8.2. SR 10-02-2017Request for Action
To Item Number
Mayor and City Council 8.2
Agenda Section Meeting Date Prepared by
Public Hearings October 2, 2017 Zack Carlton, Planning Manager
Item Description Reviewed by
Parking Agreement: Elk River Lodge and Chris Leeseberg, Senior Planner
Residential Suites
Reviewed by
Cal Portner, City Administrator
Action Requested
Review and approve, by motion, the parking agreement.
Background/Discussion
On July 17, 2017, the City Council approved a parking variance for Elk River Lodge and Residential
Suites. One of the requirements of approval was preparation of a Proof of Parking agreement outlining
the process for construction of additional parking, should it be needed in the future.
The city attorney prepared a draft of the agreement and it was sent to the applicant for his review. The
applicant requested a number of changes, most of which the city attorney and staff feel are not in the
best interest of the community. During the variance process, the Council expressed concerns about
enforcement of the agreement and the city attorney believes that the requested changes would
compromise the city's ability to enforce the agreement.
The city attorney has agreed to some revision to sections 2 and 8 of the agreement which are reflected in
the version proposed for council.
Attachments
Draft Parking Agreement
Draft Parking Agreement – Briggs Revisions
V 17-02 Approval Letter
The Elk River Vision
A welcoming community with revolutionary and spirited resourcefulness, exceptional
service, and community engagement that encourages and inspires prosperity
PROOF OF PARKING
AGREEMENT
THIS AGREEMENT (“Agreement”), made and entered into this ______day of
____________, 2017, by and between ELK RIVER LODGE AND RESIDENTIAL SUITES,
LLC, (“Grantee”) and CITY OF ELK RIVER, a Minnesota municipal corporation (the “City);
A. Grantee is the fee owner of certain real property (“Property”) located in the City
of Elk River, County of Sherburne, State of Minnesota, legally described on Exhibit A attached
hereto and hereby made a part hereof; and
B. Grantee proposes to establish an apartment use on the Property (“Project”),
including parking to be used in connection therewith (the Project and the parking being
hereinafter called the “Improvements”); and
C. The Property currently has forty-seven (47) parking spaces on site; and
D. City Code requires 90 parking spaces for the Project; and
E. On July 17, 2017, the City Council granted a variance (Case No. V 17-02)
allowing the Project to proceed with 71 parking spaces; and
F. Grantee has submitted to the City a parking plan prepared by _______________
__________________ dated ___________________, 20___ (“Plan”), which provides for a total
of 71 parking spaces, in compliance with the approved variance, to be constructed on the
Property; and
G. A copy of the Plan is on file with the City and the Plan is hereby incorporated
herein by reference; and
H. Grantee is of the opinion that 71 parking spaces are not required for the operation
of the Project and Improvements, and has requested from the City Council a temporary parking
deferment allowing the construction of the proposed Project with five additional parking spaces
being added at this time and the remaining 20 parking spaces being added only if needed in the
future; and
I. The City Council did, on July 17, 2017, grant the request upon the conditions
hereinafter set out in this Agreement, which the City deems necessary to impose to ensure
compliance with the applicable City ordinances and to protect adjacent properties; and
J. Grantee is agreeable to the granting of the temporary parking deferment subject to
the conditions hereinafter set out, and is willing, and represents that it has the power and
authority, to enter into this Agreement.
NOW THEREFORE, in consideration of the granting by the City of the above
requested deferment, and of the mutual covenants and agreements hereinafter contained, it is
hereby agreed by and between the parties hereto as follows:
1. The City hereby confirms that it did, as above stated, grant a deferment from its
applicable code requirements whereby only 51 of the required 71 parking spaces need be
constructed on the Property at this time, subject, however, to the terms and conditions of this
Agreement.
2. If the City Council shall hereafter determine, in the Council’s sole and absolute
discretion, that there have been five or more parking shortage incidents at the Property within a
six month period, and that additional parking spaces are therefore required on the Property,
Grantee will, at its sole cost and expense, construct such additional parking spaces as the City
Council shall then require, up to the 71 parking spaces shown on the Plan. The City Council
need not require that all of the additional parking spaces be constructed at any one time, but may
require additional parking spaces be constructed from time to time as they deem them necessary,
again in the Council’s sole and absolute discretion, until the maximum number of parking spaces
as shown on the Plan have been constructed. The additional parking spaces from time to time
required by the City Council shall be built in full compliance with the Plan and the then
applicable City ordinances; provided, however, that Grantee may prepare and present to the City
a new parking plan for review and approval by the City Council, and if approved by the City
Council (which approval may be withheld for any reason or cause), such additional parking
spaces may then be constructed pursuant to the new parking plan, as approved, and subject to the
then applicable code requirements of the City, except as such code requirements may be waived
by deferments, if any, then granted. As above stated, the City Council shall be the sole judges of
whether or not additional parking is required, from time to time, and if so, how much is to be
constructed at any given time.
3. If the City Council determines that additional parking is required, the City shall
give written notice to Grantee of the determination that additional parking spaces are then
required, setting forth in the notice the number of spaces then required to be constructed, up to
the maximum shown on the Plan. Grantee within thirty (30) days after such notice is given, shall
give written notice to the City as to whether or not they will construct such additional parking
spaces pursuant to the Plan or will submit a new plan as above allowed. In the event a new plan
is to be submitted, it shall accompany the notice given to the City. If notice is not given to the
City within the 30-day period, Grantee shall be deemed to have agreed to construct such
additional spaces pursuant to the Plan.
4. Grantee shall commence construction of such additional parking spaces as are
then required by the City within ninety (90) days after the notice is given, unless Grantee elects
to submit a new parking plan, in which case such construction shall commence within ninety
(90) days after approval or rejection by the City Council of the proposed new plan. The 90-day
period may be extended for delays due to weather, labor disputes, material shortages or
unavailability of material, unavoidable casualty, acts of God, the public enemy, or other causes
beyond the reasonable control of Grantee, in which case the 90-day period shall be extended by a
period of time equal to any such delays; provided, that no extension shall be given for any such
delay unless written notice of such delay is given to the City within ten (10) days after the
commencement of the delay. Once commenced, the construction shall be completed with all due
diligence as soon as possible thereafter. The City shall be the sole judge of whether Grantee is
using due diligence in completing such construction.
2
5. If any term, condition, or provision of this Agreement, or the application thereof
to any person or circumstance, shall, to any extent, be held to be invalid or unenforceable, the
remainder hereof and the application of such term, provision, and condition to persons or
circumstances other than those as to whom is shall be held invalid or enforceable shall not be
affected thereby, and this Agreement, and all the terms, provisions, and conditions hereof, shall,
in all other respects, continue to be effective and to be complied with to the full extent permitted
by law.
6. In the event that Grantee fails or refuses to fully comply with all of its obligations
under this Agreement, or violates any of the provisions hereof, and such failure, refusal or
violation continues for a period of thirty (30) days after notice thereof is given to Grantee, then,
in that event, in addition to any other remedies then available to the City at law or in equity, the
City shall have the right to:
(a) Revoke the parking deferment described in this Agreement, in which case
Grantee shall immediately construct all parking spaces required by the
Plan, in full compliance with the Plan and all then applicable ordinances
of the City;
(b) Obtain enforcement of this Agreement by court order for mandatory
injunction or other appropriate relief; and
(c) Withhold, deny, or revoke any building permits, certificates of occupancy,
utility connection permits and any other permits and approvals, including
the parking variance granted in Case No. V 17-02 and described in this
Agreement, issued or granted by the City for the construction or
occupancy of all or any part of the Improvements, until such failure or
refusal ends and the Grantee fully complies with its obligations hereunder.
All of the foregoing remedies shall be usable and enforceable by the City separately or
concurrently as the City shall determine, and the use of one remedy shall not waive or preclude
the use of any or more of the other remedies. Also, the failure to exercise, or delay in exercising,
any remedy hereunder in the event of a failure or refusal by Grantee, shall not preclude the City
from thereafter exercising any of its remedies for the same or a subsequent failure or refusal.
Grantee agrees to pay to the City any and all costs and expenses incurred by the City in enforcing
this Agreement by the use of the remedies above set out or by other remedies or means available
to the City at law or in equity, including attorneys’ fees whether suit be brought or not, and with
interest on all such costs and expenses at the rate established by the City and allowed by law
from the dates incurred by the City until paid.
Grantee also aggress to pay all costs of collection of any monies due to the City from
Grantee pursuant hereto, and of such costs and expenses incurred in enforcing this Agreement,
with interest thereon, again including attorneys’ fees and whether suit be brought or not, with
interest from the dates such costs of collection were incurred until paid.
7. All notices, reports, or demands required or permitted to be given under this
Agreement shall be in writing and shall be deemed to be given when personally delivered to any
3
officer of the party to which notice is being given, or when deposited in the United States mail in
a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the
parties at the following addresses;
To the City: City Administrator
City of Elk River
13065 Orono Parkway
Elk River, MN 55330
To Grantee: _______________________________
_______________________________
_______________________________
Such addresses may be changed by any party upon notice to the other party given as herein
provided.
8. The terms and provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, and shall run with the title to the
Property and be binding upon all present and future owners of the Property. This Agreement
shall be recorded against the title to the property. If, for any reason, the provisions hereof should
be determined by the legal counsel for the City, or by a court of competent jurisdiction, not to be
binding upon and fully enforceable against any owner of the Property, then the deferment
granted by the City shall wholly cease and terminate and the Property shall be used and useable
only in full compliance with all then applicable ordinances of the City. If there be at any future
time more than one owner, which is currently Elk River Lodge and Residential Suites, LLC, of
the Property, all of such then owners, while they are such owners, shall be jointly and severally
liable for all obligations under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly
executed the day and year first above written.
Elk River Lodge and Residential Suites, LLC___________________________________
By:
Its
CITY OF ELK RIVER
By:
Its Mayor
And:
Its City Clerk
4
STATE OF MINNESOTA )
) ss.
COUNTY OF ___________ )
The forgoing instrument was acknowledged before me this ______ day of
____________, 20___, by ____________________________________________, the
___________________________________ of ______________________________, a
___________________________________, on behalf of the ____________________.
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF SHERBURNE )
The forgoing instrument was acknowledged before me this ______ day ____________,
20___, by ________________________________ and ________________________________,
the Mayor and City Clerk, respectively, of the City of Elk River, a Minnesota municipal
corporation, on behalf of the municipal corporation.
Notary Public
DRAFTED BY:
City of Elk River
13065 Orono Parkway
Elk River, MN 55330
5
EXHIBIT A
LEGAL DESCRIPTION
A-1
EXHIBIT B
PARKING PLAN
B-1
CONSENT
The undersigned, as the holder of that certain mortgage dated __________, 20___, filed
__________, 20___, in the office of the (Registrar of Titles) (County Recorder), Sherburne
County, Minnesota, as Document No. __________; which mortgage is secured by that certain
property described on Exhibit A to the foregoing Agreement, hereby consents to the execution,
delivery and filing of the foregoing Agreement (Proof of Parking Agreement) dated
_____________, 2017, by and between Elk River Lodge and Residential Suites, LLC, a
Minnesota limited liability company, and the City of Elk River, a Minnesota municipal
corporation; and acknowledges that the provisions of the Agreement shall be prior and superior
to the lien of the undersigned’s mortgage on the property described on Exhibit A to the
Agreement.
Dated this ___ day of __________, 2017.
___________________________________
By:
Its
STATE OF MINNESOTA )
) ss.
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this ______ day of
____________, 2017, by ___________________________________, the
___________________________________ of _______________________________, a
_________________________________________________, on behalf of the
____________________.
Notary Public
Consent - 1
PROOF OF PARKING
AGREEMENT
THIS AGREEMENT(“Agreement”),made and entered into this ______day of
____________, 2017, by and between ELK RIVER LODGE AND RESIDENTIAL SUITES,
LLC,(“Grantee”) and CITY OF ELK RIVER,a Minnesota municipal corporation (the “City);
A.Grantee is the fee owner of certain real property (“Property”) located in the City
of Elk River, County of Sherburne, State of Minnesota, legally described on ExhibitAattached
hereto and hereby made a part hereof; and
B.Grantee proposes to establish an apartment use on the Property (“Project”),
including parking to be used in connection therewith (the Project and the parking being
hereinafter called the “Improvements”); and
C.The Property currently has forty-seven (47) parking spaces on site; and
D.City Code requires 90 parking spaces for the Project; and
E.On July17, 2017, the City Council granted a variance (Case No.V17-02)
allowing the Project to proceed with 71 parking spaces; and
F.Grantee has submitted to the City a parking plan prepared by _______________
__________________ dated ___________________, 20___ (“Plan”),which provides for a total
of 71 parking spaces, in compliance with the approved variance, to be constructed on the
Property; and
G.A copy of the Plan is on file with the City and the Plan is hereby incorporated
herein by reference; and
H.Grantee is of the opinion that 71 parking spaces are not required for the operation
of the Project and Improvements, and has requested from the City Council a temporaryparking
defermentvarianceallowing the construction of the proposed Project with five additional parking
spaces being added at this time and the remaining 20 parking spaces being added only if needed
in the future; and
I.The City Council did, on July17, 2017, grant the request upon the conditions
hereinafter set out in this Agreement, which the City deems necessary to impose to ensure
compliance with the applicable City ordinances and to protect adjacent properties; and
J.Grantee is agreeable to the granting of the temporary parking defermentvariance
subject to the conditions hereinafter set out, and is willing, and represents that it has the power
and authority, to enter into this Agreement.
NOW THEREFORE,in consideration of the granting by the City of the above
requested Parking defermentvariance, and of the mutual covenants and agreements hereinafter
contained, it is hereby agreed by and between the parties hereto as follows:
1.The City hereby confirms that it did, as above stated, grant a defermentvariance
from its applicable code requirements whereby only 51 of the required 71 parking spaces need be
constructed on the Property at this time, subject, however, to the terms and conditions of this
Agreement.
1.If the City Council shall hereafter reasonably determine, in the Council’s sole and
Reasonable absolutediscretion, that additional parking spaces are required on the Property,
based on five valid consecutive parking civil complaints within a six month period.Grantee will,
at its sole cost and expense, construct such additional parking spaces as the City Council shall
then require, up to the 71 parking spaces shown on the Plan. The City Council need not require
that all of the additional parking spaces be constructed at any one time, but may require
additional parking spaces be constructed from time to time as they deem them necessary, again
in the Council’s sole and absolute discretion, until the maximum number of parking spaces as
shown on the Plan have been constructed. The additional parking spaces from time to time
required by the City Council shall be built in full compliance with the Plan and the then
applicable City ordinances, unless otherwise a parking precedence has been established in the
cityto ensure Elk River Lodge & Residential Suites, LLC is treated fairly; provided, however,
that Grantee may prepare and present to the City a new parking plan for review and approval by
the City Council, and if approved by the City Council (which approval may be withheld for any
reasonablereason or cause), such additional parking spaces may then be constructed pursuant to
the new parking plan, as approved, and subject to the then applicable code requirements of the
City, except as such code requirements may be waived by defermentvariances,or unless
otherwise a parking precedence has been established in the city to ensure Elk River Lodge &
Residential Suites, LLC is treated fairly.if any, then granted.As above stated, the City Council
shall be the sole judges of whether or not additionalparking is required, from time to time, and if
so, how much is to be constructed at any given time.
2.If the City Council reasonably determines that additional parking is requiredafter
required civil complaints, the City shall give written notice to Grantee of the determination that
additional parking spaces are then required, setting forth in the notice the number of spaces then
required to be constructed, up to the maximum shown on the Plan. Grantee within thirty(30)
days after such notice is given, shall give written notice to the City as to whether or not they will
construct such additional parking spaces pursuant to the Plan or will submit a new plan as above
allowed. In the event a new plan is to be submitted, it shall accompany the notice given to the
City. If notice is not givento the City within the 30-day period, Grantee shall be deemed to have
agreed to construct such additional spaces pursuant to the Plan.
3.Grantee shall commence construction of such additional parking spaces as are
then required by the City within ninety (90) days after the notice is given, unless Grantee elects
to submit a new parking plan, in which case such construction shall commence within ninety
(90) days after approval or rejection by the City Council of the proposed new plan. The 90-day
period may be extended for delays due to weather, labor disputes, material shortages or
unavailability of material, unavoidable casualty, acts of God, the public enemy, or other causes
beyond the reasonable control of Grantee, in which case the 90-day period shall be extended by a
period of time equal to any such delays; provided, that no extension shall be given for any such
delay unless written notice of such delay is given to the City within ten (10) days after the
commencement of the delay. Once commenced, the construction shall be completed with all due
2
diligence as soon as possible thereafter. The City Council shall be the sole judge which will be
reasonable and just of whether Grantee is using due diligence in completing such construction.
4.If any term, condition, or provision of this Agreement, or the application thereof
to any person or circumstance, shall, to any extent, be held to be invalid or unenforceable, the
remainder hereof and the application of such term, provision,and condition to persons or
circumstances other than those as to whom is shall be held invalid or enforceable shall not be
affected thereby, and this Agreement, and all the terms, provisions, and conditions hereof, shall,
in all other respects, continue to be effective and to be complied with to the full extent permitted
by law.
5.In the event that Grantee fails or refuses to fully comply with all of its obligations
under this Agreement, or violates any of the provisions hereof, and such failure, refusal or
violation continues for a period of thirty (30) days after notice thereof is given to Grantee, then,
in that event, in addition to any other remedies then available to the City at law or in equity, the
City shall have the right to:
(a)Revoke the parking defermentvariancedescribed in this Agreement, in
which case Grantee shall immediately construct all parking spaces
required by the Plan, in full compliance with the Plan and all then
applicable ordinances of the City;
(b)Obtain enforcement of this Agreement by court order for mandatory
injunction or other appropriate relief; and
(c)Withhold, deny, or revoke any building permits, certificates of occupancy,
utility connection permits and any other permits and approvals, including
the parking variance granted in Case No.V17-02 and described in this
Agreement, issued or granted by the City for the construction or
occupancy of all or any part of the Improvements, until such failure or
refusal ends and the Grantee fully complieswith its obligations hereunder.
All of the foregoing remedies shall be usable and enforceable by the City separately or
concurrently as the City shall determine, and the use of one remedy shall not waive or preclude
the use of any or more of the other remedies. Also, the failure to exercise, or delay in exercising,
any remedy hereunder in the event of a failure or refusal by Grantee, shall not preclude the City
from thereafter exercising any of its remedies for the same or a subsequent failure or refusal.
Grantee agrees to pay to theCity any and all costs and expenses incurred by the City in enforcing
this Agreement by the use of the remedies above set out or by other remedies or means available
to the City at law or in equity, including attorneys’ fees whether suit be brought or not, and with
interest on all such costs and expenses at the rate established by the City and allowed by law
from the dates incurred by the City until paid.Unless City Actions and judgment are determined
to be unreasonable by a Sherburne County Judge.
Grantee also aggress to pay all costs of collection of any monies due to the City from
Grantee pursuant hereto, and of such costs and expenses incurred in enforcing this Agreement,
3
with interest thereon, again including attorneys’ fees and whether suit be brought or not, with
interest from the dates such costs of collection were incurred until paid.
6.All notices, reports, or demands required or permitted to be given under this
Agreement shall be in writing and shall be deemed to be given when personally delivered to any
officer of the party to which notice is being given, or when deposited in the United States mail in
a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the
parties at the following addresses;
To the City:City Administrator
City of Elk River
13065 Orono Parkway
Elk River, MN 55330
To Grantee:_______________________________
_______________________________
_______________________________
Such addresses may be changed by any party upon notice to the other party given as herein
provided.
7.The terms and provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, and shall run with the title to the
Property and be binding upon all present and future owners of the Property. This Agreement
shall be recorded against the title to the property. If, for any reasonable reason, the provisions
hereof should be determined by the legal counsel for the City, or by a court of competent
jurisdiction, not to be binding upon and fully enforceable against any owner of the Property, then
the defermentvariancegranted by the City shall wholly cease and terminate and the Property
shall be used and useable only in full compliance with all then applicableordinances of the City.
If there be at any future time more than one owner which is currently Elk River Lodge &
Residential Suites, LLC of the Property, all of such then owners, while they are such owners,
shall be jointly and severally liable for all obligations under this Agreement.
IN WITNESS WHEREOF,the parties hereto have caused this instrument to be duly
executed the day and year first above written.
___________________________________
By:
Its
CITY OF ELK RIVER
4
By:
Its Mayor
And:
Its City Clerk
5
STATE OF MINNESOTA)
) ss.
COUNTY OF ___________)
The forgoing instrument was acknowledged before me this ______ day of
____________, 20___, by ____________________________________________, the
___________________________________ of ______________________________, a
___________________________________, on behalf of the ____________________.
Notary Public
STATE OF MINNESOTA)
) ss.
COUNTY OF SHERBURNE)
The forgoing instrument was acknowledged before me this ______ day ____________,
20___, by ________________________________ and ________________________________,
the Mayor and City Clerk, respectively, of the City of Elk River, a Minnesota municipal
corporation, on behalf of the municipal corporation.
Notary Public
DRAFTED BY:
City of Elk River
13065 Orono Parkway
Elk River, MN 55330
6
EXHIBIT A
LEGAL DESCRIPTION
A-1
EXHIBIT B
PARKING PLAN
B-1
CONSENT
The undersigned, as the holder of that certain mortgage dated __________, 20___, filed
__________, 20___, in the office of the (Registrar of Titles) (County Recorder), Sherburne
County, Minnesota, as Document No. __________; which mortgage is secured by that certain
property described on ExhibitAto the foregoing Agreement, hereby consents to the execution,
delivery and filing of the foregoing Agreement (Proof of Parking Agreement) dated
_____________, 2017, by and between Elk River Lodge and Residential Suites, LLC, a
Minnesota limited liability company, and the City of Elk River, a Minnesota municipal
corporation; and acknowledges that the provisions of the Agreement shall be prior and superior
to the lien of the undersigned’s mortgage on the property described on ExhibitAto the
Agreement.
Dated this ___ day of __________, 2017.
___________________________________
By:
Its
STATE OF MINNESOTA)
) ss.
COUNTY OF ___________)
The foregoing instrument was acknowledged before me this ______ day of
____________, 2017, by ___________________________________, the
___________________________________ of _______________________________, a
_________________________________________________, on behalf of the
____________________.
Notary Public
Consent -1
Case No. V 17-02
August 18, 2017
Elk River Lodge & Residential Suites EEmail
Email: CR@thebriggscompanies.com
19021 Freeport Street NW, Suite #500E
Elk River, MN 55330
RE: Variance Application Approval
Dear Pat Briggs:
Your request for a variance to reduce the number of parking spaces required for an apartment
building was approved by the City Council at their July 17, 2017, meeting as follows:
Moved by Mayor Dietz and seconded by Councilmember Westgaard to approve the
variance for Elk River Lodge for a reduction in the number of parking spaces
required for an apartment building with the following conditions:
1. The applicant will construct a 25-unit garage for use by residents of Elk River
Lodge and Residential Suites.
2. The applicant will expand the parking lot to provide a total of 52 on-site
parking stalls (1.44 stalls/unit).
2A. The applicant will expand the parking lot to provide a total of 71 parking
spaces to provide a total parking stalls (1.97 stalls/unit).
Alternatively:
3. The applicant will provide a proof of parking site plan demonstrating the
required 1.97 stalls/unit, and enter into a proof of parking agreement with the
city, subject to council approval. The agreement will state that 19 additional
stalls must be constructed in accordance with the proof of parking site plan
when five parking concerns are identified in a six-month period.
Motion carried 5-0.
Phone: 763.635.1000
www.ElkRiverMN.gov
Please advise staff how you wish to proceed, so that the variance can be drafted for recording. If
you have any questions, please contact Planning Manager Zack Carlton at 763.635.1035 or email at
zcarlton@elkrivermn.gov.
Sincerely,
Debbie Huebner
Sr. Administrative Assistant
Ph: 763.635.1032
dhuebner@elkrivermn.gov