Loading...
HomeMy WebLinkAbout2323z3Z3 AGREEMENT (Conditions to Parking Variance) ;,� i� THIS AGREEMENT, Made and entered into this = day of _ !`�i'f , 1987, by and between LINDSAY CAN -AM LIMITED PARTNERSHIP, a Minnesota limited partnership ( "Partnership ") and CITY OF EDINA, a Minnesota municipal corporation (the "City "); WITNESSETH, THAT: WHEREAS, The Partnership is the fee owner of certain real property ( "Property ") located in the City of Edina, County of Hennepin, State of Minnesota, legally described on Exhibit A attached hereto and hereby made a part hereof; and WHEREAS, The Partnership proposes to construct an addition of approximately 6,000 square feet to the building currently existing on the Property ( "Building "), which addition is to include parking and landscaping to be used in connection therewith (the addition and said parking and landscaping being hereinafter called the "Improvements "); and WHEREAS, the Building currently has forty -one (41) parking spaces on site but would need sixty -five (65) parking spaces, following completion of the proposed addition, to comply with the City's zoning ordinances; and WHEREAS, The Partnership has submitted to the City a parking plan prepared by Amcon Corporation dated September 3, 1986, and prepared by Mr. Jeffrey C. Anderson ( "Plan "), which Plan provides for a total of 70 parking spaces, in compliance with City ordinances, to be constructed on the Property; a copy of which Plan is on file with the City and which Plan is incorporated herein by reference; and WHEREAS, The Partnership is of the opinion that 70 parking spaces are not required for the operation of the Building and Improvements, and it requested of the City Council a temporary parking variance allowing the construction of the proposed addition with additional parking spaces being added only if needed in the future; and WHEREAS, the City did, on September 15, 1986, in Case No. P -86 -4, grant the requested variance because strict enforcement of the City ordinances would, in this case, cause undue hardship because of circumstances unique to the Property, and the grant of such variances has been determined by the City to be in keeping with the spirit and intent of the applicable ordinances, but the parking variance was temporary only and was conditioned upon the execution, delivery, and recording of this Agreement, and 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 WHEREAS, The Partnership is agreeable to the granting of the temporary parking variance subject to the conditions hereinafter set out, and is willing, and represents that it has the power and authority, to enter into this Agreement; and WHEREAS, the Partnership has executed and delivered a mortgage to TCF Banking and Savings, F.A. ( "TCF "), a federally chartered stock savings and loan association, dated November 26, 1986, and filed February 25, 1987, as Document No. 1807454, covering the property. NOW, THEREFORE, in consideration of the granting by the City of the above requested variance, 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 variance from its applicable ordinances whereby no additional parking spaces need be constructed on the property, subject, however, to the terms and conditions of this Agreement. 2. If the City Manager and the City Planner shall hereafter determine, in their sole and absolute discretion, that additional parking spaces are required on the Property, the Partnership will, at its sole cost and expense, construct such additional parking spaces as the City Planner and City Manager shall then require, up to the maximum number of parking spaces shown on the Plan. The City Planner and City Manager need not require that all of the additional parking spaces be constructed at any one time, but may require additional parking spaces to be constructed from time to time as they deem them necessary, again in their 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 Manager and the City Planner shall be built in full compliance with the Plan and the then applicable City ordinances; provided, however, that the Partnership may prepare and present to the City a new parking plan for review and approval by the City, and if approved by the City (which approval may be withheld for any reason or cause), such additional parking spaces may then be constructed pursuant to -2- said new parking plan, as approved, and subject to the then applicable ordinances of the City, except as such ordinances may be waived by variances, if any, then granted. As above stated, the City Manager and City Planner 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. (a) The City Manager and the City Planner shall give written notice to the Partnership of their determination that additional parking spaces are then required, setting forth in said notice the number of spaces then required to be constructed, up to the maximum shown on the Plan. The Partnership 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 no notice is given to the City within said 30 -day period, the Partnership shall be deemed to have agreed to construct such additional spaces pursuant to the Plan. (b) The Partnership shall commence construction of such additional parking spaces as are then required by the City Manager and the City Planner within ninety (90) days after said notice is given by the City Planner and the City Manager unless the Partnership 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 of the proposed new plan. The 90 -day period shall 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 the Partnership, 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 the Partnership is using due diligence in completing such construction. 3. The parties hereby agree and acknowledge that the City contemplates constructing a street linking West 77th Street on the north with West 78th Street on the south ( "Street "). The Street would commence at or near the southwest corner of the Property, and would materially alter and effect traffic patterns in the general area. In the event of the construction of the Street and as a further condition of the granting of the parking variance, it is agreed by the parties: -3- (a) Prior to commencing construction of the Street, the City shall notify the Partnership in writing of the construction schedule to be followed, including the anticipated date of completion. (b) Upon receipt of the construction schedule, the Partnership will take any and all steps necessary to remove the southerly most curb cut which now exists on the Property and replace it with curb and gutter constructed and installed according to specifications provided by the City. (c) The Partnership shall complete the removal of the curb cut and replacement with the curb and gutter no later than the anticipated date of completion of the Street. Such removal and replacement shall not be deemed completed until it is approved and accepted by the City. (d) The Partnership shall use persons, methods, and materials that are acceptable to the City in doing such removal and replacement and shall be solely responsible for paying any and all costs or expenses, of whatever nature or amount, incurred in removing the curb cut and replacing the curb and gutter. (e) Upon completion of such removal and replacement, the City shall construct a new curb cut on the newly constructed Street, in a location to be selected exclusively by the City, which will provide access to the Property. The cost of constructing the new street, including the new curb cut, may be assessed by the City to the Property or properties that benefit from the new street and curb cut and, in the event the cost of constructing the new curb cut is assessed, the Partnership hereby waives any objection or objections it may have to the assessment procedure taken by the City or the amount which is assessed against tl.e Property for the new curb cut, either as proposed, adopted or levied; and, further waives its right to appeal the assessment for the new curb cut for any reason. Nothing herein shall be construed as a waiver by the Partnership of its right to objection to or appeal the assessment of the costs of constructing the new street. In the event the Partnership fails to comply with the covenants and conditions set forth in this paragraph, the City shall have all of the rights and remedies contained in paragraph 5 of this Agreement. 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 -4- term, provision, and condition to persons or circumstances other than those as to whom it shall be held invalid or unenforceable 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 the Partnership 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 the Partnership, 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 said parking variance described in this Agreement, in which case the Partnership 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) Enter upon the Property with such personnel, equipment, and materials as the City deems necessary for the purpose of performing the obligations of the Partnership hereunder that it has failed or refused to perform, or, at the City's discretion, for the purpose of constructing some or all of the parking spaces shown on and pursuant to the Plan, whether or not then required hereunder to be constructed, or to remove the southerly most curb cut on the property, and replace it with a curb and gutter, without liability or obligation of any kind to the Partnership or any owner or occupant of the Property for trespass or damage to the Property, the Improvements, or other property or improvements thereon or for loss of business or business interruption, or any other cause, all of which liability and obligation is hereby waived by the Partnership, and if any person makes any claim against City for loss or damage to property or business due to such entry, the Partnership agrees to hold City harmless from and indemnified against any loss, cost, damage or expense, including attorneys' fees whether suit be brought or not, arising out of such claim, and to pay to City, upon demand of City, any such loss, cost, damage or expense, including attorneys' fees, suffered or incurred by City, with interest at eight percent (8 %) per annum from the date demanded until paid. (c) Obtain enforcement of this Agreement by court order for mandatory injunction or other appropriate relief; and -5 (d) Withhold, deny, or revoke any building permits, certificates of occupancy, utility connection permits and any other permits and approvals, issued or granted by the City for the construction of occupancy of all or any part of the Improvements, until such failure or refusal ends and the Partnership 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 one 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 the Partnership, shall not preclude City from thereafter exercising any of its remedies for the same or a subsequent failure or refusal. The Partnership agrees to pay to City any and all costs and expenses incurred by 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 of eight percent (8 %) per annum from the dates incurred by the City until paid. The Partnership also agrees to pay all costs of collection of any monies due to the City from the Partnership 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 at the rate of eight percent (8 %) per annum 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 Unites States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the parties at the following addresses: To City: 4801 West 50th Street Edina, Minnesota 55424 Attn: City Manager To the Partnership: 7240 Metro Blvd. Edina, Minnesota 5542X35 To TCF: TCF Banking and Savings, F.A. Attention: Commercial Real Estate Department 801 Marquette Avenue Minneapolis, Minnesota 55402 Such addresses may be changed by any party upon notice to the other party given as herein provided. 7. Notwithstanding anything to the contrary herein, the parties hereto agree that in the event TCF or its assignee (the "Lender ") as the holder of a certain mortgage dated November 26, 1986 and filed on February 25, 1987, as Document No. 1807454, Files of the Registrar of Titles, County of Hennepin, shall acquire title to the Property by foreclosure, deed in lieu of foreclosure or otherwise, Lender or any purchaser acquiring title from Lender, shall be entitled to all of the benefits and be subject to all of the obligations of this Agreement including, but not by way of limitation, the right to use of the Property in accordance with the variances referenced herein. In addition, the City agrees to give to Lender a copy of any notice given to the Partnership under paragraph 6 of this Agreement and to provide Lender with 30 days following the giving of such notice in which Lender may, at its option, cure any default by the Partnership. 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 to the parties entitled to the benefits of this Agreement as provided in paragraph 7 hereof, and shall run with the title to the Property and be binding upon all present and future owners of the Property. If, for any reason, the provisions hereof should be determined by the legal counsel for City, or by a court of competent jurisdiction, not to be binding upon and fully enforceable against any owner of the Property, then the variance granted by City in Case No. P -86 -4 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 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. LINDSAY CAN -AM LIMITED PARTNERSHIP oe By Its General Partner -7- CITY OF EDINA By Its Mayor l Andi Its'Manager STATE OF MINNESOTA) )SS. COUNTY OF HENNEPIN} ' " "''' t-,The foregoing instrument was acknowledged before me this -�! day of /)L(ILu , 1987, by l' -:l�, t, � %?/ , the General Partner of LINDSAY CAN -AM LIMITED PARTNERSHIP, a Minnesota limited partnership, on behalf of said partnership. Notary Public STATE OF MINNESOTA) )SS. COUNTY OF HENNEPIN) r The foregoing instrument was acknowledged before me this / day o �TG{.z%-e- , 1987, by ��, hid - � and 4 �. ,% the Mayor and Manager, res ectively, of the City of Edina, a Minnesota municipal corporation, on behalf of said municipal corporation. This instrument drafted by: Dorsey & Whitney 2200 First Bank Place East Minneapolis, Minnesota 55402 -8- w�•.. CRAIG L. LARSEN ai! !� �� NOTARY PUBLIC - MI11NES07A `. HENNEPIN COUNTY .••'' My COmmission Expires Aug. 27, 1994 EXHIBIT A Tract M, Registered Land Survey No. 1218, Files of the Registrar of Titles, County of Hennepin, State of Minnesota; -9- CONSENT The undersigned, as the holder of that certain mortgage dated November 26, 1986, filed February 25, 1987, in the office of the Registrar of Titles, Hennepin County, Minnesota, as Document No. 1807454; which mortgage is secured by that certain property described as: Tract M, Registered Land Survey No. 1218, Files of the Registrar of Titles, County of Hennepin, Minnesota. hereby consents to the execution, delivery and filing for registration of the foregoing Agreement (Conditions to Parking Variance) by and between LINDSAY CAN -AM LIMITED PARTNERSHIP, a Minnesota limited partnership and CITY OF EDINA, a Minnesota municipal corporation; and acknowledges that the provisions of said Agreement shall be prior and superior to the lien of the undersigned's mortgage on the above - described property. This consent shall not be construed as making the undersigned a party to the foregoing Agreement. Dated this X�4-day of L , 1987. STATE OF MINNESOTA ss. COUNTY OF HENNEPIN TCF BANKING AND SAVINGS, F.A. By Its -- ! - -- - B AP Its he foregoing instrument was acknowledged before me this � n da of L.- _, 1987, by i �111oTifY 7 f�A /j�rLTi��� .4ti'1�,' the ✓ LE f' Ems. of fCF Banking and Savings, F.A., a federally chartered stock savings and loan association, on behalf of said association. mmL 'EAk AT& oFFICCP_ Notary Pu 1'C . �r. t�nn,�,�nnnrn�nnn��,tiwvvvvv�nn o ZONE M NIEDUR -10- A "y iur .::•t P :�pt� S 3, 192 1 It I This Instrument Was Drafted By: Dorsey & Whitney 2200 First Bank Place East Minneapolis, Minnesota 55402 Mcc.kpcck e — &z -11- Z3�3 01 v 335 OFFICE OF THE REGISTRAO OF TITLES HEN!-4 -- lIN COUNTY. MINNESOTd CERTIHED FILED ON ov REGISTRAR OF TITLES mewal