at all times of construction over or around the Pipeline. 11. Owner shall provide plans, surveys and drawings, if NuStar deems necessary. 12. In the event that Owner's improvements materially deviate from the Development Plans, Owner shall provide prompt notice to NuStar, in writing, with a detailed description of the alleged deviation. In the event that Owner does not remedy said deviation within fourteen (14) days of receipt of NuStar's notice, NuStar may revoke this Agreement upon written notice given to Owner. 13. Owner shall at all times comply with the conditions of th is Agreement, the law, and engage in safe operating, excavating activity, with appropriate safety, traffic control, etc. If NuStar incurs or suffers any damage to the Pipeline as a result of Owner's construction, maintenance or operation, Owner shall pay the actual cost incurred by NuStar to repair or replace such Pipeline to NuStar's reasonable standards. All repairs or replacements must be completed within fifteen (15) days of receipt of notice of said damage, provided, however, that if said damage cannot reasonably by repaired within said 15-day period, Owner shall commence said repairs within said 15-day period and thereafter diligently pursue said repairs to completion. 14. To the extent permissible by law, Owner shall release, defend, indemnify and hold NuStar, its parents, subsidiaries and affiliates, and its and their officers, directors, agents, employees, contractors, and its and their successors and assigns, harmless from and against all loss, liability, damage, actions, causes of action, claims, suits, judgments, payments under worker's compensation laws or any plan for employee disability or death benefit, expenses of any kind, fines, lawsuits, liabilities, losses, obligations, and penalties including court costs, defense costs, and settlement costs (including reasonable fees of attorneys, paralegals, experts, court reporters and others), for (1) injury, death, loss or damage of whatever nature to any person, property or business interest, (2) violation of this Agreement, and/or (3) violation of law, in each instance, to the extent caused by, arising from, and/or resulting from, an act or omission of Owner or of Owner's agents, employees, servants, contractors or licensees arising out of Owner's use and occupancy of the Property. 15. The proposed development shall be constructed and maintained to comply with all laws and industry standards. 16. The permission granted herein by NuStar is limited to its interest and authority in the subject land and Owner acknowledges the possible obligation to obtain the required permission from other parties of interest or the Government. NuStar permits this encroachment only to the extent it may do so by law. 24 4K, I 10. No work shall take place without NuStar staff being present at the site at all times of construction over or around the Pipeline. Provided sufficient notice is given pursuant to Section 9, NuStar shall endeavor to have staff' present at the site at all times of construction over or around the Pipeline. I I. Owner shall provide plans, surveys and drawings, if NuStar deems necessary. 12. In the event that Owner's improvements materially deviate from the Development Plans, Owner shall provide prompt notice to NuStar, in writing, with a detailed description of the alleged deviation. In the event that Owner does not remedy said deviation within fourteen (14) days of receipt of NuStar's notice, NuStar may revoke this Agreement upon written notice given to Owner. 13.Owner shall at all times comply with the conditions of this Agreement, the law, and engage in safe operating, excavating activity, with appropriate safety, traffic control, etc. IfNuStar incurs or suffers any damage to the Pipeline as a result of Owner's construction, maintenance or operation, Owner shall pay the actual cost incurred by NuStar to repair or replace such Pipeline to NuStar's reasonable standards. All repairs or replacements must be completed within fifteen (15) days of receipt of notice of said damage, provided, however, that if said damage cannot reasonably by repaired within said 15-day period, Owner shall commence said repairs within said 15-day period and thereafter diligently pursue said repairs to completion. 14. To the extent permissible by law, Owner shall release, defend, indemnify and hold NuStar, its parents, subsidiaries and affiliates, and its and their officers, directors, agents, employees, contractors, and its and their successors and assigns, harmless from and against all loss, liability, damage, actions, causes of action, claims, suits, judgments, payments under worker's compensation laws or any plan for employee disability or death benefit, expenses of any kind, fines, lawsuits, liabilities, losses, obligations, and penalties including court costs, defense costs, and settlement costs (including reasonable fees of attorneys, paralegals, experts, court reporters and others), for (1) injury, death, loss or damage of whatever nature to any person, property or business interest, (2) violation of this Agreement, and/or (3) violation of law, in each instance, to the extent caused by, arising from, and/or resulting from, an act or omission of Owner or of Owner's agents, employees, servants, contractors or licensees arising out of Owner's use and occupancy of the Property. I5. The proposed development shall be constructed and maintained to comply with all laws and industry standards. 16. The permission granted herein by NuStar is limited to its interest and authority in the subject land and Owner acknowledges the possible obligation to obtain the required permission from other parties of interest or the Government. NuStarpermits this encroachment only to the extent it may do so by law. 24° i A .-I 17. The terms, conditions, and provisions contained herein shall be binding upon the parties hereto, their heirs, successions and assigns. 18. Any future encroachment on NuStar right of way which is not addressed herein will require an additional agreement and is not guaranteed to receive permission. 19. This Agreement is specific to the Property and is in no way to be construed as reducing the width of the right of way as defined in the Partial Release of Right of Way Conveyance dated August 25,1982 and recorded on August 30,1982 as Document 367722, Office of the County Recorder, Wright County, Minnesota. Further, this Agreement is not to be construed as a waiver of any rights enjoyed by NuStar regarding its Easement and Pipeline and in no way releases Owner from liabilities imposed by law for working around high-pressure pipelines or other pipeline related facilities. [signatures and acknowledgment contained on next page] 25 1 G, IV 17. The terms, conditions, and provisions contained herein shall be binding upon the parties hereto, their heirs, successions and assigns. 18. Any future encroachment on NuStar right of way which is not addressed herein will require an additional agreement and is not guaranteed to receive permission. 19. This Agreement is specific to the Property and is in no way to be construed as reducing the width of the right of way as defined in the Partial Release of Right of Way Conveyance dated August 25, 1982 and recorded on August 30, 1982 as Document 367722, Office ofthe County Recorder, Wright County, Minnesota. Further, this Agreement is not to be construed as a waiver of any rights enjoyed by NuStar regarding its Easement and Pipeline and in no way releases Owner from liabilities imposed by law for working around high-pressure pipelines or other pipeline related facilities. [signatures and acknowledgment contained on next page] 25 / IL EXECUTED this day of 12043. Owner: Ocello, LLC, a Minnesota limited liability company By: Printed Name: Title: STATE OF MINNESOTA COUNTY OF This instrument was acknowledged before me on this day of , 2013, by , the of OCELLO LLC, a Minnesota limited liability company, on behalf of said limited liability company. Notary Public 26 / 1 L NuStar: NUSTAR PIPELINE OPERATING PARTNERSHIP L.P., a Delaware limited partnership By: NUSTAR PIPELINE COMPANY, LLC, a Delaware limited liability company, its general partner By: Printed Name: Title: STATE OF TEXAS COUNTY OF BEXAR Before me the undersigned Notary Public on this day appeared f the of NUSTAR PIPELINE COMPANY, LLC, a Delaware limited liability corporation, as general partner of NUSTAR PIPELINE OPERATING PARTNERSHIP L.P., a Delaware Iimited partnership, known to be to be the person whose name is subscribed to the foregoing instrument and who acknowledged to me that he executed such instrument for the purposes and consideration herein expressed and as the act of such corporation and limited partnership. Given under my hand and seal of office this day of , 2013. Notary Public in and for the State of Texas 27 f 1 NuStar: NUSTAR PIPELINE OPERATING PARTNERSHIP L.P., a Delaware limited partnership By: NUSTAR PIPELINE COMPANY, LLC, a Delaware limited liability company, its general partner By: Printed Name: STATE OF TEXAS COUNTY OF BEXAR Before me the undersigned Notary Public on this day appeared , the of NUSTAR PIPELINE COMPANY, LLC, a Delaware limited liability corporation, as general partner of NUSTAR PIPELINE OPERATING PARTNERSHIP L.P., a Delaware limited partnership, known to be to be the person whose name is subscribed to the foregoing instrument and who acknowledged to me that he executed such instrument for the purposes and consideration herein expressed and as the act of such corporation and limited partnership. Given under my hand and seal of office this day of , 2013. Notary Public in and for the State of Texas 27 ML EXHIBIT A Easements, and rights incidental thereto, created in Right of Way Conveyance in favor of Standard Oil Company, dated September 7, 1946, recorded September 26, 1946, in Book 5 of Misd., Page 579, as Document No. 165753; assigned to The American Oil Company by Assignment of Rights of Way dated December 31, 1960, recorded January 25, 1961, in Book L of Assignments, Page 185, as Document No. 218140; as amended by Partial Release of Right of Way Conveyance dated August 25, 1982, recorded August 30, 1982, in Book 74 of Satisfactions, Page 484, as Document No. 367722, which easement is apparently as described in Order for Judgment dated November 17, 1995, recorded February 6, 1996, as Document No. 587953; assigned to Tesoro West Coast Company by Assignment dated September 6, 2001, recorded September 30, 2002, as Document No. 809104; assigned to Kaneb Pipe Line Operating Partnership, L.P., by assignment dated December 24, 2002, recorded May 6, 2003, as Document No. 947833; Name changed by merger NuStar Pipeline Operating Partnership L.P. as indicated in Amended Certificate of Limited Partnership from the State of Delaware dated March 20, 2008, and recorded as Document No. A1154664, Office of the Recorder, Wright County, Minnesota on August 23, 2010. 28 f p EXHB31T A Easements, and rights incidental thereto, created in Right of Way Conveyance in favor of Standard Oil Company, dated September 7, 1946, recorded September 26, 1946, in Book 5 of Misd., Page 579, as Document No. 165753; assigned to The American Oil Company by Assignment of Rights of Way dated December 31, 1960, recorded January 25, 1961, in Book L of Assignments, Page 185, as Document No. 218140; as amended by Partial Release of Right of Way Conveyance dated August 25, 1982, recorded August 30, 1982, in Book 74 of Satisfactions, Page 484, as Document No. 367722, which easement is apparently as described in Order for Judgment dated November 17, 1995, recorded February 6, 1996, as Document No. 587953; assigned to Tesoro West Coast Company by Assignment dated September 6, 2001, recorded September 30, 2002, as Document No. 809104; assigned to Kaneb Pipe Line Operating Partnership, L.P., by assignment dated December 24, 2002, recorded May 6, 2003, as Document No. 847833; Name changed by merger NuStar Pipeline Operating Partnership L.P. as indicated in Amended Certificate of Limited Partnership from the State of Delaware dated March 20, 2008, and recorded as Document No. A 1154664, Office of the Recorder, Wright County, Minnesota on August 23, 2010. 28 1 ML EXHIBIT B DEVELOPMENT PLANS (see attached) EXHIBIT B DEVELOPMENT PLANS (see attached) 29 1ML 2C. Public Hearing - Consideration of a Conditional Use Permit for Vehicle Sales, Rental, and Repair for Recreational Vehicles, with Accessory Auto Repair — Minor and Variance for Additional Signage Allowance in the B-3 (Highway Business) District. Applicant: RJ Ryan Construction Prepared by: Northwest Associated I Meeting Date: I Council Date (pending Consultants (NAC) 3/2/21 Commission action): 3/22/21 Additional Analysis by: Community Development Director, Chief Building and Zoning Official, Community & Economic Development Coordinator, Project Engineer ALTERNATIVE ACTIONS Decision 1: Conditional Use Permit 1. Adopt Resolution PC-2021-009 recommending approval of a Conditional Use Permit for vehicle sales and rental, with accessory minor vehicle repair, for Lazy Days RV, based on conditions and findings in said resolution. 2. Adopt Resolution PC-2021-009 recommending approval of a Conditional Use Permit for vehicle sales and rental, with accessory minor vehicle repair, for Lazy Days RV, based on findings to be made by the Planning Commission following the public hearing. 3. Table action on Resolution PC-2021-009, subject to additional information from applicant and/or staff. Decision 2: Variance No action required. The applicant has withdrawn their request for variance. REFERENCE AND BACKGROUND Property: Legal Description: Lot 1, Block 1, Gould Addition 3939 Chelsea Road West Planning Case Number: 2021-005 Request(s): Conditional Use Permit for Vehicle Sales and Rental; Variance for additional pylon sign (variance request withdrawn) 1 Deadline for Decision: April 9, 2021 (60-day deadline) June 8, 2021 (120-day deadline) Land Use Designation: Regional Commercial Zoning Designation: B-3, Highway Business Overlays/Environmental Regulations Applicable: Current Site Uses: The purpose of the "B-3" (Highway Business) district is to provide for limited commercial and service activities and provide for and limit the establishment of motor vehicle oriented or dependent commercial and service activities. &n747 NA Religious Place of Assembly; Automotive Repair Surrounding Land Uses: North: East: South: West: 1-94 Commercial Service Commercial Self Storage (Affordable Storage) Commercial RV Sales (Camping World) 2 Project Description: Lazy Days RV is seeking a Conditional Use Permit to reintroduce vehicle sales and rental to the subject property, replacing the current occupants of the site which include a religious assembly use (Quarry Church) and vehicle repair (Monticello Automotive). The applicants propose to make minor changes to the building to accommodate access to the interior showroom space in the building, and limited changes to the parking and vehicle display areas, primarily pavement markings. The applicants would add a bulk fuel facility for its customers, and a waste dump station as well. The second aspect of the application involves a request to install two pylon signs along the 1-94 frontage, one in each corner of the property. The variance request was formally withdrawn by the applicant. ANALYSIS: Highway Commercial (B-3) land uses are to be located in areas primarily along 1-94 and Trunk Highway 25, and then west along Chelsea Road. Vehicle Sales and Rental facilities are allowed in the B-3 District by Conditional Use Permit, which is the subject of this application. The zoning ordinance applies both general performance standards — applicable to all uses — and specific standards applicable to this conditional use. As with all Conditional Use Permits, there is a presumption that the use is allowed in the zoning district, subject to conditions necessary to mitigate specific aspects of the proposed activity. As can be seen on the zoning map above, there are several vehicle sales facilities in the immediate area. Because this proposal is an existing developed site, with few changes to the site or building, most of the improvements subject to zoning review are in place. The applicant notes in their narrative that few changes are proposed to site improvements, including paved area, building area, landscaping or fencing. With regard to the building, the applicant notes that some changes to showroom doors are planned to accommodate access to the interior of the building by larger recreational vehicles, rather than the passenger vehicles for which the building was originally designed. This alteration is minor, and does not impact its consistency with building materials requirements in the commercial districts. Other alterations include paint color changes and revised wall signage, all within the allowances of the zoning ordinance. Freestanding signage is discussed separately below. The specific zoning regulations related to Vehicle Sales and Rental are listed in the ordinance as follows: Conditional Use Permit Requirements (30) Vehicle Sales or Rental (a) The minimum building size for any vehicle sales or rental use shall comply with the standards in Table 5-3. TABLE S-3: MINIMUM BUILDING SIZE FOR VEHICLE SALES/RENTAL USES Parcd &ze Lot Coverage Percent M - inimurn Building Size Less than 2 acres 5% 2,500 square feet 2 acres to less than 4 acres 7% 10,000 square feet 4 acres to less than 8 acres 9% 20,000 square feet 8 acres or more 9% 40,000 square feet -* Whichever requires the larger building Staff Response: The proposed building, at approximately 48,200 square feet, covers approximately 10.3% of the 10.7 acre lot, complying with the code as adopted. (b) When abutting a residential use, the property shall be screened with an opaque buffer (Table 4-2, Buffer Type "D") in accordance with section 4.1(G) of this ordinance. Staff Response: No residential uses are in the area. (c) All lighting shall be in compliance with Section 4.4 of this ordinance. Staff Response: The applicants are not making any changes to site lighting. The applicant should ensure that existing lighting meets the City's maximum 1.0 foot-candles at all property lines. (d) The outside sales and display area shall be hard surfaced. Staff Response: The entire use area is paved and curbed in accordance with the ordinance. (e) The outside sales and display area does not utilize parking spaces which are required for conformance with this ordinance. Staff Response: The site includes separate customer and employee parking exceeding the ordinance requirements. The parking areas are far in excess of that which would be expected for a facility of this type. In the event that customer or employee parking were in need of additional space, there is extensive area on the site to accommodate such expansion. (f) Vehicular access points shall create a minimum of conflict with through traffic movement and shall be subject to the approval of the Community W Development Department. Staff Response: The plans show a single access point from Chelsea Road. No change is proposed for this location. (g) There is a minimum lot area of twenty-two thousand five hundred (22,500) square feet and minimum lot dimensions of one hundred fifty (150) feet by one hundred thirty (130) feet. Staff Response: The lot area is more than 10 acres and more than 600 feet in width, exceeding the requirements. (h) A drainage system subject to the approval of the Community Development Department shall be installed. Staff Response: No changes are proposed for either drainage or grading. Accessory Uses The applicant proposes to include vehicle service and repair as a part of its sales facility. Both "Automobile Repair -Major" and "Automobile Repair -Minor" are accessory uses allowed by Conditional Use Permit in the B-3 District. The code does not technically distinguish between automobiles and recreational vehicles, however, the proposed use is specific to recreational vehicles, which have a specific licensing classification under state vehicle registration rules. Accessory repair operations are subject to the following requirements: Automobile Repair — Major (a) Door opening to service area garage must not face street frontage. (b) All vehicles being serviced and all vehicle parts must be stored inside or in designated vehicle storage area. (c) Repair of all vehicles shall occur within an enclosed building. (d) Temporary outdoor vehicle storage may be allowed in an outdoor storage area that is no larger than 25 percent of the buildable area of the lot, is located behind the front building line of the principal structure, and is screened with a wooden fence or masonry wall in accordance with Section 4.3, Fences & Walls. (e) The entire site other than that taken up by a building, structure, or plantings shall be surfaced with a material to control dust and drainage which is subject to the approval of the Community Development Department. (f) No conditional use permit shall be granted for an auto repair shop -major located within 300 feet of a residential zone existing at the time the conditional use permit is granted. Automobile Repair -- Minor (a) The use shall be designed to ensure proper functioning of the site as related to vehicle stacking, circulation, and turning movements. (b) Repair of all vehicles shall occur within an enclosed building. Temporary outdoor vehicle storage may be allowed in an outdoor storage area that is no larger than 25 percent of the buildable area of the lot, is located behind the front building line of the principal structure, and is screened with a wooden fence or masonry wall in accordance with Section 4.3, Fences & Walls. (c) Vehicles not being repaired but used as a source of parts shall be prohibited unless fully enclosed within a building or fully screened in accordance with b) above. (d) Vehicles that are repaired and are awaiting removal shall not be stored or parked for more than 30 consecutive days. In cases where a vehicle is abandoned by its lawful owner before or during the repair process, the vehicle may remain on site as long as is necessary after the 30 day period, provided the owner or operator of the establishment demonstrates steps have been taken to remove the vehicle from the premises using the appropriate legal means. The site appears to be able to comply with the terms of these sections — they are primarily operational in nature. With regard to the applicant's request for bulk fuel (propane) and sanitary dump station, the applicants should meet conditions required by the City Engineer and Public Works staff. The site plan submitted by the applicants indicates the general location for each installation. The applicant should verify details of each facility and revise a final site plan with that information. Bulk Fuel Bulk Fuel specifically, is a permitted accessory use in the B-3 District, and is subject to the following requirements: (9) Bulk Fuel Sales & Storage (a) All accessory use bulk fuel storage must be associated with the principal activity on the site. In Industrial Districts, accessory fuel dispensing shall not be available for sale to the public. (b) Accessory use bulk fuel storage tank containers shall be limited to 1000 gallons. (c) Accessory use bulk fuel storage may not be located within the required front yard setback. (d) Accessory use bulk fuels storage facilities shall include 1 shrub landscaping planting per every 10 feet of bulk fuel facility perimeter, planted in accordance with required safety clearances. (e) Accessory use bulk fuel storage shall be setback 10' from all property lines and 20' from any public right of way. (f) Accessory use bulk fuel storage must include a containment structure and bollards for tank protection per applicable fire code or other regulations. (g) Accessory use bulk fuel storage facilities shall comply with all MPCA and State Fire Marshal requirements, all other permit, testing and listing requirements, and all applicable codes and standards such as NFPA 58. (h) Accessory use bulk fuel storage facilities located within the Drinking Water Supply Management Area (DWSMA) must comply with the City Engineer's recommendations for site and containment arrangement. The applicant shall revise their site plan to meet the above requirements for setback and landscaping. The ordinance has no specific standards for the waste dump station accessory use. Sign Variance The applicant has withdrawn their application for sign variance. With the variance withdrawal, it is expected that the applicant will comply with the base code requirements for free-standing and wall signage. The subject site is located in the Freeway Bonus district. The current sign regulations limit sites such as the subject property to two freestanding signs. As opposed to those commercial/industrial properties outside of the Freeway Bonus District, which are limited to one free-standing sign. One of those signs may be a pylon style, and in the Freeway Bonus Sign District, may be up to 32 feet in height and 200 square feet in area. The second sign is required to be a monument style sign of 14 feet in height and 100 square feet in area. The property currently has such a monument sign near the Chelsea Road entrance which, as noted, is not changing in location, size or structure. STAFF RECOMMENDED ACTION City Staff recommends approval of the Conditional Use Permit for Vehicle Sales and Rental, with accessory vehicle repair, subject to the conditions in Exhibit Z and as specified in the resolution for approval. The site is properly zoned and appears to meet the various criteria for CUP consideration of both principal and accessory uses. As the variance request has been withdrawn, no recommendation is applicable to the variance request. SUPPORTING DATA A. Resolution PC-2021-009 B. Aerial Site Image C. Applicant Narrative D. Site Plan E. Building Elevations F. City Engineer's Letter, February 17", 2021 G. Monticello Zoning Ordinance, Code Excerpts EXHIBIT Z Conditional Use Permit for Vehicle Sales and Rental and Accessory Vehicle Repair Lazy Days RV PID: 155184001010 1. The applicant complies with the requirements of the City Engineer in his letter dated February 17th, 2021. 2. The applicant complies with the terms of Section 5.2 (E) 30., Vehicle Sales and Rental. 3. The applicant complies with the operational requirements of Section 5.3 (D) (6) and (7) Automobile Repair — Major and Minor, respectively. 4. The applicant revises their site plan to comply with the terms of Section 5.3 (D) (9), Bulk Fuel Sales and Storage. 5. All prior zoning permits, including Conditional Use Permits for Automotive Service, Public Assembly, Commercial Recreation, and other zoning approvals are hereby extinguished as a part of this Conditional Use Permit approval and the City Clerk shall record such documentation with the County Recorder's Office. 6. Comments and recommendations of other City Staff and City Council. E? CITY OF MONTICELLO WRIGHT COUNTY, MINNESOTA PLANNING COMMISSION RESOLUTION NO. PC-2021-009 RECOMMENDING APPROVAL OF A CONDITIONAL USE PERMIT FOR VEHICLE SALES AND RENTAL, INCLUDING ACCESSORY VEHICLE REPAIR AND BULK FUEL SALES AND STORAGE WHEREAS, the applicant is proposing to establish a recreational vehicle sales and rental use, with accessory vehicle repair and bulk fuel on an existing developed parcel, with a legal description of Lot 1, Block 1, Gould Addition; and WHEREAS, the subject property is zoned B-3, Highway Business, in which the proposed use is allowed through a Conditional Use Permit; and WHEREAS, the proposed use and site improvements, subject to the conditions identified in Exhibit Z of the applicable staff report for March 2, 2021, are consistent with the intent for the Conditional Use requirements and the City's land use objectives for the site; and WHEREAS, the Planning Commission held a public hearing to consider the matter at its regular meeting on March 2,d, 2021 and the applicant and members of the public were provided the opportunity to present information to the Planning Commission; and WHEREAS, the Planning Commission has considered all the comments and the staff report, which are incorporated by reference into the resolution; and WHEREAS, the Planning Commission of the City of Monticello makes the following Findings of Fact in relation to the recommendation of approval: 1. The proposed Conditional Use is consistent with the intent of the Monticello Comprehensive Plan. 2. The proposed use will meet the requirements of the Monticello Zoning Ordinance. 3. The proposed use will not create undue burdens on public systems, including streets and utilities. 4. The proposed use will not create substantial impacts, visual or otherwise, on neighboring land uses. 5. The proposed use is found to be consistent with the proposed and planned land uses in the area. NOW, THEREFORE, BE IT RESOLVED, by the Planning Commission of the City of Monticello, Minnesota that the Planning Commission recommends that the proposed Conditional Use Permit is hereby recommended for approval, with the following conditions: CITY OF MONTICELLO WRIGHT COUNTY, MINNESOTA PLANNING COMMISSION RESOLUTION NO. PC-2021-009 1. The applicant complies with the requirements of the City Engineer in his letter dated February 17th, 2021. 2. The applicant complies with the terms of Section 5.2 (E) 30., Vehicle Sales and Rental. 3. The applicant complies with the operational requirements of Section 5.3 (D) (6) and (7) Automobile Repair — Major and Minor, respectively. 4. The applicant revises their site plan to comply with the terms of Section 5.3 (D) (9), Bulk Fuel Sales and Storage. 5. All prior zoning permits, including Conditional Use Permits for Automotive Service, Public Assembly, Commercial Recreation, and other zoning approvals are hereby extinguished as a part of this Conditional Use Permit approval and the City Clerk shall record such documentation with the County Recorder's Office. 6. Comments and recommendations of other City Staff and City Council. ADOPTED this 211 day of March, 2021, by the Planning Commission of the City of Monticello, Minnesota. MONTICELLO PLANNING COMMISSION By: ATTEST: Paul Konsor, Chair Angela Schumann, Community Development Director 2 1S�Nid o� 0 0 0 0 00 O O 3939 Chelsea Road CUP Narrative About Lazydays RV As an iconic brand in the RV industry, Lazydays, The RV Authority, consistently provides the best RV sales, service, and ownership experience, which is why RVers and their families become Customers for Life. Lazydays continues to add locations at a rapid pace as it executes its geographic expansion strategy that includes both acquisitions and greenfields. Since 1976, Lazydays RV has built a reputation for providing an outstanding customer experience with exceptional service excellence and unparalleled product expertise, along with being a preferred place to rest and recharge with other RVers. By offering the largest selection of RV brands from the nation's leading manufacturers, state-of-the-art service facilities, and thousands of accessories and hard -to -find parts, Lazydays RV provides everything RVers need and want. Lazydays currently operates eleven dealerships in Florida (2), Colorado (2), Arizona (2), Minnesota (1), Tennessee (2), and Indiana (2); and operates a dedicated Service Center location near Houston, Texas. It recently announced its intent to add a second dealership location in Minnesota and acquire Sprad's RV in Reno, Nevada and Chilhowee RV near Knoxville, TN. Lazydays Holdings, Inc. is a publicly listed company on the Nasdaq stock exchange under the ticker "LAZY." Sales Lazydays RV is proposing to sell both new and used RV's at the proposed site at 3939 Chelsea Road West. The site is currently zoned B-3 for cars and small truck vehicle types sales, and we are requesting in this conditional use to have this changed for Recreational Vehicles. Please note there are no plans to alter existing site lighting, landscaping, or fencing from its current condition. Service Lazydays RV is proposing to service both new and used RV's at the proposed site at 3939 Chelsea Road West. The site is currently zoned B-3 for cars and small truck vehicle types service, and we are requesting in this conditional use to have this changed for Recreational Vehicles. Please note there are no plans to alter existing site lighting, landscaping, or fencing from its current condition. 3939 Chelsea Road Variance Narrative We noticed that the city code permits (2) pylon signs for buildings with double frontage lots, which we feel would fit into that category, as we have Chelsea Road and Hwy 94. However, in lieu of (2) 14' tall signs, with 100 square foot signage each, we are requesting to have (2) 32' tall signs with 200 square foot signage along the highway in the proposed locations shown on the site plan. We are requesting this to maximize the signage that can be viewed from the highway, as we feel like this would be the best way to advertise to, and perhaps solicit, potential customers. The philosophy to maximize on highway visible signage has been an extremely successful marketing tool for us at our other dealerships across the country and we want to see that get implemented at this new dealership in Monticello as well. 32 feet allows for good visibility off the adjacent Highway 94, and we feel that 14' is simply too short. We would also be open to exploring the use of (1) 40'-50' tall pylon sign in lieu of (1) 32' tall pylon sign. There is an existing monument sign on the south end of the site, adjacent to the entry off of Chelsea Road. We are planning to keep this sign in place, and would change the cabinet to match the existing and feature the Lazydays logo. C 6 N W Z z Z❑ KH KH❑ ul OO.OHW_ Q�U 20UWQWQ3 zaaz a° Zz Z ww o� aoowoz s 2aaa J dOJ N 2❑z 10Ja iJ90 J LL Z O ` r Q tU O J W Z �Q woz two Q CO J 0LLI =U o }UPZ N Nrnz co 0 o J co o Z Z 0 N LUQ o R i N W / � WQ ww Z / ao J 3 U) C) ------------ . ------ d� (L i ) 0 Z p , QQ gg 1p a i o z LLI Z Z W 0 Zrn goo do gag ago ego 999 O F- LU zo >Q woz }wo Q CO J �LLI o =U } U PZ N N6,z co 0 o J co o \� CITY OF Montice o February 17, 2021 Re: Lazy Days RV City Project # 2021-005 OFFICE:763-295-2711 FAX:763-295-4404 505 Walnut Street Suite 11 Monticello, MN 55362 The Engineering Department has reviewed the site plan dated 2/8/21 as prepared Pope Architects and offers the following comments: General Comments 1. Please provide construction details for the sanitary dump station. 2. Please provide construction details for the propane fill station. 3. The Sanitary dump station will require a SAC unit charge as determined by the building department. 4. Provide parking count and ADA stall count for ADA compliance. 5. If changes are proposed to the site access, please provide plan sheet for review. The City is not responsible for errors and omissions on the submitted plans. The owner, developer, and engineer of record are fully responsible for changes or modifications required during construction to meet the City's standards. Please have the applicant provide a written response addressing the comments above. Please contact the Engineering Department with any questions. Sincerely, Ryan Melhouse Project Engineer www.ci.monticello.mn.us CHAPTERS: USE STANDARDS Section S. I Use Table Subsection (A) Explanation of Use Table Structure 5- 1: USES BY DISTRICT (cont.) Use Types Base Zoning Districts ConditionallyRequirements AdditionalTABLE Permitted • Retail Commercial Uses (other) Buildings Less P P P 5.2(E)(27) than 10,000 SF Retail Commercial Uses (other) Buildings Over C P P 5.2(E)(27) 10,000 SF Specialty Eating C P P P 5.2(E)(28) Establishments Vehicle Fuel Sales C C C 5.2(E�(29) Vehicle Sales and Rental C 5.2(E)Q0) Veterinary Facilities C 5.2(E)(31) (Rural) Veterinary Facilities C C C 5.2(E)(31) (Neighborhood) Wholesale Sales P P P None Industrial Uses Auto Repair — Major C P P 5.2(F)(I ) Bulk Fuel Sales and P P 5.2(F 2 Storage Contractor's Yard, I 1 1 5.2(F)(4) Temporary Extraction of Materials I I I 5.2(F)(5) General Warehousing C P P 5.2(F)(6) Heavy Manufacturing C 5.2(F)(7) Industrial Services C P None Industrial Self -Storage C C 5.2(F)(8) Facilities Land Reclamation C C C C C C C C C C C C C C C 5.2(F)(9) Light Manufacturing P P P 5.2(F)(10) Machinery/Truck Repair P P 5'2(F)(I &Sales Recycling and Salvage C C 5.2(F)(14) Center Truck or Freight C C 5.2(F) 15) Terminal Waste Disposal & C 5.2(F)(16) I Incineration Wrecker Services C P 5.2(F)(17) City of Monticello Zoning Ordinance Page 359 CHAPTERS: USE STANDARDS Section 5.3 Accessory Use Standards Subsection (C) Table of Permitted Accessory Uses (3) Table of Permitted Accessory Uses and Structures Base Zoning Districts • .. Building — P P P P P P p p p p P P P P P P minorsory 5.3 D I (__) ( 1 Building — P P p p p p P C P P P P P P P P majorsory 5 3(D)(21 Adult Use — accessory C 5.3(D Agricultural Buildings P 5.3(D)(4) Air Conditioning Units P P P P P P P P P P P P P P P P 4-1 I) Automated Teller P P P P P P P P Machines (ATMs) 5.3(D)(5) Automobile Repair — C Major I I I 5.31D)(6l Automobile Repair — C C Minor 5.3Q 71 Boarder(s) P P P 5.3(D)(81 Bulk Fuel Sales/Storage P P P C C C 5.3Qp 9 Cocktail Room (Retail Sales Accessory to Micro- C C C C C C Distillery) 5.3Q 10 Co -located Wireless Telecommunications C C C C C C C C C C C C C C C C Antennae 4.13(El Columbarium (Accessory P P P P P P P use to Cemeteries) 5.3(D)(I 1) Commercial Canopies P P P P P P P P 5.3(D)(12) Commercial Transmission/ Reception Antennae/ C C C C C C Structures 4. I�Q� Donation Drop-off P P Containers 5.3�D�(13) Drive -Through Services P P P C P P P 5.3Q"14 Entertainment/Recreation C C C C 5.3(D)(15) — Outdoor Commercial Fences or Walls P P P P p P P P P P P P P P P P 4.3 Greenhouse/Conservatory P P P P P P P P P P P P P P P P 5.3(D)(16) (non-commercial) Heliports C C C C C 5.3(D�(l 7) Home Occupations P P P P P P P P P P 5.3(D)(18 Indoor Food / P P P P P P P P 5.3(D)(19) Convenience Sales Page 412 City of Monticello Zoning Ordinance 2D. Public Hearing- Consideration of a request Consideration of a Preliminary and Final Plat for Spaeth Second Addition and an Amendment to Planned Unit Development for the Spaeth Industrial Planned Unit Development. Applicant: Ken Spaeth, Spaeth Development Prepared by: Northwest Associated Meeting Date: Council Date (pending Consultants (NAC) Commission action): 3/2/21 3/22/21 Additional Analysis by: Community Development Director, Chief Building and Zoning Official, Community & Economic Development Coordinator, Project Engineer ALTERNATIVE ACTIONS 1. Adopt Resolution PC-2021-010 recommending approval of an amendment to a Planned Unit Development allowing individual lot subdivisions of private and common property within the Spaeth Industrial Park PUD District and a Preliminary and Final Plat replatting Lot 8 into three separate parcels, based on conditions and findings in said resolution. 2. Deny adoption of Resolution PC-2021-010 recommending approval of an amendment to a Planned Unit Development allowing individual lot subdivisions of private and common property within the Spaeth Industrial Park PUD District and a Preliminary and Final Plat replatting Lot 8 into three separate parcels, based on findings to be made by the Planning Commission. 3. Table action on Resolution PC-2021-010, subject to additional information from applicant and/or staff. REFERENCE AND BACKGROUND Property: Legal Descriptions: Spaeth Industrial Park, Lot 8, Block 1 (Plat) Spaeth Industrial Park (PUD) PID:155255001080,155255001070,155255001060, 155255001050,155255001040,155255001030,155255001020, 155255001010 Planning Case Number: 2021-006 Request(s): Amendment to PUD; Preliminary and Final Plat Deadline for Decision: April 13, 2021 (60-day deadline) June 12, 2021 (120-day deadline) Land Use Designation: General Industrial Zoning Designation: The site is zoned Spaeth Industrial Park PUD. Overlays/Environmental Regulations Applicable: Current Site Uses: The aerial photo below shows the subject parcel within the Spaeth Industrial Park (highlighted in yellow). NA Partially developed industrial Surrounding Land Uses: North: Heavy Industrial East: Heavy Industrial 2 South: Residential Townhouses (R-2, PUD) West: Heavy Industrial Project Description: The project is intended to subdivide a single existing platted lot and existing building within that lot into three parcels. This subdivision will allow individual unit owners to own a share of the building and what is otherwise common property, rather than leasing space or owning a "condo" share of a building unit only. Background: The project was originally approved in 2017 and required a PUD to allow for common ownership of the lot, circulation, and parking areas in the Industrial Park project. The concept was designed to allow individual ownership of lots within the Park, with common access and shared responsibility for land and building exteriors among the 8 platted lots. The proposed amendment and plat would incorporate the ability for individual unit owners to also own the real estate on which their individual building unit sits. This restructures the ownership relationships in the Industrial Park, necessitating changes to the restrictive covenants and other requirements. No change to the PUD approved land uses or configuration/design of buildings or other improvements is anticipated under this amendment. ANALYSIS: Preliminary and Final Plat At this time, the applicant is seeking to subdivide only Lot 8. The subdivision would create three lots from the existing single lot and common walls within the existing building between the three units on Lot 8. The proposed subdivision will be internal to a single lot and creates common, or party walls, and therefore the zero lot line condition varies from setback and drainage and utility perimeter easement requirements. The configuration can be accommodated under the PUD zoning in place for the plat and development. The applicant is seeking the plat arrangement as an alternative to a condo plat. In platting, each parcel is separately owned, including the land area, rather than just the building unit itself as in a condominium plat. Lot 8 is a developed lot, with an existing building. Subdivision for ownership of the individual buildings space lots requires that the City Engineer comment on utility services to the building and units/lots. The preliminary and final plat will also be subject to an amendment to the Development Contract and Planned Unit Development for the Spaeth Industrial Park. Amendment to Planned Unit Development As noted above, the subdivision requires the flexibility of the previously approved planned unit development. To support both this subdivision and the possibility of future subdivisions within the other seven lots, staff has prepared an amendment to the PUD ordinance for the project. The proposed amendment creates an ability to subdivide individual units within the eight proposed buildings and would allow those owners to subdivide separate lots so the owner owns both building and real estate. The applicant's narrative stated that no changes to the development plan for the property, either building or site design and improvements, is proposed, only ownership and lot configuration. The change in ownership options does raise two potential concerns. First, owners of attached units would have independent responsibility for both building and lot maintenance of their individual parcels. Under the original plan, a common owners' association is responsible for all exterior maintenance, including landscaping and parking lot maintenance, as well as exterior building materials. This arrangement can continue, but requires attention to the restrictive covenants, ensuring that each individual unit/lot owner subscribes to the larger association, and its decisions as to continued site and building maintenance, as well as cross access, shared parking, and similar common interests. The second issue relates to the ownership interests of all lot owners, and how those interests relate to the overall site. Under the original plan, each of the 8 lots would have been owned in full interest by a single party, who would also own a share of the common improvements through membership in the association. The buildings could also then be further divided through a condominium plat, with condo unit owners potentially owning a share of the common improvements. With the proposed change, there are now 10 individual owners, changing the real estate interest that each owner would have. Again, it is anticipated that these arrangements can be addressed to ensure continued maintenance and cooperative occupancies of the various units, but it will be important to have City Attorney review and approval of those legal interests to avoid long-term conflicts. To this end, the applicant has rd submitted amended declarations for the city's review, as well as a Grant of Easement document which addresses building and unit water services. While the City has no review authority over a condominium plat, as a PUD, staff would also recommend that should the property owner(s) in the future elect to pursue a condominium plat, the condominium association documents be further subject to the review of the City Attorney. Assuming the legal ownership interests are satisfactorily addressed, the look, use, and operation of the Spaeth Industrial Park should not change from its original intent. The Preliminary and Final Plat will create three new parcels from Lot 7, but each of those owners should remain subject to the physical and operational conditions of the PUD. The City Engineer, Building Official and Fire Department staff will also need to address any necessary changes to building structure and utility access within the overall PUD and plat area. STAFF RECOMMENDED ACTION City staff recommends adoption of Resolution PC-2021-010 for approval of the PUD Amendment and Preliminary and Final Plat, subject to conditions in Exhibit Z. This includes review by the City Attorney related to ongoing responsibilities of owners in the PUD and City Engineer as related to unit services. SUPPORTING DATA A. Resolution PC-2021-010, PUD and Preliminary and Final Plat B. Ordinance Amendment, Spaeth Industrial Park C. Aerial Image D. Applicant Narrative E. Preliminary Plat F. Final Plat G. Exterior Elevations H. Original PUD Site Plans I. Site Utility Plans J. Building Code Compliance K. Spaeth PUD Ordinances L. Monticello Zoning Ordinance, Excerpt M. Declarations Agreement, Draft N. Grant of Easement, Draft Z. Conditions of Approval 9 Conditions for Approval PUD Amendment and Preliminary and Final Plat for Spaeth Industrial Park PUD Second Addition PID: 155255001080 (Plat) and 155255001080, 155255001070, 155255001060, 155255001050, 155255001040, 155255001030, 155255001020, 155255001010 (PUD) The applicant updates the legal instrument executed by the parties reflecting the changes to ownership and common interest for maintenance, access, parking, and similar association requirements, duly approved as to form and manner of execution by the City Attorney, to be filed with the City Administrator and recoded with the County Recorder of Wright County. 2. The amendment to legal documents are recorded against all lots in the PUD and Spaeth Industrial Park, including the three new lots in Spaeth Industrial Park "Second Addition". 3. As a PUD, future condominium association documents are subject to the review of the City Attorney for conformance to PUD requirements. 4. No other changes under this amendment or plat are made as a part of this amendment. 5. Execution of an amendment to the Development Contract and Planned Unit Development for the Spaeth Industrial Park. 6. Compliance with the comments of the City Engineer as related to all site utilities, including those on the proposed Grant of Easement document. 7. Other comments and recommendations of City Staff and City Council. CITY OF MONTICELLO WRIGHT COUNTY, MINNESOTA PLANNING COMMISSION RESOLUTION NO. PC 2021-010 RECOMMENDING APPROVAL OF AN AMENDMENT TO A PLANNED UNIT DEVELOPMENT AND PRELIMINARY PLAT FOR SPAETH INDUSTRIAL PARK WHEREAS, the applicant owns property along Dundas Road, PID No. 15525500-1010, 1020, 1030, 1040, 1050, 1060, 1070, and 1080; and WHEREAS, the applicant proposes to amendment the PUD District approvals to which these lots are subject by authorizing separate ownership of land and buildings; and WHEREAS, the applicant has submitted a request to plat Lot 8 (15525500-1080) property into three such parcels, and develop it with said separate ownership under the PUD; and WHEREAS, the applicant proposes to develop the property for industrial uses, and no changes to development design or common operations would change; and WHEREAS, the site is guided for industrial uses under the label "General Industrial" in the City's Comprehensive Plan; and WHEREAS, the proposed PUD amendment, along with the companion Plat, are consistent with the long-term use and development of the property for industrial uses; and WHEREAS, the Planning Commission held a public hearing on March 2, 2021 on the application and the applicant and members of the public were provided the opportunity to present information to the Planning Commission; and WHEREAS, the Planning Commission has considered all the comments and the staff report, which are incorporated by reference into the resolution; and WHEREAS, the Planning Commission of the City of Monticello makes the following Findings of Fact in relation to the recommendation of approval: 1. The Plat provides an appropriate means of furthering the intent of the Comprehensive Plan for the site by putting the existing and proposed buildings to industrial use. 2. The proposed improvements on the site under the Preliminary Plat are consistent with the needs of the development in this location as an industrial area. 3. The improvements will have expected impacts on public services, including sewer, water, stormwater treatment, and traffic which have been planned to serve the property for the development as proposed. 4.. The PUD flexibility for the project, including parcels without public street frontage, are consistent with the intent of the City's economic development objectives, as well as with the intent of the PUD zoning regulations. CITY OF MONTICELLO WRIGHT COUNTY, MINNESOTA PLANNING COMMISSION RESOLUTION NO. PC 2021-010 NOW, THEREFORE, BE IT RESOLVED, by the Planning Commission of the City of Monticello, Minnesota, that the Planning Commission hereby recommends that the Monticello City Council approves the Preliminary Plat for Spaeth Industrial Park, subject to the conditions listed in Exhibit Z of the staff report as follows: 1. The applicant updates the legal instrument executed by the parties reflecting the changes to ownership and common interest for maintenance, access, parking, and similar association requirements, duly approved as to form and manner of execution by the City Attorney, to be filed with the City Administrator and recoded with the County Recorder of Wright County. 2. The amendment to legal documents are recorded against all lots in the PUD and Spaeth Industrial Park, including the three new lots in Spaeth Industrial Park "Second Addition". 3. As a PUD, future condominium association documents are subject to the review of the City Attorney for conformance to PUD requirements. 4. No other changes under this amendment or plat are made as a part of this amendment. 5. Execution of an amendment to the Development Contract and Planned Unit Development for the Spaeth Industrial Park. 6. Compliance with the comments of the City Engineer as related to all site utilities, including those on the proposed Grant of Easement document. 7. Other comments and recommendations of City Staff and City Council. ADOPTED this 2nd day of March, 2021, by the Planning Commission of the City of Monticello, Minnesota. MONTICELLO PLANNING COMMISSION al ATTEST: Paul Konsor, Chair Angela Schumann, Community Development Director 2 ORDINANCE NO. CITY OF MONTICELLO WRIGHT COUNTY, MINNESOTA AN ORDINANCE AMENDING TITLE 10 OF THE MONTICELLO CITY CODE, KNOWN AS THE ZONING ORDINANCE, SPAETH INDUSTRIAL PARK PUD, PLANNED UNIT DEVELOPMENT: THE CITY COUNCIL OF THE CITY OF MONTICELLO HEREBY ORDAINS: Section 1. Section 3.8 — Planned Unit Developments, Title 10 — Zoning Ordinance is hereby amended by adding the following: (5) Spaeth Industrial Park PUD District (f) Subdivisions within the Spaeth Industrial Park PUD District may occur following the City's Subdivision Ordinance procedures for Preliminary and Final Plat. Subdivisions may create lot lines which result in common wall buildings, and in all cases shall adhere full.. t�quirements of the City's Building Code and other applicable regulations. Any such subdivision shall be accompanied by restrictive covenants or similar instruments that ensure common maintenance of all exterior site and building components of the PUD and an amendment to the Development Contract. Section 2. The City Clerk is hereby directed to mark the official zoning map to reflect this ordinance. The map shall not be republished at this time. Section 3. The City Clerk is hereby directed to make the changes required by this Ordinance as part of the Official Monticello City Code, Title 10, Zoning Ordinance, and to renumber the tables and chapters accordingly as necessary to provide the intended effect of this Ordinance. The City Clerk is further directed to make necessary corrections to any internal citations that result from said renumbering process, provided that such changes retain the purpose and intent of the Zoning Ordinance as has been adopted. Section 4. This Ordinance shall take effect and be in full force from and after its passage and publication. The ordinance in its entirety and map shall be posted on the City website after publication. Copies of the complete Ordinance and map are available online and at Monticello City Hall for examination upon request. ADOPTED BY the Monticello City Council this day of , 2021. ORDINANCE NO. Brian Stumpf, Mayor ATTEST: Rachael Leonard, City Administrator AYES: NAYS: Page 1 of 2 02/ 10/2021 Ken Spaeth 108 Meadowlark Rd. Se. St. Michael, MN 56557 612-889-3100 Project Narrative Spaeth Industrial Park Second Addition We are submitting application and associated items requesting the following: 1) Re -plat of current Lot 8 into 3 lots. 2) Amendment to Spaeth Industrial Park PUD 3) Approve of Amended Declarations to accommodate re -plat 4) Revised building occupancy designation to S-2 Low -hazard Storage. 5) Approval of Grant of Easement to accommodate existing water service. Replat of current Lot 8: Application is submitted for re -plat of current Lot 8, Spaeth Industrial Park, that would subdivide the existing lot into 3 lots. The replat name proposed is Spaeth Industrial Park Second Addition. Preliminary Plat and Final Plat drawings are included as part of the submittal. The purpose of the original Spaeth Industrial Park project was to provide individuals or small companies with a land option where they can own or lease a building that makes it affordable for their business. The goal is to provide a cost- effective option that they can have ownership while keeping their payments to $3,000 - $4,000 per month. The project currently has 8 small lots that will allow them to construct a 4,000-6000 sq. ft. buildings on each lot. A building has been constructed on existing Lot 8 of the project. The building was built in 2020 in accordance with architectural building plans that include party -walls to accommodate multi -tenant occupancy of 3 users. Each tenant space in this building has separate access doors from the exterior. Potential buyers have requested the ability to purchase, as an owner/occupant, the individual tenant spaces. In order to accommodate this request, re -plat is needed that will establish common lot lines through the building on the existing party walls. The re -plat only affects existing Lot 8, no changes to existing Lots 1-7 are proposed. Project Narrative Page 2 of 2 Spaeth Industrial Park Second Addition 02/10/2021 Amendment to Spaeth Industrial Park PUD: In conjunction with the re -plat of Lot 8, we are requesting an Amendment to the Spaeth Industrial Park PUD that was approved by Ordinance No. 722 dated May 28', 2019. No changes are proposed to the PUD conditions regarding intended uses, landscaping, parking, or site plan beyond the proposed plat and lot lines. Approve of Amended Declarations: Recorded Declarations and Covenants are in place for the original 8 lots of the Spaeth Industrial Park plat. In conjunction with the re -plat of Lot 8, the declarations and covenants need to be modified accordingly. A draft copy of Amended Declarations and Covenants are included as part of the submittal. Revise building occupancy designation to S-2 Low -hazard Storage: We are requesting the existing building code occupancy designation be revised to S-2 Low -hazard Storage for the existing building constructed on existing Lot 8. This designation is requested to comply with building code requirements related to property boundary location and party -wall design. The existing building party - wall design was designed and constructed with a 1-hour fire -resistance rating. An architect's opinion letter with code analysis information is included as part of the submittal. Approval of Grant of Easement to accommodate existing water service: The existing building was constructed with a single water service line and shut- off exterior of the building. The single water service line was extended into the center unit of the building (the center unit is proposed re -plat Lot 2). 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Specifically, is this building suited for multiple owners within the same building? Spaeth Development, LLC is marketing these individual condominium units with a "rental" or "purchase" option for one, two or all three units within each building, so this inference supports the "multiple owners" premise. However, marketing is one thing, construction is another. Let's look at the construction of this building in question. Building designer is the Cole Group Architects- St. Cloud, MN. Code Summary lists this building as Groups S-1 & B occupancies, Type V-B with no fire rated assemblies or occupancy separations required, however, common walls between units are listed as Wall Type #4 1-hour fire -resistance rating, allowable area is 9000 square feet per building, total actual building area is 6976 square feet and the building is not sprinkled given its aggregate area is less than 12000 square feet. Also, plans indicate a draft stop centered on the common walls and terminating at the underside of the roof deck. According to 2020 Minnesota Building Code, this building must meet the following provisions: 1) Code allows for the sub -division of a building for a variety of purposes- the end result is a multiple building scenario within a common structure provided the construction of the separating element(s) follows the code; 2) Section 602, Table 602 references Section 706.1.1 for party wall design and construction - a) Code specifically states in Section 706.1.1, exception #2 ... "Fire walls are not required on lot lines dividing a building for ownership purposes where the aggregate height and area of the portions of the building located on both sides of the lot line do not exceed the maximum height and area requirements of this code. For the code official's review and approval, he or she shall be provided with copies of dedicated access easements and contractual agreements that permit the owners of portions of the building located on either side of the lot line access to the other side for purposes of maintaining fire and life safety systems necessary for the operation of the building." SDKArchitects LLC - 5075 Holly Lane North, Unit 7 - Minneapolis, Minnesota 55446 info&LA-architects.com - phone: 763.331.5178 Opinion Letter Civil Engineering and Site Design 108 Dundas Road - Monticello, Mn February 1, 2021 Page 2 b) Section 706.1.1, exception #2 eliminates the need for a fire wall in this case given the total building area of 6976sf is less than the total allowable area of 9000sf; building height requirement remains in compliance, c) Since no fire wall is required, party walls may terminate at the finished ceiling level; d) Spaeth Development, LLC has developed a Declarations of Covenants, Conditions, Easements and Restrictions for the Spaeth Industrial Park development located at 108 Dundas Road and is attached hereto for your consideration. Owner acknowledges further modifications to this document will be required to fully comply with City and Code provisions including signature(s). 3) Section 602 Table 602 requires party walls located on lot lines to be 2 hour fire -resistance rating for S-1 Moderate -hazard storage occupancy. Visual observation of the completed building was limited and no access point was found to gain access to the attic. However, during later discussions, it was revealed a removable interior ceiling metal liner panel was put in place to cover this attic access typical for each individual space. Review of the Contract Documents does not further clarify, so it is presumed the party or common walls separating each unit terminate at the ceiling with draft stops continuing up to the underside of the roof deck. Subsequent discussion with the Structural Engineer of Record, Duffy Engineering of St. Cloud, did confirm these assumptions. With an occupancy designation of S-1 Moderate -hazard storage, Table 602 requires a 2-hour fire -resistance rating for the party walls that would sub -divide this building into smaller units for individual ownership. The common party wall between the units may terminate at the ceiling level as constructed, but this wall must be upgraded to a 2-hour fire -resistance rating. With an occupancy designation of S-2 Low -hazard storage, Table 602 requires a 1-hour fire -resistance rating for the party walls that would sub -divide this building into smaller units for individual ownership. The common party wall between the units may terminate at the ceiling level as constructed. The party walls as currently constructed with 1-hour fire -resistance rating would comply. It is understood the property owner, Spaeth Development LLC, requests City approval that this building be re-classified as S-2 Low -hazard storage occupancy. The owner will convey this information to potential tenants / owners as a prerequisite for their occupancy and use of any spaces of this building. Full code compliance with S-2 Low -hazard storage occupancy will be required. Thank you for this opporhznity to provide you professional services. Contact me with any questions. Sincerely, SDK chiit-eccts LLC en D. Krause Principal SDKArchitects LLC - 5075 Holly Lane North, Unit 7 - Minneapolis, Minnesota 55446 info&LA-architects.com -phone: 763.331.5178 ORDINANCE NO. 672 CITY OF MONTICELLO WRIGHT COUNTY, MINNESOTA AN ORDINANCE AMENDING TITLE 10 OF THE MONTICELLO CITY CODE, KNOWN AS THE ZONING ORDINANCE, BY ESTABLISHING THE SPAETH INDUSTRIAL PARK PUD AS A ZONING DISTRICT IN THE CITY OF MONTICELLO, AND REZONING THE FOLLOWING PROPERTY FROM I-2, HEAVY DISTRICT TO SPAETH INDUSTRIAL PARK PUD, PLANNED UNIT DEVELOPMENT: LOT 2 BLOCK 3, OAKWOOD INDUSTRIAL PARK THE CITY COUNCIL OF THE CITY OF MONTICELLO HEREBY ORDAINS: Section 1. Section 2.4(0) — Planned Unit Developments, Title 10 — Zoning Ordinance is hereby amended by adding the following: (XX) Spaeth Industrial Park PUD District (a) Purpose. The purpose of the Spaeth Industrial Park PUD District is to provide for the development of certain real estate subject to the District for industrial land uses. (b) Permitted Uses. Pennitted principal uses in the Spaeth Industrial Park PUD District shall be indoor industrial uses as found in the I-2, Heavy Industrial District of the Monticello Zoning Ordinance, subject to the approved Final Stage Development Plans dated July 24, 2017, and development agreement dated May 28, 2019, as may be amended. The introduction of any other use from any district, including Conditional Uses in the I-2 District, shall be reviewed under the requirements of the Monticello Zoning Ordinance, Chapter 2, Section (0) — Planned Unit Developments for Development Stage PUD and Final Stage PUD.. (c) Accessory Uses. Accessory uses shall be those commonly accessory and incidental to industrial uses, and as specifically identified by the approved final stage PUD plans, but shall not include outdoor storage or other activities. (d) District Performance Standards. Perfonnance standards for the development of any lot in the Spaeth Industrial Park PUD District shall adhere to the approved final stage PUD plans and development agreement. In such case where any proposed improvement or use is not addressed by the Final Stage PUD, then the regulations of the I-2, Heavy Industrial District shall apply. ORD� NANCE NO. 672 (e) Amendments. Where changes to the PUD are proposed in the manner of use, density, site plan, development layout, building size, mass, or coverage, or any other change, the proposer shall apply for an amendment to the PUD under the terms of the Monticello Zoning Ordinance, Section 2.4 (0)(10). The City may require that substantial changes in overall use of the PUD property be processed as a new project, including a zoning district amendment. Section 2. The zoning map of the City of Monticello is hereby amendment to rezoned the following described parcels from I-2, Heavy Industrial District to Spaeth Industrial Park PUD, Planned Unit Development District: Lot 2, Block 3, Oakwood Industrial Park Addition to Monticello (subject to the replat as Lots 1-8, Block 1, Spaeth Industrial Park). Section 3. The City Clerk is hereby directed to mark the official zoning map to reflect this ordinance. The map shall not be republished at this time. Section 4. The City Clerk is hereby directed to make the changes required by this Ordinance as part of the Official Monticello City Code, Title 10, Zoning Ordinance, and to renumber the tables and chapters accordingly as necessary to provide the intended effect of this Ordinance. The City Clerk is further directed to make necessary corrections to any internal citations that result from said renumbering process, provided that such changes retain the purpose and intent of the Zoning Ordinance as has been adopted. Section 5. This Ordinance shall take effect and be in full force from and after its passage and publication. The ordinance in its entirety and map shall be posted on the City website after publication. Copies of the complete Ordinance and map are available online and at Monticello City Hall for examination upon request. ADOPTED BY the Monticello City Council this 24 h day of July, 2017. Brian Stumpf, Alilyor ATTEST: 07 4;; � �' (5 1 Zt I ems' Jeff , Administrator AYES: Davidson, Fair, Gabler, Hilgart, and Stumpf NAYS: None 2 ORDINANCE NO.722 CITY OF MONTICELLO WRIGHT COUNTY, MINNESOTA AN ORDINANCE AMENDING TITLE 10 OF THE MONTICELLO CITY CODE, KNOWN AS THE ZONING ORDINANCE, BY AMENDING SECTION 2.4(0), THE "SPAETH INDUSTRIAL PARK PUD", A ZONING DISTRICT IN THE CITY OF MONTICELLO, THE CITY COUNCIL OF THE CITY OF MONTICELLO HEREBY ORDAINS: Section 1. Section 2.4(0) (a) — Planned Unit Developments, Title 10 — Zoning Ordinance is hereby amended to read as follows: (a) Permitted Uses. Permitted principal uses in the Spaeth Industrial Park PUD District shall be i. Indoor industrial uses as found in the I-2, Heavy Industrial District of the Monticello Zoning Ordinance, subject to the approved Final Stage Development Plans dated May 29, 2017, and development agreement dated May 29, 2017, as may be amended. ii. The introduction of any other use from any district, including Conditional Uses in the I-2 District, shall be reviewed under the requirements of the Monticello Zoning Ordinance, Chapter 2, Section (0) — Planned Unit Developments for Development Stage PUD and Final Stage PUD. iii. Industrial Self -Storage, as defined by the Monticello Zoning V dinance. Section 2. The City Clerk is hereby directed to make the changes required by this Ordinance as part of the Official Monticello City Code, Title 10, Zoning Ordinance, and to renumber the tables and chapters accordingly as necessary to provide the intended effect of this Ordinance. The City Clerk is further directed to make necessary corrections to any internal citations that result from said renumbering process, provided that such changes retain the purpose and intent of the Zoning Ordinance as has been adopted. Section 3. This Ordinance shall take effect and be in full force from and after its passage and publication. The ordinance in its entirety and map shall be posted on the City website after publication. Copies of the complete Ordinance and map are available online and at Monticello City Hall for examination upon request. ORDINANCE NO. 722 ADOPTED BYthe Monticello City Council this 281" day of May, 2019. Brian Stumpf, May ATTEST: �� L-VZUI-6� J ill, Administrator AYES: Davidson, Fair, Gabler, Hilgart, and Stumpf NAYS: None CHAPTER 3: ZONING DISTRICTS Section 3.4 Residential Base Zoning Districts Subsection (B) Standards Applicable to All Residential Base Zoning Districts (b) Each condominium unit shall have the minimum lot area for the type of housing unit and usable open space as specified in the area and building size regulations of this ordinance. city Code Title 4, Ch 1: (c) Condominiums shall be designed to meet the International Building Code as International adopted in Title 4, Chapter 1 of the Monticello City Code. Building Code Figure 3-2: Zero Lot Line Development vs Condominiums This figure illustrates zero lot line development of four adjacent townhomes. Each dwelling (A, B, C and D) is located on its own unit lot, and all four unit lots are located on one base lot (3) Multi -Story Buildings Comparatively, the figure below shows condominium ownership of the some development Ownership is not defined by a unique lot, but rather a specified space within a building. Applications for a conditional use permit to exceed the maximum heights allowed in Section 3.4 shall be subject to the general CUP review criteria listed in Section 2.4(D)(4)(a) as well as the following: (a) The building shall not cast additional shadow on adjacent residential structures between the hours of 9:00 a.m. and 3:00 p.m. "Additional shadow" shall be defined as any additional shading of a residential structure over and above that which could exist if a proposed building met the maximum height requirement of the underlying zoning district and was sited in a location conforming to all setback requirements. CUP Review Criteria: Section 2.4(D)(4)(a) Page 84 City of Monticello Zoning Ordinance SPAETH INDUSTRIAL PARK FIRST AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS, EASEMENTS AND RESTRICTIONS THIS FIRST AMENDED AND RESTATED DECLARATION is made iff the Gotta „ugh , State of Minnesota, this day of , 20W , 2021, by Spaeth Development, LLC, a Minnesota limited liability company (the "Declarant"` for- the pwTese-of er-eating-Spae*'�tis trial Dar' a+id the Spaeth WHEREAS, Declarant ' filed a Declaration Of covenants, conditions, restrictions, easements and restrictions ("Declaration") with the County Recorder in and for Wright County, Minnesota, on July 9, 2019, as Document No. 1399814 (the "Original Declaration") over that real property legally described i*on Exhibit A, attached hereto, and „o,.'.,, a*t desir-esto stibf it said real propei4t, rd- -a" . emen EeMStftlEted hereen (seneetivel�--__�the "Property" r :a for the purpose of creating a commercial and industrial development (the "Development"), to be owned, occupied and operated for commercial and industrial purposes for the benefit of its Owners and Occupants and for the purpose of preserving the value, the quality, and the character of the Property;; and WHEREAS, the Development is not subject to the Minnesota Common Interest Ownership Act ("MCIOA"), Chapter 515B of the Minnesota Statutes. The AsseeiatieffDevelopment is exempt from MCIOA pursuant to Minn. Stat. §515B.1-102(e)(4) because this planned he Property is limited by this Declaration to non-residential use and Declarant has not elected to subject the Pr-epe4yDevelopment to MCIOA, and WHEREAS, the Property is not subject to an ordinance referred to in §515B.1-106 of MCIOA, governing conversions of common interest ownership,,—; and NOW, THEi AFORE WHEREAS, the Declarant ~~Control Period as defined in the Original Declaration has not expired, and stab its *he the Declarant holds 100% of the Membership Votes in the Association, and WHEREAS, the Declarant desires to amend the Original Declaration pursuant to Section 13 of the Original Declaration, as set forth herein. NOW THEREFORE, the Declarant hereby amends and modifies the Original Declaration by means of this First Amended and Restated Declaration (hereafter, the "Declaration"), which shall constitute the complete Declaration and shall supersede in all respects the provisions of the Original Declaration. The Property subject to this Declaration as shall constitute a commercial and industrial park under the name "Spaeth Industrial Park," consisting of the Lots referred to in Section 2 . This Declaration shall constitute covenants to run with the Property; and that The Property shall be owned, used, occupied and conveyed subject to the covenants, restrictions, easements, charges and liens set forth herein, all of which shall be binding upon all persons owning or acquiring any right, title or interest therein, and their heirs, personal representatives, successors and assigns. SECTION 1 DEFINITIONS The following words when used in the Governing Documents shall have the following meanings (unless the context indicates otherwise): 1.1 1.2 'Attached Lot" means a Lot on which there is a building that is attached to a building on an adjacent Lot. 1.2 "Assessments" means and refer to all assessments levied by the Association pursuant to Section 6 of this Declaration, including annual assessments, special assessments and limited allocation assessments. 1.3 "Association" means the Spaeth Industrial Park Owners' Association, a nonprofit corporation which has been created pursuant to Chapter 317 A of the laws of the State of Minnesota, whose members consist of all Owners. 1.4 "Board" means the Board of Directors of the Association as provided for in the Bylaws. 1.5 "Bylaws" means the Bylaws governing the operation of the Association, as amended from time to time. 1.6 " Cam" means the City of Monticello, a Minnesota municipal corporation. 1.7 "Common Expenses" means and include all expenditures made or liabilities incurred by or on behalf of the Association and incident to its operation, including without limitation 2 Assessments and items otherwise identified as Common Expenses in the Declaration or Bylaws, together with any allocation to reserves. 1.8 "Declarant Control Period" means the time period during which Declarant has the exclusive right to appoint and remove the members of the Board as provided in Section 4 of this Declaration. "1.9 "Detached Lot" means a Lot on which there is a freestanding building 1.10 "General Assessment" means and refers to an Assessment levied against all of the Lots in accordance with Section 6 of this Declaration. 1.4-011 "Governing Documents" means this Declaration, the Articles of Incorporation and Bylaws of the Association and the Rules and Regulations, as amended from time to time, all of which shall govern the use and operation of the Property. 1.4412 "Improvement" means the following: Any physical improvement of any kind, including but not limited to any building, wall, fence, sign, enclosure, screening, utilities system, communication system, irrigation or drainage system, pond, roadway, walkway, parking area, landscaping, or any type of structure of physical improvement and any additions or changes thereto, located on the Property. 1.4-213 "Limited Assessment" means and refers to an Assessment levied by the Association against fewer than all of the lots in the Association pursuant to Section 6 of this Declaration. 4-44 1.14 "Limited Common Elements" means fixtures or Improvements designated to serve one or more, but fewer than all of the Lots, and which may be located partially or wholly outside the Lot's boundaries, such as water lines and sanitary sewer lines. Limited Common Elements are subject to the rights granted to the Association herein or in a separate recorded easement, including the Association's right to improve, inspect, use, repair, replace, maintain and regulate. The Limited Common Elements are further described in Section 2.3, below. 1.15 "Lot" means any platted lot subject to this Declaration and shown on the Platof Spffe�h lndtistria' n^ri, including all improvements thereon. 1.4-416 "Member" means a Person who is a member of the Association by virtue of being an Owner as defined in this Declaration. The words "Owner" and "Member" may be used interchangeably in the Governing Documents. 1.4317 "Occupant" means any Person or Persons, other than an Owner, in possession of or conducting a business on a Lot, including but not limited to tenants and their employees. 1.4-618 "Owner" means a Person, whether one or more persons or entities, who is the record owner of fee simple title to a Lot, but excluding contract for deed vendors, mortgagees and other secured parties and other reversionary interests. 1.4-719 "Person" means a natural individual, corporation, limited liability company, partnership, trustee, or other legal entity capable of holding title to real property. -1-920 "Plat" means the plat of Spaeth Industrial Park, depicting the Property pursuant to the requirements of Minnesota Statutes Chapter 505, as amended ecorded in the office of the County Recorder, Wright County, Minnesota, and mall amendments or supplements thereto Brand replats thereof. 1.4321 "Property" means all the real property submitted to this Declaration including all Improvements located thereon. The Property is legally described in Exhibit A attached hereto. 1.2022 "Reciprocal Easements" means the non-exclusive easements created by this Declaration, which establish non-exclusive easements upon each of the Lots for the benefit of each of the other Lots, Owners, Occupants, Association, employees, customers, vendors and other invitees. 1.2423 "Rules and Regulations" means the Rules and Regulations of the Association as approved from time to time pursuant to Section 5 of this Declaration. 1.2-224 "Special Assessment" means and refers to an Assessment levied against the Lots in accordance with Section 6.3 of this Declaration. SECTION 2 DESCRIPTION OF LOTS AND, BOUNDARIES AND LIMITED COMMON ELEMENTS 2.1 Lots. There are eight (gten 10) Lots. All Lots are restricted exclusively to commercial and industrial use. Each Lot constitutes a separate parcel of real estate. No ..ddit;,. -� and shall be an Attached Lot or a Detached Lot, as defined above. The number of Lots may be increased or decreased by subdivision, combining Lots, or moving boundaries, in accordance with Section 13.3 or 14.6, below. The legal description of the Lots is set forth on Exhibit A, and the locations of the Lots are as shown on the Plat. The Lot identifiers, designation as a Detached Lot or Attached Lot, and allocation of Votes and Common Expense Assessments is set forth on Exhibit F. Upon subdivision of a Lot, or combining Lots, Declarant or other Owner shall file an amended Exhibit A and Exhibit F, reflecting such changes. 2.2 Lot Boundaries. The front, rear and side boundaries of each Lot shall be the boundary lines of each platted Lot as shown on the Plat. The Lots shall have no upper or lower boundaries. Subject to Section 2.3, all spaces, walls, and other improvements within the boundaries of a Lot are a part of the Lot. fl 2.3 Limited Common Elements. Fixtures, Improvements, or components thereof, designated to serve one or more, but fewer than all of the Lots, and which may be located partially or wholly outside such Lot's boundaries, such as chutes, flues, ducts, pipes, wires, conduit or other utility installations, bearing walls, bearing columns, water lines and sanitary sewer lines, shall be considered Limited Common Elements, and shall be reserved for the exclusive use of the Owners of the Lot or Lots they are designed to serve. Limited Common Elements are subject to the rights granted to the Association herein or in a separate recorded easement, including the Association's right to improve, inspect, use, repair, replace, maintain and regulate. It is expected that only the Attached Lots will have Limited Common Elements. SECTION 3 EASEMENTS. 3.1 Grant of Reciprocal Easements. Subject to any express conditions, limitations or reservations contained herein, Declarant hereby declares that the Lots shall be benefited and burdened by the following nonexclusive, perpetual Reciprocal Easements which are hereby imposed upon the Lots: (a) Access Easement. Each Lot shall be subject to and the Association and each Lot shall be the beneficiary of perpetual, appurtenant, non-exclusive easements for reasonable access, ingress and egress over, upon and across all paved surfaces, presently or hereafter constructed, of each Lot, as depicted on Exhibit B attached hereto, including without limitation the private road that runs around the perimeter of the Property (the "Ring Road") to provide for the passage of motor vehicles and pedestrians to and from and across each Lot and to and from all abutting streets or rights of way furnishing access to the Property. Except for authorized maintenance activities, no Person shall construct any Improvement, nor obstruct, dump or store anything on the Ring Road or other paved access areas, nor undertake or permit any activity which may impair the access easement described herein; (b) Shared Parking Easement. Each Lot shall be subject to and the Association and each Lot shall be the beneficiary of perpetual, appurtenant, non-exclusive easements for parking over, upon and across those parts of each Lot which are identified for such purposes as depicted on Exhibit C attached hereto. The shared parking easement is subject to the following qualifications: (i) Handicapped parking spaces as required by applicable law shall be maintained adjacent to each building for the benefit of handicapped persons visiting that building. (ii) Except for authorized maintenance activities no Person shall construct any Improvement, nor obstruct, dump or store anything, on the parking areas, nor undertake or permit any activity, which may impair access to or use of such parking areas. 5 (c) Storm Sewer and Drainage Easements. Each Lot shall be subject to and the Association and each Lot shall be the beneficiary of perpetual, appurtenant, non-exclusive easements for storm sewer and drainage improvements and the maintenance, repair and replacement of said storm sewer and drainage improvements over, upon and across those areas of each Lot which are subject to public drainage and utility easements as shown on the Plat. (d) Storm Water Pond Maintenance Easement. Lots 7 and 8 shall be subject to and the Association and each Lot shall be the beneficiary of a perpetual, appurtenant, non- exclusive easement for storm water pond improvements and the maintenance, repair and replacement thereof, over, upon and across those parts of said Lots 7 and 8 as depicted on Exhibit D attached hereto. (e) Landscape Easement. Each Lot shall be subject to and the Association and each Lot shall be the beneficiary of perpetual, appurtenant, non-exclusive easements for landscape purposes over, upon and across those parts of each Lot which are identified for such purposes as depicted on Exhibit E attached hereto. (f) Maintenance Access Easement. The Property is subject to a perpetual, non- exclusive easement in favor of the Association and its agents for access upon and across the Lots as reasonably necessary for the purpose of performing maintenance, repair and replacement for which the Association is responsible as set forth in this Declaration or any agreement with the City. The easement rights shall be exercised, whenever practicable, upon reasonable notice to any Owner whose Lot is directly affected. (g) Public Safety and Health Easement. In case of emergency, all Lots are subject to an easement for access, without notice and at any time, by an officer or member of the Board, by the Association's management agents or by any public safety personnel. (h) Easement for Encroachments. Each Lot, and the rights of the Owners and Occupants thereof, shall be subject to an exclusive easement for encroachments, in favor of the adjacent Lots, for walls, roof overhangs,utility installations and other appurtenances which are part of the original construction on the adjacent Lot. If there is a building or improvement located on a Lot that encroaches upon another Lot as a result of the construction, reconstruction, repair, shifting, settlement or movement of any part of the Prope . , an appurtenant easement for the encroachment, for the use, enjoyment and occupation of any encroaching building or improvement, and for the maintenance thereof shall exist. Such easements shall continue for as long as the encroachment exists and shall not affect the marketability of title. (i) Utilities Easements. Each Attached Lot shall be subject to a non-exclusive appurtenant easement in favor of the adjacent Lots for the use and enjoyment of water lines and sanitary sewer lines and related equipment connected to such Lot. Each Attached Lot shall also be subject to a non-exclusive easement in favor of the Association and the City to access, monitor, inspect, maintain, repair, improve and replace the water lines and 0 sanitary sewer lines and related equipment. (i) Creation of Additional Easements. While the Declarant is the Owner of at least one Lot, Declarant may, without vote of the members of the Association, cause the Board to execute and deliver such easements or other conveyances for the creation of utilities or other dedications as may be required incident to the development of the Property. The Owners hereby designate the Declarant and/or Association as their lawful attorney -in -fact to execute any instrument on their behalf as may hereafter be required or deemed necessary for the purpose of creating such easement. (k) Emergency Access Easement. For the purpose of performing emergency action to seal a building on an Attached Lot from weather or otherwise to prevent damage or destruction to any structure on an adjacent Attached Lot, the Association through its duly authorized agents or employees, shall have the right to enter any such building at an.. time, without notice, with such persons and material as the Association deems necessary to accomplish such emergencypairs or to take such emergency action. 3.2 Reasonable Use of Easements. The easements herein above granted shall be used and enjoyed by the Owners and the Association, as the case may be, and their invitees in such a manner so as not to unreasonably interfere with, obstruct or delay the conduct and operations of the business of the Owners or Occupants at any time being conducted on the Lots including, without limitation, public access to and from said businesses, and the receipt or delivery of merchandise/inventory in connection therewith. 3.3 Duration, Restrictions and Use. The rights and easements granted or reserved by this Section 3 shall be permanent, shall run with the land, unless otherwise expressly indicated, and shall be subject to the following qualifications: (a) The easements shall supplement and not limit any easements described elsewhere in this Declaration, or in any recorded instrument. (b) The easements shall be subject to reasonable regulation by the Association and shall be subject to such reasonable limitation as to location and routing as may be established by the Association, or any governmental authority. (c) The easements shall include reasonable access over, under and across the Property to maintain, repair, replace and reconstruct the easement areas and any Improvements located thereon. 3.4 No Interference. No Improvement shall be erected or maintained, nor shall excavation, grading or reshaping be undertaken, and no refuse, fill or other material shall be placed in an easement area which may damage or interfere with the installation, use or maintenance of such area, or which may change or impede the flow of water through any drainage easement area. 3.5 Reasonable Care. All Persons exercising easement rights shall (i) take reasonable care to avoid damaging the Property or creating safety hazards; (ii) promptly repair any damage to 7 the Property which they or their employees or agents or invitees caused; (iii) promptly reimburse the Association for all costs incurred by it for repairing damage to an easement area caused by the person exercising the easement rights; and (iv) hold harmless, indemnify and defend the Association and other Owners, and their officers and directors, from and against all claims, damages, losses and other liabilities arising out of the exercise of the easement rights. 3.6 No Benefit to the Public. No grant, dedication or creation of an easement under this Declaration shall constitute a dedication of the easement area or the use thereof to the public, it being the intent of this Declaration that the easement areas be and remain private property subject to the operation, control and regulation by the Association, and that the Lots be and remain private property subject to operation, control or regulation by the respective Owners thereof, and/or the Association, as applicable, all in compliance with the Governing Documents. 3.7 Restriction on Third Party Easement Grants. Except for the Declarant and the exercise of its rights under this Declaration, and the Board, in the exercise of authority granted by the Governing Documents, no Person shall create, grant or convey any easement or comparable rights upon any portion of the Property without the prior written approval of the Board; provided that the Board shall grant such approval if (i) the easement will not adversely affect the Property or any Lot; (ii) the easement will not adversely and materially affect shared parking, ingress and egress rights of the Owners and Occupants under the easements described in this Section 3; and (ii) the easement is consistent with the overall design and plan for the Property as established by the Declarant and approved by the City. Approval by the Board shall not be unreasonably withheld if the easement satisfies the foregoing criteria. SECTION 4 ASSOCIATION MEMBERSHIP RIGHTS AND OBLIGATIONS Membership in the Association, and the allocation to each Lot of a portion of the votes in the Association and a portion of the Common Expenses of the Association shall be governed by the following provisions: 4.1 Membership. Each Owner shall be a member of the Association by virtue of ownership of a Lot, and the membership shall be automatically transferred with the conveyance of the Owner's interest in the Lot. An Owner's membership shall terminate when the Owner's Lot ownership terminates. When more than one Person is an Owner of a Lot, all such Persons shall be members of the Association, but multiple Ownership of a Lot shall not increase the voting rights allocated to such Lot nor authorize the division of the voting rights. 4.2 Voting and Common Expenses. Voting rights mare allocated among the Lots as set forth on Exhibit F. Common Expense obligations are allocated equally among the Lots tMiess *h,,..w ise sta+e' in Ohis Deel r-A* the percentages set forth on Exhibit F. The voting rights and common expense obligations may be reallocated as a result of subdivision or detefmine,a by he combination of Lots, but the total number of votes in the Association shall at all times equal twenty-four (24). The Board may authorize special allocations of Common Expenses to address operational, physical or administrative differences among certain Lots or classes of Lots-, as more specifically described in Section 6. 4.3 Appurtenant Rights and Obligations. The Ownership of a Lot shall include the voting rights and Common Expense obligations described in Section 4.2. Said rights, obligations and interests, and the title to the Lots, shall not be separated or conveyed separately, and any conveyance, encumbrance, judicial sale or other transfer of any allocated interest in a Lot, separate from the title to the Lot shall be void. The allocation of the rights, obligations and interests described in this Section may not be changed, except in accordance with the Governing Documents. 4.4 Authority to Vote. The Owner, or some natural person designated to act as proxy on behalf of the Owner and who need not be an Owner, may cast the vote allocated to such Lot at meetings of the Association. However, if there are multiple Owners of a Lot, only the Owner or other Person designated pursuant to the provisions of the Bylaws may cast such vote. The voting rights of Owners are more fully described in the Bylaws. 4.5 Declarant Control. Notwithstanding the vote of any Owner to the contrary, the Declarant hereby reserves a period of Declarant control of the Association during which the Declarant, or persons designated by the Declarant, may appoint or remove the officers and directors of the Association ("Declarant Control Period"). The Declarant Control Period shall extend from the date of filing of the Declaration until the earlier of the following: 0 (a) The date that Declarant no longer owns any Lot in the Association; or, (b) Voluntary termination of the Declarant Control Period by Declarant. Upon termination of the Declarant Control Period, the Owners shall elect a Board of Directors of at least three (3) individuals. In electing the Board, all Owners may cast the votes allocated to any lot owned by them. The Board shall elect the officers. The directors and officers shall take office upon election. 4.6 Meetings of the Board. Except as otherwise provided herein, meetings of the Board must be open to all Owners. To the extent practicable, the Board shall give reasonable notice to the Owners of the date, time and place of a Board meeting. If the date, time and place of meetings are provided for in this Declaration, the Articles of Incorporation or By -Laws of the Association, were announced at a previous meeting of the Board, posted in a location accessible to the Owners and designated by the Board from time to time, or if an emergency requires immediate consideration of a matter by the Board, notice is not required. "Notice" has the meaning given in Minnesota Statutes, §317A.011, Subd. 14. Nothing in this section imposes a duty upon the Board to provide special facilities for meetings. The failure to give Notice as required by this section shall not invalidate the Board meeting or any action taken at the meeting. SECTION 5 ADMINISTRATION The administration and operation of the Association and the Property, including but not limited to the acts required of the Association, shall be governed by the following provisions: 5.1 General. The operation and administration of the Association and the Property shall be governed by the Governing Documents and the Act. The Association shall, subject to the rights of the Owners set forth in the Governing Documents and the Act, be responsible for the operation, management and control of the Property. The Association shall have all powers described in the Governing Documents and the Act. All power and authority of the Association shall be vested in the Board, unless action or approval by the individual Owners is specifically required by the Governing Documents or the Act. All references to the Association shall mean the Association acting through the Board unless specifically stated to the contrary. 5.2 Operational Purposes. The Association shall operate and manage the Property for the purposes of (i) administering and enforcing the covenants, restrictions, easements, charges and liens set forth in this Declaration and the Governing Documents, (ii) maintaining, repairing and replacing those portions of the Property for which it is responsible and (iii) preserving the value, and the architectural uniformity and character, of the Property. 5.3 Binding Effect of Actions. All agreements and determinations made by the Association in accordance with the powers and voting rights established by the Governing Documents shall be binding upon all Owners and Occupants, and their lessees, guests, heirs, personal representatives, successors and assigns, and all secured parties. 5.4 Bylaws. The Association shall have Bylaws which shall govern the operation and administration of the Association, and shall be binding on all Owners and Occupants. 10 5.5 Management. The Board may delegate to a manager or managing agent the management duties imposed upon the Association's officers and directors by the Governing Documents. However, such delegation shall not relieve the Association officers and directors of the ultimate responsibility for the performance of their duties as prescribed by the Governing Documents and by law. 5.6 Rules and Regulations. The Board shall have exclusive authority to approve and implement such reasonable Rules and Regulations as it deems necessary from time to time for the purpose of operating and administering the affairs of the Association and regulating the use of the Property; provided that the Rules and Regulations shall not be inconsistent with the other Governing Documents or the Act. Each Owner and Occupant shall abide by and comply with the Rules and Regulations. The inclusion in other parts of the Governing Documents of authority to approve Rules and Regulations shall be deemed to be in furtherance, and not in limitation, of the authority granted by this Section. New or amended Rules and Regulations adopted by the Association shall be effective only after reasonable notice thereof has been given to the Owners. 5.7 Association Assets, Surplus Funds. All funds and real or personal property acquired by the Association shall be held and used for the benefit of the Owners for the purposes stated in the Governing Documents. Surplus funds remaining after payment of or provision for Common Expenses and reserves shall be credited against future assessments or added to reserves, as determined by the Board. SECTION 6 ASSESSMENTS 6.1- General. Assessments for Common Expenses shall be determined and assessed against the Lots by the Board, in its discretion, subject to the an d pr-eeedtweslimitations set forth in this Seel o 6Sections 6.2 and 6.3, and the requirements of the Bylaw-sBy-Laws. Assessments for Common Expenses shall include annual ^ s.,,,. sffl l4s „„der Ce assessments and may include SpeeiarAssessments tinder- Section 6.3. ^"""a1 ""'- Speeialspecial assessments. General Assessments shall be allocated among the Lots equal according to the Common Expense allocations set forth on Exhibit F, subject to the following_ qualifications: a. Any Common Expense associated with the Maintenance (as that term is defined in Section 9.1. below) of a Limited Common Element undertaken by the Association shall be assessed exclusively against the Lot or Lots to which that Limited Common Element is assigned or serves, on an equitable basis, which may factor -in the actual cost incurred with respect to each such Lot. b. Anv Common Expense related to Maintenance or other services or benefits provided to one or more, but fewer than all of the Lots, shall be assessed exclusively against the Lot or Lots receiving such Maintenance, service or benefit, on an equitable basis, which may factor -in the actual cost incurred with respect to each such Lot 11 C. The costs of insurance obtained by the Association, if any, may be assessed in proportion to value, risk or coverage. d. Reasonable attorneys' fees and other costs incurred by the Association in connection with (i) the collection of assessments and (ii) the enforcement of the Governing Documents against an Owner or Occupant or their guests, may be assessed against the Owner's Lot. e. Fees, charges, late charges, fines and interest may be assessed for failure to pay assessments when due, as determined by the Board of Directors. f. If any damage to the Common Elements or another Lot is caused by the act or omission of any Owner or Occupant, or their guests, the Association may assess the costs of repairing the damage exclusively against the Owner's Lot to the extent not covered by insurance. 9. If any installment of an assessment becomes more than 30 days past due, then the Association may, upon 10 days written notice to the Owner, declare the entire amount of the assessment immediately due and payable in full. h. If Common Expense liabilities are reallocated for M purpose, Common Expense assessments and any installment thereof not vet due shall be recalculated in accordance with the alleea+ieii fefffmla set fe#h iir-Seetieii 4.2reallocated Common Expense liabilities. i. Assessments under Subsections 6.1 a.-g. shall not be considered special assessments as described in Section 6.3. 6.2 Annual Assessments. Annual Assessments shall be established and levied by the Board, subject to the limitations set forth hereafter. Each annual Assessment shall cover all the anticipated Common Expenses of the Association for that year which are to be shared by all Lots in accordance with the allocation set forth i Seetio 4.2 and E*hi it F ,.*t,,,.he he - te.on Exhibit F. as well as certain Common Expenses subiect to special allocations. as provided in accordance with Section 6.1. Annual Assessments shall be payable in equal monthly installments. Annual Assessments shall provide, among other things, for an adequate reserve fund for the maintenance, repair and replacement of the easements areas and those parts of the Lots for which the Association is responsible. 6.3 Special Assessments. In addition to annual Assessments, and subject to the limitations set forth hereafter, the Board may levy in any assessment year a Special Assessment against all Tots ; aeeer-da-nee ..4 �he allee pie f ,-w,,,. set fei4h ii Seetio 4 2.the Lots. Special assessments shall be used for the purpose of (a) defraying in whole or in part the cost of any unforeseen and unbudgeted Common Expense, (b) reserves for maintenance, repair or replacement and (c) the maintenance, repair or replacement of any part of the Property and any improvements related thereto. 6.4 Working Capital Fund. There shall be established a working capital fund to meet 12 unforeseen expenditures or to purchase additional equipment or services during the Association's beginning years of operation. The Board shall include in each subsequent annual budget a reasonable amount of working capital, based upon the anticipated needs of the Association for the year in question. There shall be contributed on a one-time basis for each Lot sold an amount equal to two (2) months installments of the estimated Common Expense Assessment for the Lot. The contribution shall be paid at the earlier of the time of closing of sale of the Lot or the time of termination of the period of Declarant Control under Section 4. The contributions to this fund are in addition to the regular monthly installments of Assessments. The funds shall be deposited into a segregated Association account no later than the termination of the period of Declarant Control. Declarant may not use the funds to defray any of its expenses, reserve contributions or construction costs, or to make up any budget deficit while Declarant is in control of the Association. However, upon the closing of the sale of an unsold Lot, Declarant may reimburse itself from funds collected from the purchaser at the closing for any contributions made by Declarant to the working capital fund with respect to that Lot. 6.5 Liability of Owners for Assessments. The obligation of an Owner to pay Assessments shall commence at the later of (i) the time at which the Owner acquires title to the Lot, or (ii) the due date of the first Assessment levied by the Board; provided that neither the Declarant nor any unsold Lot owned by Declarant shall be liable for an Assessment, nor subject to any Assessment lien. Subject to the foregoing exemption, the Owner at the time an Assessment is payable with respect to the Lot shall be personally liable for the share of the Common Expenses assessed against such Lot. Such liability shall be joint and several where there are multiple Owners of the Lot. The liability is absolute and unconditional. No Owner is exempt from liability for payment of Assessments by right of set-off, by waiver of use or enjoyment of any part of the Property, by absence from or abandonment of the Lot, by the waiver of any other rights, or by reason of any claim against the Association or its officers, directors or agents, or for their failure to fulfill any duties under the Governing Documents or the Act. The Association may invoke the charges, sanctions and remedies set forth in this Declaration in addition to any remedies provided elsewhere in the Governing Documents or by law for the purpose of enforcing its rights hereunder. 6.6 Assessment Lien. The Association has a lien on a Lot for any Assessment levied against that Lot from the time the Assessment becomes due. If an Assessment is payable in installments, the full amount of the Assessment is a lien from the time the first installment thereof becomes due. Fees, charges, late charges, fines and interest charges imposed by the Association are liens and are enforceable as Assessments, under this Section 6. Recording of the Declaration constitutes record notice and perfection of any lien under this Section 6, and no further recordation of any notice of or claim for the lien is required. The release of the lien shall not release the Owner from personal liability unless agreed to in writing by the Association. 6.7 Foreclosure of Lien, Remedies. A lien for Assessments may be foreclosed against a Lot under the laws of the state of Minnesota (i) by action, or (ii) by advertisement in a like manner as a mortgage containing a power of sale. The Association, or its authorized representative, shall have the power to bid in at the foreclosure sale and to acquire, hold, lease, mortgage and convey any Lot so acquired. The Owner and any other Person claiming an interest in the Lot, by the acceptance or assertion of any interest in the Lot, grants to the Association a power of sale and full authority to accomplish the foreclosure. The Association shall, in addition to its other remedies, have the right to pursue any other remedy at law or in equity against the 13 Owner who fails to pay any Assessment or charge against the Lot. 6.8 Lien Priority; Foreclosure. A lien for Assessments is prior to all other liens and encumbrances on a Lot except (i) liens and encumbrances recorded before the Declaration, (ii) any first mortgage encumbering the fee simple interest in the Lot, and (iii) liens for real estate taxes and other governmental Assessments or charges against the Lot. Notwithstanding the foregoing, if (1) a first mortgage on a Lot is foreclosed, (2) the first mortgage was recorded on or after the date of recording of this Declaration, and (3) no Owner redeems during the Owner's period of redemption provided by Minnesota Statutes Chapters 580, 581, or 582, then the holder of the sheriffs certificate of sale from the foreclosure of the first mortgage shall take title to the Lot subject to unpaid Assessments for Common Expenses levied by the Association which became due, without acceleration, during the six (6) months immediately preceding the first day following the end of the Owner's period of redemption. 6.9 Voluntary Conveyances, Statement of Assessments. In a voluntary conveyance of a Lot, the buyer shall not be personally liable for any unpaid Assessments and other charges made by the Association against the seller or the seller's Lot prior to the time of conveyance to the buyer, unless expressly assumed by the buyer. However, the lien of such Assessments shall remain against the Lot until released. Any seller or buyer shall be entitled to a statement, in recordable form, from the Association setting forth the amount of the unpaid Assessments against the Lot, including all Assessments payable in the Association's current fiscal year, which statement shall be binding on the Association, seller and buyer. SECTION 7 RESTRICTIONS ON USE OF PROPERTY All Owners and Occupants, and all secured parties, by their acceptance or assertion of an interest in the Property, or by their occupancy of a Lot, covenant and agree that, in addition to any other restrictions which may be imposed by the Governing Documents, the occupancy, use, operation, alienation and conveyance of the Property shall be subject to the following restrictions: 7.1 General. The Property shall be owned, conveyed, encumbered, leased, used and occupied subject to the Governing Documents, as amended from time to time or as further adopted from time to time by the Association. All covenants, restrictions and obligations set forth in the Governing Documents are in furtherance -of a plan for the Property, and shall run with the Property and be a burden and benefit to all Owners and Occupants and to any other Person acquiring or owning an interest in the Property, their heirs, personal representatives, successors and assigns. 7.2 Use of the Lots. The Lots shall be used by Owners, Occupants and their guests for commercial and industrial purposes which comply with applicable laws, ordinances and regulations and for no other purpose. No Lots shall be used for residential purposes. No changes 14 in the use of the Property shall be made without prior receipt of all required governmental approvals. Rental of the Lots by Owners for uses set forth herein shall be permitted subject to the condition that the lease shall provide that it is subordinate and subject to the provisions of the Governing Documents and that any failure of the tenant to comply with the terms of such documents shall be a default under the lease. 7.3 Resale of Lots. All Owners shall be required to provide written notice to the Association of the Owner's intent to list or offer the Owner's Lot for sale fifteen (15) days prior to offering or listing the Lot for sale. 7.4 Delegation of Use. An Owner may delegate, in accordance with the Governing Documents, the Owner's right of use and enjoyment of the Lot to persons occupying the Lot pursuant to a legal right of possession; provided, that such persons shall be subject to the Governing Documents. 7.5 Quiet Enjoyment; Interference Prohibited. All Owners and Occupants and their invitees shall have a right of quiet enjoyment in their respective Lots. The Property shall be occupied and used in such a manner as will not cause a nuisance, nor unduly restrict, interfere with or impede the use and quiet enjoyment of the Property by other Owners and Occupants and their guests. 7.6 Compliance with Law. No use shall be made of the Property which would violate any existing municipal codes or ordinances, or state or federal laws, nor shall any act or use be permitted which could cause waste to the Property, cause a material increase in insurance rates on the Property, or otherwise cause any unusual liability, health or safety risk, or expense, for the Association or any Owner or Occupant. 7.7 Vegetation and Trees. Vegetation and trees located on the Lots, whether natural or otherwise, shall be maintained in substantially the same condition as originally established, subject only to (i) changes authorized by the Association consistent with all statutes, requirements, rules, ordinances and regulations imposed on such areas and items by governmental authorities having jurisdiction and (ii) the prior approval of any such governmental authorities, if required. No cutting, mowing, trimming, draining, dredging or other alteration of such areas and items shall be permitted, except as authorized by this Section, it being the intention that such areas and items remain and be maintained in substantially their condition as of the date of recording of this Declaration, and subject to natural changes. SECTION 8 ARCHITECTURAL AND LANDSCAPE CONTROLS 8.1 Architectural Review. It is the intent of Declarant to create a general plan and uniform scheme of development of the Property and to create within the Property high quality and harmonious Improvements that comply with all requirements of the Planned Unit Development approved for the Property by the City. Accordingly, the Board shall have the right to approve or disapprove all architectural, landscaping and location of any proposed buildings or improvements on all Lots within the Property. In addition, the Board shall have the right to approve or disapprove all proposed additions, changes and any other type of remodeling to the exterior of any building, 15 however, this approval shall not be necessary with respect to any proposed changes to a building by the Declarant. The Board may, in its sole discretion, impose standards for construction and development which may be greater or more stringent than standards prescribed in applicable, building, zoning or other local governmental codes. 8.1.1 No building shall be constructed, erected, removed from or maintained upon a Lot, nor shall any addition to or any change, replacement or alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials, color and the location of same shall have been submitted to and approved in writing by the Board. A complete set of plans and specifications prepared by an architect, landscape architect, engineer or other person found to be qualified by the Board shall be submitted for approval by written application. The Board may require submission of samples of building materials and colors proposed to be used. 8.1.2 The Board shall have the right to refuse to approve any plans and specifications which are not suitable or desirable, in its sole and absolute discretion, for aesthetic or any other reasons. In approving or disapproving such plans and applications, the Board shall consider the suitability of the proposed buildings, the materials of which the same are to be built, the harmony thereof with the surrounding area and the effect thereof on adjacent or neighboring Lots. 8.1.3 Construction of all buildings for which the approval of the Board is required under this Declaration shall be completed within the time period specified by the Board 8.1.4 Upon approval by the Board of any plans and specifications submitted to it, the Board shall notify the applicant in writing, which notification shall set forth any qualifications or conditions of approval. In the event that the Board disapproves any plans and specifications submitted to it, the Board shall so notify the applicant in writing, stating the grounds upon which such disapproval is based. No building shall be erected or allowed to remain upon a Lot which violates any of the covenants, conditions or restrictions contained in this Declaration, or which violates any zoning or building ordinance or regulation. 8.1.5 There is specifically reserved unto the Board, and to any agent or member of the Board, the right of entry and inspection upon any Lot for the purpose of determination by the Board whether there exists any construction of any building which violates the terms of any approval by the Board or the terms of this Declaration or any amendments thereto, or of any other covenants, conditions and restrictions to which any deed or other instrument of conveyance makes reference. If any building of any nature shall be constructed or altered without the prior written approval of the Board, the Owner shall, upon demand of the Association, cause such building to be removed, or restored in order to comply with the plans and specifications originally approved by the Board. The Owner shall be liable for the payment of all costs of removal or restoration, including all costs and attorneys' fees incurred by the Association to enforce the requirements herein. Such costs may also be the basis for an individual assessment against the Lot upon which such non- compliant building is located. 16 8.1.6 The Board may, in its sole discretion, grant variances from the requirements contained herein or as elsewhere promulgated by the Board, on a case by case basis; provided however, that the variance sought is reasonable and does not impose a hardship upon other Owners. The granting of such a variance by the Board shall not nullify or otherwise affect the Board 's right to require strict compliance with the requirements set forth herein on any other occasion. 8.1.7 Notwithstanding anything contained herein to the contrary, any Improvements of any nature at any time made or to be made by the Declarant on any Lot shall not be subject to the review or other procedures of the Board. 8.2 Landscaping Approval. To preserve the aesthetic appearance of the Property, no landscaping, grading, excavation, or filling of any nature whatsoever shall be implemented or installed by any Owner, other than the Declarant, unless and until the plans therefor have been submitted to and approved in writing by the Board. 8.3 Building Restrictions. All buildings and other structures shall be constructed in compliance with any and all applicable state, county and municipal zoning and building restrictions. 8.4 Alteration of Attached Buildings. An Owner of an Attached Lot may not make Improvements or alterations that would impair the structural integrity or mechanical systems or support of any attached building or shared Limited Common Elements. In addition to the other requirements set forth herein, the owner of an Attached Lot shall be required to make prior arrangements with the Association to ensure that the adjacent Attached Lot owners will not be disturbed, and that the attached building(s) and any shared Limited Common Elements will not be damaged. SECTION 9 MAINTENANCE 9.1 General Maintenance by Association. The Association shall provide for all maintenance, repair, reconstruction or replacement of the Ring Road, the paved areas between buildings located on the Lots up to the concrete apron at the rear of each building and up to the sidewalk in front of each building, landscaping, storm sewer and drainage and storm water pond, as depicted on Exhibit G attached hereto. The Association shall have reasonable access over, under and across the Property to provide said maintenance, repair, reconstruction or replacement. dete -,, roes thateneor- more Lots shall be assessedf ., r.,44iett .,,- ,.e 9.2 Storm Water Facilities Maintenance by Association. The Association shall inspect, maintain, operate and replace in a good state of repair and safe condition all storm water facilities, including, without limitation, drainage swales, storm sewer systems, infiltration basins, sedimentation basins and ponding systems on the Property to ensure that the storm water facilities ("Facilities") function as intended and comply with the requirements set forth in the Stormwater Facilities Maintenance Agreement of even date herewith between Declarant and the City. 17 9.2.1 The Association shall be responsible for the inspection and maintenance of the Facilities so that the Facilities function properly. The Association shall submit a report to the City, upon request, that includes the inspection date(s) of the Facilities, conditions of the Facilities, testing of the Facilities and any corrective actions taken. 9.2.2 The Association shall annually in the Fall inspect and document inflow points and infiltration surface for buildup of road sand associated with spring melt period, remove as necessary and replant areas that have been impacted by sand/salt build up. 9.2.3 The following operational maintenance activities shall be performed on all Facilities on an annual basis or as needed: a. Removal of trash and debris, b. Inspection of sump catch basins, inlets and outlets monthly, C. Removal of sediments when the storage volume or conveyance capacity of the storm water management system is below design levels d. Ensure systems designed for infiltration are drawing down within 48 hours, infiltration testing is performed as identified in the Minnesota Pollution Control Agency (MPCA) Storm Water Manual and e. Stabilization and restoration of eroded areas. 9.2.4 If the Facilities are not functioning as designed and permitted, operational maintenance must be performed immediately to restore the system. If operational maintenance measures are insufficient to enable the system to meet the design and performance standards of this chapter, the permittee must either replace the system or construct an alternative design. 9.2.5 In the event The Association fails to maintain the Facilities in good working condition acceptable to the City, the City may enter upon the Property and take such steps as are necessary to correct deficiencies identified in the inspection report and to charge the costs of such repairs to The Association. This provision shall not be construed to allow the City to erect any structure of permanent nature on the Property for the storm water Facilities. The City is under no obligation to routinely maintain or repair said Facilities, and in no event shall this Declaration be construed to impose any such obligation on the City. Declarant grants to the City, its authorized agents and employees, a non-exclusive, perpetual easement over, across, under and through the Property for such purposes. 9.3 Maintonanee by Owner-. A 119.3 Maintenance of Limited Common Elements. The Association shall provide for maintenance, repair, reconstruction, and replacement ("Maintenance") of all sanitary sewer lines that connect an Attached Lot to a main municipal sanitary sewer line, and all water lines that connect an Attached Lot to the main municipal water line, and related components, to the extent deemed necessary or desirable by the Board or as required by the City. The Association shall assess the cost of such Maintenance exclusively a ag inst the Attached Lots that are serviced by such sewer lines or water lines, pursuant to Section 6.1.a, above. The Association shall have the easements granted herein to comblete such Maintenance. IN 9.4 Maintenance of Attached Units. The Association shall provide exterior Maintenance of the buildings on the Attached Lots to the extent deemed necessary and desirable by the Board, including, without limitation, roofs, gutters, downspouts, siding entry doors and garage doors (except hardware), and other exterior building surfaces, but excluding door hardware, air conditioning equipment, glass and window frames. The Association shall assess the cost of such Maintenance exclusively against the Attached Lots that receive such Maintenance, pursuant to Section 6. Lb, above. The Association shall have the easements granted herein to complete such Maintenance. 9.5 Maintenance by Owner. Except as expressly stated above, all maintenance of the exterior and interior of a building located on a Lot, the sidewalk in front of a building and the concrete apron at the rear of a building shall be the sole responsibility and expense of the Owner thereof, who shall maintain the Improvements located upon the Owner's Lot in first class, clean, safe and sanitary condition in compliance with the Governing Documents or with specific uniform criteria established by the Association. The Association may also undertake any exterior maintenance which the responsible Owner fails to or in the reasonable determination of the Association improperly performs, and charge and assess the Lot for the cost thereof. Such cost shall be a personal obligation of the Owner and a lien against the Owner's Lot. 9.46 Damage Caused by Owner. Notwithstanding any provision to the contrary in this Section, if, in the judgment of the Association, the need for maintenance of any part of the Property is caused by the willful or negligent act or omission of an Owner or Occupant, or their invitees, or by a condition in a Lot which the Owner or Occupant has willfully or negligently allowed to exist, the Association may cause such damage or condition to be repaired or corrected (and enter upon any Lot to do so), and the cost thereof may be charged and assessed against the Lot of the Owner responsible for the damage. Such cost shall be a personal obligation of the Owner and a lien against the Owner's Lot. In the case of party walls between adjoining buildings located on different Lots, the Owners of the affected buildings shall be liable as provided in Section 10. SECTION 10 PARTY WALLS 10.1 General Rules of Law to Apply. Each wall built as part of the original construction of a building on a Lot and located on the boundary line between Lots shall constitute a party wall, and, to the extent not inconsistent with the provisions of this Section, the general rules of law, regarding_party walls and liability for property damage due to negligent or willful acts or omissions shall apply thereto. 10.2 Repair and Maintenance. The Owners of the Lots which share the party wall shall be responsible for the maintenance repair and replacement of the party wall in proportion with their use; provided (i) that any maintenance, repair or replacement necessary due to the acts or omissions of a certain Owner of Occupant sharing such party wall shall be paid for by such Owner, and GO that the Association may contract for and supervise the repair of damage caused by an Owner or Occupant and assess the Owners for their resbective shares of the cost to the extent not covered by insurance. 19 10.3 Destruction by Fire or Other Casualty. If a party wall is destroyed or damaged by fire or other casualty, the Association shall promptly restore it. Insurance claims shall be made promptly following any such loss. 20 SFCTION 11 INSURANCE 4811.1 Required Coverage. The Association shall obtain and maintain policies of insurance in accordance with the requirements set forth herein, issued by a reputable insurance company or companies authorized to do business in the state of Minnesota, as follows: a. Comprehensive public liability insurance covering the activities of the Association with minimum limits of two million dollars ($2,000,000) per occurrence, against claims for death, bodily injury and property damage, and such other risks as are customarily covered by such policies for projects similar in construction, location and use to the Property. The policy shall contain a "severability of interest" endorsement which shall preclude the insurer from denying the claim of an Owner or Occupant because of negligent acts of the Association or other Owners or Occupants. bb. Property insurance, written on a Special form, covering risks of physical loss in an amount equal to one hundred percent 100%) of the insurable estimated "replacement cost" of the Attached Units, less deductibles determined by the Board, and exclusive of land, footings, excavation and other items normally excluded from coverage. Provided, such insurance coverage shall not include glass or window frames, or interior improvements and betterments, such as (without limitation) ceiling or wall finishing materials, finished flooring, cabinetry, finished millwork, electrical, heating, ventilating, and air conditioning equipment, or other fixtures or equipment of any kind located inside the building. C. Fidelity bond or insurance coveraize aizainst dishonest acts on the Dart of directors officers, managers, trustees, employees or persons responsible for handling funds belonging to or administered by the Association if deemed to be advisable by the Board. The fidelity bond or insurance shall name the Association as the named insured. The Board may include an appropriate endorsement to the policy to cover M persons who serve without compensation if the policy would not otherwise cover volunteers. or a waiver of defense based upon the exclusion of Dersons serving without compensation. d. Workers' Compensation insurance as required Bylaws. ee. Such other insurance as the Board may determine from time to time to be in the best interests of the Association and the Owners, including directors' and officers' liability insurance. 48f. The Association shall not be responsible for obtaining or maintaining_ personal liability insurance with respect to any of the Lots, or Property insurance on the Detached Lots. 21 11.2 Premiums. All insurance premiums for insurance maintained by the Association shall be assessed and paid as r^ ' Assessmeffts, a-nd alleeated ameng the beis as determined by a Common Expense. The cost of property insurance on the Attached Lots shall be assessed exclusivelv against the Attached Lots_ in accordance with Section 6.1.c. 4011.3 Loss Payee, Insurance Trustee. All insurance coverage maintained by the Association shall be written in the name of, and the proceeds thereof shall be payable to, the Association as trustee for the benefit of the Owners and secured parties, :,,elti inn Eligible "4T which suffer loss. The Association shall have exclusive authority to negotiate, settle and collect upon any claims or losses under any insurance policy maintained by the Association. 4011.4 Required Policy Provisions. All policies of property insurance carried by the Association shall provide that: a. Each Owner and secured party is an insured Person under the policy with respect to liability arising out of the Owner's membership in the Association. b. The insurer waives its right to subrogation under the policy against any Owner or member of the Owner's household and against the Association and members of the Board. C. No act or omission by any Owner or secured party, unless acting within the scope of authority on behalf of the Association, shall void the policy or be a condition to recovery under the policy. d. If at the time of a loss under the policy there is other insurance in the name of an Owner covering the same property covered by the policy, the Association's policy is primary insurance. 4011.5 Cancellation, Notice of Loss. All policies of property insurance and comprehensive liability insurance maintained by the Association shall provide that the policies shall not be cancelled or substantially modified, for any reason, without at least thirty (30) days' prior written notice to the Association and Owners of the Lots affected. 4011.6 Effect of Acts Not Within Association's Control. All policies of insurance maintained by the Association shall provide that the coverage shall not be voided by or conditioned upon (i) any act or omission of an Owner, Occupant, or Eligible Wr-tgageesecured party, unless acting within the scope of authority on behalf of the Association, or (ii) any failure of the Association to comply with any warranty or condition regarding any portion of the Property over which the Association has no control. SECTION 1412 COMPLIANCE AND REMEDIES 4412.1 Compliance with Governing Documents. Each Owner and Occupant, and any other Person owning or acquiring any interest in the Property, shall be governed by and comply with the 22 provisions of the Governing Documents and such amendments thereto as may be made by the Association from time to time, and the decisions of the Association. A failure to comply shall entitle the Association to the relief set forth in this Section, in addition to the rights and remedies that may be authorized elsewhere by the Governing Documents. 4412.2 Entitlement to Relief. The Association or any Owner may commence legal action to recover sums due for damages, for injunctive relief or to foreclose a lien owned by it, or any combination thereof, or an action for any other relief authorized by the Governing Documents or available at law or in equity. Legal relief may be sought by the Association against any Owner to enforce compliance with the Governing Documents, �he-Ae or the decisions of the Association. Owners may also enforce compliance with the Governing Documents by a private legal action, independent of this Section. No Owner may withhold any Assessments payable to the Association, or take or omit other action in violation of the Governing Documents and the Rules and Regulations as a measure to enforce such Owner's position, or for any other reason. 4412.3 Sanctions and Remedies. In addition to any other remedies or sanctions, expressed or implied, administrative or legal, the Association shall have the right, but not the obligation, to implement any one or more of the following actions against Owners and Occupants and/or their invitees, who violate the provisions of the Governing Document: a. Commence legal action for damages or equitable relief in any court of competent jurisdiction. b. Impose late charges of $50.00, or such other amount as may from time to time be determined by the Association, for each past due Assessment or installment thereof, and impose interest at the highest rate permitted by law accruing beginning on the first day of the month after the Assessment or installment was due. C. In the event of default of more than thirty (30) days in the payment of any Assessment or installment thereof, all remaining installments of Assessments assessed against the Lot owned by the defaulting Owner may be accelerated and shall then be payable in full if all delinquent Assessments or installments thereof, together with all attorneys' fees, costs of collection and late charges, are not paid in full prior to the effective date of the acceleration. Not less than ten (10) days advance written notice of the effective date of the acceleration shall be given to the defaulting Owner. d. Impose reasonable fines, penalties or charges for each violation of the Governing Documents. e. Suspend the rights of any Owner to vote when the Assessments due with respect to the Owner's Lot are past due. Such suspensions shall be limited to periods of default by such Owners and Occupants in their obligations under the Governing Documents, and for up to thirty (30) days thereafter, for each violation. f. Enter any Lot in which, or as to which, a violation or breach of the Governing Documents exists which is likely to materially affect the health or safety of the other Owners or Occupants, or their invitees and to summarily abate and remove, 23 at the expense of the offending Owner or Occupant, any structure, thing or condition in the Lot which is causing the violation. g. Foreclose any lien arising under the provisions of the Governing Documents or under law, in the manner provided by Minnesota statutes for the foreclosure of mortgages by action or under power of sale. 4�12.4 Rights to Hearing. Before the imposition of any of the remedies authorized by Section 4-4-12.3 d., e., f. or g., the Board shall, upon written request of the offender, grant to the offender an opportunity for a hearing. The offender shall be given notice of the nature of the violation and the right to a hearing, and at least ten (10) days within which to request a hearing. The hearing shall be scheduled by the Board and held within thirty (30) days of receipt of the hearing request by the Board, and with at least ten (10) days prior written notice to the offender. If the offender fails to timely request a hearing or to appear at the hearing, then the right to a hearing shall be deemed waived and the Board may take such action as it deems appropriate. The decision of the Board and the rules for the conduct of hearings established by the Board shall be final and binding on all parties. The Board's decision shall be delivered in writing to the offender within ten (10) days following the hearing, if not delivered to the offender at the hearing. The Board may delegate the foregoing hearing authority to a committee of three or more disinterested Owners, who shall conduct the hearing and make a recommendation to the Board regarding the disposition of the matter. 4412.5 Lien for Charges, Penalties. Etc. Any Assessments, charges, fines. expenses, penalties or interest imposed under this Section shall be a lien against the Lot of the Owner or Occupant against whom the same are imposed and the personal obligation of such Owner in the same manner and with the same priority and effect as Assessments under Section 6. The lien shall attach as of the date of imposition of the remedy, but shall not be final as to violations for which a hearing is held until the Board makes a written decision at or following the hearing. All remedies shall be cumulative, and the exercise of, or failure to exercise, any remedy shall not be deemed a waiver of the Association's right to pursue any others. 4412.6 Costs of Proceeding and Attorneys' Fees. With respect to any collection measures, or any measures or action, legal, administrative, or otherwise, which the Association takes to enforce the provisions of the Governing Documents, whether or not finally determined by a court or arbitrator, the Association may assess the violator and the violator's Lot with any expenses incurred in connection with such enforcement, including without limitation fines or charges previously imposed by the Association, reasonable attorneys' fees, and interest (at the highest rate allowed by law) on the delinquent amounts owed to the Association. Such expenses shall also include any collection or contingency fees or costs charged to the Association by a collection agency or other Person acting on behalf of the Association in collecting any delinquent amounts owed to the Association by an Owner or Occupant. Such collection or contingency fees or costs shall be the personal obligation of such Owner and shall be a lien against such Owner's Lot. 4412.7 Liability for Owners' and Occupants' Acts. An Owner shall be liable for the expense of any maintenance, repair or replacement of the Property rendered necessary by such Owner's acts or omissions, or by that of Occupants or invitees in the Owner's Lot, to the extent that such expense is not covered by the proceeds of insurance carried by the Association or such 24 Owner or Occupant. However, any insurance deductible amount and/or increase in insurance rates, resulting from the Owner's acts or omissions may be assessed by the Association against the Owner responsible for the condition and against said Owner's Lot. 4412.8 Enforcement by Owners. The provisions of this Section shall not limit or impair the independent rights of other Owners to enforce the provisions of the Governing Documents. SECTION 13 AMENDMENTS 4213.1 Approval Requirements. Except for amendments by Declarant during the Declarant Control Period, this Declaration may be amended only by the approval o£ a. Owners of Lots to which are allocated at least sixty-six and two-thirds (66.66%) percent of the total votes in the Association. b. Declarant as to certain amendments as provided in Section 4314. 4213.2 Procedures. Approval of the Owners may be obtained in writing or at a meeting of the Association duly held in accordance with the Bylaws. Consents orEligible N4et:tgagees a*dConsent of the Declarant shall be in writing. An affidavit by the Secretary of the Association as to the outcome of the vote, or the execution of the foregoing agreements or consents, shall be adequate evidence thereof for all purposes, including without limitation, the recording of the amendment. 13.3 Subdivision of Lots. Notwithstanding the foregoing, the Owner of a Lot shall have the power to subdivide such Owner's Lot at his or her own expense, without the consent of the other Owners, provided such subdivision complies with all requirements of the City. In connection with any such subdivision, the Owner shall record an amended Plat, and amended Exhibit A and Exhibit F, accordingly, provided that the reallocation of votes and common expense assessments shall not change the percentage of common expenses allocated to an.. to Lot that is not subject to such subdivision, nor increase the total number of votes in the Association. SECTION 14 SPECIAL DECLARANT RIGHTS Declarant, its successors and assigns, hereby reserves exclusive and unconditional authority to exercise the following special Declarant rights for as long as it owns a Lot, or for such shorter period as may be specifically indicated: 25 4-314.1 Complete Improvements. To complete all the Lots and other improvements indicated on the Plat, or otherwise included in Declarant's development plans or allowed by the Declaration, and to make alterations in the Lots to accommodate the exercise of any special declarant rights. 4314.2 Sins. To erect and maintain signs and other sales displays offering the Lots for sale or lease, in or on any Lot owned by Declarant. 4314.3 Easements. To have and use easements, for itself, its employees, contractors, representatives, agents and prospective purchasers through and over the paved areas of the Lots for the purpose of exercising its special Declarant rights. 43-14.4 Control of Association. To control the operation and administration of the Association, including without limitation the power to appoint and remove the members of the Board until the earliest of. (i) voluntary surrender of control by Declarant or (ii) the date on which Declarant no longer owns a Lot. 43-14.5 Consent to Certain Amendments. Until such time as Declarant no longer owns any Lot for initial sale, Declarant's written consent shall be required for any amendment to the Governing Documents which directly or indirectly affects Declarant's rights under the Governing Documents. 14.6 Subdivide, Combine Lots, and Relocate Boundaries. To subdivide or combine Lots and to relocate boundaries between Lots owned by the Declarant, or with the written consent of the Owner of the Lots affected, provided such action complies with all requirements of the City. In connection with any such action, the Declarant shall record an amended Plat, and amended Exhibit A and Exhibit F, accordingly, provided that the reallocation of votes and common expense assessments shall not change the percentage of common expenses allocated to M Lot that is not subject to such subdivision, combination or boundary relocation, nor increase the total number of votes in the Association. SECTION 15 MISCELLANEOUS 4415.1 Severability. If any term, covenant, or provision of this instrument or any exhibit attached hereto is held to be invalid or unenforceable for any reason whatsoever, such determination shall not be deemed to alter, affect or impair in any manner whatsoever any other portion of this Declaration or exhibits attached hereto. 4415.2 Construction. Where applicable, the masculine gender of any word used herein shall mean the feminine or neutral gender, or vice versa, and the singular of any word used herein shall mean the plural, or vice versa. 4-415.3 Notices. Unless specifically provided otherwise in the Governing Documents, all notices required to be given by or to the Association, the Board, the Association officers or the 26 Owners or Occupants shall be in writing and shall be effective upon hand delivery, or mailing if properly addressed with postage prepaid and deposited in the United States mail; except that registrations pursuant to the Bylaws shall be effective upon receipt by the Association. 4-415.4 Conflicts Among Documents. As among the Declaration, Bylaws and Rules and Regulations, the Declaration shall control, and as between the Bylaws and the Rules and Regulations, the Bylaws shall control. 4-415.5 Duration of Covenants. The covenants, conditions, restrictions, easements, liens and charges contained in this Declaration shall be perpetual, subject only to termination as provided in this Declaration. 27 IN WITNESS WHEREOF, the undersigned has executed this instrument the day and year first set forth in accordance with the requirements of the Act. DECLARANT: Spaeth Development, LLC. M. STATE OF MINNESOTA ) (ss. COUNTY OF WRIGHT ) Kenneth J. Spaeth, President The foregoing instrument was acknowledged before me this day of , —2 2021, by Kenneth J. Spaeth, the President of Spaeth Development, LLC, a Minnesota limited liability company, on behalf of the company. Notary Public THIS INSTRUMENT DRAFTED BY: Gries Lenhardt Allen, P.L.L.P. 12725 43rd Street NE, S. 201 St. Michael, MN 55376 SPAETH INDUSTRIAL PARK EXHIBIT A LEGAL DESCRIPTION Lots 1, 2, 3, 4, 5, 6 and 7, Block 1, Spaeth Industrial Park, Wright County, Minnesota; and Lots 1, 2 and 3, Block 1, Spaeth Industrial Park Second Addition, Wright County, Minnesota. 29 SPAETH INDUSTRIAL PARK EXHIBIT B ACCESS EASEMENT 30 (19 r �car+r�'.vKaRui+ra a•.as�_aa�c�ne-a�ar..rr�w.7' c � a �4 A. A� V , r- iri�wr� W yII �y�i1r11B��ti�WrBr� 1 d IAIAAIIAAAAA�A� ! •—rc9.a�•— p a n,",pt 11.0 e n►•I. ao' f11 I/•t I'II' � P as�g m Sm ME Cr ov Cwm ' EXHJBfT B Page 1/1 - I SPAETH INDUSTRIAL PARK EXHIBIT C SHARED PARKING EASEMENT 31 � � SfrL�Yl`Si•��ii4 i SnM WA IDI LAPA( u&T aokSW Cowcmom- 4. --l99. df-- p i o o�.a2 11.W S IY I100 fR 11't 'FIG' •� 1 EXHIBIT C LN Pape V1 - n fit, S I SPAETH INDUSTRIAL PARK EXHIBIT D 32 STORM WATER POND MAINTENANCE EASEMENT IlEwl 101' 1 to �es�.c �+•a�-.u+ �r•:a�e- '.uW s-ar►sr 1 V V �r m i MANTEWCE MUM a47 AC AC I QS �� I ror iar !ar 4� Q447 WAN 0.47 AC 2 o iaww4 I AC C OtROrC f L� 1 ,T 7 SO.p,u 1DT ■ Sl.= Sl I as.1 AC 1 `0A.9w o au`ow H ! 'y I pr ;... • • Ii RAM �lGUp tR a u( EXHIBIT D --' ` — Page 1J1 = e e fie0.w RW ° J IMi• i 33 SPAETH INDUSTRIAL PARK EXHIBIT E LANDSCAPE EASEMENT •• �` L.cca_�r.Jvr �v+^.Mwr:i.r�at:�r+.. r�n'iiva ��w. u..:•� 'i V n .a I I LOT a n.m sr 0.47 ♦c fora t0.♦00 Sl 0.17 ♦C .uenno c 0uDM 0 W llu � � t I I iMUM ror . =40 rs a47 At c rm c MS& n 0.47 Jc Bunko 7 e p .I l 1 1 L", ,1.rsa sr 0.72 ac w. e,.0m sr o.n ♦C � OLQAw H 1 �I I I♦Ed I I I I I 41 EXHIBIT E _r Page 1/1 = e 'k J4 I i 35 SPAETH INDUSTRIAL PARK EXHIBIT F LOT IDENTIFIERS, LOT DESIGNATIONS, VOTING RIGHTS AND COMMON EXPENSE ALLOCATION Legal Description Lot Identifier Lot Designation Votes Common Expense Allocation Lot 1, Block 1, Al Detached Lot 3 12.5% Spaeth Industrial Park — Lot 2, Block 1, B1 Detached Lot 3 12.5% Spaeth Industrial Park — Lot 3, Block 1, CC1 Detached Lot 3 12.5% Spaeth Industrial Park — Lot 4, Block 1, D1 Detached Lot 3 12.5% Spaeth Industrial Park — Lot 5, Block 1, EE1 Detached Lot 3 12.5% Spaeth Industrial Park — Lot 6, Block 1, F=I Detached Lot 3 12.5% Spaeth Industrial Park — Lot 7, Block 1, G1 Detached Lot 3 12.5% Spaeth Industrial Park — Lot 1, Block 1, H-1 Spaeth Industrial Park Attached Lot 1 4 1/6% Second Addition Lot 2, Block 1, H-2 Spaeth Industrial Park Attached Lot 1 4 1/6% Second Addition Lot 3, Block 1, H-3 Spaeth Industrial Park Attached Lot 1 4 1/6% Second Addition Total 24 100% 36 GRANT OF EASEMENT This Easement is made and conveyed this day of , 2021, by Spaeth Development, LLC, a Minnesota limited liability company, Grantor, in favor of the City of Monticello, a Minnesota municipal corporation (hereinafter referred to as the " City"). RECITALS R1. Grantor is the fee owner of that land legally described as: Lots 1, 2 and 3, Block 1, Spaeth Industrial Park Second Addition, according to the recorded plat thereof, Wright County, Minnesota (the "Property"). R2. The C44�-Grantor has installed a single water line to service the Property (the "Water Access Line"), that connects a main municipal water line directly to Lot 2, Block 1, Spaeth Industrial Park Second Addition, Wright County, Minnesota (, "Lot 2"). A water service manifold is located on Lot 2, with three valves and three meters, and additional water lines connecting the Water Access Line to Lots 1 and 3, Block 1, Spaeth Industrial Park Second Addition, according to the recorded plat thereof, Wright County, Minnesota ("Lots 1 and 3") (The water service manifold, valves, meters, and all water lines connected thereto shall be referred to as the "Water Service Manifold and Lines"). R3. Grantor desires to grant and convey to City an easement for the purposes set forth in this grant of easement, over, under and across Lot 2, as described herein. NOW, THEREFORE, for good and valuable consideration, receipt of which is acknowledged: 1. Grant of Easement. Grantor does hereby transfer, grant and convey to the City and its successors and assigns forever, a non-exclusive perpetual easement over, under, upon and across Lot 2 to access, monitor, inspect, PatF, 'tmpFeve and replace the Water Service Manifold and Lines, and specifically including the right to shut off the water valves when reasonably deemed by City to be necessary according to applicable ordinances, policies and regulations of the City. This includes the right of the City, its agents or assigns, to enter upon Lot 2 at any and all reasonable times, upon reasonable prior notice to the owner or occupant thereof, with tools, equipment and materials as the City deems reasonably necessary to accomplish the purposes set forth herein. 2. Water Shut-off. The Grantor, its successors and assigns, hereby acknowledge the right of the City to shut off water service to the entire Property by use of the exterior shutoff, under circumstances deemed by City to be necessary according to applicable ordinances, policies and regulations of the City, and agree to hold the City harmless from any and all claims, demands or causes of action of any kind or nature whatsoever which may arise or accrue by virtue of City shutting off the water to the Property, except to the extent that any such claims arise from the gross negligence or intentional act of the City or its agents. 3. Warranty of Title. Grantor represents and warrants to City that Grantor is the fee owner of the Property, and has the right, title and capacity to grant the easement described above. 4. Binding Effect. The easement described herein shall run with the Property and shall be binding upon Grantor, its successors and assigns and inure to the benefit of City and its assigns. IN WITNESS WHEREOF, Grantor has executed this document effective as stated above. Spaeth Development, LLC. By:_ Kenneth J. Spaeth, President 3 STATE OF MINNESOTA ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this day of , 2021, by Kenneth J. Spaeth, the President of Spaeth Development, LLC, a Minnesota limited liability company, on behalf of the company. Notary Public THIS INSTRUMENT WAS DRAFTED BY: GRIES LENHARDT ALLEN, P.L.L.P (JMP) 12725 43RD Street NE, Suite 201 St. Michael MN 55376 (763) 497-3099 Planning Commission Agenda — 03/02/21 3A. Community Development Director's Report COVID-19 City of Monticello Information Resource: https://www.ci.monticello.mn.us/covidl9 Council Action on/related to Commission Recommendations • Consideration of a request for an amendment to the zoning ordinance relating to R- 1 and R-2 zoning district standards. Applicant: Capstone Homes Approved Planning Commission's recommended language on the regular agenda, 5-0. Upcoming Workshops and Training Planning Commission is asked to participate in the following workshops. Please mark your calendars! • March 8, 4:30-5:45 PM: (In -person at MCC) Joint City Council, Planning and PARC for purposes of reviewing Chelsea Commons design concepts and themes for comment. • March 15, 6:00 — 8:00 PM: (Virtual) Joint City Council, Planning, EDA and PARC for Central Mississippi River Regional Planning Partnership (CMRP) Framework 2030 Round 2 Engagement. Council Updates Council Highlights — https://www.ci.monticello.mn.us/highlights Council Connection — February There are several items in this month's Council Connection of note to the Commission. Please review the Connection report here: https://www.ci.monticello.mn.us/vertical/sites//`7B46185197-6086-4078-ADDC- OF3918715C4C/o7D/unloads/Council Connection 022221.adf 1 42030 F R A 1yeli,,APK partnering for the future 1 r `i I i I T, What's your vision for the future of our region? Help move the FRAMEWORK 2030 process forward and share your perspective today. ,I go t How we work Take the community survey: http://bit. ty/FW2030_Rou nd 2 0 -'A Where we invest ... Use the fink or scan this QR code to enter the survey. www.RegionalPlanningPartnership.org/Framework203O