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HomeMy WebLinkAbout2439350 PARK AVENUE NEW YORK, NEW YORK 10022 (212) 415 -9200 1330 CONNECTICUT AVENUE, N. W. WASHINGTON, D. C. 20036 (202) 657 -0700 3 GRACECHURCH STREET LONDON EC3V OAT, ENGLAND 44 -71- 929 -3334 36, RUE TRONCHET 75009 PARIS, FRANCE 33-1- 42- 66 -59 -49 45, RUE DE TREVES B -1040 BRUSSELS, BELGIUM 32- 2-238 -78 -I1 Mr. Craig Larsen City Planner City of Edina 4801 West 50th Street Edina, Minnesota 55424 Dear Craig: DORSEY & WHITNEY A PAHTNHHSHIP INGLUDING PROFESSIONAL CORFOEATIONS 2200 FIRST BANK PLACE EAST MINNEAPOLIS, MINNESOTA 55402-1498 (612) 340 -2600 TELEX 29 -0605 FAX (612) 340 -2868 THOMAS S. MUCSSON (812) 410 -2666 December 10, 1990 Re: Christ Presbyterian Church Proof of Parking Agreement 201 FIRST AVENUE, S_ W, SUITE 340 ROCHESTER, MINNESOTA 55902 (507) 288-3156 1200 FIRST INTERSTATE CENTER BILLINGS, MONTANA 59103 (406) 252-3800 201 DAVIDSON BUILDING GREAT FALLS, MONTANA 59401 (406) 727-3632 127 EAST FRONT STREET MISSOULA, MONTANA 59802 (406) 721 -6025 Enclosed for your records is the original executed Proof of Parking Agreement by and between Christ Presbyterian Church and the City of Edina, dated October 19, 1989. This Agreement was recorded in the office of the Registrar of Titles, Hennepin County, Minnesota on November 27, 1990, as Document No. 2139255. Very truly yours, TNV Thomas S. Erickson TSE:kks Enclosure �r 2784g AGREEMENT *�`1sq THIS AGREEMENT, Made and entered into this 19th day of October , 1989, by and between CHRIST PRESBYTERIAN CHURCH OF EDINA, a Minnesota religious corporation (the "Church ") and CITY OF EDINA, a Minnesota municipal corporation (the "City "); WITNESSETH, THAT WHEREAS, The Church is the 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 Church proposes to construct an addition ( "Addition ") of approximately 29,610 square feet to the building currently existing on the Property ( "Building "); and WHEREAS, although the present number of-,,parking spaces available on the Property will, following completion of the Addition, exceed the number of parking spaces required by the City's zoning ordinance, the City is concerned that future use of the Property could increase traffic flow and render existing parking inadequate; and WHEREAS, the Church has sought a Conditional Use Permit from the City for construction of the Addition in accordance with the plan prepared by Robert David Burow Architects, Inc. ( "Plan "), which plan provides for additional parking spaces; and WHEREAS, the City did, on July 24, 1989, in Case No. C -89 -1, approve the issuance of the Conditional Use Permit for construction of the Addition because it was determined by the City to be in keeping with the spirit and intent of the applicable ordinances, but the approval of the Conditional Use Permit 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 Church is agreeable to the issuance of the Conditional Use Permit 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 approval given by the City and the granting of the above requested Conditional Use Permit, by the City, 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, approve construction of the Addition, and did grant the Conditional Use Permit, subject, however, to the terms and conditions of this Agreement. 2. The Church shall, within thirty (30) days after the date hereof, submit to the City a plan for the construction of a gate on the Property to prevent vehicular access to or from the Property from or onto Dunberry Lane. The City shall have the right to require such changes, modifications, additions or deletions to the plan as the City, in its sole descretion, deems necessary. Construction shall commence within thirty (30) days after the date the Church receives written notice from the City that said plan has been approved and construction shall be completed with all due diligence. The City shall, in its sole discretion, determine from time to time, without limitation, the time periods during which the gate must be closed to prevent vehicular access to or from Dunberry Lane. Such determinations shall be made by notice given from time to time by the City to the Church. 3. The Church shall, within thirty (30) days after the date hereof, submit to the City a plan to construct and /or install sufficient traffic directional signage as may be, in the City's sole discretion, necessary to control the flow of traffic onto or out of the Property. The location and design of said signage shall comply with specifications established or approved by the City and shall comply with the then applicable City ordinances. Construction and /or installation of all required signage shall be commenced within thirty (30) days after construction of the traffic lane from the Property to the service road to the north of the Property is substantially completed. The City shall be the sole judge of when said traffic lane has been substantially completed. Construction and /or installation shall be completed with all due diligence. Once constructed and installed such signage shall be, at all times, maintained by the Church, in good condition and state of repair, at its sole cost and expense. 4. If the City Manager and the City Planner determine, in their sole and absolute discretion, that mitigating measures are necessary to reduce traffic congestion, then the City shall notify the Church of that fact and during the next 30 days, the Church and the City shall attempt to -2- reach mutual agreement on which mitigating measures shall be undertaken by the Church. Such mitigating measures may include any one or more of, but shall not be limited to, the following: (a) Adding additional worship services to the Church's Sunday morning schedule but only if agreed to by the Church; (b) providing attendants to assist with traffic flow and parking; (c) implementing a program of car - pooling; and (d) implementing a shuttle service to allow and encourage parking in other appropriate, off -site areas approved in writing by the City. If the Church and the City cannot agree on which measure or measures to take, the City Manager and City Planner may determine, in their sole and absolute discretion, which mitigating measures are acceptable to the City, and the Church shall determine which of said measures to implement if the City's proposal allows for a choice of measures. Notwithstanding the foregoing, prior to the City requiring the implementation of a program of car - pooling or shuttle service, the City will allow the Church to implement the use of parking attendants to assist traffic flow. If, however, the City determines in its sole and absolute discretion, after parking attendants have been utilized for a period of no less than 60 days, that further mitigating measures are required, the City may direct the Church to institute alternative or additional measures which may include but not be limited to car- pooling and /or shuttle service. The City Manager and the City Planner need not require that all mitigating measures be undertaken at any one time, but may require mitigating measures to be undertaken from time to time, without limitation, as they deem necessary. 5. If the City Manager and the City Planner determine, in their sole and absolute discretion, that additional parking spaces are required on the Property, the City shall notify the Church of that fact and during the neat 30 days the Church and the City shall attempt to reach mutual agreement on the necessity, number and location of additional parking spaces on the Property. If the Church and the City cannot reach agreement, the City may require that the Church construct, at its sole cost and expense, such additional parking spaces as the City Planner and City Manager shall then require up to a maximum of 170 additional parking spaces. The City Planner and City Manager need not require that all of the -3- additional parking spaces be constructed at any one time, but may, if agreement cannot be reached with the Church, require additional parking spaces to be constructed from time to time as they deem them necessary, again in their sole and absolute discretion. The additional parking spaces from time to time agreed to by the City and the Church, or required by the City Manager and the City Planner shall be built pursuant to and in the location or locations shown on, the Plan and shall be built in full compliance with the then applicable City ordinances. In the absence of a mutual agreement, the City Manager and City Planner shall be the sole judges of whether or not additional parking spaces are required, from time to time, and if so, how many are to be constructed at any given time. 6. The Church shall institute the mitigating measures required by this Agreement within 120 days after they have been determined to be required in accordance with this Agreement except that construction of additional parking shall not be required to begin during weather conditions which, in the opinion of an independent construction contractor and the City Engineer, make construction impossible or unfeasible. The time 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 the Church, in which case the time 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 mitigating measures and /or construction shall be completed with all due diligence as soon as possible thereafter. The City shall be the sole judge of whether the Church is using due diligence in completing such construction, and whether the Church has properly instituted the required mitigating measures. 7. 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 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. 8. In the event that the Church fails or refuses to fully comply with all of its obligations under this Agreement, or violates any of the provisions hereof, and such failure, -4- refusal or violation continues for a period of thirty (30) days after written notice thereof is given to the Church, 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) Enter upon the Property with such personnel, equipment, and materials as the City deems necessary for the purpose of performing the obligations of the Church hereunder that it has failed or refused to perform, including, at the City's discretion, entry for the purpose of constructing the gate described in paragraph 2 hereof, the signage described in paragraph 3 hereof, or the additional parking spaces. Any such entry on the Property by the City shall be without liability or obligation of any kind to the Church or any owner or occupant of the Property for trespass or damage to the Property, the Building, 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 Church, and if any person makes any claim against City for loss or damage to property or business due to such entry, the Church agrees to hold City harmless from and indemnified against any loss, cost, damage or expense, including reasonable 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 reasonable attorneys' fees, suffered or incurred by City, with interest at twelve percent (12 %) per annum from the date demanded until paid; provided, however, that the foregoing waiver and indemnity shall not apply to damage or loss caused by the negligent act of City, its agents or employees, or caused by the violation by City, its agents or employees, of any applicable law, statute or regulation. (b) Obtain enforcement of this Agreement by court order for mandatory injunction or other appropriate relief; and (c) withhold or deny any future building permits, future certificates of occupancy, future utility connection permits and any other future permits and approvals, which the Church may apply for and which are to be issued or granted by the City for the construction, occupancy, or use of all or any part of the Property, Building, or Addition, until such failure or refusal ends and the Church 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 -5- i remedy hereunder in the event of a failure or refusal by the Church, shall not preclude City from thereafter exercising any of its remedies for the same or a subsequent failure or refusal. Following a default by the Church under this Agreement and the failure of the Church to cure the same within 30 days after written notice from the City, the Church 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 costs of collection of any monies due to the City from the Church pursuant hereto, and with interest on all such costs and expenses at the rate of twelve percent (12%) per annum from the dates incurred by the City until paid. 9. 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 the senior pastor in the case of the Church and the City Manager in the case of the City, 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 Church: 6901 Normandale Road Edina, Minnesota 55424 Attn: Senior Pastor Such addresses may be changed by any party upon notice to the other party given as herein provided. 10. The Church warrants and represents that the execution and delivery of this Agreement has been duly authorized by all necessary corporate action, and the terms and conditions hereof are binding on the Church and enforceable against it in accordance with the terms hereof. 11. The Church shall undertake to obtain on or before April 1, 1991 all necessary consents to the recording of this Agreement with the Registrar of Titles, Hennepin County, Minnesota including, but not limited to, the consent and subordination of all holders of liens and encumbrances of record against the Property. The City may record this Agreement any time after April 1, 1991, whether or not the Church has obtained all necessary consents. Upon recording, the terms and provisions hereof shall run with the title to the mm Property and be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. If there be at any future time more than one owner of the Property, all of such then owners, while they are owners, shall be jointly and severally liable for all obligations under this Agreement. 12. In the event the Church objects to any decisions made by the City Manager and City Planner pursuant to the terms hereof, the Church may request the City Council to review such decisions and all actions and time periods required hereby shall be suspended until the objection is resolved by the City Council. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed the day and year first above written. CHRIST PRESBYTERIAN CHURCH OF EDINA •�s �� .r lrih ��Fi1r�I'y,T CITY OF EDINA r By L'A 5, Its Mayor, Its Manager STATE OF MINNESOTA) )SS. COUNTY OF HENNEPIN) ��Tne foregoing instrument was acknowl�ggdQ�d bef re me this��_ day of C7Cfi>b�V , 1989, by'3�►v%QS H. N YOA he T- S Qh of CHRIST PRESBYTERIAN CHURCH OF EDINA, a Minnesota religious corporation, on behalf of said corporation. X , MARYANN WALLI NOTARY Pt16UC - MINNESOTA / HENNEPIN COUNTY Notary ub 1 i c My Commission Expires veCt. -7- STATE OF MINNESOTA) )SS. COUNTY OF HENNEPIN) The foregoing instrument was acknowledged before me this day of Qzbej' , 1989, by a2(,iP, S,RC645 and 6t F 06fdx , , the Mayor and Manager, respectively, of the City of Edina, a Minnesota municipal corporation, on behalf of s JOYCE G. REPYA Ile NOTARY PUBLIC - MINNESOTA HENNEPIN COUNTY G�CJ My co v niesion Fxoires July 19, 1995 No t a r Pu i c This instrument drafted by: Dorsey & Whitney 2200 First Bank Place East Minneapolis, Minnesota 55402 EXHIBIT A Legal Description Per Certificate of Title Document No. 415729: Lots 1 to 6 inclusive, Block 1, SMILEY'S ADDMON, according to the plat thereof on file or of record in the office of the Registrar of titles in and for said Hennepin County, Minnesota. Per Certificate of Title Document No. 525734: That part of the Southwest Quarter of the Southwest Quarter described as beginning at the Southwest corder thereof; thence East along the South line thereof 330 feet, thence North parallel to the West line thereof 265 feet; thence West parallel to the said South line 330 feet to the West line thereof; thence South along said West line to the point of beginning, in Section 30, Township 28, Range 24, according to the Government Survey thereof Hennepin County, Minnesota; Except that part of the above described land which lies Westerly of a line run parallel with and distant 45 feet easterly of Line 1 described below and easterly of Line 2 described below: Line 1: From a point on the west line of said Section 30 distant 13.03 feet north of the southwest corner thereof; run easterly at an angle of 89 degrees 47 minutes 57 seconds from said west section line (measured from north to east) for 138.18 feet to the point of beginning of Line 1 to be described; thence deflect to the left at an angle of 101 degrees 33 minutes 58 seconds for 103.35 feet; thence deflect to the right at an angle of 07 degrees 21 minutes 40 seconds for 645.66 feet and there terminating; Line 2: Beginning at a point on a line run parallel with and distant 65 feet northerly of the south line of the above described tract distant 115 feet westerly of its intersection with the east line of said Tract; thence run northwesterly to a point on the north line of said Tract distant 190 feet westerly of the northeast corner thereof, Per Certificate of Title Document No. 525735: That part of the Southwest Quarter of the Southwest Quarter described as commencing at the Southwest corner thereof; thence East along the South line thereof 330 feet; thence North parallel to the West line thereof 265 feet to the point of beginning, said last described line hereinafter referred to as Line A; thence continuing North parallel to the West line thereof 395 feet; thence West parallel to the said South line 330 feet to the West line thereof; thence South along said West line to its intersection with a line drawn from the point of beginning and running parallel to the South line of the Southwest Quarter of the Southwest Quarter; thence East to the point of beginning, in Section 30, Township 28, Range 24, according to the Government Survey thereof, Hennepin County, Minnesota. Except that part of the above described tract which lies westerly of a line run parallel with and distant 45 feet easterly of Line 1 described below and easterly of Line 2 described below: Line 1: From a point on the west line of said Section 30 distant 13.03 feet north of the southwest corner thereof; run easterly at an angle of 89 degrees 47 minutes 57 seconds from said west section line (measured from north to east) for 138.18 feet to the point of beginning of Line 1 to be described; thence deflect to the left at an angle of 101 degrees 33 minutes 58 seconds for 103.35 feet; thence deflect to the right at an angle of 07 degrees 21 minutes 40 seconds for 645.66 feet and there terminating; Line 2: Beginning at a point on a line run parallel with and distant 65 feet northerly of the south line of said Section 30, distant 115 feet westerly of its intersection with the above mentioned Line A; thence run northwesterly to a point on the south line of the above described tract distant 190 feet westerly of the southeast corner thereof thence run northerly to a point on the north line of said tract distant 225 feet west of the northeast corner thereof and there terminating. alm - -0 m jS 72`� tol OF THE REGISTRAR OF T'TLES YJ N FY, ki I N NESOTA ;i'--'D Fl UE-D ON If 19 W, REGISTRAR By- OF TITLES DEPUTY