6. HRA SR 03-05-2012Elk REQUEST FOR ACTION
River
TO ITEM NUMBER
Housin Redevelo ment Authori 6 .
AGENDA SECTION MEETING DATE PREPARED BY
March 5, 2012 Annie Deckert, Director of Economic
Develo ment
ITEM DESCRIPTION REVIEWED By
Authorize site improvements for 724 Main Street (Elk River Cal Portner, Ci Administrator
Meats) REVIEWED BY
ACTION REQUESTED
Authorize site improvements for 724 Main Street (Elk River Meats)
BACKGROUND
At the February 6 meeting, the HRA discussed moving forward with improvements to the east wall of
724 Main Street (Elk River Meats). Building Official Bob Ruprecht recommended improvements
necessary to move forward with the weatherization of the wall. There was some question regarding the
shared wall agreement between the HRA and Robert and Denise Robeck (Elk River Meats); specifically,
identifying whom was responsible for the repair of the wall post-demolition.
Attorney Robert Walter from Gray Plant Moody provided a summary of the wall agreement (attached)
and indicated that "the City (HI~A) ~nurt take care of the preceruation and weatheri~ation of the exposed wall': Per
the wall agreement, once the improvements (weatherization) are complete, the HRA will. have no further
obligation the remaining building owner (Robeck's) becomes owner of the wall.
DISCUSSION
At the February meeting, Mr. Ruprecht recommended moving forward with installing EFIS (Exterior
Insulation Finish System) to repair the wall. The estimated cost for this improvement is $30,000.
Additional information about his recommendation can be found in the attached staff report dated
February 6, 2012.
Staff has met to discuss alternative options. Below are three options (including estimated cost) which are
viable solutions to the weatherization requirement outlined in the shared wall agreement:
• Traditional concrete stucco (same product on the other three sides of the building) $33,000
• EIFS (exterior insulation finish system)/synthetic stucco $29,000
• Fill in areas of missing brick with filler brick and tuck-point any missing or deteriorated
mortar joints $4,200
P II N E~ f l / 1
NA~~
Painting of the wall is not included in the last option and would not be required for the weather proofing
of the wall. The Robeck's have been invited to the HRA to provide any feedback during the discussion
of the improvements.
Upon HRA authorization, staff will obtain quotes to move forward with the improvements.
FINANCIAL IMPACT
Preliminary cost estimates indicate the costs of the improvements will be $4,200-$33,000. The HRA has
budgeted $15,000 for an engineering study for the HRA buildings and $5,000 for building maintenance
and repair. This money would be used for the wall improvements. Any additional expenses would come
out of the HRA development fund.
ATTACHMENTS
Memo from Building Official B. Ruprecht dated 2-6-12
Shared Wall Agreement
Letter from Attorney R. Walter, Gray Plant Mooty dated 2-13-12
Action Motion by Second by Vote
Follow Up
MEMORANDUM
fiver
TO: Housing Redevelopment Authority
FROM: Bob Ruprecht, Building Official
DATE: February 6, 2012
SUBJECT: 724 Main Street Wall Improvements
BACKGROUND
The HRA buildings located at 716 and 720 Main Street (adjacent to 714 Main Street) were
demolished late December, 2011. The Shared Wall Agreement with Robert and Denise
Robeck, owners of 714 Main Street (Elk River Meats), outlines that if a building is
demolished, the party demolishing the buildings must promptly repair the wall at their sole
cost and expense. Staff has explored options to address the east wall of 714 Main Street
The attached memo from structural engineering firm Braun Intertec outlines items which
need to be addressed. In addition to the report, staff has spoken with several contractors to
deterinuie the necessary improvements moving forward.
RECOMMENDATIONS
Staff recommendations are as follows:
• Power wash and remove loose material from the wall in preparation for new coating.
• Remove existing steel door and surrounding brick, infill opening as necessary.
• Replace or repair flashing as necessary.
• Install EFIS (Exterior Insulation Finish System) with various thicknesses to make for
a more level surface.
With HRA authorization, staff will move forward with obtaining quotes for the
recommended improvements. Work will begin once a contractor is selected. Director of
Economic Development Annie Deckert and I met with Bob Robeck, owner of Elk River
Meats, to discuss the building improvements. Mr. Robeck agrees with staffls
recommendations and expressed interest in potentially moving forward with additional
improvements to the building.
r®rEaEe ®r
NA~~~
FINANCIAL IMPACT
Research and preliminary bids indicate the cost of the above recommendations to be
approximately $30,000.. In their 2012 budget, the HRA budgeted $15,000 for an engineering
study for the HRA buildings and $5,000 for building maintenance and repair. This money
could be used for the wall improvements. Additional expenses would come out of the HRA
development fund (current balance is $817,654)
ATTACHMENTS
~ Memorandum dated January 10, 2012 from Braun Intertec re: 714 Main Street
N:\Departments\Community Development\Economic Development\HRA to move\Agenda\Year 2012\2-6-12 Agenda\724 Main
Street Improvements II.doc
COO PS'(
WALL AGREEMENT
Office of the County Recorder
Sherburne County, MN
Doc. too. X39721
Certified filed and/or recorded on
12-29-2006 at 10;50
hel she, County Recorder
B puty Fee: ~ 46.00
639721
THIS AGREEMENT is made this 22nd day of December, 2006, by and between The
Houlton Investment Company, a Minnesota corporation (hereinafter "HOULTON"), and Robert
Robeck and Denise Robeck, husband and wife, and Ronald Robeck and Cheryl Robeck, husband
and wife (hereinafter "ROBECK") (hereinafter HOULTON and ROBECK are collectively
referred to as the "Parties").
WHEREAS, HOULTON is the owner in fee of real property situated in Sherburne
County, Minnesota, legally described as set forth in Exhibit A attached hereto, and hereinafter
described as Parcel 1;
WHEREAS, ROBECK is the owner in fee of real property situated in Sherburne County,
Minnesota, legally described as set forth in Exhibit A attached hereto, and hereinafter described
as Parcel 2;
WHEREAS, Parcel 1 and Parcel 2 are referred to herein, individually, as a "Parcel" and
collectively as the "Parcels."
WHEREAS, the Parcels share a common boundary (hereinafter the "Boundary Line")
WHEREAS, there is a building constructed on each Parcel, and the buildings abut one
another along the Boundary Line. The Parties do not know whether the buildings share one or
~~.i.~rn. d"'U
Sherburne Co. Abstract & TitIE Co.
i9~si~t~z 351 Main Street
Elk River, ~N 55330
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more common walls (each, hereinafter a "Party Udall"), have one or more separate and
independent walls that are constructed immediately adjacent to one another (each, hereinafter a
"Separate Wall") or have a combination of one or more Party Walls and one or more Separate
Walls.
WHEREAS, all Party Walls and Separate Walls that currently orm the common wall
between the building located on Parcel 1 and the building located on Parcel 2 are referred to
herein, collectively, as the "Common Walls." The terms Party Wall, Separate Wall and Common
Walls, as used herein, refer to the walls and any foundations or footings supporting the walls.
WHEREAS, Rum River Land Surveyors,. Inc.'s December 12, 2006 ALTA/ACSM Land
Title Survey, attached hereto as Exhibit B, indicates that the Common Walls are located on the
Boundary Line with a portion of the Common Walls located on each Parcel.
WHEREAS, Parcel 1 and Parcel 2 are subject to the terms of a Quit Claim Deed dated
March 18, 1923, and recorded on January 5, 1924 in Book 40 of Deeds, Page 488, and a Quit
Claim Deed dated June 28, 1959, and recorded on May 15, 1962, as Document No. 95135 (the
"Prior Deeds"). The Prior Deeds describe certain walls that were in existence when the Prior
Deeds were executed and establish certain rights with respect to those prior walls, but the Parties
are not certain if the walls described in the Prior Deeds still exist on the Parcels and, in any
event, the Common Walls that currently, exist on the Parcels extent further north than the walls
referenced in the Prior Deeds.
WHEREAS, the Parties intend for this Wall Agreement to supersede and replace the
Prior Deeds.
NOW THEREFORE, in consideration of the mutual agreements herein contained, the
Parties covenant and agree for themselves, and their heirs, successors, and assigns, as follows:
i9~si~t~2 2
r'
ARTICLE I
GRANT OF EASEMENTS AND TERMS OF USE
Section 1. Separate Walls. Houlton hereby grants Robeck an exclusive, appurtenant
easement, for the benefit of Parcel 2, over and across any portion of Parcel 1 upon which a
Separate Wall Robeck owns is located for the use, maintenance and repair of that Separate Wall,
and Robeck hereby grants Houlton an exclusive, appurtenant easement, for the benefit of Parcel
1, over and across any portion of Parcel 2 upon which a Separate Wall Houlton owns is located
for the use, maintenance and repair of that Separate Wall.
Section 2. P Walls. Houlton hereby grants Robeck anon-exclusive, appurtenant
easement, for the benefit of Parcel 2, in any portion of any Party Wall that is located on Parcel 1
for the use of said Party Wall for the support of the building located on Parcel 2 and as the
easterly wall of the building located on Parcel 2 subject to Houlton's right to use said Party Wall
for the support of the building located on Parcel 1 and as the westerly wall of the building
located on Parcel 1, and Robeck hereby grants Houlton anon-exclusive, appurtenant easement,
for the benefit of Parcel 1, in any portion of any Party Wall that is located on Parcel 2 for the use
of said Party Wall for the support of the building located on Parcel 1 and as the westerly wall of
the building located on Parcel 1 subject to Robeck's right to use said Party Wall for the support
of the building located on Parcel 2 and as the easterly wall of the building Located on Parcel 2.
Section 3. Termination of Easements and Agreement. If the building located on a
Parcel is demolished or substantially damaged by fire or other casualty, the easements granted in
Sections 1 and 2 above that are appurtenant to that Parcel terminate; the owner of the Parcel must
remove any Separate Walls the owner of the Parcel owns and any other portions of the owner's
building that encroaches onto the other own.er's Parcel, and, if the owner reconstructs
improvements on the owner's Parcel, such improvements must be located entirely within the
i9~si~i~z 3
i~
boundaries of owner's Parcel and must not utilize or rely on any Party Wall for any structural or
non-structural purpose. For purposes of this Agreement; "substantially damaged" means damage
for which the reasonable, estimated cost of repair or restoration exceeds fifty percent of the
assessed value of the improvements located on a Parcel, as determined by the Sherburne County
Assessor and stated on the most current tax statement for the Parcel. If the owner of a Parcel
demolishes the building located on the ov~ner's Parcel or the building is substantially damaged
by fire or other casualty and, as a result thereof, the easements appurtenant to that Parcel under
Sections 1 and 2 are terminated pursuant to the first sentence of this Section 3, the easements
described in Sections 1 and 2 shall thereafter be deemed to be exclusive easements in favor of
the owner of the other Parcel and appurtenant to the other Paxcel, and Party Wall shall thereafter
be deemed to be Separate Wall for purposes of Sections 4, 5, 6, and 7.
Section 4. Repair and Maintenance of Separate Walls. Subject to Section 7 below,
each Party is solely responsible for all costs and expenses associated with the repair and
maintenance of any Separate Walls the Party owns.
Section 5. Repair and Maintenance of Party Wall. Subject to Section 7 below, each
Party is responsible for one-half of the cost of all reasonable maintenance and repair to any Party
Wall. If the Parties are unable to agree upon the nature and extent of the necessary maintenance
or repairs to any Party Wall, the Parties must arbitrate the dispute pursuant to Section 4 of Article
IL
Section 6. Demolition of BuildinQS. Either Party may demolish the building located
on its Parcel, including any Separate Walls that are a part of its building.
Section 7. Damage to and Repair of Common Walls and Weatherproofing. Neither
Party may damage, demolish or remove any Party Wall or any portion of the other Party's
i9~si~i~z 4
Separate Walls. If a Party damages a Party Wall or the other Party's Separate Wall, the Party
that caused the damage must promptly repair the damage at .its sole cost and expense. If a
building located on a Parcel is demolished or is damaged or destroyed by fire or other casualty or
otherwise removed, the owner of that Parcel is responsible for ensuring that any portion of a
Party Wall that is left exposed to the elements as a result of the removal of the Parry's building
must, at its sole cost and expense, take such steps as are reasonably necessary to protect the
exposed Party Wall from the elements, so that the exposed Party Wall may thereafter serve as a
Separate WaII for the other Parry.
ARTICLE II
GENERAL PROVISIONS
Section 1. Termination of Prior Deeds. This Common Wall Agreement supersedes
and replaces the Prior Deeds, in their entirety, and each Party hereby quit claims to the other
Party any right, title or interest it acquired in the other Party's Parcel by virtue of the Prior Deeds.
The Parties and any Mortgagee of the Parties consenting to this Agreement, agree that the Prior
Deeds are of no further force or effect.
Section 2. Covenants Running with the Land. The easements hereby granted, the
restrictions hereby imposed, and the agreements herein contained shall be easements,
restrictions, and covenants running with the land and shall inure to the benefit of, and be binding
upon, the Parties hereto and their respective heirs, successors, and assigns, including, without
limitation, all subsequent owners of Parcel 1 and Parcel 2 and all persons claiming under them.
Section 3. Severability. Invalidation of any of these covenants by judgment or court
order shall in no way affect -any of the other provisions, which shall remain in full force and
effect.
i9~si~i~z 5
Section d. Arbitration. In the event of any dispute arising under Section 5, Article I
of tlus Agreement, each parry shall choose one arbitrator and such arbitrator shall choose one
additional arbitrator, and the decision of a majority of all the arbitrators shall be final and
conclusive of the question involved. If either party refuses or fails to promptly appoint an
arbitrator, the same may be appointed by any jud4e of the state district court for Sherburne
County, lulinnesota. Arbitration shall be in accordance with the rules of the American
Arbitration Association.
Section 5. Default and Remedies. If a Party defaults in the performance of its
obligations under this Agreement, the non-defaulting Party may give the defaulting Party written
notice of the default, and if the defaulting Party fails or refuses to perform the defaulting Party's
obligations within 30 days of the defaulting Parry's receipt of the notice of default, the non-
defaulting Parry may:
(a) Undertake to perform the obligation the defaulting Party has failed
or refused to perform and recover from the defaulting Party any costs and expenses the
non-defaulting Party incurs in connection there with;
(b) Commence an action in Sherburne County District Court to
compel the defaulting Party to specifically perform its obligations; and
(c) Commence an action in Sherburne County District Court to
recover damages.
In addition and not withstanding anything else in this Section 5, if the default is the failure to
observe the restriction set forth in the first sentence of Section 7, Article I, the non-defaulting•
Party may, after notice to the defaulting Party but without providing the defaulting Parry with an
opportunity to cure, commence an action in Sherburne County District Court for a temporary
restraining order, temporary injunction or permanent injunction. The prevailing Party in any
action to enforce this Agreement is entitled to recover its reasonable attorney's fees and costs
from the non-prevailing Party.
iv~si~t~z 6
Section 6. Entire Agreement. This Agreement supersedes all agreements previously
made between the Parties relating to its subject matter. There are no other understandings or
agreements between them. Any amendments to this Agreement must be in writing and. signed by
the Parties.
Section 7. Non-Waiver. No delay or failure by either party to exercise any right
under this instrument, and no partial or single exercise of that right, shall constitute a waiver of
that or any other right, unless otherwise expressly provided herein.
Section 8. Headings. Headings in this instrument are for convenience only and shall
not be used to interpret or construe its provisions.
Section 9. Governing Law. This instrument shall be construed in accordance with
and governed by the laws of the State of Minnesota.
Section 10. Mechanic's Liens. Each Party must indemnify and defend the other Party
and the other Party's Parcel from and against any mechanic's lien claims arising from work done
or materials supplied at the request of the indemnifying Party, except to the extent that the Pariy
to be indemnified is responsible for one-half of the cost of such work pursuant to Section 5 of
Article I above.
Section 11. Termination. At such time as the buildings located on both Parcel A and
Parcel B have been demolished or substantially damaged by fire or other casualty, and the
easements granted in Sections 1 and 2 of Article 1 have terminated pursuant to Section 3 of
Article 1, this Agreement shall terminate and be of no further force or affect, and the Parties shall
execute and record an instrument terminating this Agreement of record.
~9~ai~i~z 7
1
1
IN WITNESS WHEREOF the parties have signed this instrument as of the above date.
STATE OF MINNESOTA )
ss
COUNTY OF SHERBURNE)
THE HOULTON IIv'VESTMENT COMPANY
By: William Houlton
Its: President
The foregoing instrument was acknowledged before me this 22nd day of December,~2006
by William Houlton, president of The Houlton Investment Company, a corporation under the
laws of the State of Minnesota, on behalf of the corporation.
d !"€t
n- .;, MARCIA K TRACY
~` s' E Notary Public
~~~~' Minnesota
M1' Commission Expires January 31, 2010
Notary Public
Robert Robeck c
Denise Robeck
STATE OF MINNESOTA )
ss
COUNTY Oki, SHERBURNE)
~~~~
Ronald Robeck
~:~QJ rr~.- y
Cheryl Robeck
The foregoing instrument was acknowledged before me this 22°a day of December, by
Robert Robeck and Denise Robeck, husband and wife, and Ronald Robeck and Cheryl Robeck,
husband and wife.
~.:w mow. MARCIA K TRACY
`~~'~N~~ Notary Public
~~~ Minnesota
~'~"'~My Commission Expires January 31, 2070
Notary Public
1978171v2
THIS INSTRUMENT WAS DRAFTED BY:
BLACK, MOORS, BUMGARDI\rER, MAGNUSSEN, LTD.
Attorneys at Law
First National Financial Center
812 Main Street, Suite 102
Elk River. MN 55330
t~
EXHIBIT A
PARCEL 1
Parcel A:
The South 119 feet of the East 23 feet of Lot 2 and the West 26.5 feet of the
South 119 feet of Lot 3, al! in Block 2, Village of Elk River, according to the plat
thereof on file and of record in the office of the County Recorder of Sherburne
County, Minnesota.
Parcel B:
The East 39.5 feet of the South 119 feet of Lot 3, Block 2, Village of Elk River,
according to the plat thereof on file and of record in the office of the County
Recorder of Sherburne County, Minnesota.
PARCEL 2
The East 32 feet of the West 43 feet of the Southern 119 feet of Lot 2, Block 2 of
the Village of Elk River.
.;-
~9~svi~z 10
EXHIBIT B
(Attach survey identifying the Boundary Line)
i9~s»t~a 11
1010 WEST ST. GERMAIN STREET ROBERT J. WALTER
SUITE 500 ATTORNEY
ST. CLOUD, MN 56301 DIRECT DIAL: (320) 202-5336
~ ! MAIN: (320) 252-4414 ROBERT.WALTER@GPMLAW.COM
FAX: (320) 252-4482
BO RD
C E R T I F I E D
Real Property Specialist
VIA ELECTRONIC MAIL
adeckert@ci.elk-river.mn.us
February 13, 2012
MS ANNIE B DECKERT
DIRECTOR OF ECONOMIC DEVELOPMENT
13065 ORONO PARKWAY
ELK RIVER MN 55330
Re: Shared Well Agreement/HRA Building
Dear Ms. Deckert:
I have had an opportunity to review the Wall Agreement, dated December 22, 2006, and your email to my
partner, Peter Beck, dated February 7, 2012.
The Wall Agreement was set up in order to clarify the obligations for "Common Wall"between the First
National Bank building and Robecks (Elk River Meats). Historically, it appears that there were some
prior agreements in 1923 and 1955. This Wall Agreement voids and supersedes those prior agreements.
It appears that the parties were not able to determine whether or not there was one common structure that
served as a wall for both of the buildings, or whether each of the buildings had a separate wall that was
adjacent to each other and provided the support for that building.
This Wall Agreement covers both the party wall scenario and the separate wall scenario. The Wall
Agreement indicates that each one of the parcel owners is granting an easement to the other to allow each
parcel to maintain separate walls on the other party's parcel, which they refer to as Separate Walls.
The Wall Agreement also grants easements to each parcel for any wall that is, in effect, a support wall for
both structures, which they refer to as Party Walls.
The agreement indicates that each party is solely responsible for all costs and expenses associated with
the repair and maintenance of any Separate Wall that party owns. The agreement indicates that each party
is responsible for one-half of the cost of all reasonable maintenance and repair to any Party Wall.
The agreement indicates that in the event the building is destroyed or damaged to the extent that its worth
is less than 50% of the assessed value, then the building and Separate Wall supporting that building
would have to be removed. In the event that the supporting wall of the building is a Party Wall, then the
Party Wall is to remain and the party removing the damaged building is responsible for ensuring that any
portion of the Party Wall left exposed be weather protected.
The question you raised is contained in Article I, Section 7, Damage to and Repair of Common Walls and
Weatherproofing. This section prohibits any party from removing a Party Wall or the other party's
GP:3120880v4 GRAY, PLANT, MOOTY, MOOTY & BENNETT, P.A.
A FULL-SERVICE LAW FIRM
MINNEAPOLIS, MN ST. CLOUD, MN WASHINGTON, DC
WWW.GPMLAW.COM
Ms. Annie B Deckert
Director of Economic Development
February 13, 2012
Page 2
Separate Wall. It indicates that if a party damages a Party Wall or the other party's Separate Wall, then
the party causing the damage shall repair the damage at its cost and expense. As stated in the previous
paragraph, the agreement, also indicates in this paragraph that if your building is damaged or destroyed,
you are then responsible for weatherproofing and preserving the remaining Party Wall (if there is a Party
Wall that had been supporting both properties) that may be left exposed at the party's cost and expense.
The result, then, would be that the former Party Wall will thereafter be a Separate Wall for the remaining
building. If there was not a Party Wall but instead there were two Separate Walls, then if you removed
your building and Separate Wall, there would not be any obligation to do anything with regards to the
remaining Separate Wall.
In the present situation, the reports from Braun Intertec, dated November 17, 2011, and January 10, 2012,
indicated that the buildings had Separate Walls. The Braun report indicates that the City must leave the
City's Separate Wall in place "since the main girders of the adjacent building are bearing on the brick
pilasters that are integrated into the wall that is to remain."
In this case, the City does not have an option. The Separate Walls have become a "Party Wall" by use
and need for support: I think a proper interpretation of the facts in relation to the Agreement indicates
that the City must take care of the preservation and weatherization of the exposed wall as this is now a
Party Wall.
If you have any further questions, please contact me.
Sincerely,
GRAY, PLANT, MOOTY,
MOOTY & BENNETT, P.A.
(~ . ~~
Robert J. Walter
Attorney
RJW:pcg
Cc: Peter Beck
GP:3120880 v4