4.10a SR 10-05-2020Request for Action
To Item Number
Mayor and City Council 4.10. A
Agenda Section Meeting Date Prepared by
Consent October 5, 2020 Chris Leeseberg, Senior Planner
Item Description Reviewed by
CommonBond Planned Unit Development Zack Carlton, Planning Manager
Agreement
Reviewed by
Cal Portner, City Administrator
Action Requested
Approve, by motion, the Planned Unit Development Agreement for
Elk Ridge Center (CommonBond Apartment)
Background/Discussion
On July 20, 2020, the City Council approved a Land Use Amendment,
a Zone Change, and a Conditional Use Permit establishing a Planned
Unit Development for Elk Ridge Center (CommonBond Apartment).
The conditions imposed by Council included a requirement to prepare
a Planned Unit Development Agreement. This agreement outlines
the allowed uses, design standards, and approval process for future
development on the property.
The applicant has reviewed the document and any comments have
been incorporated into the final draft.
Financial Impact
None
Attachments
Planned Unit Development Agreement
The Elk River Vision
A welcoming community with revolutionary and spirited resourcefulness, exceptional
service, and community engagement that encourages and inspires prosperity.
Updated: August 2020
SECOND AMENDMENT TO PLANNED UNIT DEVELOPMENT
AGREEMENT
FOR
ELK RIDGE CENTER
THIS SECOND AMENDMENT TO PLANNED UNIT DEVELOPMENT
AGREEMENT (the “Amended PUD Agreement”), made and entered into this _____ day
of _____________, 2020, by and between the CITY OF ELK RIVER, a municipal
corporation organized under the laws of the State of Minnesota (the “City”) and 7040
Lakeland Partners, LLC, a Minnesota limited liability company (the “Developer”);
W I T N E S S E T H:
WHEREAS, Developer is the fee owner of certain property located within the City
and legally described as follows:
Lot 1, Block 1, Elk Ridge Center
Second Addition (“Lot 1”)
Outlot A, Elk Ridge Center
Fifth Addition (“Outlot A”)
Outlot C, Elk Ridge Center
Third Addition (“Outlot C”)
(Lot 1, Outlot A, and Outlot C are collectively referred to in this Amended PUD Agreement
as the “Subdivision”.)
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WHEREAS, the Subdivision is located within Elk Ridge Center, a Planned Unit
Development subject to the terms of a Planned Unit Development Agreement dated June
24, 2004 and amended on March 7, 2006 (together, the “PUD Agreement”); and
WHEREAS, application was made to the City for the following land use approvals
for the Subdivision:
1) To amend the City’s land use map to change the land use designation for Lot 1
and a portion of Outlot A from HB (Highway Business) to HR (High Density Residential)
(Case No. LU 20-02);
2) To approve a Conditional Use Permit (the “CUP”) for Lot 1 and a portion of
Outlot A (the “Project Property”) to develop a multifamily residential apartment building
(the “Project”) (Case No. CU 20-07);
3) To approve a preliminary plat replatting Lot 1 and a portion of Outlot A(Case No.
P 20-05); and,
4) To approve an easement vacation on Outlot A (Case No. EV 20-02).
All as provided by the applicable Sections the Elk River City Code of Ordinances; and
WHEREAS, the City Council of the City of Elk River (the “City Council”), on July
20, 2020, approved the land use approvals for the Project, subject to a number of conditions;
and
WHEREAS, one of the conditions of the land use approvals is that Developer enter
into this Amended PUD Agreement with City to be approved by the City Council; and
WHEREAS, the purposes of this Amended PUD Agreement are to set forth the
conditions, standards, uses, and procedures for development of the Project as a Planned
Unit Development.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and conditions hereafter contained, it is hereby agreed as follows:
1.) PUD Agreement Remains in Effect. This Amended PUD Agreement
amends, and does not replace, the PUD Agreement, which shall remain in
effect as previously approved and amended, except as amended by this
Amended PUD Agreement.
2.) Warranty of Developer - Developer hereby warrants and represents to City,
as inducement to City’s entering into this Amended PUD Agreement, that
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Developer is the fee owner of all of the properties located within the
Subdivision. Developer further represents that it intends to sell some or all
of the parcels within the Subdivision to third parties unrelated to Developer
(individually, a “Third Party” and collectively, the “Third Parties”). This
Amended PUD Agreement shall run with the land and shall be binding on
Third Parties and The term “Developer” as used in this Amended PUD
Agreement shall mean the Developer or such Third Parties as successor
owners of the property within the Subdivision.
3.) Development - The Project shall be developed in accordance with the
following plans attached as exhibits hereto, as the same may be amended as a
part of the final plat approval process for the first phase or future phases or
as an amendment to the CUP for the Project:
Exhibit C Final Plat
Exhibit D Site Plan
Exhibit E Grading/Drainage and Erosion Control Plan
Exhibit F Landscape Plan
Exhibit G Building Elevations - Architectural Design Standards
4.) Uses –
(01) Permitted Uses –
The following uses shall be allowed as permitted uses within the Project,
subject to the approval process set forth in paragraph 5:
a. Project Property: Residential, apartment
Structure, accessory
b. The remainder of Outlot A & Outlot C: all uses allowed by the PUD
agreement and the comprehensive land use map
5.) Approval by City - City hereby approves the land use approvals for the
Project as shown in the attached exhibits provided, however, that insofar as the exhibits vary
from the written terms of this Amended PUD Agreement, the written terms shall govern.
This approval is subject to the requirement that final plat approval for the Project be
obtained and the City Council’s right to attach such conditions as it deems appropriate to the
final plat approval for the Project. This approval of the Project is subject to individual site
and building plan review and approval as follows:
(01) Site Plan Approval -
(a) Site plan approval shall be required prior to issuance of building
permits for the Project, both for initial construction and for any subsequent
expansion, exterior remodeling of a structure, redevelopment of a site, or substantial
revision of an approved site plan. .
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(b) Each site plan approval request shall be accompanied by such plans
and supporting materials as City staff shall require, and shall be reviewed by the
Planning Commission and City Council in a public hearing held thereon before
approval.
(c) Site plan approval shall be granted only if the City Council finds that
the proposed site plan is consistent with the terms and conditions of the CUP for
the Project, this Amended PUD Agreement, applicable City Ordinance requirements
and all other legal requirements. City reserves the right to refuse approval of an
individual site plan if, in the City Council’s judgment, this condition is not met.
(d) The City Council may, when approving individual site plans, impose
such conditions as it shall deem necessary to insure that the Project complies with
the requirements of the PUD Agreement, as amended from time to time, the
Amended PUD Agreement, the CUP, as amended from time to time, and the City
Code of Ordinances.
(02) Conditional Use Permit Approval - In addition to the site plan approval
process set forth above, a CUP shall be applied for and approved, pursuant to the
Elk River Zoning Ordinance, for any other use in the Subdivision. Each such
conditional use shall be considered and acted upon by the City Council pursuant to
the standards set forth in the Zoning Ordinance for conditional uses, as well as the
standards and requirements set forth in the PUD Agreement, and all amendments
and attachments hereto.
(03) Planned Unit Development Amendment - In addition to site plan approval
and CUP approval for individual lots and sites within the Project, any substantial
revision to the Plans identified in paragraph 3 of this Amended PUD Agreement
shall require an amendment, by CUP, of the Planned Unit Development.
6.) Maintenance of Project Areas –
(01) Maintenance Agreements - Developer shall provide evidence of satisfactory
provision for control and maintenance of jointly used or commonly owned
parking, drainage and landscaped areas within the Project. Reciprocal
maintenance, parking and access easements shall be provided to and
approved by the City Attorney prior to the issuance of certificates of
occupancy so as to insure satisfactory control, ownership and maintenance.
These agreements shall provide that the Developer and its successors shall be
obligated to maintain all common areas, drainage areas, outlots and
landscaping in the Project.
(02) Enforcement - Failure of Developer or a Third Party to meet its maintenance
obligations under this paragraph will be grounds for City to invoke against
that party any remedy which City has under the PUD Agreement, and this
Amended PUD Agreement.
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7.) Remedies - Should Developer or a Third Party breach any of the terms and
conditions of the PUD Agreement or this Amended PUD Agreement, and if
such breach is not cured within thirty (30) days after written notice, or if such
cure shall reasonably require longer than thirty (30) days to cure, within such
longer period as shall be reasonably necessary to cure such breach, provided
Developer or the Third Party commences cure within such thirty (30) day
period and diligently proceeds to cure such breach thereafter, City shall have
any or all of the following remedies against the party (and the property
owned by such party) who has breached:
(01) Withhold issuance of building permits or certificates of occupancy for any
structure within the Project;
(02) Halt construction on improvements not commenced or not completed;
(03) Institute prosecution of Developer or the Third Party under the relevant
provisions of the City Zoning Ordinance;
(04) Draw upon any financial security provided the City to assure compliance;
(05) Institute a civil action to compel compliance or recover damages or both.
During construction of the Project, Wells Fargo Bank, National Association shall
have the right (but not obligation) to cure any such breaches within the time periods
set forth in this Section. Further, the partners of any Third Party shall have the right,
but not obligation, to cure any breach by a Third Party under the PUD Agreement
and this Amended PUD Agreement within the time periods set forth in this Section.
8.) Additional Specific Conditions
(01) The conditions set forth in the City Council’s approval of the CUP for the
Project and in Resolution No. 20-XX attached hereto as Exhibit B,
approving the final plat of the Project, are specifically incorporated into this
Amended PUD Agreement and made a part hereof. Violation of any of the
conditions set forth in this Resolution shall be a violation of the terms of this
Amended PUD Agreement.
(02) Proof of Parking – For a period of three years after issuance of a certificate
of occupancy for the Project, City will monitor parking capacity and
utilization at the Project. If City determines, in its sole discretion, that the
parking provided on Lot 1 to serve the Project is inadequate to meet the
demand for parking generated by the Project, City shall have the right to
require Developer, or a Third Party then in ownership of Lot 1 and/or
Outlot A, to provide up to an additional 30 parking spaces on Outlot A to
serve the Project. The additional parking spaces on Outlot A may be
developed as a stand-alone parking lot (subject to site plan review as
provided in the Amended PUD Agreement), or may be incorporated into the
site plan for a future development on Outlot A, but must be for exclusive use
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of the tenants, employees, and guests of the Project. Any development on
Outlot A before this condition expires shall include, in addition to adequate
parking as approved by the City for the proposed development, proof of 30
additional parking spaces for potential future use by the Project.
(03) This condition shall expire three years after the date of issuance of a
certificate of occupancy for the Project, but only if the City has not given
Developer, or the then Third Party owner of Lot 1, and/or Outlot A, written
notice by that date that installation of the 30 additional parking spaces is
being required pursuant to this Amended PUD Agreement and the
conditions for the land use approvals for the Project.
(04) Sidewalk to Holt Street – Developer shall install, prior to issuance of a
certificate of occupancy for the Project, a sidewalk across Lot 1 and Outlot C
connecting the Project to the existing sidewalk on Holt Street.
9.) General Conditions - If Developer or a Third Party fails to comply with any
of the provisions hereof, City may refuse to issue to the Party in breach a
building permit or certificate of occupancy for any lot or parcel in the
Subdivision. Developer agrees to advise purchasers of any lot or parcel
within the Subdivision of the existence of this Amended PUD Agreement
and the obligations and restrictions created herein prior to the completion of
a sale. Further, Developer agrees to save and hold City harmless from any
and all claims or actions arising from the right to withhold the issuance of
such permits and certificates and from other provisions hereof.
10.) Binding Effect - The terms and provisions hereof shall run with the land and
shall be binding upon and inure to the benefit of the heirs, representatives,
successors and assigns of the parties hereto and shall be binding upon all
Third Parties or other future owners of all or any part of the Subdivision, and
shall be deemed covenants running with the land. This Amended PUD
Agreement shall be placed of record so as to give notice hereof to
subsequent purchasers and encumbrances of all or any part of the
Subdivision, and all recording fees, shall be paid by the Developer.
11.) Severable - In the event that any portion of this Amended PUD Agreement
shall be held invalid for any reason, the same shall not affect in any respect
whatsoever the validity of the remainder of this Amended PUD Agreement.
12.) Waiver - Any waiver, whether express or implied, by any party of a breach of
any provision of this Amended PUD Agreement, will not operate as or be
construed to be a waiver of any subsequent breach of this Amended PUD
Agreement.
13.) Notices - All notices and demands specified herein shall be deemed
appropriately and timely given when delivered personally or deposited in the
United States Mail to the addresses hereinafter set forth by certified mail
(return receipt requested). The addresses of the parties hereto are as follows
until changed by written notice given as above:
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If to the City at: City of Elk River
Attn: City Administrator
P.O. Box 490
13065 Orono Parkway
Elk River, Minnesota 55330
If to the Developer at: 7040 Lakeland Partners, LLC
th
80 South 8 Street, Suite 1850
Minneapolis, Minnesota 55402
With a Copy to: CB Elk River Housing Limited Partnership
Attn: Chief Manager
1080 Montreal Avenue
St. Paul, MN 55116
and
Wells Fargo Affordable Housing Community
Development Corporation
MAC D1053-170
301 South College Street, 17th
Charlotte, NC 28288
Attn: Director of Asset Management
During the construction of the Project
A Copy to: Wells Fargo Bank, National Association
301 S. College Street
MAC D1053-170
Charlotte, NC 28288
Attention: Manager, CLI Deal Management
14.) Incorporation by Reference - All plans, special provisions, proposals,
specifications and contracts made or to be made pursuant to this Amended
PUD Agreement shall be and hereby are made a part of this Amended PUD
Agreement by reference as fully as if set forth herein in full.
15.) Entire Agreement - This Amended PUD Agreement, together with the
exhibits attached hereto and the PUD Agreement, sets forth the entire
understanding between the parties, there being no terms, conditions,
warranties or representations other than those contained herein, including
the exhibits hereto, and no amendments hereto shall be valid unless made in
writing and signed by all the parties hereto.
\[The remainder of this page has been left intentionally blank.\]
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IN WITNESS WHEREOF, the City and the Developer have caused this Amended
PUD Agreement to be duly executed on the day and year first above written.
CITY OF ELK RIVER
By: ______________________________
John Dietz
Its: Mayor
By: ______________________________
Tina Allard
Its: City Clerk
DEVELOPER:
7040 Lakeland Partners, LLC
By: ________________________________
Its: ________________________________
STATE OF MINNESOTA
ss.
COUNTY OF SHERBURNE
The foregoing instrument was acknowledged before me this ______
day of _______________, 2020, by John Dietz and Tina Allard, the Mayor and City Clerk,
respectively, for the City of Elk River, Minnesota.
________________________________
Notary Public
STATE OF MINNESOTA
ss.
COUNTY OF SHERBURNE
The foregoing instrument was acknowledged before me this ______
day of _______________, 2020, by __________, the ______________ of 7040 Lakeland
Partners, LLC, a limited liability company
________________________________
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
Beck Law Office
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EXHIBIT A
LEGAL DESCRIPTION
See page 1
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EXHIBIT B
RESOLUTION NO. 20-XX GRANTING FINAL PLAT APPROVAL
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EXHIBIT C
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EXHIBIT D
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EXHIBIT E
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EXHIBIT F
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EXHIBIT G
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